"How enforceable is the Posse Comitatus Act?" Topic

This is a law passed during Reconstruction that prohibits the use of the United States Army (and by extension the other armed forces) from being used in a law enforcement capacity.

It has always seemed to me that it is as enforceable as a Balanced Budget Resolution. It is NOT part of the Constitution but a "mere" law that can be nullified by the Congreff assembled and signed by the President.
It also seems to me that a President, naming no names and shame on you for implying a political intent, who is used to bypassing Congressional authority and winging it with Executive Orders pretty much has a free hand.

So, what is to prevent a future President from sending the 2nd Armored Division in to level Milwaukee if anti government riots break out or if Scranton votes the wrong way in a Congressional election?
Posse Comitatus also covers the Air Force, so nuking Berkely or Salt Lake City should also be covered.

Is Posse Comitatus binding on a future Congress or does it just have the force of tradition behind it?

Dan Cacique Caribe would probably jump in to suggest this is why we need a "Near Future" board.

And I bet the Euros are totally baffled by this topic.

might try to justify it under the Insurrection Act

are you thinking about a '7 Days in May' scenario?

Military units get called in to quell riots all the time, or is the national guard exempt?

In the end though, it's like anything else:

Someone does something.
Later we figure out if it was right or wrong.

I mean, we used to imprison people for sedition until we decided that it was actually illegal.
Slavery was legal until it was illegal.
etc. etc. etc.

If there was a legitimate threat to national security, I find it hard to believe that the army would not get deployed to contain it.

edit:
A glance at wikipedia notes that from 2006 to 2008, verbiage had been added to allow the use of military force if it was deemed that the regular authorities were unable to suppress an insurrection or conspiracy.

It was released in 2008 though.

The national guard is not covered by the Posse Comitatus Act; the act specifically applies to federal troops.

The Posse Comitatus Act is a federal law and, like all laws, it can be amended and, it has actually been amended a number of times.

Yeah, I just noticed that the Guard isn't subject to it, if they act on account of the state, rather than the federal government.

So you CAN send soldiers, you just have to call them the right thing :-)

As an Army MP I served alongside civilian police officers a number of times throughout my career. Even during the most severe circumstances, like Hurricane Katrina in Biloxi/Gulfport, Mississippi, where my platoon alone outnumbered the local cops(whose infrastructure was mostly destroyed too), they were in charge. We were in support. We could detain and hand over to them for the actual arrests.

I think the only time the military takes charge over civilian authority is when Martial Law is declared.

While any US president ( of any political leaning) could by pass congress by presidential order – correct me if I am wrong but your military have a oath to uphold your constitution. I'd be surprised if nuking etc one of your own cities would be acceptable to anyone except the lunatic who gives such an order. By giving such an order he/she would be replaced first by the Vice President then by the speaker of the house. Or have I got this wrong?

Though – very little stops a US president at the Hight of the Cold War after lots of bellicose from putting everyone's world at risk with a "joke" – "I've signed the orders outlawing the Soviet Union, we begin bombing in five minutes."
So perhaps some paranoia about sanity of US presidents is warranted – after all they are democratically elected by US citizens and so are representative of the American people.
Thankfully we get to just blame the electorate and party that select a local member to be prime minister and his/her powers are very much fettered.

Yep, usually the authorities fall all over themselves trying to declare that the NG is under the control/jurisdiction/leadership of the local police force, and/or the mayor/governor of the area they are operating in.

I suspect it's a little more enforceable than you mention, WS, but that doesn't mean someone might try to use E.A. to nullify it. Then, watch the drama play out in congress, and the courts.

"…correct me if I am wrong but your military have a oath to uphold your constitution."

you are correct

"…do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic…"

but the President takes an oath to do the same.

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

So if the president is acting against that oath then in accordance with their oath the military would not act

Is that why the training exercise will be in Texas and not D.C.?

How many recorded instances are there of the US military, as an organization in it's entirety, refusing orders?

Probably very few, though they have set the precedent that "unlawful orders" should not be followed, back as far as at least WWII, and perhaps further.

They did that with the Nuremburg Trials.

Presidents have chosen to disobey laws in the past, so really anything is possible. More likely, I could see a president sending in federal troops to possibly enforce law with issues like a national disaster, esp if the locals did not trust the police.

I have a US Soldier's Handbook from WWI

it states the soldier is not qualified to determine what may or may not be lawful or unlawful

so the soldier should follow the order
and report it afterwards

tho' I am quite sure the officer's guide would not have taken the same attitude

Gaming content – rules of engagement are needed to restrict players from unrealistically using the force available.
Or at least ammo rules – to constrain the player from excessive recon by fire and flattening all the buildings without concern for either the no combatants or supply situation

Weasel – how often are clearly illegal orders openly giving to the US military that would effect US citizens in America?
Somewhere I saw a series of questions to determine the "health of a society" – paranoia was one indicator that the society was on its way to being a failed state.

David – Very rarely, if ever.

Hence, any answer must be highly speculative and likely prone to ideological baggage.

paranoia was one indicator that the society was on its way to being a failed state

Actually, paranoia has been one of the main elements of American politics pretty much since the beginning. Richard Hofstadter's "The Paranoid Style in American Politics" is the classic work on the subject.

The article from Harper's Magazine, November, 1964: link

The full book: link

So, what is to prevent a future President from sending the 2nd Armored Division in to level Milwaukee if anti government riots break out or if Scranton votes the wrong way in a Congressional election?

Anyone personally affected by the action has standing to go to federal court and seek an emergency injunction, an injunction, and relief. While the courts do side-step many cases with the "political question" doctrine, the only way that a court today would use that would be if there was clearly no way for local authorities to contain the riots and the riots had passed from disorder to actual insurrection. (Note that Posse Comitatus only applies to law enforcement, not to the suppression of rebellion.)

Even if a circuit courts denied injunctive relief, it would just be appealed directly to the Supreme Court and be fast-tracked there, where the President would obviously lose. ("Naming no names and shame on you for implying a political intent, who are used to bypassing the Constitution and deciding case to meet desired political outcomes pretty much with a free hand," as you said.)

What happens after that? Well, now the military is forced to make a decision. Do you really think that they're going to say, "Gee-willikers, the Supreme Court just declared the President's actions illegal, and they have the last say, but gosh, we just don't know what to do! If only we had widely-help ideological beliefs that would help us form a consensus!"

This is a law passed during Reconstruction that prohibits the use of the United States Army (and by extension the other armed forces) from being used in a law enforcement capacity.

Following the end of Reconstruction. It was part of the resurgence of power of Southern racists--its purpose was to prevent the Federal government from protecting non-white citizens in the former Confederacy from usurpation of their constitutional rights and violent assault by both state government forces and death squads (oh, sorry, "vigilantes"). Posse Comitatus is not the most racist law in American history, but it's up there. It's just more subtle than most, and the Warren court destroyed its effectiveness for its original purpose.

BTW, this is not the dumbest question that's ever been asked on TMP, but it's up there.

This is not even close to being the most politically provocative question ever asked on TMP. The question has to be less dumb to achieve that.

Anyhow, nice work trawling for Dawg-Housings. Worked for me! See you guys in a few days!

"So, what is to prevent a future President from sending the 2nd Armored Division in to level Milwaukee if anti government riots break out or if Scranton votes the wrong way in a Congressional election?"

Well….that would be the National Guard of Minnesota. That and an armed populace.

I – a foreigner – have confidence that the US 2nd Armoured Division would not flatten a US city to quell a riot – even a politically motivated riot or response. I can see when it would help local authorities. What worries me is that I – a foreigner – have more faith in the American government (with all its faults) and the US military (with all its faults) than what appears to a foreigner as a very large number of Americans. But this is way away from gaming, so I'll read other threads.

Ps thanks for the link Emckinney I'll have a read.

Thanks Emckinney – I read the article version. I agree that paranoid style serves the demigog who seeks to use fear and prejudice to achieve their goal. The scary part is the number of apparently clinical paranoids. I'm sure I could find a conspiracy that would explain that but I have some figures that need to be painted.

Why deputize the military when you can militarize the police? Posse Comitatus prevents the Federal Government from using the US Armed Forces as an aid to the civil power with respect to law enforcement but it does not stop the transfer of military equipment and 'retired' personnel to the law enforcement agencies and institutions of the USA. Thus America could be seen more and more as a state with a military gendarmerie and some might even wonder if at times (for example in the wake of the Boston Marathon bombing) whether a defacto martial law is possible without any need for the declaration of such.
To answer the question posed by the OP, the responsibility to prevent the use of the military in law enforcement lies first with the Congress and ultimately with the citizens of the USA.
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."
The Right of Rebellion is the ultimate guarantor of liberty, an idea which many politicians, lobbyists and public relations firms are doing their best to extinguish.
Cheers and best wishes for continued liberty.
Rod Robertson.

Why does it have to be Milwaukee? Why the hate?

"And I bet the Euros are totally baffled by this topic."

Not really, all militaries operate under a legal framework when aiding the civil authority.

The US one just seems a bit more restrictive.

Over here the Army has regularly been deployed to aid the civil power in a range of duties.

So, if, e.g. an old WW2 mine floated into the River Hudson would it require an act of congress to get the USN to deal with it? We'd just send in the military bomb disposal teams. There is still a fair bit of unexploded weaponry scattered all over the UK though.

I wasn't baffled by this either ….I'd googled it after watching the West Wing episode by the same name. And to add my limited grasp of the US Constitution to the mix, I tend to think that the drafters of the constitution and the early amendments were drafting for their times not ours. In that sense the right to bear arms in the need for a well constituted militia could be seen to have been superseded by the National Guard.

Anyway, if you do choose to rebel against a perfectly reasonable constitutional monarchy, this kind of debate is what you get.

I support a libertarian monarchy organized along soviet lines with a free market barter economy based on mutual aid and the stock market.

As such, I am above your petty Human politics.

Wasn't there a National Guard vs US Army situation during the school desegregation Little Rock, AK incident in the late 50s? They ended up on opposing sides during the opening phase of the events.

The Bonus March was broken up by regular army units
link

though that took place in DC so presumably it's outside the rules.

Martin Rapier,
In my 20 years as a police officer in the USA, we've had to call out Military EOD for found war relics. Mostly old grenades and such from ww-II and Korea. It seems back then the military wasn't so strict on bringing home war souvenirs. As the vets were getting older and dying, their family and friends were finding these things when cleaning out their homes. They'd call the police and we'd clear the area. Call military EOD and they'd send a team out to render it safe and cart it off. In my 20 years with the PD, we had to contact them six times. The oldest thing being an old artillery shell from the civil war. It was being used as a door stopper. lol One EOD soldier told me his unit is on call for 4 States. They averaged about two – three calls a month to assist civilian police with old military munitions brought home from a war. This was an active duty unit and they are specifically tasked with assisting civilian police. So I'm guessing since they were not enforcing any laws, Posse Comitatus Act didn't apply…

Thanks Ironwolf, I'm glad some common sense applies!

"I support a libertarian monarchy organized along soviet lines with a free market barter economy based on mutual aid and the stock market."

That sounds like the current government of Cambodia.

G'day Martin – it does fit Cambodia – another country in the world that I am very glad I'm not living in.

Thanks Weasel – another reason not to be part of the tin caesar's cheer squad.

LA riots after Rodney King judgement.

Some 1st Marine Division units and 7th Infantry were tagged to go in and assist the LA Police and Sheriff; the California National Guard was told not to expect violence and had loaned out all their riot gear, so was unprepared.

Martin – if you can't settle on one government form, why not try them all! :)

Why does it have to be Milwaukee? Why the hate?

Because we've a history of socialist mayors. We all know how that word gets bandied about today!

"So, what is to prevent a future President from sending the 2nd Armored Division in to level Milwaukee if anti government riots break out or if Scranton votes the wrong way in a Congressional election?"

Well….that would be the National Guard of Minnesota. That and an armed populace.

Glad to see that they would cross state lines to aid Wisconsin!

I – a foreigner – have confidence that the US 2nd Armoured Division would not flatten a US city to quell a riot – even a politically motivated riot or response.

You may want to reconsider:
link

Not good CTG – but not quite deliberate destruction of a city. The solution – get political (but not on TMP) – a well functioning civil government is better than the alternatives

"Glad to see that they would cross state lines to aid Wisconsin!"

Viks fans helping Cheese Heads??? Cyrus, you KNOW better…

(Translation for our friends across the waters: Minnesota Viking fans helping Green Bay Packers fans… Not happening; deep, DEEP rivalry…)

There was the football war of South America… link

"" What worries me is that I – a foreigner – have more faith in the American government (with all its faults) and the US military (with all its faults) than what appears to a foreigner as a very large number of Americans. ""

Yup. That's the American way: "Fight the man!"

Viks fans helping Cheese Heads??? Cyrus, you KNOW better…

Well not during football season!

So, if, e.g. an old WW2 mine floated into the River Hudson would it require an act of congress to get the USN to deal with it? We'd just send in the military bomb disposal teams. There is still a fair bit of unexploded weaponry scattered all over the UK though.

Since no one clarified this, Posse Comitatus only restrict Federal troops from law enforcement. EOD and disaster relief are not law enforcement, so no problem.

The Right of Rebellion is the ultimate guarantor of liberty, an idea which many politicians, lobbyists and public relations firms are doing their best to extinguish.

Unfortunately, history doesn't support this. The American Revolution (the War for Independence, more accurately), was the only violent revolution that did not immediately result in a more powerful and oppressive state. Well, not all of them--sometimes you just end up with Libya or Syria.

The cause s pretty obvious--any regime that takes power through violence must defend itself from being overthrown through violence and protect its leaders from assassination. This inevitably means mobilizing the society to produce military power, increasing police powers to prevent subversion and to break up assassination plots, and suppression of political speech so that enemies of the revolution can't organize.

The really successful revolutions have been the "people power" revolutions, That doesn't mean that people power protests always work, only that the longer-term results are much better when the protests do succeed. (Egypt can be held up as a counter-example, but it's unlikely that Egypt would have done better going with violent revolt.)

Some reading:

Why Civil Resistance Works, Chenoweth and Stephan link

"Though it defies consensus, between 1900 and 2006, campaigns of nonviolent resistance were more than twice as effective as their violent counterparts. Attracting impressive support from citizens that helps separate regimes from their main sources of power, these campaigns have produced remarkable results, even in the contexts of Iran, the Palestinian Territories, the Philippines, and Burma."

"Combining statistical analysis with case studies of these specific countries and territories, Erica Chenoweth and Maria J. Stephen detail the factors enabling such campaigns to succeed-and, at times, causing them to fail. They find that nonviolent resistance presents fewer obstacles to moral and physical involvement, information and education, and participator commitment. Higher levels of participation then contribute to enhanced resilience, a greater probability of tactical innovation, increased opportunity for civic disruption (and therefore less incentive for the regime to maintain the status quo), and shifts in loyalty among opponents' erstwhile supporters, including members of the military establishment. They find successful nonviolent resistance movements usher in more durable and internally peaceful democracies, which are less likely to regress into civil war. Presenting a rich, evidentiary argument, this book originally and systematically compares violent and nonviolent outcomes in different historical periods and geographical contexts, debunking the myth that violence occurs because of structural and environmental factors and is necessary to achieve certain political goals. Instead, Chenoweth and Stephan find violent insurgency is rarely justifiable on strategic grounds."

Why Revolution?, Blackey and Paynton
link

Revolution and War, Walt link

"Revolution within a state almost invariably leads to intense security competition between states, and often to war. In Revolution and War, Stephen M. Walt explains why this is so, and suggests how the risk of conflicts brought on by domestic upheaval might be reduced in the future. In doing so, he explores one of the basic questions of international relations: What are the connections between domestic politics and foreign policy"

Many thanks Emckinney ! Very interesting. Unfortunately unlike to sway with reason those that believe that real power comes from the barrel of a gun to paraphrase Mao

the US election of 1800
was the first time a government changed parties
without violence

emckinney wrote:
"Unfortunately, history doesn't support this. The American Revolution (the War for Independence, more accurately), was the only violent revolution that did not immediately result in a more powerful and oppressive state."
I am not sure that is true:
The Haitian Revolution 1791-1804
The Greek Revolution against the Turks of the 1820's
The Bolivar Revolutions against Spanish rule.
The Chinese Revolution of 1911.
The Jewish Revolt against Britain and the Creation of Israel 1948.
The Cuban Revolution 1959.
The Vietnamese Uprising against the French/ South 1950-1975.
The Sandinista Revolution in Nicaragua 1979.
The South African struggle against White Rule and Apartheid.
The Albanian Kosovar Revolution against Serbia.
The Cochabamba Water War.
The Tunisian Revolution 2011

The right to rebellion does not necessarily mean the use of force. The Glorious Revolution of 1688 comes to mind. I will concede that it often does however.

As to the argument that non-violent resistance is twice as likely to produce desired political change then violent resistance, I am skeptical. First the goals of non-violent resistance campaigns are often far more limited than those of wholesale violent uprisings and therefore there is room for negotiation and compromise with the abusive state that does not apply to a violent uprising. These more limited goals make success more likely but do not address the basic grievances which are at the root of the abuse. Secondly, I suspect that based on a quick skimming of your sources that the statistical analysis cherry-picks which non-violent resistance campaigns it counts and ignores many campaigns of resistance which have failed dismally. What about the Rohingya or the Baha'i peaceful resistances which have been dismal failures to name but two.

If meaningful change can be won by peaceful means, then I am all for it. But if a state becomes too abusive and can stand in the face of non-violent resistance and if that state turns on its own citizenry then sometimes resorting to countervailing violence is the only option left.

Those were very interesting sources and I will give them much closer attention in the future when I can make time.

Cheers and good gaming.
Rod Robertson.