The Myth of Posse Comitatus


The Posse Comitatus law bars the use of the armed forces
for law enforcement inside the United States….or does it?

The Posse Comitatus Act is no barrier to federal troops providing logistical support during natural disasters. This would also be case in a pandemic, certainly if the Congress believed it was necessary to enforce QUARANTINES, then Posse Comitatus would be no barrier.

One of the most controversial uses of the military during the past 20 years has been to involve the Navy and Air Force in the “war on drugs.” The Reagan Administration directed the Department of Defense to use naval and air assets to reach out beyond the borders of the United States to preempt drug smuggling. This use of the military in antidrug law enforcement was approved by Congress in 10 U.S.C., sections 371–381.

This same legislation permitted the use of military forces in other traditionally civilian areas—immigration control and tariff enforcement. So you can see while the act appears to prohibit active participation in law enforcement by the military, the reality in application has become quite different.

Via: Democracy Now:

Newly declassified documents reveal that an active member of Students for a Democratic Society and Port Militarization Resistance in Washington state was actually an informant for the US military. The man everyone knew as “John Jacob” was in fact John Towery, a member of the Force Protection Service at Fort Lewis. The military’s role in the spying raises questions about possibly illegal activity. The Fort Lewis military base denied our request for an interview. But in a statement to Democracy Now, the base’s Public Affairs office publicly acknowledged for the first time that Towery is a military operative. “This could be one of the key revelations of this era,” said Eileen Clancy, who has closely tracked government spying on activist organizations.

That news story appeared yesterday, and while a clear outrage in the minds of many, it may not be a violation of Posse Comitatus based on recent courts rulings. Sure, the anti-war left is upset (and rightfully so), but this story does illustrate the point that Posse Comitatus is largely a myth. One that the military merely pays lip-service to in order to maintain a good public relations image.

Wikipedia said: The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Congress.

but…

Major Craig T. Trebilcock writes:
As is often the case, reality bears little resemblance to the myth for homeland defense planners. Through a gradual erosion of the act’s prohibitions over the past 20 years, posse comitatus today is more of a procedural formality than an actual impediment to the use of U.S. military forces in homeland defense.

The federal courts have had several opportunities to define what behavior by military personnel in support of civilian law enforcement is permissible under the act. The test applied by the courts has been to determine whether the role of military personnel in the law enforcement operation was “passive” or “active.” Active participation in civilian law enforcement, such as making arrests, is deemed a violation of the act, while taking a passive supporting role is not.

Military personnel may also be involved in planning law enforcement operations, as long as the actual arrest of suspects and seizure of evidence is carried out by civilian law enforcement personnel. Whether or not spying on the American people is “passive” or “active” is grey area, one that the court has yet to rule on. My guess is the court would rule it illegal, but that doesn’t mean the practice will end (just be handed over to another department outside DOD).

In theory, the Act prohibits the use of federal military forces to “execute the laws”; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to conventional law enforcement.

On December 10, 2008, the California Highway Patrol announced its officers, along with San Bernadino Sheriff’s Department deputies and US Marine Corps Military Police, would jointly staff some sobriety and drivers license checkpoints. However, the Marines at the check points are not arresting individuals or enforcing any laws, which would be a violation of the Posse Comitatus Act. A spokesperson said that the Marines were present to observe the checkpoint to learn how to conduct checkpoints on base, to help combat the problem of Marines driving under the influence. The Marines at a recent checkpoint learned techniques to conduct sobriety checkpoints and field sobriety tests.

On March 10, 2009, active duty Army military police troops from Fort Rucker were deployed to Samson, Alabama in response to a murder spree. Samson police officials confirmed the troops’ presence, but it remains unclear who requested the troops and under what authority they were deployed. The governor of Alabama did not request military assistance and President Obama did not authorize their deployment. According to police officials, the soldiers were involved in traffic control and securing the crime scene. An investigation into possible violations of several federal laws including the Posse Comitatus Act, is underway.

Although no one has ever been successfully prosecuted under the act, it is available in criminal or administrative proceedings to punish a lower-level commander who uses military forces to pursue a common felon or to conduct sobriety checkpoints off of a federal military post. Officers have had their careers abruptly brought to a close by misusing federal military assets to support a purely civilian criminal matter.

Former Vice President Dick Cheney Cheney pressured George W. Bush and other top administration officials to deploy U.S. soldiers to a Buffalo NY suburb to arrest suspected terrorists, according to a recent report. John Yoo, the former Legal Counsel, wrote a memo that authorized the president to use the military for domestic matters. The memo also said Bush had the legal authority to order searches and seizures without warrants against individuals that he judged to be terrorists. Bush opted not to used this “authority” even under pressure from Chaney to do so.

If he had, would he have been breaking the law? Not according to John Yoo, who wrote: “We think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks.”

Moreover, the enforcement of a prosecution under the Posse Comitatus Act would necessarily be brought by the Department of Justice, the lead agency charged with combating domestic terrorism. This further suggests that as long as coordination of the use of military forces was part of a coordinated interagency effort that the likelihood of prosecution under the Posse Comitatus Act of any executive branch official would seem remote at best.

Still, all this discussion is large an academic distraction when you consider the following reality:

On October 1, 2008, the US Army announced that the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response force for natural or man-made emergencies and disasters, including terrorist attacks.

This marks the first time an active U.S. Army unit will be given a dedicated assignment to NORTHCOM, where it is stated they may be “called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack.” These soldiers will also learn how to use non-lethal weapons designed to “subdue unruly or dangerous individuals” without killing them, and also includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and beanbag bullets. However, the “non-lethal crowd control package […] is intended for use on deployments to the war zone, not in the U.S. […]”.

The US military will have around 20,000 uniformed personnel in this role in the United States by 2011, specifically trained and equipped to assist state and local government, respond to major disasters, terrorist attack, other major public emergencies. This shift in strategy is a result of recommendations to Congress by outside experts and now represents a permanent assignment of forces to NORTHCOM.

This formalizes a role for the use of federal troops within the United States during major public emergencies and disasters, as was the case in the aftermath of Hurricane Katrina and may be again with the Swine Flu pandemic.

There are good reasons to resist any push toward domestic militarization.

As one federal court has explained: “Military personnel must be trained to operate under circumstances where the protection of constitutional freedoms cannot receive the consideration needed in order to assure their preservation. The Posse Comitatus statute is intended to meet that danger.”

Army Lt. Gen. Russell Honore, commander of the federal troops helping out in New Orleans, seemed to recognize that danger when he ordered his soldiers to keep their guns pointed down: “This isn’t Iraq,” he said.

Soldiers are trained to be warriors, not peace officers — which is as it should be. But putting full-time warriors into a civilian policing situation can result in serious collateral damage to American life and liberty.

The Katrina tragedy should make us stop and rethinking a number of federal policies, including our promiscuous use of the Guard abroad. Instead, Washington seems poised to embrace further centralization and militarization at home. I fear that has the makings of a policy disaster that could dwarf Hurricane Katrina.

Constitutional rights weren’t created to protect us during good times; they weren’t put in place when the economy was doing great and the world was in peace. The Constitution itself was born of a bloody revolution … where sedition, loyalists to the British crown, and traitors walked side by side amongst patriots. Indeed the Bill of Rights and the Constitution are there to guide us during times of trial, war, and adversity.

In times of conflict, tyrants find the best climate in which to flourish – these are the times, these tyrants are the men we were warned to be ever vigilant against to preserve our freedoms. And to allow these men to flourish, strip us of our rights in exchange for “safety,” indicates that we have fallen far from the tree of liberty, and exist as a nation of ignorant cowards. Make no mistake, Bush might be out of the White House, but his international paymasters are still there, coaxing Obama every step of the way.

Posse Comitatus (Latin): Power of the county. Under our Constitution that power resides with the people, but as Posse Comitatus has been eroded over the last 20 years so has the power of the people.

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