Army Times

Is The Death of Posse Comitatus at Hand?

Dr. Bill Smith, ARRA Editor: Is the doctrine of Posse Comitatus coming to an end? The Posse Comitatus Act was passed in 1878 and has been an important law. Wikipedia reflects:

"The Act prohibits most members of the federal uniformed services ... from exercising nominally state law enforcement police or peace officer powers that maintain 'law and order' on non-federal property. . . . The statute generally prohibits federal military personnel and units of the United States National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. . . . The Posse Comitatus Act and the Insurrection Act substantially limit the powers of the federal government to use the military for law enforcement."

Gina Cavallaro at the Army Times announced reports: 3rd Infantry’s 1st BCT trains for a new dwell-time mission. Helping ‘people at home’ may become a permanent part of the active Army.

The 3rd Infantry Division’s 1st Brigade Combat Team has spent 35 of the last 60 months in Iraq patrolling in full battle rattle, helping restore essential services and escorting supply convoys. Now they’re training for the same mission — with a twist — at home. Beginning Oct. 1 for 12 months, the 1st BCT will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command, as an on-call federal response force for natural or man made emergencies and disasters, including terrorist attacks.

It is not the first time an active-duty unit has been tapped to help at home. In August 2005, for example, when Hurricane Katrina unleashed hell in Mississippi and Louisiana, several active-duty units were pulled from various posts and mobilized to those areas. But this new mission marks the first time an active unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities. . . .

“Right now, the response force requirement will be an enduring mission. How the [Defense Department] chooses to source that and whether or not they continue to assign them to NorthCom, that could change in the future,” said Army Col. Louis Vogler, chief of NorthCom future operations. “Now, the plan is to assign a force every year.” . . . they’ll learn new skills, use some of the ones they acquired in the war zone and more than likely will not be shot at while doing any of it. 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, or CBRNE, attack. . . .

Obviously, we would appreciate the military's assistance if we had a massive terrorist attack in the United States; especially with the taking out the "bad guys."  But do we want the military doing police actions related to routine national, regional or even local "civil unrest and crowd control"? When did the transfer of authority occur which granted military control within the the borders of the Unites States? Before proceeding, let me note that military officers take an oath to defend the Constitution against all enemies foreign and domestic. In the study of military doctrine and history, military officers confront the theory and past applications as to the extent military officers and the people under their command may be or have been called upon to intervene in domestic affairs. However, Posse Comitatus has provided a clear line in the sand.

Presidents have used the military to enforce their will within the United States. For example George Washington, our first president, used his authority as commander-in-chief in 1794 to call out the militia to suppress the Whiskey Rebellion. President Andrew Jackson ignored the 1832 ruling of the U.S. Supreme Court and forced removal of Native Americans from East of the Mississippi which lead to the infamous Trail of Tears. In 1878, after the bitterness of the Civil War and the quartering of Union troops in the South, Congress passed the Posse Comitatus Act. However, Presidents continued to use the military and the National Guard to enforce their will on the citizens of the Unites States.

One of the worst examples of the use of the military was in the summer of 1932 against 43,000 fellow military veterans, their families and affiliated groups who had assembled in Washington D.C. in what became known as the famous Bonus March. Skipping the merits of the Bonus Army and moving to the conclusion, we find President Herbert Hoover using the military led by General Douglas MacArthur to suppress and disburse fellow veterans. By the time the events ended, hundreds of veterans were injured and several were killed. In this situation, "The Posse Comitatus Act — forbidding civilian police work by the U.S. military — did not legally because Washington, D.C. is a federal district directly governed by the U.S. Congress (U.S. Constitution, Article I. Section 8. Clause 17)."

In 2005, we saw National Guard assist in the aftermath of Katrina in Louisiana and Mississippi. However, the National Guard and the New Orleans police overstepped their legal authority, per the U.S. District Court, and illegally confiscated the personal firearms of vulnerable civilians after the hurricane's devastation left property and lives subject to looters and other criminals. Have we and our leaders accepted that Constitutional Rights granted by the US constitution are sacrosanct?

Apparently not! Currently, individual rights may be more at risk as we address the potential of terrorist threats against the United States. The effects of the infamous terrorists attacks on 9-11 continue to ripple through our country. For example, in 2006, the John Warner National Defense Authorization Act for Fiscal Year 2007 passed and was signed into law. The Act included a section titled "Use of the Armed Forces in major public emergencies." This section provided that "The President may employ the armed forces to restore public order in any State of the United States the President determines...." However, in 2008, Congress while passing the 2008 National Defense Authorization Act, restored the restrictions of Posse Comitatus. President George Bush signed the Act into law but he also attached an Executive Order identifying that the Executive Branch does not feel bound by the changes enacted by the repeal of the use of armed forces to restore public order in the United States. As previously presidents have done, Bush signaled that he does do not feel bound by Posse Comitatus.

We are now brought full circle to the announcement of the assignment of an Army brigade as well as other service units to enforce the will of the President and or the Department of Defense with regard to homeland security. Even if military units are not used for several years to respond to domestic threats and are not used in any way for several years to restrict the rights of Americans, the result will still be the continued implied transference of authority as troops continue to be assigned to a domestic charter and the leaders of these units develop a comprehensive doctrine designed to cope with domestic situations. Historically, the year 2008 may become identified as the year that the doctrine of Posse Comitatus ceased to have authority.
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William (Bill) Smith, Ph.D. is editor of the ARRA News Service and National Political Director of Let's Get This Right. He is a conservative political activists working for limited government, traditional family values, individual freedom and responsibility. He is a retired Air Force officer who served as Director of the $2 billion European F-16 co-production program. In his career, he also taught military political science and spent a 3 year tour with the U.S. Army. After retiring, he was a graduate professor and held varied administrative and faculty positions. He has authored professional journal articles on varied topics. He also blogs as Ozark Guru.

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