Talk:Posse Comitatus Act
|This article is of interest to the following WikiProjects:|
- 1 Discussion 2005
- 2 USCG correction needed?
- 3 Where is the original article from a few months ago
- 4 John Warner act text
- 5 Latin Etymology
- 6 Packard Memo
- 7 Recent legislative events
- 8 Redundancy with a contradiction
- 9 Clarification needed
- 10 g20
- 11 Possible omission?
- 12 FYI
- 13 Marines?
- 14 Applicability
- 15 NDAA
- 16 "Contrary to popular belief, the Act, does prohibit..."
- 17 Drone Training
- 18 Added restrictions of authority under the National Defense Authorization Act for Fiscal Year 2012
- 19 Legal cases and recent related regulations
- 20 D.C. National Guard
- 21 Insert Citation Need Tag
- 22 Exclusions and limitations --> Enforcement of federal law
The Homeland Security section needs cleaning up in some way as it does not introduce why the section is relevant very clearly. Perhaps because I do not live in the United States it is less clear than to a North American but this still means that the section requires cleanup. Hydraton31 12:06, 10 July 2006 (UTC)
What does posse comitatus mean in Latin? -- Error
Power to the county, or power of the county. Meaning giving authority to the lowest level of US government. -- Zoe
Actually what you see in those old cowboy movies when they talk about the sheriff getting a posse together is accurate. It is a group of local individuals who have been authorized by the sheriff to conduct a manhunt or search for an individual who they had the authority to arrest or place in the county jail.
Technically, at least originally the Latin "power of the county" isn't about giving authority to the lower levels of government. The "power of the county" was the power of government inherent in the county, and vested in its chief magistrate the sheriff, to conscript able-bodied men into the posse. It isn't about federalism or keeping government small; that's a romantic association that comes mostly from Hollywood. It's about the authority of government to do what it takes to govern. -- IHCOYC
Black's Law Dictionary 6th ed defines it thus: Posse 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 1162 (6th ed. 1990). It first was used in referring to the military in Us Federal Act of Sept. 18, 1850, ch. 60, 9 Stat. 462, 462-63 a law that empowered federal marshals to return lost slaves to their owners. The US Attorney General believed the posse comitatus included the army Extradition of Fugitives from Service, 6 Op. Att'y Gen. 466, 473 (1854), this is what later led to the passage of the act. It is an old English term -- it was not invented in America. Its original use was from the structure of the pre-Norman county governments of England.Alex756
Be prepared to update this page if Federal troops are used for law enforcement activities in the wake of Hurricane Katrina. --JD79 00:55, 2 September 2005 (UTC)
Just a note on the translation -- posse comitatus does not quite literally mean "the power of the country" although it is similar. "Posse" is a verb, "comitatus" is a noun. Posse comes from possum, meaning "I can, I am able to", and posse is infinitive active. Comitatus is probably a perfect participle passive from comito, which means "I follow, or I am part of". Therefore working back from that the correct translation (as best as English can render Latin), it would be something like "to be able to make someone part of a retinue or group"; in other words, to be able to incorporate people into a crew (for a law-enforcement purpose, presumably). It's probably from a truncated phrase, like "posse comitatus factus esse" or something like that. quod erat demonstrandum. Cato
rand corperation link dead
(Rand link working - --Costoa 00:43, 22 September 2005 (UTC))
USCG correction needed?
Before the DHS (Department of Homeland Security) the US Coast Guard was under the Department of Transportation. During a declared war they were under the US Navy, similar to the US Marine Corps. Even now since they aren't under the control of the DoD The Posse Comitatus Act is not an issue for them and IMO this should be somehow expressed.
The USCGs relationship to the US military has always be a bit of an enigma.
--Costoa 00:43, 22 September 2005 (UTC)
- Technically speaking, it doesn't matter. PCA only applies to the Army, and by extension, the Air Force. Besides, I think, officially, the CG is only a military branch at times of war. I agree though, something about its application to all the branches should be articuled very clearly and in its own section. Mmmbeer 01:45, 22 September 2005 (UTC)
Why doesnt somebody actually post the act in its entirety so that everybody may read it so that interpreations are cross checked.
Actually the USCGs relationship to the US military is not really an engima as it is part of the US military, just not in the Department of Defense.
- Title 14, United States Code, Section 1, states "The Coast Guard as established January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times.".
Where is the original article from a few months ago
In light of the Bush administration trying to limits abilities for more access to Huricane Katrina, did this article get rewritten. Especially the part that impeachment for profiting from the military. This seems not to be listed, but only a fine or a maximium two year sentence is referred. Nothing about its origination during Lincon's presidency and after. A lot is missing and a lot is watered down.
John Warner act text
I just reverted an unsourced statement:
The John Warner Defense Authorization Act, signed October 17, 2006, (Section 1076) has effectively repealed this Act.
I came to this article because I was looking for informaton on this act, and it's possible that the text is accurate, but the only source I've found so far that makes the above assertion is an editorial. I'd like to see some solid references before it's added back in, but since the original author was an IP user, I've got to make the appeal here. - CHAIRBOY (☎) 03:59, 10 November 2006 (UTC)
I think the statement should be reinstated. The Act refered to states that "the President may employ the armed forces to (...) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" if the authorities of that State refuse to act. (cf. http://thomas.loc.gov/cgi-bin/query/F?c109:6:./temp/~c1098A7DDu:e939907: ). This means that, if the President thinks there is a conspiracy and the State disagree, he can send in the troops. Isn't that what Posse Comitatus is supposed to prevent?
- I have added the translation of Posse Comitatus as a section. This should give an historical reference to what the meaning is about. Mark Preston (talk) 16:45, 5 December 2007 (UTC)
- Sorry, but I have deleted Cato's note on translation (see "Discussion 2005" above) from the article, since "Power of the county" is perfectly literal: "posse" is a nominalized infinitive meaning "power" or "force", and a "comitatus" is a county (the English word is derived from the Latin one, in fact), inflected for the genitive, which is spelled the same but rhymes with "goose". Joaoninguem (talk) 16:46, 6 June 2009 (UTC)
- The noun "comitatus" thus seems to be fourth declension. Anthony Appleyard (talk) 21:55, 22 October 2009 (UTC)
This needs rewriting since it just seems to restate the Insurrection Act.
In 1971, Deputy Secretary of Defense David Packard wrote the Packard Memo or Employment of Military Resources in the Event of Civil Disturbances that modified the Code of Federal Regulations, Title 32, Volume 2, Chapter 1, Part 215, Section 6. This addition allegedly revoked a substantial part of the 1878 Posse Comitatus Act and provided for 'exceptions' to the Act "to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situation" and "to protect Federal government functions when the need for protection exists." "Packard's directive (stated) that turning over law enforcement will 'normally' require a Presidential Executive Order, but that this requirement can be waived in 'cases of sudden and unexpected emergencies... which require that immediate military action be taken." (Lindorff, 1988) Packard's directive, in essence, reinstated the possibility of martial law in the United States, prohibited since 1878.
However, the enumerated powers of the constitution grant no authority to the executive branch to unilaterally alter the law or otherwise usurp powers reserved for the legislative branch. This can only be accomplished by amending or repealing the law itself through the constitutional legislative process. "Martial law was defined in an integral Federal Emergency Management Agency (FEMA) memo written in 1982... The memo, written by FEMA official John Brinkerhoff to agency director Louis Giuffrida, notes that martial law “suspends all prior existing laws, functions, systems, and programs of civil government, replacing them... with a military system.” (Lindorff, 1988).
- Comment: See the USC referenced above, apparently from Lindorff . Note that the quotes above are partial quotes of the section. The entire part referred to is a listing and description of the already existing exceptions to the Posse Comitatus Act, not new exceptions. According to Part 215, the purpose is to establisher uniform DOD policies, etc., when the U.S. military is used in civilian circumstances. Beyond the Lindorff reference, are there unbiased sources that support this interpretation? — ERcheck (talk) 17:18, 21 September 2008 (UTC)
Recent legislative events
For longterm wiki use this section should be re-written. In addition it states "original text" date of 1807 with a passing date of 1878. I do not know the facts but there is definitely something wrong with the time lines. JMJimmy (talk) 22:40, 11 June 2008 (UTC)
- The 1807 date refers to when the Insurrection Act (of 1807) was enacted, which is related to the Posse Comitatus Act (which itself passed in 1878). The 2007 Defense Bill modified the wording of the law (which had stood since 1807). Those changes have now been repealed, changing the wording back to the original wording. das (talk) 14:31, 20 June 2008 (UTC)
Redundancy with a contradiction
That Bush attached a signing statement to a 2008 repeal of provisions in a 2006 bill appears three times in different parts of the article:
Those should be combined.
However, note that there is a contradiction between two of the accounts. The one in Homeland security says the bill was passed in early 2006, whereas in Natural disasters we are told that Bush asked for the changes in Sept. 2006. He would not have asked for the changes in Sept. if they'd already been made earlier that year.
- The signing statement on the 2008 defense bill has no effect on the repeal. As such, references to the signing statement have been removed. Regarding the chronology, the bill had already been more or less hammered out, but had not yet been signed into law and agreed to by both houses. das (talk) 02:17, 15 October 2008 (UTC)
The second bullet under Exclusions and limitations, tells us that troops can be used if under order of the president. First of all, where is that exception stated? It certainly does not appear in either of the two laws cited under Legislation.
Secondly, if that exception exists, then what is the whole issue about? In Bush's signing statement he seems to be declaring that he has the power to call troops into domestic action if he deems necessary. But if that exception exists, then he certainly has that power.
The exception cannot be coming from the 2006 bill because a companion article gives five instances between 1943 and 2005 that military troops have been used in domestic affairs. If it was done on those five occasions, and that was okay, then what is the problem with that Army brigade that has recently been deployed to be ready to do it again?
- Please quote the five occasions you speak of regarding the use of FEDERAL troops (NOT National Guard). The point is that the law was there to protect against the direct use of troops against our own citizens. That protection is now gone, similar to the 1930s in another country. Rarelibra (talk) 17:03, 12 October 2008 (UTC)
- Along those lines, I have tagged this article for copyedit and cleanup. Calebrw (talk) 14:47, 12 October 2008 (UTC)
Rarelibra, you are incorrect. The signing statement issued with the 2008 defense bill does not change, alter, or impact that repeal in any way. The signing statement is utterly irrelevant to this issue. Signing statements are designed to signify Presidential disagreement with components of legislation, but they don't change the meaning of the legislation: the fact is that the LAW has been changed to its pre-2006 state. Remember that the whole reason for the changes was to modernize the code dealing with "insurgency" and update for major public emergencies. Even though the wording of the old text should be found offensive (i.e., the military being able to be used against the vague notions of "rebellion", "unlawful combination", and so on), the new text was designed exclusively to deal with major public emergencies, and had more controls than even the previous text. However, all of that is irrelevant now since the changes have been repealed. The President's signing statement doesn't change the law. das (talk) 01:50, 15 October 2008 (UTC)
- Daveschroeder - I don't believe I was the one talking about the signing statement. However, I am not "incorrect." Explain to me your credentials from wisc.edu (I am a Badger, by the way) - and I will explain to you my own. Signing statements CAN and DO make changes - there have been plenty of examples whereby the executive branch wanted to strengthen their own power (Cheney himself even attempted to assert that he is part of the legislative branch and not the executive branch). Unless you are a memeber of the receiving end of all of this, do not dictate that it does not change the law. I suggest you read more in the article about it, as well as some of the provided references.
- The signing statement does not reference the section where the repeal took place. As such, it does not signify executive dispute or disagreement with the repeal, an intent to ignore it, or similar. It DOES NOT change the portion of the law in question, namely the repeal. In other words, the repeal takes it back to the exact wording of the law before the change, and the executive branch took no issue with the section in question. das (talk) 13:20, 15 October 2008 (UTC)
- As for the Army stationing the BCT in NORTHCOM and the subsequent change in the manual, I am one of the "traditionalists" that the article mentions, being I enlisted under Reagan. Do not attempt to dissuade the fact that the Army is undergoing a philosophy change that involves the future usage within the United States - whether it be for emergency or whatnot, that role has always been charged to the National Guard (which, mind you, will now have a 4-star sitting on the Joint Chiefs). Rarelibra (talk) 13:08, 15 October 2008 (UTC)
- Rarelibra, do you have an instant messenger of choice? Instead of starting an edit war, it may be beneficial for us to discuss the situation. das (talk) 13:11, 15 October 2008 (UTC)
- Rarelibra, I just received your message (sent to me via email). I don't have easy telephone access today, but will have network access off and on. If you have an instant messenger of choice, feel free to contact me via any method the left sidebar of my web page (which you have already seen). I am also on AKO IM as "dave.a.schroeder". das (talk) 13:51, 15 October 2008 (UTC)
The statement in the article is that federal troops cannot be used within the US to enforce the law. How then could President Eisenhower send in the 101st Airborne to Little Rock, Arkansas to enforce a court order integrating a local high school? See http://en.wikipedia.org/wiki/101st_Airborne_Division_(United_States)#Civil_rights Snamdlef (talk) 02:45, 8 February 2009 (UTC)
- I'm no expert, but from following the wikilinks and reading the related laws;
- Posse Comitatus (1878) has two exceptions - except when "expressly authorized by the Constitution or Act of Congress". The key is "Act of Congress". The Insurrection Act (1807) is an "Act of Congress", thus uses authorized by this Act are also lawful under Posse Comitatus, in particular it is allowed for the President of the United States to deploy troops within the United States to put down lawlessness, insurrection and rebellion. It is this exception that seems to apply to the use of the 101st Airborne in Little Rock. — ERcheck (talk) 03:04, 8 February 2009 (UTC)
- They were probably operating under State authority, not Federal authority. - BilCat (talk) 16:45, 27 September 2009 (UTC)
- The National Guard under state authority is not covered by PCA. das (talk) 15:05, 30 September 2009 (UTC)
The header of this article says:
"The Act prohibits most members of the federal uniformed services (today the Army, Air Force, and State National Guard forces when such are called into federal service) from exercising nominally state law enforcement, police, or peace officer powers that maintain..."
Hey, what about the US Navy and the US Marines? No mention, so it is legal to shell west coast cities with 16" battleship grenades or invade them with AAV7s if they refuse to pay federal taxes? 220.127.116.11 (talk) 21:20, 4 October 2009 (UTC)
- Is there something related to the editing of the article hidden in your message above? This is not a chat forum about the subject matter. - CHAIRBOY (☎) 18:13, 25 November 2009 (UTC)
As with any Act of Congress (sic), the Posse Comitatus Act can be suspended and/or repealed when it becomes politically expedient to do so. IE World War Two.--Degen Earthfast (talk) 03:31, 1 March 2010 (UTC)
- You added the above comment to the article, which I have removed. Yes, Congress can ammend/repeal any act of Congress, and they have amended this act on several occasions. However, the rest is supposition/opinion, and needs to be cited from a reliable source to remain. There can be other reasons besides "politically expedient", such as war. Also, the act's suspension or ammendment in WW@ needed also a citation. Finally, Chairboy is correct about this not being a forum. - BilCat (talk) 03:58, 1 March 2010 (UTC)
After the Branch Davidian 'incident' in Waco, there was quite a bit of discussion about whether there had been a violation of the Posse Comitatus Act with respect to the level of 'support' that the military gave to law enforcement. Perhaps a section on "Possible Violations" might be good to add? Grumman581 (talk) 18:41, 19 February 2011 (UTC)
There are a lot of questions regarding who the act does or does not apply to. Hopefully this will clarify things.
A great deal of confusion arises because people paraphrase the Posse Comitatus Act to say "the military can't conduct law enforcement." This causes people to make assumptions such as "since the Coast Guard conducts law enforcement, they can't be part of the military," or "the Navy and Marine Corps are prohibited from conducting law enforcement because of Posse Comitatus."
The truth of the matter is, Posse Comitatus only prohibited the Army from conducting law enforcement. When the Army Air Force become the U.S. Air Force, the act was amended so it would still be included. The Navy, Marine Corps, and Coast Guard are not addressed in the act; it only applies to the Army and Air Force.
It is true that the Navy and Marine Corps have the same restrictions on law enforcement as the Army and Air Force, but this is through other policies, rules, and regulations, not the Posse Comitatus Act. None of the restrictions have ever applied to the Coast Guard, which acts as a military and law enforcement service at all times.
Is it true that the National Defense Authorization Act recently signed by President Obama renders the Posse Comitatus Act irrelevant? If so, the article should be updated to reflect this. 18.104.22.168 (talk) 01:18, 24 February 2012 (UTC)
Yes-- please update this to reflect 32 CFR 185.4 - Defense of Civil Authorities which allows any governmental entity to request and receive military assistance against it's citizens. — Preceding unsigned comment added by 22.214.171.124 (talk) 23:47, 18 September 2013 (UTC)
"Contrary to popular belief, the Act, does prohibit..."
This doesn't read very well, and looking back through the edits it appears that someone changed it from "does not" to "DOES" about a month ago (in caps, which were later edited out). — Preceding unsigned comment added by 126.96.36.199 (talk) 18:26, 17 January 2013 (UTC)
What does drone tracking of civilian motor vehicles as training have to do with the Posse Comitatus Act? It's not policing, it's not reporting to law enforcement, it's simply tracking a vehicle in preparation for later military duties overseas.Wzrd1 (talk) 20:09, 23 February 2013 (UTC)
I do not like the term "drone" it implies a completely autonomous device out there making targeting decisions. The proper term is Remotly Piloted Aircraft (RPA) BRI70 (talk) 18:58, 15 March 2013 (UTC)
- The proper term is UAV. The first and second sentences of that article directly address the issue you have with the word drone.188.8.131.52 (talk) 17:47, 18 June 2013 (UTC)
Pre-existing text on the act did not describe the restriction of military arrest powers to outside of the United States and to non-US citizens, whereas lawful residents of the US, US Citizens and those arrested or captured inside of the United States are beyond the authority of the military. That wasn't clear in the original prose, but multiple conspiracy theorists ignore that section, this gives more even and factual scope of authority information.Wzrd1 (talk) 15:53, 18 October 2013 (UTC)
Have been wanting to beef up this article for over a year with various applications. Here's a very interesting one just found will add for my future reference and in case anyone else wants to jump in :-)
- http://seattletimes.com/html/localnews/2024565988_navyporn1xml.html 9th Circuit tosses child-porn evidence, cites Navy snooping], Mike Carter, Settle Times/ 9/18/14 Quote: The three-judge panel of the U.S. 9th Circuit Court of Appeals, in a decision handed down last week, said the 2012 prosecution of Michael Allan Dreyer by the U.S. Attorney’s Office in Seattle demonstrated Naval Criminal Investigative Service (NCIS) agents “routinely carry out broad surveillance activities that violate” the Posse Comitatus Act, a Reconstruction-era law that prohibits the military from enforcing civilian laws.
Not having done research on this topic in a few years, I can't remember off hand notable cases, but this is the sort of thing that needs adding. (And then there's all the discussion of interaction of posse commitatus and other laws passed in 2000s which allegedly affected it, some of which may have expired. But it's good to get it all in there.) Carolmooredc (Talkie-Talkie) 15:06, 20 September 2014 (UTC)
- Interesting. Sounds like a good topic to write a law review article on at least. I'm sure the legal scholarship is going to have something to say. —/Mendaliv/2¢/Δ's/ 18:34, 20 September 2014 (UTC)
- That most certainly is news to me. A military police investigator most certainly violated the act, both in the letter of the law and erased its intent. What is more astonishing is that the case was prosecuted at all, for any prosecutor should know of the act and its prohibition of law enforcement action by military personnel outside of their installation, save in very narrow circumstances involving military personnel and military contractors. That said, a brief entry in the article on case law regarding these offenses against the act would be noteworthy.Wzrd1 (talk) 19:25, 20 September 2014 (UTC)
D.C. National Guard
The unique issues relating to the District of Columbia may pose another set of exclusions, but I don't want to add it without others' input (as I'm not 100% of this, myself). In this case, the President's command over the District of Columbia National Guard (and corresponding Air National Guard) may allow the President to directly activate the militias for uses otherwise reserved for state governors, and may also activate the adjacent Maryland and Virginia National Guards for use within D.C. --Bossi (talk • gallery • contrib) 15:00, 22 February 2017 (UTC)
Insert Citation Need Tag
A citation needed tag has been inserted with respect to the statement that U.S. Costgaurd is not subject to the act. The reason for this is that the statement would apparently have to be either backed by specific authority of law or a court decision, which should appear as an appropriate reference, per applicable Wikipedia policy. 184.108.40.206 (talk) —Preceding undated comment added 00:05, 26 August 2018 (UTC)
- Wikipedia policy includes WP:LEADCITE, and the fact that the Coast Guard (and that's the correct spelling, by the way) is not subject to the Act is sourced later in the article. oknazevad (talk) 00:31, 26 August 2018 (UTC)
Exclusions and limitations --> Enforcement of federal law
This is my first time so apologies for any mistakes I am making.
This bullet point was deleted several times and has been readded by bots) several times. This point should either be folded into the second bullet point (Federal armed forces used in accordance to the Insurrection Act, ...) or removed entirely. The current wording is very ambiguous as the referred action was also done under an exception in the Insurrection Act instead of presidental authority alone. It falsely suggests that POTUS has the authority to deploy federal troops to enforce federal at will.
It was added without sources and without discussion despite several deletions and rollbacks since it was added in February 2017.