For much of America’s history, the deployment of federal troops within the states for use as domestic law enforcement has been prohibited. Even today, the idea brings a visceral reaction to the gut. And during revolutionary days back in 1776, it was the use of British troops as policemen by colonial authorities that so outraged citizens, that they placed express prohibitions on the use of soldiers in the Bill of Rights. But now that it has been announced that a combat Army brigade is set to do just that – be deployed within the United States in order to keep the order (go here) – we need to drag out that ol’ dusty law, called the Posse Comitatus Act. (In reality, we simply clicked on wikipedia.)
The Posse Comitatus Act is actually a United States federal law ( ) and was passed on June 16, 1878 after the end of Reconstruction. White Southerns reintegrating themselves into the federal system never again wanted to see federal troops used as occupation forces as they were used in the South during Reconstruction. So, it was part of the grand compromise that allowed Ruther B. Hayes to be elected President in turn for the removal of federal troops from the South.
Since then, the statute has come to generally prohibit federal troops – U.S. military personnel – and any National Guard units that are under federal authority from acting in a law enforcement capacity within the United States, except when and where expressly authorized by the Constitution or Congress. (The Coast Guard are specifically exempted from the Act.)
Here is the text of the relevant legislation:
Sec. 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.
So, the Posse Comitatus Act itself, in plain English, prohibits the use of federal troops within our country – if they’re acting as law enforcement, making arrests, doing search and seizures, stopping people and frisking them. The Marine Corps and Navy were later added administratively. In addition, the Posse Comitatus Act and the Insurrection Act substantially limit the powers of the federal government to use the military for law enforcement.
In Latin, Posse Comitatus means Power of the county, the whole force of the county. Picture the old Westerns, where the Sheriff deputizes a bunch of guys that had been hanging around the saloon and they ride off after the bad guy. It was the Posse. In English common law it meant all the male members of a county over fifteen years of age, who could be summoned by the sheriff to assist in the prevention of a riot, the rescue of prisoners, or for use in other unlawful disorders.
Now, of course, over the years federal troops have acted within states during storms, earthquakes, floods, hurricanes, and even riots . So, the Act has been whittled down in practice. And now with military personnel carrying out drug interdiction’s and border seizures, the Act you might think, has so many exceptions that the exceptions have swallowed up the Act. Well, it gets worse.
Back in 2006, Congress passed HR5122, which was also known as the John Warner Defense Authorization Act for Fiscal Year 2007. President Bush signed it on Oct 17, 2006. Section 1076 of Hr5122 is titled “Use of the Armed Forces in major public emergencies”. Section 1076 Text of Hr5122.
In laypeople’s terms, the law provided that the President may employ the armed forces to restore public order in any State of the United States where the President determined the laws were being hindered from being carried out, or where people were being deprived of their rights. The actual text is on page 322-323 of the legislation. The provisions that granted the President additional rights to use federal or state National Guard Troops inside the United States in emergency situations were quite controversial, and as of 2008, these changes were repealed, changing the text of the law back to the original 1807 wording, under Public Law 110-181 (H.R. 4986, Section 1068)
When President Bush signed the National Defense Authorization Act for Fiscal Year 2008 into Law, he made one of his famous ‘signing statements.’ Here it is:
Today, I have signed into law H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008. The Act authorizes funding for the defense of the United States and its interests abroad, for military construction, and for national security-related energy programs.
Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.
GEORGE W. BUSH
THE WHITE HOUSE, January 28, 2008.
Here are the situations in which the Act does not apply. (thanks wikipedia) These include:
- National Guard units while under the authority of the governor of a state;
- Troops used under the order of the President of the United States pursuant to the Insurrection Act, as was the case during the 1992 Los Angeles Riots.
- Under 18 U.S.C. § 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if civilian law enforcement is inadequate to address certain types of threat involving the release of nuclear materials, such as potential use of a nuclear or radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect U.S. military preparedness.
Okay, where does all of this leave us?
MORE TO FOLLOW.