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Monday, October 30, 2006


Some technical points...

First "posse comitatus" is Latin for "the power of the country", and essentially refers to a force of citizens that may be called upon by the legal authorities for assistance in exercising that authority. The term "comitatus" is often omitted, hence the common usage of merely "posse" to refer to a group of citizens temporarily pressed into service for law enforcement purposes.

The U.S. Code prohibits the use of the military as a posse comitatus except under specific circumstances. But there is ample precedent for the idea that the President has the discretion to do so (with federal forces, anyhow). Or at least, the President had wide latitude to do so up until 1878, when the present restrictions were enacted (try Googling "Rutherford B. Hayes" and "posse comitatus" for some interesting reading about the Reconstruction-era South). But even that 1878 act had wide loopholes that allow for exceptions to the prohibition.

So the real news here is not so much that the President may use the armed forces for maintenance of domestic order. The President has always had the authority to do so under certain circumstances. The news here is rather that the National Guard is explicitly included in that authorization.

There remain still, however, checks and balances. But it all has to filter through the judicial branch, essentially, because as always the Executive can (and with the current administration, often will) try to claim whatever authority it wishes. It's up to the other branches to rein in the Executive.

And that takes time, during which the damage may already be done. But that's our system, as it always has been.

Oh, another interesting point...

Suspension of the Writ of Habeas Corpus is actually explicitly allowed under the U.S. Constitution (by defining exceptions to when it's not allowed) -- but it's under Article I, which defines the Legislative Branch, not under Article II for the Executive.

Isn't that fascinating?

When Lincoln suspended Habeas Corpus during the Civil War, Congress was not in session at the time and so he assumed their powers in their absence. Sort of a controversial move, that. :-D

Anyhow, the Constitutional allowance for suspension is written vaguely enough that one could certainly make a case that present circumstances fall under that allowance. Me personally, I don't think so. But this is another example where it'll be up to the Supreme Court to check (or balance) that move.

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