The Erosion of the Posse Comitatus Act of 1878: Why is there such a concern?
"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. . . . Corporations have been enthroned, an era of corruption in high places will follow, and the money-power of the country will endeavor to prolong its reign by working upon the prejudices of the people until the wealth is aggregated in a few hands and the Republic is destroyed." Abraham Lincoln on Nov. 21, 1864 in a letter to Col. William F. Elkins
The
White House is worried that the International War Tribunal may use its authority
for political motives against the United States and has requested exemption,
however. This administration is studying whether to ask Congress to loosen
the Posse Comitatus Act (PCA) a 124-year-old ban on soldiers doing law enforcement
work inside the United States, an arrangement that may give the President authority
to use the military on US soil for political motives.
It was because of the fear of a standing army within US soil that helped to motivate the enactment of the Bill of Rights beyond the specific amendments relating to the military. By guaranteeing individual rights in the First Amendment and freedom from unreasonable search and seizure in the Fourth Amendment, it was that the abuses of the British army could be prevented in the new republic. The Founding Fathers recognized that the military's authoritarian nature, while effective in defending democracy, remains antithetical to the basic tenets of democracy. According to this reasoning, "[s]skepticism and criticism" of the military are "absolute requisites of freedom" that are missing from every unfree nation.
We must be critical to recognize that President Bush’s request is not new in nature. The growing haste and ease with which the military is considered a panacea for domestic problems, that in some cases have been political, will quickly undermine the PCA if it remains unchecked. In the last fifteen years, Congress has deliberately eroded this principle by allowing past administrations to involve the military in For example, within one week of the bombing of the federal building in Oklahoma City, President Clinton proposed an exception to the PCA to allow the military to aid civilian authorities in investigations involving "weapons of mass destruction." In addition to this proposal Congress also considered legislation to directly involve federal troops in enforcing customs and immigration laws at the border. In 1981, Congress created an exception to the PCA to allow military involvement in drug interdiction at our borders. Then in 1989, Congress designated the Department of Defense as the "single lead agency" in drug interdiction efforts. In the 1996 presidential campaign, candidate Bob Dole pledged to increase the role of the military in the drug war, and candidate Lamar Alexander even proposed replacing the Immigration and Naturalization Service and the Border Patrol with a new branch of the armed forces.
Congress passed the Posse Comitatus Act ("PCA" or the "Act") to prohibit the use of the Army in civilian law enforcement. The Act embodies the traditional American principle of separating civilian and military authority. By definition the PCA is defined as: 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." BLACK'S LAW DICTIONARY 1162 (6th ed. 1990). The definition is your basic movie western posse. In 1854, the Attorney General interpreted posse comitatus to include the military.
The PCA criminalizes, effectively prohibiting, the use of the Army or the Air Force as a posse comitatus to execute the laws of the United States. It reads:
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.
Though a criminal law, the PCA has a more important role as a statement of policy that embodies "the traditional Anglo-American principle of separation of military and civilian spheres of authority, one of the fundamental precepts of our form of government."
Major and minor exceptions to the PCA, which allow the use of the military in law enforcement roles, blur the line between military and civilian roles, undermine civilian control of the military, damage military readiness, and inefficiently solve the problems that they supposedly address. Additionally, increasing the role of the military would strengthen the federal law enforcement apparatus that is currently under close scrutiny for overreaching its authority. Although it seems benign, such an increase in military authority revives fears of past overreaching during the late 1960s.
For
all that military leaders know about taking charge, organizing and marshaling
resources, and moving thousands of people to where they can do the most good
in a matter of hours — and clearly they know a lot about all of the above
— there is one concept that they sometimes have real trouble with: restraint.
We saw that on the Gulf Coast where Honore and his counterpart, Coast Guard Vice Adm. Thad Allen, who is leading the overall federal response to Katrina, tried to bar the media from covering the recovery of bodies from the flooded streets of New Orleans. Honore and Allen insisted that the policy was meant to protect the victims' families.
That may or may not be the case. But it wasn't until CNN went to court and won an injunction against the policy that the people's right to know enjoyed any protection whatsoever.
Bravo for CNN. The military can be counted on to resort to those kinds of shortcuts when fighting wars on foreign soil. But whenever it's operating on U.S. soil, it must uphold the Constitution. Many people think that the military is just a group of ordinary citizens, but I assure you they are not. They follow orders. Look at how many in the past have said that very same thing..."I was just following orders!"
And no "they" can not decide what is lawful....they are under orders to do whatever those orders say.
Case in point.....
U.S. forces in Afghanistan would ignore the Geneva Conventions. Torture became known to the American public later via Iraq, and by 2004 a third of Americans told pollsters that they didn't have a problem with torture.
Torture has been normalized.
First, comes "absolute and complete denial." Nobody here would have beleived that "our" boys and girls in the US military could have participated in torture.
"The second stage," is "to minimize the abuse." Media pictured the military as upstanding and that the ones doing the torture were "simply" a minority. (never mind the fact that they learned the technicques from the CIA interrogation films.)
Next is "to disparage the victims." implying that they--deserve whatever they get. Other government tactics include charging "that those who take up the cause of those tortured are aiding the enemies of the state" placing "the blame on a few bad apples" and pointing out that "someone else does or has done much worse things"
Before the American people allow their congressmen to yield to the president's thirst for greater and greater federal expansion into the affairs of states and local communities, however, they need to realize that the end result of this power-grab will only prove to be an unmitigated disaster for liberty! In fact, it would literally undo the American experiment and turn our country into a monarchy at worst or an oligarchy at best.
Military personnel are not trained (and should not be) for domestic law-enforcement. They cannot worry about Mirandizing suspects or waiting for search warrants. Their concern is not about the right of Habeas Corpus or the laws against searches and seizures. To them is committed the waging of war. They are trained to kill and destroy. Do we really want to send soldiers and Marines into our own streets and neighborhoods with their guns turned on American citizens?
The reason freedom has survived more than 200 years of history is due to the American people's lawful access to firearms and to the preservation of our republican form of government. It appears that President Bush is determined to undo the latter. And if the way in which the Republican Party quickly passed an egregiously flawed Patriot Act is any indicator, the GOP seems poised to support Bush in this quest, also.
The Republican Party needs to do some serious introspection. Are these despotic machinations the personal foibles of a fumbling Chief Executive or are they the innate desires of the entire party? The GOP's recent love affair with burgeoning government and shrinking liberties makes it necessary for every lover of freedom to seriously ponder that question.
The real danger in having the military conduct operations on U.S. soil is the potential for U.S. citizens being subjected to violence when soldiers and everyday Americans are in close proximity to each other.
Posse Comitatus is fine just as is. It doesn't need fixing. It needs to be left alone.