Posse Comitatus

for those of you who may be unfamiliar with Posse Comitatus

The Posse Comitatus Act and the Insurrection Act substantially limit the powers of the federal government to use the military for law enforcement.

The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385) passed on June 16, 1878 after the end of Reconstruction. The Act prohibits most members of the federal uniformed services (the Army, Air Force, and State National Guard forces when such are called into federal service) from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order" on non-federal property (states and their counties and municipal divisions) in the former Confederate states.

The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act.

Recent legislative events

On September 26, 2006, President Bush urged Congress to consider revising federal laws so that the U.S. military could seize control immediately in the aftermath of a natural disaster, in the wake of Hurricane Katrina.

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Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on Oct 17, 2006, subsequently repealed in their entirety.[2]

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.[3]

The actual text is on pages 322–323 of the legislation.

As of 2008, these changes have been repealed in their entirety, reverting to the previous wording of the Insurrection Act.


Homeland security

On October 1, 2008, the US Army announced that the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response force for natural or man-made emergencies and disasters, including terrorist attacks.

This marks the first time an active U.S. Army unit will be given a dedicated assignment to NORTHCOM, where it is stated they may be "called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack." These soldiers will also learn how to use non-lethal weapons designed to "subdue unruly or dangerous individuals" without killing them, and also includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and beanbag bullets.[5] However, the "non-lethal crowd control package [...] is intended for use on deployments to the war zone, not in the U.S. [...]".[5]

The US military will have around 20,000 uniformed personnel in this role in the United States by 2011, specifically trained and equipped to assist state and local government, respond to major disasters, terrorist attack, other major public emergencies.[6] This shift in strategy is a result of recommendations by Congress and outside experts.[6] This response capability is not new, but now accompanies a permanent assignment of forces to NORTHCOM.

This formalizes a role for the use of federal troops within the United States during major public emergencies and disasters, as was the case in the aftermath of Hurricane Katrina in 2005.[5] This has raised concern about the relationship between Posse Comitatus and the use of the military in domestic disaster support and homeland defense roles.[7]. However, federal military forces have a long history of domestic roles.[8] 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.[1]

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