A Standing Army Our Forefathers Sought To Avoid

It’s very interesting to hear, on this, our Independence Day, a story about an issue the authors of the Constitution when to some great lengths to avoid.

There were strong limitations against a standing Army build into the Constitution. While Congress is empowered to raise armies, they are limited in the manner in which they may fund them.  Indeed, until the end of World War II, after every war, our Army would generally shrink to little more than a token force.

While there was concern among the Founders that a standing army might lead to foreign adventurism, the great fear was that such a standing army would instead become of tool of internal repression of the population. Hence the constitutional provision for the militia explicitly to serve to put down rebellion and civil disorder.

Popular disgust with the use of the Army to bypass civil courts and law enforcement functions in the post-Civil War era lead to the passage of the Posse Comitatus Act, a law prohibiting federal armed forces from acting as law enforcement.  Respect for a sharp divide between an external security role, and a domestic law enforcement role is so deeply ingrained in today’s officer corps that even the hint of challenging that status quo leads to sharp condemnation from the corps. Just ask URR or any of the other officers that post or comment here.

And so, despite having a large standing army, for almost 150 years, American citizens have had very little to fear from it.

But there is in fact, a standing army that our Founding Fathers never anticipated, as such a force simply never existed at the time our Constitution was ratified.

There simply were no municipal police forces. And yet today, virtually every municipality in America has an armed police force. Indeed, a vast array of entities have police forces. Several large transit authorities have their own forces. Even large school districts have their own police.

Particularly since the “War on Drugs” began, we’ve also seen a sharp trend of police forces shifting from peace officers to a paramilitary force.

We will grant that the majority of police officers are decent, honorable citizens that see themselves as standing between polite civil citizens, and the criminal element of society. We recognize that they have a difficult, dangerous job.

But we’ve consistently seen that given authority over citizens, virtually every department will sooner or later abuse that authority.

Recently Hawthorne, CA police officers arrested a man for “obstruction” when any outside observer would draw the conclusion the arrest was more for filming those officers in the performance of their duties, and not being a fan of the police. Worse, this confrontation led to the citizen’s dog being shot, a shooting that took place very close to a large number of civilians, who might easily have been injured by a stray round.

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Worse still comes this story from Henderson, NV.

Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.
Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson, its Police Chief Jutta Chambers, Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley, and City of North Las Vegas and its Police Chief Joseph Chronister, in Federal Court.
Henderson, pop. 257,000, is a suburb of Las Vegas.
The Mitchell family’s claim includes Third Amendment violations, a rare claim in the United States. The Third Amendment prohibits quartering soldiers in citizens’ homes in times of peace without the consent of the owner.

You may say that the Third Amendment has not been incorporated against the states. Perhaps not (I really don’t know the case law here).

I would say that if it hasn’t been incorporated, this might be a fine case to do so. Second, this is, if not exactly what the Founders hoped to prevent, it’s certainly in line with it.  Finally, the Henderson PD almost certainly receives some federal funding of some sort, which would attach federal oversight.

Read the whole article. This egregious abuse of citizens calls not only for civil punishment in the form of a monetary award to the victim, but also forfeiture of limited sovereign immunity of both the Police Department and the individual officers involved. Termination, and criminal prosecution of officers who so blatantly abuse the very citizens they have sworn to serve and protect is most definitely called for.

Today, on this day we celebrate our independence, it behooves us all to remember that allowing rights to erode is an insult to those who came before us, and struggled mightily to secure those rights, and the blessings of liberty for us, their posterity. What shall our descendants say of us?

H/T: to the sidebar at Ace’s.

My Take On The White House Memo

The fact of the matter is, there are people bearing arms against the nation,  and its people. And among those wishing us ill are several who hold American citizenship. This is hardly new. It has happened before, and it will happen in the future. Members of the German and Italian (and probably, the Japanese) Armies fought against the US. The big example is the Confederate States, whose legitimacy the United States never acknowledged.

The current topic is, of course, radical Islamists who have joined, supported or otherwise aligned themselves with Al Qaeda or the Taliban or a handful of other terrorist organizations.  We are at war with Al Qaeda. If Al Qaeda was a nation state, and its forces wore uniforms and otherwise fought in accordance to the rule of law, not an eye would be blinked at the efforts to kill their leadership, even those who held American citizenship.

The problem arises in that Al Qaeda isn’t, of course, a nation state. And membership is a little more amorphous than we might like. They don’t issue Geneva Convention cards to their fighters (which, for you civilians out there, our military ID cards are in fact also Geneva Convention cards).

URR will disagree with me, and argue that these persons are being denied Constitutional protections. Let me steal a comment from Rob Crawford at Tom Maguire’s excellent Just One Minute blog:

The president has the authority to prosecute wars, and like it or lump it, Congress did the modern equivalent of declaring war against al’Qaeda.

The requirements, as I understand them, are:

1) Threat must be imminent,
2) Capture must not be feasible,
3) The strike is otherwise in accordance with the laws of war.

A US citizen who leaves the country and starts working with al’Qaeada is no different than a US citizen who left the US and took up arms with Hitler’s Germany. They existed, and no one was declared a war criminal when they died during allied air strikes, shelling, rifle fire, or bayonet charges.

And what’s the alternative? That any military operation where there MAY be a US citizen on the receiving end must pass judicial review? How would that work?

Let’s take the three bullet points. The first, that the threat must be imminent. I’m not sure that’s the best description. Rather, I’d say that the target’s participation should be ongoing, rather than some past act with no future role.

Second, Capture must not be feasible. I’m sure if we moved heaven and earth, some targets would be captured. But possible and feasible are two different things.

Third, the strike has to be what would otherwise be within the bounds of the law of war.  For instance, you can’t use a nuke to kill just one guy. That violates the law of war.

URR will argue that the memo is evidence of the denial of due process for persons accused of treason. But in fact, they aren’t accused of treason. The are currently actively engaged as unlawful combatants against the US. The courts have shown no interest in interfering with the actions of the armed forces against unlawful combatants until such time as those persons come into the custody of the US. Their silence can only be taken as consent. And such is right and proper, by the way, as under Article I of the Constitution, Congress is responsible for the regulation of the armed forces, and of course, the President has Article II powers enumerated. Nowhere does the Constitution state a role for the courts in the prosecution of war.

For any that might be captured or otherwise taken into custody, there’s no real evidence they would even be charged with treason. They might be charged with any number of other terrorism related charges.

As to treason in the Constitution, let’s look at a little history. Much of our criminal law comes lock, stock and barrel from English common law. But under that common law, treason was arguably just about anything that annoyed the Crown. It was to avoid that ambiguity that treason, and treason alone, was so specifically mentioned in the Constitution. Of course, so much criminal law was also held to be a matter for the states, and not the federal government, but that’s a rant of a different color.

URR argues:

And just where is this jurisdiction for the authorization of the use of force?  Why, it is anywhere at all where the Government perceives an enemy to be.   As the Memo informs us, there are no geographic limits.   Which implies no battlefield, or perhaps, that everywhere is a battlefield.

First, elsewhere the memo clearly states that the decisions under consideration are for operations outside the United States. The vagueness of the wording he showed:

Memo 3

is deliberate, no doubt. But as we’ve seen, the enemy doesn’t feel any particular need to constrain it’s efforts to any one nation or theater of war. This vagueness preserves freedom of action against the enemy, but is still constrained by the guidance that capture must not be feasible.

After years and years of conservatives decrying treating terrorism as a law enforcement problem (and still decrying the President’s attempts to do so) I find it odd that URR turns around and complains that the President, with the authority of the Authorization of the Use of Force of September 14, 2001, is doing what conservatives have long sought- to treat terrorism as a war.

I fully share URR’s distrust of this administration in particular, and an over powerful government in general. But the fact is, the US has the right, and indeed, a moral obligation to wage war against terrorist enemies. And in waging war, we are under no obligation to attempt to capture the enemy (we are, however required to accept a surrender).  Yes, there is real room for abuse of the process by which persons are designated as enemy combatants. But common sense goes a long way to answering the question of just who those persons are.  And that is the root question. If URR is comfortable with Alwaki and Kahn being killed by troops on the ground, he should be just as comfortable with them being killed by any other method. And should their contemporaries be captured, I too am all for them at the gibbet. After due process.

The Perils of a Standing Army

When the Founding Fathers wrote the Constitution, they did so with the memory of the oppression of the British Army fresh in their minds. It may have been the policies of King George III that inflamed their passions, but it was the troops of the Crown that made those policies reality. With the knowledge that a standing army was the primary tool of repression of any government, they took steps to prevent such an occurrence here.

The Constitution names the President the Commander in Chief of the Army and Navy.  But the power to raise armies and maintain navies* is granted to the Congress. Coupled with the power of the purse in the House of Representatives, this was a check on any standing army with visions of control of the people. To further make this point, Congress was constrained in that no appropriations of funds could be for more than two years for any army. From the ratification of the Constitution through the end of World War II, these restrictions helped ensure that our Army was quite small, forming mostly a core of competent professionals around which a citizen army of the militia could be built. And even since the end of World War II, our Army, while quite expensive, is still, as a percentage of the population, quite small.

The 2nd Amendment, of course, was also a check on standing armies that might seek to usurp the liberties of free men. Likewise, the 3rd Amendment served as as further check. The passage of the Posse Comitatus Act of 1878 was again a check upon the use of the Army as a tool of repression.

But while our forefathers went to great lengths to protect us from the tyranny of a domestic army as a tool of repression, have we allowed our municipal armies to become the de facto standing armies they guarded against?

When the Constitution was ratified, there was simply no such thing as a municipal police force. Law enforcement, a power of the separate states, was the role of the county sheriff (an elected official) and if needed, the local militia.  It wasn’t until well into the 1800s that the idea of a city police force was even raised.  Not until 1828 would Philadelphia establish our first police department.  While police departments for large cities were rapidly established, rural areas still, for another century, depended solely on the sheriff and his deputies. The establishment of a municipal department in virtually every city, town, hamlet and burg is a fairly recent development. And note, every county still has its sheriff’s department. While some counties in some states may restrict the sheriff primarily to running the county jail, most have their own patrol forces.

While there is no obvious constitutional restriction on states, counties and municipalities forming police departments, there sure are a lot of them.

Wikianswers tells us:

There are as of 2006, 683,396 full time state, city, university and college, metropolitan and non-metropolitan county, and other law enforcement officers in the United States. There are approx. 120,000 full time law enforcement personnel working for the federal government adding up to a total number of 800,000 law enforcement personnel in the U.S.

That’s bigger than the US Army, by a fair amount. And every single policeman is there solely for domestic use.  Theoretically, our 4th, 5th, and 6th Amendment rights protect us from the depredations of any police force. But anyone who has had even the most cursory interaction with law enforcement will know that the deck is stacked in favor of the power of the state (that is, the police) and not the accused.

It’s not so much that people in power, such as police chiefs, sit around plotting ways to usurp power from the people. Like the road to Hell, the path to tyranny is paved with good intentions. Frustrated by incidents of crime, police departments come up with “common sense” solutions such as this:

“[Police are] going to be in SWAT gear and have AR-15s around their neck,” [Police Chief Todd] Stovall said. “If you’re out walking, we’re going to stop you, ask why you’re out walking, check for your ID.”

Stovall said while some people may be offended by the actions of his department, they should not be.

“We’re going to do it to everybody,” he said. “Criminals don’t like being talked to.”

[Paragold Arkansas Mayor Mike] Gaskill backed Stovall’s proposed actions during Thursday’s town hall.

“They may not be doing anything but walking their dog,” he said. “But they’re going to have to prove it.”

[ … ]

The bolding is mine.

The citizens of America are a free people. Absent probable cause, no officer of any kind has any right to demand anyone identify themselves, nor justify what it is they are doing. The whole point of America is the ability to go about ones business.

Mayor Gaskill and Chief Stovall may well be frustrated by crime in Paragold, AR. But that doesn’t mean the Constitution suddenly can be waived.

If crime is truly an issue in Paragold, perhaps they should follow in the footsteps of a city with a very low crime rate. Say…. Kennesaw, Georgia.

Update: There appears to be some citizens that aren’t thrilled with the department’s plans. But while I was reading the article, this bit popped out to me:

Stovall explained Dec. 14 that while he had not consulted an attorney regarding the patrols, the department was within its right to implement the controversial stop-and-ID policy based on crime statistics and citizen complaints about rising crime in their neighborhoods.

First, rights aren’t based on statistics nor complaints. Those rights cannot be waived by one group of citizens for any other. They are inalienable. Secondly, the police force HAS NO RIGHTS. It has the authority granted to it by the citizens. That authority is conditional on the continued consent of the citizenry.  But again, no group of citizens may grant the authority of any agent of government to usurp the rights of other citizens.

*Naval forces were seen as less likely to be agents of domestic repression, hence the ability to maintain a navy.