BEYOND PASSE COMITATUS: NEW ROLE FOR THE NATIONAL GUARD

January 11, 2012

In 1878, the Congress passed the Passe Comitatus Act, a federal law which prohibits members of the military from exercising powers that maintain "law and order" on non-federal property.

The original intent of the law was to remove the Army from domestic law enforcement. It was the final promise that Republicans were to keep to Democrats in 1877 for letting Rutherford Hayes get 20 disputed electoral votes, and allowed Hayes to defeat the Democratic New York Governor, Samuel Tildon by just one vote.

Thus Passe Cumitatus ended Reconstruction, and removed federal troops from the southern states as police officers.

The Posse Comitatus Act was passed in an era when the threat to national security came primarily from the standing armies and navies of foreign powers. Today the equation for national defense and security has changed significantly.

With the fall of the Soviet Union our attention has been diverted—from the threat of aggression by massed armies crossing the plains of Europe to the security of our own soil against biological or chemical terrorism. Rather than focusing on massed Russian intercontinental ballistic missiles as our most imminent threat, we are increasingly more aware of the destructive potential of new forms of asymmetric warfare.

Its application today is to be a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter.

I invite you to flash back with me to July, 2008. On the campaign trail, then Presidential Candidate Barack Obama vowed to create a "civilian national security force that's just as powerful, just as strong, just as well-funded" as the U.S. military.

Apparently, no one else in the national press found that promise newsworthy. I thought he might be referring to armed citizens, protecting their homes, but I was in pain from a kidney stone and on vicodin at the time. I forgot that this guy wants to criminalize gun ownership. Then, it dawned on me! Obama wants to ignore posse cumitatus, and possibly use the military to police the homeland, possibly to break down my door, arrest me for owning guns and make me an enemy combatant.

I started to comb and scour the news to find the speech or its transcript only to find that his pledge had been stricken from transcripts of the speech handed out to media.

Whatever happened to the "civilian national security force" initiative? No one in the press has dared to ask that question. But two recent developments suggest Obama may have found an innovative way to achieve his objectives to militarize the homefront without creating a new national security force: In December, both houses of Congress passed the defense reauthorization bill that killed the concept of habeas corpus — legislation that authorized the president to use the U.S. military to arrest and indefinitely detain American citizens without charge or trial.

This week, over the objections of Joint Chiefs of Staff, the National Guard's top officer became the fifth member of that body that advises the president on national security matters. "There is no compelling military need for this change," said Army General Martin Dempsey, chairman of the Joint Chiefs, during his congressional testimony on the bill. Nevertheless, Congress knew better. Obama knew better. In fact, all six four-star generals testified in a Nov. 10 hearing of the Senate Armed Services Committee that the idea of including the National Guard honcho as a member of the Joint Chiefs would create needless confusion and reduce the authority of the other military representatives.

But it gets even worse.

Even Obama's own defense secretary, Leon Panetta, opposed the measure. He told reporters that membership on the Joint Chiefs should "be reserved for those who have direct command and direct budgets that deal with the military."

It seems to me, Obama has, with the approval of Republicans in Congress, achieved his major goal of militarizing domestic civilian life in the U.S.

The U.S. military has been authorized by Congress and Obama to arrest and detain indefinitely without charge or trial any U.S. citizen on suspicion of being a terrorist. The only one who can override the order is Obama himself. And now the National Guard has been deputized as a posse for Obama's "non-civilian national security force."

Just try to imagine the outrage if George W. Bush had made such moves and proclaimed such ideas. It's frankly unthinkable. There's no way he could have accomplished it. But the most ideologically left-wing occupant of the White House in American history did. Go figure.

This is not good news for those of us who recognize how Obama views his political adversaries and critics. In short, he probably thinks people like me, who stand firmly behind the Constitution, represent more of a threat to national security than did Osama bin Laden.

So for all intents and purposes, the "national security force" Obama mused about in 2008 is in place. It's just not civilian. It's military.

It's no longer a question of whether political dissidents are going to hear that dreaded knock on the door in America. It's only a question of who is going to have their door knocked down by U.S. military forces and be dragged kicking and screaming to Guantanamo Bay without even the right to talk to an attorney.

And yet, just as the media compliantly declined to pursue an explanation of Obama's call for the creation of a "civilian national security force," they also refuse to ask questions about this fundamental break from the Constitution's protection of individual rights to a fair and speedy trial, and the long-held tradition of the U.S. military being kept out of domestic, civilian life.

Rather than "hold on to your girdle Myrtle," it appears it may be "hold on to your guns, Sugar Buns" Mr. Obama has something up his sleeves.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.