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The Death of Posse Comitatus

Definition of Posse Comitatus:

The Act prohibits most members of the federal uniformed services from exercising nominally state law enforcement police or peace officer powers that maintain “law and order” on non-federal property.

However, the Army Times reports:

The 3rd Infantry Division’s 1st Brigade Combat Team has spent 35 of the last 60 months in Iraq patrolling in full battle rattle, helping restore essential services and escorting supply convoys.

Now they’re training for the same mission — with a twist — at home.

It’s no secret that the Army’s experiences in Iraq, Somalia, and other low-intensity conflicts have brought new focus to peacekeeping operations. They’ve even got their own Official Military Phrasing: Stability and Support Operations.

From the Army Times:

The 1st BCT will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command, as an on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks.

This new mission marks the first time an active unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities.

From the globalsecurity definitions:

Support Operations provide essential supplies and services to assist designated groups. It relieves suffering and helps civil authorities respond to crises. In most cases, Army forces achieve success by overcoming conditions created by man-made or natural disasters.

That’s all right, then; that seems to be the intent of the posting. There’s nothing wrong with using troops to aid in disaster relief, and if the military was overflowing with troops with nothing to do in light of our long history of peaceful foreign policy, there’d be no real problem with designating a unit to that express purpose.

However, it is important to remember that Support operations are extremely closely associated in the military mind with Stability operations:

Stability Operations apply military power to influence the political and civil environment, to facilitate diplomacy, and to interrupt specified illegal activities.

Given troops trained in SASO operations, stationed in the US, I do not trust President Bush not to abuse their capabilities and attempt use them to influence the political and civil environment. Posse Comitatus exists precisely to prevent this sort of use within the US. Now, it has been substantially weakened.

I will close with this section from the wiki:

HR5122 also known as the John Warner Defense Authorization Act was signed by the president on Oct 17, 2006 John Warner National Defense Authorization Act for Fiscal Year 2007. Section 1076 (Text of Hr5122) is titled “Use of the Armed Forces in major public emergencies”.

Removing the legalese from the text, and combining multiple sentences, it provides that: The President may employ the armed forces to restore public order in any State of the United States the President determines hinders the execution of laws or deprives people 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. The actual text is on page 322-323 of the legislation.

As of 2008, these changes were repealed, changing the text of the law back to the original 1807 wording, under Public Law 110-181 (H.R. 4986, Section 1068,) however in signing H.R. 4986 into law President Bush attached a signing statement which indicated that the Executive Branch did not feel bound by the changes enacted by the repeal.

President Bush Signs H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008 into Law

Today, I have signed into law H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008. The Act authorizes funding for the defense of the United States and its interests abroad, for military construction, and for national security-related energy programs.

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.



January 28, 2008.

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