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Posee Chicagotatus? · Plausibly Live - The Dave Bowman Show Podcast

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  This is plausibly Live, the official podcast of The Dave
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  Bowman Show. Welcome back to Plausibly Live.
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  We're Lena Marlowe and Graham Calder sitting in for date
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  today. Great to be here.
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  And we're going to look at something pretty fundamental to
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  how the US works, really. Posse Comic taught us at now.
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  It's a name you probably hear thrown around maybe in news
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  reports. But what it actually is, where
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  it came from, all the exceptions, Yeah, that's often a
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  bit murky. It really is.
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  There's a lot more to it than just the name.
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  So our goal today is to sort of unpack this legal framework.
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  We'll dig into its history, the core ideas behind it, and how
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  it's been applied. Or maybe even, you know,
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  stretched over the years. Yeah, sometimes blurring those
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  lines it was meant to draw. Exactly.
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  And understanding this is, well, it's super relevant today.
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  It shapes how the military interacts with civilian society,
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  how it interacts with you. Absolutely.
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  OK, so when we picture the military on US soil, maybe we
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  think disaster relief, right? National Guard helping out after
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  a hurricane. Sure, that's a common image.
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  But actual law enforcement, like making arrests, enforcing laws,
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  that's where Posse Comitatus comes in.
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  It draws a line. That's precisely it.
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  The Act, specifically 18 USC Section 1385, it basically says
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  you can't use the Army of the Air Force, and now others too.
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  We'll get to that as a posse comitatus.
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  Which just means like a sheriff's posse, right?
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  A group called up to enforce the law.
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  Exactly. Or you know otherwise to execute
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  the laws. That's the key phrase.
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  You can't use them for domestic law enforcement unless.
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  There's always an unless. Right.
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  Unless it's expressly allowed by the Constitution or another act
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  of Congress, it sets a default prohibition.
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  OK. And where did this idea even
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  come from? You said the history was
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  specific. Very specific.
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  It was signed into law June 18th, 1878.
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  President. Hayes, 1878.
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  So post Civil War. Right in the thick of the
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  aftermath. Yeah, It was a direct reaction
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  to the, well, the military occupation of the former
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  Confederate states during Reconstruction that lasted 12
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  years, 1865 to 1877. People were seeing abuse, as I
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  take it. There were certainly perceptions
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  of abuse, yes, and widespread concern.
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  Then something else happened. President Hayes used federal
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  troops to end the Great Railroad Strike of 1877.
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  So even the president who signed it had just used troops
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  domestically. He had, and that action actually
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  helped build bipartisan support for the ACT.
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  It wasn't just about the South anymore.
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  It was a broader concern about military intervention in
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  civilian labor disputes and other issues.
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  So born from this really specific kind of difficult time
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  trying to draw a clear line, but what's the like the bigger
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  principle here? Why does the separation matter
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  so much? Well, it taps into some really
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  deep roots in American thought and even before America, British
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  tradition. There's this historical
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  aversion, a real suspicion of using standing armies for
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  domestic policing. Like the British Redcoats in
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  Boston before the Revolution. Exactly.
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  Think about the Boston Massacre. That kind of event hammered home
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  the dangers for the founding generation using soldiers as
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  police. It felt like tyranny.
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  And the Constitution reflects that.
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  It does. The Constitution generally
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  leaves policing powers, maintaining order, enforcing
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  laws to the individual states. That's the police power we talk
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  about. So the Posse Comitatus Act
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  reinforces that structure. It's seen as a really crucial
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  safeguard for democracy, for civil liberties.
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  To stop the military from becoming like a national police
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  force. Pretty much to prevent the
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  militarization of everyday law enforcement, keep the roles
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  distinct. OK, so it's not just legal
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  jargon. It's about this deep cultural
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  value, this commitment born from some tough history, to keep the
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  military's job separate from the police's job.
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  We'll put. Now, you mentioned it started
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  with the Army, then the Air Force.
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  Has it kept expanding. Who's covered now?
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  And maybe just as important, who isn't?
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  It is definitely evolved. So yeah, originally just the
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  Army. 1956 the Air Force gets added explicitly.
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  Makes sense given the Air Force grew out of the Army, right?
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  Then, much more recently, 2021, the National Defense
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  Authorization Act for that year expanded it again.
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  Now it formally covers the Navy, the Marine Corps and the Space
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  Force, too. Wow, so pretty much all the main
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  branches now. Almost all, but it's
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  interesting. Even before 20/21, DoD
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  regulations already restricted the Navy and Marines in a
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  similar way, so the 2021 law kind of codified what was
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  already mostly practice for them.
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  But not everyone is covered. You said there are exceptions or
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  forces outside its scope. Correct, It's definitely not a
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  totally solid wall. There are some key groups and
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  situations where the ACT doesn't apply.
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  OK, like who? The big one is the US Coast
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  Guard. They're an armed service, yes,
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  but the ACT specifically doesn't restrict them.
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  Why not? Because they have a specific
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  statutory federal maritime law enforcement mission.
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  That's part of their job description, basically.
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  Plus, in peacetime they operate under the Department of Homeland
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  Security, not DoD. OK, so Coast Guard is out
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  because law enforcement is part of their explicit mandate.
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  What else? A.
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  National Guard This one's a bit tricky.
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  It depends. Yeah, because they can be state
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  or federal, right? Exactly.
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  When National Guard units are under the control of their state
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  governor, that's called Title 32 status.
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  The Posse Comitatus Act does not apply.
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  They're acting essentially as a state force.
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  So the governor can use them for law enforcement within the
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  state. Yes, subject to state laws of
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  course. But if the president federalizes
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  that state's National Guard puts them under federal command,
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  which is Title 10 status, then suddenly they are subject to the
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  ACT just like the active duty Army or Air Force.
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  So command status is everything for the guard.
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  It's the critical distinction and one more category, certain
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  civilian investigative agencies within the military.
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  You mean like NCISOSI? Exactly.
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  NCIS for the Navy and Marines, OSI for the Air Force, CID for
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  the Army. These agencies often employ
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  civilian special agents, and those agents do have specific
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  legal authority to do law enforcement tasks like serve
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  warrants, make arrests related to military justice, or specific
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  federal crimes. So they have police powers, but
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  they're distinct from the uniformed troops the ACT is
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  mainly aimed at. That's a good way to put it.
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  Their authority comes from different statutes.
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  OK, so we've got the basic rule. Military generally stays out of
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  domestic law enforcement. We know who's mostly covered and
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  who's definitely excluded, like the Coast Guard or conditionally
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  excluded, like the Guard under state control.
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  But the ACT itself says except authorized by the Constitution
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  or act of Congress. That sounds like where the real
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  action is, right? The exceptions.
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  That phrase is the key, Yeah, it opens the door to several
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  significant exceptions, and these are really important to
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  grasp. What's the biggest one?
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  Probably the one often called the most significant, maybe even
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  dangerous exception is the Insurrection Act.
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  Heard of that one? Sounds serious.
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  It is. It's actually a collection of
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  statutes, Chapter 15 of Title 10, US Code.
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  And it gives the president, well, really broad powers, some
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  say virtually limitless discretion to use the armed
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  forces domestically. For what purpose?
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  To restore public order, suppress an insurrection or
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  rebellion, enforce federal laws, or respond to major emergencies,
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  even things like WMD attacks. And presidents have used this.
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  Oh yes, as of 1992, it had been invoked 23 times throughout
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  history for various reasons. It's a powerful tool.
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  OK, Insurrection Act Major exception.
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  What else? There is the Stafford Act, the
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  Robert T Staffer Disaster Relief and Emergency Assistance Act
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  that also gives the president authority to deploy military
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  assets for disaster response, which can sometimes brush up
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  against law enforcement functions, though it's mainly
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  focused on relief. Right, like hurricane relief,
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  getting supplies in. Primarily, then, there's a
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  specific law from 1981, the Military Cooperation with
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  Civilian Law Enforcement Agencies Act.
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  Cooperation. So not direct enforcement, but
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  helping out. Exactly.
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  This law clarified that the military can provide support and
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  technical assistance, things like lending equipment, using
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  military bases, providing Intel surveillance, using ships or
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  aircraft. But they can't make the arrests
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  themselves. Generally, no.
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  The law usually prohibits direct participation by military
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  personnel and things like search, seizure, arrest.
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  Think of drug interdiction. A Navy ship might track a
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  suspicious boat. But the Coast Guard guys
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  actually boarded and make the bust.
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  Precisely. The Coast Guard has law
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  enforcement attachments, malugious that often deploy on
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  Navy ships for exactly that reason.
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  Gotcha. So support is OK, Direct action
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  usually isn't under this particular law.
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  Any other specific carve outs? Yeah, there are a few more
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  targeted ones. The attorney general can ask for
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  military help with threats involving nuclear materials or
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  biological and chemical weapons. OK.
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  High stakes stuff, definitely. Also help enforcing laws that
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  protect foreign diplomats and responding to terrorist
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  bombings, especially bomb disposal EOD teams.
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  Makes sense they have unique skills there.
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  They do, and another big area under 10 USC 284 is military
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  support for counter drug operations and counterterrorism.
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  This allows providing surveillance Intel gathering
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  equipment. So observing, helping plan,
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  lending gear, but again, not usually being the frontline
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  officers. That's the general idea, though
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  sometimes the support role gets very close to the action.
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  For instance, during the Atlanta prison riots in 1987, Delta
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  Force soldiers provided sniper observer teams, communications,
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  medical support, Intel, even explosive breaching assistance
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  to the FBI. Wow, that sounds pretty involved
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  for support. It highlights the blurry line,
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  doesn't it? There's this constant tension.
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  You have the core principle, keep military out of policing.
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  But then you have all these exceptions driven by, you know,
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  real world needs, national security disasters, specific
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  threats, the drug war. It really shows it's not a
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  simple on off switch, it's complex and these exceptions
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  seem to get tested in real crises.
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  They absolutely do, and sometimes the results highlight
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  the risks involved. Can you give some examples of
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  when this is played out, Maybe controversially?
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  A really well known and frankly cautionary example is the Los
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  Angeles riots. In May 1992, President George HW
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  Bush invoked the Insurrection Act.
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  OK, so that was illegal use under the exception.
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  Yes, the deployment itself was authorized.
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  But then an incident occurred. 7 Marines went with two local
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  police officers to a domestic violence call.
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  A police officer shouted. Cover me.
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  Standard police phrase, maybe? Maybe, but for the Marines
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  trained for combat, cover me often implies suppressive fire.
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  They responded based on their training and fired over 200
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  rounds into the house. Oh my gosh, anyone hurt?
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  Incredibly, no one was killed, but it was a shocking
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  illustration of the danger. Military personnel acting in a
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  law enforcement role but using military rules of engagement and
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  interpretations. A huge mismatch.
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  That's terrifying. Shows the training gap is real.
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  It really does. Another historic example but
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  different context. Little Rock, AR 1957
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  desegregation. Eisenhower sending in the 101st
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  Airborne. Exactly.
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  He used an exception derived from older laws, the Enforcement
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  Acts, to send federal troops because the state authorities
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  wouldn't or couldn't enforce federal court orders and
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  suppress the violence against integrating the schools.
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  So using the military to uphold constitutional rights when the
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  state failed. That was the justification, yes.
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  A very different use of an exception.
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  Have there been times the military got involved without
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  proper authorization? Like mistakes were made.
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  Yes, that's happened too. In Sampson, Alabama 2009, after
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  a terrible shooting spree, some Army military police were
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  deployed to the scene. They helped with traffic
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  control. Securing the area sounds
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  helpful, but the deployment hadn't been requested by the
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  governor nor authorized by the president under any exception.
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  An investigation later found it did violate the Posse Comitatus
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  Act. So, good intentions, but legally
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  wrong. Apparently so.
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  Some military members faced administrative actions as a
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  result. It shows the procedures matter.
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  And more recently, anything during, say, the protests in
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  2020. Ah.
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  Yes, the George Floyd protests in Washington DC that became
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  quite controversial. National Guard troops were
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  brought in DC Guard and units from other states.
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  Was the Insurrection Act invoked then?
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  No. President Trump threatened to,
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  but ultimately didn't. Instead, Attorney General Barr
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  cited a different part of the law, 32 USC Section 5O2, related
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  to Guard units being used for support of operations while
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  still under federal funding, but arguably state control for the
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  mission type. A loophole maybe?
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  That's exactly what critics called it.
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  Some members of Congress argued it was a way to get around Posse
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  Comitatus restrictions without formally invoking the
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  Insurrection Act. They even introduced legislation
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  trying to close that perceived loophole.
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  It highlighted the ongoing debate about interpretation and
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  potential ambiguities in the law.
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  So these examples, from LA to Little Rock to DC, they really
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  show this isn't just abstract law.
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  It's about that fine line, how easily it can get blurred or
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  crossed, and the real consequences for communities,
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  for liberty, for safety. Absolutely.
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  It puts the legal framework into sharp relief.
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  So where does that leave us now? Is the ACT strong enough or are
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  there still concerns? Well, there are definitely
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  ongoing concerns. The Brennan Center for Justice,
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  for example, has argued pretty forcefully that the ACT is quote
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  riddled with exceptions, loopholes and ambiguities.
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  Making it weak in practice. Potentially, yes.
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  Their view is that the core principle keeping military out
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  of domestic policing is actually protected more by tradition, by
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  norms, by historical practice than by the strict letter of the
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  law itself. Which might not be enough
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  anymore. That's the worries some have,
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  especially concerning the Insurrection Act, which, as we
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  said, gives the president such broad power.
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  Has Congress tried to change that?
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  It's been debated. Interestingly, back in 2006,
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  Congress did briefly change the Insurrection Act.
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  They broaden the president's authority to deploy troops
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  domestically for things like natural disasters, epidemics,
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  terrorist attacks and maintaining public order.
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  Wow, that sounds like a big expansion.
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  It was, but it's controversial. And guess what?
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  Those changes were completely repealed just two years later,
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  in 2008. They reverted back to the older
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  language. So a push to expand power than a
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  quick pullback shows how sensitive this is.
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  Very sensitive. It reflects that deep seated
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  unease about military involvement.
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  The Brennan Center argues that Congress needs to proactively
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  strengthen the laws protections, clarify the ambiguities, maybe
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  narrow the exceptions rather than just rely on norms or wait
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  for a crisis where those norms might break down.
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  South, wrapping this up for you listening, We have this law, the
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  Posse Comitatus Act, with a really important goal, keeping
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  military and civilian law enforcement separate.
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  But in practice, it's complicated.
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  Very full of exceptions, historical baggage, and subject
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  to interpretation, especially under pressure.
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  It creates this constant tension between that ideal of separation
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  and the real world demands of security, disaster response and
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  maintaining order. It's a balancing act and
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  understanding the rules, the exceptions, the history, it's
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  crucial for thinking critically about how that balance is struck
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  and where the lines are drawn or redrawn.
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  OK, so here's something to chew on.
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  We know military training is incredibly effective for its
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  purpose combat. Given that, how might even
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  seemingly harmless support roles like providing Intel or
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  equipment subtly start to blur those lines?
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  Could that kind of assistance inadvertently change the nature
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  of civilian policing over time, making the separation we've
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  talked about even harder to maintain down the road?
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  That's a really interesting question to consider the
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  unintended consequences. Definitely something to think
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  about. Thank you for joining us, Lena
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  Marlowe and Graham Calder as we explored the Posse Comitatus.
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  Act Yeah. Thanks for tuning in.
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  It's vital stuff for anyone concerned about how our
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  government operates and protects liberties.
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  For more from Dave, go to plausiblylive.com.