# Are we living on a battlefield? (Posse Comitatus Act) **URL:** \ **Category:** Great Debates\ **Created:** [August 15, 2002, 12:01am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922 "2002-08-15T00:01:07Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![shagadelicmysteryman](https://avatars.discourse-cdn.com/v4/letter/s/7ea924/32.png) [@shagadelicmysteryman](https://boards.straightdope.com/u/shagadelicmysteryman)\ **Post date:** [August 15, 2002, 12:01am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/1 "2002-08-15T00:01:07Z")
I just finished watching CrossFire, and they debated the detainment of of the “Enemy Combatants” in a Norfolk, Va. Naval Brig. Now, I can understand the detainment of Yaser Esam Hamdi, who was, if I’m not mistaken, taken as an “enemy combatant” on the field of battle. I do not, however, see how the U.S. Government can detain Jose Padilla as an “enemy combatant” when he was captured in the U.S. I see a few flaws in these actions. 1)War has not been declared. Of course Dubya has repeatedly called this a “War On Terror”, but, again, if I’m not mistaken, for it to “officially” be a war, Congress must declare it, correct? 2)Congress hasn’t declared a state of Martial Law, either. Therefore, legally, Constitutional Rights can’t be suspended AND military troops can’t be used as a police force. (Again, I could be horribly wrong, but that is to the best of my understanding.) 3)Congress has not overridden the Posse Comitatus Act of 1878, which says,“Chapter 263 SEC. 15. U.S. Code- From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.” Therefore, isn’t the detainment of Jose Padilla, illegal? He was not captured on the field of battle. He was ARRESTED in O’Hara International Airport. Is there not a difference between being CAPTURED on the field of battle in Afghanistan and being ARRESTED in Chicago? Doesn’t he have the right to counsel? Perhaps I’ve missed something, and if so, please, PLEASE, bring it to my attention. But, if Congress had overturned the Posse Comitatus Act I think I would have heard about it…😃 Then again, perhaps the Constitution provides for this sort of treatment, and I’ve overlooked it. Maybe, just maybe, we live in the battlefield? (BTW, I’m just starting my freshman year in college, so if I’m horribly wrong about this, please be kind and show me the way to truth…Yikes, that sounds too churchy…:eek: ) ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [August 15, 2002, 3:41am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/2 "2002-08-15T03:41:28Z")
> [@](#): > > \*Originally posted by shagadelicmysteryman \* > 1)War has not been declared. Of course Dubya has repeatedly called this a “War On Terror”, but, again, if I’m not mistaken, for it to “officially” be a war, Congress must declare it, correct? No. As has been discussed here at length, the formal declaration of war does not have to take place to be “at war.” > [@](#): > > 2)Congress hasn’t declared a state of Martial Law, either. Therefore, legally, Constitutional Rights can’t be suspended AND military troops can’t be used as a police force. (Again, I could be horribly wrong, but that is to the best of my understanding.) Martial Law is not declared by civilians, including Congress. Martial Law may only be declared by a military commander when civilian authority has broken down and no longer exists. > [@](#): > > 3)Congress has not overridden the Posse Comitatus Act of 1878, which says,“Chapter 263 SEC. 15. U.S. Code- From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.” > > Therefore, isn’t the detainment of Jose Padilla, illegal? He was not captured on the field of battle. He was ARRESTED in O’Hara International Airport. Is there not a difference between being CAPTURED on the field of battle in Afghanistan and being ARRESTED in Chicago? Doesn’t he have the right to counsel? Padilla is an American citizen, arrested on American soil and being detained without arraignment and due process by the US Military. Yes, from a simple standpoint, this is a gross violation of the Constitution and his rights guaranteed by the Constitution. What is even more galling is the American People at large raise not a storm of protest about this! ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [August 15, 2002, 4:25am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/3 "2002-08-15T04:25:14Z")
The man born Jose Padilla gave up that name and chose to call himself Abdullah al-Muhajir. Normally, we would use the name person. The use of Jose Padilla is a matter of spin. It wouldn’t sound as unreasonable to re-state the story as: _The US is detaining Abdullah al-Muhajir, who was sent to this country by al Qaeda with the intention of detonating a bomb laced with radioactive material._ IANAL but ISTM the phrase “enemy combatant” fits him fairly well. I’d rather he be locked up then free to fulfill his dream of building a dirty bomb and setting it off somewhere. Of course, he has the right to apply for habeus corpus. If he does, we’ll see whether a judge decides to set him free. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [August 15, 2002, 4:33am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/4 "2002-08-15T04:33:42Z")
Duckster: “Under attack” and “engaged in a conflict” do not equal “at war.” Yes, it’s been discussed at length here and the upshot is: Congress must declare war for this country to be at war. It’s a legal term. More specifically, it’s a constitutional term. ---
**Author:** ![Fang](https://avatars.discourse-cdn.com/v4/letter/f/96bed5/32.png) [@Fang](https://boards.straightdope.com/u/Fang)\ **Post date:** [August 15, 2002, 5:09am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/5 "2002-08-15T05:09:39Z")
> [@](#): > > \*Originally posted by december \* > **The US is detaining Abdullah al-Muhajir, who was sent to this country by al Qaeda with the intention of detonating a bomb laced with radioactive material.** **December** , that statement is utterly lacking in logic and you know it. It doesn’t matter if his name is Osama bin Laden - he’s an American citizen, arrested on American soil, being detained without charge, bail, or trial. Amendment 5 makes clear that American citizens who are detained have the right to due process. There are laws defining what that due process is, and the Justice Department is in clear violation of those laws. It might be different (IANAL, so I say “might” because I don’t know the legal precedent here) if he were captured in battle. That would seem to me to be some kind of clear evidence that he is an enemy combatant, which is why Yasser Hamdi’s status is a little less clear. But as far as Padilla/al-Mujahir is concerned, he has to be charged with a specific crime and arraigned, or let go. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [August 15, 2002, 6:27pm UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/6 "2002-08-15T18:27:20Z")
\<\\> **Fang** , it doesn’t matter legally, but it evidently matters to Time Magazine. They used his original name, rather than the name he chose to change it to. This was spin on their part. Your legal interpretation is reasonable. HOwever, given the unusual circumstances, it is possible that a Court may decide that the Executive Branch has special emergency powers. We shall see. ---
**Author:** ![Truth\_Seeker](https://avatars.discourse-cdn.com/v4/letter/t/5fc32e/32.png) [@Truth\_Seeker](https://boards.straightdope.com/u/Truth_Seeker)\ **Post date:** [August 15, 2002, 8:18pm UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/7 "2002-08-15T20:18:06Z")
> [@](#): > > \*Originally posted by december \* > \*\*It wouldn’t sound as unreasonable to re-state the story as: > > _The US is detaining Abdullah al-Muhajir, who was sent to this country by al Qaeda with the intention of detonating a bomb laced with radioactive material._ > > IANAL but ISTM the phrase “enemy combatant” fits him fairly well. I’d rather he be locked up then free to fulfill his dream of building a dirty bomb and setting it off somewhere. > \*\* It might not sound as unreasonable but it isn’t accurate, either. Try _The US has arrested an American Muslim, Abdullah al-Muhajir. Based on “secret” sources, it has accused him of being sent to this country by al Qaeda with the intention of detonating a bomb laced with radioactive material. The government, has refused to bring Mr. al-Muhahir before a court, denies he has any right to legal counsel and is holding him incommunicado._ Now we all know that no government, especially not the U.S. government, could _ever_ make a mistake, right? Nor would any governmental agency _ever_ even _dream_ of trying to cover its tracks if it did make a mistake, right? So, of course, we can just dispense with things like legal process and independant judicial oversight since we live in enlightened Western countries. I mean, the government has accused this guy. They’ve even arrested him. He _must_ be guilty! Someone ought to start handing out a Wen Ho Lee award to remind people just how monumentally even well-intentioned governments can screw up and how doggedly they refuse to admit it when they do. ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [August 15, 2002, 9:01pm UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/8 "2002-08-15T21:01:07Z")
It further clouds matters that the name “Posse Comitatus” was usurped by a group of tax-protestors in the 1960s-1970s, who claimed that the Federal government had zero jursidiction over them even though they lived in the states. ---
**Author:** ![shagadelicmysteryman](https://avatars.discourse-cdn.com/v4/letter/s/7ea924/32.png) [@shagadelicmysteryman](https://boards.straightdope.com/u/shagadelicmysteryman)\ **Post date:** [August 16, 2002, 12:16am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/9 "2002-08-16T00:16:06Z")
> [@](#): > > \*\* > **Fang** , it doesn’t matter legally, but it evidently matters to Time Magazine. They used his original name, rather than the name he chose to change it to. This was spin on their part. > \*\* A spin. Obviously a purposeful one. Perhaps they realized that, if they were to print his muslim name, Abdullah al-Muhajir, people would be more biased _just because_ he is of the muslim faith. Are they wrong for doing that? It seems to me that you think they’re wrong for trying to provide some sort of equality to the story. You should know, as well as I do, some of the bigotry circulating this country about muslim fundamentalist terrorists…or just muslims for that matter. The plain and simple fact of the matter is that this man was in fact a U.S. citizen, just like myself and many other dopers, and, that, he has the same rights to counsel, as all American citizens and permanent residents do. If there is irrefutable evidence\* to show that he was inded trying to detonate a “Dirty Bomb” why didn’t they just go ahead and take it to court? \*I say this evidence is irrefutable because it seems to be so widely accepted, in the news stories I’ve seen anyways. Unfortunately, we’ll probably never see a trial, and we’ll probably never see any of the facts for ourselves. Oh, but who needs a trial by jury, right? Let’s just believe them, so that when we’re accused of treason or conspiracy to commit murder, we’ll know that we’re supposed to be, I mean, for sure. :rolleyes: ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [August 16, 2002, 12:43am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/10 "2002-08-16T00:43:41Z")
—\*I say this evidence is irrefutable because it seems to be so widely accepted, in the news stories I’ve seen anyways.— Apparently, with egg on face, the Justice Department has admitted that the evidence on the man is not as strong as they portrayed it to be, and they do not in fact even know if he was working under orders frmo Al Queda at all. My question is: why should it matter if he was sent here by terrorists? If he really was planning to murder people, well, murder and terrorism is a crime in this country, that the courts have prosecuted in the past just fine. Why should he be treated any differently than, say, McVeigh, just because his motivations and allegiences are the current enemy number 1 in the U.S.? The LATimes hyperventilates over this issue: [http://www.latimes.com/la-oe-turley14aug14.story](http://www.latimes.com/la-oe-turley14aug14.story) ---
**Author:** ![Scott\_Dickerson](https://avatars.discourse-cdn.com/v4/letter/s/f04885/32.png) [@Scott\_Dickerson](https://boards.straightdope.com/u/Scott_Dickerson)\ **Post date:** [August 16, 2002, 12:57am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/11 "2002-08-16T00:57:18Z")
For all the evidence one finds that the typical politician is a self-serving crook, there are extreme circumstances in which we simply must be willing to credit our political leaders with a degree of patriotism, decency, and possession of information not available to the general public. Let’s remember that George W. Bush is the choice of the American people. His credibility ultimately rests upon the fact that the people of the United States…well, a majority of them…that is, of those qualified to vote…er, who actually bothered to vote…in the State of Florida…according to the Supreme Court…mmm, 5 of the 9… Okay: We’re being asked to place unquestioning trust in a guy who is Commander in Chief because Justice Anthony Kennedy got up in the morning and said to himself, “Hmmm, yeah, I guess.” Well, it’s not like we can think these things out for ourselves. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [August 17, 2002, 4:06am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/12 "2002-08-17T04:06:36Z")
> [@](#): > > \*Originally posted by Monty \* > Duckster: “Under attack” and “engaged in a conflict” do not equal “at war.” Yes, it’s been discussed at length here and the upshot is: Congress must declare war for this country to be at war. It’s a legal term. More specifically, it’s a constitutional term. And Vietnam was a backyard brawl? 🙂 And there was no Gulf “War” in 1991 either? Legal words for legal beagles and other armchair debaters is one thing, but quite another when you’re in the foxhole in the non-war. 🙂 ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [August 17, 2002, 5:44am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/13 "2002-08-17T05:44:53Z")
> [@](#): > > \*Originally posted by shagadelicmysteryman \* > \*\*A spin. Obviously a purposeful one. Perhaps they realized that, if they were to print his muslim name, Abdullah al-Muhajir, people would be more biased _just because_ he is of the muslim faith. \*\*I think you’re on to something, \*\*shagadelicmysteryman \*\*. Perhaps the reporters doing international news can take a cue from their colleagues on the sports desk and give these people nicknames. How about… _Catfish Arafat Blue Moon Atta Babe bin Laden_ ---
**Author:** ![msmith537](https://avatars.discourse-cdn.com/v4/letter/m/d9b06d/32.png) [@msmith537](https://boards.straightdope.com/u/msmith537)\ **Post date:** [August 17, 2002, 7:41am UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/14 "2002-08-17T07:41:23Z")
> [@](#): > > \*Originally posted by Monty \* > Duckster: “Under attack” and “engaged in a conflict” do not equal “at war.” Yes, it’s been discussed at length here and the upshot is: Congress must declare war for this country to be at war. It’s a legal term. More specifically, it’s a constitutional term. \*\* “At war” means someone is trying to kill you and you must kill them first in order to survive. It wasn’t a fucking tornado or earthquake that created that 16 acre hole across the street from my office. Whether we declared it or not, we are at war. ---
**Author:** ![Scott\_Dickerson](https://avatars.discourse-cdn.com/v4/letter/s/f04885/32.png) [@Scott\_Dickerson](https://boards.straightdope.com/u/Scott_Dickerson)\ **Post date:** [August 17, 2002, 11:46pm UTC](https://boards.straightdope.com/t/are-we-living-on-a-battlefield-posse-comitatus-act/123922/15 "2002-08-17T23:46:57Z")
The question is not, I think, “whether we are at war.” We surely are. As we were in Korea, Nam, the Gulf, Panama, Grenada, etc. The question is whether, in this type of modern war, a war not officially declared by Congress (yet “recognized” by various congressional acts), certain legal entailments of “official” war nonetheless apply–such as the curtailment of some rights we take for granted in normal circumstances. The matter will have to be decided by the courts.