an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
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!