Posse Comitatus Act

From Wikipedia, the free encyclopedia

This article needs additional citations for verification. Please help improve this article by adding reliable references (ideally, using inline citations). Unsourced material may be challenged and removed. (December 2008)

This article includes a list of references or external links, but its sources remain unclear because it has insufficient inline citations. Please help to improve this article by introducing more precise citations where appropriate. (December 2008)

The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385) passed on June 16, 1878 after the end of Reconstruction, with the intention (in concert with the Insurrection Act of 1807) of substantially limiting the powers of the federal government to use the military for law enforcement. The Act prohibits most members of the federal uniformed services (today the Army, Air Force, and State National Guard forces when such are called into federal service) from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order" on non-federal property (states and their counties and municipal divisions) within the United States.

The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act.

[edit] History

The Act was a response to, and subsequent prohibition of, the military occupation by U.S. Army troops of the former Confederate States during the ten years of Reconstruction (1867–1877) following the American Civil War (1861–1865). Federal troops were withdrawn from Southern states as a result of a compromise in one of the most disputed national elections in American history, the 1876 U.S. presidential election. Samuel J. Tilden of New York, the Democratic candidate, defeated Republican candidate Rutherford B. Hayes of Ohio in the popular vote, garnering 184 electoral votes to Hayes' 165, with 20 disputed electoral votes left uncounted. After a bitter fight, a deal was struck resolving the dispute and awarding the presidency to Hayes.

In return for Southern acquiescence in conceding to Hayes, Republicans withdrew federal troops from the states of the former Confederacy, ending Reconstruction. Known as the Compromise of 1877, this deal of political expediency removed federal protection for Southern ex-slaves.^[1] With the end of Reconstruction, Southern states were free to enact laws barring African Americans from serving in government and eventually from voting (e.g., poll taxes and grandfather clauses). Segregated, disenfranchised, and free to move north or west if desired, African Americans in the South maintained their second-class citizenship, or in many instances de facto slavery to the political and economic order of the postbellum "Jim Crow" South.^[1]

The U.S. Constitution places primary responsibility for the holding of elections in the hands of the individual states. The maintenance of peace, conduction of orderly elections, and prosecution of unlawful actions are all state responsibilities, pursuant to the states' primary job of exercising police power and maintaining law and order.

It is thought by some that in the former Confederate states, during the local, state, and federal elections of 1874 and 1876, the state governments and their county and local municipalities had deliberately chosen not to exercise their police powers to maintain law and order.^{[citation needed]} Some suggest as a result, many acts of violence and a suppression of the vote of some political and racial groups resulted in the election of state legislators and U.S. congressmen who theoretically may have not been elected otherwise.^[1]

When the U.S. Representatives and Senators selected by the legislatures of the former Confederate States reached Washington, they set as a priority the creation of a statute prohibiting a future President or Congress from directing by military order or federal legislation the re-imposition of federal troops. It had been less than 100 years prior that early American settlers had dealt with the imposition of government troops in their cities and lands. Some considered the presence of government troops to be oppressive in nature.

The original Posse Comitatus Act referred essentially to the United States Army. To further preserve freedom, the Air Force was added in 1956, and the Navy and the Marine Corps have been included by a regulation of the Department of Defense. The United States Coast Guard, when acting in its peacetime capacity (originally as part of the Department of Transportation, now within the Department of Homeland Security), is not included in the Act. However, if in wartime, a portion of the Coast Guard were subsumed within the Department of the Navy, as it was during World War II, that portion would lose its federal police power authority and responsibility over the federal law enforcement duties of its civilian mission. This law is often relied upon when the Department of Defense interferes in domestic disturbances.^{[citation needed]}

[edit] Legislation

The text of the relevant legislation is as follows:

18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus

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.

Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):

10 U.S.C. § 375. Restriction on direct participation by military personnel

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

[edit] Recent legislative events

On September 26, 2006, President Bush urged Congress to consider revising federal laws so that the U.S. military could seize control immediately in the aftermath of a natural disaster, in the wake of Hurricane Katrina.

These changes were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on Oct 17, 2006, subsequently repealed in their entirety.^[2]

Section 1076 is titled "Use of the Armed Forces in major public emergencies". It provided that:

The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.^[3]

The actual text is on pages 322–323 of the legislation.

As of 2008, these changes have been repealed in their entirety, reverting to the previous wording of the Insurrection Act.

[edit] Exclusions and limitations

There are a number of situations in which the Act does not apply. These include:

• National Guard units while under the authority of the governor of a state;
• Troops used under the order of the President of the United States pursuant to the Insurrection Act, as was the case during the 1992 Los Angeles Riots.
• Under 18 U.S.C. § 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if civilian law enforcement is inadequate to address certain types of threats involving the release of nuclear materials, such as potential use of a nuclear or radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect U.S. military preparedness.

[edit] Exclusion applicable to U.S. Coast Guard

See the Law Enforcement Detachments and Missions of the United States Coast Guard for more information on U.S. Coast Guard law enforcement activities

Although it is a military force,^[4], the U.S. Coast Guard, which operates under the Department of Homeland Security is not covered by the Posse Comitatus Act. The Coast Guard enforces U.S. laws, even when operating as a service for the U.S. Navy.

In December 1981, additional laws were enacted clarifying permissible military assistance to civilian law enforcement agencies and the Coast Guard, especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (e.g., use of facilities, vessels, and aircraft, as well as intelligence support, technological aid, and surveillance) while generally prohibiting direct participation of Department of Defense personnel in law enforcement (e.g., search, seizure, and arrests). For example, a U.S. Navy vessel may be used to track, follow and stop a vessel suspected of drug smuggling, but Coast Guard Law Enforcement Detachments (LEDETS) aboard the Navy vessel would perform the actual boarding and, if needed, arrest the crew.^{[citation needed]}

[edit] Homeland security

On October 1, 2008, the US Army announced that the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response force for natural or man-made emergencies and disasters, including terrorist attacks.

This marks the first time an active U.S. Army unit will be given a dedicated assignment to NORTHCOM, where it is stated they may be "called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack." These soldiers will also learn how to use non-lethal weapons designed to "subdue unruly or dangerous individuals" without killing them, and also includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and beanbag bullets.^[5] However, the "non-lethal crowd control package [...] is intended for use on deployments to the war zone, not in the U.S. [...]".^[5]

The US military will have around 20,000 uniformed personnel in this role in the United States by 2011, specifically trained and equipped to assist state and local government, respond to major disasters, terrorist attack, other major public emergencies.^[6] This shift in strategy is a result of recommendations by Congress and outside experts.^[6] This response capability is not new, but now accompanies a permanent assignment of forces to NORTHCOM.

This formalizes a role for the use of federal troops within the United States during major public emergencies and disasters, as was the case in the aftermath of Hurricane Katrina in 2005.^[5] This has raised concern about the relationship between Posse Comitatus and the use of the military in domestic disaster support and homeland defense roles.^[7]. However, federal military forces have a long history of domestic roles.^[8] The Posse Comitatus Act prohibits the use of federal military forces to "execute the laws"; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to conventional law enforcement.^[1]

On December 10, 2008, the California Highway Patrol announced its officers, along with San Bernadino Sheriff's Department deputies and US Marine Corps Military Police, would jointly staff some sobriety and drivers license checkpoints.^[9] However, the Marines at the checkpoints are not arresting individuals or enforcing any laws, which would be a violation of the Posse Comitatus Act.^[10] A spokesperson said that the Marines were present to observe the checkpoint to learn how to conduct checkpoints on base, to help combat the problem of Marines driving under the influence. The Marines at a recent checkpoint learned techniques to conduct sobriety checkpoints and field sobriety tests.^[10]

On March 10, 2009, active duty Army military police troops from Fort Rucker were deployed to Samson, Alabama in response to a murder spree. Samson police officials confirmed the troops' presence, but it remains unclear who requested the troops and under what authority they were deployed. The governor of Alabama did not request military assistance and President Obama did not authorize their deployment. According to police officials, the soldiers were involved in traffic control and securing the crime scene. An investigation into possible violations of several federal laws including the Posse Comitatus Act, is underway.^[11]

[edit] Latin etymology

Posse Comitatus (Latin): Power of the county. The whole force of the county: that is, all the male members of a county over fifteen, who may be summoned by a sheriff to assist in preventing a riot, the rescue of prisoners, or other unlawful disorders. Clergymen, peers, and the infirm are exempt.^[12]

[edit] See also

• List of military actions by or within the United States
• United States Northern Command
• Military Cooperation with Civilian Law Enforcement Agencies Act

[edit] References

[edit] Bibliography

Lindorff, David. "Could It Happen Here?". Mother Jones magazine, April 1988.

[edit] External links

• 18 U.S.C. § 1385 - Use of Army and Air Force as Posse Comitatus
• The Myth of Posse Comitatus (Craig T. Trebilcock)
• The Posse Comitatus Act: A Principle in Need of Renewal, Washington University Law Quarterly Vol 75 No. 2
• Mold, Mildew, and the Military Role in Disaster Response, JURIST
• John Warner National Defense Authorization Act for Fiscal Year 2007
• Text of H.R. 5122