FC: Military apparently videotapes DC protesters; Posse Comitatus

From: Declan McCullagh (declanat_private)
Date: Tue Oct 08 2002 - 21:22:16 PDT

  • Next message: Declan McCullagh: "FC: UCSD retreats on links to terrorist group, but hosting not OK"

    [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]
    
    ---
    
    From: "Ben" <bmwat_private>
    To: <declanat_private>
    Subject: Military filming protests
    Date: Tue, 8 Oct 2002 23:31:04 -0400
    MIME-Version: 1.0
    Content-Type: multipart/alternative;
             boundary="----=_NextPart_000_0007_01C26F22.C5097DE0"
    X-Priority: 3
    X-MSMail-Priority: Normal
    
    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
    
    ---
    
    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.
    
    [...]
    
    
    
    
    -------------------------------------------------------------------------
    POLITECH -- Declan McCullagh's politics and technology mailing list
    You may redistribute this message freely if you include this notice.
    To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
    This message is archived at http://www.politechbot.com/
    Declan McCullagh's photographs are at http://www.mccullagh.org/
    -------------------------------------------------------------------------
    Like Politech? Make a donation here: http://www.politechbot.com/donate/
    Recent CNET News.com articles: http://news.search.com/search?q=declan
    -------------------------------------------------------------------------
    



    This archive was generated by hypermail 2b30 : Tue Oct 08 2002 - 21:56:36 PDT