Posse Comitatus

It is dark and the news contains mixed portents. I am in a mood for the cliché. “In the South,” Faulkner said, “the past is not dead. It isn’t even past.

I take some issue with that, since the ground on which I sit was a part of the South, and occupied by Federal troops. They were a cruel occupier, and viewed my county as an outpost of the enemy.

They were right, of course. You can still see little bits of it. I was looking at what remains of a mighty rampart of one of the forts that the War Department flung like a string of pearls around the city of white marble.

The great earthernwork softens into the back yards of fashionable homes. But at the apex of the remaining rampart is flanked by a suburban street that was the military road that served the Arlington Line, and there is an old farmhouse there that predates the war.

On the lawn are four or five cars, some of them capable of independent movement, based on their positioning, and overseen by a porch. Sitting in two pressed-metal lawn chairs were two large women in print dresses. They were munching something from a white bowl between them, and they were looking at me with stoic eyes, vaguely suspicious, as the residents of that house had looked at this fort in the days of the occupation, and then the long decline as the underbrush spread along the parade ground and the trees began to grow in the dry moat.

They might be the last Confederates here, and I suspect their time is not long. The land on which the farmhouse sits is far too valuable to keep, raising a crop of discarded automobiles.

The wholesale development of the County and the export of the indigenous population has sealed history here, and only the curious like me would even look for it. The Virginia Welcome Center is located on the interstate twenty miles south of town. That is where the South begins.

But still, each time I turn around the war is still with us. Senator Warner, R-VA, is Chairman of the Armed Services Committee. He is a powerful man, with an aging but still leonine visage. He is asking the Senate to revisit the law that was passed in 1878 to strip police powers from the Yankee army of occupation, and end Reconstruction as the North envisioned it.

The people of the South voted to return strong leaders to the Congress, and the only party open to them was not the party of Lincoln . The law they demanded was popularly called “posse comitatus.” In Latin the words mean “power of the county” but more accurately translated as “the empowerment of the citizenry.” It is the legal basis by which the local sheriff can appoint deputies as members of a “posse,” and the basis of the Posse Comitatus Act which prevents the use of federal troops in civilian law enforcement.

The army was all-powerful in the decade of the Carpetbaggers, local sheriff, judge and jury. The troops did not always comport themselves with honor, and the Army was guilty of aiding the contractors and Unionists who flooded south to take advantage of the prostrate states of the former rebellion.

I will not at this time comment on the contractors who are flooding Mississippi and Louisiana and south Alabama. They may prove to be more honorable than those who swept the region the last time.

Senator Warner wrote a letter to Secretary Rumsfeld, saying that Hurricane Katrina had wreaked damage so vast that the active-duty military force was required to step in and temporarily usurp the authorities of local law enforcement to restore order.

He said the capabilities of the locals was overwhelmed, and only the Defense Department had the resources to cope with an emergency of this magnitude.

Under the 1878 law, the Army may provide humanitarian assistance, but cannot exercise police powers. The South had enough of the whims of capricious military commanders acting as the Sheriff. A wise Navy lawyer of my acquaintance maintains that the Navy was never explicitly mentioned in the law, though that careful parsing of the document has never been attempted. Using the Marines as police has traditionally been restricted to offshore temporary dependencies.

The law does not apply to the National Guard while under the control of governors. But the sheer inefficiency and confusion in the states affected prevented the unity of command necessary to keep order across the city, county and state jurisdictions.

Warner is a Virginian, and should know his history better. He asked the SECDEF not to restrict himself to a survey of natural disasters, since there is still the prospect of widespread mass casualties caused by the hand of man. The Secretary should be sympathetic. His office is just on the other side of the Pentagon from where the third airliner crashed.

Anything that could result in “serious breakdowns in public order should be considered,” said the Senator. It is time to update the law.

After all, as horrific as the aftermath of Katrina is, this scenario was no higher than third on the list of catastrophes which could befall the nation.

Senator Warner is thinking about the Big One in San Francisco , or the potential that the terrorists might get their hands on a nuclear weapon. Or that the avian flu could spread from O’Hare International like a wildfire across the homeland.

We are not ready for the next one, despite all the planning. It is time to start thinking about it seriously. But because the past is not dead, we keep bumping into the wreckage of what has gone before. There are no new mistakes, only new consequences of the old ones.

Copyright 2005 Vic Socotra

www.vicsoctra.com

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