Posse Comitatus Act. United States Code; Section 1385 of Title 18.

United States media have opened the debate on the necessity of revising Posse Comitatus Act or establishment of a conceptual framework for revising Posse Comitatus Act to confront threats to homeland security. A unique confluence of circumstances supports the timing of this debate: 1) September 11, 2001; 2) Hurricane Katrina/ Hurricane Rita; 3) pervasive influence of current national security applications, 4) establishment of a cabinet level Department of Homeland Security; 5) establishment of Northern Command within the Department of Defense. Over time, Posse Comitatus Act has been gradually weakened by exceptions to prohibitions on the use of United States Armed Forces. In a perfect world, local police and state police enforce domestic law while soldiers fight threats abroad. But the dichotomy between law enforcement and national security has blurred. In some cases, using United States Armed Forces to counter threats by terrorists indeed constitute effective and efficient means to preserve national security.

United States security policy makers are calling for a revision of Posse Comitatus Act or establishment of a conceptual framework for revising Posse Comitatus Act. Growing majority of individuals are calling for repeal of Posse Comitatus Act.

Department of Justice and Department of Defense understanding of Posse Comitatus Act is right:

"The Posse Comitatus Act expresses one of the clearest political traditions in Anglo-American history: that using military power to enforce the civilian law is harmful to both civilian and military interests. The authors of the Posse Comitatus Act drew upon a melancholy history of military rule for evidence that even the best intentioned use of the Armed Forces to govern the civil population may lead to unfortunate consequences. They knew, moreover, that military involvement in civilian affairs consumed resources needed for national defense and drew the Armed Forces into political and legal quarrels that could only harm their ability to defend the country. Accordingly, they intended that the Armed Forces be used in law enforcement only in those serious cases to which the ordinary processes of civilian law were incapable of responding."

Tight budgets and desire for short term solutions does not create an emergency justifying the repeal of Posse Comitatus Act. Relegating to only military options and to only military solutions poses dangers to individual rights and to the history and structure of United States of America that should not be ignored.

Resources must be made available to create effective and efficient civilian law enforcement responses. The military should be the last resort, not the first option and not the first solution.

Intelligence VS. Politics (Posse Comitatus Act. United States Code; Section 1385 of Title 18.)

Posse Comitatus Act.
United States Code; Section 1385 of Title 18.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Posse Comitatus Act does not apply to the U.S. Coast Guard in peacetime or to the National Guard in Title 32 or State Active Duty status. The substantive prohibitions of the Posse Comitatus Act were extended to all the services with the enactment of Title 10 United States Code, Section 375. As required by Title 10 United States Code, Section 375 the Secretary of Defense issued Department of Defense Directive 5525.5, which precludes members of the Army, Navy, Air Force, or Marine Corps from direct participation in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

The Posse Comitatus Act generally prohibits U.S. military personnel from direct participation in law enforcement activities. Some of those law enforcement activities would include interdicting vehicles, vessels, and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities. Prohibiting direct military involvement in law enforcement is in keeping with long - standing U.S. law and policy limiting the military's role in domestic affairs.

The United States Congress has enacted a number of exceptions to the Posse Comitatus Act that allow the military, in certain situations, to assist civilian law enforcement agencies in enforcing the laws of the U.S. The most common example is counterdrug assistance (Title 10 United States Code, Sections 371 to 381). Other examples include:

The Insurrection Act (Title 10 United States Code, Sections 331 to 335). This act allows the President to use U.S. military personnel at the request of a state legislature or Governor to suppress insurrections. It also allows the president to use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S.

Assistance in the case of crimes involving nuclear materials (Title 18 United States Code, Section 831). This statute permits Department of Defense personnel to assist the Department of Justice in enforcing prohibitions regarding nuclear materials, when the attorney general and the secretary of defense jointly determine that an "emergency situation" exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies.

Emergency situations involving chemical or biological weapons of mass destruction (Title 10 United States Code, Section 382). When the Attorney General and the Secretary of Defense jointly determine that an "emergency situation" exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. Department of Defense personnel may assist the Department of Justice in enforcing prohibitions regarding biological or chemical weapons of mass destruction.

Military support to civilian law enforcement is carried out in strict compliance with the Constitution and U.S. laws and under the direction of the President and Secretary of Defense.