No doubt during the recent crackdown in Ferguson, Mo many of you have seen photos like this, and you probably thought, "Isn't there a law against
this?" Yes there is, and here is what it says:
Posse Comitatus Act (Title 18 US Code, Section 1385)
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
Unfortunately, as you've probably already read since
USA Today reported it 2 days
, the police have had this equipment for a long time because Congress did authorize the Department of Defense to give it to them, most
recently in 1992 as the 1033 program. So does that make it legal for military hardware to be used on American civilians as long as police are the
operators? Sadly yes, but only "in cases and circumstances expressly authorized by the constitution or act of congress".
About now you might be saying, "Vagabond, are you really about to tell me that crushing black people is one of the cases and circumstances that
Congress expressly authorized this equipment for?"
I wondered the same thing- I was pretty sure I had the answer because the news keeps saying that in 1992 the equipment was granted explicity to fight
the war on drugs, but now we're in the war on terror of course, which so far has always seemed to mean that the enemy is everyone, everywhere,
forever- so to be sure I took the time to click through USA Today's link to the .mil website of the DODs
Law Enforcement Support Office
, which runs the 1033 program. Their web page
kindly identified the legal basis of their program in
Title 10 USC, Section 2576a
a) Transfer Authorized.—
(1) Notwithstanding any other provision of law and subject to subsection (b), the Secretary of Defense may transfer to Federal and State agencies
personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is—
(A) suitable for use by the agencies in law enforcement activities, including counter-drug and counter-terrorism activities; and
(B) excess to the needs of the Department of Defense.
(2) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy.
(b) Conditions for Transfer.— The Secretary of Defense may transfer personal property under this section only if—
(1) the property is drawn from existing stocks of the Department of Defense;
(2) the recipient accepts the property on an as-is, where-is basis;
(3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and
(4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient.
(c) Consideration.— Subject to subsection (b)(4), the Secretary may transfer personal property under this section without charge to the recipient
(d) Preference for Certain Transfers.— In considering applications for the transfer of personal property under this section, the Secretary shall
give a preference to those applications indicating that the transferred property will be used in the counter-drug or counter-terrorism activities of
the recipient agency.
I admit that does not look good. Law enforcement activities could be anything, and that's what it says, along with terrorism. But then again "law
enforcement activities" is not a case or a circumstance expressly authorized- it's a blanket term, which if accepted by the courts would completely
nullify Posse Comitatus just as long as police, mercinaries, or someone not being paid by the deparment of defense was carrying out the military
operations using military hardware against American civilians. So all hope may not be lost, but it will be a court fight.
So Title 18 US Code Section 1385 and Title 10 US Code Section 2576a, taken together, could mean one of two things.
1. That military hardware can be used against civilians for absolutely any law enforcement related purpose, against the spirit of the Posse Comitatus
Act, provided that the equipment is never withdrawn, but instead permanently transfered to the local police, and is not operated by active duty
soldiers. (There are actually two flavors this argument can come in. The first is that the hardware remains military once transfered to the police,
but can be used for any law enforcement purpose as the 1033 programs founding legislation states in the above quote. The second is that the hardware
ceases to be military when transfered to the police under that law, and therefore Posse Comitatus no longer applies to the hardware.)
2. That it can only be used as described above against terrorists (and maybe drug offenders since they do come up at the end of the section and used
to be at the front of the section in place of terrorists), because those are the cases and circumstances expressly authorized as required by the Posse
If such hardware can only be used against terrorists and maybe drug offenders, then one of two things must be true.
1. Only terrorists are being subjected to these weapons in Ferguson.
2. Any person who willfully caused this equipment to be used to enforce the laws has committed a misdemeanor punishable by 2 years in prison and a
fine of $10,000 or both
So who caused it? Theoretically you could push it all the way down to the street level officers, but more likely, there would be two primarily
responsible parties. 1. The executive branch, which deployed the equipment for general law enforcement use. 2. The head of local law enforcement who
actually ordered the use of the equipment outside of its counter-terrorist mandate.
What this means is that if it can be proven- say with a photo of a military truck and a statement given to USA Today by a pentagon official in the
above linked USA Today article that they gave the Ferguson police such a truck- that 1033 program gear was used against non-terrorists in Ferguson,
then it would be theoretically possible for the courts to put an end to the militarization of the police in response to a lawsuit from a victim in
Ferguson, and in so doing, the court would open both the chief of Police and the President of the United States to prosecution.
What do you say conservatives? I'll give you my scumbag if you give me yours... and promise not to have me shot with anything better than a civilian