The Posse Comitatus Act (If you didn't know what it is)

The Posse Comitatus Act is a federal law of the United States (18 U.S.C. § 1385) passed in 1878, after the end of Reconstruction, and was intended to prohibit Federal troops from supervising elections in former Confederate states. It generally prohibits Federal military personnel and units of the United States 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 original act only referred to the Army, but the Air Force was added in 1956 and the Navy and Marine Corps have been included by a regulation of the Department of Defense. This law is mentioned whenever it appears that the Department of Defense is interfering in domestic disturbances.

* National Guard units while under the authority of the governor of a state; * Troops when used pursuant to the Federal authority to quell domestic violence as was the case during the 1992 Los Angeles riots; * The President of the United States can waive this law in an emergency; * In December 1981 additional laws were enacted (codified 10 USC 371-78) clarifying permissible military assistance to civilian law enforcement agencies—including 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, aircraft, intelligence, tech aid, surveillance) while generally prohibiting direct participation of DoD personnel in law enforcement (e.g., search, seizure, and arrests). For example, Coast Guard Law Enforcement Detachments (LEDETS) serve aboard Navy vessels and perform the actual boardings of interdicted suspect drug smuggling vessels and, if needed, arrest their crews. * Under 18 USC 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 threat involving the release of nuclear materials, such as potential use of a Nuclear or Radiological weapon. Such assistance may be by any personel under the authority of the Department of Defense, provided such assistance does not adversely affect US military preparedness.

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.

I heard about here at FR and looked it up.

1878 Military Law Gets New Attention

Nov 24, 2001 - This bit of relative antiquity defines the role of the US Military in our lives and keeps us from becoming little more than a wealthy banana republic.

Currently, America's military is largely prohibited from acting as a domestic police force. And while the presence of military "advisors" during the siege, brutality and slaughter at WACO Texas set ominous trends in motion, few thought in terms of its implications. But that was before the terrorism of September 11, 2001, now glibly called "911."

"Our way of life has forever changed,'' wrote Sen. John Warner R-Va., in an October 2001 letter to Defense Secretary Donald Rumsfeld. "Should this law [Posse Comitatus Act] now be changed to enable our active-duty military to more fully join other domestic assets in this war against terrorism?''

The law, was championed by far-sighted Southern lawmakers in 1878. They had experienced a fifteen year military occupation by the US Army in post-Civil War law enforcement. They understood the heel of a jackboot.

In a nutshell, this act bans the Army, Navy, Air Force and Marines from participating in arrests, searches, seizure of evidence and other police-type activity on U.S. soil. The Coast Guard and National Guard troops under the control of state governors are excluded from the act.

Deputy Defense Secretary Paul Wolfowitz, testifying in October before the Senate Armed Services Committee, agreed that it might be desirable to give federal troops more of a role in domestic policing to prevent terrorism. "In certain cases we can do more than anyone else in the country because of the special capabilities that we have,'' he said.

Dennis Corrigan, a retired colonel who taught the law at the Army's Judge Advocate General's school, says legislators should resist the urge to change it. The military isn't trained to be a police force, he says, so it should stick to the skills for which it is trained: surveillance, information gathering, logistical support. All of these activities are allowable under Posse Comitatus. "I'm not sure, even with what's going on today, that Congress wants the military arresting people.''

But Michael Spak, former Army JAG colonel now teaching at Chicago-Kent College of Law had another spin. "It's good for the law to tell the truth and for everybody to follow the law,'' he said. "But is it necessary? No.''

Many American politicians and bureaucrats hold what might be called a "Consumerist" interpretation of freedom. In a nation where liberty is defined by the ability to choose from a variety of breakfast cereals, it may not be long before the supermarket cash register will be nicknamed "Checkpoint Charlie."

Michael G. Leventhal - Editor/Publisher

Two things:

I guess we had no rights before 1878. Of course we did. So why was it passed in 1878?

I believe there was a very close election round about that time, a Presidential election.

Back in 1876, the Civil War had been over for only eleven years. Black men had finally won the right to vote, but Southern whites were vigorously attempting to regain their power over their state legislatures.

The presidential election of 1876 was perhaps the most disputed presidential election in American history.

Deep sectional antagonisms still divided the nation, with the industrial and commercial North mostly supporting Republicans, and the White South supporting the Democrats. The Republican presidential candidate in 1876 was Rutherford B. Hayes, the governor of Ohio.

The Democratic challenger, Governor Samuel J. Tilden of New York, was widely favored to defeat Hayes. In the general election in November 1876, Tilden appeared to be the victor. He carried the national popular vote by 300,000. In the Electoral College, Tilden won 184 votes, to only 165 votes for Hayes, with twenty disputed electoral votes hanging in the balance. If Tilden had received only one of the disputed electoral votes, he would have been declared the winner. Hayes needed to win all 20 disputed electoral votes to become president.

These 20 electoral votes were in dispute: in three states (Florida, Louisiana, and South Carolina) each party reported its candidate had won the state, while in Oregon one elector was declared illegal (on account of being an "elected or appointed official") and replaced.

In Florida (4 votes), Louisiana (8) and South Carolina (7), official returns favored Tilden, but election results in each state were marked by fraud and threats of violence against Republican voters. The Republican-dominated state electoral commissions subsequently disallowed a sufficient number of Democratic votes to award their electoral votes to Hayes.
In Oregon meanwhile just a single elector was disputed. The statewide result clearly had favored Hayes, but the state's Democratic Governor (LaFayette Grover) claimed that that elector, just-former postmaster John Watts, was constitutionally ineligible to vote since he was an "elected or appointed official". Grover then substituted a Democratic elector in his place. The two Republican electors dismissed Grover's action and each reported three votes for Hayes, while the Democratic elector, C. A. Cronin, reported one vote for Tilden and two votes for Hayes. (Ultimately, all three of Oregon's votes were awarded to Hayes.)

Compounding the national crisis were widespread allegations of voter fraud, especially in Florida. There was evidence of ballot tampering, with hundreds of ballots being destroyed or never counted. The political stalemate over who would become president threatened to plunge the country into a second Civil War.

Facing a constitutional crisis the likes of which the nation had never seen, on January 29, 1877 the U.S. Congress passed a law forming a 15-member Electoral Commission to settle the result. Five members came from each house of the U.S. Congress, and they were joined by five members of the United States Supreme Court. William M. Evarts served as counsel for the Republican Party.

The majority party in each house received three of the five members, and the five Supreme Court justices were chosen as follows: two from each of the major parties and another judge selected by these four to cast the swing vote.

The justices first selected Justice David Davis, but he was elected to the Senate by Illinois' state legislature, forcing them to choose an alternate, Justice Joseph P. Bradley, who, although a Republican, was considered the most impartial remaining member of the court. This selection proved decisive however. Only several days prior to the date set for the presidential inauguration, a deal was reached between Republicans and Democrats...

Bradley joined the other seven Republican committee members in deciding the 20 disputed electoral votes, giving Hayes a 185-184 electoral vote victory.

The "Compromise" of the election of 1876 actually represented a kind of electoral coup d'etat. The Republican candidate Hayes was selected to become president. The Federal government pulled thousands of Union troops out of the South, where they had been stationed since the fall of the Confederacy more than a decade earlier. The Compromise stated that the principle of states' rights would determine the future legal and political status of African Americans. In the language of that era, the so-called "Negro Question" was to become a "Southern Question." The white South was given a free hand to set the parameters of black freedom.

The consequences of the Compromise of 1876-1877 were profound and long-lasting. A Civil Rights Act which had been passed by Congress in 1875 was repealed in 1883. Jim Crow segregation was soon institutionalized throughout the South. Hundreds of thousands of African American men were purged from voters rolls, or were denied the right to cast ballots by local police intimidation and literacy restrictions. White vigilante violence was widely employed to suppress the black community. The Supreme Court confirmed the racist principle of "separate but equal" with its legal decision Plessy v. Ferguson in 1896. It would take nearly a century for black America to recover.

Posse Comitatus Act was part of the deal of pulling out Federal Troops from the south thus allowing Mr. Jim Crow to retake the South for many decades.

We didn't need the Posse Comitatus Act before the 1870s and we don't need it now.

the military follow the orders they receive, whether there is an enacted law or not.

I appreciate the historical perspective of Posse Comitas as it relates to the Hayes controversy. Injustice against former slaves and other people of color was rampant for nearly a century in the north as well as in the south. (Boston saw some of the worse racism in the country during the 60's.)

The Posse Comitas act, however, is not simply a political expedient of southern bigotry.

The Civil War effectively Federalized the entire South and placed it under the jurisdiction of the military. This was unacceptable under the Constitution. A grave principle was at stake. Should the US military be permitted to suspend the Constitution?

The principle of State succession had been determined by the outcome of the war between the states. Were there to be any limits put on the use of military force against rogue States or fellow countrymen? Posse Comitas ensued from that dilemma.

In the current era FEMA has the authority to enforce Martial Law and to employ the services of the military. This is in keeping with the spirit of Posse Comitas. Civilian authority remains in control of the military.

The President has acted with restraint. The military has been used in LA for search and rescue freeing the State National Guard to act as law enforcement. Bush insisted that the Gaurd be placed under FEMA to ensure coordination. The Governor balked. It was, however, the Governor's utter incompetence to direct the Guard that led to the catastrophe for which the President has received the blame.

As this story unfolds it remains to be seen if the state of Lousiana has the political leadership to rebuild its state with Federal dollars. Federal leadership, for the present, is the only hope.

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