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Senator asks Pentagon to revisit ban on military's domestic police powers

John Warner, R-Va., Seeks review of how president may legally circumvent an 1878 law prohibiting the military from participating in law enforcement activities at home.

In the wake of a massive military deployment to the Gulf Coast, Senate Armed Services Committee Chairman Warner has asked the Pentagon to review how the president may legally circumvent an 1878 law prohibiting the military from participating in domestic law enforcement activities.

In a letter sent Wednesday to Defense Secretary Donald Rumsfeld, Warner said the devastation caused by Hurricane Katrina was so vast that it requires the active-duty military to step in and work temporarily with local law enforcement to restore order to the region.

"In our federal system, we normally, and rightly, depend upon state and local authorities to maintain order and protect the public," Warner wrote. "However, in a situation of the magnitude of this hurricane, the destruction of power, communications, water and sewage, and related infrastructure was so great, and the sheer impassibility of large sections of the area so lengthy, that the maintenance of order was apparently, and understandably, beyond the capacities of those authorities in some instances."

Only the Defense Department has the personnel, equipment, training and logistical capacity to aid the National Guard and law enforcement in "an emergency of this scale," Warner added.

Under the 1878 Posse Comitatus Act, the active-duty military may provide humanitarian assistance, but cannot maintain public order by conducting arrests, searches and seizures.

The law does not apply to the National Guard while under the control of governors. But keeping those forces under state control presents its own challenges, "depending as it does on multistate situations on comity and reciprocity among governors," Warner stated.

In the letter, Warner asked Rumsfeld not to confine his review to natural disasters, but rather to consider "large-scale public health emergencies, terrorist incidents, and any other situations which could result in serious breakdowns in public order."

In addition, he said, the Pentagon review should go beyond Posse Comitatus, and include insurrection statutes written in the 1860s and 1870s, as well as laws governing calling the National Guard to active duty, which places them under the Defense secretary's control.

Meanwhile, Warner wants Congress to conduct its own review of the law. At a minimum, the chairman plans to recommend changing the "names and terminology of these statutes to reflect present-day realities."

"The president should not have to worry about misperceptions by the public based upon outdated wording that does not accurately describe what the armed forces may be doing in a particular emergency," according to the letter.

Armed Services ranking member Carl Levin, D-Mich., said Wednesday that if there have been limitations in arresting people in the region, the law might need to be reviewed as part of any larger committee inquiry into any impediments in deploying active-duty forces in the region.

Warner, other lawmakers and military officials discussed allowing active-duty military to join domestic agencies to combat terrorist threats after the Sept. 11, 2001, terrorist attacks, but ultimately did not do so. Rumsfeld has opposed previous proposals to curtail the law.

The American Civil Liberties Union and scholars from some conservative think tanks have argued 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, use spy planes to try to track the Washington-area sniper in 2002.