A cynic might say Posse Comitatus has been repealed

Buried in the Defense Authorization Act for 2007 is a provision that changes dramatically the relationship between ordinary Americans, their government and their military. The Defense Authorization Act contained a highly objectionable provision to allow the President more control over the National Guard, which included changes to the Insurrection Act, which will make it easier for this or any future President to use the military to restore domestic order without the consent of the nation's governors. The modification to the Insurrection Act gives the president the authority to send the military into the streets of America as a police force to "restore order." They aren't even calling it the Insurrection Act any more. Instead, it has the Orwellian-sounding "Enforcement of the Laws to Restore Public Order." It is all so broad that virtually any protest can be determined to be a danger to the United States and troops could be deployed into the streets of America.

There is a specific name for such actions. Martial Law.

The Insurrection and Posse Comitatus Acts have been a cornerstone of American freedom since 1878. Posse Comitatus was passed to prevent the United States Military from being used to enforce elections in the repatriated confederacy after reconstruction. Now, 128 years later, it is part of our libertarian heritage.

Here is the text of the Posse Comitatus Act

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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.

This bit of Federal Law is the only U.S. criminal statute that outlaws military operations directed against the American people under the guise of law enforcement.

Here is the direct text in question from page 19 of the Defense Authorization Act:

Use of Armed Forces in Major Public Emergencies. Section 1042 would amend the Insurrection Act to make explicit the President’s authority to deploy the armed forces, including the National Guard, within the United States to restore order or enforce federal law after a major public emergency, such as a natural disaster, epidemic, or terrorist attack. Current practice, in a major public emergency, is for the governor or legislature of a state to request assistance from the federal government. The Federal Emergency Management Agency then organizes the federal government’s response to that request.

This provision would clarify the President’s authority to deploy the armed forces in response to public emergencies without first receiving a request from state authorities in cases where the President determines such action is necessary to restore public order or enforce federal law. This section also would authorize the President to direct the Secretary of Defense to provide supplies, services, and equipment to persons affected by such an emergency. If this clarification would encourage the President to use the armed forces more frequently or more
intensively than is the current practice, the potential cost could be significant. However, because CBO does not have a basis for determining the frequency of such emergencies or the magnitude of the potential involvement of the armed forces, CBO has no basis for predicting the potential cost of this section.

This caught the attention of the sober individuals at the Congressional Budget Office. At the very beginning of the CBO Cost Assessment, the CBO stresses

Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of that act any legislative provisions that enforce the constitutional rights of individuals. CBO has determined that section 1042 would fall within that exclusion because it would expand the authority of the President to employ the armed service to protect individuals’ civil rights. Therefore, CBO has not reviewed that section of the bill for mandates.

I don't know about you, but that little bit makes me nervous. Especially given the track record of this administration.

Exactly one Senator has raised a note of protest over this egregious power grab. Senator Patrick Leahy of Vermont has been the lone voice of dissent. On 29 September, Leahy entered into the Congressional Record that he had "grave reservations about certain provisions of the fiscal Year 2007 Defense Authorization Bill Conference Report," the language of which, he said, "subverts solid, longstanding posse comitatus statutes that limit the military's involvement in law enforcement, thereby making it easier for the President to declare martial law." Leahy claimed that this provision had been "slipped in,as a rider with little study while other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals." Leahy went on "The implications of changing the (Posse Comitatus) Act are enormous. There is good reason," he said, "for the constructive friction in existing law when it comes to martial law declarations. Using the military for law enforcement goes against one of the founding tenets of our democracy. We fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty." (emphasis mine) Leahy finished his comments by wondering aloud how we got to this point. "Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point. It seems the changes to the Insurrection Act have survived the Conference because the Pentagon and the White House want it."

I too wonder how we got here Senator. This is indeed disturbing news, and this provision needs to be repealed immediately when the Democrats take their seats in January. If it is not, I fear the consequences.

The only reason I can sleep at night knowing about this is due to the fact that I have faith in the men and women of our military and the men and women of honor who lead them, and in the fact that they take their oaths to uphold the Constitution, and protect this country from all enemies, both foreign and domestic, and if we are going to start reinterpreting what constitutes a domestic enemy, where might that stop, Mr. President? Better men than you have failed in such pursuits.

Lawful and Unlawful Orders and a Soldiers Responsibility

At Making Light retired officer Jim McDonald has done what my own husband has been putting off doing: He has written the quintessential essay on lawful and unlawful orders. Here is his essay, in it's entirety:

You are not required to obey an unlawful order.

You are required to disobey an unlawful order.

You swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

The Constitution states (Article VI):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Here is article 3, the common article, to the Geneva Conventions, a duly ratified treaty made under the authority of the United States:

Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.


Article 3 of the Geneva Conventions is straightforward and clear. Under Article VI of the Constitution, it forms part of the supreme law of the land.

You personally will be held responsible for all of your actions, in all countries, at all times and places, for the rest of your life. “I was only following orders” is not a defense.

What all this is leading to:

If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No “clarification,” whether passed by Congress or signed by the president, relieves you of that duty.

If you are ordered to violate Article 3 of the Geneva Conventions, this is what to do:

1. Request that your superior put the order in writing.

2. If your superior puts the order in writing, inform your superior that you intend to disobey that order.

3. Request trial by courtmartial.

You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity. America relies on you and your courage to face those challenges.

We, the people, need you to support and defend the Constitution. I am certain that your honor and patriotism are equal to the task.

This post may be quoted in full. A linkback would be appreciated.

Thank you, Jim. I'm glad to link to your homepage, too.