Can troops be in our streets?

Sgt. Robert Stanley of the 82nd Airborne Division patrols the flooded streets of New Orleans after Hurricane Katrina struck.

WASHINGTON - Are Americans ready for armed soldiers patrolling the streets of their cities after a terrorist attack or natural disaster?

Decades ago, the answer would have been a shocked "no!"

But after Hurricanes Katrina and Rita, the answer is "maybe."

A post-Civil War law called the Posse Comitatus Act bans the military from engaging in civilian law enforcement. But this past week President Bush began a discussion with his advisers, Secretary of Defense Donald Rumsfeld, military leaders, and a few members of Congress on whether the law should be changed to give the president authority to dispatch soldiers to any natural disaster site immediately.

He apparently has not had any serious conversations with the nation's governors, many of whom are appalled at the idea.

After Katrina struck, and TV crews filmed lawlessness on the streets of New Orleans, many Americans demanded that national troops be sent in to restore order.

Asked by the White House if she would hand over control of the Louisiana National Guard to the federal government, Louisiana Gov. Kathleen Blanco said she would not. That was not what the White House wanted to hear.

White House spokesman Scott McClellan said, "When you have a severe catastrophic event like a Hurricane Katrina, you need to have the authority, a trigger to allow for the military to assume full responsibility for the immediate response in order to stabilize the situation and then step back and let others assume control."

As Bush has flown around the Gulf Coast assessing the damage and the federal response, said Mr. McClellan, he has heard repeatedly from those on the ground about improvements that should be made. Sending in federal troops is one thing that is often mentioned.

The Posse Comitatus law, passed in 1878, has been modified since then. There are exceptions to the ban on use of federal troops domestically authorized by the Constitution and Congress. The Coast Guard is legally used in the fight against drug smugglers. The Army may give technical assistance to civilian law-enforcement agencies. The Navy may provide planes. And the National Guard is not prohibited from engaging in civilian law enforcement unless it has been federalized by the president. In the 1980s, Congress said the military could be used to stop illegal immigration.

In recent years, military troops have been stationed for patrol in rioting neighborhoods in big cities because that is considered a "passive" use. Soldiers are not supposed to arrest citizens, which is considered an "active" use of the military.

But if a governor of a state seeks federal military troops to maintain order after a catastrophic event, such as a hurricane or a riot, and the president declares a state of emergency, the president may send in military troops for up to 10 days to save lives and protect property.

One reason many think the Posse Comitatus Act has been increasingly marginalized is that it is passionately embraced by various hate groups, such as the Aryan Nation of Nazi sympathizers, who oppose much of what the federal government does. Survivalists still insist that the deaths of 90 Branch Davidians in 1993 at Waco, Texas, were caused when law-enforcement officials stormed the compound with equipment and technical assistance said to be from the Army.

Another reason many say the law should be changed or even dumped altogether is terrorism on U.S. shores. Since Sept. 11, 2001, troops have been used for political conventions. Even before then, spurred by the first World Trade Center bombing and the Oklahoma City bombing, in 1996, the National Olympic Committee countenanced the use of U.S. troops to patrol the events in Atlanta.

Debate has raged in legal circles for the past 10 years, especially after the Oklahoma City bombing when President Clinton proposed using the military to find weapons of mass destruction in America.

Now the debate has gone public, and there is no partisan consensus. While Mr. Bush is pushing the idea, Arkansas Gov. Mike Huckabee, a Republican who currently heads the National Governors Association, said, "I haven't heard any governor say 'That's a great idea. I'll give up my power to an unelected general to oversee my state.' "

Many federalists, who never forget that the Constitution gives the states power not specifically reserved for the federal government, are alarmed. Sentiment in Congress seems initially tepid. One of the military's chief supporters, Sen. John Warner (R., Va.), who chairs the Senate Armed Services Committee, was asked by reporters what he thinks. He did not shoot the idea down but said he is concerned what it would do to the balance of power between the federal government and the states.

A major argument being raised against the idea of abandoning the Posse Comitatus prohibition is the Pentagon's own admission that its armed forces are stretched thin. With a large deployment in Iraq and thousands of soldiers still in Afghanistan, many worry that there are not enough soldiers for foreign and domestic use. National Guard troops in record numbers are being deployed to Iraq to fill the void.

The chairman of the Joint Chiefs of Staff, Army Gen. Richard Myers, was cautious this week. After a disaster such as Katrina, the thought springs to mind that the logistical might and competence of the military might have helped save lives, he acknowledged. But, he added uneasily, the country is still a far cry from actually deciding to give combat troops law-enforcement authority in American cities.

Contact Ann MCFeatters at: amcfeatters@nationalpress.com or 202-662-7071.