On the recordDecember 1, 2011
One of the things you learn in military law school is the Posse Comitatus Act, because if a military member or a unit is asked to assist in a law enforcement function, that is prohibited in this country. Why is that? We don't want to become a military state. We have civilian law enforcement that is answerable to an independent judiciary. The Posse Comitatus Act came about after Reconstruction, because during the Reconstruction era the Union Army occupied the South. They were the judge, jury, and law enforcement. They did it all because there was no civilian law enforcement. After the South was reconstructed, a lot of people felt that was not a good model to use in the future; that we don't want to give the military law enforcement power; they are here to protect us against threats, foreign and domestic; law enforcement activities are completely different. Now we have National Guard members on the border. That is not a law enforcement function. That is the national security function. But I have been receiving calls that say our legislation overturns the Posse Comitatus Act. Here is why that is completely wrong. Surveilling an al-Qaida member, capturing and interrogating an al- Qaida member is not a law enforcement function; it is a military function. For the Posse Comitatus Act to apply, you would have to assume that a member of al-Qaida is a common criminal and our military has no legal authority here at home to engage the enemy if they get here. You talk about perverse.…





