Posse Comitatus Act(ors) 38

Par for the course in Pax Americana holds that if a law is not in keeping with the current junta’s notion of what is legal they simply go around it as if it didn’t even exist.  Or change the law so that it means what they need it to mean.  So it has been with the 1878 Posse Comitatus Act since the beginning.   Democratic representatives originally introduced it as a way of keeping federal troops out of southern states enforcing the rights of freed slaves, but the law came to represent the last stand between state autonomy and a growing federal government.

By the dawn of the 20th century, the act had become more of a dogmatic distinction than an actual one.

National guard units deployed on a regular basis for both natural and man-made interruptions to the scheduled programming for most of the last century.  More recently, the US military deployed to Miami in the wake of Hurricane Andrew as well as to New Orleans after Katrina.  One of these operations was largely a success while the other was a complete failure, both mostly for the same reasons since neither time were the troops in question trained to accomplish that sort of mission.

A less obvious perversion of the Posse Comitatus Act began as a response to the War on Drugs.

Local police forces have received training and weapons over the last 25 years that make them more paramilitary than public service, and in the wake of 9-11, the trend picked up exponentially with the active encouragement from our brand new Department of Homeland Security.  The new paradigm is so well entrenched that these tools and tactics are now being used for routine police work.  SWAT teams are commonly used to serve narcotics warrants, usually with forced, unannounced entry into the home and a track-record that is far from stellar.

At this point, given the general tone and tenor of the nation’s perennially frightened “middle class” who drive these sorts of policies, I am not entirely sure what can be done to roll this trend back and reclaim a much more community-centric policing paradigm.  What frightens me the most, however, isn’t that these sorts of tactics exist at the local law enforcement level and are used with zeal on a regular basis.  What is worse is the general level of acceptance that has accompanied these changes among the public at large.

Most Americans don’t even think twice about this and a great many other erosions in our country’s founding principles of life, liberty and the pursuit of happiness.  This makes a paradigm shift unlikely unless it is toward an even more draconian system in response to yet another manufactured crisis.

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38 thoughts on “Posse Comitatus Act(ors)

    • Jason Everett Miller

      Great article. Thanks for the link, PCA. I thought it was interesting that he made the transition from limited use of military forces for specific purposes to the militarization of local law enforcement.

    • Jason Everett Miller

      We still declare war – Congress just left it up to the discretion of the president. Not exactly the way that part of the Constitution was written, but we aren’t all that constitutional these days.

  • Tom Wright

    Reconstruction, then along came the backlash, and eventually Posse Comitatus.

    They were used against Native Americans, but it depends on which side you were on whether that is a crime. They were used against labor strikes, but not regularly.

    They were of course used to enforce desegregation, starting under Eisenhower.

    Seems to mostly add up to a necessary and humane application of the sovereign force of the the nation as a whole against certain sectors or interests. I’m less exercised over this than the surveillance state, without proper paper trail.

    • Jason Everett Miller

      I mostly will agree that the use of actual military forces on US soil, at least as recently as the 1950s, has been largely a positive and beneficial circumstance.

      This blog was more about the militarization of our police forces – who have no UCMJ to follow and precious little oversight – and the daily drum-beat of nationalistic fervor and paranoia – be it drugs or terrorists.

      When such aggressive military tactics become familar and accepted in our neighborhoods, there is no telling what manner of unconstitutional behavior we will put up given the proper prodding.

  • TJ

    Jason, I believe we are witnesses to some sort of natural (d)evolutionary process. Democracy is eroding; empire is crumbling. Wealth is concentrating; middle class is disappearing. This particular experiment in democratic, representative government is slowly devouring itself. Democracy is being co-opted by greed and fear. And the changes don’t have to be severe because each generation takes the current status-quo as the baseline, the norm. And in the last 50 years the mass media has made many of the shifts more acceptable, easier to digest. After all, the cops on TV have SWAT teams and sharpshooters.

    So generation by generation we just kind of drift to a more authoritarian government, greater wealth concentration and a passive acceptance of the erosion of personal freedoms. And don’t even think about any revolutionary kind of crap, because I won’t be able to join you. I have to go ask my doctor if Seraquil is right for me.

    • Jason Everett Miller

      Notwithstanding that we have gone through this process more than once in this country since 1776, I am in complete agreement with the notion of society naturally devolving left up to its own devices.

      I think it is the end of empire, so to speak, but not in quite the same fashion as the Romans since they had the Vandals and the dark ages instead the Internet and globalization. The latter advances should cushion the fall somewhat.

      Growing awareness of the issues, police over-stepping their boundries more often and a renewed sense of civic engagement should all conspires to roll this back at some point.

      Or we’ll get soma and soylent green at some point.

    • *

      But it’s happening without the public discourse necessary for such changes to take place. This isn’t the Land of Oz, DC isn’t Emerald City, and Congress isn’t the Wizard. How long before We the People in the Constitution is replaced?

    • wendy davis

      Seroquel XL might be right for you; although listening to the disclaimer lists, remember ‘death’ is listed as a possible side-effect. ;-}

    • Jason Everett Miller

      Holy crap. I had no idea they had gotten so brazen, even to the point that they are wearing cammies and have fake shoulder patches.

      The only thing that gives me even a little hope is that power always pushes too far and stirs up the slumbering masses. This particular issue has then potential of uniting both the left and right fringes in interesting ways.

      Great find, Watt.

  • shekissesfrogs

    Funny you should bring this up.

    I think it’s the War on Terra..
    They’ve used fear to get us to accept increased security for our own protection supposedly. It’s shock doctrine. We also can’t use torture on people and bomb the hell out of others and all the while pretend it doesn’t affect us at home. Our values and principles have been violated.

    Some people are more atavistic than others, perhaps they are untested under high stress. With the bad economy, watching our leaders sell us out, atavistic tendencies are increased, they go off half cocked, and think with their gut.. IMO.. like fight or flight instinct kicks in and they shut off blood to their brain.

    You can see the belligerency and snippiness here on these boards, and the arguments aren’t thought out well.

    this is all just speculation on my part…

    Jonathan Turley has a piece on this regressive behavior he’s noticing. (Nov 17, 2009)

    Shame is back in the United States with a vengeance.

    Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.
    Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments. …

    Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

    • Jason Everett Miller

      I think our pop culture has led to a certain acceptance of bizarre punishments for minor offenses rather than jail, but the militarization of our local police forces has led to a casual use of overwhelming force against what would normally be a peaceful public demonstration.

      The latter is the one that lends itself to the stuff of nightmares while the former is merely degrading. Not that I wish degredation or humiliation on anyone, but the subjugation of a free society by an overzealous government is something altother different.

  • brewmn61

    This conversation would not be complete without mentioning our insane interpretation of the 2nd Amendment that allowed everyone to own enough weaponry to personally overthrow a small Third World country. The police escalation was initially in response to their facing criminals that had greater firepower than the cops.

    Of course, the idea that maybe a strict, enforceable ban on semi-automatic and automatic weapons might be the appropriate response was shut out of the public debate by the NRA and their water carriers in the Republican Party.

    • Jason Everett Miller

      I don’t know about that, brew. As long as local law enforcement thinks that special weapons and tactics (SWAT) procedures are appropriate for run-of-the-mill police actions, a well-armed populace may be the only thing standing between us and 1984.

      The police escalated their procedures using the illusion of Tijuana-style shoot-outs on American streets, but that is not how the tactics were implemented on a day-to-day basis. As the provided links demonstrate, our local police forces are now militarized to a ridiculous degree.

      Despite the partisan nature you put on this trend, I suspect the founding fathers would be happy with how the second amendment has been interpreted to date.

      • brewmn61

        I’m pretty sure that the FFs out a lot more stock (no pun intended) in the modifier “A well-regulated militia, being necessary for the security of a free state” portion of the amendment than we do. Remember, they generally abhorred standing armies, preferring to have state militias at the ready in the event of an attack on the country. I think they would have been fine with any weapons other than the de rigeur hunting rifle being strictly controlled by a given state government.

        Unfortunately, debate over the true intent of the 2nd Amendment at the time of its drafting is notoriously sparse. It’s my own reading of American history that has caused me to be a militia-man, then an individual rights man, and now back to a militia-man again.

        • Jason Everett Miller

          I think automatic weapons should require someone to prove regular proficiency with the weapon as we had to in the military every six months. Barring that, a “well-regulated” militia seems to me the best place for weekend warriors to play with that sort of gear.

          As to standing armies, I have long thought that paradigm central to our continued attempts at empire. Turning police forces in a domestic army only accelerates the trend by significantly altering the character of the homeland into one that accepts overwhelming force as the response to the smallest of offenses.

          Nothing good can come out of such a change.

  • *

    The problem the US faces today is one where a substantial number of voters would prefer to empower the government as Protectorate of National Personal Safety. In other words, they want the government to be the fall guy if there is another successful attack on the US – someone to blame other than We the People. What is really odd, these same people are the ones who rant and rave about the problem with government is the government. Go figure.

    Local law enforcement has its problems. However, drugs is the new Prohibition. And it’s exactly similar to the one in the 20’s when alcohol was banned. It was a federal problem with local law enforcement help if necessary. The FBI should be running the anti-drug program, not local law enforcement. Besides, drugs know no borders so they trade between state borders which makes they commerce – another federal jurisdiction.

    The way I see it. Local law enforcement had no option but to militarize simply because the government said the drug problem was local and local police need to deal with it. Of course, if you need guns, ammo, APC and so forth, the government would be willing to supply the necessary equipment and training.

    Unfortunately, the local taxpayer is the one who really gets the shaft. They have to pay more in city, county and state taxes to support their local SWAT Team – the team that’s doing the work the government should be doing with funds from the national income taxes we pay on top of our city, county and state taxes. Another way to look at it is the government found a way to shift the responsibility and cost off on to someone else and is using the freed money to pursue other adventures.

    Finally, if you think about it, our drug enforcement policy from the national level to state, county and city is a distributed system. A distributed system means everyone is kinda doing something along similar lines depending on funds, equipment and manpower available.

    Whereas, a national centralized authority, like the FBI, would have everyone on the same page regardless of state, county or city – order and discipline, with follow thru and the DoJ in their corner, and plenty of funds for equipment, surveillance, analysis and manpower.

    If local taxpayers were smart, they would start to question their local governments knee-jerk reaction to the government pushing off federal responsibilities on to local governments that haven’t the funds necessary to compete against well-armed and funded drug cartels.

    • Jason Everett Miller

      I totally disagree with the idea that the police had no choice but to fight the drug war by turning cops into soldiers and then turning those soldiers against regular citizens for everyday policing needs.

      The DEA already performs the function you speak of whenit comes to running our national prohibition. The “War on Terror” allowed the trend to expand exponetially. The drug war has been a smoke-screen, in my opinion, to hide the sure and stready militarization of local law enforcement.

      Drug dealers in the United States prey more on themselves than on the general public. There may be a small, focused need for some cops to use these tactics in support of DEA activities, but the wide-spread use of them is what I am speaking of here.

      As Watt linked to above, police are contributing to a feeling of marshal law at times by turning out in riot gear at the slightest hint of disagreeable citizens.

  • chucktrotter

    Perhaps I’m reaching a bit far, but what should one expect from our civilian police if they developed their skills in the streets of Baghdad? I don’t mean to imply that All of the officers dedicated to “Protect and Serve” us are cold-blooded baby killers, but the “one with the community” philosophy seems to have been replaced with a “do as I have ordered” modus operandi. Reaching back, I’ve always felt it disconcerting, that, of the 1500 responders called to Columbine high school, not one of them was injured. During an,almost, one hour slaughter, who was serving and “protecting” whom? I have learned since, that others noticed the “inaction” too. Methodologies may have been modified.

    • *

      Here’s the flip side of that record.

      The DoD dropped their standards way back in the early Bu$h years. A whole lot of gangs are now represented in all branches of the military. In K-town where there’s Ramstein AB, Landsthul Medical Center, Rhine Ordinance Barracks, Dainer Kaserne, Klaber Kaserne, Miesau Depot, Einseiderlhof and Sembach AB – largest American community outside the US: over 50,000 Americans – they had multiple instances of gang activity. One where an initiate died during a hazing.

      Guess what happens with these war experienced Iraq and Afgan vet’s once they return to the hood?

      • Jason Everett Miller

        Most spend their time smoking weed and trying to find work that doesn’t make their nightmares worse. Perhaps a hearty few make it into the police forces, but most of those guys have never seen combat.

    • Jason Everett Miller

      I would find myself more likely to be threatened and abused by a police officer who has never seen combat rather than one familar with operating in an atmosphere of strict discipline.

      Any babies getting killed these days are by way of drone and not the kids with their boots on the ground. It’s been a long time since the Vietnam War sent 500,000 of our best and brightest into a meat grinder.

      Since most veterans don’t become cops, there seems to be little reason to blame them for the militarization of local law enforcement.

  • thepeoplechoose

    Nobody has paid a whole lot of attention to this but the most notable aspect of encroachment in our modern era is the degree with which DOD has become involved in domestic intelligence.

    DOD has evolved from being a non-player in this arena to being a major player. Because DOD has way more money than other intelligence operations this has been welcome within the community and has been effectively used as a back door to sourcing things that traditional sourcing was rejected by congress. Unfortunately this has opened still another door for military arms contractors to sell still more stuff. The shift of dollars which have been redirected via this channel, due to some serious lobbying by Rumsfeld, has been growing by leaps and bounds.

    IMHO this is a huge mistake and nobody honestly has a handle on how seriously evasive this is of our laws. I don’t have any idea of the current numbers (they masquerade as other stuff in the DOD budget as far as the intent of the expenditures) but I know it jumped to something like $20B overnight around 2004 and I’ve no doubt it has been growing steadily since. Most of this is connected to the Internet and other electronic intelligence activities and isn’t in apparent view but it sure as hell has the US military in your living room.

    • *

      I use to be in what was once called the real Air Force – Strategic Air Command. They actually had their very own independent telephone network through out the entire US – completely independent of the commercial telephone network. I suspect they were parallel with it, but they had their own trunks, equipment, switchrooms and technicians.

      I was working in research and development – we were testing to see if jet powered RPV’s could deliver ordinances on targets – we proved that in 1977. Our sister flight was pursuing using the same platform to fire air-to-air missiles. In 1985, it all came to an end – someone decided the main objective of the Air Force was airplanes. It is odd how over the years the Air Force mission is changing to something other than air superiority, bombing and close air support.

      • thepeoplechoose

        As the DOD goes the AF is an integral part of what I described. It has become very right leaning over the years. Just dig around a little and find the things that have gone on at the Air Force Academy and you’ll see what I mean. In general, our military has become disturbingly political.

          • thepeoplechoose

            You can easily make that argument. In the waning years of Vietnam, when congress was considering how to maintain our force structure, there was a lot of scrambling going on. Congresspersons were tripping all over themselves trying to place some distance between themselves and the Vietnam debacle.

            The final result was they completely scrapped the draft. As I recall, keeping the draft in some form never even made it out of congressional committee. The major roadblock was the necessity of devising a draft that was class neutral or equitable. This was a problem. Our congresspersons had their own kids who were headed to Harvard or elsewhere who would end up with MBAs and cushy jobs on Wall Street or possibly in government.

            Future presidents need to have been assured of having a military to meet whatever eventuality might arise at a manageable cost. Congress made a self-serving choice which they knew full well was a horrible compromise. They knew it would cost more and would be horribly inefficient. But just as is always the case they placed their own interests before the interests of the country. The couldn’t find a way to solve, to their private satisfaction, the equality issue, so they kicked the can down the road.

            Thus, we now have a military which is less efficient and less able to meet the demands of whatever might arise and which costs quite a lot more than it might have. Every sitting president since has no alternative in law to conscript citizens as might be required to protect the nation. All because of a very real class inequity which existed then and now. One last, but not least troubling piece of this is the gender aspect. In equal measure, congress had no desire to wade into that very deep end of the pool.

            Basically congress chickened out. Just like they always do. If I was in a fox hole with one of them I’d just have to shoot them. It’s for sure they ain’t gonna have my back and probably the opposite. Easily remedied. Better them than me or the country.