Jose Padilla and Posse Comitatus
By thelizman
Sat Jun 22nd, 2002 at 10:54:00 AM EST
In these past many weeks I have seen a number of articles critical of steps taken by the Justice Department
and the Bush Administration to proactively curb future terrorist strikes in the homeland. Every last one of
them I read amounted to the Internet equivalent of a bunch of loons standing on a cyber street corner
screeching, "the end is nigh!"
That is until I started to more closely consider the case of would-be dirty bomber Jose Padilla. Excuse me,
but I must go as the sky just started falling.
Prior to Padilla's arrest, only two American citizens were being held by the US Military. Yasser Esam Hamdi is
a Saudi national, but was born in the US State of Louisiana giving him rights as a US citizen. John Walker
Lindh too is an American citizen, and unlike Hamdi, grew up in the US. However, Hamdi and Lindh were both
captured in a war zone while acting in support of the enemies of the United States. Since they were not
acting as part of a recognized government, but instead a terrorist organization, they earned the label of
"enemy combatant" - a nebulous status that places them between a Prisoner Of War (POW) and a common
criminal and without the rights of either.
However, Jose Padilla is unique in that, while he was conspiring with the same terrorist organizations as
Hamdi and Lindh, Padilla was on US soil when he sought to carry out these activities, and was thus detained
not in a war zone, but in the sovereign territory of the United States.
I'm going to shift gears and discuss a topic last heard about the time of the last great terrorist attack on US
soil. When domestic terrorist Timothy McVeigh acted with unspecified individuals and committed the single
worst act of domestic terrorism in US History, the national focus shifted to domestic militia groups. These
groups were born out of a loathing of the policies of the US Government, and while the vast majority were
political entities exercising their rights as US citizens, some elements of the militia movement sublimed into
terrorist organizations. The response to these organizations was carried out by civilian law enforcement
agencies including the Federal Bureau of Investigation (FBI), Bureau of Alcohol, Tobacco, and Firearms
(BATF), Office of the Postmaster General, Internal Revenue Service, and various and sundry state agencies
where jurisdiction dictated.
In the aftermath of the Oklahoma City Bombing, there was a national dialogue on the roots of domestic
terrorism. Much of it pointed to the blatant abuses by the Federal Government, including the use of National
Guard troops and equipment during the standoff at the Branch Davidian Compound in Waco, Texas. This is
the first and last time most Americans heard the words posse comitatus.
Posse comitatus refers to legislation enacted after the Civil War during a period known as Reconstruction that
prohibits the use of US Military personnel and equipment against American Citizens to enforce the law,
except in specific instances as authorized by Congress (18 USC 1385). The act was later amended and
extended to allow for military assistance to civilian law enforcement agencies, such as the stationing of Drug
Enforcement Agency (DEA) personnel aboard Naval and Coast Guard vessels for drug smuggling interdiction
operations (10 USC 371 - 378).
Posse comitatus literally refers to the power of a law enforcement agency to enlist the aid of civilians in
enforcing laws. Posses were quite common along the American frontier where Federal troops were neither
desired nor available (especially during the Civil War and Reconstruction Eras). While not disallowed under
the Constitution, politicians have long recognized the danger in using standing armies against domestic
civilian populations. Bitter memories of occupation from the American Revolution and the American Civil War
made the concept unpopular both for civilians and military personnel who were aware of the lessons of
history. The military is a conquering force, whereas civilian law enforcement agencies are to be keepers of
the peace.
With this in mind, we must once again consider the case of Jose Padilla. Padilla was quite clearly working in
concert with enemies of the United States. His actions amount to the highest crimes of sedition and treason,
and precedent exists wherein such persons do not necessarily enjoy the legal protections afforded to the
accused. However, one protection that he is still afforded is that his crimes fall under the purview of the
Department of Justice and the Federal Courts because his crimes were alleged to have taken place in
sovereign US territory, and he was also taken into custody in sovereign US territory. However, Padilla was
instead declared an "Enemy Combatant" and turned over to the US Navy, and is currently held in a military
prison facility in South Carolina.
The startling nature of Padilla's case is that no respect has been given to the separation of jurisdiction
between the US Military and Civilian Law Enforcement agencies. Effectively, this goes against the principles
and directives of posse comitatus as such a lapse in jurisdictional separation extends the purview of the US
Military to include US Citizens acting on US soil. Failing to maintain this distinction sets a dangerous
precedent that could open the way for the military to be used against the civilian populations they are
charged with defending from foreign enemies.
The importance of posse comitatus cannot be understated. The issue of Padilla's arrest is one of jurisdiction.
By granting jurisdiction over Padilla to the military, the Department of Justice has avoided the sticky issue of
having to charge him with a crime by a given deadline. The military does not have to charge an enemy
combatant with a crime, and can arrest and detain someone indefinately based solely on their classification
as an enemy combatant.
As a doctrine, posse comitatus prevents the ascent of a tyrant who would have the ability to rule by force as
opposed to consent. It is the wise and intelligent doctrine of a Republic, and is one of the doctrines that
must be abandoned before America could become an Empire.
kuro5hin.org
Libertarian? Yeah, probably. And I agree completely with it. The idea of America is about preservation of individual rights in the face of governmental power. |
