No Posse Can Stop Them

The Bush administration tells us they might change the 1878 Posse Comitatus Act (PCA), which forbids the military from engaging in domestic law enforcement. They don't want their hands tied if they have to defend the country against a terrorist attack, they explain, and the PCA might get in their way. This is part of their ongoing policy of "putting everything on the table" that might conceivably help eradicate terrorism. In the hunt for the world's evil-doers, they don't want to come up short on power.

It's almost touching the way PCA is being discussed in the media, as if we were actually a country under the rule of law. Thus, we hear Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, say, "I don't fear looking at [PCA] to see whether . . . our military can be more helpful." [1] Another defender of the Constitution, Sen. Joseph Biden, D-Del., tells us: "I think it is time to revisit it. . . . Let's say you had word that there was something going on in one of the tunnels in Amtrak . . . Right now, when you call in the military, the military would not be allowed to shoot to kill . . . ." [2]

Shooting to kill something going on in an Amtrak tunnel . . . or maybe a shopping mall . . . or your living room. I'm sure if Biden had flopped as an American politician he would make the cut in any number of banana republics.

Freedom-loving people have always been distrustful of the military, and our colonists were no exception. The troops that King George III garrisoned here in 1763 after he kicked the French out were a major grievance with Americans, and not just because they were taxed to pay for them. The signers of the Declaration of Independence specifically attacked military independence from civilian control, a standing army in time of peace, and the quartering of troops in private homes. The Washington University Law Quarterly in 1997 notes that fear "of a standing army helped to motivate the enactment of the Bill of Rights . . . ." [3]

But the lessons learned slipped from memory. Under the Fugitive Slave Act of 1850, federal marshals were empowered to use the military to help return a slave to his owner. The marshals went beyond the letter of the law, frequently calling out the army to control hostilities between pro-and anti-slave forces.

During Reconstruction, the military became the enforcers of the North's political agenda for the South, a situation that fomented massive injustice, corruption, and crime, and led to the formation of the Ku Klux Klan. The election of 1876, in which Republican Rutherford B. Hayes defeated Samuel J. Tilden by a single electoral vote, turned on Grant's imposition of the military. Hayes won the disputed votes of South Carolina, Louisiana, and Florida after Grant had sent troops to those states for use at the polls, if needed. "This misuse of the military in an election--the most central event to a democracy (sic)--led Congress to enact the PCA in 1878," the Law Quarterly notes. [4]

Several points leap out from the current PCA talk, besides the monotonous lie about the government acting in our self-interest. First, in discussing the merits of changing the PCA, government is trying to give the impression they operate under written law. Second, making this discussion public means it is not a critical issue to them.

The federal government is no longer restrained by law. It can circumvent any legal barrier. The only force keeping officials in line is fear of losing office. Washington has instituted corruption, plunder, waste, and war on the American people--while claiming to be our public servants. It is no longer a joke to say politicians are crooks. With all the power they wield, they're a threat to human life.

Sure, we've got our Bill of Rights, much like an infant has its pacifier. And just as a pacifier lacks any reality behind it, so too are the first Ten Amendments losing their meaning. Politicians tell us the times call for a re-evaluation of our cherished sovereignties. They assure us we need the Patriot Act, TIPS, national ID cards, unarmed pilots, disarmed citizens, a massive new federal bureaucracy, and federalized screeners frisking grandmothers to root out the terrorists among us. And now, possibly, a revamping of PCA, just in case grandma is caught smuggling her atomic bomb and has to be neutralized.

The central government of the United States dominates every other political body. If it violates the Constitution, who's going to punish it? Not the states. As checks on the power of federal encroachment, states rights died at Appomattox. Certainly not the vast majority of American voters. If polls are at all accurate, Americans believe our government needs to be even bigger.

The PCA discussion is a sham, a sideshow intended to deceive the public into believing we have statesmen in office who respect the rule of law. Whether PCA gets changed is immaterial. The commander-in-chief has the unconstitutional but uncontested power to issue executive orders, which makes him a one-man legislative body. All he needs is the right crisis, and the PCA or any other law can mean whatever he dictates.

Since 1935 presidents, at their discretion, have published executive orders in the Federal Register. Some decisions never reach the Register and are implemented informally as orders to subordinates, or "memoranda," thereby staying hidden from public view. [5] What is known for sure is that a president exercising this power is ruling by fiat, not law.

Our government has assured us we will be hit a second time. For once they're right--we've already taken a second hit. Bin Laden doesn't have to dive bomb our nuclear plants or poison our water. He's done something infinitely more effective: he's sicced our government on us. The Feds will finish the job he started, while most of the country cheers them on.

As I've written elsewhere:

There is a question that must be answered before we can implement a coherent policy regarding the protection of US borders. And that question is, “Is illegally entering the United States an act of war, or is it a crime?”

If illegally entering the United States is an act of war, then by all means let’s use the military to patrol our borders to stop those that would attempt to surreptitiously enter the United States. But be forewarned, the soldier is trained to violence, not psychology or restraint when dealing with a hostile person or situation. We must also keep in mind the soldier is skilled in the art of war, not civil rights. Therefore the soldier will be well versed in the rules of engagement but not Miranda. Finally, we must fully accept the fact that people will be killed, because on the field of battle the soldier performs the role of judge, jury and executioner. There are no appeals.

If, however, the answer to the aforementioned question is that illegally entering the United States is a crime, then we must deal with that circumstance accordingly. First, we must recognize the soldier is not the person we should use to enforce laws. Indeed, the world of law enforcement is full of legal traps that even the most experienced and professional law enforcement officer gets caught out on occasion, let alone an 18-yr old soldier. Second, we must stop pandering to special interests and roll-back overly restrictive policies that hamstring our Border Patrol agents. Third, we must grant the average city patrolman the authority to detain persons that are in this country illegally, regardless if they committed any other crime. Fourth, we must arm our Border Patrol agents with sufficient firepower so that they can easily deter illegals (or the Mexican military). Finally, we must increase the number of Border Patrol agents actually doing fieldwork. If that means we shake loose from headquarters a few paunchy bureaucrats to ride shotgun, so be it. At least they will be reminded that the mission of the Border Patrol is to protect the United States, not sit and administer.

Basically, until our national leadership makes policy determination on illegals entering the United States (act of war or illegal act), and implements changes that will implement policy to attack the problem, we will continue to be ineffective in stopping the flow of illegals. Time is short. It is time for action.

For clarification purposes...

The PCA is commonly and falsely believed to forbid the U.S. military from enforcing domestic law in all circumstances. In fact, it forbids it only in some circumstances.
The primary sentence of the Posse Comitatus Act, as amended since 1878, now says, "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." "Posse comitatus" means "the power or force of the county," according to Black’s Law Dictionary (1990), and refers to any group empowered to enforce domestic law.
Contrary to popular belief, the PCA does not presently forbid all U.S. military units from enforcing domestic laws. The plain language of the law does not cover the Navy, Marine Corps or National Guard. "The PCA expressly applies only to the Army and Air Force," wrote Matthew Carlton Hammond in an article in the Washington University Law Quarterly (Summer 1997). "Congress did not mention the Navy, Marine Corps, Coast Guard, or National Guard in the PCA; accordingly, the PCA does not limit them. However, the Department of Defense has extended by regulation the PCA’s prohibitions to the Navy and Marine Corps."
The phrase "under circumstances expressly authorized by the Constitution or Act of Congress" and the ambiguity of "to execute the laws" have been interpreted to allow numerous uses of the military to enforce domestic law since the PCA was enacted. Traditionally, a "constitutional" exception to the PCA has been interpreted broadly, said Hammond. "The exception permits military action to protect federal property and functions, to prevent loss of life, and to restore public order when local authorities cannot control a situation," he wrote. Congress already has explicitly carved out exceptions to the PCA for drug interdiction and for responses to biological and chemical incidents.
Source

As for their claims that the "administration" is seeking the power...the stories I have seen is that they are reviewing the act based on a proposal to change the act submitted by Sen. Joseph R. Biden Jr., a Delaware Democrat:

Tom Ridge, director of the Office of Homeland Security, said in several appearances on political talk shows yesterday that the Biden proposal should be considered but that he thinks it's "very unlikely" such a change will be made.
The Biden proposal and the Ridge "knockdown" — not necessarily a "knockout" — may have been coordinated and calculated to measure public reaction. Mr. Ridge grew more emphatic later in the day in his view that military authorities should not have such powers of arrest over civilians.
"We need to be talking about military assets in anticipation of a crisis event. And, clearly, if you're talking abut using the military, then you should have a discussion about Posse Comitatus. It's not out of the question [that there could someday be a situation] when, in support of civilian authorities, we would give the National Guard or troops arrest ability" in a crisis situation where there may be "severe consequences to a community or region." However, he said such a scenario is "very unlikely."
In a separate interview on CNN's "Late Edition With Wolf Blitzer," Mr. Ridge was even more emphatic that the discussion is an academic one. "There's been absolutely no discussion with regard to giving military authorities the ability to arrest in their support of civilian authorities." Asked whether he believes the military should have the power to arrest U.S. citizens, he replied: "No."

Other "administration officials" have spoken out against this as well...

But Pentagon officials, including Defense Secretary Donald H. Rumsfeld, say there's no good reason to change the military policing ban, known as the Posse Comitatus Act.
``It's not clear to me that there's any need to change Posse Comitatus at this time,'' Gen. Richard Myers, chairman of the Joint Chiefs of Staff, said last week. ``It has not been pointed out what the advantages to doing that would be.''
Source

So once again...hype prevails, just as it has over the whole "Iraq/Congressional Approval" issue. The "administration" has not expressed that they want to change the PCA, they merely are reviewing it in light of Biden's proposal.

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