What happened in Ferguson potentially exposes President Obama to prosecution and jail time

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 both.

Unfortunately, as you've probably already read since USA Today reported it 2 days ago, 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 agency.
(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.

Either
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.)

Or
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 Comitatus Act.

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 weapon.

puppets do not go to jail they simply get their strings cut off

a reply to: The Vagabond

You should be a comedian - no way. Never in U.S. history has a U.S. president gone to jail and neither will OBAMA.

Welcome to the Republic.

a reply to: IseeyourBS
I am in fact an ameteur standup comedian. I'd tell you about a product called Trojans Solos that will probably be coming out in the next couple years the way our culture is headed, but there's rules and topic to consider.

As for whether Obama would go to jail, that's not really my point. My point is that if liberals and conservatives could make common cause here, it is a fact that we could each help the other brush an adversary back from the plate a bit.

In the highly unlikely even that they could help us stop the 1033 program, they would then have a righteous article of impeachment and even an actual crime to run with. And personally I'd rather take some of the unquestioning support away from the fascists than protect a guy who won't protect me when push comes to shove.

originally posted by: The Vagabond
a reply to: IseeyourBS
I am in fact an ameteur standup comedian. I'd tell you about a product called Trojans Solos that will probably be coming out in the next couple years the way our culture is headed, but there's rules and topic to consider.

As for whether Obama would go to jail, that's not really my point. My point is that if liberals and conservatives could make common cause here, it is a fact that we could each help the other brush an adversary back from the plate a bit.

In the highly unlikely even that they could help us stop the 1033 program, they would then have a righteous article of impeachment and even an actual crime to run with. And personally I'd rather take some of the unquestioning support away from the fascists than protect a guy who won't protect me when push comes to shove.

I love comedy! I think comedians do a good service. Why? For a short moment in time they can take your worries and fears away and replace it with laughter. Keep up the good work!

Laughter truly is the best medicine.

Well if past experience is proof of anything, if this notion gained traction the administration will descend with a mountain of lawyers and rewrite (or reinterpret) the law. If people aren't interested they will manufacture a justification for it. It seems to me, the only way to deal with money hungry warmongers is to give them more honey. Find a way to incentivize demilitarization, because the law was designed to protect the wealthy and if it doesn't they rewrite it.

Seeing how the NSA enjoys exploiting data communications, no doubt a situation like this such technology would be useful. Oh, that Supreme Court justice is going to vote against the legislation? I hope he didn't send any naughty pictures through his email, or evade taxes, or any other fetish a rich man might have.

a reply to: The Vagabond

Your first reference is laughable. When equipment is transfered out it is removed from accounts so the military asset records are accurate. Therefore it is no longer a part of military service. Military orgs spend most of their funds each fiscal year so they dont get a funding cut...so stocking up on riot control equipment is a good way to get it done.

The wording in the second part still has wiggle room...those are examples of use and not limitations.
Section 1. A and B are all that apply and you would just have a transfer authority (meaning the secretary of defense doesnt transfer anything) stationed on base.

With the exception of the armored trucks all of the equipment ive seen them use is available to the public...you just have to know where to look and be in the right state to legally own it.

It would seem Gov Nixon would be the one to focus on if charges can be filed, he is the one who has been in charge.

Lots of questions need to be not only asked but answered.

1. Can the rights of all be canceled based on the actions of one or a few.

2. How do police on the scene have the right to cancel the rights of all.

3. GWB did try to repeal Posse Comitatus Act, have they militarized the police to get around this law?

4. Do black people have civil rights? Or any rights.

5. Do public safety laws strip civilians of rights, giving all the rights to police?

6. Has the US Supreme Court with its ruling committed treason against the Constitution by giving all the rights to the police?

7. Has Congress committed treason by militarizing the police?

8. Has every president since GHB possibly Reagan committed treason against the Constitution by signing these bills into law.

The Constitution is designed to limit government power, but I see no limit to there power.

One has to really take a deeper look into why the police department has had to require this type of equipment in the first place. You see the people that committed the crimes ( the kid that robbed the store) and those that start the riots robbing other businesses, starting fires and so forth? If the police departments dont keep a handle on the barbaric actions of the under educated, the entire town or city WILL become consumed with this entire irrational behavior. But people dont see it that way, they view it as a police state beginning, Well yeah, and its directly because the populace in which thrives in those communities feel the need to steal, rape, kill and riot for whatever reason THEY feel is justified regardless of the Laws this country is all required to follow. As the population increases of those that hold no responsibility or regard to the law the need for a stronger police department is the only option these cities have to keep the adolescent behavior in check. or then entire city will become consumed by violence and gang activity. I live in a upper class part of the country , our cities do not have these military style requirements because the communities here work for what they have. The most action the police departments see here is speeding, minor drug related crimes or a DUI. Not murders, store robberies and gang violence. However 55 miles west of me in Milwaukee the police departments there need and have some armored trucks and it is due to the type of community which thrives in the not so educated parts of the city.

People need to take some appreciation in their local police departments for doing what they need to to keep the peace and those that break the laws in check or their communities will degrade quickly.
Also to note, this will do nothing to affect the president, the man is coated with Teflon.

The ACLU has been investigating the history of militarizing the police, going back to the Watts riots and the evolution of SWAT teams.

ACLU Launches Nationwide Police Militarization Investigation

The American Civil Liberties Union (ACLU) has launched a nationwide campaign to assess police militarization in the United States. Starting Wednesday, ACLU affiliates in 23 states are sending open records requests to hundreds of state and local police agencies requesting information about their SWAT teams, such as how often and for what reasons they're deployed, what types of weapons they use, how often citizens are injured during SWAT raids, and how they're funded. More affiliates may join the effort in the coming weeks.

It was during the Reagan administration that the SWAT-ification of America really began to accelerate. Reagan (and a compliant Congress) passed policies encouraging cooperation and mutual training between the military and police agencies. The president set up joint task forces in which domestic cops and soldiers worked together on anti-drug operations. And, with some help from Congress, he nudged the Pentagon to start loaning or even giving surplus military gear to law enforcement agencies. Subsequent administrations continued all of these policies -- and a number of new ones.

The war on drugs also pushed the militarization of the police, specifically funneling money to PDs through the "Berne Program." circa 1988. Then came the "1033 Program," under Clinton "which formalized and streamlined the Reagan administration's directive to the Pentagon to share surplus military gear with domestic police agencies." Then came the DHS, and massive spending programs of military hardware designated for civilian police. Under Obama the 1033 program pushed the "From Warfighter to Crimefighter" cree, military personnel to police, utilizing the same war tactics on the streets of America.

The notion Obama will face prosecution or jail time for this evolution in paramilitary police is naive. This has been the direction of this country under the past several administrations and especially Congress. They granted themselves the legal right to do this, and we voted them into office.

But when the criminals start using weapons that are used on the battlefield, then cops will have to match or exceed that. Remember when, because of the white powdery stuff, many cops changed the calibers of their weapons? Don't get me wrong though, I think a militarized [police force is a bad idea.

You guys are right on point here for the most part, and you're absolutely right that it's anything but a legal slam dunk.

Laughable as it may be to think that the authorities can be held to the letter of their own convoluted rules, my first reference is the law, and by the standards of American law enforcement it is absolutely enough to put somebody in chains and drag them in front of a judge to have to plead for their freedom, even if it is eventually granted that the government can simply give itself a generic "OK" on things that they themselves previously promised only to do after careful case by case consideration. You have indeed seized upon one of the earliest and most likely points at which the courts might refuse to hold the government to the same rigid procedural compliance that they expect of the citizenry. Never the less, a ballsy prosecutor could at least manage a catch and release on them- an important moral victory, and, in their lingo, "it gets them off the streets for a couple days at least".

And indeed if such a legal maneuver were successful it could arguably also expose every still living president with the possible exception of Jimmy Carter to the same kind of charges, along with the governor and god knows who else, and the sheer volume of officials and common practices that would be in legal jeopardy probably would cause the SCOTUS to abandon its duties under any excuse it can find, simply because the system is so thoroughly illegal that a return to legality could collapse the system.

The above seems to be what Drummerboy worries from inside the allegedly safe bubble of his moneyed, less ethnically tinged green zone, which he apparently thinks is so nice because of its own inherent goodness rather than because the majority see their communities poisoned with drugs and weapons and quarantined with military force so there's more to go around for the petit bourgeois in the areas that the government deems worthy. I wouldn't be surprised to hear someone follow such reasoning all the way to advocating a real life version of The Purge (which on some levels was just a spectacle built around the mechanics of what really is happening already (explained in another thread if you really care about that characterization of things)
I'd like to see Drummerboys neighbors all disguise themselves as poor African Americans just well enough to fool the government and see if there are still no MRAPS and machine guns in his town then. It would be telling for those who actually drink the "blame the victim" koolaid.

But whether or not it would upset the legal and social applecart beyond what the country club crowd can imagine without fainting, the fight for civil rights has been taken up very successfully in the past, and the arm of the court absolutely could be twisted into applying the law more fairly, if the threat to government authority posed by inaction exceeded the threat posed by a change in the status quo. They can get away with this for a few days in a place like Ferguson, but if all that does is make more people stand up to resist a government that will not follow the rules of its own rigged game, they could not indefinitely continue to meet protest with the incite then suppress violence model and would begrudgingly start hammering out how they can stay within the rules without completely losing control.

In so many words (I'm smart enough to do anything but be succinct) yes it's naive and idealistic and opening a huge can of worms, but it's not the fight we chose- it's the fight they've been arming for against us since back in the day when most of us were still dealing with playground bullies- and the only real options are to bow down, to go toe to toe with tanks, or to reaffirm law but not its overreaches, show the courts that we are prepared to support the least malevolent branch of government in hashing out a new balance but will not be ignored, and ultimately seek the thrill of going into court and beating the swine to death with their own monkey's fist knot of rules.

This makes me wonder when we will see, on our own soil, a news photo of a U.S.citizen standing before one of the militarized police vehicles holding nothing but shopping bags of groceries. If that day ever comes, then we as a nation have become no better than the China we derided so much at Tiananmen square.

May we never get to this point in our zeal to ferret out the "terrorist element".

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.)

You posted to loophole that would let every one get off.
I get what you are saying, that since he is standing pres that he needed to stop this which I do agree with, but unless he were to declare martial law, he can't tell the cops not to use their own stuff.
You will get lots of stars and flags tho for your title tho

a reply to: Sremmos80

Actually my point has more to do with the unitary executive theory. In the eyes of the court, the actions of executive departments, including the department of defense, are the actions of the president. That is why the EPA couldn't sue the DOD under Bush- because both departments WERE Bush and the courts cannot intervene in a persons complaint against themselves, because that is schizophrenia rather than an actual legal question. Therefore it is as if President Obama physically delivered military weapons to the police and said "use this for whatever you want" under the mistaken impression that Title 10 Section 2576a made that legal.

If the court holds that law to be constrained by its failure to meet a procedural requirement of express authorization of a specific use of the military for a specific circumstance, then President Obama willingly (not knowingly, but willingly, which is the requirement set forth in the relevant law) violated Title 18 Section 1385.

This of course does rest on the additional point that you point out about the "cops own stuff" though, which is one of the major legal hurdles to getting any further than the initial lawsuit, as section the Posse Comitatus Act would only apply if it were held that military equipment is inherently part of the army, even when ownership is transferred to the police.

This would require a court that is willing to question what makes the army the army- is it the identity of the private soldier, is it the president's authority over an armed group, or is it the arms in the service of the government, which make an army? The court would quickly find that the Army never stops being the army no matter who enlists or doesn't obviously, because the army has already been through many 100% personnel turnovers over the centuries and hasn't stopped being the army.

That leaves either the arms or the chain of command to be the thing that makes it the army. The court might hopefully be capable of recognizing that the arms are the essential element of even so much as being able to write down the word army, much less field one, but they'd still feel compelled to examine the role of the chain of command as well, especially since Posse Comitatus was explicitly passed in the first place to prevent the president from militarily enforcing the constitution on the southern states and allow them to resume oppression of African-Americans. This would seem to suggest that the separation of state and federal power is a key element of Posse Comitatus, and admittedly it doesn't bode well for my position. However, given the heinous consequences of that historical episode, the court may feel it to be a precedent which deserves to be broken. The court might do this by asking what would have been the legal implications of President Hayes betraying the South after making the Posse Comitatus deal to get his electoral victory certified, by withdrawing the troops but leaving the weapons, just in the hands of African Americans rather than federal troops, so that they could enforce their new federally recognized civil rights for themselves. The court could only conclude that such a move in 1876, while it would have removed the chain of command between the President and the occupation, would have left the South under a defacto occupation which subjugated their internal political process to the will of the federal government. And therefore that the arms are more important than the chain of command, but that the intent with which the arms are used is relevant, and that if those federal arms are used to subvert the will of the local citizenry, that it is a violation of the intent of Posse Comitatus.

As you probably see, that argument would favor my side quite well if a court were willing to entertain it, since today the shoe is on the other foot, and the federal arms which could not be used regardless of chain of command to subvert the unconstitutional will of the people in 1876 most certainly cannot be used regardless of chain of command to subvert the constitutional will of the people today. The court could not miss the fact that ruling otherwise, in consideration of these factors, would be departing from precedent to ensure that the injustices of 1876 live on into the 21st century.

a reply to: The Vagabond

A point you overlooked in your putting together this argument of "what constitutes an army" is the name itself. The term "army" has the root "arm" within it. Just as the 2nd Amendment refers to "arms" meaning weapons, an "army" is at its root the arms under which the men carry out the will of the president. Without those "arms" an army has no power.

So, it does seem that arms are a key to attempts to close the legal loophole around the Posse Comitatus Act. If the president authorizes the transfer of arms (i.e. military grade weapons created and manufactured solely for use by the U.s. Military) to a civil police force, then that act could be considered a conversion of the civil force to a military force (i.e. an "army"), and would possibly be in breach of the Posse Comitatus Act itself.

A very interesting perspective, don't you agree?

reply to: Krakatoa
I agree 100% and as I said the court would hopefully not miss that arms are integral to even writing down the word army, much less deploying one. I simply didn't want to hang my hat just on that cause the question then becomes if by the same token the unorganized militia must be regarded as the army as well and has potentially very far reaching second amendment implications that could undermine that point of there weren't additional qualifying factors

a reply to: The Vagabond

I'm wondering if there is anything in the more recent laws that made amendments or changes to these older ones.

The Patriot Act?
I'd have to work through it again, it's been years since I did it the first time. . . I think it's in Title 1, not sure Enhancing Domestic Security. . .

There have been amendments:

Wiki Link - I'm trying to be quick I hate wiki

The Security and Freedom Enhancement (SAFE) Act is legislation proposed by Senators Larry Craig (R-ID), John E. Sununu (R-NH) and Richard Durbin (D-IL) which would add checks and balances to the USA PATRIOT Act. This legislation, which was introduced in the House on April 6, 2005, would curtail some powers of the USA PATRIOT Act by requiring court reviews and reporting requirements.

The SAFE Act would also revise the definition of "terrorist" to exclude certain groups of people such as anti-war protesters and abortion demonstrators.

This legislation was introduced to provide an alternative to the USA PATRIOT Act that some felt was too overreaching in its effort to fight terrorism.

It doesn't fully define which 'groups' are excluded.

I've got to run will get back to it later, AB

a reply to: AnteBellum

There were posse comitatus changes during the Bush administration, mostly repealed now, and of course the use of vacuous terms like "terrorism" is a time tested catch all for the government that allows almost any law to mean almost anything.

However for exactly that reason I doubt that there is anything specific with enough meat on it's bones to kill this argument before it's day in court if there were to be a victim bringing a suit. If there is, I imagine it would be in the character of protecting the government from torts arising from circumstances related to terrorism or counter terrorism. I'll have to see.

a reply to: The Vagabond

Tell me about it, when they first wrote it up I thought they replaced the word 'terrorist' for the phrase 'everyone we don't like' just to make it more palatable to us.

If I run across anything I will post it, but I agree specifics are hard to find especially when they create laws/bills that are deliberately written to not be understood.