On Posse Comitatus Law

(Letter)

January 14, 2012

Editor, Workers Vanguard:

In discussing the erasure of democratic rights under the rubric of the “war on terror”, the lead article in WV 993, “Obama Ramps Up ‘War on Terror’ at Home”, states: “This is not to mention the direct violation [by the NDAA—National Defense Authorization Act] of the Posse Comitatus Act of 1878, which prohibits military forces from engaging in domestic law enforcement.” Two problems with this: 1. It’s technically incorrect. The Posse Comitatus Act (PCA) prohibits use of military forces domestically except when approved by Congress or explicitly allowed in the U.S. constitution. Since the NDAA was passed by Congress, its implementation would not be in violation of the PCA. 2. As for the NDAA violating the spirit of the PCA, the PCA was a post-Reconstruction law of racist and reactionary intent, designed to prevent local Reconstruction governments from appealing to the Federal government for protection against the terror that overthrew the democratic gains of the Reconstruction period. It is not exactly something one should refer to as an historical standard of bourgeois-democratic rights, such as habeas corpus, which WV properly cited in the previous sentence. So why is this being cited in WV?

Comradely,
J.H.

WV replies:

It may indeed have been more precise for the article to state that President Obama’s signing of the NDAA further eroded—rather than “directly violated”—the Posse Comitatus Act. J.H.’s second objection, though, is historically inaccurate as there were no Reconstruction governments left to defend, which is not to deny that the Act served a reactionary purpose. J.H. misses the main point. Eliminating the formal restrictions on the military engaging in domestic law enforcement could only have dangerous consequences for the workers and oppressed. We want to defend such restrictions against any attempt to limit or repeal them.

The U.S. bourgeoisie has long upheld the formal separation of the military from domestic repressive duties as a benefit of bourgeois democracy as distinct from a military police-state dictatorship. The Posse Comitatus Act stands as a centerpiece of this distinction. We have no illusions that this or any other law will restrain the bourgeoisie from unleashing the military when it perceives a sufficient threat to its class rule. Over the years, the government has come up with many ways of restricting the Posse Comitatus Act or getting around it by militarizing police forces, providing them with armed personnel carriers, drones, etc. There have been quite a few amendments to the Act, including authorizing the president to call out the armed forces to restore order in cases of civil disturbance, to assist in the “war on drugs” and to aid enforcement of the racist immigration laws. We trust that J.H. agrees that these are not positive developments.

Posse Comitatus, meaning the “force of the county,” dates back to English common law. Carried over to North America, it authorized local sheriffs to compel members of the community to assist in making arrests and maintaining order. Federal posse comitatus originated with the Fugitive Slave Act of 1850, which “commanded” all citizens to “aid and assist” U.S. marshals in the capture of escaped slaves. By the time the slavocracy was defeated in the Civil War, the state power was no longer in the business of catching slaves. For a brief and unique period in American history—Reconstruction—its job in the South was enforcing the newly won rights of black people. Since few white southerners could be pressed into defending these rights, this left federal troops to be the “posse.”

By 1877, the last of the Reconstruction governments had already been replaced by the white Southern “Redeemers,” in some cases following bloody massacres of recently freed blacks during which the second Grant administration refused to dispatch additional troops. By the time the remaining federal troops were withdrawn from the South in 1877, the Northern bourgeoisie had already aligned with the remnants of the slavocracy to force the freed slaves back onto the former plantations as brutally exploited tenants or sharecroppers. As KKK nightriders were terrorizing the South, the Posse Comitatus Act was enacted the following year to prevent the use of the military to protect black people and enforce their civil rights. The law codified what was already a ruling-class consensus. The Civil War and Reconstruction were the last progressive acts of the U.S. bourgeoisie, which would rapidly develop into an imperialist capitalist class, marking its emergence as such with the 1898 Spanish-American War.

The military could no longer play any progressive role. Continuing a military campaign against American Indians that followed the tail end of the Civil War, some of the troops withdrawn from the South following Reconstruction were dispatched to drive the Nez Percé from their home in Oregon. Others were sent to break the 1877 strike by thousands of rail workers—the first nationwide strike in this country. Federal troops have been repeatedly sent to put down strikes: from the 1894 Pullman strike by the newly formed American Railway Union to the 1899 miners strike in Coeur d’Alene, Idaho, to the seizure of railroads and coal mines ordered by Democratic president Truman in 1946 to break a strike by 400,000 coal miners. Just recently, the Coast Guard was deployed, along with other forces of the state, to escort a ship up the Columbia River to the Port of Longview, Washington, to prevent any interference from ILWU longshoremen in their battle against the EGT bosses (see article in this issue). In this, the military was true to its purpose as a core component of the capitalist state, which is to defend the class rule, interests and profits of the bourgeoisie, internationally and domestically.

When struggles for black rights emerged following World War II, they were met with brutal KKK and state terror. The liberal leaders of the civil rights movement, epitomized by Martin Luther King Jr. and tailed by reformist socialist organizations, called for federal troops to the South, sowing the deadly illusion that the imperialist army that was smashing workers and peasants in Vietnam would somehow defend fighters for black freedom at home. We are opposed to such calls on the armed forces of the capitalist state. In 1957, Eisenhower’s troops were sent to put down an upheaval of the Little Rock, Arkansas, black population, which was fighting to defend black students against racist mobs. The troops thus prevented the total rout of the retreating racists. From the 1943 racist riots in Detroit to Birmingham, Alabama, in 1963, federal troops were sent in only after blacks armed and mobilized to defend themselves. In 1967, the 82nd Airborne was brought in to suppress the Detroit ghetto explosion.

As Marxists, we assess laws such as the Posse Comitatus Act not by the motivations of their authors but by how they concretely impact class and social struggles. From the same vantage point, we judge what legal protections exist from how they serve the interests of the working class and the oppressed. Thus, while we recognize habeas corpus as an important democratic right in most periods, we support Lincoln’s suspension of habeas corpus during the Civil War as a necessary measure to put down forces acting in support of the secessionist South in a war over slavery. Similarly, many of the democratic protections embodied in the Bill of Rights emerged from the experience of winning independence from the British monarchy, subsequent social struggle and hostility to a centralized state power in a society divided between slave and free labor social systems.

These protections, including the right to bear arms and later formal restrictions on military police powers, are important gains for the working class, which must defend the rights won through struggle against the rulers’ inevitable attempts to restrict or reverse them.