posted on Jul, 26 2013 @ 10:27 PM
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?