FC: Military apparently videotapes DC protesters; Posse Comitatus

[Declan McCullagh <declan () well com>]

[I co-authored an article a few years ago that covered Posse Comitatus in 
some detail. The relevant excerpt follows below. The law is here: 
http://www4.law.cornell.edu/uscode/18/1385.html  I'd make two points in 
response to Ben's message: (1) Posse Comitatus restricts the military from 
enforcing civilian laws, a restriction the Pentagon has interpreted to mean 
troops assisting in search, seizure, and arrests. Videotaping protesters, 
assuming the images are what they appear to be, is a disturbing development 
-- but it does not seem to cross that line. (2) It is odd to see the 
military conducting surveillance, since there were so many civilian police 
on the streets doing just that. See: 
http://www.mccullagh.org/image/d30-28/police-prepared-for-protests-3.html 
--Declan]

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From: "Ben" <bmw () carolina rr com>
To: <declan () well com>
Subject: Military filming protests
Date: Tue, 8 Oct 2002 23:31:04 -0400
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I thought this was illegal, and according to this site it is in fact a 
violation of the "Posse Comitatus Act."

Anyway, whether this is for politech or not is up to you. I just thought 
the photos were a little interesting (and bothersome).

<http://www.thememoryhole.org/policestate/protesters-filmed.htm>http://www.thememoryhole.org/policestate/protesters-filmed.htm

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By Declan McCullagh and Solveig Singleton
February 1, 1999

[...]

With the end of the cold war, it would have made sense for the US military 
to shrink. Retired Army chief of staff Edward Meyer admitted to a 
Washington Post reporter in 1989 that "the end of the cold war makes it 
inevitable that the Army will shrink far below the 772,000 on duty today."

It didn't. Supporters of an expansive US military have spent the last 
decade finding something for it to do. In the 1980s, Congress amended the 
Posse Comitatus Act of 1878 -- which restricts use of troops to enforce 
civilian laws -- to let the President enlist the military in the war on 
drugs. President Reagan in 1986 signed a National Security Decision 
Directive declaring drug trafficking a threat to the security of the United 
States.

The framers of the US Constitution opposed standing armies in general, and 
especially their use for purposes other than defending the country against 
foreign enemies. It was the arrest of civilians by the British army, 
quartering of soldiers in private homes, and similarly incendiary tactics 
that provided the tinder that sparked the American Revolution.

Less than a century later, President Lincoln usurped constitutional 
authority in well- chronicled ways. His justification: The inherent power 
of the commander-in-chief and his duty to "take Care that the Laws be 
faithfully Executed." During the Civil War and Reconstruction, the arrest 
and trial of civilians by military and civilian courts -- and the impotence 
of civilian courts when the military refused to respect orders of habeus 
corpus -- led to the passage of the Posse Comitatus Act.

Since that time, understanding of the dangers of deploying the military in 
the domestic arena has diminished. DEA administrator Francis Mullen once 
casually dismissed civil libertarians' concerns about potential abuses if 
the military joined law enforcement. "There is sufficient oversight on the 
part of Congress and others," he told a Newsweek reporter, "to deter 
infringement on individual liberties." A Democratic Congressman 
characterized the Posse Comitatus Act as a "sinful, evil law."

Military leaders appear more aware of the danger of deploying forces 
domestically. Marine Major General Stephen G. Olmstead, deputy assistant 
secretary of defense for drug policy, warned a Senate subcommittee in 1987 
that calling out the military to fight the drug war within the U.S. would 
be unwise. "One of [America's] greatest strengths is that the military is 
responsive to civilian authority and that we do not allow the Army, Navy, 
and the Marines and the Air Force to be a police force. History is replete 
with countries that allowed that to happen. Disaster is the result."

Use of military procedure by FBI agents proved a disaster at Ruby Ridge. 
Vicky Weaver was murdered in part because the officers who shot her were 
governed by military rules of engagement. They allow troops to shoot an 
enemy on sight -- a far cry from the rules controlling domestic law 
enforcement. At Ruby Ridge the rules of engagement let officers fire at any 
armed adult, rather than engage in usual threat assessment.

Even though using the military to perform civilian functions is 
extraordinarily dangerous, the Posse Comitatus Act has gradually been 
eroded. The Stafford Act of 1984 allows the military to help during natural 
disasters. After a natural disaster, a governor can ask the president to 
declare a state of emergency. Once the emergency has been declared, 
soldiers on active duty can be deployed as directed by FEMA. In August of 
1992, the Army was deployed in South Florida to respond to Hurricane 
Andrew, and a month later on the island of Kaui after Hurricane Iniki.

Since the Posse Comitatus Act remained in effect during this time, soldiers 
could not enforce the law, arrest or detain civilians, serve search 
warrants or any other form of process. In South Florida the soldiers doled 
out aid to citizens and illegal immigrants alike, without questions. 
Active-duty soldiers were not permitted to provide security at relief 
centers occupied by civilians.

When it comes to the use of troops to restore order during riots, however, 
the president can suspend the Posse Comitatus Act at the stroke of a pen. 
The act doesn't cover soldiers deployed as authorized by the Constitution 
or exempted from the Act by statute.

Defense Department regulations (DoD Directive 3025.12) outline one of the 
larger loopholes. It allows soliders to be used "to prevent loss of life or 
wanton destruction of property and to restore governmental functioning and 
public order when sudden and unexpected civil disturbances, disaster, or 
calamities seriously endanger life and property and disrupt normal 
governmental functions."

The reality? The president can deploy troops whenever he feels like it. 
President Bush did just this in response to the the Los Angeles riots. On 
April 29, 1992, the jury released its verdict in the Rodney King trial. A 
wave of riots followed. On May 1, 1992, California asked the president for 
aid; Bush responded with an Executive Order allowing the Secretary of 
Defense to call out the Army.

[...]




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