that our army had been recently disbanded [before the Presidential
crisis of 1801]! What might have happened otherwise seems rather
a subject of reflection than explanation.
Thomas Jefferson writing to Nathaniel Miles, March 1801
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.
~ Black's Law Dictionary
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.
The Posse Comitatus Act, 18 U.S. Code, Section 1385
American is likely to think that "posse comitatus" is
the entourage of a top rapper or NBA star. Little do they know
(or likely care to know) that The Posse Comitatus Act of 1878
has done more to preserve their liberty than any piece of legislation
since the Bill of Rights.
Born of the
abuses of the Reconstruction era and the stolen
election of 1876, the PCA prohibits the use of federal troops
(or national guardsmen under federal control) unless specifically
authorized by an act of Congress. In short, it is the main obstacle
in the path of creating an American police state. Therefore it
is not surprising that there has been an increase in "chatter"
about scrapping the law.
balloon was floated over three years ago when both Senator
Joseph Biden, who called the PCA into question as early as the
Oklahoma City bombing of 1995, and then Homeland Security Czar
Tom Ridge bandied about the idea of repealing the PCA on the Sunday
morning news programs. Apparently, the pretext of keeping Americans
safe from terrorists wasn't deemed sturdy enough to accomplish
the coup d'état. But where the stick of "national
security" was found wanting, now the carrot of "disaster
relief" may provide the cover needed to expose Americans
to the full power of centralized federal tyranny.
In the wake
of Hurricane Katrina, Senator
John Warner has asked Defense Secretary Donald Rumsfeld to
review the usefulness of the PCA given that it hinders "humanitarian
assistance" which could be provided by the feds. (Look next
for foxes to be asked their opinions on the benefits of chicken
coop doors.) Not coincidentally, President Bush has
called for "a robust discussion about the best way for
the federal government, in certain extreme circumstances, to be
able to rally assets for the good of the people."
"robust discussion" will most certainly entail is a
media show trial. Congressional leaders will set up the false
dialectic between those who want to abolish the PCA and those
who think that such an abolition would be "rash and uncalled
for" when the PCA merely needs to be amended. Needless to
say, this "tweaking" will allow enough ambiguity in
the reading for the federal judiciary to eviscerate the PCA and
free the leviathan.
is no appreciable amount of case law on the PCA yet formed, the
methods and tactics that a statist court will employ are already
clear. Technically, the PCA applies only to the Army and Air Force,
not the Navy and Marine Corps. The latter two armed services are
restricted only by Defense Department regulations. (Likewise,
the Coast Guard – formerly of the Department of transportation,
now with Homeland Security – is exempt.) So, under the guise of
strict textualism, a court could easily find the policing of Americans
by scores of Marines constitutional. Add to this a 1981 amendment
to the PCA which freed up the use of the military in the war on
drugs and the loopholes which can be created are multifarious.
of the existing case law on the PCA does not bode well for its
future either. Originally, the standard used for violation of
the Act was an active versus passive test wherein the military
could not actively police U.S. citizens but it could provide equipment
and supplies to law enforcement. (See United States v. Red
Feather, 392 F. Supp. 916, D.S.D. 1975). However, a new test
emerged which looks to whether "military personnel subjected
. . . citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory in nature." (See United States
v. McArthur, 541 F.2d 1275, 1278, 8th Cir. 1976). Mind you,
defining who is a "citizen" and what is "regulatory,
proscriptive, or compulsory in nature" will most likely fall
under the direction of a man who has no problem with ceding
immense, unprecedented, and dangerous powers to the president.
any public discourse about the siccing of military forces on American
civilians involves the use of two Latin words, the smart money
should not be on the side of liberty. A majority of Americans
have grown apathetic and stupid as a result of big government
handouts and (mis)education. While some may have been leery to
repeal the funny sounding law in the name of terror prevention,
there will likely little resistance to "amending" the
law so that the government can "help people." Little
do they think of past "helps" from "40 acres and
a mule" up through the entire bungled Katrina relief effort.
as Jefferson was prescient that the use of troops by a sitting
president could effectively rig an election (as happened in 1876),
so he also noted that "If a nation expects to be ignorant
and free, in a state of civilization, it expects what never was
and never will be."
Rossi [send him mail]
is a recent law school graduate who lives in Washington, D.C.