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The FReeper Foxhole Presents the Saturday Symposium - The Posse Comitatus Act - Sept. 3rd, 2005
see educational sources | suggested topic by USCBOMBGUY

Posted on 09/03/2005 7:42:08 AM PDT by snippy_about_it


Keep our Troops forever in Your care

Give them victory over the enemy...

Grant them a safe and swift return...

Bless those who mourn the lost.

FReepers from the Foxhole join in prayer
for all those serving their country at this time.

...................................................................................... ...........................................

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The Posse Comitatus Act, should it be changed?

Some view points:

The misinterpreted posse comitatus act still endangers national security.

Michael Gaynor
August 27, 2005

The Posse Comitatus Act (Section 1385 of Title 18 of the United States Code) states: "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 Act is an intimidating, irritating and insidious anachonism that has endangered America's security instead of enhancing it, even though no one ever was prosecuted under it.

Like the "wall" between intelligence and law enforcement that finally came down AFTER the Twin Towers were destroyed and The Patriot Act became law, because very persuasive liberals apparently had feared America's government and military more than America's enemies, foreign and domestic, and their egregious error had become obvious, its effect extended beyond its express terms.

And, like the Establishment Clause of the First Amendment, with the passage of time, the Act's actual purpose was disregarded and the scope of its restriction was undesirably expanded by misinterpretation.

The Act was NOT intended to prevent military personnel from enforcing the law but instead was passed to allow them to do so only when directed to do so by the President or Congress.

The official history of the use of the military services to enforce the laws states:

"Some of those who opposed [the Posse Comitatus Act] in the Congress charged that [it] was taking away from the president entirely the power to use troops to repress internal disorders except on request of a state governor or legislature, that President Washington could not even had dealt with the Whiskey Rebellion under its terms. This interpretation of the Posse Comitatus Act has often been raised by those protesting against federal troops intervention in the many instances it has occurred since 1878. And indeed the question of what the real meaning of the Posse Comitatus Act was has been the subject of some dispute ever since its passage ... however ... all that it really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general...that had never been tested in the courts. The president's power to use both regular and military remained undisturbed by the Posse Comitatus Act, and by the law of 1861 and the Ku Klux Klan Act that had in fact been substantially strengthened during the Civil War and Reconstruction Era. But the posse Comitatus Act did mean that troops could not be used on any authority than that of the President and that he must issue a cease and desist proclamation before he did so. Commanders in the field would no longer have any discretion but must wait for orders from Washington."

Colonel John R. Brinkerhoff, US Army Retired and acting associate director for national preparedness of the Federal Emergency Management Agency (FEMA) from 1981 to 1983, in "The Posse Comitatus Act and Homeland Security (February 2002), not only thoroughly reviewed the Act's history, but specified how its impact was expanded far beyond the terms of the Act, as follows:

"The Posse Comitatus Act

Applies only to the Army, and by extension the Air Force, which was formed out of the Army in 1947.

Does not apply to the Navy and Marine Corps. However, the Department of Defense has consistently held that the Navy and Marine Corps should behave as if the act applied to them.

Does not apply to the Coast Guard, which is part of the Department of Transportation and is both an armed force and a law enforcement agency with police powers.

Does not apply to the National Guard in its role as state troops on state active duty under the command of the respective governors.

May not apply to the National Guard (qua militia) even when it is called to federal active duty. The Posse Comitatus Act contains no restrictions on the use of the federalized militia as it did on the regular Army. It is commonly believed, however, that National Guard units and personnel come under the Posse Comitatus Act when they are on federal active duty, and this interpretation is followed today.

Does not apply to state guards or State Defense Forces under the command of the respective governors.

Does not apply to military personnel assigned to military police, shore police, or security police duties. The military police have jurisdiction over military members subject to the Uniform Code of Military Justice. They also exercise police powers over military dependents and others on military installations. The history of the law makes it clear that it was not intended to prevent federal police (for example, marshals) from enforcing the law.

Does not apply to civilian employees, including those who are sworn law enforcement officers. The origin and legislative history of the act make it clear that it applies only to military personnel. In those days, there were no civilian employees of the Army in the sense that there are today. In particular, no one envisioned that the Army would hire civilian police officers to enforce the laws at its facilities.

Does not prevent the President from using federal troops in riots or civil disorders. Federal troops were used for domestic operations more than 200 times in the two centuries from 1795 to 1995. Most of these operations were to enforce the law, and many of them were to enforce state law rather than federal law. Nor does it prevent the military services from supporting local or federal law enforcement officials as long as the troops are not used to arrest citizens or investigate crimes."

On May 27, 1878, Representative J. Proctor Knott of Kentucky introduced an amendment to the Army appropriations bill that eventually became the Posse Comitatus Act.

In passing it, Congress voted to restrict the ability of United States marshals and local sheriffs to conscript military personnel into their posses. Not to prevent the use of military personnel to enforce the law if authorized by the President or Congress.

The history of the posse comitatus doctrine in America is ironic. The doctrine was invoked first to enforce the Fugitive Slave Act and then to protect emancipated slaves from the Ku Klux Klan, with soldier and sailors utilized for each purpose. Then their use was restricted by the Act, because the Southerners did not want soldiers and sailors as part of a posse comitatus and the War Department (now known as the Defense Department) did not want soldiers and sailors taking orders from United States marshalls or local sheriffs, at least without the approval of the President of the United States (also known as the Commander-in-Chief).

When parsed, the Act seems foolish as well as foreboding: "Whoever...willfully uses any part of the Army or the Air Force... to execute the laws shall be fined under this title or imprisoned not more than two years, or both."

And why should the law discriminate between the use of the Army and the Air Force, on one hand, and use of the Navy, the Marines and the Coast Guard, on the other?

And that crucial word "willfully" cries out for clarification.

Does it mean just mean deliberately or intentionally?

Or does it mean deliberately or intentionally AND with a criminal intent (a bad purpose)?

Congress should repeal the Act and then set forth in the clearest possible terms any restriction on what America's military forces may do for homeland security purposes and other domestic law enforcement purposes.

Congress has enacted some other laws that specify when the Posse Comitatus Act does not apply — for example, Title 18 U.S. Code, Section 831, provides that if nuclear material is involved in an emergency, the Secretary of Defense may provide assistance to the Department of Justice, notwithstanding the Posse Comitatus Act — but a comprehensive approach is needed.

Times have changed drastically since the Act became law on June 18, 1878, following Reconstruction, as the nuclear material emergency statutory exception illustrates.

The Act was passed because the Army resented having its soldiers used as police officers (a posse) by local law enforcement officials in the post-Reconstruction South.

And to supersede a United States Attorney General opinion issued in 1854.

Not to prevent the federal government from using military personnel to enforce the law.

The posse comitatus doctrine is derived from English common law.

Posse comitatus meant the "force of the county"; that is, males over the age of 15 whom the sheriff was permitted to summon or raise to repress a riot or for other purposes.

In 1854, Attorney General Caleb Cushing opined that marshals could summon a posse comitatus and that both militia and regulars in organized bodies could be members of such a posse.

He thereby facilitated the enforcement of the Fugitive Slave Act of 1850.

Under the Attorney General opinion, although the armed forces might be organized as military bodies under the command of their officers, they could still be pressed into service by United States marshals or local sheriffs as a posse comitatus without the assent of the president.

It was convenient, and often essential, for local officials throughout America to use soldiers and sailors as police. At the time, the Army was the only armed force available in the West to assist local officials to enforce the law.

During Reconstruction, the Army governed all eleven former Confederate States. It exercised police and judicial functions, oversaw local government, and dealt with domestic violence. Before the Civil War, state militia had dealt with local disorders throughout the United States. During Reconstruction, however, there was no effective militia in the former Confederate States, so the Army by default assumed the responsibility for maintaining order and protecting the emancipated slaves.

The Civil Rights Act of 1866 approved this use of the Army and empowered United States marshals to use soldiers and sailors as posse comitatus.

By 1869, eight of the eleven former Confederate States had been readmitted to the Union and in them there was a need to obtain assistance from the Army to enforce the law. Attorney General William M. Evarts invoked the posse comitatus doctrine that gave United States marshals and county sheriffs the right to command all necessary assistance from within their districts, including military personnel and civilians, to serve on a posse comitatus to execute legal process, without presidential approval. The War Department objected. It wanted the troops obeying the orders of officers, not marshalls or sheriffs.

In 1871, President (and former General) Grant sought to provide a basis for the use of troops other than posse comitatus. In accordance with his policy, the War Department issued general orders saying that the forces of the United States may be committed and shall be employed to assist the civil authorities in making arrests of persons accused of crime, preventing the rescue of arrested persons, and dispersing marauders and armed organizations.

The 1876 Presidential election was like the 2000 Presidential election. The Democrat won the popular vote, and the Republican won a majority in the Electoral College.

The Democrat, Samuel J. Tilden, disputed the election of the Republican, Rutherford B. Hayes, and eventually conceded in return for an end to Reconstruction. Reconstruction ended in 1877 with the Hayes inauguration. Federal troops in the South were no longer used to enforce the law, and the Southerners resumed control of their states.

Attorney General Charles Devens opined that the United States Judiciary Act of 1789 authorized United States marshals to raise a posse comitatus comprising every person in a district above 15 years of age, "including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a Sheriff or Marshal."

Congress was displeased with United States marshals and sheriffs using Army troops without presidential approval and thereby passed the Act.

If the death penalty had the deterrent effect that that the Act and "the wall" have had, murder would be exceedingly rare.

In February 2002, Colonel Brinkerhoff wrote:

"President Bush and Congress should initiate action to enact a new law that would set forth in clear terms a statement of the rules for using military forces for homeland security and for enforcing the laws of the United States. Things have changed a lot since 1878, and the Posse Comitatus Act is not only irrelevant but also downright dangerous to the proper and effective use of military forces for domestic duties."

The Colonel was absolutely right.

Thing still need to be changed.

The Posse Comitatus Act: Can We Maintain American Freedom Without It?

By C. T. Rossi
July 29, 2002

It seems an odd first step. Why would the head of Homeland Security, Tom Ridge, recommend a repeal of the Posse Comitatus Act as a first measure towards fighting terrorism?

The Posse Comitatus Act was approved by Congress on June 18, 1878. The measure was in response to the disputed election of 1876 where Rutherford B. Hayes went to bed the loser, but eventually found his way into the Oval Office. The troops who President Grant had stationed at polling places may have had an undue influence over the ballot boxes and stolen a victory for Hayes. Whether the election was actually fraudulent or not, Congress thought it wise to avoid the appearance of impropriety by seeing to it that federal troops would never again be stationed next to the polls - hence the advent of the Posse Comitatus Act.

What the act essentially did was render the use of federal troops for civilian law enforcement illegal. In a sense, the Posse Comitatus Act was a revolt against the federal centralization which had been conducted under the Lincoln and Grant administrations. States and local communities had the right to police themselves; they weren't to be subjected to federal intimidation (remember, this was before the IRS).

Not eager to deny himself the power to intimidate that had been enjoyed by his recent predecessors, Hayes vetoed the act citing the "right of the United States government to use force . . . to protect these elections from violence and fraud." One can easily determine from this that Hayes adhered to a theory of rights that would be quite at home on the modern Supreme Court.

Congress overrode the veto.

The Posse Comitatus Act was not an absolutist measure; it does contain exceptions for the use of federal troops "in such cases and under such circumstance as such employment of said force may be authorized by the Constitution or by act of Congress." (This exception clause has been used several times; most recently when the Truman administration, in response to a rail workers' strike, nationalized the railroads under the control of the Army Corps of Engineers.) In short, Posse Comitatus provides a barrier against the pell-mell deployment of troops by the President against the American people. It may be one of the most common-sense-laden pieces of legislation ever to come out of Washington.

While Tom Ridge may seem overly eager to tamper with this safeguard, Sen. Joseph Biden's recent comments were even more concerning. In a recent interview, Biden recalled that he was ready to modify the Posse Comitatus after the Oklahoma City bombing. At that time, Biden and former senator, Sam Nunn, "introduced legislation that would moderately alter the posse comitatus." Biden's desire to alter the Act - after a single act of terrorism in Oklahoma City -seemed a radical step and his effort failed.

He now laments that under the current provisions "when you call in the military, the military would not be allowed to shoot to kill, if in fact [the military] were approaching the weapon [of mass destruction]." But Biden is assuring that alterations which Congress might make to the Posse Comitatus would not mean radical changes to civil liberties: ". . . we're not talking about general police power . . . [only the] idea that you could have your local National Guard, you know, with arrest power like your local policemen." But herein lies the rub.

What Biden didn't disclose is that the Posse Comitatus Act does not directly apply to National Guard units because they are under the control of the governors of their respective states - not under the control of the president. Under the type of hypothetical emergency scenarios that Ridge and Biden are fond of constructing, state governors could (and most assuredly would) deploy the National Guard in full cooperation with federal authorities - however, governors would also be free to recall their guardsmen should they feel that military actions were unduly impinging on the rights of state citizens.

While Ridge and Biden fabulize about Schwarzenegger-esque domestic shootouts between U.S. military forces and dirty-bomb-toting terrorists in an Amtrak tunnel, the truth is much more sobering. The federal government has yet to prove that it can properly interpret the intelligence that leads them to deploy the anti-terrorist commandos in the right place at the right time.

While a modification of Posse Comitatus makes Americans practically no safer, it would open the door to old abuses. Had the Biden initiative to repeal the Posse Comitatus Act passed in 1995, Bill Clinton would have been free to deploy troops to Florida to ensure the validity of the presidential election recount. Need anyone say more?

C.T. Rossi comments on contemporary politics and culture for the Free Congress Foundation.

sym·po·sium : a social gathering at which there is free interchange of ideas

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The Myth of Posse Comitatus Major Craig T. Trebilcock, U.S. Army Reserve
October 2000

Major Craig Trebilcock is a member of the Judge Advocate General’s Corps in the U.S. Army Reserve. He is assigned as an operational law attorney with the 153d Legal Support Organization in Norristown, PA. His area of specialization includes the laws applicable to U.S. forces engaged in operations in both the United States and abroad. Major Trebilcock is a graduate of the University of Michigan (A.B. with high honors, 1982) and the University of Michigan Law School (J.D., 1985). His military education includes the Judge Advocate General Basic Course (1988) and Advanced Course (1992), U.S. Army Command and General Staff College (1997), and the U.S. Navy War College International Relations Seminar (2000). Major Trebilcock is a civilian immigration attorney with the firm of Barley, Snyder, Senft, & Cohen in York, PA.

The Posse Comitatus Act has traditionally been viewed as a major barrier to the use of U.S. military forces in planning for homeland defense.[1] In fact, many in uniform believe that the act precludes the use of U.S. military assets in domestic security operations in any but the most extraordinary situations. 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 original 1878 Posse Comitatus Act was indeed passed with the intent of removing the Army from domestic law enforcement. Posse comitatus means “the power of the county,” reflecting the inherent power of the old West county sheriff to call upon a posse of able-bodied men to supplement law enforcement assets and thereby maintain the peace. Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of the Reconstruction era, and to ensure that any lingering sentiments of rebellion were crushed. However, in reaching those goals, the Army necessarily became involved in traditional police roles and in enforcing politically volatile Reconstruction-era policies. The stationing of federal troops at political events and polling places under the justification of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original national defense mission. The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its role of defending the borders of the United States.

Application of the Act

To understand the extent to which the act has relevance today, it is important to understand to whom the act applies and under what circumstances. The statutory language of the act does not apply to all U.S. military forces.[2] While the act applies to the Army, Air Force, Navy, and Marines, including their Reserve components, it does not apply to the Coast Guard or to the huge military manpower resources of the National Guard.[3] The National Guard, when it is operating in its state status pursuant to Title 32 of the U.S. Code, is not subject to the prohibitions on civilian law enforcement. (Federal military forces operate pursuant to Title 10 of the U.S. Code.) In fact, one of the express missions of the Guard is to preserve the laws of the state during times of emergency when regular law enforcement assets prove inadequate. It is only when federalized pursuant to an exercise of presidential authority that the Guard becomes subject to the limitations of the Posse Comitatus Act.

The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.”[4,5] Execution of the laws is perceived to be a civilian police function, which includes the arrest and detention of criminal suspects, search and seizure activities, restriction of civilian movement through the use of blockades or checkpoints, gathering evidence for use in court, and the use of undercover personnel in civilian drug enforcement activities.[6]

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.[7] Passive support has often taken the form of logistical support to civilian police agencies. Recognizing that the military possesses unique equipment and uniquely trained personnel, the courts have held that providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act. 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.[8]

The Posse Comitatus Act was passed in the 19th century, when the distinction between criminal law enforcement and defense of the national borders was clearer. Today, with the advent of technology that permits weapons of mass destruction—chemical, biological, or nuclear weapons—to be transported by a single person, the line between police functions and national security concerns has blurred. As a matter of policy, Western nations have labeled terrorists “criminals” to be prosecuted under domestic criminal laws. Consistent with this, the Department of Justice has been charged as the lead U.S. agency for combating terrorism. However, not all terrorist acts are planned and executed by non-state actors. Terrorism refers to illegal attacks on civilians and other nonmilitary targets by either state or non-state actors. This new type of threat requires a reassessment of traditional military roles and missions along with an examination of the relevance and benefits of the Posse Comitatus Act.

Erosion of the Act

While the act appears to prohibit active participation in law enforcement by the military, the reality in application has become quite different. The act is a statutory creation, not a constitutional prohibition. Accordingly, the act can and has been repeatedly circumvented by subsequent legislation. Since 1980, Congress and the president have significantly eroded the prohibitions of the act in order to meet a variety of law enforcement challenges.

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.” Recognizing the inability of civilian law enforcement agencies to interdict the smuggling of drugs into the United States by air and sea, 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.

The use of the military in opposing drug smuggling and illegal immigration was a significant step away from the act’s central tenet that there was no proper role for the military in the direct enforcement of the laws. The legislative history explains that this new policy is consistent with the Posse Comitatus Act, as the military involvement still amounted to an indirect and logistical support of civilian law enforcement and not direct enforcement.[9]

The weakness of the analysis of passive versus direct involvement in law enforcement was most graphically demonstrated in the tragic 1999 shooting of a shepherd by marines who had been assigned a mission to interdict smuggling and illegal immigration in the remote Southwest. An investigation revealed that for some inexplicable reason the 16-year-old shepherd fired his weapon in the direction of the marines. Return fire killed the boy. This tragedy demonstrates that when armed troops are placed in a position where they are being asked to counter potential criminal activity, it is a mere semantic exercise to argue that the military is being used in a passive support role. The fact that armed military troops were placed in a position with the mere possibility that they would have to use force to subdue civilian criminal activity reflects a significant policy shift by the executive branch away from the posse comitatus doctrine.

Congress has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes: 10 U.S.C., sections 331–334. These provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. In case of civil disturbance, the president must first give an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles “race riots” of the early 1990s.

Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Act’s underlying principle that the military is not a domestic police force auxiliary.

An infrequently cited constitutional power of the president provides an even broader basis for the president to use military forces in the context of homeland defense. This is the president’s inherent right and duty to preserve federal functions. In the past this has been recognized to authorize the president to preserve the freedom of navigable waterways and to put down armed insurrection. However, with the expansion of federal authority during this century into many areas formerly reserved to the states (transportation, commerce, education, civil rights) there is likewise an argument that the president’s power to preserve these “federal” functions has expanded as well. The use of federal troops in the South during the 1960s to preserve access to educational institutions for blacks was an exercise of this constitutional presidential authority.

In the past five years, the erosion of the Posse Comitatus Act has continued with the increasingly common use of military forces as security for essentially civilian events. During the 1996 Olympics in Atlanta, over ten thousand U.S. troops were deployed under the partial rationale that they were present to deter terrorism. The use of active-duty military forces in a traditional police security role did not raise any serious questions under the act, even though these troops would clearly have been in the middle of a massive law enforcement emergency had a large-scale terrorist incident occurred. The only questions of propriety arose when many of these troops were then employed as bus drivers or to maintain playing fields. This led to a momentary but passing expression of displeasure from Congress.[10]

Homeland Defense

The Posse Comitatus Act was passed in an era when the threat to national security came primarily from the standing armies and navies of foreign powers. Today the equation for national defense and security has changed significantly. With the fall of the Soviet Union our attention has been diverted—from the threat of aggression by massed armies crossing the plains of Europe to the security of our own soil against biological or chemical terrorism. Rather than focusing on massed Russian intercontinental ballistic missiles as our most imminent threat, we are increasingly more aware of the destructive potential of new forms of asymmetric warfare. For instance, the U.S. Office of Technology Assessment states that 100 kilograms of dry powdered anthrax released under ideal meteorological conditions could kill up to three million people in a city the size of Washington, DC.[11] The chemical warfare attacks carried out by Japanese terrorists in the subways of Tokyo during the 1990s heightened our sense of vulnerability. The Oklahoma City bombing and the unsuccessful attempt to topple the World Trade Center have our domestic security planners looking inward for threats against the soil of the United States from small but technologically advanced threats of highly motivated terrorists. What legal bar does the Posse Comitatus Act present today to using the military to prevent or respond to a biological or chemical attack on the soil of the United States? In view of the erosion of the Posse Comitatus Act in the past 20 years, the answer is “not much.”

The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues. The plethora of constitutional and statutory exceptions to the act provides the executive branch with a menu of options under which it can justify the use of military forces to combat domestic terrorism. Whether an act of terrorism is classified as a civil disturbance under 10 U.S.C., 331–334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the act’s erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.[12]


Is the Posse Comitatus Act totally without meaning today? No, it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter. Although no person 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.

But does the act present a major barrier at the National Command Authority level to use of military forces in the battle against terrorism? The numerous exceptions and policy shifts carried out over the past 20 years strongly indicate that it does not. Could anyone seriously suggest that it is appropriate to use the military to interdict drugs and illegal aliens but preclude the military from countering terrorist threats that employ weapons of mass destruction? For two decades the military has been increasingly used as an auxiliary to civilian law enforcement when the capabilities of the police have been exceeded. Under both the statutory and constitutional exceptions that have permitted the use of the military in law enforcement since 1980, the president has ample authority to employ the military in homeland defense against the threat of weapons of mass destruction in terrorist hands.

[1] “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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”—18 U.S.C. 1385.

[2] The act as originally passed referenced only limitations upon the Army. After World War II, it was amended to include the Air Force. By DoD Directive 5525.5, the limitations of the act have been administratively adopted to apply to the Navy and Marine Corps as well.

[3] The peacetime law enforcement mission of the Coast Guard has been well recognized since the founding of its parent agency, the Revenue Marine, in 1790.

[4] For the sake of brevity, the term military as employed in this article refers to the Army, Air Force, Navy, and Marines, their Reserve components, and the National Guard when in federalized status pursuant to Title 10. It does not include the Coast Guard or the National Guard operating in state-controlled Title 13 status.

[5] The Uniform Code of Military Justice is an exception to the Posse Comitatus Act. The code gives the military the inherent right to maintain good order and discipline over its personnel through law enforcement activity, prosecution, and punishment. As such, the code gives the military jurisdiction to enforce both military and civilian laws against its own military personnel.

[6] State v. Nelson, 298 NC 573, 260 SE 2d 629, cert den; 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980).

[7] Ibid.

[8] United States v. Red Feather, 392 F. Supp. 916 (DC SD 1975).

[9] Pursuant to this mission, the USS Kidd intercepted a drug-smuggling boat in 1983. When the smugglers refused to yield without force, the problem of passive versus active law enforcement was handled by lowering the Navy ensign on the ship and raising the Coast Guard ensign. The Coast Guard asset USS Kidd then fired on the smugglers’ ship, rendering it immobile and leading to its seizure, along with 900 bales of marijuana.

[10] “Business, Capitol Hill Question Military’s Role in Olympics,” Defense Week, 22 July 1996.

[11] U.S. Congress, Office of Technology Assessment, Proliferation of Weapons of Mass Destruction: Assessing the Risks (Washington, DC: Government Printing Office, 1993), OTA-ISC-559, p. 54.

[12] 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.

Come on in!

Good morning everyone. Enjoy your Saturday and a break from the Foxhole into the cabin. Come nightfall please feel free to join us around the campfire.

Thank you USCBOMBGUY for today's topic.

Educational Sources:

1 posted on 09/03/2005 7:42:11 AM PDT by snippy_about_it
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To: Colonial Warrior; texianyankee; vox_PL; Bigturbowski; ruoflaw; Bombardier; Steelerfan; ...

"FALL IN" to the FReeper Foxhole!

Good Saturday Morning Everyone.

If you want to be added to our ping list, let us know.

2 posted on 09/03/2005 7:43:26 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: snippy_about_it; SAMWolf; Professional Engineer; Wneighbor; alfa6; radu; PhilDragoo; All

Good morning everyone!!

Whew, been waiting for this ride all morning. LOL

3 posted on 09/03/2005 7:48:41 AM PDT by Soaring Feather (Two Years of Poetry.......)
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To: snippy_about_it; bentfeather; Samwise; Peanut Gallery; Wneighbor
Good morning ladies. Flag-o-Gram.

4 posted on 09/03/2005 7:57:21 AM PDT by Professional Engineer (As an Engineer, you too can learn to calculate the power of the Dark Side.)
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To: snippy_about_it; SAMWolf

Good morning to everyone at the Freeper Foxhole.

5 posted on 09/03/2005 7:59:49 AM PDT by E.G.C.
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To: snippy_about_it; SAMWolf; All

September 3, 2005

Words Of Light

John 8:12-20

I am the light of the world. —John 8:12

Bible In One Year: 2 Chronicles 10-13

cover Jesus, an itinerant rabbi from the town of Nazareth, asserted that He was the light of the world. That was an incredible claim from a man in first-century Galilee, an obscure region in the Roman Empire. It could not boast of any impressive culture and had no famous philosophers, noted authors, or gifted sculptors. And we have no record that Jesus had any formal education.

More than that, Jesus lived before the invention of the printing press, radio, television, and e-mail. How could He expect His ideas to be circulated around the globe? The words He spoke were committed to the memories of His followers. Then the Light of the world was snuffed out by the darkness—or so it seemed.

Centuries later we still listen with amazement to Jesus' words, which His Father has miraculously preserved. His words lead us out of darkness into the light of God's truth; they fulfill His promise, "He who follows Me shall not walk in darkness, but have the light of life" (John 8:12).

I encourage you to read the words of Jesus in the Gospels. Ponder them. Let them grip your mind and change your life. You'll exclaim as His contemporaries did: "No man ever spoke like this Man!" (John 7:46). —Vernon Grounds

Thy Word is a lamp to my feet,
A light to my path alway
To guide and to save me from sin
And to show me the heavenly way. —Sellers

Because Jesus is the Light of the world, we don't need to be in the dark about God.

Who Is This Man Who Says He's God?
Knowing God Through John

6 posted on 09/03/2005 8:16:11 AM PDT by The Mayor ( Pray as if everything depends on God; work as if everything depends on you.)
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To: snippy_about_it
GM, snippy!

free dixie,sw

7 posted on 09/03/2005 8:24:13 AM PDT by stand watie (being a damnyankee is no better than being a racist. it is a LEARNED prejudice against dixie.)
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Comment #8 Removed by Moderator

To: snippy_about_it
Saturday Morning Bump for the Foxhole

Yep I got y'alls back for tomorrow

Here's a Nose close up I stumbled upon this morning, anybody Know what it is, hmmmm?


alfa6 ;>}

9 posted on 09/03/2005 9:26:41 AM PDT by alfa6 (BLOAT)
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To: alfa6


10 posted on 09/03/2005 10:03:57 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: bentfeather

LOL. Looks like fun!

11 posted on 09/03/2005 10:04:20 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: Professional Engineer

Thanks PE.

12 posted on 09/03/2005 10:05:01 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: E.G.C.


13 posted on 09/03/2005 10:05:33 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: The Mayor

Good morning Mayor.

14 posted on 09/03/2005 10:06:07 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: stand watie

Good morning!!!

15 posted on 09/03/2005 10:06:21 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: vox_PL

I thought the flag was PE's flag-o-gram. Good morning vox_PL, thanks for the thoughts.

16 posted on 09/03/2005 10:07:22 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: snippy_about_it

Nope, exhaust stacks are wrong for one thing.


alfa6 ;>}

17 posted on 09/03/2005 10:39:58 AM PDT by alfa6 (BLOAT)
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To: alfa6

Looks like a P-39 Airacobra to me.

18 posted on 09/03/2005 11:21:26 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: alfa6

Except that the P-39 had the engine mounted after the cockpit. Hmmmmm.

19 posted on 09/03/2005 11:24:49 AM PDT by snippy_about_it (Fall in --> The FReeper Foxhole. America's History. America's Soul.)
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To: snippy_about_it; SAMWolf; All
Here is a pic of a P-400, the export version of the P-39

N.B. the location of the exhaust stacks and the lack of a radiator scoop on the P-400


alfa6 ;>}

20 posted on 09/03/2005 11:33:55 AM PDT by alfa6 (BLOAT)
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