Posse Comitatus Act of 1878

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Alicat
Member Elite

since 1999-05-23

Posts 4094
Coastal Texas

0 posted 2005-09-16 03:23 PM

Posse Comitatus Act article

Given the references to the Posse Comitatus Act of 1878, I thought it would be handy to have some information on what the Act is, what it does, and what it allows.  Also, in the Katrina aftermath, there's been a bevy of debate about the Federal Government's role in enlisting active duty military personnel for natural disasters.

Should the Act be amended to allow the Federal Government to commit active duty military forces into a natural disaster zone without direct permission from the State?  Why or why not?

A warning about Google searches on Posse Comitatus.  There's a site listed near the top called posse-comitatus.org, which gives an instant redirect to the Aryan Nation.  Hyperlinking is not used for that reason.

Ringo

Member Elite

since 2003-02-20

Posts 3684
Saluting with misty eyes

1 posted 2005-09-16 04:54 PM

Great question, Ali-

I would have to say that no, I would not support the use of military troops in a NATURAL disaster absent the local/state government requesting it. In such disasters are as specifically mentioned in Title 10 and 18, then I would fully expect that the federal government be fully involved regardless... the local/state governments do not have the expertise or the capacity to fully and appropriately deal with such events.

One small change to Mr. Brinkerhoff's article. The Coast Guard now falls under the Secretary of Defense, and not the Secretary of Transportation any longer. I do not remember whether it was shortly before, aor shortly after the article was written, however as part of the restructuring for Homeland Security, the transfer was made.

Alicat
Member Elite

since 1999-05-23

Posts 4094
Coastal Texas

2 posted 2005-09-16 07:15 PM

Right, and thanks for the addendum. There were a few articles at the Homeland Security website, but both predated the shift of the US Coast Guard from DoT to DoD. I don't think they are constrained by the Posse Comitatus. Technically, neither are the Marines or Navy, though the official policy is that they behave as if those branches were included within that Act.

Though I pose the questions, and think it a good one also given the current political climate, I'm still mulling it over personally as there are pros and cons, state vs feds, and Constitutional issues to be weighed, especially the 2nd Amendment.

Back later as thoughts evolve, albeit slowly.

Balladeer

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Member Empyrean

since 1999-06-05

Posts 25505
Ft. Lauderdale, Fl USA

3 posted 2005-09-16 07:28 PM

A very interesting question in light of the current disaster. We had a whole slew of people screaming, "Bring in the troops!" and worry about the law later. Interestingly enough, some of them were the same people saying just the opposite on others issues questioning whether to follow the law or not when lives were at stake.

Judging from what I've seen in the Alley this past year I would have to say it all depends on who is President. If it's Bush - he's wrong, whichever choice he makes.

Not A Poet
Member Elite

since 1999-11-03

Posts 3885
Oklahoma, USA

4 posted 2005-09-16 11:21 PM

It ALL depends on whose ox is being gored! You guys should already know that. Actually, I'm sure you do.

Brad
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since 1999-08-20

Posts 5705
Jejudo, South Korea

5 posted 2005-09-17 09:35 AM

quote:
Does not prevent the President from using federal troops in riots or civil disorders. Federal troops were used for domestic operations more than 200 times in the two centuries from 1795 to 1995. Most of these operations were to enforce the law, and many of them were to enforce state law rather than federal law. [10] Nor does it prevent the military services from supporting local or federal law enforcement officials as long as the troops are not used to arrest citizens or investigate crimes.

I don't think it should be ammended, it should be rescinded because we, including myself, misunderstood it.

During a time of emergency, is there a state which wouldn't want federal assistance?

If the feds wanted, I don't know, to invade and occupy California, do you really think this would stop them?

Interesting essay, Ali.

Ron

Administrator

Member Rara Avis

since 1999-05-19

Posts 8669
Michigan, US

6 posted 2005-09-17 03:53 PM

quote:
During a time of emergency, is there a state which wouldn't want federal assistance?

If we assume that is true, Brad, then clearly there's no reason NOT to ask first. In reality, of course, the answer is going to depend on who gets to define "time of emergency."

quote:
If the feds wanted, I don't know, to invade and occupy California, do you really think this would stop them?

Probably not. The law didn't stop Ted Bundy or Timothy McVeigh, after all. The existence of a law never prevents a crime, but NOT having a law can certainly encourage a crime.

Alicat
Member Elite

since 1999-05-23

Posts 4094
Coastal Texas

7 posted 2005-09-17 05:47 PM

After much mulling and being of split mind, one side so far is winning. And that side is against. The Federal government and Armed Forces, excepting the Coast Guard and respective state National Guard and militia units, should never be the first emergency response except in those times when such an emergency disables state government in an affected state. First emergency actions should be taken by the local government and Coast Guard. Second should be state government and National Guard/militas (there are some states with both). Third should be private industries, charities, and organizations. Fourth should be Federal aid and assistance. Fifth should be mobilization of active military.

To have active military be the first responsive action with state persmission is one thing, in accordance with the Posse Comitatus Act. To circumvent the state not only would break that act, but would be extremely un-Constitutional, possibly violating the 2nd, 3rd, 4th, and 5th Amendments. This would be especially true if active military was used for enforcement of state and federal law in the dearming of private citizens of their legal firearms, commandeering of residences and vehicles, search and seizure of persons and property, and the suspension of legal rights.

quote:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This could also impact the 6th Amendment, the guarantee of a speedy trial and the right to a trial by jury.

I'm hoping President Bush doesn't try to supercede state sovereignty for emergencies, and if he does, I really hope the Surpeme Court strikes it down with all due speed.

Brad
Member Ascendant

since 1999-08-20

Posts 5705
Jejudo, South Korea

8 posted 2005-09-17 06:43 PM

quote:
If we assume that is true, Brad, then clearly there's no reason NOT to ask first. In reality, of course, the answer is going to depend on who gets to define "time of emergency."

Or offer.

Local Rebel
Member Ascendant

since 1999-12-21

Posts 5767
Southern Abstentia

9 posted 2005-09-17 07:00 PM

Perhaps the act you should be reviewing is the Stafford Act that was used to create FEMA during the Carter administration and has been amended several times as late as 2000
http://www.fema.gov/library/stafact.shtm

quote:

SUBCHAPTER III--MAJOR DISASTER AND EMERGENCY ASSISTANCE ADMINISTRATION

§ 5141. WAIVER OF ADMINISTRATIVE CONDITIONS {Sec. 301}

Any Federal agency charged with the administration of a Federal assistance program may, if so requested by the applicant State or local authorities, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.

(Pub. L. 93-288, title III, § 301, as added Pub. L. 100-707, title I, § 105(a)(2), Nov. 23, 1988, 102 Stat. 4691.)

quote:

§ 5170. PROCEDURE FOR DECLARATION {Sec. 401}

All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As part of such request, and as a prerequisite to major disaster assistance under this Act, the Governor shall take appropriate response action under State law and direct execution of the State's emergency plan. The Governor shall furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster, and shall certify that, for the current disaster, State and local government obligations and expenditures (of which State commitments must be a significant proportion) will comply with all applicable cost-sharing requirements of this Act. Based on the request of a Governor under this section, the President may declare under this Act that a major disaster or emergency exists.

(Pub. L. 93-288, title IV, § 401, as added Pub. L. 100-707, title I, § 106(a)(3), Nov. 23, 1988, 102 Stat. 4696.)

quote:

§ 5170a. GENERAL FEDERAL ASSISTANCE {Sec. 402}

In any major disaster, the President may--

direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical, and advisory services) in support of State and local assistance efforts;

coordinate all disaster relief assistance (including voluntary assistance) provided by Federal agencies, private organizations, and State and local governments;

provide technical and advisory assistance to affected State and local governments for--
the performance of essential community services;
issuance of warnings of risks and hazards;
public health and safety information, including dissemination of such information;
provision of health and safety measures; and
management, control, and reduction of immediate threats to public health and safety; and

assist State and local governments in the distribution of medicine, food, and other consumable supplies, and emergency assistance.
(Pub. L. 93-288, title IV, § 402, as added Pub. L. 100-707, title I, § 106(a)(3), Nov. 23, 1988, 102 Stat. 4696.)

quote:

§ 5170b. ESSENTIAL ASSISTANCE {Sec. 403}

In general

Federal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from a major disaster, as follows:

Federal resources, generally

Utilizing, lending, or donating to State and local governments Federal equipment, supplies, facilities, personnel, and other resources, other than the extension of credit, for use or distribution by such governments in accordance with the purposes of this Act.

Medicine, food, and other consumables

Distributing or rendering through State and local governments, the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief and disaster assistance organizations medicine, food, and other consumable supplies, and other services and assistance to disaster victims.

Work and services to save lives and protect property

Performing on public or private lands or waters any work or services essential to saving lives and protecting and preserving property or public health and safety, including--

debris removal;
search and rescue, emergency medical care, emergency mass care, emergency shelter, and provision of food, water, medicine, and other essential needs, including movement of supplies or persons;
clearance of roads and construction of temporary bridges necessary to the performance of emergency tasks and essential community services;
provision of temporary facilities for schools and other essential community services;
demolition of unsafe structures which endanger the public;
warning of further risks and hazards;
dissemination of public information and assistance regarding health and safety measures;
provision of technical advice to State and local governments on disaster management and control; and
reduction of immediate threats to life, property, and public health and safety.

Contributions

Making contributions to State or local governments or owners or operators of private nonprofit facilities for the purpose of carrying out the provisions of this subsection.

Federal share

The Federal share of assistance under this section shall be not less than 75 percent of the eligible cost of such assistance.

Utilization of DOD resources

General rule

During the immediate aftermath of an incident which may ultimately qualify for assistance under this title or title V of this Act [42 U.S.C. §§ 5170 et seq. or 5191 et seq.], the Governor of the State in which such incident occurred may request the President to direct the Secretary of Defense to utilize the resources of the Department of Defense for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property. If the President determines that such work is essential for the preservation of life and property, the President shall grant such request to the extent the President determines practicable. Such emergency work may only be carried out for a period not to exceed 10 days.

Rules applicable to debris removal

Any removal of debris and wreckage carried out under this subsection shall be subject to section 5173(b) of this title [42 U.S.C. § 5173(b)], relating to unconditional authorization and indemnification for debris removal.

Expenditures out of disaster relief funds

The cost of any assistance provided pursuant to this subsection shall be reimbursed out of funds made available to carry out this Act.

Federal share

The Federal share of assistance under this subsection shall be not less than 75 percent.

Guidelines

Not later than 180 days after the date of the enactment of the Disaster Relief and Emergency Assistance Amendments of 1988 [enacted Nov. 23, 1988], the President shall issue guidelines for carrying out this subsection. Such guidelines shall consider any likely effect assistance under this subsection will have on the availability of other forms of assistance under this Act.

Definitions

For purposes of this section--

Department of Defense
The term 'Department of Defense' has the meaning the term "department" has under section 101 of title 10, United States Code.

Emergency work
The term "emergency work" includes clearance and removal of debris and wreckage and temporary restoration of essential public facilities and services.
(Pub. L. 93-288, title IV, § 403, as added Pub. L. 100-707, title I, § 106(a)(3), Nov. 23, 1988, 102 Stat. 4697.)

And the emergency powers of the POTUS under the insurrection act:

quote:

TITLE 10 > Subtitle A > PART I > CHAPTER 15

§ 332. Use of militia and armed forces to enforce Federal authority

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000332----000-.html

Alicat
Member Elite

since 1999-05-23

Posts 4094
Coastal Texas

10 posted 2005-09-17 07:09 PM

Right, Reb. However, most of what you posted depends entirely upon the State government making the request, not the Federal government superceding the State with regards to FEMA. As for the POTUS, he can only use active military, according to the quoted material, once there has been a breakdown in law and order, which President Bush did once it became known that local and state enforcement and government was unable to effectively restore order. The primary question was not really answered though: should the Posse Comitatus Act be amended or repealed to allow the Federal government to deploy active military into disaster zones without state permission?

Local Rebel
Member Ascendant

since 1999-12-21

Posts 5767
Southern Abstentia

11 posted 2005-09-17 08:02 PM

A review of the timeline reveals something quite different Cat
http://en.wikipedia.org/wiki/Timeline_of_Hurricane_Katrina

Blanco's request http://gov.louisiana.gov/Disaster%20Relief%20Request.pdf

Bush response: http://www.whitehouse.gov/news/releases/2005/08/20050827-1.html

only declares an emergency in parishes that are the least to be impacted by Katrina -- leaving out Orleans and Jefferson.

it is obvious to anyone with a television, radio, or internet(s) on Tuesday 8/30/5 that New Orleans is in complete chaos, and that according to the published NOLA evacuation plan (which FEMA helped develop) evacuated residents in the Superdome et al were only requested to bring their own supplies for 2 to 3 days -- at that point the POTUS is obligated to protect the 14th amendment rights of the US Citizens in NOLA.

Blanco specifically requests Federal troops on the 31st -- something even she admits she should have done sooner..

On Sept 1 Chertoff annouces that 4200 troops will arrive over the next three to four days... three to four days..

POTUS sends Blanco a memo on 9/2 requesting a complete Federal takeover that she refuses..

Competence, on the part of any of these players makes the question mute.

[This message has been edited by Local Rebel (09-17-2005 08:52 PM).]

Local Rebel
Member Ascendant

since 1999-12-21

Posts 5767
Southern Abstentia

12 posted 2005-09-17 08:11 PM

My apologies, I meant to also post this section of the Insurrection Act;

quote:

§ 333. Interference with State and Federal law

Release date: 2005-07-12

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, 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, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000333----000-.html

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