Chapter 4 - The Rabbit Sends in a Little Bill
As Jeremy Scahill puts it “This is by no means just about Blackwater. Blackwater is a company that's engaged to tell a much bigger story.” This blog is the same.
For those who are returning readers, a big shout out to both of you.
For those just joining, we support fact-based discussion of the weighty public policy issues surrounding private security and urge critical thinking on the naked assertions and unsupported opinions that are often dressed up as fact in that debate. All too often, discussion from both “sides” consists of hysterical partisan rants employing all the analytical reasoning of a goat.
Unlike most PSC-related sites, however, if we make a factual assertion, we aim to support it by a link to either (a) an original and credible third-party source, or (b) support from those likely to oppose the point (e.g., socialism.org announcing “Adam Smith rocks!”).
In other words, let’s consider these key public policy questions without histrionics. And, whatever “side” you are on, stop drinking the haterade. For the full picture, start with chapter one.
We’re not high-concept here at the Rabbit, heck, we have an obscure blog consisting of a half-baked conceit on so me inane children’s books that no one’s read in 40 years. Nonetheless, today we strive to enter rarified turf normally reserved for those tottering around with hundred-pound heads perched atop their pencil necks. If you’re not up for that, you can go back to stare at the colorful pictures in chapter two or just move on to perezhilton.com—the surest way to shave a few IQ points this side of touring a glue factory.
Sticking with our exploration of Blackwater in Katrina, this week’s topic is the intertwined issues of Blackwater, the National Guard, and the Posse Comitatus & Insurrection Acts.
The soundbite debate over private security frequently includes a two obligatory refrains. One is the shrill declaration that “Blackwater wants to replace the National Guard.” The typical companion assertion is that “Our National Guard should be here at home doing the job they signed up for, rendering service on the homefront, rather than being sent thousands of miles of away for years on end in the name of imperialistic follies.”
Actually, ignoring the partisan spin, the National Guard exists both for domestic service and for military service abroad. Let’s look at what the Guard really does, and then we’ll consider whether Blackwater is replacing them.
For those who are fully onboard with applying critical thought, you may want to review the Army JAG school’s Domestic Operational Law Handbook (“DOPLAW”), or read an informative work from the Yale Law Journal titled Emergency Power and the Militia Acts (“Vladeck”).
For those of you who went to your safety school, we’ll hit the highlights below, with cites to sites. This week’s post is long, but if you bear with a little history, we’ll get to some enlightening current-events observations.
The origins of the National Guard are the various state militias endorsed under the Constitutional Article I authority of Congress. With the Militia Act of 1792, Congress formalized those state militias and made service mandatory … unless you were a Congressman. The 1792 Act also established the dual nature of the Guard—it retained its role of state defense but was given two federal roles: national defense and law enforcement “whenever the laws of the
To put a finer point on it, the National Guard is a military force with both state and federal roles. Any misguided soul who joins the Guard solely for domestic public service should have found another service organization, like a Moose Lodge or the Shriners or something. Tougher to really bring it in a singles bar as a Shriner rather than a soldier, but then soldiers rarely get to drive a miniature car while wearing a fez.
While in their “state” capacity, National Guard units basically comprise fifty-four separate armies and air forces under the control of the respective state governors and adjutants general and as such they are not subject to the Uniform Code of Military Justice (DOPLAW, p. 182). So although Guard members are subject to state laws, just like PSC’s in a domestic role, those in a tizzy over UCMJ applicability to mercenaries can now lay awake nights stewing on additional fascist-oppression scenarios involving “unaccountable” Guard in the streets (even worse, note that Posse Comitatus has never applied here, as we will get to in a moment). D’oh!
When Guard troops are called into service by the President, a/k/a federalized, they are operating under a whole different part of U.S law (USC Title 10), are paid via the federal trough, and subject to the UCMJ. The permissible missions and requirements for activation under Title 10 are a tangled web of confusing provisions. (For those keeping score, that is an assertion of opinion. If you actually look at the language in question, though, you may decide it is an assertion of fact.) These assorted grounds for activation are a reflection of the Guard’s long history, so let’s return to the 1792 Militia Act and see how we got from there to here.
Presidents Washington, Adams and Jefferson called out the militia a number of times for national-police type missions, so in 1807 we got the Insurrection Act, which clarified the idea that all those recent actions were authorized, and added a similar power of domestic tasking for the standing Army and Navy:
[I]n all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.
(Vladeck, p.164). Note that “causing the laws to be duly executed” is pretty much military law enforcement any way you slice it. The law was basically unchanged for half a century, with the President having fairly broad powers to use either the militia/Guard or the active forces to deal with insurrection or lawlessness.
In 1861 (convenient timing, no?) it was amended to allow for longer call outs, which were now more at the President’s discretion, and bases for call out were expanded to include “unlawful combinations” or “rebellion.” (Vladeck, p.166). This was pretty much the high-water mark of power for domestic use of the Guard, despite the panic-stricken cries by some current observers that the tyrannical power present today is unprecedented. After all, in 1861 posse comitatus was still just a fancy Latin phrase meaning “power of the county.”
Thus to summarize, after the Insurrection Act, the 1861 mods, and various other expansions, the President had a number of different statutory provisions under which he could call out the Guard. The section of law under which the Guard is called up dictates how they can be used, and those rules are Byzantine. For example, per the relevant part of Title 10 a Guardsman activated for a “Presidential Selective Reserve Call-up” cannot provide assistance in time of a serious natural or manmade disaster, accident, or catastrophe—unless of course they are responding to the use or threat of use of a weapon of mass destruction. There is a provision and corresponding restrictions for almost everything. Another example: there literally are explicit provisions for activation of the Guard and Reserve to help deliver the mail (DOPLAW, ch.8).
Before you bail out of the Rabbit to go search for pics of the latest Britney Spears wardrobe incident, however, here is the point: there are a number of ways the Guard can work for the feds, and the particular piece of law under which they are called greatly affects (a) what must be done to call them and (b) what the Guard has the power to do. Once we add some restraints on police action to this picture, we’ll be ready to look at how this works in real life.
Following the “Recent Unpleasantness between the States,” the Army was used extensively in the South to maintain civil order and to enforce Reconstruction policies, and was used by
Then, there was a contested election in which one candidate won the popular vote, but the electoral vote was the subject of heated debate and widespread allegations of corruption. The country waited four months to find out who would be the next Chief Executive, and there was much social discord. Sound vaguely familiar? Did we mention this was 1876?
Because armed forces had been used extensively at polling places on a civil-order justification the whole military-as-police issue came to a head during this post-election period. The Posse Comitatus Act was passed to remove the Army from this civilian law enforcement role. In a deeply ironic twist, given the furor over recent changes in this area of law, the original Posse Comitatus Act was passed by way of a rider to an Army appropriations act. A leopard can’t change his spots.
The Act provides that “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, whoever willfully uses any part of the Army [or the 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.” That’s it. One clause, not volumes of text, extended legislative history, or a signing statement. Nothing more to the Act.
There is no question that the Posse Comitatus Act marked a shift from increasing and unchecked use of the military for domestic matters. But the common blogosphere shriek that the Act is a “
All the Act expressly does is restrict the ability of
The federal/state role of the Guard, coupled with the “authorized by the Constitution or Act of Congress” hole leave you with any number of cases where the Guard can be called out for domestic law enforcement or the active-duty military used likewise without Posse Comitatus applying, including:
- When in their state role, the Guard is not a federal force and so is not "any part of the Army" and Posse Comitatus does not apply to them
- When called up by an Executive Order to deal with domestic violence as was done, for example, during the 1992
riots Los Angeles
- When activated under Insurrection Act (certainly an “Act of Congress”) to deal with the issues named therein, e.g., to enforce the law if there are “unlawful assemblages,” if “domestic violence” opposes execution of the laws or “impedes the course of justice,” or if civil rights are oppressed
- The Navy and Marines are not restrained by the Posse Comitatus Act. DoD is required by statute to issue instructions regarding use of Sailors and Marines for law enforcement, but there is no ban on such use. The current version of the directive puts those forces on similar footing as the Army, but the courts have held that there is no legal bar
These are just a few examples. The point is that every time Guard forces are used in a state role or any military is used where a Congressional Act created grounds for domestic deployment to “cause laws to be executed” it is another area where the Posse Comitatus Act does not apply.
However feeble the protections of the Posse Comitatus Act may or may not have been, changes to the Insurrection Act in 2006 further narrowed those protections by notably widening the areas where the Insurrection Act applies.
Since the Posse Comitatus Act was created via an appropriations rider, it is only appropriate that it was changed via the 2007 National Defense Authorization Act. The argument that it the change was some nefarious partisan plan does not gain credence from, for example, the fact that it passed the Senate by unanimous consent.
Right off the bat, the new legislation got rid of that scary “Insurrection” stuff by changing it to “Enforcement of the Laws to Restore Public Order.” Then, it provided for use of the military for law enforcement in connection with a “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or any other condition” if so much domestic violence results that the locals can’t maintain public order. Although this arguably made it easier to call up the Guard, it also significantly curtailed the reach of Posse Comitatus.
Senator Leahy and others are leading a drive to reverse course on this legislation and return the scope of the Insurrection Act to what it used to be. In the interim, it is useful to note that all fifty state governors and the National Guard Association apparently agree that the change was a bad idea.
To state the obvious, this all rolls into the private security debate because the standard charge is that martial law will be declared and Blackwater will be asked to takeover the country. This is, of course, because Blackwater wants to be the National Guard.
When it comes to the disparate roles of the two organizations, much of this ground has already been ploughed in chapter three.
Over 50,000 Guardsmen responded to Katrina, with forces coming from all fifty states—approximately one-third of the entire National Guard force. Because these forces came in a state role, under the Emergency Management Assistance Compact between the states, they came with law enforcement powers. In the days after the storm, they rescued over 17,000 people and transported 70,000 out of the devastated region. As reported in various news stories they also provided food, medical care, and so forth.
As discussed in chapter three, Blackwater provided static site security to local government and private facilities—however capable they may have been, the role was simply security guard. Like the National Guard, Blackwater also rescued people and delivered supplies, but that was apparently charitable work and was largely in the first few days. Finally, Blackwater’s federal role was limited to the Federal Protective Service work discussed in chapter three—an entirely different mission. In each of the cases above, the role of the Blackwater professional/mercenary was civilian worker, whether for a private entity or for the government. They had no connection to Posse Comitatus and martial law, except to the extent that they like everyone else came under it. Any law enforcement power they were given by federal or state authorities was a civilian matter, not a military one.
Here are some potential conclusions that can be drawn from these facts:
- Posse Comitatus does not do nearly so much as the average person might think to limit law enforcement by the military
- It is not at all uncommon for National Guard on domestic deployments to have law enforcement powers and to not be subject to the UCMJ
- If SecDef really needed to impose martial law and put an armed force on your street, the Marines, some Navy Air, and a few well placed SEAL teams are a penstroke away
- The debate at this point normally devolves into those who claim that honorable military can be trusted but vicious mercenaries cannot, versus those who as how those servicemembers are noble, patriotic and good one day, but on becoming veterans develop a sudden and uncontrollable urge to drink the blood of small children and various domestic animals
- The 2006 changes to Insurrection Act/Posse Comitatus law cause a notable expansion in Presidential authority to deploy the military domestically and to use it in a domestic law enforcement role
- Contrary to the common assertion in PSC debates, the changes had no effect on Blackwater's potential power or authority
- It is an highly inflammatory soundbite to cry that "Blackwater is replacing the National Guard," but the domestic operations of these two organizations have different authority and different missions based on the respective sources of their federal- and state-delegated power
The whole point of this blog, however, is not for us here at the Rabbit to tell you your opinion. I’m just another dude sitting in my parent’s basement drinking lukewarm Beck’s and typing away on a little-known blog in my Scooby-Doo Under-Roos.
The point of this blog is to dig out facts to inspire your critical thinking on the issues. If you believe Blackwater and the other PSC’s did or did not have—or should or should not have—more expansive domestic roles, then go do more hard research.
Just remember that reading some blog cross-post of a naked assertion is NOT research. In fact, think hard about how in touch with reality these radical extremists are, whether its the far left talking about US concentration camps or the far right talking about seizure of their guns. These people scare me. Men (and women) who look like Neil Young and don’t bathe. They write manifestos and have bodies buried in their back yard.
For those keeping score, that would be a switch from reasoned analysis to opinion.
Here’s another opinion: the changes in the Insurrection Act were a mistake. For the record, the Rabbit is agreeing with Jeremy Scahill on that (not that his soundbites demonstrate a complex grasp of the situation). The feds had more than enough power to federalize the Guard and conduct military-based law enforcement before the change.
Next time we meet Harry,
Lastly, we here at the Rabbit try quite diligently to drill down on one issue at a time and not go chasing the PSC soundbite of the day. So we will get to the Fallujah litigation in due time. Nonetheless we have to at least mention the “Blackwater Heavies Sue …” press release which has been posted so often this week that you’ve seen it even if you are living under a rock. “Heavies”? Come on, it’s 2007! Who talks like that?!? The last person legitimately entitled to use that term departed Haight Ashbury feet first ten years ago, was buried in their macramé suit, and is basking in the black light in that great hash den in the sky.
Next week: new and little-known information about a central Blackwater figure …