Another must read IMO.
Civil Defense Or Lawfare?
-- Lorie Byrd
PoliPundit.com
The following is a post written by a regular reader of this site known to those who visit the comments section as “Oak Leaf". He is an active reservist with over twenty years of service that includes both the National Guard and U.S. Army Reserve.
<<<
Because of some misreporting on the role of the military in the aftermath of Katrina, I wanted to provide perspective as a reservist who is providing support in the Gulf Region. Civilians typically think that everyone in the military has similar skill sets and can be called upon to do anything anywhere. In addition to this being an oversimplification, we are governed by many laws such as the Posse Comitatus Act which limits what we can lawfully do:
“Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or Air
Force as a posse comitatus or otherwise to execute the
laws shall be fined under this title or imprisoned not
more than two years, or both.”
First, you must understand that this act covers the Army, Navy, Marine Corps, Air Force, to include each respective regular reserve force (known as “title 10 duty”) which are controlled by the President. The Act does not cover the Coast Guard, regardless of component, (“title 14 duty”) controlled by the Department of Homeland Security. It also does not cover the National Guard, Army and Air component, while they are performing state duty in their home state (“title 32 duty”) which is controlled by the respective Governor. It would cover a State National Guard unit that is performing duty outside its home state, when it is acting as a “reserve component of the Army or Air Force” and would then fall back under title 10 being controlled by the President. . These “title” sections refer to the US Code which may only be changed by Congress.
The significance of all this is that the majority of the military build up, specifically in New Orleans, cannot be used for law enforcement. It is largely a symbolic “show of force.” There will be some that might argue for a “work around” where a few Louisiana Guardsmen are imbedded within a “Title 10” unit and the “guardsmen” will do “the law enforcement.” Civil libertarians could easily argue that this is at least a violation of the spirit of the Act. These very concerns are currently being discussed amongst my peers in which hypothetically an individual who is either “arrested” or worse injured, claims a defense of “unlawful” arrest in federal court. The successful defense of the accused is proving a willful violation of Posse Comitatus that could therefore result in the imprisonment of all the commissioned officers involved in the “unlawful arrest.”.
The Bush Administration attempted to invoke” The Insurrection Act” (Title 10 USC, Sections 331-335) in order to provide a strong viable law enforcement presence in Louisiana and protect military personnel (title 10) against possible prosecution. This act allows the president to use U.S. military personnel at the request of a state legislature or governor to suppress insurrections. However, the Mayor of New Orleans and the Governor of Louisiana would have had to state on the record that they had lost control of the situation in New Orleans and that a state of “anarchy” existed. Obviously, the politicians of Louisiana were unwilling to pay that political price.
Very shortly, the Bush Administration will be accused of “pulling out the troops” before the job is finished. The “title 10” troops being sent to New Orleans fall under the Stafford Act. The story behind the story is that while the President may authorize Department of Defense resources for emergency work that is essential for the preservation of life and property, the period of the emergency work cannot exceed 10 days. While the “title 32” Louisiana National Guard troops can stay on state duty until the job is done, “title 10” forces will be departing very soon unless a creative work around is at hand.
Lastly, many now realize that the City of New Orleans had an emergency plan that specifically names who was responsible to do what. If they were unable to perform any of the listed tasks in their plan, they needed to truthfully state in their plan that they would be unable to do something. Federal authorities relied on the “integrity” of statements made in their plan. Had they been honest in their own assessment, they would have had planned for outside assistance early on and entered into “memorandums of understanding” with the state and federal government to obtain added support long before Katrina. I would highly recommend that the “emergency planners” employed by the City of New Orleans, the Mayor of New Orleans and the Governor of Louisiana take some of the no cost emergency management courses offered by FEMA starting with the introductory course where they will learn that “the primary responsibility for protecting citizens belongs to the local elected officials.”
– Oak Leaf
>>>
polipundit.com
northcom.mil
dtic.mil
cityofno.com
training.fema.gov |
