Indefinite Military Detention Measure Passes On Bill Of Rights Day 15DEZ11

TODAY is the 220th anniversary­ of congress passing the Bill of Rights. No other nation has outlined and enshrined into law such extensive civil liberties as congress did on 15 DEZ 1781. Since that date America has (with some temporary but serious lapses and omissions) been a beacon for freedom, liberty, justice...­an example for the rest of the world of what a Republic establishe­d by and for the people can and should be. Yesterday the house took another step in nullifying our Bill of Rights (seriously weakened by the "patriot act") with the passage of the National Defense Authorizat­ion Act. The cowards in the house, seeing the citizens of America as a possible terrorist force intent on destroying our government and nation made a preemptive strike and legalized violations and flat out denial of our civil liberties. The cowards in the senate followed suit today. And it seems Pres Obama, sans spine and cajones, will sign this into law. So America will pass into the dustbin of history as a nation once guided by the principles of freedom, liberty and justice for all...and our Republic will become one in name only, defiled and destroyed not by terrorist, but by our own government­. Turn off the torch on the Statue of Liberty for our government no longer is a light for freedom to the rest of the world.....­From HuffPost.....

WASHINGTON -- The Senate passed a defense bill Thursday that authorizes indefinite detentions of American terrorism suspects, coincidentally acting on the controversial measure on the 220th anniversary of the ratification of the Bill of Rights.
The bill, the National Defense Authorization Act, passed 86 to 13 and is expected to be signed quickly by President Obama, who withdrew a veto threat against the bill Wednesday. Six Democrats, six Republicans and one independent opposed the bill.
Though the legislation passed overwhelmingly, several senators argued that it was threatening fundamental provisions of the Bill of Rights, which is celebrated every Dec. 15.
"We as Americans have a right to a speedy trial, not indefinite detention," said Sen. Mark Kirk (R-Ill.). "We as Americans have a right to a jury of our peers, which I would argue is ... not enlisted or military personnel sitting in a jury. You cannot search our businesses or place of business or our homes without probable cause under the Bill of Rights."
"You cannot be deprived of your freedom or your property without due process of law, and that, I would say, is not indefinite detention," added Kirk, who voted for the bill. "I would actually argue that no statute and no Senate and no House can take these rights away from you."
The 13 senators who voted against the bill were Dick Durbin (D-Ill.), Ben Cardin (D-Md.), Al Franken (D-Minn.), Tom Harkin (D-Iowa), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), Bernie Sanders (I-Vt.), Jim Risch (R-Idaho), Rand Paul (R-Ky.), Mike Lee (R-Utah), Jim DeMint (R-S.C.), Mike Crapo (R-Idaho) and Tom Coburn (R-Okla.).
Supporters of the bill argued that current U.S. law is a combination of rulings and precedents that already allow indefinite detention of Americans. But they say that granting the military explicit authority to investigate and detain terrorism suspects -- including Americans -- is vital to ensuring the nation can keep up with an adaptable and changing enemy threat.
They point to court rulings that have found detentions of citizens to be proper. But opponents say the issue of grabbing up Americans on U.S. soil and putting them in military detention without trial has never actually been tested by the Supreme Court.
"This provision would for the first time in American history require our military to take custody of certain terrorism suspects in the United States," said Durbin, who was especially concerned with two sections of the bill -- 1021 and 1022 -- and voted "no."
He argued -- citing FBI Director Robert Mueller's opposition to the provisions -- that there was no reason to mess with a system that has worked well since Sept. 11, 2001.
"Since 9/11 our counterterrorism professionals have prevented another attack on the United States, and more than 400 terrorists have successfully been prosecuted and convicted -- prosecuted and convicted -- in federal court," Durbin said. "Why do we want to change this system when it's working so well to keep America safe? The fact that these detainee provisions have caused so many disagreements and such heated debate demonstrates the danger of enacting them into law."
Sen. Dianne Feinstein (D-Calif.), who added an amendment to the bill that specifies the resulting measure would not affect current law regarding citizens, argued that her provision provides protection for Americans.
Nevertheless, in voting for the bill, she also proposed a new bill that she, Durbin, Kirk and others intend to pursue later in hopes of making her interpretation the law.
"I strongly believe that constitutional due process requires that United States citizens apprehended in the United States should never be held in indefinite detention," Feinstein said. "That is what this legislation would accomplish."
Feinstein offered a similar amendment during earlier debate over the $662 billion defense bill, and it failed. It was not clear that this measure would do any better, although she noted that it built on a law signed in 1971 by President Nixon meant to curb abuses such as the internment of Japanese Americans in World War II.
The bill requires military treatment for foreign terrorism suspects. Defenders of the bill have pointed to one part of the provisions that say U.S. citizens are "exempted" from the requirement to be detained by the military, but legal scholars note that even though that detention is not required, it is allowed.
President Obama had threatened to veto the measure. But after provisions were added that gave him the final say over which suspects stay in military custody, he relented. Those provisions also ensured that the FBI and other law enforcement agencies would still be permitted to investigate and interrogate terrorist suspects. Mueller has called the provisions insufficient, warning that they will create bureaucratic roadblocks in the midst of vital investigations.
Obama could sign sign the bill as soon as Friday.
Civil liberties groups were infuriated that Obama retreated from the veto threat, and called on him to reconsider.
"The NDAA enshrines the war paradigm that has eroded the United States' human rights record and served it so poorly over the past decade as the country's primary counterterrorism tool," said Tom Parker, policy director of Amnesty International USA. "In doing so, the NDAA provides a framework for 'normalizing' indefinite detention and making Guantanamo a permanent feature of American life," he said, referring to a restriction in the measure on closing the Cuba prison for terror suspects.
"By withdrawing his threat to veto the NDAA, President Obama has abandoned yet another principled position with little or nothing to show for it," Parker said. "Amnesty International is appalled -- but regrettably not surprised."
Michael McAuliff covers politics and Congress for the Huffington Post. Talk to him on Facebook.

Indefinite Detention Bill No Longer Faces Veto Threat From White House (UPDATE) 14-15DEZ11

TODAY is the 220th anniversary of congress passing the Bill of Rights. No other nation has outlined and enshrined into law such extensive civil liberties as congress did on 15 DEZ 1781. Since that date America has (with some temporary but serious lapses and omissions) been a beacon for freedom, liberty, justice...an example for the rest of the world of what a Republic established by and for the people can and should be. Yesterday the house took another step in nullifying our Bill of Rights (seriously weakened by the "patriot act") with the passage of the National Defense Authorization Act. The cowards in the house, seeing the citizens of America as a possible terrorist force intent on destroying our government and nation made a preemptive strike and legalized violations and flat out denial of our civil liberties. The cowards in the senate are expected to follow suit today. And it seems Pres Obama, sans spine and cajones, will sign this into law. So America will pass into the dustbin of history as a nation once guided by the principles of freedom, liberty and justice for all...and our Republic will become one in name only, defiled and destroyed not by terrorist, but by our own government. 

From HuffPost......
WASHINGTON -- The White House on Wednesday abandoned its threat to veto a defense bill that sets in stone the commander in chief's authority to indefinitely detain terrorism suspects, including Americans, in military custody.
The switch came just before the House voted 283-136 to pass the National Defense Authorization Act despite impassioned opposition that crossed party lines, with Democrats splitting on the bill and more than 40 Republicans opposing it. Numerous national security experts and civil liberties advocates had argued that the indefinite detention measure enshrines recent, questionable investigative practices that are contrary to fundamental American rights. The Senate was expected to follow suit soon.
The White House had threatened to veto the bill as it stood coming from the Senate, but reversed course shortly before the House vote. The administration cited changes to the legislation made during a conference committee that worked out differences between the House and Senate versions over the weekend.
Civil liberties advocates had already declared that the changes were not nearly good enough and that all they did was make it harder for law enforcers to interpret the legislation. But White House officials, who spent two full days pondering the changes before revoking the veto threat, decided they were enough.
While opponents had looked to President Barack Obama to defend what they see as a fresh attack on American freedom, a statement released by White House press secretary Jay Carney addressed such issues only obliquely.
"After intensive engagement by senior administration officials and the President himself, the administration has succeeded in prompting the authors of the detainee provisions to make several important changes," the statement said.
"While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country's strength," it said.
"We have concluded that the language does not challenge or constrain the president's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people," the statement said, although it added that if the uncertainty raised by the legislation does impede investigations, the White House expects lawmakers to write a fix.
One of the major changes was shifting to the White House the responsibility for determining who does not have to be detained forever by the military. In an earlier version of the bill, the Department of Defense made the call. And while the bill makes the military the default investigator for Islamic terrorism cases, new provisions assert that the FBI and other civil law enforcers still have the authority to investigate terrorism and interrogate suspects.
The bill's strongest supporters, including Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.), had argued that it was necessary to make plain that the military has the authority to detain Americans. Other less-fervent supporters argued that, although they were not entirely happy with the practice, the fact is that the executive branch already detains Americans -- as it did in the case of convicted terrorism suspect Jose Padilla.
"If you have a problem with indefinite detention, that is a problem with current law," said Rep. Adam Smith (D-Wash.), the top Democrat on the House Armed Services Committee. "The problems that people have, and I share some of them, are with existing law, not with this bill. Defeat this bill, and that will not change a piece of that existing law that we've heard about that we should all be concerned about."
Opponents of the indefinite detention provisions have argued that, although it is true Americans have been held, the Supreme Court has not ruled on the validity of those detentions. Writing those practices into law, they argue, goes further than anything the nation's founders ever would have contemplated.
"We are in danger of losing our most precious heritage not because a band of thugs threatens our freedom, but because we are at risk of forgetting who we are and what makes the United States a truly great nation," said Rep. Jerry Nadler (D-N.Y.), whose district includes Ground Zero. "In the last 10 years, we have begun to let go of our freedoms, bit by bit, with each new executive order, court decision and, yes, act of Congress.
"We have begun giving away our rights to privacy, our right to our day in court when the government harms us, and, with this legislation, we are continuing down the path of destroying the right to be free from imprisonment without due process of law," Nadler added.
He also took issue with Smith's assertion that the bill just spells out what is already law.
"It doesn't codify existing law. It codifies claims of power by the last two administrations that have not been confirmed by [the Supreme Court] -- rather terrifying claims of power, claims of the right to put Americans in jail indefinitely without a trial, even in the United States," Nadler said.
Smith and others have pointed to a provision in the legislation that they say exempts U.S. citizens. The measure reads, "The requirement to detain a person in military custody under this section does not extend to citizens of the United States."
But numerous legal authorities have pointed out to The Huffington Post that, even though that provision does not require the detention of Americans, it also does not say they cannot be detained. And the legislation's definition of terrorism suspects does not exclude Americans, which means the military is authorized to detain Americans. An amendment that would have barred detentions of U.S. citizens failed in the Senate. The decision on whether an American goes to the Guantanamo Bay, Cuba, facility -- which must remain open to accommodate new suspects -- will lie with the White House.
The final bill is also likely to pass the Senate on Wednesday or Thursday.
Opponents called on President Obama to ignore his advisers and veto the bill anyway.
"As people of faith, we know that the right cause is also sometimes a lonely cause," said the Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture.
"The president's advisers have abandoned their opposition to the bill," Killmer said. "But, as president, President Obama is still in a position to stand up for American values and stop this legislation. The decision is his, not his advisers. He can and should veto this bill. If he does, he will find that Americans of all faiths will stand with him."
"If President Obama signs this bill, it will damage both his legacy and Americans' reputation for upholding the rule of law," warned Laura Murphy, director of the Washington legislative office of the American Civil Liberties Union. "The last time Congress passed indefinite detention legislation was during the McCarthy era, and President Truman had the courage to veto that bill."

Update: 7:18 p.m. -- The story has been updated to include the House's passage of the National Defense Authorization Act. 10 p.m. -- It was also updated to make clearer that the military is authorized to detain American citizens.

Behind Closed Doors: Congress Trying to Force Indefinite Detention Bill on Americans 7DEZ11

INDEFINITE DETENTION (opposed by all the heads of the federal law enforcement, intelligence and military departments and agencies), without charge and trial, a tactic used by every repressive, undemocratic, totalitarian regime in the world, is now a very real threat to everyone in America and to Americans no matter where they are. All it will take is for someone in power to not like what you are doing for you to be accused of terrorism or supporting terrorism and our government will be able to arrest you and turn you over to the military to be imprisoned. No civil rights, no human rights. The government will be able to imprison you for as long as they want. If this bill is passed how will we be any different than the prc, Russia, Cuba, Vietnam, any of our Persian Gulf allies, any of the brutal dictatorships anywhere else in the world? Our Constitution will have lost all relevance, the Bill of Rights will be meaningless. This one piece of legislation is more of a threat to our Republic than hitler or communism was, more of a threat than terrorism ever will be. This is not a slippery slope that will erode our civil liberties, it will drag the nation over a cliff, destroying our Bill of Rights; no habeas corpus, no speedy trial, no Miranda Rights, no ban on cruel and unusual punishment. Sens carl levin D MI and john mccain r AZ and rep buck mckeon r CA are the architects of this assault on our freedom and civil liberties and human rights and they with their spineless colleagues are waging a vicious propaganda war of fear, ignorance and prejudice to sway the American people to support them. They are using the same tactics hitler and his nazi party used on the German people during an economic crisis in the 1930's to destroy their republic and unleash a reign of terror on the German people that lasted until the end of WW II. We must not let that happen to us. Click the link below to contact Congress and tell your Senators and Representative to vote against this bill, and then if it is passed tell President Obama he must veto it for the sake of the nation. This from the ACLU......

Maybe you spent the last weekend shopping for gifts, writing out holiday cards or studying for final exams. For most of America, the end of the year is a busy time. In Congress, this is a season usually spent trying to jam through bad bills while they hope no one is looking.
The Senate voted last Thursday to pass S. 1867, the National Defense Authorization Act (NDAA), which would authorize the president to send the military literally anywhere in the world to imprison civilians without charge or trial. Prison based on suspicion alone. The power is so sweeping that the president would be able to direct the military to use its powers within the United States itself, and even lock up American citizens without charge or trial.
No corner of the world, not even your own home, would be off-limits to the military. And there is no exception for American citizens. Section 1031 — one of the indefinite detention provisions — of the Senate-approved version of the NDAA has no limitations whatsoever based on geography, duration or citizenship. And the entire Senate bill was drafted in secret, with no hearing, and with committee votes behind closed doors.
I'm not sure which was more surprising — that the majority of senators ignored the pleas of countless constituents, or that they also ignored every top national security official opposed to the provisions. Opposition to the detention provisions came from Secretary of Defense Leon Panetta, CIA Director David Petraeus, FBI Director Robert Mueller, Director of National Intelligence James Clapper, White House Advisor for Counterterrorism John Brennan, and DOJ National Security Division head Lisa Monaco. The Senate ignored them all.
Back in May, the House of Representatives passed its own version of the NDAA, which had a provision authorizing worldwide war wherever any terrorism suspect resides, even if there is no threat to America or Americans. Buried in the bill is a sentence that lets the president order the military to lock up without charge or trial American citizens and anyone else he decides is a suspect, even if the person is right here in America or in such friendly countries as Canada, Great Britain, or France.
Now, the two bills are in conference committee. The chairmen and ranking members of the Armed Services Committee — known as "the Big Four" — have been having one secret meeting after another over the past few days to quickly write a final bill. Who are the Big Four? From the Senate, it is Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) who were the very two who had secretly written the Senate indefinite detention provisions. The third member is the House Armed Services Committee Chairman Buck McKeon (R-Calif.), who is the person who wrote the House indefinite detention provisions without so much as a hearing. And the fourth member is the House Armed Services Committee Ranking Member Adam Smith (D-Wash.), who courageously fought the indefinite detention provisions on the House floor.
That's 3-1 for indefinite military imprisonment without charge or trial. There's good reason to worry about what the Big Four do in their secret meetings.
What happens next? First, there will be a more formal House-Senate conference in the next few days to put an official stamp of approval on what the Big Four wrote in secret. And then the bills will be on the floors of the House and Senate by early next week.
Their plan is to move very, very fast. Congress certainly has earned a reputation for being slow, but the plan for the NDAA is to jam it through the House and Senate with as little debate as possible. But you can help stop them.
Amazingly, as soon as a week from today, a final bill could be passed by Congress and headed to President Obama's desk. His White House has repeatedly threatened to veto the NDAA if these dangerous provisions stay in the bill.
But should it really come to that? Congress itself should come to its senses and ditch the indefinite detention provisions. And just as importantly, Congress should listen to you and every other American on what we all as Americans want for our country. Secret deals for indefinite military detention without charge or trial? Tell Congress we are better than that. It's not who we are as Americans, and it is not the country or the world we want to pass on to our children and grandchildren.
Now is the time to act and contact your senators and House member. Tell them vote "NO" on the NDAA if it includes indefinite detention without charge or trial.

Senate Votes To Let Military Detain Americans Indefinitely, White House Threatens Veto 29NOV11

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:

• National Guard units and State Defense Forces while under the authority of the governor of a state;
• Troops used under the order of the President of the United States pursuant to the Insurrection Act, as was the case during the 1992 Los Angeles Riots.
• Under 18 U.S.C. § 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if civilian law enforcement is inadequate to address certain types of threats involving the release of nuclear materials, such as potential use of a nuclear or radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect U.S. military preparedness. The only exemption is nuclear materials.
• Support roles under the Joint Special Operations Command

 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

• Martial law
• List of military actions by or within the United States
• United States Northern Command
• Military Cooperation with Civilian Law Enforcement Agencies Act
• Operation Garden Plot

 References

This article includes a list of references, but its sources remain unclear because it has insufficient inline citations. Please help to improve this article by introducing more precise citations. (December 2008)

1. ^ http://www.history.navy.mil/library/online/posse%20comit.htm
2. ^ http://www.fas.org/irp/doddir/dod/d5525_5.pdf
3. ^ About the United States Coast Guard
4. ^ ^{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.
5. ^ 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.
6. ^ 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.
7. ^ Text at Wikisource
8. ^ John Warner National Defense Authorization Act for Fiscal Year 2007
9. ^ H.R. 5122, pg 322-323
10. ^ "H.R. 4986: National Defense Authorization Act for Fiscal Year 2008". GovTrack.us. 2008. Retrieved January 24, 2008.
11. ^ About the United States Coast Guard
12. ^ http://www.uscg.mil/History/articles/LEDET_History.asp Coast Guard Law Enforcement Detachments (LEDETs): A History
13. ^ CHP to Conduct Sobriety/Driver License Checkpoint, CHP News Release, December 10, 2008;
14. ^ ^{a b} Joint CHP-Marine Corps Checkpoint Raises Suspicions, KESQ News Channel 3, December 16, 2008.
15. ^ Army reviews shows troop use in Samson killing spree violated federal law>, Birmingham News
16. ^ Revolutionizing Northern Command, Lt. Col. Gary L. McGinniss, U.S. Army
17. ^ E. Cobham Brewer, Dictionary of Phrase and Fable, 1894.

 Bibliography

Lindorff, David. "Could It Happen Here?". Mother Jones magazine, April 1988.


External links

• 18 U.S.C. § 1385 - Use of Army and Air Force as Posse Comitatus
• The Myth of Posse Comitatus (Craig T. Trebilcock)
• The Posse Comitatus Act: A Principle in Need of Renewal, Washington University Law Quarterly Vol 75 No. 2
• Mold, Mildew, and the Military Role in Disaster Response, JURIST
• John Warner National Defense Authorization Act for Fiscal Year 2007
• Text of H.R. 5122
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