Posse Comitatus Question

[Cyborg]

I am especially looking for responses from Duke_of_Doubt, LegalEagle and any other practicing attorneys but everyone is welcome to join in.

Here is the question. Assume for the sake of the question that
1) things are heading for tophet in a handbasket;
2) people in Kevlar Bonnets, black BDUs and working for various alphabet agencies are running around confiscating guns and playing "let's see if we can top Ruby Ridge and Waco" and
3) some citizens are responding/resisting with force - even deadly force.

Would Posse Commitatus allow use of Regular Army or even NG and Active Reserve troops to respond?

If so, what actions would the President have to accomplish to be able to call out troops against American Citizens on American soil?

Please note I am not advocating such a scenario - especially #3 - but it is always a possibility. I just want to know what can be done "legally" - recognizing that something is really only illegal if you are successfully prosecuted for it.

Gonna sit back and watch for now. But I would really like to know and I know we have some fine legal minds here even if I do not always agree with them.

Cyborg

 

[Duke of Doubt]

Whenever I hear the words "posse comitatus" I think of the James Garner movie "Tank," and the sheriff asking, in so many words, whether he had just been called a ".... communiss."

The situation you describe, improbable as I consider it, would be governed by the Posse Comitatus Act. United States soldiers may not be used to enforce laws off of armed forces installations. That does not mean they do not leave installations for legitimate duties, nor does it mean they may not engage domestic enemies in combat. I'm going to consider my response rather carefully before posting further.

 

[ravonaf]

The "John Warner Defense Authorization Act of 2007" (H.R.5122) pretty much makes the Posse Comitatus act null and void. In a SHTF situation expect troops galore to be roaming the streets.

 

[Duke of Doubt]

I've read some recent articles by non-attorneys bemoaning the "loss" of posse comitatus. Leaving aside the legitimacy or illegitimacy of their legal concerns for a moment, they might do well to consider the legislative history of the Posse Comitatus Act and for what purpose it originally was intended, and the fact that Congress may entirely abolish that Act any time it so chooses, as such matters appear nowhere in the Constitution.

Things would have to be pretty far along for our Army to be used to confiscate civilian firearms other than incidentally in combat against domestic enemies, against whom they are sworn to defend the Constitution. It's an indicator of our culture's confusion regarding firearms, and other things, that such a scenario seems possible to millions of people, and indeed under some circumstances it admittedly is conceivable, if improbable.

Legally, you would have a lot of people arguing the Second Amendment and Heller versus whatever legislation or set of circumstances has created the situation and the Army's involvement. I imagine that anyone in such a terrible situation attempting to engage in legal debate with a heavily armed hostile government force would face the distinct possibility of being shot under whatever rules of engagement may exist.

I don't consider such a situation accessible to legal analysis. Unless our soldiers, most improbably, engage in rapine, plunder and widespread atrocities, I could not imagine taking up arms directly against any of them. My way of resistance, in the improbable but conceivable event of true tyranny, would be sabotage.

 

[everallm]

The "John Warner Defense Authorization Act of 2007" (H.R.5122) pretty much makes the Posse Comitatus act null and void. In a SHTF situation expect troops galore to be roaming the streets.

Ravonal,

This chunk of the act was repealed in it's entirety, it doesn't exist anymore.

It is useful for folks to read the context of when and why Posse Comitatus was passed.

It came into being as a partial restriction of the Federal government as well as restrict potential excesses by the military post the Reconstruction period, post the civil war.......In theory.

In actuality it came about as part of an unpleasant horse trading deal by some southern states to pass the presidential election to Rutherford Hayes

In return for delivering the necessary, Hayes drove the act through and ended Reconstruction. All terribly high minded until you see how this led directly the Jim Crow and election laws and the disarming of the black populace in the South.

Enough history...

The act can be held in abeyance at any time by act of Congress and was only really ever challenged by the Warner Act, Bush and the Republicans..........Not Obama and the Democrats.

 

[ConstitutionCowboy]

The Posse Comitatus Act is superfluous. The only power granted to the Union to execute laws or quell insurrections is to use the militia (Article I, Section 8, Clause 15). Use of the military for such uses would be unconstitutional.

Woody

 

[ravonaf]

This chunk of the act was repealed in it's entirety, it doesn't exist anymore.

Good call. I missed that. I need to research but I seem to remember some other "laws" that may be used to circumvent the act. I know it's not stopping them from deploying units right now as we speak.

 

[Duke of Doubt]

ravonaf: "I know it's not stopping them from deploying units right now as we speak."

Deployments are to areas of operation. Assignments to permanent duty stations are routine in peacetime and in wartime, as now. I hesitate to suggest you review the Army's "2008 Force Posture Statement":

http://www.army.mil/aps/08/information_papers/prepare/Global_Force_Posture.html

and "Grow the Army":

http://www.army.mil/growthearmy/

http://en.wikipedia.org/wiki/Grow_the_Army

as you might get what I would consider the wrong idea. Basically a lot of forces are returning from Korea and Germany for repositioning in the American Southwest. I consider this measure long overdue and well-advised.

 

[ravonaf]

Duke

There are reports around the country of local law enforcement and US Military personal both working checkpoints.

https://www.checkpointusa.org/blog/index.php/2008/12/17/p113

According to a December 10, 2008 press release from the Highway Patrol, USMC Military Police participated in a joint task force with the County sheriff and state police to conduct a sobriety checkpoint on December 12, 2008. All in violation of the Posse Comitatus Act that prohibits the military from participating in civilian law enforcement operations under most circumstances.

Looks like deployment to me.

 

[Duke of Doubt]

Looks like "deployment' to me, too -- as the photo in the article was taken in Iraq.

 

[Jeff White]

Here is the question. Assume for the sake of the question that
1) things are heading for tophet in a handbasket;
2) people in Kevlar Bonnets, black BDUs and working for various alphabet agencies are running around confiscating guns and playing "let's see if we can top Ruby Ridge and Waco" and
3) some citizens are responding/resisting with force - even deadly force.

We don't discuss SHTF situations here. Everyone knows that. We aren't even going to begin to touch on resisting the government with force. There are plenty of other places online where you can go indulge your end of the world fantasies. You can't do it here.