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Monday, July 22, 2002
Posse Comitatus.

I learned what little Latin I know in law school. That was a mistake. As I discovered in high school, you can learn alot about English by studying another language. So when I come across a phrase in Latin, I have to look it up.

According to the copy of Black's Law Dictionary that I kept from 1975, posse comitatus literally means "the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting felons, etc."

In the wake of the Civil War, Congress passed the Posse Comitatus Act. For those of you who are interested, the citation is 18 U.S.C.A. 1385. In its current incarnation, it reads as follows:

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.

In other words, use of the armed services to enforce the laws is itself a crime. That provision has been remain essentially unchanged since it was passed in the 1870s. Thanks to friend Osama, that may now change to some degree.

"The government should consider reversing more than a century of tradition and law to give the U.S. military a bigger law enforcement role in the event of a terrorist attack, Homeland Security Director Tom Ridge and some lawmakers said.

Fears that terrorists might attempt a nuclear, biological or chemical attack on U.S. territory are prompting some lawmakers to support revisions to the Posse Comitatus Act of 1878, which restricts using the
military as a civilian police force.

"I think it is time to revisit it,'' [said] Senator Joe Biden ...

Exactly how it might be changed is not described, although using the military's expertise in connection with a terrorist WMD attack (whether through a nuclear detonation, a "dirty bomb" or otherwise) might well make sense. However, it would also make sense to attempt to duplicate some or all of that expertise in civilian law enforcement agencies like the FBI.

It does not matter to me whether the guy who saves New York from a dirty bomb is wearing fatigues or a suit and tie. It matters that he (or she) saves New York. At the same time, however, I think that the Posse Comitatus Act has been working just fine, thank you very much. Since it does not matter to me whether New York is saved by military or civilian authority, I think I would prefer to attempt to provide civilian law enforcement agencies with military nuclear expertise before we try to fix the Posse Comitatus Act.

Is there time to do so? How difficult will it be? How likely is it to be successful? Would those civilians do better than they have with respect to the anthrax attacks? All good questions. All unanswered as of now.
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