Legal Exemptions to Posse Comitatus

Seeing this new forum open, I thought it apropos to list what the federal government - by law - can and cannot due when it comes to Posse Comitatus. The following comes from a book I wrote on the subject (I don't think I can post it's title due to this site's T&C though). I spent about three years researching this subject along with national emergencies and Continuity of Government programs. This is what I learned:

As written in the Joint Chiefs of Staff Joint Publication 3-26 titled “Counterterrorism,” “The President has the authority to direct the use of the military against terrorist groups and individuals in the United States for other than law enforcement actions (i.e., national defense, emergency protection of life and property, and to restore order).” The reason the “other than law enforcement” distinction is made is due to the notion of “posse comitatus,” a term and idea in need of clarification.

Translated from its original Latin, posse comitatus literally means, “Attendants with the capacity to act,” but has taken the meaning, “The power (or force) of the country.” In essence, it is the use of the military by the government as a police force over the citizens they are supposed to protect. The Posse Comitatus Act, officially known as 18 U.S.C. 1385, was an outgrowth of the reconstruction period following the Civil War. After the Union had been reunited, the federal government stationed army troops in the Southern states to maintain civil order, oversee elections, and generally quash any lingering Confederate sentiments. Once order and peace were achieved, some members of Congress (mainly Southerners) worried that the Army was acting outside of its original intent. To eliminate those fears, the Posse Comitatus Act passed in 1878. This was not a constitutional right—nor based upon one—but rather a simple act of Congress. Today this law reads much like it did when originally passed: “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.” What the act did, and what it was intended to do, was to prevent the military from acting as a police force, especially a private one for the likes of a power mad general or president. It never was to completely stop the military from operating within the borders of the United States.

Even though it was a congressional act, the Posse Comitatus Act has several exceptions. The primary one is that two branches of the military do not have to adhere to it. The first is the U.S. Coast Guard. While the Coast Guard performs a variety of services, one of its main tasks is to curb criminal violations, a power it was granted via a direct act of Congress. The other military branch is the National Guard. The National Guard operates under a separate set of laws (Title 32 of U.S. Code) from its brethren in the other military branches (Title 10, though the Coast Guard operates under Title 14). As such, the National Guard is free from posse comitatus restrictions. In fact, during emergencies, one of the Guard’s primary objectives is to maintain law and order since often times in major emergencies local law enforcement officials are spread too thin to accomplish their duties.

Other military branches were granted congressional exemptions from posse comitatus beginning in the 1980s in order to help fight the “war on drugs.” Both the Navy and Air Force are allowed to provide equipment and personnel in a preemptive way to stop smuggling prior to drugs or drug runners breaching the nation’s borders. The Army is also allowed around posse comitatus in providing training and “military advice” to law enforcement agencies. In fact, the Army’s Domestic Preparedness Team has trained law enforcement officials in over 120 cities across the United States. The standing rule for the U.S. military as defined by the federal courts has been that they may partake only in a “passive” role in aiding law enforcement, not an “active” one while within the confines of the country.

The “war on drugs” excuse helped open a secondary loophole in this active/passive argument with the creation of Joint Task Force North (JTF-N) in 1989. Originally called Joint Task Force 6, JTF-N consists of 150-200 military operatives from all sections of the DOD. It was first assigned to support law enforcement officials in the border states of California, New Mexico, Arizona, and Texas and was headquartered at Fort Bliss in El Paso, TX. By 2004, its mission was expanded to cover the entire nation. To legally operate within the U.S., a request must be made by local or state law enforcement officials for JTF-N’s assistance. These commando-like squads run out of JTF-N have often been seen patrolling along the US/Mexico border, and despite needing the official request to operate, they appear to be in constant use.

Another hole in the Posse Comitatus Act lies in the ability of the Attorney General to seek help from the Secretary of Defense in the case of rogue nuclear weapons. As far as research would reveal, this has never been enacted or utilized; however, such an imminent situation may be exactly the sort of incident that even the most paranoid person out there would want the military to step in and help.

A Posse Comitatus Act exception also exists in the Robert T. Stafford Disaster Relief and Emergency Assistance Act. The authors of this act slipped an interesting little posse comitatus caveat into its wording. Under the “Utilization of DOD Resources” in Section 403, it reads:

“General rule - During the immediate aftermath of an incident which may ultimately qualify for assistance under this title or title V of this Act, the Governor of the State in which such incident occurred may request the President to direct the Secretary of Defense to utilize the resources of the Department of Defense for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property. If the President determines that such work is essential for the preservation of life and property, the President shall grant such request to the extent the President determines practicable. Such emergency work may only be carried out for a period not to exceed 10 days.” Notice that it does not mention the abilities or the overwhelming of the National Guard. A governor can simply make a request of the president, should the disaster at hand qualify as a Stafford Act incident, to have the DOD step in and help in seemingly any number of roles. Many would argue that this does not include law enforcement and could not be used to circumvent posse comitatus. Yet, it clearly states “if the President determines that such work is essential for the preservation of life and property….” Wouldn’t the “preservation of life and property” demand some form of law enforcement, given the disaster scenario necessary for a Stafford Act incident to be mandated? Since a law enforcement role was not specifically ruled out, it appears it would. If the DOD would not be allowed to operate in any type of law enforcement endeavor, then the question remains why would the DOD—if not acting outside the constraints of posse comitatus—be allowed to operate in the disaster area for only 10 days?

Continued from above...

The final exception to the Posse Comitatus Act, and by far the most controversial aspect to it, is the fact that the U.S. government can call in the military to save itself when it fears for its life (or jobs). In other words, to combat a “civil disturbance.” There is no clear definition of what a civil disturbance actually is. It is most often equated with an open or armed rebellion against the government of the United States, but sometimes simply refers to a breakdown in law and order (never mind if such “law” is deemed unjust and is the cause of the rebellion in the first place). This is why the following set of laws as laid out in Title 10 U.S.C. Sections 331-335 is commonly known as The Insurrection Act.

The Insurrection Act originated in 1807. This goes to show you that even our Founding Fathers, having themselves rebelled against an “unjust” ruling power, worried about maintaining their own rule over the land. In 200+ years, not much has changed as those in power seek to maintain their control over the common people no matter the price. It is very conceivable that in the near future our government will anger enough of the populace to the point they take up arms to overthrow their duly elected representatives. If the local law enforcement community cannot quash the rebellion, or if they instead decide to join up with the dissenters, the president is allowed to send in the military to do the job for them thanks to the Insurrection Act.

As clearly stated in Title 10 U.S.C. 332, “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.” Of course, since this is America, there are rules and regulations for sending in the troops. Well, a rule. This lies in Title 10 U.S.C. 334: “Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.” So listen up, you potential rebels: you’ll be given a warning to return to your “abode” prior to the jackbooted “peace keepers” stepping in and forcefully attempting to take control back from the mob. How effective such a “go home or else” warning would be once the point of rebellion was reached remains to be seen.

Other than in an open rebellion, there was—for about a year—a second option available to the president via the Insurrection Act in which he could have used the military outside of the constraints of posse comitatus. This would have been in the case of a “major public emergency” in which to “restore public order.” This loophole was not originally included within the Insurrection Act of 1807. Instead, this rewording of Title 10 U.S.C. 333 was controversially added by Congress in the John Warner Defense Authorization Act of 2007 which clearly broadened the president’s authority in any such “emergency” situation.

This reworking of section 333 basically nullified the Posse Comitatus Act. The president would have been able to use the military almost at his whim to police the country “in times of emergency” (and at the time, the U.S. was under 20+ national emergencies) and do so as long as he notified Congress. It completely stripped states of their rights and would have allowed the president to strip the state of its National Guard units as well.

Many concerned citizens and a few politicians including some very peeved state governors noticed this incredibly unpublicized shift in U.S. domestic policy. Led by the efforts of Senator Patrick Leahy (D-VT), these concerned citizens attempted to repeal the new version of section 333 by the passage of Leahy’s U.S. Senate Bill 513 which would have restored the Insurrection Act to its original wording. While Senator Leahy’s bill was introduced in February of 2007, it never progressed beyond that point. Luckily, an alternative bill, H.R. 4986, was introduced in the House of Representatives by Ike Skelton (D-MO) and did exactly what Senator Leahy’s bill could not. Passed in 2008, H.R. 4986 eliminated the new version of section 333 of the Insurrection Act and restored its original wording.

What frightens me about all of this is that through Posse Comitatus and the Insurrection Act, any attempt at a rebellion within this country can legally be squashed - no matter if the rebels are in the "right" or not.

Originally posted by MrParanoid

What frightens me about all of this is that through Posse Comitatus and the Insurrection Act, any attempt at a rebellion within this country can legally be squashed - no matter if the rebels are in the "right" or not.

Did it get to this point because of direct military action against the citizens? No

Did it get to this point because of direct military action against foreign countries? Yes.

Those actions made enemies abroad, making those enemies want to harm those who harmed them, thus making them "terrorists" in the eyes of those who started the fire. The American military.

Those actions, which cost billions, made poor and uneducated the very citizens of the country the military is supposed to protect. Poverty leads to frustration, and frustration, among those made poor who were born and bred with the notion that we have the right to bear arms, will lead to violence. The same TYPE of violence that the military deems terrorist by nature by using the foreigners as an example.

What's the solution? The only solution is the one no one will use. Remaining calm and peaceful towards each other while ignoring the faction that got all of this to this point. The military. The Government is not in charge. If you want to find out who is in charge here, find out who has been profiting from the wars in the middle east since the mid 80's. Find the names of the corporations. Find the names of their subsidiaries or sub-contractors. Find the names of those who lobby on their behalf, relevant companies, in Washington for laws that enable these corporations to do what used to be illegal, for the sake of profit. Find the names of the people who write these laws and bills and I'll bet you any amount of money that they have majors in English and law that would make your head spin. They have the power, the influence, the money and the education to walk all over every citizen of this country.

Make no mistake about it. You can't beat them at this game because they made the rules and bend them as they wish. The only recourse, average citizen, is to stop playing the game altogether. How you do that is up to the individual, but if you try to do it in a violent way, you're going to wish you hadn't. You're going to have to do it in such a way that will seem like a radical change in lifestyle. And it will be because it has to be a peaceful one.

If it makes you feel any better, the high and the mighty, politically, militarily and professionally, who want everything for themselves and are screwing anyone who gets in their way, are in the minority. The majority of leaders don't want the wars that are bankrupting the country and dividing the people of this nation. But they feel they have to go along with the game because you, the average citizen, isn't doing a damn thing to stop it.

Double

reply to post by MrParanoid
to the OP that

What frightens me about all of this is that through Posse Comitatus and the Insurrection Act, any attempt at a rebellion within this country can legally be squashed - no matter if the rebels are in the "right" or not.

right there is why they TPTB are pushing for 2nd to be eliminated, other than one shot rifles pistols. to the reader of this post , think this is BS read this www.democracynow.org... from the link

Tuesday, October 7, 2008
Is Posse Comitatus Dead? US Troops on US Streets

Col. Michael Boatner, Future Operations division chief of USNORTHCOM.

In a barely noticed development, a US Army unit is now training for domestic operations under the control of US Army North, the Army service component of Northern Command. An initial news report in the Army Times newspaper last month noted that in addition to emergency response the force “may be called upon to help with civil unrest and crowd control.” The military has since claimed the force will not be used for civil unrest, but questions remain. We speak to Army Col. Michael Boatner, future operations division chief of USNORTHCOM, and Matthew Rothschild, editor of The Progressive magazine. [includes rush transcript]

I have been keeping a close eye on this.... Drone use and others are just around the corner, think this is all part of the "DHS,TSA, FEMA , see something, say something program" think again for there is going to be a day when "your with them or against them". I took an oath many years ago, The words hold true today as they did then, when you become a treat to the US Constitution, to life and liberty, no matter whom you are.... then you are a treat that must be confronted.

We still have the right to vote to use our voice and say to them Enough your out, the pen is mightier than the sword, make petitions to get them out of office, you want change, now is the time.

I think defining freedom-seeking Americans as potential "domestic terrorists" is a way to get members of our own military to attack citizens if need be.

Back in WWII, the US Army learned that (and I forget the exact numbers) less than half of its soldiers would fire their weapons. Over the ensuing years, the military learned methods to train that fear of killing another human out of its rank and file. Now I believe every soldier sent into action will willingly fire upon the enemy.

Piggybacking onto that, a survey was taken of the military asking if they would fire upon American citizens. A vast majority said, "no" (note: not all said no). Now I believe the military is attempting to train that notion out of its rank and file. To do so, like all good propaganda, they have to dehumanize the enemy. In this case, it's being done by labeling Americans as domestic terrorists. "You joined the military to fight the terrorists, right? You know that oath that talks about defending against all enemies, both foreign and domestic? Here they are - standing right in front of you in the streets. Take 'em out!"

Slowly but surely, they'll train our forces into seeing the rest of us as an enemy and the notion/law of Posse Comitatus will be thrown out the window.

Mr.Paranoid:

What frightens me about all of this is that through Posse Comitatus and the Insurrection Act, any attempt at a rebellion within this country can legally be squashed - no matter if the rebels are in the "right" or not.

A commendable post that I feel has received too little of a response. A question I would pose on your concern refers to the part I have bold highlighted and underlined...whom or what determines the moral, legality, and rightness of a rebellion?

As you have rightly pointed out, no 'rebellion' (particularly armed rebellion) has any form of legal and lawful support, it is in fact, a criminal act, and must necessarily be perceived as such for the stability and longevity any society would seek to enjoy. The 'cause' of a rebellion draws its support from a shared sense of aggravation to moral righteousness. In this way rebellion is conceived, and gestates towards a birth that is, without exception, always violent and destructive. Rebellion becomes the environment for all factions to commit atrocity. This is a required and very essential precept to be understood by any individual thinking to use 'rebellion' as a means to address perceived societal wrongs.

Posse Comitatus has its origin in 16th century English common law, having the meaning of 'power of the county', and drew its authority from either parliament or the king, which authorised sheriffs to draw together a band or group of men from out of the citizenry to aid in a situation of emergency.

Originally posted by MrParanoid
they have to dehumanize the enemy. In this case, it's being done by labeling Americans as domestic terrorists. "You joined the military to fight the terrorists, right? You know that oath that talks about defending against all enemies, both foreign and domestic? Here they are - standing right in front of you in the streets. Take 'em out!"

Once upon a time in a land far away..........I was in the Army. Have you been? This was my experience. Those higher ups that you're talking about that you say are training our soldiers to kill fellow Americans, they're called lifers. The military is more than just a job to them. It's their way of life. Those PF1's, PFC's and corporals that they're barking orders to? It's a paycheck or a free ride to college. I don't know about now, but back in the day none the warmongering talk from the drill Sergeants or Sergeants First Class was taken very seriously. Not even by them at the end of day, sitting at the local bar getting sloshed and paying for lap dances for the privates who run morning calisthenics the fastest. But now? We've been at "war" with other countries for a long time now. From South America to the Middle East, the enemy was easily identifiable. They were foreign. The training for those soldiers was the real deal. Kill or be killed. The only way that would happen on American soil is if some dumba** picks up a firearm against the American military.

The scenario you're trying to paint, it assumes the soldiers have no common sense and they're just one step away from being a robot. The reality of it all is this: The ones whom you claim want to kill Americans on American soil are in the vast minority. They're lifers with a blood lust that's a stone's throw away of getting them locked away in the looney bin. They're the one's, in my opinion, who are responsible for making the boy next door who signed up to get a paycheck to feed his family, acquire PTSD and an array of other mental issues by trying to make him think in ways that didn't come naturally to him. Sorry, but that Kill, Kill, Kill mindset just isn't grabbing hold of people like you think it is.

Prove me wrong, but if push came to shove here in America I believe the majority of soldiers would tell their CO's to piss off.

Now, go cash your check at the commissary and buy Sarg a lap dance. He needs to chill.

youtu.be...

reply to post by Taupin Desciple


I hope you are right about today's military. But when one looks at the militarization of the police and situations like the Boston Marathon Bombing manhunt, then I'm not so confident.

But if Americans rose up - armed - and demanded a return to the Constitution, they would be struck down by force, labeled as "domestic terrorists," and shot in the streets (at least at first). I don't have any doubt of that. Not everyone would be on their side as not all of people living in the 13 colonies were on the side of that rebellion. Most people either wouldn't care or would rather have peace than their rights back. Thus, military force would be used to put down the dissenters.

Perhaps you're right and today's soldier wouldn't follow those orders. Maybe UN "peacekeepers" would be used in such a situation. But if dehumanized, labeled as a threat, and armed, I'm not as confident members of our military wouldn't defend themselves and/or attack when ordered.

Put yourself in that situation. Who is right? The "rebels" fighting to re-establish the US Constitution, or the government which is supposedly backed by the US Constitution? Which is in fact the enemy?

reply to post by elysiumfire


That is always the problem with rebellion. Who is "right?" Were the Founding Fathers "right?" They were the richest men in the colonies at the time, and more angry about their wealth being taken from them by British taxes than establishing a "free" country. But they are seen as "right" and "just" today.

Like I wrote above, if armed rebels in the US were attempting to take control of the government to re-establish the Constitution, who should we side with? The constitutional "rebels" or the federal government which is technically backed by the US Constitution? Both, in a very real sense, may be "right." It's a difficult question to answer. Which side one chooses would be based on circumstances...and perhaps only history would accurately answer the question.

Originally posted by MrParanoid

I hope you are right about today's military. But when one looks at the militarization of the police and situations like the Boston Marathon Bombing manhunt, then I'm not so confident.

I see your point. The reason, in my opinion, that there is such heavy militarization, is because they are expecting people to take up arms.

But if Americans rose up - armed - and demanded a return to the Constitution, they would be struck down by force, labeled as "domestic terrorists," and shot in the streets (at least at first). I don't have any doubt of that.

We're on the same page here friend, and this is precisely why people SHOULD'T do that. You do something like that, and there's no doubt that you're going to die. It's all but guaranteed. I live in western U.S. and if there's one unwritten rule that was in use in the 1800's that still applies today, it's that you don't shoot an unarmed man in the back.

Put yourself in that situation. Who is right? The "rebels" fighting to re-establish the US Constitution, or the government which is supposedly backed by the US Constitution? Which is in fact the enemy?

The Government, no doubt. It's hard to tell if they were ever on the side of the average American.

I think what people need to keep in mind is that this isn't the 1800's anymore. As far as weapons are concerned we're not on the same playing field as the military and law enforcement. This is why an armed rebellion would be a fools game. Things didn't get to the point they are by the military strong arming Americans. They got to this point because the corporations, at some point, took over by way of their pocketbooks. Money took over ethics a long time ago. The only way to "rebel" against the system to instigate change, is by the same method. Go for their pocketbooks.

What does the Government do to a country that does things they don't agree with? They put economic sanctions on them. To put it bluntly, they stop giving them things they need. The American people need to find a way to do the same. Stop giving the Government, and the corporations that control them, what they need. I'll let your imagination take over from here because I'm not going to openly say on a public forum what those methods entail.

reply to post by Taupin Desciple


I agree with you. While some days I feel the only way to change the system is to blow it up, I don't think (like many doomsayers on ATS would say) that the US is that far gone. It's certainly tipping the wrong direction, but if people stood up and effected change the way to system allows (politically), then we could tip it in the other (hopefully correct) direction.

I would also agree with you that even with an armed populace, the military/police complex is much better armed and trained. While it's debatable how strong the push back would be, there is little doubt that a hunting rifle is of little use against the armored vehicles/tanks many urban police forces now possess. Throw in the drones, etc. and it doesn't get much better. A revolt, if not backed by the military, would fail and likely result in a stronger crackdown against civil liberties. (There is also the question of when/where has a military-back revolt led to a better, more open government? If you look at the recent examples from around the world, you'd be hard pressed to see things improve after such a coup).

That all said, it still doesn't make me comfortable that the police has become militarized and that US troops are stationed at USNORTHCOM. This build-up is unexplained and unnecessary (and under reported), and that is troublesome.

You two gentlemen are clearly well educated and just as equally well-versed in your point-counterpoint-agreements. Virtually nothing either of you mention can be disproved.

So,

My question is regardless what percentage of the military may or may not use arms and force against a fellow American, did you not by default make the case that any rebuke of the government by the "average American" as our president has taken to labeling us recently, would have to 1) be indisputably peaceful (something that becomes difficult under the next point, and 2) involve a most likely impossible number of activists in order to counter any military response. In other words, the sheer number of citizens necessary to effect real change would make it almost impossible to control and ensure a civil and peaceful "confrontation". With the foreknowledge that a great number of potential participants will simply guard the sidelines until they see whether or not anything can truly be gained or they have been sufficiently satisfied they agree with all that is under debate, then is it possible to inspire such a majority of non-militarized population in the first place? Watching the great support OWS received from the armchair quarterbacks with mostly embarrassing actual turnouts at events seems to indicate no such challenge to the military, government, politicians, president, etc could ever be mounted. I want to be clear that I'm not advocating threats or violence or misdirected affronts to those who also serve to protect our loved ones. It seems to me, therefore, that the only battlefront in such scenarios would only be initiated by the "lifers" or someone inside or controlling the military in the first place. Not the other way around.

In the end, it may not make any difference, but I welcome your opinions. Thanks.

reply to post by samstone11


In a sense, I agree with you: to organize a vast majority of Americans into doing something as dramatic as taking back the federal government may just be impossible. To me, that is a real problem with this country. With 330 million souls in the US, we've become too fractured. It feels today as if everyone is just out for their own interests. No group acts as a collective for us all. Everyone today has to define themselves in some way: I'm black/white/Hispanic/Oriental, gay/straight/bi, conservative/liberal, Democrat/Republican/Libertarian, pro-gun/anti-gun, etc. Rather than bringing together, these labels separate and act like teams with a goal of winning more/better rights for "our" side.

If American went back to its pure notion of freedom for all, none of this would be necessary.

Its my opinion that the best chance of a revolt would have to originate within the military. In doing so, it would prevent the federal government from using our military forces against the populace. Without that power, the government could not hold if the people wanted them out.

At the same time, if those who vowed to defend this country against all enemies foreign and domestic took that oath seriously, they would hold those members of our federal government who have committed outright treason and violated the Constitution accountable for those crimes. At present, this does not happen. Instead, the military is protecting them whether they realize it or not.

I'm not advocating "mob rule" or that soldiers stand post within Congress, monitoring every bill that is passed/repealed because that is not freedom either. In fact, a fear would be a power mad general leading a revolt with the idea that "he could do better." That wouldn't help matters, either. It has to be a delicate use of force.

But a good house cleaning within the federal government is in order.