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Jan/Feb 2007 Nonfiction

Posse Comitatus

by Michelle Hartman

Artwork by Ira Joel Haber


The Posse Comitatus act states, "Whoever, except in cases and under circumstances expressly authorized by the Constitution of 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" (18 U.S.C. 1385).

Air travelers in the Dallas-Fort Worth (Texas) area have griped for years about a law called the Wright Amendment, which stopped Southwest Airlines from flying directly from its home base at Dallas Love Field to all but a few destinations. The law is now being phased out, but not without a long fight.

A recent TV commercial in the Dallas/Fort Worth market for abolishing the Wright amendment lists old and now silly laws still on the books. It's fun to read about the illegality of keeping a mule on the second floor unless there are two doors. But some of the old laws are there for a reason, and we should give them serious consideration before throwing them out.

For example, the Posse Comitatus act, which is under fire by our current administration. After violating the act several times, members of Congress and the Press called them on it. The reply of President Bush and then-Attorney General Ashcroft was to call the law antiquated and a hindrance to the public good. The act's obscurity and the ignorance and distraction of the American public are leading to a major victory for those eroding our basic civil liberties. We must call attention to this law and its place in protecting our way of government.

In reviewing a law we must look at certain criteria: is the law still pertinent, enforceable, and most importantly, is it necessary for the common good? To answer these questions let us look first at the law and its conception.

Posse Comitatus is a Latin term meaning, "power of the county." Law dictionaries define it as "Posse Comitatus: the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc." Most people will think of the Old West as portrayed in movies. Rarely did sheriffs gather a posse, but it has been found in historic documents. The term "county" in the definition seems to confuse many. This simply means the calling forth of armed forces by those who govern to enforce law in a given area.

America was born with a hatred of military interference by governing powers. The Declaration of Independence listed among our grievances against Great Britain that the King had, "kept among us, in times of peace, Standing Armies without the consent of our legislatures," and had "affected to render the Military independent of and superior to the civil power." The Articles of Confederation covered the threat of military intrusion into civilian affairs by demanding that the armed forces assembled be no larger than absolutely necessary for the common defense and entrusting control to civil authorities within the states. The Bill of Rights limited the quartering of troops in private homes. Congress, soon after it was first assembled, did authorize the President to call out the militia. The purpose here was to protect the frontier from hostile Indian attacks. Due to primitive travel venues it was overly optimistic to rely on the presence of Congress to handle any sudden action that required the military.

So we understand where this resistance to military enforcement of the law came from. But we also have to understand how we came to enact the Posse Comitatus act after explicitly forbidding these acts in so many of our founding documents. After the Civil War, During Reconstruction, the Southern states were under martial law until which time they would be allowed to recover their complete states rights. Towards the end of Reconstruction, Federal troops were stationed at polling places in the South to ensure universal manhood suffrage was permitted and that no former Confederate soldiers voted. It was suspected that federal troops influenced the election of 1876, in which Rutherford B. Hayes was chosen by the Electoral College. Hayes won the disputed electoral votes of South Carolina, Louisiana, and Florida, states where President U. S. Grant had sent troops as posse comitatus by federal marshals at the polls if deemed necessary.

Much had been written about that election, and no clear abuse has been proven. But the cloud of suspicion bothered many in Congress who didn't think the use of federal troops in an election, the most central event in a democracy, was appropriate. Therefore the Posse Comitatus Act was enacted in 1878 with an addendum later to include the Air Force. The nation held the consensus that "when military forces are used to enforce domestic laws on citizens, the danger of a military or military-dominated dictatorship is not necessarily inevitable. But it becomes a constant danger" (Bock 5).

Forty-one years later, President Truman used the "except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress" clause to send "federal troops to end rioting in Chicago in 1919 and against 'Bonus Marchers' in Washington D.C. in 1932" (Baker 2). These events in pictures and text look and sound no different than the "use of the National Guard during the 1950's and 60's, at the Democratic National Convention and riots in the Watts area of Los Angeles," (Baker 3).

This raises the question, is this law still pertinent? Is there a possibility of misuse of our troops either for party gain or worst case scenario, dictatorship? As recent as the 2000 Presidential elections, we had serious doubts of the legality of our voting structure and the enforcement of those results. The declaration of the legal President by a body stuffed with Reagan appointees and appointees by the winning candidate's own father showed clearly that election manipulation was still a potential threat. Again in 2003, the possibility of misconduct through the use of electronic voting machines made us look at possible election rigging. If the election can be manipulated, then it would also be necessary to enforce those results with a standing army. The movement of these troops would not alarm a nation already used to their presence on the streets.

"If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." Bush joked on December 18, 2000 (Nimmo 2). We've seen in the last five years an erosion of our basic civil liberties with the passage of the USA Patriot Act. Citizens are being held without counsel for unspecified amounts of time, library records are being subpoenaed and search warrants can be obtained anywhere in the U.S. as long as the word terrorism is invoked. If we had been presented with this act in the Eighties, we would have laughed it out of being. Today few people have a grasp of the extent of the Patriot Act, and many think it was repealed at its sunset date, due to its extension not being covered by the corporate owned news broadcasts. President Bush initially refused to let independent counsels investigate the leakage of CIA operative's Valerie Plame cover, or Tom Delay's ethics practices. Although much had been revealed by various Texas State Agencies and the Department of Justice on both of these cases, the stonewalling by Bush and Associates has placed themselves well above the laws. In July of 2006, Attorney General Alberto Gonzales testified before Congress that he was specifically barred by the President from investigating the eavesdropping plan authorized by the Bush after 9/11. Do you want this administration or any other president with this same administrative power to have access to a standing army that oversees the behavior of American citizens? The erosion of Presidential responsibility and the increasing power grab by those holding this office will only increase unless stopped. Thus two, four, six administrations from now will have exponentially more power. The access to a standing army becomes even more frightening.

So to be pertinent there would still need to be a threat which the law would address. Even with TV and the internet Americans are grossly ignorant of what is happening in Washington. It is not science fiction to ponder the ease with which we could be overcome by an errant political party. This makes this law even more important now than when it was first written.

So, is this law still enforceable? Yes, and has been in recent history. In 1973 Army troops were sent in to breakup the Siege at Wounded Knee. Lakota Indians declared their independence from government rule, demanded the fulfillment of treaties still valid and an investigation into the misuse of Indian funds by Department of the Interior. After 71 days, the Siege at Wounded Knee had come to an end, with the government making nearly 1200 arrests. But this would only mark the beginning of what was known as the "Reign of Terror" instigated by the FBI and the Bureau of Indian Affairs (BIA). During the three years following Wounded Knee, 64 tribal members were victims of unsolved murder, 300 were harassed and beaten, and 562 arrests were made. Of these arrests only 15 people were ever convicted of any crime.

Subsequent lawsuits filed by the Indians caused the development of legal tests now used by most contemporary courts in determining whether military forces have been used improperly as police forces in violation of the Posse Comitatus Act. Those involved were admittedly lower echelon officers and government members but they were punished or fined for their involvement. With the establishment of these legal tests it is now easier to shape clear and concise judicial rulings with adequate evidence. Such evidence is easily captured by current advanced electronic capabilities.

If a change needs to be made to the Posse Comitatus Act, it should be to establish a Special Prosecutor outside Presidential authority to review each time this act is violated. This would increase ease of enforcement. Punishment for such violations needs to be specified, as is how that punishment is to be enforced.

This brings us to the common good of the law. Two aspects stand out clearly in this test; the possible erosion of public resistance to an army occupation and the harm of such occupation to the troops themselves. The American public is used to seeing National Guard troops after tornados, during riots, floods and hurricanes in Florida. What John Q. Public doesn't understand is the difference between the National Guard and the U. S. Army. The National Guard is run by and subject to the individual states and its troops are called out by the President with the agreement of the subject states Governor. If for some reason the Federal Government began using the troops in a manner that was suspicious or unlawful, the Governor could command the troops to stand down. Federal troops answer only to the President and Congress.

Fast forward to recent events. After Hurricane Katrina, the National Guard troops for the states of Louisiana and Mississippi were serving in Iraq. So the troops arriving in New Orleans were Federal and could not have been supervised or removed by any local authority in those states. Even further back we see policing action by Federal troops. During the 2002 sniper rampage in Maryland, "Army drones were being used over Maryland and Virginia, in direct violation of the Posse Comitatus act" (Nimmo 1). However, the citizens were so afraid of being shot while conducting their day to day business, there was no outcry.

Due to advances in mass media and communications the subversion of American laws will have to be done by a process of erosion. Small inroads over a period of time could cause America to become the largest banana republic in the world within a generation or two. But more than the public needs to be comfortable with this process; the troops themselves need indoctrination before being used in the hometown. If he has been patrolling American streets before and is told he's protecting Americans, the unsuspecting soldier can be made to believe his current actions are for the common good. The alienation/disenfranchisement of troops by the bad reception after Vietnam, the current war protesters and the Administration's "Them or us" attitude would feed into their disregard for anything less than blatant revolution.

Even sadder is the fact that using the Federal Troops this way endangers the troops themselves. Army and Police are trained in very different ways. The primary training for troops is to fight wars and defend our country, not to stop looting and pass out water. "Fighting wars is killing people and breaking things, as the U.S. Military will tell you themselves, only partly in jest" (Remember 2). Being asked to engage in civilian law or disaster relief would soften the warrior mentality and take resources and training time from the primary mission of being ready to fight actual war. Not to mention the accidental harm done by a soldier to a civilian: in 1997 a Marine Corps patrol of the Texas/Mexico border resulted the shooting of an armed teenage boy. The troops were only doing what they were trained to do but the "family sued and won a two million dollar wrongful death settlement out of court" (Origins 2). Troops are not taught to identify themselves before shooting, to talk a man down, or to Mirandize prisoners, so killing of Americans, unaware of how to deal with troops, should be expected. It can also be said that with this police-type of training it will be difficult for troops to return to the "kill and ask questions later" actions which keep them alive in combat situations. So the Posse Comitatus could be said to protect the troops as well as the citizens themselves.

The over-usage of the term war, "War on Drugs," with use of troops and Coast Guard, the "War on Poverty," and the common sight on TV of tanks and troops on American streets has inured us to worries of military takeover. It doesn't mean that a military dictatorship is coming tomorrow but it does open the door and throw out the welcome mat. We are not only accustomed to seeing troops on the street; in many cases we welcome them with cheering and feel more comfortable as they arrive. This is not an attitude to encourage.

So the common good for both citizens and our troops is not using soldiers freely on American streets for any reason. A clear message needs to be sent to Washington, our troops are not to be used on American ground unless there is a clear indication of outside presence. Even then the actions allowed should be spelled out.

 

Baker, Bonnie. "The Origins of the Posse Comitatus." Chronicles Online Journal 1 Nov 1999. 6 Oct. 2005 Air & Space Power Journal

Bock, Alan. "Posse Comitatus: Remembering Why." 1 Oct. 2005. 6 Oct. 2005 AntiWar.com

Nimmo, Kurt. "Predators, Snipers and the Posse Comitatus Act." 17 Oct. 2002. 6 Oct. 2005 CounterPunch Ed. Alexander Cockburn and Jeffrey St. Clair

Nimmo, Kurt. "R.I.P. Posse Comitatus." 19 Sept. 2005. 6 Oct. 2005 Another Day in the Empire

Simpson, Dan. "Remember Posse Comitatus." Pittsburg Post-Gazette 28 Sept. 2005. 6 Oct. 2005

 

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