The NewsMax Years #39
Still ON TARGET: September 26, 2000
The history of Posse Comitatus goes back into America’s English past. Under King Alfred the Great, who assumed the chief warlord status in Britain in 871, the constabulary of the shire, or shire-reeve, eventually became known as the sheriff.
It was his duty to maintain order in his tun, or grouping of ten families. Nonetheless, it was the citizen’s duty in the shire to help the sheriff in nabbing criminals and maintaining order. The sheriff would give the “hue and cry” and any citizen who heard it was legally bound to assist the sheriff in bringing the criminal to justice.
This principle of direct citizen action survives today in a procedure known as Posse Comitatus, or citizen response in the face of criminal behavior. The phrase “posse comitatus” translates as “posse of the county” or the power or force of the county.
In America before the Revolution the British used their military to help civil authorities quell riots or civil disturbances. But when colonial Americans began to openly challenge and resist the taxes and British operations such as conscription of Americans into the British Navy, plus the quartering of soldiers in American homes, the problem was finally addressed in the Declaration of Independence.
Originally the use of troops to quell civil disturbances in the United States was not unconstitutional. In fact, the military has been used to enforce civil laws, including:
- 1787 – Shay’s Rebellion
- 1794 – Whiskey Rebellion
- 1807 – Congress declares that the Army is the enforcer of laws.
- 1846 – Anti-Catholic riots in Philadelphia
- 1850 – Bloody Kansas
- 1854 – Army used to enforce fugitive slave laws
- 1859 – John Brown captured and turned over to federal authorities to be hanged
- 1863 – Draft riots in New York
- 1865-77 – Occupation of the defeated South.
The questionable election of 1876 was the catalyst that led to passing the Posse Comitatus Act. President Ulysses Grant sent federal troops to supervise elections in the South because of reported corruption. Congress responded with the Posse Comitatus Act of 1878, which says: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or a force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned …” (18 USC 1385). In other words, the military should not be used when civilian constabulary would better serve the purposes of maintaining order and the peace.
So the PCA was passed basically in response to the occupation of the Southern states during Reconstruction. The purpose of the Act was to prohibit the use of the Army in civilian law enforcement, because American tradition dictates the separation of the military and civilian authority. There always has been a concern for the rise of a Caesar out of military authority. But the misuse of the military by the civilian authority has always been the real basis for Posse Comitatus.
The concerns were originally addressed at the Constitutional Convention in 1787 when Maryland delegate Luther Martin maintained, “When a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.”
Congress has the power to set the standard for use of the military in civil or foreign invasions or disturbances. In recent years that duty has been co-opted by the executive branch on occasion without much concern or reaction from Congress. The use of the military by various presidents in foreign adventures has accelerated since the end of World War II. This situation also reflects the growing tendency of Congress to shirk its duty to limit the power of the state and instead find various means to expand state powers.
Article II, Section 2 of the Constitution grants the power to Congress to make the rules governing the armed forces. In recent years Congress has acted less like the source of legitimacy for the use of the military force and more like a rubber stamp for military adventurism by the executive branch, regardless of who is president.
The Posse Comitatus Act was amended in 1986 in order to fight the “war on drugs.” President Reagan signed into law a National Security Decision Directive, which said that drug trafficking was a threat to national security and the Department of Defense was directed to participate in the “war on drugs.”
Secretary of Defense Casper Weinberger was opposed to the military taking on civilian police activities. He said at the time, “Calling for the use of the government’s full military resources to put a stop to the drug trade makes for hot exciting rhetoric. But responding to those calls would make for terrible national security policy, poor politics and guaranteed failure in the campaign against drugs.”
Weinberger was correct. The “war on drugs” has consumed billions, eroded the Bill of Rights and personal freedoms, and for the most part has been a dismal failure. Our prison population has quadrupled, and prisons are increasingly being filled with “three strikes and you’re out” offenders – in other words, nonviolent drug offenders who got caught more than once. One of the fastest growing prison populations is poor women who are drug abusers.
This “war” seems to be a very sorry and illegitimate use of national resources in addition to setting a dangerous precedent in law and for liberty. It was President George Bush in 1989 who said, “We will for the first time make available the appropriate resources of America’s armed forces. We will intensify our efforts against drug smugglers on the high seas, in international air space and at our borders.”
Congress added to this sorry mix of police and military by passing such abominations as the Forfeiture Act and other drug laws, which on their face are totally unconstitutional according to the Fourth Amendment to the Constitution. But since Congress, the courts and the executive no longer seem to be concerned about the increasingly moribund Constitution, perhaps it is a moot point anyway.
Charles E. Rice, who has been a professor of law at Notre Dame Law School since 1969, said recently, “The Constitution no longer exists as we learned about it in civics class so many years ago.”
Colonel Sean Byrne of the U.S. Army stated in his paper “Defending Sovereignty”: “During the last eight years, involvement in counter-drug operations has become relatively routine for a number of units. However, even when dealing with the routine, commanders must continually verify their legal justification for involvement. … Had legal advisers assigned to Joint Task Force 6 which supported the BATF during the 1993 siege at the Branch Davidian Compound in Waco, Texas, not questioned that agency’s requests for support, the Armed Forces would have been inappropriately and illegally involved in an operation that ultimately led to the deaths of U.S. citizens.”
At present, this JTF 6 still conducts drug interdiction operations on the U.S. Southwestern border, which include policing for drugs and immigration activities. Furthermore, Byrne states that in late 1992 “when the BATF requested various types of assistance and equipment, including training sessions conducted by Green Berets, tanks, CS gas and … aircraft … in making the initial request for use of helicopters … the BATF’s Houston office did not mention any “drug nexus.”
But the drug connection used by the BATF to justify the request for military support in Waco was not valid, according to Byrne. The BATF had used a six-year-old drug offense against one of the Branch Davidians to attempt to gain military support. “Military lawyers saved the day when they conducted a further legal review that resulted in the request not being acted on. Had they not questioned what appeared to be a routine request, JTF 6 would have been involved in a clear violation of Posse Comitatus. …”
The crazy-quilt use of the PCA also created problems during the Los Angeles riots in 1992, after the Rodney King court decision. The confusion existed because military commanders on the ground did not have a clear view as to what constituted a violation of the PCA.
Meanwhile, the trend for using the military in domestic operations will continue. Recently, FEMA and the military have been united in unholy matrimony by Attorney General Janet Reno. Only a few months ago Reno took the operational combination of forces away from Secretary of Defense William Cohen and placed it under her office and command.
There is a growing consensus about why the use of military as police has become commonplace. Colonel Byrne maintains that “without the monolithic threat of communism posed, there has been a far greater emphasis on looking inward to solve America’s problems at home. … [A] few years ago it would have been hard to envision the U.S. armed forces involved in counter-drug operations on a day-to-day basis, but today that involvement is given little more than a second thought.”
Reports surface regularly that the armed forces are being used to give support to drug enforcement, especially in the Southwest. As one informant relates, “They are out there in force. They stop every third vehicle and question or look for ID or whatever. But is this what the military is supposed to do?” He also adds that in Texas, Army elite units are conducting “drills” and “war games” in small towns with the permission of Governor George Bush, who says he doesn’t interfere in these operations.
National courts allow abuses of the military and civilian connection and no one has been indicted under Posse Comitatus in recent memory. Since national security is said to be involved, the courts allow abuses to occur and most often look the other way. Just as they did when the government suspended writ of habeas corpus during the Civil War, or when Japanese-Americans were sent to internment camps during World War II. Since the war on drugs is a so-called national emergency, the erosion of civil liberties will continue. A few good men are sounding the alarm.
Marine Corps General Stephen Olmstead testified before Congress regarding the “war on drugs”: “One of the United States’ greatest strengths is that the military is responsive to civilian authority and that we do not allow the Army, Navy, Marines or the Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result.”
On June 25, 1997, Representative Ron Paul of Texas read the following into the Congressional Record: “In a police state the police are national, powerful, authoritarian. Inevitably, national governments yield to the temptation to use the military to do the heavy lifting. … [O]nce the military is used, however minor initially, the march toward martial law … becomes irresistible.”
The Army War College’s publication “Parameters” contains a paper written by a member of the Judge Advocate General’s Office that has some interesting things to say about the use of the Army in domestic emergencies.
The recent moves to consolidate the National Guard and the Army Reserves into “domestic control units” and the legal transformation of the Army under the Stanford Act (1984) have been incorporated into Army strategy under the acronym OOTW or “operations other than war.”
The importance and frightening aspects of the marriage of the Justice Department, FEMA and the Army may be found in the essence of the paper: “Civilian and military leaders need to expect an increase in domestic deployments of U.S. military forces. .
[S]trategic leaders can take solace in the lessons learned from military participation in domestic disaster relief. For the record indicates that legal niceties or strict construction of prohibited conduct will be of minor concern.” In other words the rule of law and constitutional guarantees are insignificant in an emergency.
I can hear it now from the nostalgic folks out in flyover country: “Well, if you don’t do anything wrong, you won’t have anything to worry about.” Think again. What the average American fails to realize is that it is a certainty that every single person in the United States is breaking some kind of statute, rule, law, or regulation, and if authority chooses it can harass and intimidate anyone, anywhere, anytime.By turning a blind eye to the growing blurring of the lines between the military and the police we are creating our own police state.
The recent Texas court decision on Waco should be a wake-up call to one and all. The decision of the judge in charge of the civil suit brought against the government by the relatives of the Branch Davidians, along with the final conclusion of the Danforth investigation, indicate that justice and constitutional guarantees only mean what the government says they mean.
What the legal decisions don’t tell you, however, is that what is really at stake is the legitimacy of government actions under the Constitution. The Danforth investigation found no fault in the government’s actions at Waco — which shouldn’t come as any surprise, considering the whole event began to play out under the Bush administration. Who would have taken the fall if the truth were ever known? Ruby Ridge likewise; both instances of government overreaction began under George Bush the elder.
Carried to the horrific conclusion under Bill Clinton and Janet Reno, Waco is the clarion call about where we are headed as a people. Add dozens of instances of government abuse against citizens over the last eight years, and this administration has helped create a nightmare in the growing power of the Big Brother state. When it comes down to it, both Republicans and Democrats can share the blame for blurring lines between the military and police.
Both can share blame in the unconstitutional laws passed and the open checkbook they offer federal police agencies that don’t seem to be concerned with the niceties of the Bill of Rights. Apparently the only government entity that gives constitutional concerns any thought at all is the military.
In all probability, however, if anything ever goes wrong and U.S. citizens are killed because of the use of the military by civilians, the military will get the lion’s share of the blame. Americans had better get concerned about the use of the military for domestic police purposes, about the growing power of federal bureaucracies. More importantly they should be concerned about the inattention and outright unconstitutional misbehavior of Congress and the executive branch. Otherwise Americans will find themselves living in the heart of darkness in our lifetime.
There is a prose poem written by Stephen Vincent Benet concerning dictatorships. He ends by saying:
We thought we were done with these things but we were wrong.
We thought because we had power – we had wisdom.
We thought the long train would run to the end of time.
We thought the light would increase.
Now the train stands derailed and the bandits loot it.
Now the boar and the asp have power in our time.
Now the night rolls back on the west and the night is solid.
Our fathers and ourselves sowed dragon’s teeth.
Our children know and suffer the armed men.
First published at NewsMax.com on September 26, 2000. Copyright © 2000-2012 Diane Alden
The Moral Liberal Editor at Large, Diane Alden, was one of NewsMax.com’s most popular and outspoken pundits ( 1999–2008), and before that, a wonk for The Nevada Policy Institute. A former DJ in Georgia, Diane of late has been a weekly guest on the East Coast hit program, The Marc Bernier Show. Diane is loved for her quick sense of humor, creative vocabulary, independence of mind, and her penetrating analysis of a wide range of political, economic, and cultural issues.
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