03 March 2021

Perrin Lovett: Posse Comitatus

*Easily one of my favorite pieces by my old Terry classmate, this was written almost 8 years ago. In a perfect world, this'd be required reading. As always, thx for reading - MBM 

On June 18th of this year we will all celebrate the 135th birthday of the Posse Comitatus Act, 18 U.S.C. § 1385.  Happy Birthday, Pos-Com!!!  Maybe you do not share my zeal?  Perhaps you have never heard of this great Act or maybe you don’t know what it means.  Allow me to educate you.  The Posse Comitatus Act means absolutely nothing.  Those who will celebrate the creation of this dead letter are those who should be prosecuted under it – namely those members of the various executive branches of the Federal and state governments. 

“18 U.S.C. § 1385” is a legal citation to the United States Code, referring to Section 1385 of Title 18.  Title 18 is the federal criminal code thus, Posse Comitatus creates a criminal offense.  Like 99.99% of federal criminal laws it only sets forth a felony offense and punishment.  Unlike most federal crimes though, the Act carries a lower than usual maximum sentence and it HAS NEVER BEEN PROSECUTED!

In law school I wrote a lengthy research paper on the Act – Posse Comitatus – written for my advanced Constitutional Decision-Making seminar taught by the very Honorable Professor John B. Anderson.  Anderson represented the people of Illinois’s 16th Congressional District for twenty years.  You may recall his 1980 independent run for President against Jimmy Carter and Ronald Reagan.  You may also recall his book The American Economy We Need from 1984.

I consider Professor (as I always call him) Anderson a good friend.  Once he and his wife, Keke, graciously received my wife and I at their beautiful home on a visit to Washington.  However, back when I initially presented my paper proposal to him he seemed a bit skeptical.  I suspect that, at the time, even he had not heard of the Act.  As the semester progressed though our Nation’s Capital came under the terror of the Beltway snipers.  Anderson called me one day and said he had just heard a news report on the radio about the snipers, the hunt therefore, and … the Posse Comitatus Act.  He was hooked and I received an “A” for my efforts. 

Over the ensuing decade I have ripped the paper apart, added to it, and conducted additional research on the Act and many related matters.  In the not to distant future (later in 2013 perhaps) I look forward to publishing a book based in part on my original thesis.  The book is tentatively called A Well Regulated Militia (Amazon/CreateSpace/Kindle) and will relate to all things Second Amendment, Militia, and tyranny prevention (and reversal).  This would include, for reasons cited herein, below, the Pose Comitatus Act.  This work will be far more substantial than The Time Given (soon, I promise), though that treatise is no less important to the scope of human happiness than anything else I write.

I hope the book-buying public also gives my work an “A” and I experience mass market financial success.  Remember, you need not actually read a book; what counts is buying it (multiple copies if possible).  I have limited the many notes and many of the citations which accompanied my old paper and which will inevitably appear in the book.  For the book I intend to clean them up, eliminate them if possible, or relegate them to the seldom viewed “Notes” section at the back. I hear notes, like charts and graphs, drive down sales.  Pictures have been known to help though:

The history of the Act is a great part of the history of the 19th century in America.  As you may recall in the middle of that century we had a rather unpleasant incident which resulted in the deaths of about 600,000 men.  I refuse to call it The Civil War because it wasn’t.  A “civil war” is where two or more factions fight for control of a central government.  In our case, the Southerners wanted to be free of Washington, not in control of it.  It also wasn’t a declared war (I’ve had debates with other attorneys about what that meant). My northern friends often ask me my opinions about the war.  I can sum the up easily: it was as deadly as it was unnecessary. 

I am in the minority of honest legal historians who believe that the southern states had every authority to seceed from the union.  I think any state today has that same authority.  Nothing in the Constitution compels eternal membership and several states expressly reserved the ability to withdraw at any time.  They asserted a Natural Law position which, being universal, would seem to apply to even those states which joined without such reservation. 

Back in the Nineteenth Century, America was plagued with major problems – debt, financial scams, economic warfare, lying politicians, and, of course, slavery.  Come to think of it, the more things change, the more they stay the same.

You may recall from history that once the “war” was over and the Union reunited, a probationary period was imposed on the southern states.  This period was known as Reconstruction.  It was rank with abuse.  In numerous cases the legislatures of southern states and other institutions were invaded or harassed by regular army troops.  The Posse Comitatus Act was passed partlyin  response to these alarming events. 

“Posse Comitatus” is a Latin phrase roughly meaning “power of the county.”  “Posse” in latin is a verb which means to “be able” or to “have power”.  “Comitatus” means “company” or “retinue.”  In other words, it refers to the local militia – those men available for service in times of crisis.   An aside, suited for a future article: “militia” does not correlate with the “National Guard.” 

The concept of the militia predates and was well established at the time of our nation’s founding.  Congress still acknowledges the militia separately from the Guard; the Guard and the militia are differentiated under Titles 10 and 32 of the U.S. Code.  Every State maintains a militia (at least in the law books) separate from the Guard.  In Georgia, the State militia is officially the Georgia State Defense Force.  See: O.C.G.A. § 38-2-23, et seq

The Guard was instituted in the early twentieth century and is essentially a back-up force for the regular national army – it is sometimes on loan to the several States.  Enough on that for now.

Image by MBM

The Pose Comitatus Act reads, in its entirety: “Whoever, except in cases and circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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.”   18 U.S.C. § 1385.   

The Act (let’s call it the “PCA” from here out) originally started out as an amendment to the Army Appropriations Bill (H.R. 4867) for the fiscal year ending in 1879.  This would be during the forty-fifth congress, second session, in 1878.  The initial mention of the concept of the PCA as an amendment came from Rep. William Kimmel of Maryland on May 20, 1878.  Kimmel was cut off in mid speech by time constraints; however, he successfully laid the framework for the PCA amendment.  See: 7 Cong. Rec. 3586. 

H.R. 4867, PCA and all, eventually became law on June 18, 1878, hence the pending birthday celebration.  See: 7 Cong. Rec. 4686.  Some scholars have speculated the PCA was enacted only to end the use of he army in supervising southern elections and legislative sessions.  Earlier I said the PCA was partly enacted for the reasons said scholars state.  I, however, dug deep into Congressional history (boy, what fun) and found a more complicated picture. 

The roots behind the theory of Posse Comitatus go much deeper and further back in history than the American Republic.  The concept was present at the end of the Roman Republic, more than twenty centuries ago.  Gauis Curio attempted to disarm Caesar’s returning army in order to preserve domestic tranquility.  See: Caesar, The Gallic War, Loeb Classical Library, 587 (Harvard U. Press, 2000).  As you know, Caesar “crossed the Rubicon” and the Empire shortly thereafter commenced.

In early America the fear of armed military forces present in everyday life was of grave concern to our Founding Fathers.  Beginning the Declaration of Independence with a nod to Natural Law, Thomas Jefferson listed the first grievance against King George that “He has kept among us, in times of peace, standing armies without the consent of our legislature. … He has affected to render the military independent of and superior to the civil power.”  Dec. Independence, para. 13 – 14 (1776).  Jefferson listed various other similar complaints against the King.

Jefferson was not alone in his fear of standing armies, provisions against which found their way into both the Articles of Confederation and the Constitution (remember the Constitution?).  In The Federalist Papers, Alexander Hamilton, himself not the greatest proponent of freedom, railed against the standing army as “unsupported by any precise or intelligible designations of reasons.”  The Federalist, No. 27 (Hamilton).   

The Forty-Fifth Congress considered several issues in developing the PCA: a standing army versus a militia; limited central government; and, the proper (if any) uses for an army within the confines of the territory of the Republic.  A sub-issue of concern at the end of the 19th Century was the potential rise of communism, which Congress greatly and rightly feared.  Karl Marx was still alive at the time of the PCA debate, his works on “economics” relatively fresh off the presses.  Rep. Abram S. Hewitt of New York commented on the subject: “If you want to fan communism, increase your standing army and you will have enough of it.”  7 Cong. Rec. H. 3538 (1878). 

Rep. Kimmel stated the then current use of the army in domestic affairs was a direct “violation of the Constitution.”  He cited numerous examples of federal troops aiding tax agents, governors, sheriffs, and district attorneys in Georgia, Kentucky, Michigan, and New York.  7 Cong. Rec. 3580 – 3582.  Again, it is popularly said that the PCA was the result of Southern states fed up with the misuse of federal soldiers during elections. Most of Kimmel’s examples were responses to tax collections and labor disputes.  In 1878, as today, New York and Michigan are generally regarded as northern states.  Other Representatives related similar troubles all across the country.  The problem was national in scope.

In the Senate the debate continued.  Senator Benjamin Hill of Georgia remarked, “A posse comitatus is a wholly different thing from an army; it is different in every respect from an army…”  7 Cong. Rec. 4246.  He continued, “it never was lawful, it never shall be lawful, to employ the army as a posse comitatus until you destroy the distinction between civil power and the military power in this country.”  Id

As the PCA is a criminal law and given the federal Empire’s love of prosecuting any and everything, one would expect numerous cases under the PCA over the past century or so.  One would be mistaken.  There has never been one single case brought against anyone under the PCA.  This may be due to the fact that the most likely suspects are government officials.  They don’t like to go after their own.  Honor among thieves you know.

The closest semblance of judicial review of the PCA has been in the form of indirect rulings in cases involving other crimes.  Defendants have asserted, as a defense, an alleged violation of the PCA by government officials executing some duty (such as drug enforcement).  This defense universally fails.  I will not bore my audience with any particular cases, though they date from at least 1975 and continue into this Century.

Oddly, I, the great authority on this matter, was once threatened with the potential of facing a PCA violation!  Yes, yours truly, Perrin Lovett.  It all stemmed from one of those lovely anti-family law cases of which I have previously expounded: https://perrinlovett.wordpress.com/2013/02/09/anti-family-law/.  I believe it was a custody dispute. 

Anyway, the defendant was a member of the U.S. Army stationed at Camp Zama in Japan.  Thus, I was tasked with the trouble of perfecting International legal service of process which is not necessarily the easiest thing to do.  I decided to circumvent technicalities by having the defendant simply acknowledge he had received my petition.  Not having an exact address for him, I contacted several offices at the Camp in an attempt to solicit their help in the matter.  The Provost Marshall’s office quickly told me they could not assist with serving a civil lawsuit without running afoul of the PCA.  They actually said that; you know, from the history given here, this type of situation was not within the original intention of Congress.  I pointed out that I was not asking for such, just for friendly information.  As luck would have it, I located the defendant on my own and the case went forward.  As usual, no-one was happy.  Correction: I am happy to have avoided being the only PCA prosecution in history.

Back to reality.  There have been cases innumerable of the military becoming involved in civil law enforcement – from the “war” on drugs to the massacre at Waco, to the Wounded Knee massacre, to the hunt for the D.C. snipers, etcetera, ad nauseum.  Why then, have there been no criminal cases arising from the incidents?

The answer lies in the actions of both the Executive branch and, especially, with Congress.  Exception after exception to the PCA have been enacted over the long years.  Congress has all but rendered the PCA a dead letter to the point the Act is useless for its intended purpose.  

It is somewhat interesting that, having taken the teeth away, Congress has not fully repealed the PCA.  This may be because federal laws never die, they linger forever, used or not.  Amazingly, as recently as 2005, the 107th Congress reaffirmed the spirit of the PCA, literally, but not meaningfully.  “The Congress reaffirms the continued importance of …[the PCA] … and it is the sense of Congress that nothing in this Act [H.R. 5005 – creating the Department of Homeland Security] should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws.”  H.R. 5005 § 780(a) – (b). 

The Homeland Security debacle … Act … followed the Patriot Act and decades of “war” on drugs, crime, and your freedom.  Various National Defense Authorization Acts have followed.  The result has been the complete decimation of the PCA.  President Bush (No. 43) and his successor, Barack Obama, have made clear their intention to use the military whenever necessary, wherever needed, to keep us safe, of course.  Obama even claims he can use military weapons to kill without Due Process.  The protests against his claim are less than deafening.  I protest!

I have some suggestions for changes and improvements to restore the vitality of the PCA.  This is one of the few instances where you will ever hear me call for a new or continued statute.  In the name of freedom, Congress should amend the PCA first to kill all of the previous exemptions.  Second, they should specify that the law only applies to those members of the federal, state, or local governments who would dare to use federal military force to accomplish civil law enforcement of any kind; they could define a violation as an act of government employee-specific treason. 

The punishment could be expanded accordingly.  Perhaps the original punishment might be appropriate in minor cases.  Others, such as those which involve the mass killing of American citizens could be made capital felonies.  Congress has the Constitutional authority to also limit the review of any conviction from any court – including the Supreme Court; thus, when a high official (an attorney general for example) orders Army tanks to drive into a church and burn the worshippers within alive, that official could be convicted under the PCA and immediately hanged in public.  This might serve as a warning to future would-be tyrants. 

Again, this is only a suggestion.  I do not relish the idea of killing even to avenge killing.  I reconsider, reluctantly, when the dread act(s) have the potential of continuing against all of the free people.

This leads me back to my article on drones picking off the voting, tax-suffering public, https://perrinlovett.wordpress.com/2013/02/15/droning-on-and-on/.  A President, already forbidden to use military drones against domestic targets (his already unConstitutional Orders overridden by my proposed law) might think twice about defying the law if he knew the gallows awaited his defiance.

The issues raised herein may likely lead to other related articles.  All of which concern you and those you hold dear.  It is your freedom, security, and happiness that drives me to raise the alarm – the same alarm raised by the Founders and the forgotten members of the forty-fifth Congress.  Bless their wisdom and fore-sighted concern.

- Perrin Lovett is the CF Floyd Feature Writer of Affairs National at TPC & is also the Editor of Freedom Prepper.