What’s Wrong With This Picture?

U.S. Army soldiers from Fort Rucker patrolling downtown Samson, Alabama, after the shooting spree on Tuesday. (Mark Wallheiser/Reuters)

U.S. Army soldiers from Fort Rucker patrolling downtown Samson, Alabama, after the shooting spree on Tuesday. (Mark Wallheiser/Reuters)

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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.”

Armed Liberal thinks it’s odd, too.

UPDATE 200903121018:   Curiouser and curiouser.  This was on the NORAD and U.S. Northern command blog 14 hours ago, but is now only google cached:

To all of those who may have seen reporting on Reuters and www.infowars.com that CCMRF was used to support during AL shooting. This is not true. Support was provided via a mutual aid agreement between Ft Rucker, Ala,, and the affected cities. This mutual aid was approved by the Ft Rucker CDR and the appropriate Fort Rucker attorneys. USNORTHCOM was not involved in the decision-making process nor was the command a part of the deployment of active duty troops. This is a tragedy for all those involved and our hearts go out to all those affected. Please keep those affected in your thoughts and prayers.

UPDATE 200903181911: Someone’s Career Endangerment light is blinking…

Glenn Beck — Send In the Troops

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9 Comments

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9 responses to “What’s Wrong With This Picture?

  1. Do you think we’ll ever find out whose bright idea this was? Very creepy. I would think a FOIA request could get to the bottom of this, although it might take some pliers to get the info.

  2. c4toyourdoornobeefnomore

    Surely the State Troopers had the manpower and firepower to handle a situation like this. A lone shooter, already dead who largely pre-selected his victims and the Army is deployed?

    Very creepy indeed.

  3. Now it’s surreal. The cached Northcom announcement says that it was a local decision made by the Rucker CDR and Rucker attorneys “via a mutual aid agreement between Ft Rucker, Ala,, and the affected cities”.

    What precisely is a ‘mutual aid agreement’ and what’s the legal basis for it? Was this part of the DoD Defense Unified Command Plan that Bush pushed through in 2002 (and which created NorthCom)?

    Very curious.

  4. C-4 has me creeped out enough to do some free legal research on the matter. So here it is. Bear with me, it’s a bit long and I’m leaving some links to docs I prepared for download for anyone who wants to see them.

    Bottom line: posse comitatus is dead. Traditionally, posse comitatus could only be waived if the president invoked the Insurrection Act, 10 USC secs. 331-335, originally enacted in 1807.

    The Defense Authorization Act of 2006 and the John Warner National Defense Authorization Act for Fiscal Year 2007 rewrote the Insurrection Act (including renaming it the “Enforcement of the Laws to Restore Public Order Act”). Section 333 greatly expands the nature of the civil disruption that would trigger the revised act. The president can now employ the armed forces for ‘incidents’ and ‘conditions’ that dirupt normal government.

    (a) Use of Armed Forces in Major Public Emergencies.—

    (1) The President may employ the armed forces, including the National Guard in Federal service, to—

    (A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that—

    (i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

    (ii) such violence results in a condition described in paragraph (2); or

    (B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition
    described in paragraph (2).

    (2) A condition described in this paragraph is a condition that—

    (A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

    (B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

    But note that there’s still the requirement for actual exercise of presidential power. I pasted together the complete statute:

    http://www.behindbluelines.com/wp-content/uploads/10usc331.pdf

    Now, here’s where it gets interesting. The regulations written to flesh out the statute delegate the presidential power to the military and its chain of command and provide that local military commanders shall coordinate with local civil authorities to “assure mutual understanding of the policies and procedures to be adhered to in an
    actual or anticipated civil disturbance situation.” Note the word, ‘anticipated’. 32 CFR Secs 215.5. Also, that local commanders can act on their own without higher authority should the circumstances warrant. The complete regulation (“EMPLOYMENT OF MILITARY RESOURCES IN THE EVENT OF CIVIL DISTURBANCES”)is here:

    http://www.behindbluelines.com/wp-content/uploads/32cfr215.pdf

    Also, there’s a separate regulation for use of the armed forces to assist the civil authority (and this regulation includes possible invocation of martial law). Regulation is here:

    http://www.behindbluelines.com/wp-content/uploads/32cfr501.pdf

    Bottom line, the troops from Rucker were placed on the streets probably in connection with a ‘policy’ in place with the civil authorities tracing to 10 USC sec. 333, which waives posse comitatus. But there are some unanswered questions:

    1. Did the local civilian authority ask for the help or did the commander at Rucker and his extremely stupid lawyers make the call?

    2. How in the hell could one guy with a gun possibly justify invocation of 10 USC sec. 333 and the regulations so as to waive posse comitatus?

    3. Can we see in this ‘incident’ the possibilities for abuse of 10 USC sec. 333?

    The changes made to the Insurrection Act are an outrage, in my opinion. James Bovard wrote an excellent piece in 2007 on the whole matter in the American Conservative. Link:

    http://www.amconmag.com/article/2007/apr/23/00026/

    I’m still creeped out.

  5. OK, a bit more research. The changes to the Insurrection Act were repealed in their entirety by Section 1068 in the Defense Authorization Act of 2008, and the statute reverted to the Insurrection Act’s old language. So, no more squishy statutory language about ‘incidents’ and ‘conditions’.

    32 CFR Sec. 501 was apparently repealed as well. However, 32 CFR Sec. 215 (addressing ‘policies’ and the like) is still in the regulations. But these regulations seem to go way beyond anything comtemplated in the Insurrection Act. So, go figure.

    I’m breathing easier that the Insurrection Act got fixed. However, the existing regs seem odd and overreaching, to say the least.

    The same questions stand about the use of the Rucker troops. Whose idea was it and how did one gunman justify it?

  6. c4toyourdoornobeefnomore

    Thanks for the links Crocker.

    In your research did you happen to find the mechanisms that caused this to be changed in the first place, and then changed back?

  7. Wile is saying that it was his idea. But the original report says that he was advised by the Rucker legal staff that his ‘offer of assistance’ was OK under local agreements.

    So let’s get back to the legal basis for this. Posse Comitatus and the Insurrection Act were ‘fixed’ (that is, the IA was restored to its original language). But the regulations (32 CFR Sec. 215) still stand (see the link above). All regs in the CFR derive from statutory authority and sec. 215 claims to derive from the Insurrection Act. Sec. 215.5 provides for policymaking coordination with local authorities and for exceptions to the explicit presidential proclamations required under the IA. These ‘exceptions’ arguably violate the IA and are very murky. If I were the lawyer advising Wile, I would have advised against his ‘offer’. There’s nothing in IA or even 32 CFR sec. 215 that provides for ‘offers’. Wile’s comment about his people not providing ‘law enforcement assistance’ is laughable.

    I think sec. 215 has to be clarified and local commanders should be educated on the facts of life under posse comitatus and the IA.

    Local matter or not, this bothers me – a lot.

  8. Sounds like the transcript of a confession.

    It is possible that 18 USC, § 1385 was violated that night in Samson, Alabama. It would take an investigation to determine that. Probably not much enthusiasm for any such investigation in South Alabama. Most people won’t see what the big deal is, their eyes will glaze over before you get halfway done explaining why it is a big deal, and as they walk away LTC Wile = HERO, you = NUT.