In 2002, the Bush Administration considered several options for dealing with an Al Qaeda sleeper cell outside of Buffalo, NY. The cell, which came to be known as the Lackawanna Six, was ultimately taken down by the FBI. But a faction within the Administration, led by VP Dick Cheney, had a plan to use the military after declaring the cell “enemy combatants”. The argument that prevailed was led by Secretary of State Condoleezza Rice: use of the military in a domestic police action amounts to a violation of the Posse Comitatus Act of 1878.
In the Times’ breathless lede: “Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.”
The legal basis of the proponents’ argument was a legal memorandum that was prepared after the September 11, 2001, attacks to clarify the President’s authority:
The memorandum — written by the lawyers John C. Yoo and Robert J. Delahunty — was directed to Alberto R. Gonzales, then the White House counsel, who had asked the department about a president’s authority to use the military to combat terrorist activities in the United States.
The memorandum was declassified in March. But the White House debate about the Lackawanna group is the first evidence that top American officials, after the attacks of Sept. 11, 2001, actually considered using the document to justify deploying the military into an American town to make arrests.
The document added that the neither the Posse Comitatus Act nor the Fourth Amendment tied a president’s hands.
But remember Hurricane Katrina? When LA Governor
BlankStare Blanco hestitated in waiving Posse Comitatus, delaying the Federal response? The Times took on a decidedly different tone in this article from September 27, 2005:
Bush Wants to Consider Broadening of Military’s Powers During Natural Disasters
“I don’t want to prejudge the Congress’s discussion on this issue because it may require change of law,” Mr. Bush said, apparently referring to the Posse Comitatus Act of 1878, written in response to the huge federal military presence in the South during Reconstruction. It prohibits the military from engaging in law enforcement, but many exceptions have been carved out. …
Some experts said Monday that under existing law, Mr. Bush had all the authority required.
“There are all kinds of exceptions to Posse Comitatus that allow the federal government to do what they should have before Katrina,” said William C. Banks, a professor at Syracuse University Law School and an authority on Posse Comitatus.
Mr. Bush could have acted “on the governor’s request, or on presidential initiative,” Professor Banks said.
He said Mr. Bush’s authority extended to using the troops to stop looting – a law enforcement function – under provisions that enable him to put down any act of insurrection. “The restrictions everyone’s talking about are more cultural than legal,” the professor said.
So, there you have it. The Times criticizes President Bush for failing to use Federal troops to stop looters in Buffalo,
criticizes the Bush Administration for even thinking about using Federal troops to stop Al Qaeda-connected terrorists.
Question (rhetorical): Whose side is the NYT on in the War on Terror?