The Posse Comitatus Act is a United States federal law signed on June 18, 1878 by President Rutherford B. Hayes. The purpose of the act – in concert with the Insurrection Act of 1807 – is to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States. It was passed as an amendment to an army appropriation bill following the end of Reconstruction, and was subsequently updated in 1956 and 1981.
The Act only specifically applies to the U.S. Army and, as amended in 1956, the U.S. Air Force. While the Act does not explicitly mention the U.S. Navy and the U.S. Marine Corps, due to their being naval services, the Navy has prescribed regulations that are generally construed to give the Act force with respect to those services as well. The Act does not apply to the Army and Air National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state’s governor. The U.S. Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act either, primarily because although the Coast Guard is an armed service, it also has both a maritime law enforcement mission and a federal regulatory agency mission.
Martial law is perhaps the ultimate stomping of freedom. And yet, on September 30, 2006, Congress passed a provision in a 591-page bill that will make it easy for a sitting president to impose martial law in response to a terrorist “incident.” It also empowers him to effectively declare martial law in response to what he or other federal officials label a shortfall of “public order” — whatever that means.
It took only a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president’s ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened those restrictions, imposing a two-year prison sentence on anyone who used the military within the United States without the express permission of Congress. (This act was passed after the depredations of the U.S. military throughout the Southern states during Reconstruction.) But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act. The Insurrection Act and Posse Comitatus Act aim to deter dictatorship while permitting a narrow window for the president to temporarily use the military at home. But the 2006 reforms basically threw any concern about dictatorial abuses out the window.Section 1076 of the Defense Authorization Act of 2006 changed the name of the key provision in the statute book from “Insurrection Act” to “Enforcement of the Laws to Restore Public Order Act.” The Insurrection Act of 1807 stated that the president could deploy troops within the United States only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The new law expands the list of pretexts to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” — and such a “condition” is not defined or limited.
The new law was put in place in response to the debacle of the federal response to Hurricane Katrina. There was no evidence that permitting a president far more power would avoid future debacles, but such a law provides a comfort blanket to politicians. The risk of tyranny is irrelevant compared with the reduction of risk of embarrassment to politicians.
According to Washington, the correct response to Katrina is not to recognize the failure of relying on federal agencies a thousand miles away but rather to vastly increase the power of the president to dictate a solution, regardless of whether he knows what he is doing and regardless of whether local and state rights are trampled.
The new law also empowers the president to commandeer the National Guard of one state to send to another state for as many as 365 days. The president could send the South Carolina National Guard to suppress anti-war protests in New Haven. Or send the Massachusetts National Guard to disarm the residents of Wyoming, if they resisted a federal law that prohibited private ownership of semi-automatic weapons. Governors’ control of the National Guard can be trumped with a simple presidential declaration.
Section 1076 had bipartisan support on Capitol Hill, including support from Sen. Carl Levin (D-Mich.), Sen. John Warner (R-Va.), Sen. Ted Kennedy (D-Mass.), and Rep. Duncan Hunter (R-Calif.), chairman of the House Armed Services Committee. Since the law would give the feds more power, it was very popular inside the Beltway.
On the other hand, every governor in the country opposed the changes. Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, warned on September 19, 2006, that “we certainly do not need to make it easier for presidents to declare martial law.” Leahy’s alarm got no response. Ten days later, he commented in the Congressional Record, “Using the military for law enforcement goes against one of the founding tenets of our democracy.”
Chronological History of Events Regarding Posse Comitatus
Attorney General William P. Barr Announces Launch of Operation Legend
Operation Maple Resolve (Canada) / 133 Target Stores Close Abruptly
A Document Originating from Halliburton subsidiary KBR Provides Details on a Push to Outfit FEMA and U.S. Army Camps around the United States.
Leaked US Army Document Details Plan for Re-Education FEMA Camps in America
HR-5122 Expands the President’s Power to Declare Martial Law Under Revisions to the Insurrection Act
The Department of Homeland Security is Established
Waco: 95 Innocent Branch Davidians (Including women and children) vs. Delta Force, CIA, FBI, ATF, and British SAS. Guess Who Wins?
Bonus Marchers Evicted by U.S. Army Under President Hoover’s Order
