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The Posse Comitatus Act, the Insurrection Act, the Insurrection Act Rider, and the Lackawanna Six

by Professor Will Huhn on July 28, 2009

in Constitutional Law,Wilson Huhn

     Lou Michel of the Buffalo News reports today that in 2002 former Vice-President Richard Cheney and Secretary of Defense Donald Rumsfeld proposed to President George W. Bush that the United States Army should carry out the arrests of six  suspected terrorists in Lackawanna, New York, and that they should be held by the military as "enemy combatants."

     Michel states that in the Lackawanna case the President rejected the advice of the Vice-President and the Secretary of Defense.  Instead the F.B.I carried out the arrests, the men were prosecuted by the Justice Department in federal court where they pled guilty and were sentenced to federal prison.  One is still being held in a highly secure federal prison in Terre Haute, Indiana.  Here is another article about the Lackawanna Six by Dina Temple-Raston of the Washington Post published in September, 2007.

     The larger question is, would it have been a violation of the law and the Constitution if the President had followed Vice-President Cheney's and Secretary Rumsfeld's advice and used the army to arrest the Lackawanna Six?  It certainly would have been a violation of the Posse Comitatus Act, 18 U.S.C. 1385, which provides:

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.

     This law was adopted following Reconstruction in 1878 in order to prevent future Presidents from using the military to execute the laws.  However, another law, the Insurrection Act, gives the President the authority to use the armed forces to intervene when the state governments "fail, refuse, or neglect to protect" the legal rights of its people.  The Insurrection Act, at 10 U.S.C. 333, provides:

Section 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it – (1) so hinders the execution of the laws of that State, and of the United States within the State, 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 are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.  In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

     Presidents have used their power under the Insurrection Act sparingly.  For example, in 1957 President Eisenhower ordered federal troops to restore order in Little Rock, Arkansas, when Governor Faubus had called out the National Guard to prevent black children from entering Central High School, and local mobs had threatened the safety of the children.  In my opinion the Insurrection Act is not broad enough to cover the situation of the Lackawanna Six, and President Bush would have violated the Posse Comitatus Act if he had ordered the army to arrest those individuals.

     In 2006 Congress adopted the Insurrection Act Rider that greatly expanded the President's power to used U.S. Armed Forces within the borders of the United States.  The Rider authorized the President to use troops in the event of any national emergency (including natural disasters or terrorist attacks) if the President determined that state authorities were "incapable of maintaining public order."  The Rider repealed the existing provisions of 10 U.S.C. 333 and substituted the following language:

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

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

(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 thatâ

(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 thatâ

(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.

(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

(b) Notice to Congress.â The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.

.  Senator Patrick Leahy led the fight against this expansion of presidential power – here is his argument against the Insurrection Act Rider.  The Rider was repealed in 2008 and the original language of the Insurrection Act was restored.

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