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AG Holder, Drones & Posse Comitatus

Let me start by reassuring everyone that I’m not a lawyer (and quite happy about it).  Let me further reassure everyone that I have over 30 years of experience as a law enforcement professional.  I happen to have spent three of those years on contract to the U.S. Army as a consultant trying to find a way to share training resources between the Army and domestic law enforcement entities.  The effort was largely unsuccessful and that lack of success was mostly due to this thing called Posse Comitatus.

As worded in federal law 18 U.S.C. § 1385:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Posse Comitatus Act was passed on June 18, 1878, after the end of the Reconstruction and was updated in 1981.  Its intent was to limit the powers of Federal government in using federal military personnel to enforce the State laws.  As I have learned, Posse Comitatus does not prohibit (as I always believed and was told by one of the senior training agents at the FBI) military personnel from exercising law enforcement powers within a State; it merely requires that any such authority must exist within the U.S. Constitution or by an Act of Congress.

In doing research for this blog entry I found that there have been changes and exemptions to that law passed since it was initiated in 1878.  The original act, as shown, refers to the Army or Air Force (which itself is interesting since the Air Force didn’t exist as a stand-alone entity until the 1940s).  In 1981 it was modified to “the Armed Forces of the United States” and specified that it did not apply to National Guard forces acting under state authority within its home state or in an adjacent state if invited by that state’s governor.  To clarify one other entity, Posse Comitatus does not apply to the Coast Guard because the C.G. has both a maritime law enforcement mission and a federal regulatory agency mission.

For all that, it is generally believed that Posse Comitatus prohibits the federal government from using soldiers, marines, airmen or seamen, of active duty or reserve status, to enforce domestic laws.  Additionally, to the best I can find in my research, no such event has occurred since WWII and even then the actions were directly war related and in support of federal law enforcement agencies to support man-power needs.

How then, one must wonder, can the Attorney General of the United States, Eric Holder, issue a statement that says it’s legal and lawful and within the powers of the President of the United States, to order a drone attack against a citizen of the United States?  Such would not only violate Posse Comitatus (assuming it was a military drone) but also the Fifth Amendment due process protection delineated in the Constitution.

The President could obviously skirt around Posse Comitatus by using federal agents instead of military personnel or equipment.  It would be a matter of paperwork, even if done after the fact, for the Army or Air Force to “loan” a drone to the Department of Homeland Security, the Bureau of Alcohol, Tobacco, Firearms & Explosives, the Drug Enforcement Agency, etc.  But even if the drone is “the property” of a domestic federal law enforcement agency AND driven by law enforcement personnel, how does any reasonable adult feel that the President of the United States has the lawful authority to execute (assassinate) an American citizen without affording that citizen all of the rights of due process as recognized and guaranteed in our Constitution?

As I wrote this blog I sat and tried to imagine a scenario wherein I would feel it okay for such an order to be given and followed.

If the President could have given a drone-strike order to take out Timothy McVeigh prior to the Oklahoma City bombing in 1995, would it have been justified?  In hindsight many of us would be tempted to say, “Yes,” simply because it would save 168 lives and prevent over 800 injuries.  HINDSIGHT is a beautiful talent but unfortunately does not exist as FORESIGHT.  If then-President Clinton had ordered a drone strike on McVeigh, the attack SHOULD have been deemed unlawful and unConstitutional and the orders should have been refused. Would they have been?  How would anyone even know?

What if, pre nine-eleven, President Bush could have ordered a drone strike on a given house where a number of the terrorists were living as they waited for the date of the attack to arrive?  In ordering a drone strike on that residence the President could have avoided at least one hijacking and saved any number of lives.  Would such an order have been justified?  In this case we’re not even talking about American citizens; there’s a legal argument as to whether or not Posse Comitatus or the Constitution even applies to them.  I ask again, would it have been justified?  Hindsight says yes.

I have come to the conclusion that, short of the invasion of the United States by a foreign military, there can be no good reason for the President to order a drone strike on a domestic target.  Further, if the target holds ANY American citizen – even a convicted criminal – the Fifth Amendment protections granted by deity and delineated by our forefathers in the Constitution of the United States prohibits such an action.

No President should have the power to order an assassination without first observing every Constitutional protection an American citizen has. No government employee should have the authority to order an execution or assassination without first observing every Constitutional protection an American citizen has. No Attorney General should believe that it’s lawful and legal for a President to order the assassination of an American citizen, without due process, under ANY circumstances.

This is just my opinion.  Yours may be different. I’d enjoy reading them.