Posse Comitatus Act

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This article is part of the Center for Media & Democracy's focus on the fallout of nuclear "spin."

The means of defense against foreign danger historically have become
the instruments of tyranny at home.
--James Madison.

Posse Comitatus Act
According to a U.S. Northern Command (USNORTHCOM) Fact Sheet:

"The 'Posse Comitatus Act' (PCA), Title 18 of the U.S. Code (USC), Section 1385, states:

"'Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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."

"Department of Defense (DoD) Directive 5525.5 extended the PCA to the U.S. Navy and U.S. Marine Corps. The PCA does not apply to the U.S. Coast Guard.

"The PCA generally prohibits U.S. military personnel from interdicting vehicles, vessels and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities. Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military's role in domestic affairs.

"However, Congress has enacted a number of exceptions to the PCA that allow the military, in certain situations, to assist civilian law enforcement agencies in enforcing the laws of the United States. The most common example is counterdrug assistance (Title 10 USC Sections 371-382). Other examples include:

  • "The Insurrection Act (Title 10 USC Sections 331-334). This act allows the President to use U.S. military personnel at the request of the State Legislature or Governor to suppress insurrections. It also allows the President to use federal troops to enforce federal laws when rebellion against the authority of the United States makes it impracticable to enforce the laws of the U.S.
  • "Assistance in the case of crimes involving nuclear materials (Title 18 USC Section 831). This statute permits DoD personnel to assist the Justice Department in enforcing prohibitions regarding nuclear materials, when the Attorney General and the Secretary of Defense jointly determine that an 'emergency situation' exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies.
  • "Emergency situations involving chemical or biological weapons of mass destruction (Title 10 USC Section 382). When the Attorney General and the Secretary of Defense jointly determine that an 'emergency situation' exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies, DoD personnel may assist the Justice Department in enforcing prohibitions regarding biological or chemical weapons of mass destruction.

"Military support to civilian law enforcement is carried out in strict compliance with the Constitution and U.S. laws and under the direction of the President and Secretary of Defense."

2005: In the Case of an Epidemic

On October 4, 2005, President George W. Bush asked Congress "to consider giving him powers to use the military to enforce quarantines in case of an avian influenza epidemic." [1]

"'If we had an outbreak somewhere in the United States, do we not then quarantine that part of the country? And how do you, then, enforce a quarantine?' Bush asked at a news conference. 'It's one thing to shut down airplanes. It's another thing to prevent people from coming in to get exposed to the avian flu. And who best to be able to effect a quarantine?' Bush added. 'One option is the use of a military that's able to plan and move. So that's why I put it on the table. I think it's an important debate for Congress to have.'" [2]

2006: On the Eve of the Midterm Elections, PCA Nullified

Recently, Congress passed a controversial bill which grants the President the right to commandeer Federal or even state National Guard Troops and use them inside the United States. This bill, entitled the John Warner Defense Appropriation Act for Fiscal Year 2007 (H.R. 5122.ENR), contains a provision, (Section 1076) which allows the President to:

“...employ the armed forces, including the National Guard in Federal service, to...

  1. 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 in any State or possession of the United States..., where 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;
  2. suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy...” [3]

Senator Patrick Leahy and others have condemned Section 1076 because it effectively nullifies the Posse Comitatus Act and the Insurrection Act (10 U.S.C. 331-335) and gives the President the legal ability to define under what conditions martial law may be declared. [4]

H.R.5122 was signed into law by President Bush on October 17, 2006, and will take effect October 1, 2007 (unless an earlier effective date is established by regulation). "On the same day, Bush signed the Military Commissions Act of 2006, which abolishes the legal protection of habeas corpus, authorizes the president to detain and jail anyone (even US citizens) without charge and subject them to harsh interrogation that may or may not involve torture." [5]

Note: H.R.5122 was introduced in the U.S. House of Representatives on April 6, 2006, as H.R.5122 by Rep. Duncan Hunter (R-CA). On May 5, 2006, Rep. Tom Cole (R-OK) introduced another version of the bill, H.Res.806, followed by H.Res.811 on May 11, 2006, and H.Res.1062 on September 29, 2006. In the U.S. Senate, Sen. John Warner introduced S.2507 on April 4, 2006, followed by S.2766 on May 9, 2006, and S.2766 on May 9, 2006. Section 1076 appears only in the final signed version (see Stealth legislation) of the bill (Public Law No: 109-364, October 17, 2006): Title X--General Provisions, Sec. 1076, Use of Armed Forces in major public emergencies. The Congressional Record (Page H8151 and Page H8152 shows Section 1076 as amended September 29, 2006, in the U.S. House of Representatives as a change to Section 333 of title 10, United States Code. On Agreeing to the Conference Report - FINAL VOTE RESULTS

Historical Orwellian Use Argues Against Weakening PCA

A standing army is one of the greatest mischiefs that can possibly happen. ~ James Madison

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