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nsa and posse comitatus

The Posse Comitatus Act was passed in order to prevent Federal troops from enforcing state and Federal law. In other words, you can’t use Federal troops as local law enforcement. The law had dishonorable origins – it was designed to prevent the Federal government from using its troops to protect Southern Blacks. But it did establish the idea that unless there is an emergency, or an exception made by Congress or the Constitution, the standing army will not be used to enforce domestic laws. Soldiers and police are different.

Now let’s fast forward to 2013. The National Security Agency is part of the Department of Defense. It is headed by a member of the armed forces. And it grew out of the Armed Forces Security Agency. It is part of the standing army. Would that mean that it’s collection of phone calls, email, and other communication in mass from domestic sources is a violation of posse comitatus? Here’s the statute text:

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 wiki legislative summary notes that the revised Posse Comitatus act makes exceptions when domestic persons are al Qaeda or Taliban related. But still, that only covers a minute portion of the American population. If I read the act correctly, the NSA, as part of the Department of Defense and managed by active senior military staff, is in violation of posse comitatus when it conducts surveillance of individuals who have no plausible connection to al Qaeda or similar organizations – which is most of us.

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Written by fabiorojas

July 17, 2013 at 12:03 am

Posted in current events, fabio

3 Responses

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  1. Interesting. Do you know how President Eisenhower got around this to use the 101st airborne to enforce the integration of Little Rock High School in the 50s?

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    JD

    July 17, 2013 at 12:59 am

  2. +1. But don’t you think the Act originates in much older recommendations against standing domestic armies and such? Almost every domestic and international police and intelligence force in the US is a very recent (and destructive) 20th century phenomenon. I see no reason to believe the NSA, ATF, FBI, CIA, DHS, and the rest are necessary or efficacious. They do however continue to grow, almost always.

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    grahamalam

    July 18, 2013 at 12:53 pm

  3. @JD

    It’s OK If You’re A Republican (President)

    being a war hero helps too, one suspects…

    Like

    metatone

    July 18, 2013 at 9:35 pm


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