I am angry and disgusted by the passage of the National Defense Authorization Act including the provision allowing military detention on terrorism suspects on U.S. soil to be held indefinitely without trial. The patriot act has been a proclamation of American hypocrisy, this is a total defilement of the U.S. Constitution. The senators who voted for this provision are not patriots, they are cowards pandering to the propaganda and fear-mongering of the extreme right who are winning the battle to turn our Republic into a police state where the people have legitimate reason to fear our own government. These senators have publicly stated they do not trust the American law enforcement and judicial systems to investigate, arrest and try suspected terrorist, they do not have any faith in the laws and civil liberties enshrined in our Constitution, laws and civil liberties that have protected us (though not without unjustified lapses) throughout our long history as a bastion of freedom and democracy. The spineless, cowardly, unpatriotic actions of these senators makes me sick, and they should be ashamed. PRESIDENT OBAMA, VETO THIS BILL! (Check out the article concerning Posse Comitatus following this article from HuffPost)....
WASHINGTON -- The Senate voted Tuesday to keep a controversial provision to let the military detain terrorism suspects on U.S. soil and hold them indefinitely without trial -- prompting White House officials to reissue a veto threat.
The measure, part of the massive National Defense Authorization Act, was also opposed by civil libertarians on the left and right. But 16 Democrats and an independent joined with Republicans to defeat
an amendment by Sen. Mark Udall (D-Colo.) that would have killed the provision, voting it down with 61 against, and 37 for it.
"I'm very, very, concerned about having U.S. citizens sent to Guantanamo Bay for indefinite detention," said Sen. Rand Paul (R-Ky.), one of the Senate's most conservative members.
Paul's top complaint is that a terrorism suspect would get just one hearing where the military could assert that the person is a suspected terrorist -- and then they could be locked up for life, without ever formally being charged. The only safety valve is a waiver from the secretary of defense.
"It's not enough just to be alleged to be a terrorist," Paul said, echoing the views of the American Civil Liberties Union. "That's part of what due process is -- deciding, are you a terrorist? I think it's important that we not allow U.S. citizens to be taken."
Democrats who were also concerned about liberties compared the military policing of Americans to the detention of Americans in internment camps during World War II.
"Congress is essentially authorizing the indefinite imprisonment of American citizens, without charge," said Sen. Dianne Feinstein (D-Calif.), who offered another amendment -- which has not yet gotten a vote -- that she said would correct the problem. "We are not a nation that locks up its citizens without charge."
Backers of military detention of Americans -- a measure crafted by Sen. Carl Levin (D-Mich.) -- came out swinging against Udall's amendment on the Senate floor earlier Tuesday.
"The enemy is all over the world. Here at home. And when people take up arms against the United States and [are] captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity?" Sen. Lindsey Graham (R-S.C.) said.
"They should not be read their Miranda Rights. They should not be given a lawyer," Graham said. "They should be held humanely in military custody and interrogated about why they joined al Qaeda and what they were going to do to all of us."
In criticizing the measure, White House officials said
that it would cause confusion and interfere with a counterterrorism effort that has been remarkably successful since Sept. 11, 2001 -- across two administrations.
"It is likely that implementing such procedures would inject significant confusion into counterterrorism operations," the White House argued in a Nov. 17 statement.
Further, it contended:
This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.
A White House official said the administration stands by the veto threat. "We take this very, very seriously," the official said.
Both FBI Director Robert Mueller and Director of National Intelligence James Clapper backed up the White House with letters sent to congressional leaders.
Clapper echoed the charge that the measure creates uncertainty and added that it could prevent intelligence operatives from getting critical information from suspects.
And although the measure allows the secretary of defense to waive it, both Mueller and Clapper said that could prove unworkable in the real world.
Mueller added that it could even stop the FBI from investigating individuals who fall under the definitions of suspected terrorist in the measure.
The 2012 National Defense Authorization Act would authorize defense spending on military personnel, weapons and war. The first draft of the bill won support from both parties in Congress in October, passing out of the Senate Armed Services Committee with just Udall dissenting. A similar House bill allocating $690 billion for the Pentagon passed in May, without the controversial measure. It could be changed when the differing versions are merged, if Congress desires.
The detention provision whipped up a furor in both parties, with Senate Majority Leader Harry Reid (D-Nev.) having already
text delayed the vote over it.
The final vote showed bizarre fractures among Democrats, erasing the usual barriers between conservatives and liberals. The 16 who voted for the harsh detainee rules were Sens. Bob Casey (Pa.), Kent Conrad (N.D.), Kay Hagan (N.C.), Daniel Inouye (Hawaii), Herb Kohl (Wis.), Mary Landrieu (La.), Carl Levin (Mich.), Joe Manchin (W. Va.), Clair McCaskill (Mo.), Robert Menendez (N.J.), Ben Nelson (Neb.), Mark Pryor (Ark.), Jack Reed (R.I.), Jeanne Shaheen (N.H.), Debbie Stabenow (Mich.) and Sheldon Whitehouse (R.I.). National defense hawk and independent Sen. Joe Lieberman (Conn.) also voted in favor of the tougher language.
"It's one of those things where ... it's bipartisan on both sides. Levin's not on the same page as the White House. We've got our own internal differences; Paul and Kirk don't agree with Graham," said a senior GOP aide just before the vote. "Everybody's trying to do the right thing. There's just a difference of opinion."
Even though Paul was joined only by Sen. Mark Kirk (R-Ill.) on his side of the aisle, the issue was contentious at the Republicans' weekly caucus lunch.
Sen. John McCain (R-Ariz.) emerged from the meeting -- where former Vice President Dick Cheney was in attendance -- saying his colleagues had "a spirited discussion" about Udall's amendment, and predicted nearly all Republicans would oppose the amendment, as they did.
Update 10:30 p.m.
Sen. Menendez later sought, and was granted, unanimous consent from the Senate to change his vote. He is now recorded as supporting the Udall amendment, with the final tally changed to 38 to 60.
Additional reporting by Hayley Miller.
Posse Comitatus Act
http://en.wikipedia.org/wiki/Posse_Comitatus_Act
The
Posse Comitatus Act is the
United States federal law (
18 U.S.C. § 1385) that was passed on June 18, 1878, after the end of
Reconstruction. Its intent (in concert with the
Insurrection Act of 1807) was to limit the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of the land. Contrary to popular belief, the Act does not prohibit members of the
Army from exercising state
law enforcement,
police, or
peace officer powers that maintain "
law and order"; it simply requires that any orders to do so must originate with the United States Constitution or Act of Congress.
The statute only directly addresses the US Army (and is
understood to equally apply to the US Air Force as a "derivative" of the US Army). It does not refer to, and thus does not implicitly apply to nor restrict units of the National Guard under federal authority from acting in a law enforcement capacity within the United States. The
Navy and
Marine Corps are prohibited by a Department of Defense directive, (self-regulation,) not by the Act itself.
[1][2] Although it is a
military force,
[3] the U.S. Coast Guard, which now operates under the
Department of Homeland Security, is also not covered by the Posse Comitatus Act.
History
The Act was a response to, and subsequent prohibition of, the military occupation by U.S. Army troops of the former Confederate States during the ten years of Reconstruction (1867–1877) following the
American Civil War (1861–1865). The U.S. withdrew Federal troops from Southern states as a result of a compromise in one of the most disputed national elections in American history, the
1876 U.S. presidential election.
Samuel J. Tilden of
New York, the
Democratic candidate, defeated
Republican candidate
Rutherford B. Hayes of
Ohio in the popular vote. Tilden garnered 184
electoral votes to Hayes' 165; 20 disputed electoral votes remained uncounted. After a bitter fight, Congress struck a deal resolving the dispute and awarding the presidency to Hayes.
In return for Southern acquiescence regarding Hayes, Republicans agreed to support the withdrawal of federal troops from the former Confederate states, ending Reconstruction. Known as the
Compromise of 1877, this deal of political expediency removed federal protection for Southern
ex-slaves.
[4] The U.S. Constitution places primary responsibility for the holding of
elections in the hands of the individual states. The maintenance of peace, conduct of orderly elections, and prosecution of unlawful actions are all state responsibilities, pursuant to the states' primary job of exercising police power and maintaining law and order.
During the local, state, and federal elections of 1874 and 1876 in the former Confederate states, all levels of government chose not to exercise their police powers to maintain law and order.
[citation needed] Many acts of violence, and a suppression of the vote of some political and racial groups, resulted in the election of
state legislators and U.S. congressmen who halted and reversed political reform in the American South.
[4]
When the
U.S. Representatives and
Senators from the former Confederate states reached Washington, they set as a priority the creation of a statute prohibiting any future President or Congress from directing, by military order or federal legislation, the imposition of federal troops in any U.S. state.
An exception to Posse Comitatus Act derived from the
Force Acts allowed President Eisenhower to send Federal Troops into Little Rock, Arkansas during the 1958 school desegregation crisis. The
Force Acts, among other powers, allow the President to call up military forces when state authorities are either unable or unwilling to suppress violence that is in opposition to the constitutional rights of the people.
[5]
The original Posse Comitatus Act referred essentially to the
United States Army. The
Air Force was added in
1956 and the
Navy and the
Marine Corps have been included by a regulation of the
Department of Defense. The
United States Coast Guard is not included in the Act. (The U.S. Coast Guard was originally part of the
Treasury Department, was later part of the
Department of Transportation, and is now within the
Department of Homeland Security.) This law is often relied upon to prevent the Department of Defense from interfering in domestic law enforcement.
[6]
Legislation
The original provision was enacted as Section 15 of chapter 263, of the Acts of the 2nd session of the
45th Congress.
Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment
[7]
The text of the relevant legislation is as follows:
- 18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus
- 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.
Also notable is the following provision within
Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):
- 10 U.S.C. § 375. Restriction on direct participation by military personnel
- The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
Recent legislative events
On September 26, 2006,
President Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident,
or other condition.
These changes were included in the
John Warner National Defense Authorization Act for Fiscal Year 2007 (
H.R. 5122), which was signed into law on October 17, 2006.
[8]
Section 1076 is titled "Use of the Armed Forces in major public emergencies." It provided that:
The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
[9]
In 2008, changes in the
Insurrection Act of 1807 were
repealed in their entirety, reverting to the previous wording of the
Insurrection Act[10] that in its original form was written to limit Presidential power as much as possible in the event of insurrection, rebellion, or lawlessness.
Exclusions and limitations
There are a number of situations in which the Act does not apply. These include:
Exclusion applicable to U.S. Coast Guard
- See the Law Enforcement Detachments and Missions of the United States Coast Guard for more information on U.S. Coast Guard law enforcement activities
Although it is a
military force,
[11] the U.S. Coast Guard, which operates under the
Department of Homeland Security, is not covered by the Posse Comitatus Act. The Coast Guard enforces U.S. laws, even when operating as a service for the
U.S. Navy.
In December 1981, additional laws were enacted clarifying permissible military assistance to civilian law enforcement agencies and the Coast Guard, especially in combating
drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (
e.g., use of facilities, vessels, and aircraft, as well as intelligence support, technological aid, and surveillance) while generally prohibiting direct participation of Department of Defense personnel in law enforcement (
e.g., search, seizure, and arrests). For example, a U.S. Navy vessel may be used to track, follow, and stop a vessel suspected of drug smuggling, but Coast Guard
Law Enforcement Detachments (LEDETs) aboard the Navy vessel would perform the actual boarding and, if needed, arrest the crew.
[12]
Federal military forces have a long history of domestic roles, including the occupation of sovereign Southern states during Reconstruction. The Posse Comitatus Act prohibits the use of federal military forces to "execute the laws"; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to conventional law enforcement.[4]
On December 10, 2008, the
California Highway Patrol announced its officers, along with
San Bernardino County Sheriff's Department deputies and US Marine Corps Military Police, would jointly staff some sobriety and drivers license checkpoints.
[13] However, the Marines at the checkpoints are not arresting individuals or enforcing any laws, which would be a violation of the Posse Comitatus Act.
[14] A spokesperson said that the Marines were present to observe the checkpoint to learn how to conduct checkpoints on base, to help combat the problem of Marines driving under the influence. The Marines at a recent checkpoint learned techniques to conduct sobriety checkpoints and field sobriety tests.
[14]
On March 10, 2009, active duty Army military police troops from
Fort Rucker were deployed to
Samson, Alabama in response to
a murder spree. Samson officials confirmed that the soldiers assisted in traffic control and securing the crime scene. The
governor of Alabama did not request military assistance nor did President
Obama authorize their deployment. Subsequent investigation found that the Posse Comitatus Act was violated and several military members received "administrative actions."
[15][16]
Latin etymology
Posse Comitatus (Latin): Power of the county. The whole force of the county: that is, all the male members of a county over fifteen, who may be summoned by a sheriff to assist in preventing a riot, the rescue of prisoners, or other unlawful disorders.
[17]
See also
References
- ^ http://www.history.navy.mil/library/online/posse%20comit.htm
- ^ http://www.fas.org/irp/doddir/dod/d5525_5.pdf
- ^ About the United States Coast Guard
- ^ a b c The Posse Comitatus Act: Setting the record straight on 124 years of mischief and misunderstanding before any more damage is done, Military Law Review, Vol. 175, 2003.
- ^ Lieberman, Jethro (1999). A practical companion to the Constitution: how the Supreme Court has ruled on issues from abortion to zoning. University of California Press. ISBN 0-520-21280-0.
- ^ http://www.nytimes.com/2009/07/25/us/25detain.html?scp=3&sq=Posse%20Comitatus%20Act%20of%201878&st=cse Mazzetti, Mark and Johnston, David. Bush Weighed Using Military in Arrests. New York Times, July 24, 2009.
- ^ Text at Wikisource
- ^ John Warner National Defense Authorization Act for Fiscal Year 2007
- ^ H.R. 5122, pg 322-323
- ^ "H.R. 4986: National Defense Authorization Act for Fiscal Year 2008". GovTrack.us. 2008. Retrieved January 24, 2008.
- ^ About the United States Coast Guard
- ^ http://www.uscg.mil/History/articles/LEDET_History.asp Coast Guard Law Enforcement Detachments (LEDETs): A History
- ^ CHP to Conduct Sobriety/Driver License Checkpoint, CHP News Release, December 10, 2008;
- ^ a b Joint CHP-Marine Corps Checkpoint Raises Suspicions, KESQ News Channel 3, December 16, 2008.
- ^ Army reviews shows troop use in Samson killing spree violated federal law>, Birmingham News
- ^ Revolutionizing Northern Command, Lt. Col. Gary L. McGinniss, U.S. Army
- ^ E. Cobham Brewer, Dictionary of Phrase and Fable, 1894.
Bibliography
Lindorff, David. "Could It Happen Here?".
Mother Jones magazine, April 1988.
External links
