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Jack Kelly: Power trip Clinton's record of using the military for law enforcement Sunday, August 08, 1999
It was April 28, 1914. President Woodrow Wilson had sent the U.S. Army into Colorado, with orders to disarm all persons, including sheriff's deputies, police officers and members of the National Guard; to arrest "persons whose presence and conduct tend to prevent the restoration of normal conditions," and to refuse to respond to writs of habeas corpus issued by Colorado courts.
That action, taken by Wilson to suppress labor-related violence, was the first time a president declared a state of national emergency. Since then, there have been 34 others: FDR issued three, Truman one, Nixon two, Carter two, Reagan six, Bush five, and Clinton . . . 15.
The president's authority unilaterally to assume dictatorial powers in a national emergency is not provided for in the Constitution. The Constitution gives four different emergency powers to Congress, but the only emergency power it provides the president is to call Congress into special session.
Under a law enacted in 1792 (10 U.S.C. 331), the president may send troops to put down domestic disturbances at the request of state authorities, or (10 U.S.C. 332) if he believes a disturbance "makes it impracticable to enforce the laws of the United States," whether state authorities want federal help or not.
Presidents in the past have used this power with great reluctance, and only briefly. At the request of California authorities, President Bush in 1992 sent soldiers and Marines to Los Angeles in the wake of the Rodney King riots. Though the troops patrolled the streets, they did not make arrests. Their commander thought they were prohibited from doing so by the Posse Comitatus Act, an 1878 law which made it illegal to use the Army "for the purpose of executing the laws."
Though some on the right have described Posse Comitatus as a bulwark of republican democracy, its origins were ugly. Democrats had captured the House of Representatives for the first time since the Civil War, and were upset that the Army during Reconstruction had interfered with the activities of the Ku Klux Klan.
Col. Thomas Lujan, staff judge advocate for the U.S. Special Operations Command, believes the military commander in Los Angeles was mistaken. When called out to quell domestic violence, "federal troops are expressly exempted from the prohibitions of Posse Comitatus," Lujan wrote.
His more expansive view of the use of the military in law enforcement has become policy in the Clinton administration. Military equipment was supplied for the siege of the Branch Davidian compound in Waco, Texas, in 1993. Soldiers from Delta Force, the Army's elite anti-terrorist unit, were on the scene. President Reagan had established strict guidelines for military assistance to law enforcement. The Clinton administration repealed them.
President Clinton also has taken a more expansive view of what constitutes a national emergency. On May 20, 1997, he issued an executive order declaring a "national emergency" with regard to Burma.
Burma is a small, poor country that in no conceivable way could pose a threat to the United States. But these days a national emergency, like the definition of "is," is whatever the president says it is.
Executive orders stem from the president's constitutional duty to "see that the laws are faithfully executed." Originally, they were merely instructions to members of the executive branch, binding only upon federal employees, not the general public.
President Clinton's view is that he has the authority to do whatever he can get away with. He has chosen to govern by executive order not just in emergencies, but also whenever Congress is unwilling to do what he wants. In 1996, he created the Grand Staircase-Escalante National Monument by proclamation, locking up 1.7 million acres of Utah - and outraging most elected officials in the state. Other examples are the executive orders Clinton has issued to enforce as if they were law treaties that have not been ratified by the Senate, and his habit of making "recess appointments" of officials who could not win Senate confirmation.
In opposing an earlier grant of emergency power to Franklin Roosevelt, Sen. Daniel Hastings warned the statutory authority being given the president was "more power than any good man should want, and more power than any other kind of man ought to have."
We've never experienced what can happen when too much power is wielded by that "other kind of man." But if Congress doesn't act soon to reclaim its constitutional authority, and to spell out how - and under what circumstances - the military can be used in law enforcement, we may.
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