Balkinization  

Friday, July 15, 2005

Does the Posse Comitatus Act Still Exist?

Kim Lane Scheppele

I suspect that the Posse Comitatus Act has essentially disappeared since 9/11. We have good reason to believe that the president is operating on legal advice telling them that the Posse Comitatus Act cannot be a restriction on the president in fighting terrorism within the United States. How do we know? In the Torture Papers (edited by Karen Greenberg and Joshua Dratel), Item #13 is a memo written by Jay Bybee that references another memo at footnote 16 on p. 163. The footnote?

We recently opined that the Posse Comitatus Act, 18 U.S.C. s. 1385 (1994), which generally prohibits the use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for the Use of Military Force to Combat Terrorist Activities within the United States at 15-20 (Oct. 23, 2001).


The Yoo memo referenced in that footnote has not yet, to my knowledge, been leaked. But one can guess from Yoo's other memos what it would say -- that the Posse Comitatus Act is an unconstitutional restriction on the plenary powers of the Commander in Chief in wartime. As a result of this, my guess is that the Posse Comitatus Act is, under this Administration, a dead letter.

Wouldn't that bother at least some of Bush's conservative base if they knew?

Comments:

Benjamin Franklin said, "He who can trade liberty for a little security deserves neither."

America has become a country shadowed by fear. A rational view of events, both recent and remote, can only conclude that the erosion of rights is the central design of a campaign of fear. It will be the "soccer moms" of America who will be first in line for a new pair of jackboots.
 

What paranoid wack-jobs you people are! The USA is still the most free nation on the face of the earth, but the hard truth is, the more freedom you have, the less security you have. The two are diametrically opposed, so it's necessary to find a suitable balance point that works for our nation going forward. That hasn't been done yet, but it needs to be. In the meantime, paranoid conspiracy theories don't help the national dialogue.

"Shadowed by fear"... Knock knock! Come on out of the basement, take a deep breath, and join reality!
 

It's stupid. We can send troops to the border, and they can't police but stop terrorism. How?
 

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