Goin' Scarface on yo ass, part deux

Dewey, Cheatem, and Howe has had me working like a mad lawyer dog lately, so I've neglected my duties. My bad. But I did want to get back to something that Dews posted a bit ago.

May the military assist local law enforcement? The short, and lawyerly, answer is maybe. The concept of the military aiding civilian law enforcement is commonly called posse comitatus. At common law, it was permissible for the military to help quell local rebellions (man, I miss the good old days when there were rebellions) and insurrections (miss those too). The military was frequently called on during colonial times to make sure those pesky Americans were kept in line.

The U.S. Constitution's framers, probably reacting to the use of posse comitatus, put a number of procedural roadblocks up to prevent civilians from being railroaded by their government, and you just need to look at the first ten amendments to get an idea of what they were concerned with: no quartering soldiers, no unreasonable searches or seizures, warrants need probable cause, and so on. The reason, basically, is that when one is arrested by the military, one's civil rights are limited. Keep the military out of it, and people can enjoy greater procedural rights.

Hamdan and Hamdi anyone?

But while the Constitution restrains government through the Bill of Rights, it also allows the President to use the militias of the several States when they are needed. See Art. II, Sec. 2, Cl. 1. That, broadly interpreted, means he may constitutionally call forth the "militia" for, well, maybe anything.

Enter the Posse Comitatus Act of 1878. It was enacted during Reconstruction in part because former Union troops were being used frequently for local law enforcement, and sometimes used in a shady way to influence elections, perhaps even national elections. The act is still in effect today. It's codified at 18 U.S.C. sec. 1385. There are exceptions, obviously. The President, under Title 10, can call out the military in times of national disasters or to enforce the laws of the United States. In fact, that's how President Eisenhower had the legal authority to order paratroopers into Little Rock to desegregate the schools.

The interesting thing, politically, is that there are a lot of neo-cons out there who want this kind of legislation repealed, or see it more as a procedural hurdle than an actual prohibition against using the military in civilian law enforcement. The problem with their position is one that Blackstone pointed out hundreds of years ago: when you blur the line between civilian law enforcement and the military, you run the risk of the military trampling over long-held civil rights. The military has its job to do, and that job doesn't really lend itself to protecting basic civil rights. Civilian law enforcement does a much better job, and is, especially at the local level, accountable to the people they police. It's important to maintain the civilian-military distinction.

So, yeah, take that neo-cons.