Posse Comitatus Act

The Posse Comitatus Act is a United States federal law (usc|18|1385) passed on June 16, 1878 after the end of Reconstruction. The Act prohibits most members of the federal uniformed services (the Army, Air Force, and State National Guard forces when such are called into federal service) from exercising nominally state law enforcement police or peace officer powers that maintain "law and order" on non-federal property (states, their counties and municipal divisions) in the former Confederate states.

The statute generally prohibits federal military personnel and units of the United States National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Posse Comitatus Act.

The Posse Comitatus Act and the Insurrection Act substantially limit the powers of the federal government to use the military for law enforcement.

History

The act was a response to and subsequent prohibition of the military occupation by U.S. Army troops of the former Confederates States during the ten years of Reconstruction (1867-1877) following the U.S. Civil War (1861-1865). Federal troops were withdrawn from Southern states as a result of a compromise in one of the most disputed national elections in American history, the 1876 U.S. presidential election.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 with 184 electoral votes to Rutherford Hayes' 165, with 20 votes yet uncounted. The 20 electoral votes were in dispute. After a bitter fight, a deal was struck resolving the dispute and awarding the presidency to Rutherford B. Hayes.

In return for Southern acquiescence in conceding to Rutherford B.Hayes, Republicans withdrew federal troops from Southern states of the former Confederacy, ending Reconstruction. Known as the Compromise of 1877, this deal of political expediency removed federal troops, and as result all federal protection for Southern ex-slaves. With the end of Reconstruction, Southern states were free to enact laws barring African-Americans from serving in government and eventually from voting (e.g., poll taxes and grandfather clauses) Segregated and disenfranchised, African-Americans in the South became second-class citizens or in many instances, de facto slaves to the political and economic order of the post-bellum "Jim Crow" South.

To this day, the US Constitution places primary responsibility for the holding, the conduct, and the promulgation of the rules for elections to federal office to the several states of the Union. The authority of a state's deputized peace officers to maintain the peace, for the orderly conduct of elections, and the prevention of unlawful activity to prevent the exercise of the voting franchise, is a state responsibility; in view of the states' primary job to exercise the police power, the power to maintain law and order.

It was widely recognized that in the former Confederate States during the local, state, and federal elections of 1874 and 1876, the state governments and their county and local municipalities had deliberately elected not to exercise their police powers to maintain law and order during the holding of elections in those years. As a result, many acts of violence and the deliberate suppression of the vote of some political and racial groups resulted in the election of state legislators and U.S. congressmen who would have not been elected otherwise.

When those U.S. representatives—and the senators selected by the newly-formed legislatures of the former Confederate States—reached Washington, they set as their first priority the creation of a statute prohibiting a future president or congress from directing by military order or federal legislation the re-imposition of federal troops who would again exercise such police powers as were necessary to maintain law and order during elections.

The original act referred only 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, when acting in its peacetime capacity (originally as part of the Department of Transportation, now within the Department of Homeland Security), is not included in the act. However, if in wartime, a portion of the United States Coast Guard were subsumed within the Department of the Navy, as it was during World War II, that portion, under the act, would lose its federal police power authority and responsibility over the federal law enforcement duties of its civilian mission. This law is often mentioned when it appears that the Department of Defense is interfering in domestic disturbances.

Latin etymology

"Posse Comitatus" (Latin): Power of the county. The whole force of the county: that is, all the male members of a county over fifteen, who may be summoned by a sheriff to assist in preventing a riot, the rescue of prisoners, or other unlawful disorders. Clergymen, peers, and the infirm are exempt. [E. Cobham Brewer, "Dictionary of Phrase and Fable", 1894.]

Legislation

The whole text of the relevant legislation is as follows:

:"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".

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):

:usc|10|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

HR5122 also known as the John Warner Defense Authorization Act was signed by the president on Oct 17, 2006 [http://www.govtrack.us/congress/bill.xpd?bill=h109-5122 John Warner National Defense Authorization Act for Fiscal Year 2007] . Section 1076 [http://www.govtrack.us/data/us/bills.text/109/h/h5122.pdf Text of Hr5122] is titled "Use of the Armed Forces in major public emergencies". Removing the legalese from the text, and combining multiple sentences, it provides that: The President may employ the armed forces to restore public order in any state of the United States the president determines hinders the execution of laws or deprives people 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. The actual text is on page 322-323 of the legislation.As of 2008, these changes were repealed, changing the text of the law back to the original 1878 wording, under Public Law 110-181 (H.R. 4986, Section 1068,) however in signing H.R. 4986 into law President Bush attached a signing statement which indicated that the Executive Branch did not feel bound by the changes enacted by the repeal.

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President Bush Signs H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008 into Law 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.

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Exclusions and limitations

There are a number of situations in which the Act does not apply. 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 usc|18|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.

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, the United States Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act. The Coast Guard enforces U.S. laws, even when operating as a service for the 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, aircraft, intelligence, tech aid, surveillance) while generally prohibiting direct participation of Department of Defense personnel in law enforcement (e.g., search, seizure, and arrests). For example, a US Navy vessel may be used to track, follow and stop a vessel suspected of drug smuggling, but a Coast Guard Law Enforcement Detachments (LEDETS) aboard the Navy vessel would perform the actual boarding and, if needed, arrest the crew.

Homeland security

In early 2006, the 109th Congress passed a bill containing controversial provisions that granted the President additional rights to use federal or state National Guard Troops inside the United States in emergency situations. These changes were included in the John Warner Defense Appropriation Act for Fiscal Year 2007 (H.R. 5122.ENR).

These changes were repealed in their entirety in 2008, except for the provisions of the Presidential signing statement which retained any powers, the repeal of which, the president may determine to be unconstitutional.

On September 30, 2008 the US Army announced that the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) will be under the day-to-day control of US Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks.

This marks the first time an active US Army unit will be given a dedicated assignment to NORTHCOM, where it is stated they may be "called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack." These soldiers will also learn how to use non-lethal weapons designed to "subdue unruly or dangerous individuals" without killing them, and also includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and, beanbag bullets [http://www.armytimes.com/news/2008/09/army_homeland_090708w/] .

This also demonstrates the possibility of utilizing federal troops for missions within the United States, essentially eliminating any recognition of Posse Comitatus.

Natural disasters

On September 26, 2006, President Bush urged Congress to consider revising federal laws so that the U.S. military could seize control immediately in the aftermath of a natural disaster, in the wake of Hurricane Katrina.

These changes were repealed in their entirety in 2008, except for the provisions of the Presidential signing statement which retained any powers, the repeal of which, the president may determine to be unconstitutional.

ee also

*List of military actions by or within the United States
*United States Northern Command

References

Bibliography

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

External links

*usc|18|1385 - Use of Army and Air Force as Posse Comitatus
* [http://www.homelandsecurity.org/journal/articles/Trebilcock.htm The Myth of Posse Comitatus (Craig T. Trebilcock)]
* [http://law.wustl.edu/WULQ/75-2/752-10.html The Posse Comitatus Act: A Principle in Need of Renewal] , Washington University Law Quarterly Vol 75 No. 2
* [http://jurist.law.pitt.edu/forumy/2005/10/mold-mildew-and-military-role-in.php Mold, Mildew, and the Military Role in Disaster Response] , JURIST
* [http://www.govtrack.us/congress/bill.xpd?bill=h109-5122 John Warner National Defense Authorization Act for Fiscal Year 2007]
* [http://www.govtrack.us/data/us/bills.text/109/h/h5122.pdf Text of Hr5122]