Senator may revisit ban on military domestic police power

Senate Armed Services Chairman John Warner, R-Va., may hold hearings to determine if the Reconstruction-era Posse Comitatus law should be revised to give the military new domestic policing powers, even though the Bush administration has backed away from its call for a review and Defense Secretary Donald Rumsfeld is opposed to changes.

Warner, a former Navy secretary, "remains concerned about making sure Posse Comitatus is not limiting legislation," a spokesman said. "He remains open to re-examining and reviewing it."

The 1878 law, originally designed to bar federal troops from policing polling places in the South after the Civil War, limits the military's role in civilian law enforcement proceedings. Calls for easing the restrictions gained momentum after the Sept. 11, 2001, terrorist attacks.

The White House entered the debate last summer when the Homeland Security Department was being designed. "The threat of catastrophic terrorism requires a thorough review of the laws permitting the military to act within the United States in order to determine whether domestic preparedness and response efforts would benefit from greater involvement of military personnel and, if so, how," the administration wrote in its legislative proposal.

Warner raised the idea of hearings in 2001 and repeated it late last year, when election results gave Republicans control of the Senate and put him in line to chair the Armed Services panel. He revisited the issue while questioning Paul McHale, assistant Defense secretary for homeland defense, during an April 8 committee hearing.

While McHale said protecting the country "requires an unprecedented level of cooperation throughout all levels of government," he said Rumsfeld has decided the law should not be changed. Gen. Ralph Eberhart, commander of the military's Northern Command, took a similar position at a House Armed Services hearing in March. "We believe the act, as amended, provides the authority we need to do our job, and no modification is needed at this time," he said.

Debate about the law has created some unusual coalitions inside and outside of government. Senators interested in considering relaxed restrictions during national emergencies include Sens. Trent Lott, R-Miss., and Joseph Biden, D-Del. Among the Senate opponents is Homeland Security Appropriations Subcommittee Chairman Thad Cochran, R-Miss. "I really don't think we ought to change that, frankly," he told CongressDaily. "The military's not in the business of arresting people."

Cochran said he supported changing the law until a military officer made a chilling comment about the Pentagon's involvement in drug-interdiction flights, "Senator, we're in the business to kill enemy aircraft, not force them to land."

Opponents of easing the restrictions, including the American Civil Liberties Union and scholars from some conservative think tanks, argue that the law has already been weakened by government decisions to allow the military to patrol U.S. borders, search for drug suppliers, and, in one highly publicized case last year, use spy planes to try to track the Washington-area sniper.

Even if Rumsfeld convinces Warner to skip hearings, Gene Healy of the Cato Institute said he does not think the issue will go away. "The next time there is a domestic terrorism incident, this will come up again," Healy said. "Because the military does its main mission so well, a lot of politicians are starting to see it as a panacea for solving every problem."