Tuesday
Feb252014

Posse Comitatus ... for real.

This isn’t in response to anything particular in the news, but rather to the fact that three different people presenting at a conference I was at recently all mis-quoted or misunderstood Posse Comitatus, and I can’t handle it anymore.

 

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

 

The Posse Comitatus Act does not mean that the armed forces cannot be used for domestic law enforcement. The Constitution names the president as chief executive and gives him authority to execute and enforce the laws, and if the president wants to use federal troops (or the National Guard when under federal aegis) to enforce laws, he can. What the Act means is that state and local officials cannot press locally-based federal troops into service as a posse. So, for example, the governor of Louisiana could not show up at Fort Polk in the aftermath of Hurricane Katrina and order those Army personnel to help stop looting.

 

Many Americans believe this act has its origins in the Revolutionary fear of a standing army; nothing could be further from the truth. In fact, the use of all available able-bodied men for a posse was part of the common law tradition the Founders inherited from the British, and no one drafting the Constitution or the Bill of Rights felt the need to prohibit the practice. In fact, Hamilton specifically refers to the practice – apparently with approval – in Federalist Papers 8 and 29.

 

The act is not an embodiment of some primal American hatred of a standing army or internal use of the military. Its origins lie in the politics of the Reconstruction period.

 

It was originally introduced by a white Southern Democrat as a rider to a badly-needed Army appropriations bill. Southern Democrats under lenient presidential Reconstruction had re-taken control of the Southern state governments, and had immediately acted to return black residents to a state virtually indistinguishable from slavery. The Republican-controlled Congress responded by creating their own, “radical” version of Reconstruction, which dissolved many of these Southern state governments, installed Republican governments in their places, and attempted to enforce black rights. This created extreme resentment among Southern Democrats, and that resentment was aimed particularly at the use of federal troops by Republican governors to protect Republican voters – particularly African-Americans – from violence and intimidation. Without this protection, the Republican state governments would not survive, and the Democrats would regain control and the ability to repress, intimidate, torture, and terrorize the black population. In short, the act was designed to stop local army commanders from cooperating with state and local marshals to enforce black voting rights and other civil rights.

 

Only the most ardent supporters of the bill believed that it could or would limit the president’s use of the armed forces for law enforcement purposes. It does not. It never has. If the president thinks a situation cannot be handled by the local, state, and/or federal law enforcement agencies, he can use the Army. If the state governor thinks his or her law enforcement agencies can’t handle a situation, he or she can request federal help from the president. The main reason everyone thinks this isn't allowed is because the Department of Defense really doesn't WANT to engage in these types of activity, so they resist it and perpetuate the myth that it's strictly not allowed. They are aided in this by the fact that the Foreign Assistance Act DOES put blanket restrictions on working with foreign law enforcement agencies, with exceptions for specific U.S. agencies and specific conditions. 

 

I repeat: there is NO BAN ON USING THE MILITARY FOR LAW ENFORCEMENT, and furthermore, the Posse Comitatus act is not the principled expression of American freedom from tyranny, but the political triumph of a bitter and vicious class of people who had just lost a war and wanted to keep oppressing other people. It does not have constitutional status; it’s a statute and Congress could change it tomorrow (if Congress ever did anything that efficiently), and - speaking purely legally - all it means is that the Mayor of Podunk cannot call on the local Army commander to help him enforce the laws of Podunk. Politically it may be another issue.

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