Posse Comitatus Act

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The Posse Comitatus Act is the United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) that was passed on June 18, 1878, after the end of Reconstruction. Its intent (in concert with the Insurrection Act of 1807) was to limit the powers of local governments and law enforcement agencies in using federal military personnel to enforce the laws of the land. Contrary to popular belief, the Act does not prohibit members of the Army from exercising state law enforcement, police, or peace officer powers that maintain "law and order"; it simply requires that any authority to do so must exist with the United States Constitution or Act of Congress.[citation needed] In this way, most use of the Army and the Air Force at the direction of the President does not offend the statute, even though it may be problematic for political reasons.

The statute only addresses the US Army and, since 1956, the US Air Force. It does not refer to, and thus does not restrict or apply to, the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor (in its federal capacity, the National Guard forms part of the Army or Air Force of the United States). The Navy and Marine Corps are prohibited by a Department of Defense directive (self-regulation), but not by the Act itself.[1][2] Although it is a military force,[3] the U.S. Coast Guard, which now operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.

Contents

History

The Act, § 15 of the appropriations bill for the Army for 1879, found at 20 Stat. 152, was a response to, and subsequent prohibition of, the military occupation by U.S. Army troops of the former Confederate States during the ten years of Reconstruction (1867–1877) following the American Civil War (1861–1865). The U.S. withdrew federal troops from Southern states as a result of a compromise in one of the most disputed national elections in American history, the 1876 U.S. presidential election. Samuel J. Tilden of New York, the Democratic candidate, defeated Republican candidate Rutherford B. Hayes of Ohio in the popular vote. Tilden garnered 184 electoral votes to Hayes' 165; 20 disputed electoral votes remained uncounted. After a bitter fight, Congress struck a deal resolving the dispute and awarding the presidency to Hayes.

In return for Southern acquiescence regarding Hayes, Republicans agreed to support the withdrawal of federal troops from the former Confederate states, ending Reconstruction. Known as the Compromise of 1877, this deal of political expediency removed federal protection for Southern ex-slaves.[4] The U.S. Constitution places primary responsibility for the holding of elections in the hands of the individual states. The maintenance of peace, conduct of orderly elections, and prosecution of unlawful actions are all state responsibilities, pursuant of any state's role of exercising police power and maintaining law and order, whether part of a wider federation or a unitary state.

During the local, state, and federal elections of 1874 and 1876 in the former Confederate states, all levels of government chose not to exercise their police powers to maintain law and order.[citation needed] Many acts of violence, and a suppression of the vote of some political and racial groups, resulted in the election of state legislators and U.S. congressmen who halted and reversed political reform in the American South.[4]

When the U.S. Representatives and Senators from the former Confederate states reached Washington, they set as a priority the creation of a statute prohibiting any future President or Congress from directing, by military order or federal legislation, the imposition of federal troops in any U.S. state.

An exception to Posse Comitatus Act derived from the Force Acts allowed President Eisenhower to send federal troops into Little Rock, Arkansas, during the 1958 school desegregation crisis. The Force Acts, among other powers, allow the President to call up military forces when state authorities are either unable or unwilling to suppress violence that is in opposition to the constitutional rights of the people.[5]

The original Posse Comitatus Act referred essentially to the United States Army. The Air Force was added in 1956 and the Navy and the Marine Corps have been included by a regulation of the Department of Defense. The United States Coast Guard is not included in the Act. (The U.S. Coast Guard was originally part of the Treasury Department, was later part of the Department of Transportation, and is now within the Department of Homeland Security.) This law is often relied upon to prevent the Department of Defense from interfering in domestic law enforcement.[6]

Legislation

The original provision was enacted as Section 15 of chapter 263, of the Acts of the 2nd session of the 45th Congress.

Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment[7]

The text of the relevant legislation is as follows:

18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus
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.

Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):

10 U.S.C. § 375. Restriction on direct participation by military personnel
The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

Recent legislative events

In 2006, the Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill (repealed as of 2008).

On September 26, 2006, President Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition.

These changes were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006.[8]

Section 1076 is titled "Use of the Armed Forces in major public emergencies." It provided that:

The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.[9]

In 2008, these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act[10] that in its original form was written to limit Presidential power as much as possible in the event of insurrection, rebellion, or lawlessness.

In 2012, U.S. President Barack Obama signed the 2012 Defense Authorization Act into law. Section 1031, clause "b", article 2 defines a 'covered person', i.e., someone possibly subject to martial law, as the following: "A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." [11]

Exclusions and limitations

There are a number of situations in which the Act does not apply. These include:

Exclusion applicable to U.S. Coast Guard

See the Law Enforcement Detachments and Missions of the United States Coast Guard for more information on U.S. Coast Guard law enforcement activities

Although it is a military force,[3] the U.S. Coast Guard, which operates under the Department of Homeland Security, is not restricted by the Posse Comitatus Act. The Coast Guard enforces U.S. laws, even when operating as a service for the U.S. Navy.

In December 1981, additional laws were enacted clarifying permissible military assistance to civilian law enforcement agencies and the Coast Guard, especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (e.g., use of facilities, vessels, and aircraft, as well as intelligence support, technological aid, and surveillance) while generally prohibiting direct participation of Department of Defense personnel in law enforcement (e.g., search, seizure, and arrests). For example, a U.S. Navy vessel may be used to track, follow, and stop a vessel suspected of drug smuggling, but Coast Guard Law Enforcement Detachments (LEDETs) embarked aboard the Navy vessel would perform the actual boarding and, if needed, arrest the suspect vessel's crew.[12]

Federal military forces have a long history of domestic roles, including the occupation of sovereign Southern states during Reconstruction. The Posse Comitatus 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.[4]

On December 10, 2008, the California Highway Patrol announced its officers, along with San Bernardino County Sheriff's Department deputies and US Marine Corps Military Police, would jointly staff some sobriety and drivers license checkpoints.[13] However, the Marines at the checkpoints did not arrest individuals or enforce any state or county laws, which would be a violation of the Posse Comitatus Act.[14] 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 the checkpoints learned techniques to conduct sobriety checkpoints and field sobriety tests.[14]

On March 10, 2009, active duty U.S. Army Military Police troops from Fort Rucker were deployed to Samson, Alabama in response to a murder spree. Samson officials confirmed that the soldiers assisted in traffic control and securing the crime scene. The governor of Alabama did not request military assistance nor did President Obama authorize their deployment. Subsequent investigation found that the Posse Comitatus Act was violated and several military members received "administrative actions."[15][16]

Drone training

Unarmed USAF drone aircraft routinely track American civilian auto traffic as training exercises to prepare for later missions.[17]

See also

References

  1. ^ http://www.history.navy.mil/library/online/posse%20comit.htm
  2. ^ http://www.fas.org/irp/doddir/dod/d5525_5.pdf
  3. ^ a b About the United States Coast Guard
  4. ^ a b c The Posse Comitatus Act: Setting the record straight on 124 years of mischief and misunderstanding before any more damage is done, Military Law Review, Vol. 175, 2003.
  5. ^ Lieberman, Jethro (1999). A practical companion to the Constitution: how the Supreme Court has ruled on issues from abortion to zoning. University of California Press. ISBN 0-520-21280-0. 
  6. ^ http://www.nytimes.com/2009/07/25/us/25detain.html?scp=3&sq=Posse%20Comitatus%20Act%20of%201878&st=cse Mazzetti, Mark and Johnston, David. Bush Weighed Using Military in Arrests. New York Times, July 24, 2009.
  7. ^ Text at Wikisource
  8. ^ John Warner National Defense Authorization Act for Fiscal Year 2007
  9. ^ H.R. 5122, pp. 322–323
  10. ^ "H.R. 4986: National Defense Authorization Act for Fiscal Year 2008". GovTrack.us. 2008. http://www.govtrack.us/congress/bill.xpd?bill=h110-4986. Retrieved January 24, 2008. 
  11. ^ [1]
  12. ^ http://www.uscg.mil/History/articles/LEDET_History.asp Coast Guard Law Enforcement Detachments (LEDETs): A History
  13. ^ CHP to Conduct Sobriety/Driver License Checkpoint, CHP News Release, December 10, 2008;
  14. ^ a b Joint CHP-Marine Corps Checkpoint Raises Suspicions, KESQ News Channel 3, December 16, 2008.
  15. ^ Army reviews shows troop use in Samson killing spree violated federal law>, Birmingham News
  16. ^ Revolutionizing Northern Command, Lt. Col. Gary L. McGinniss, U.S. Army
  17. ^ Clemons, Steve. "Air Force Drones Trail Civilian Auto Traffic in New Mexico." The Atlantic, 6 July 2012.

Bibliography

Hendell, Garri B. "[3]" "Domestic Use of the Armed Forces to Maintain Law and Order – posse comitatus Pitfalls at the Inauguration of the 44th President" Publius (2011) 41(2): 336–348 first published online May 6, 2010 doi:10.1093/publius/pjq014

Lindorff, David. "Could It Happen Here?". Mother Jones magazine, April 1988.

External links