R.I.P. Posse Comitatus

R.I.P. Posse Comitatus

Kurt Nimmo | September 20 2005

It was Representative Ron Paul of Texas who read into the Congressional Record on June 25, 1997â??well before the malfeasance of George Bush, the Constitution-bashing Patriot Act, and the reckless so-called war on terrorâ??the following: â??In a police state the police are national, powerful, authoritarian. Inevitably, national governments yield to the temptation to use the military to do the heavy liftingâ?¦. [O]nce the military is used, however minor initially, the march toward martial law â?¦ becomes irresistible.â?�

Fast-forward to the present. In the wake of Hurricane Katrina, General Peter Grace, soon to become Vice Chairman of the Joint Chiefs of Staff, has called â??for Posse Comitatus to be reconsidered in response to suggestions that it slowed down deployment of troops,â?� according to Jurist, a legal research website.

Virginia Republican John Warner, chairman of the Senate Armed Services Committee, â??has questioned restrictions under the law since the September 11th attacks, and has promised to do so again.â?�

In February, 2002, soon after the nine eleven attacks, Colonel John R. Brinkerhoff, US Army Retired, and acting associate director for national preparedness of the Federal Emergency Management Agency (FEMA), wrote: â??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.â?�

â??Article II, Section 2 of the Constitution grants the power to Congress to make the rules governing the armed forces,â?� writes Diane Alden. â??In recent years Congress has acted less like the source of legitimacy for the use of the military force and more like a rubber stamp for military adventurism by the executive branch, regardless of who is presidentâ?¦. both Republicans and Democrats can share the blame for blurring lines between the military and policeâ?¦. Both can share blame in the unconstitutional laws passed and the open checkbook they offer federal police agencies that donâ??t seem to be concerned with the niceties of the Bill of Rights.â?� Alden wrote this in the 1990s, during the Clinton administration and after the outrage of Waco. Her words are even more urgent today as Bush and Congress have eroded the Constitution and the Bill of Rights even further.

Our corporate media has blamed FEMAâ??s response to Katrina on bureaucratic inertia and ineptitude. However, a cursory examination of events reveal something else: FEMA (and the Department of Homeland Security) deliberately exacerbated the situation in New Orleans and up and down the Gulf Coast by withholding crucial assistance, thus creating a chaotic situation and â??anarchyâ?� in the streets as desperate people â??lootedâ?� stores in search of water and food. FEMA turned away experienced firefighters; turned away Wal-Mart supply trucks; prevented the Coast Guard from delivering diesel fuel; prevented the Red Cross from delivering food; blocked morticians from entering New Orleans; blocked a 500-boat citizen flotilla from delivering aid; turned away generators; told first responders not to respond. As Jefferson Parish President Aaron Broussard revealed during an emotional plea on NBCâ??s Meet the Press, FEMA basically declared war on local authorities and sabotaged local communications. FEMA went out of its way to make the situation worse, thus sending the message: without military occupation and a watering down of the Posse Comitatus Act, FEMA and the feds cannot do their job, a message dutifully echoed by the corporate media.

â??The Posse Comitatus Act reflects the political sensitivities of a period in American history when Union troops enforced laws on the former Confederate states,â?� opines the San Antonio Express-News.

It also reflects the American concept of federalism and a traditional distrust of powerful government.

Hurricane Katrina sheds new light on these subjects. Emergency-management planning is now inextricably linked with national security. The military is, in effect, a first responder for both humanitarian relief and law enforcement. The federal government may be the only source of available help in some disaster situations.

Congress and the American people will examine what went wrong in the homeland security bureaucracy and why the federal government was slow to respond to Katrinaâ??s destructive force.

They also need to examine the Posse Comitatus Act to make sure itâ??or at least government lawyersâ?? understanding of itâ??does not remain an obstacle to common-sense response to national disasters.

If the Posse Comitatus Act is an obstacle to anything, it is the federal governmentâ??s desire send in the Marinesâ??who are trained to fight wars, not provide disaster relief and augment (or supplant) local law enforcement. â??One of the United Statesâ?? greatest strengths is that the military is responsive to civilian authority and that we do not allow the Army, Navy, Marines or the Air Force to be a police force,â?� Marine Corps General Stephen Olmstead testified before Congress. â??History is replete with countries that allowed that to happen. Disaster is the result.â?� Or, as Maryland delegate Luther Martin argued during the Constitutional Convention in 1787, â??When a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.â?�

â??If this were a dictatorship, itâ??d be a heck of a lot easier, just so long as Iâ??m the dictator,â?� Bush joked on December 18, 2000. However, as we have witnessed since, Bush was not joking and the result of his desire to be a dictator has resulted in a serious erosion of the Bill of Rights, most notably the First, Second, Fourth, and Six Amendments. Indeed, if the barriers to military rule are removed by Bushâ??s rubberstamp Congress, and the American people are not vigilant, â??slavery,â?� as Luther Martin noted, will be the ultimate result.

Hands off Posse Comitatus Staunton News Leader | September 24 2005

In its zeal to help (or to look busy, at least), the federal government often winds up hurting its own citizens. Part of this can be blamed on the horse-built-by-committee nature of Congress; more has to do with with the irresistible urge to tinker with politics. Whichever party is strongest at any given time will attempt to advance its agenda â?? often with disastrous results.

Here are a couple of recent examples â?? one a done deed, the other a potential problem that should be nipped in the bud:

After the Sept. 11, 2001 terrorist attacks, Americans clamored for security.
What they got was worthy of Benjamin Franklin's aphorism: Those who would give up an essential liberty for temporary security deserve neither liberty or security.

They got neither with the USA Patriot Act.

That bit of Mom-and-apple-pie-sounding legislation has been more about rifling through ordinary citizens' personal lives than about catching terrorists. One scheme involved having libraries and bookstores report on the reading habits of individual Americans ...

Now, the minute Osama bin Laden is spotted browsing the stacks in Barnes & Noble or the public library, we might consider this idea. There are more sinister uses for the Patriot Act than can be listed here. For a complete text and explanation of the Act, visit www.hqda.army.mil/rio/ links/usa%20patriot520act% 20explanation.htm.


Sept. 11 also spawned the creation of the largest federal bureaucracy since Franklin D. Roosevelt's administration: The Department of Homeland Security. The horrifying events of this past month provided us with an evaluation of that agency's performance. We pray that the response for Hurricane Rita goes more smoothly.

Now, as the imagery of the chaos that was (and is) the Gulf Coast is still fresh in everyone's minds, Congress wants to book us reservations for a new season in hell: The repeal of the Posse Comitatus Act.
That act â?? one crafted while our government was still sane â?? forbade the use of federal troops as civil law enforcement officers.

That is a good thing.

There is a certain sense of security (of the right kind) when American citizens know they will not be killed by their own soldiers.

Those of a certain age recall the horror that the killings at Kent State brought. Multiply that event by magnitudes to see how serious this could be.

Congress wants to take away more of our liberties. We can't allow that to happen. Use the addresses in the box on this page to tell our elected representatives to say "no" to using our armed forces for anything other than aiding in evacuations and disaster relief in times of crisis.

Our state-run National Guard units have done a fine job when needed â?? with the sad exception of Kent State.

One of the reasons is because it's different when the uniform is worn by a neighbor from down the street instead of a stranger from far away. The neighbor isn't as likely to start shooting.

Too many bricks in the beautiful building we call the U.S. Constitution have been loosened. The structure is in danger of coming down. We need leaders who will shore it up, not tear it down further.

http://www.lewrockwell.com/orig5/rossi8.html

The Danger of Standing Armies

[align=center]by C.T. Rossi[/align]

[align=left]How happy that our army had been recently disbanded [before the Presidential crisis of 1801]! What might have happened otherwise seems rather a subject of reflection than explanation. [/align]



[align=right]~ Thomas Jefferson writing to Nathaniel Miles, March 1801


Posse Comitatus: the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc.

[align=right]~ Blackâ??s Law Dictionary[/align]

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.

[align=right]~ The Posse Comitatus Act, 18 U.S. Code, Section 1385[/align]

The average American is likely to think that "posse comitatus" is the entourage of a top rapper or NBA star. Little do they know (or likely care to know) that The Posse Comitatus Act of 1878 has done more to preserve their liberty than any piece of legislation since the Bill of Rights.

Born of the abuses of the Reconstruction era and the stolen election of 1876, the PCA prohibits the use of federal troops (or national guardsmen under federal control) unless specifically authorized by an act of Congress. In short, it is the main obstacle in the path of creating an American police state. Therefore it is not surprising that there has been an increase in "chatter" about scrapping the law.

A trial balloon was floated over three years ago when both Senator Joseph Biden, who called the PCA into question as early as the Oklahoma City bombing of 1995, and then Homeland Security Czar Tom Ridge bandied about the idea of repealing the PCA on the Sunday morning news programs. Apparently, the pretext of keeping Americans safe from terrorists wasnâ??t deemed sturdy enough to accomplish the coup dâ??état. But where the stick of "national security" was found wanting, now the carrot of "disaster relief" may provide the cover needed to expose Americans to the full power of centralized federal tyranny.

In the wake of Hurricane Katrina, Senator John Warner has asked Defense Secretary Donald Rumsfeld to review the usefulness of the PCA given that it hinders "humanitarian assistance" which could be provided by the feds. (Look next for foxes to be asked their opinions on the benefits of chicken coop doors.) Not coincidentally, President Bush has called for "a robust discussion about the best way for the federal government, in certain extreme circumstances, to be able to rally assets for the good of the people."

What this "robust discussion" will most certainly entail is a media show trial. Congressional leaders will set up the false dialectic between those who want to abolish the PCA and those who think that such an abolition would be "rash and uncalled for" when the PCA merely needs to be amended. Needless to say, this "tweaking" will allow enough ambiguity in the reading for the federal judiciary to eviscerate the PCA and free the leviathan.

While there is no appreciable amount of case law on the PCA yet formed, the methods and tactics that a statist court will employ are already clear. Technically, the PCA applies only to the Army and Air Force, not the Navy and Marine Corps. The latter two armed services are restricted only by Defense Department regulations. (Likewise, the Coast Guard â?? formerly of the Department of transportation, now with Homeland Security â?? is exempt.) So, under the guise of strict textualism, a court could easily find the policing of Americans by scores of Marines constitutional. Add to this a 1981 amendment to the PCA which freed up the use of the military in the war on drugs and the loopholes which can be created are multifarious.

The direction of the existing case law on the PCA does not bode well for its future either. Originally, the standard used for violation of the Act was an active versus passive test wherein the military could not actively police U.S. citizens but it could provide equipment and supplies to law enforcement. (See United States v. Red Feather, 392 F. Supp. 916, D.S.D. 1975). However, a new test emerged which looks to whether "military personnel subjected . . . citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature." (See United States v. McArthur, 541 F.2d 1275, 1278, 8th Cir. 1976). Mind you, defining who is a "citizen" and what is "regulatory, proscriptive, or compulsory in nature" will most likely fall under the direction of a man who has no problem with ceding immense, unprecedented, and dangerous powers to the president.

Given that any public discourse about the siccing of military forces on American civilians involves the use of two Latin words, the smart money should not be on the side of liberty. A majority of Americans have grown apathetic and stupid as a result of big government handouts and (mis)education. While some may have been leery to repeal the funny sounding law in the name of terror prevention, there will likely little resistance to "amending" the law so that the government can "help people." Little do they think of past "helps" from "40 acres and a mule" up through the entire bungled Katrina relief effort.

But just as Jefferson was prescient that the use of troops by a sitting president could effectively rig an election (as happened in 1876), so he also noted that "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."


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[align=right]September 28, 2005



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