Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

The Posse Comitatus Act: Liberation from the Lawyers
Parameters ^ | 2004 | Gary Felicetti and John Luce

Posted on 03/12/2009 10:47:21 PM PDT by occamrzr06

Much has been written about the Posse Comitatus Act. As a few others have noted, much of this commentary is “just plain nonsense.”2 The majority opinion, however, including that of the Department of Defense, maintains that this 19th-century law strictly limits almost all DOD participation in any activity related to “law enforcement” or “homeland security.”3 This fundamental mischaracterization, while understandable, is potentially dangerous to national security and has done nothing to protect civil liberties. So how did a racist law from the bitter Reconstruction period morph, in many minds, into shorthand for the respected principle that Americans do not want a military national police force? In a nutshell: deliberate mischaracterization by the original supporters who hid behind patriotic language to strip the freed slaves of their nascent civil and voting rights; excessive focus on the false historical arguments as opposed to the law’s actual text and ugly history; and some bad policy that misused a few key court decisions, and part of a statute, in a way that limited DOD efforts in the “war on drugs” at a time when Congress was pushing expanded participation. This article introduces the actual history and meaning of the Posse Comitatus Act, distinguishing clearly between the law and a misleadingDOD regulation that requires an army of lawyers to navigate. Despite what you’ve heard, the Posse Comitatus Act is not a significant impediment to DOD participation in law enforcement or homeland security.

(Excerpt) Read more at carlisle.army.mil ...


TOPICS: Constitution/Conservatism; Culture/Society; Foreign Affairs; Government
KEYWORDS: possecomitatus

1 posted on 03/12/2009 10:47:21 PM PDT by occamrzr06
[ Post Reply | Private Reply | View Replies]

To: occamrzr06

A lot has been said on this subject the last few days.

This article describes how this “ACT” (it’s not part of the Constitution) came about, how it has changed and possibly where it may go. Well the where it may go is my own interpretation.

Enjoy, comment, inform.

I didn’t know all this and I spent 26 years in the service.


2 posted on 03/12/2009 10:50:49 PM PDT by occamrzr06
[ Post Reply | Private Reply | To 1 | View Replies]

To: occamrzr06

Well, to me the later interpretation, that the Act disallows LEO duties by the Armed Forces is a inherently good thing.

Now AFAIK, the PCA does not cover the Navy or the Marines as the Act specifies the Army only, the Air Force also would not be covered unless the DoD guidelines also specify that.


3 posted on 03/12/2009 10:58:52 PM PDT by padre35 (You shall not ignore the laws of God, the Market, the Jungle, and Reciprocity Rm10.10)
[ Post Reply | Private Reply | To 2 | View Replies]

To: padre35

You did not read it all Padre, and you want us to go to services every Sunday!

The Posse Comitatus Act’s Meaning in the 21st Century
While no one has ever been convicted of violating the Posse Comitatus
Act, its surviving portion remains a criminal law. As with most criminal
laws, the Act has several action elements and one element going to the defendant’s
mental state or mens rea. Adefendant must act “willfully” or he did not
violate the law.
Depending on many factors, “willfully” can mean that the defendant
knowingly performed an act, deliberately and intentionally, or that the accused
acted with knowledge that his conduct was generally unlawful. If the
proscribed conduct could honestly be considered innocent, then a willful
mens rea may require the defendant to have more specific knowledge of the
law being violated. A higher standard for willfulness probably should apply
to the Posse Comitatus Act, given that DOD’s lead instruction on the topic
significantly misstates the law.
With the definition of willfulness in place and the historical record in
mind, the Posse Comitatus Act becomes:
Whoever, except in cases and under circumstances expressly authorized
by the Constitution or Act of Congress,
(1) intentionally and with a bad purpose to either disobey or disregard
the law
(2) uses any part of the Army or Air Force
(3) within the United States
(4) upon the demand of, and in subordination to, the sheriff, US marshal,
or other law enforcement official
(5) to directly enforce civilian law in a way that US citizens are subject
to the exercise of military power which is regulatory, proscriptive,
or compulsory in nature, or at a polling place
(6) without first obtaining permission of the President to do so, shall
be fined under this title or imprisoned not more than two years,
or both.
Unlike the DOD policy that purports to be based on the Posse Comi


4 posted on 03/12/2009 11:01:54 PM PDT by occamrzr06
[ Post Reply | Private Reply | To 3 | View Replies]

To: occamrzr06
Despite what you’ve heard, the Posse Comitatus Act is not a significant impediment to DOD participation in law enforcement...

If it's not, it should be.

5 posted on 03/12/2009 11:07:23 PM PDT by GoldStandard
[ Post Reply | Private Reply | To 1 | View Replies]

To: GoldStandard

Why do you think that?

Did you read the whole article?


6 posted on 03/12/2009 11:08:37 PM PDT by occamrzr06
[ Post Reply | Private Reply | To 5 | View Replies]

To: All
Well I got “volunteered” to be a security forces augmentee for awhile while in the USAF.

Our authority Began and ended at the GATE...No Exception was granted unless we were Invited by the law enforcement outside.. and we knew THAT would never be allowed to happen.

Use of Military Force for law enforcement is not a good idea. But that paper just simply tries to rationalize the concept.

7 posted on 03/12/2009 11:35:00 PM PDT by Kitanis
[ Post Reply | Private Reply | To 6 | View Replies]

To: GoldStandard

My understanding of this law is that the military can not loan or use their military equipment to help law enforcement in any law enforcement manner without the President of the United States signing off on it. Janet Reno got in trouble over this in Waco!


8 posted on 03/12/2009 11:46:46 PM PDT by tallyhoe
[ Post Reply | Private Reply | To 5 | View Replies]

To: tallyhoe
"My understanding of this law is that the military can not loan or use their military equipment to help law enforcement in any law enforcement manner without the President of the United States signing off on it. Janet Reno got in trouble over this in Waco!"

Defending the borders would not fall into this act however. Put the military on our southern border and let them do their job.

9 posted on 03/12/2009 11:52:13 PM PDT by blackbart.223 (I live in Northern Nevada. Reid doesn't represent me.)
[ Post Reply | Private Reply | To 8 | View Replies]

To: tallyhoe

Whoever provided those tanks and helicopters should still be sitting in prison today. And Janet Reno should be in the next cell.


10 posted on 03/13/2009 12:16:25 AM PDT by DoughtyOne (Resolved: Gregg, McCain, Snowe, Spectre: 2010, Collins, Graham: 2014)
[ Post Reply | Private Reply | To 8 | View Replies]

To: DoughtyOne
"And Janet Reno should be in the next cell."

That might fall under cruel and unusual punishment.

11 posted on 03/13/2009 12:22:34 AM PDT by blackbart.223 (I live in Northern Nevada. Reid doesn't represent me.)
[ Post Reply | Private Reply | To 10 | View Replies]

To: blackbart.223

Okay, put her in the same cell. LMAO...


12 posted on 03/13/2009 12:28:35 AM PDT by DoughtyOne (Resolved: Gregg, McCain, Snowe, Spectre: 2010, Collins, Graham: 2014)
[ Post Reply | Private Reply | To 11 | View Replies]

To: DoughtyOne
"Okay, put her in the same cell. LMAO..."

That would solve the problem of unsolicited sex in prison. But it would still be cruel and unusual punishment.

13 posted on 03/13/2009 12:34:00 AM PDT by blackbart.223 (I live in Northern Nevada. Reid doesn't represent me.)
[ Post Reply | Private Reply | To 12 | View Replies]

To: blackbart.223

Yes, we’d have to face down the human rights people.


14 posted on 03/13/2009 12:39:46 AM PDT by DoughtyOne (Resolved: Gregg, McCain, Snowe, Spectre: 2010, Collins, Graham: 2014)
[ Post Reply | Private Reply | To 13 | View Replies]

To: DoughtyOne
"Yes, we’d have to face down the human rights people."

Also cruel and unusual punishment. But aimed at us.

15 posted on 03/13/2009 12:44:40 AM PDT by blackbart.223 (I live in Northern Nevada. Reid doesn't represent me.)
[ Post Reply | Private Reply | To 14 | View Replies]

To: DoughtyOne

I agree they broke the law and killed a lot of innocent people. What gets me they could have picked up David any morning when he was jogging!


16 posted on 03/13/2009 1:09:31 AM PDT by tallyhoe
[ Post Reply | Private Reply | To 10 | View Replies]

To: blackbart.223

No problem they just can’t be used for Drug bust with the police!


17 posted on 03/13/2009 1:10:31 AM PDT by tallyhoe
[ Post Reply | Private Reply | To 9 | View Replies]

To: tallyhoe
"No problem they just can’t be used for Drug bust with the police!"

Agreed. Sort of. If a hostile force attempts to cross the border they are fair game in my opinion. Their reason does not matter to me. However protecting the borders should be a military matter not a law enforcement one. Read the Constitution.

18 posted on 03/13/2009 1:20:37 AM PDT by blackbart.223 (I live in Northern Nevada. Reid doesn't represent me.)
[ Post Reply | Private Reply | To 17 | View Replies]

To: padre35

The Posse Comitatus Act only applies to the use of the military against citizens, it does not apply to illegal aliens or foreign combatants on U.S. soil or U.S. territorial waters.


19 posted on 03/13/2009 1:24:15 AM PDT by Sir Francis Dashwood (Arjuna, why have you have dropped your bow???)
[ Post Reply | Private Reply | To 3 | View Replies]

To: occamrzr06

“did you just call someone a pussie communist?” quick name the movie


20 posted on 03/13/2009 1:44:35 AM PDT by madamemayhem (proper grammar and spelling please, boys and girls.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: occamrzr06

What this means is that the Obama Liberatti are
preparing the way for use of the military to control
dissent in this country. This ‘act’ stands in the way.
These people are out to totally suppress anything that
protects freedom.


21 posted on 03/13/2009 2:13:58 AM PDT by Gaffer
[ Post Reply | Private Reply | To 2 | View Replies]

To: Sir Francis Dashwood
I would disagree. The PCA forbids the DoD services from making arrests. Coast Guardsmen can make arrests because they are agents of the customs and revenue authority, but are authorized under a different title of the U.S. code than the DoD services.

In any case, the military cannot make arrests except on property under the exclusive jurisdiction of the U.S. On the border, the Army could only detain and wait for law enforcement personnel to make arrests.

22 posted on 03/13/2009 3:06:37 AM PDT by GAB-1955 (Kicking and Screaming into the Kingdom of Heaven!)
[ Post Reply | Private Reply | To 19 | View Replies]

To: Gaffer

Articles in Parameters do not reflect the official position of the Department of the Army or the U.S. government. It’s a think tank publication.


23 posted on 03/13/2009 3:07:32 AM PDT by GAB-1955 (Kicking and Screaming into the Kingdom of Heaven!)
[ Post Reply | Private Reply | To 21 | View Replies]

To: GAB-1955

I am not talking about arrests...


24 posted on 03/13/2009 4:04:00 AM PDT by Sir Francis Dashwood (Arjuna, why have you have dropped your bow???)
[ Post Reply | Private Reply | To 22 | View Replies]

To: occamrzr06

Posse Comitatus Act was passed to help military commanders stay within their financial operating budgets. After the Civil War, most Southern states has no money and a decimated public service sector. The governors of the states and mayors of the cities and towns began requesting federal troops every time they needed to chase after anyone committing a crime from murders to shoplifting. The local military commanders could not keep up with the demands and asked Congress for help. The Posse Comitatus Act was the result and the local and state governments had to provide their own law enforcement organizations after that.
The purpose, intent and history of the Posse Comitatus Act has been twisted by teachers and other liberals ever since.
But we all know how a teacher would never tell you a slanted story, don’t we?


25 posted on 03/13/2009 4:42:42 AM PDT by BuffaloJack (To stand up for Capitalism is to hope Obama fails.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: blackbart.223

Agreed...


26 posted on 03/13/2009 8:39:52 AM PDT by DoughtyOne (Resolved: Gregg, McCain, Snowe, Spectre: 2010, Collins, Graham: 2014)
[ Post Reply | Private Reply | To 15 | View Replies]

To: tallyhoe

Yes they could. That first BATF raid should have resulted in criminal charges being leveled against the BATF. Both the BATF and the FBI destroyed my trust at Waco. I will never again listen to anything they say, without thinking it’s probably a big pack of lies.

The testimony in Congress was riddled with lies.

The calloused disregard for the safety of the children was mind boggling, and the lack of complain from any child protective services types, lets you know how seriously they take their mandate.

Waco is the classic case of abuse of power, from the begging to the so-called investigations. It was all one great big cluster —— of the people at Waco, and the U.S. Citizens.


27 posted on 03/13/2009 8:44:29 AM PDT by DoughtyOne (Resolved: Gregg, McCain, Snowe, Spectre: 2010, Collins, Graham: 2014)
[ Post Reply | Private Reply | To 16 | View Replies]

To: blackbart.223

Agreed The Military should patrol the southern border with shoot to kill orders!


28 posted on 03/13/2009 1:32:37 PM PDT by tallyhoe
[ Post Reply | Private Reply | To 18 | View Replies]

To: GAB-1955

A think tank publication from a group working against freedom.


29 posted on 03/13/2009 3:53:34 PM PDT by Gaffer
[ Post Reply | Private Reply | To 23 | View Replies]

To: tallyhoe
"Agreed The Military should patrol the southern border with shoot to kill orders!"

That is would should happen. I doubt it will.

30 posted on 03/14/2009 10:15:14 PM PDT by blackbart.223 (I live in Northern Nevada. Reid doesn't represent me.)
[ Post Reply | Private Reply | To 28 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson