Posse Comitatus
By James Mark Kennedy
Whatever may be their occupation, whether civilian or not, and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.
~ Former US Attorney General Caleb Cushing in 1854~
The word comitatus is unfamiliar to most Westerners because it finds its roots in Ancient Rome. Originally a Latin term, comitatus is literally translated into English as retinue. Comitati would temporarily form when a nobleman called for military aid from his fellow Romans. The newly formed team would set off into enemy territory, but they would disband almost immediately upon achievement of their goal.
In America, the nineteenth century saw many instances of similar comitati briefly uniting and then separating. The United States Government has, as is evidenced by Cushing’s statement, mandated law enforcement practices in the past that are now illegal. Enlisted soldiers continual filled temporary roles as police officers in the years leading up to 1876. U.S. Marshalls and town sheriffs regularly found themselves in need of military assistance, and they frequently exercised their right to demand it.
This status quo of police militarization was not challenged until the election of Republican presidential candidate Rutherford B. Hayes. Hayes defeated Democrat Samuel Tilden in 1876 by only one electoral vote. Historians note that the U.S. Army played a significant role in this election due to their guarding of ballot boxes in the South. U.S. law at the time stipulated that no former Confederate officer should be allowed to vote, and there were plenty of Marshalls and soldiers standing by to enforce that law.
Largely as a response to what was considered undue influence over the 1876 election, the Posse Comitatus Act was approved in June of 1878. A more relevant update of said legislation was passed in 1956 during the Presidency of Dwight D. Eisenhower. It stated:
"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."
[18 U.S.C. § 1385]
Posse Comitatus originally only laid out rules for the U.S. Army. As stated above, the Eisenhower era update mentions the Air Force as well. It was not until 1992 that Administrative Committee of the Federal Register codified a Department of Defense Regulation that stipulated the inclusion of the Navy as well as the marines under the [32 C.F.R. Section 213.2, 1992]. As long as they are operating at the state rather than the federal level, Army National Guard personnel are not prevented from engaging in local or state law enforcement.
“To execute the laws” would include arrests, detainments, establishment of civilian blockades or police checkpoints, and evidentiary investigation. This sounds almost as if military personnel should be excluded from every aspect of local and state law enforcement. Despite existing legislation, American police departments have definitely become increasingly militarized and continue to do so.
Several causal factors must be acknowledged when addressing the deterioration of the Posse Comiatus Act’s core tenets. The American Judicial system is at least partially at fault. Multiple rulings have been handed down that arguably do not uphold Posse Comiatus’s true intention. Of said rulings, one of the most notable marked the conclusion of the State of North Carolina v. Anthony D. Nelson (298 NC 573, 260 SE2d 629). For the sake of brevity, it will suffice to say that that court case ruled in favor of an increased role for the military in domestic law enforcement. The State of North Carolina opined that any military personnel could be involved in law enforcement activities as long as they only play a supportive role. Court rulings such as this allow the Department of Homeland Security to expend billions of dollars in an effort to outfit local police departments with tactical combat equipment. In 2014 alone, the DHS allotted $19.2 billion for disbursement to state and local police departments. These funds end up in even the smallest police departments, including those that police tiny towns like Fargo, North Dakota.
Beyond subversive politics and judicial loopholes, there exist a number of other routes by which the U.S. armed forces can involve themselves in police matters.
Obviously there are loopholes in American legislation dealing with the legality of police militarization. But, what Congress passed a bill in the next few days that stated in plain, concrete terms that the U.S. military shall no longer dabble in any type of domestic law enforcement? There have been instances when Posse Comiatus has been completely forgotten during times of immensely expansive national strain. Perhaps the most notable example came at the height of World War II. Military personnel worked avidly on American soil to ensure the citizenry’s safety. U.S. soldiers even went so far as to detain and interrogate Japanese-American civilians. Only one tactic is really necessary for police militarization to proceed in its exponential growth. Government officials must keep U.S. citizens concerned with their nation’s safety as well as their own personal wellbeing. With this anxiety planted in American mindsets, it becomes easy to sell the American people any idea that even remotely resembles a call for tightened national security.
Special Weapons and Tactics teams teams are most likely the preeminent emblem of police militarization. Originally conceived of during the 1960’s, SWAT teams have become roundly adopted by nearly every law enforcement department that serves more than 50,000 people. These paramilitary squads are equipped with assault rifles, tactical body armor, and the tools necessary for quelling riots. Would we see this strong emergence of police militarization if events such as the War on Drugs or 9/11 had never happened?
Proponents of police militarization have found routes by which they might implement their plans. There exists no small amount of catalogued legislation that comments on Posse Comitatus as well as police militarization in general. For a succinct summary of various exploitable technicalities within this body of documents, make your way over to:
https://www.rand.org/content/.../MR1251.AppD.pdf
For those that are still interested, read on here:
http://csis.org/files/media/csis/pubs/trebilcock.pdf
https://www.fas.org/sgp/crs/natsec/R42659.pdf
http://www.encyclopedia.com/topic/Posse_Comitatus_Act.aspx
Thanks for taking the time to read this
Regards,
James Mark Kennedy
By James Mark Kennedy
Whatever may be their occupation, whether civilian or not, and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.
~ Former US Attorney General Caleb Cushing in 1854~
The word comitatus is unfamiliar to most Westerners because it finds its roots in Ancient Rome. Originally a Latin term, comitatus is literally translated into English as retinue. Comitati would temporarily form when a nobleman called for military aid from his fellow Romans. The newly formed team would set off into enemy territory, but they would disband almost immediately upon achievement of their goal.
In America, the nineteenth century saw many instances of similar comitati briefly uniting and then separating. The United States Government has, as is evidenced by Cushing’s statement, mandated law enforcement practices in the past that are now illegal. Enlisted soldiers continual filled temporary roles as police officers in the years leading up to 1876. U.S. Marshalls and town sheriffs regularly found themselves in need of military assistance, and they frequently exercised their right to demand it.
This status quo of police militarization was not challenged until the election of Republican presidential candidate Rutherford B. Hayes. Hayes defeated Democrat Samuel Tilden in 1876 by only one electoral vote. Historians note that the U.S. Army played a significant role in this election due to their guarding of ballot boxes in the South. U.S. law at the time stipulated that no former Confederate officer should be allowed to vote, and there were plenty of Marshalls and soldiers standing by to enforce that law.
Largely as a response to what was considered undue influence over the 1876 election, the Posse Comitatus Act was approved in June of 1878. A more relevant update of said legislation was passed in 1956 during the Presidency of Dwight D. Eisenhower. It stated:
"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."
[18 U.S.C. § 1385]
Posse Comitatus originally only laid out rules for the U.S. Army. As stated above, the Eisenhower era update mentions the Air Force as well. It was not until 1992 that Administrative Committee of the Federal Register codified a Department of Defense Regulation that stipulated the inclusion of the Navy as well as the marines under the [32 C.F.R. Section 213.2, 1992]. As long as they are operating at the state rather than the federal level, Army National Guard personnel are not prevented from engaging in local or state law enforcement.
“To execute the laws” would include arrests, detainments, establishment of civilian blockades or police checkpoints, and evidentiary investigation. This sounds almost as if military personnel should be excluded from every aspect of local and state law enforcement. Despite existing legislation, American police departments have definitely become increasingly militarized and continue to do so.
Several causal factors must be acknowledged when addressing the deterioration of the Posse Comiatus Act’s core tenets. The American Judicial system is at least partially at fault. Multiple rulings have been handed down that arguably do not uphold Posse Comiatus’s true intention. Of said rulings, one of the most notable marked the conclusion of the State of North Carolina v. Anthony D. Nelson (298 NC 573, 260 SE2d 629). For the sake of brevity, it will suffice to say that that court case ruled in favor of an increased role for the military in domestic law enforcement. The State of North Carolina opined that any military personnel could be involved in law enforcement activities as long as they only play a supportive role. Court rulings such as this allow the Department of Homeland Security to expend billions of dollars in an effort to outfit local police departments with tactical combat equipment. In 2014 alone, the DHS allotted $19.2 billion for disbursement to state and local police departments. These funds end up in even the smallest police departments, including those that police tiny towns like Fargo, North Dakota.
Beyond subversive politics and judicial loopholes, there exist a number of other routes by which the U.S. armed forces can involve themselves in police matters.
Obviously there are loopholes in American legislation dealing with the legality of police militarization. But, what Congress passed a bill in the next few days that stated in plain, concrete terms that the U.S. military shall no longer dabble in any type of domestic law enforcement? There have been instances when Posse Comiatus has been completely forgotten during times of immensely expansive national strain. Perhaps the most notable example came at the height of World War II. Military personnel worked avidly on American soil to ensure the citizenry’s safety. U.S. soldiers even went so far as to detain and interrogate Japanese-American civilians. Only one tactic is really necessary for police militarization to proceed in its exponential growth. Government officials must keep U.S. citizens concerned with their nation’s safety as well as their own personal wellbeing. With this anxiety planted in American mindsets, it becomes easy to sell the American people any idea that even remotely resembles a call for tightened national security.
Special Weapons and Tactics teams teams are most likely the preeminent emblem of police militarization. Originally conceived of during the 1960’s, SWAT teams have become roundly adopted by nearly every law enforcement department that serves more than 50,000 people. These paramilitary squads are equipped with assault rifles, tactical body armor, and the tools necessary for quelling riots. Would we see this strong emergence of police militarization if events such as the War on Drugs or 9/11 had never happened?
Proponents of police militarization have found routes by which they might implement their plans. There exists no small amount of catalogued legislation that comments on Posse Comitatus as well as police militarization in general. For a succinct summary of various exploitable technicalities within this body of documents, make your way over to:
https://www.rand.org/content/.../MR1251.AppD.pdf
For those that are still interested, read on here:
http://csis.org/files/media/csis/pubs/trebilcock.pdf
https://www.fas.org/sgp/crs/natsec/R42659.pdf
http://www.encyclopedia.com/topic/Posse_Comitatus_Act.aspx
Thanks for taking the time to read this
Regards,
James Mark Kennedy