Repeal Posse Comitatus, or educate the public!

I am going to write a bit of a thesis paper here, regarding the Posse Comitatus Act. I feel that in some ways this Act is unconstitutional, and if not at a minimum it is very misunderstood in today’s world. Many view the Act as “no use of military on US soil.” The Act 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 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.” (Source)

Now some are worried about the amount of power invested in one person. So In very good debates on BTR with Loki and Snooper it has been said that only Congress can “ok” the use of the military on domestic soil. However, if you read the act it says “authorized by the Constitution or Act of Congress.” I stress the word “OR.” That word was obviously used to encourage the approval of Congress BUT it was not to limit and take away the powers of our Commander in Chief. So the history of the act is important, as well as the Sense of congress.

§ 466. Sense of Congress reaffirming the continued importance and applicability of the Posse Comitatus Act
(a) Findings
Congress finds the following:
(1) Section 1385 of title 18 (commonly known as the “Posse Comitatus Act”) prohibits the use of the Armed Forces as a posse comitatus to execute the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.
(2) Enacted in 1878, the Posse Comitatus Act was expressly intended to prevent United States Marshals, on their own initiative, from calling on the Army for assistance in enforcing Federal law.
(3) The Posse Comitatus Act has served the Nation well in limiting the use of the Armed Forces to enforce the law.
(4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.
(5) Existing laws, including chapter 15 of title 10 (commonly known as the “Insurrection Act”), and the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5121 et seq.), grant the President broad powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order.
(b) Sense of Congress
Congress reaffirms the continued importance of section 1385 of title 18, and it is the sense of Congress that nothing in this chapter should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws. (Source)

So this does beg the question: what encouraged the people to create this Act? And who was behind it? Simply it was white democrats that did not like the Army making sure that the newly freed slaves from the south were exercising their constitutional rights! So that also brings me to the Oath:

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).” (Source)

The Army is to defend the Constitution, against all enemies… even domestic. How could white democrats that voted for the Posse Comitatus act seem to think that making sure black Americans can vote, is a problem… It is a RIGHT not a problem! But the democrats are the party of voters rights, and black civil rights?! Right? Yet their history is actually that of trying to prevent voters from going to the polls and preventing blacks from being elected.

In Reconstruction era
John WillisMenard[1]Republican, Joseph Rainey Republican, Jefferson F. Long Republican, RobertC. De Large Republican, Robert B.Elliott Republican, BenjaminS. Turner Republican, Josiah T. Walls Republican, Richard H.Cain Republican, John R. Lynch Republican, James T. Rapier Republican, Alonzo J. Ransier Republican, Jeremiah HaralsonRepublican, John Adams Hyman Republican, Charles E. Nash Republican, Robert Smalls Republican, James E. O'Hara
Republican, Henry P. Cheatham Republican, John Mercer Langston Republican, Thomas E. MillerRepublican, George W. Murray Republican, George Henry White Republican

Therein lies the problem. ALL the blacks being elected to Congress were republican. HOW DARE THEY. So by not using the military to protect the Constitution they were able to politically defeat blacks and republicans. In a 30 year period during the Reconstruction era there were 21 black republicans with no democrats. During the modern era, after the Act, well beyond 50 black democrats were elected with one republican. The Act fundamentally changed POLITICS, it did not improve the military.

The law was a result of a political dispute, and was not a reflection of the Army’s conduct during its mission of maintaining civil order. The government must reconsider the law and rewrite it in light of the contemporary danger to the country.

The sheriff's usual recourse in such circumstances, the posse comitatus, did not really serve well. Too often a posse of local citizens quickly took a side in the conflict. The end result was often chaos, violence, and bloodshed.
(THE POSSE COMITATUS ACT OF 1878: AN HISTORICAL PERSPECTIVE AND IMPLICATIONS, PDF)

Why is it that we would have a military that is NOT used to enforce the federal laws? Why tell them to defend the Constitution? Why not make the oath to “defend the PEOPLE of the US at the borders from foreign enemies”? But the oath (Army) is to defend the Constitution, and I don’t think they meant the literal document. I know many people don’t like the idea of the Federal Govt keeping the states “in line.” I advocate states rights, but I also realize there is no point in being a “Union” if everyone gets to do what they want. To allow states rights to the degree some push for is nothing more than advocating for 50 separate countries/democracies/republics. The odd thing is that the same people tend to be the one that use the phrase “united we stand, divided we hang.”

If you are going to be a “member” of something you have to follow the rules. So I think that it is fine if a group of people have their heart set on violating the constitution to a massive degree that would upset the domestic tranquility, but do not expect not to be labeled a traitor:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

The President of the United States of America must also take an oath, not just the Armed Forces: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." Why would anyone NOT expect him to do everything in his power, and use every asset to defend the Constitution? That oath is followed by Section 2:

“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States…”

I seriously doubt that it was an accident that the oath is followed up with a way for POTUS to enforce his oath. To “defend the Constitution” was not only to be enforced by nice speeches.

ARMY EMPLOYMENT AGAINST CIVIL UNREST IN LOUISIANA DURING 1874
The Regular Army continued their record of success in maintaining civil order during
Reconstruction. There was significant unrest in Louisiana, especially in New Orleans, on both sides of the political and ideological spectrum. A group known as the White League formed. Their goal was to eliminate the political power of the Blacks and to elect White Democrat representatives.”

I would say that if you have a potential unrest on massive scale that is a violation of the USC, then today we have strong police forces so I doubt you would need the military. If a state today, with the help of local law enforcement (this does not include a normal civil disobedience), tried to block
black candidates while also preventing blacks from voting… excuse me, why is it that the military is able to work humanely with civilians overseas, but some have expressed fears that they would NOT be able to here on US soil with US citizens?

The Regular Army performed extremely professionally during the labor disputes. Under the circumstances of their use, federal troops came into only limited contact with mobs during the 1877 strikes. They nevertheless contributed greatly to the restoration of order, as Hancock reported, ‘by their presence alone.’ The positive results were not due to the size of the forces, for with only about 24,000 troops in the entire Army in 1877 only a small detachment could be used at any one place. But these Regular troops were well disciplined and, taking their cue from the President himself, they
acted with considerable restraint in putting down the strikes, neither losing a single soldier nor causing the death of any civilian.

The militia, on the other hand, was not as disciplined or well trained. “The National Guard’s performance was particularly dismal. Its units were almost completely unreliable. Some refused to serve, some broke up and joined the strikers, while others were bloodthirsty and nearly uncontrollable.”24 The difficulty with the citizen-soldiers during this crisis was that they were too close to their fellow citizens. For some, their connection to the strikers was stronger than their sense of military duty.
(THE POSSE COMITATUS ACT OF 1878: AN HISTORICAL PERSPECTIVE AND IMPLICATIONS, PDF)

This is not a “hit-piece” on the National Guard. That is in NO WAY my intent, for they have served with honor in this nation and abroad when called upon. Being around the military my entire life I learned that active, reserved, and Air NG…are all patriots that serve their country in the best way they can. But just because they have Army “National Guard” tagged on them…they are Army. Trained the same, fight the same, they are not trained with law enforcement skills any more than the regular ol’ Army. If one accepts that the NG has become a more professional force since its initial days, wouldn't one have to say that the standing Army has become even more professional as well?

“Many in Congress, especially the Democrats, wanted to reduce the size of the Army in 1878. The Great Sioux War of 1877 - 1878 was over. Congress did not see a significant threat that required as large an Army. The Posse Comitatus Act was a rider to the Army Appropriations Act. Since this rider was attached to the Appropriations Act, Congress had to pass the Posse Comitatus Act for the Army to receive funding in 1878. After debate, the legislation ultimately passed. The Posse Comitatus Act did two things. First, it prevented the use of the Army by the local sheriffs. It was also seen as limiting the power of the President by restricting the Army's ability to become involved in the local political/civil affairs. It did not, however, prevent the use of the Army to suppress civil disorder. The intent, however, was that this would not become a routine matter. In the 1870s, the Regular Army clearly demonstrated that it could effectively contribute to maintaining civil order. Despite the opinions of critics, the use of the Army did not lead to widespread bloodshed or significant abuse of the civil rights of the populace. If the circumstances require, the Army and the military as a whole could again accomplish this mission with similarly satisfactory results.

INTENT OF THE POSSE COMITATUS ACT
The original purpose of the Posse Comitatus Act was not so much to prevent the military from meddling in civilian law enforcement as is the current perception.

The Posse Comitatus Act was not, . . . as most people believe, enacted to prevent members of military services from acting as a national police force. It was enacted to prevent the Army from being abused by having its soldiers pressed into service as police officers (a posse) by local law enforcement officials in the post-Reconstruction South.

The real intent of the Posse Comitatus Act was to prevent civilian law enforcement from taking advantage of the military to assist in apprehending suspected criminals.
(THE POSSE COMITATUS ACT OF 1878: AN HISTORICAL PERSPECTIVE AND IMPLICATIONS, PDF)

Is that what we really want to do? Aren’t we against cutting funding of the military? If that is the case why in the world would one support a restriction on the President based on twisting the arm of the US military? If you support this act I feel that you support allowing the military to be held “hostage.” I have heard far too many conservatives complain that democrats won’t put a bill up on its own, they tag them on others they know must past. “Let the bill stand on its own!” I have read it, heard it, and want to know why it does not apply here.

What has caused this issue to explode in the past week? Articles and hype that misrepresented a new brigade being trained to respond to WMD attacks that made it sound like the military could just usurp the local law enforcement. It is, for the last time, to SUPPORT THE LOCAL LAW ENFORCEMENT.

But if there is a biological attack on a city like New York that requires quarantine, most of the law enforcement will fall ill themselves or be insufficient to maintain control. And living outside said city, I do not have a problem with the military surrounding the city. I would pray that it would not happen but if an infected person tries to leave, which would pose an obvious threat to the public, and lethal force is required to stop them, please explain to me how it matters whether that slug comes from a police 9mm, or a National Guard rifle, or Army rifle? They are all doing the same thing, DEFENDING THE COUNTRY FROM A THREAT (this one happens to be domestic).

“Following its key role in securing our liberty during the Revolutionary War, the role of the militia (today’s National Guard) as a fundamental component of our national defense was validated in the Constitution by the founders. The language reads, in part: “The Congress shall have Power To … provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

That is right. The “militia” is the National Guard, as defined above by the National Guard (PDF). We cannot sit safely by assuming that each individual is a member of this mythical “militia.” If so where is the discipline? Who does this mythical militia receive orders from? Is this the argument for a true democracy in America? Unless you have command and control, each one of us would be our own militia who could then take up arms against anything we disagree with resulting in anarchy. I seriously doubt that is what the founding fathers wanted for the future. If you think you are the militia, you take orders from the National Guard. Guess what, if he so determines POTUS can federalize NG and you take orders from him.

We simply put, as a union, CANNOT have 300 million militia, nor 50 different armies. We have ONE.

Federal Mission
The Army National Guard’s federal mission is to maintain well-trained, well-equipped units available for prompt mobilization during war and provide assistance during national emergencies (such as natural disasters or civil disturbances). The ARNG’s units (or any Reserve component forces) may be activated in a number of ways as prescribed by public law. Most of the laws for Federal Mission operations are in Title 10 of the U.S. Code.

When serving under Title 10, “active duty” means full-time duty in the active military
service of the United States. Title 10 allows the President to “federalize” National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service in their militia status. This includes the following forms of active service:
o Voluntary Order to Active Duty. With his or her consent and the consent of the Governor.
o Partial Mobilization. In time of national emergency declared by the President for any
unit or any member for not more than 24 consecutive months.
o Presidential Reserve Call Up. When the President determines that it is necessary to augment the active forces for any operational mission for any unit or any member for not more than 270 days.
o Federal Aid for State Governments. Whenever an insurrection occurs in any State against its government, the President may, upon the request of its legislature or of its governor call into Federal service such of the militia of the other States. This is a statutory exception to the Posse Comitatus Act.
o Use of Militia and Armed Forces to Enforce Federal Authority. Whenever the President considers that unlawful obstructions, assemblages, or rebellion make it impracticable to enforce the laws of the United States in any State or Territory, he may call into Federal service such of the militia of any State. This is another statutory exception to Posse Comitatus.
o Interference with State and Federal law. The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.

o Air and Army National Guard. Air and Army National Guard can specifically be called
into Federal service in case of invasion, rebellion, or inability to execute Federal law with active forces.

The National Guard Bureau (NGB), both a staff and operating agency, administers the federal functions of the Army National Guard (ARNG) and the Air National Guard (ANG). As a staff agency, the NGB participates with the Army and Air staffs in developing and coordinating programs that directly affect the National Guard. As an operating agency, the NGB formulates and administers the programs for training, development, and maintenance of the ARNG and ANG and acts as the channel of communication between the Army, Air Force, and the 50 states, three territories, and the District of Columbia where National Guard units are located. (PDF)

In a 2003 GAO report that stressed limitations as often as possible for domestic use it also had the Executive Recommendation:

“We recommend that the Secretary of Defense assess domestic military mission requirements and determine if steps should be taken to structure U.S. forces to better accomplish domestic military missions while maintaining proficiency for overseas combat missions.”

Through all of these debates/conversations my biggest concern was the idea that the military only “breaks stuff and kills.” I happen to disagree. That is an over simplistic point of view, and well… wrong. Our military only kills those that present a danger. I trust them more so than many police officers. This “break and kill” idea is no different than Murtha ASSUMING the Marines were bloodthirsty killers. I know that is harsh, but it is fact. No different, to assume that our military only has one mindset is very insulting, and wrong. If they can perform humanely overseas, why are they not able to on US soil?