In regards to the Iowa Army National Guard wanting to “occupy” a small Iowa town and conduct “searches” as part of ongoing training exercise, a bad idea which should have died early in the planning stage not after an outcry by the public.
A more interesting question arises, which is what restrictions on training are placed on the Army and Air National Guard. First, all Guardsman take two Oaths, the first is the one which we are all familiar with, which swear true faith and allegiances to the United States, the Constitution, and to obey the laws of those appointed over them; the second, identical, except allegiance is sworn to the Constitution of the United States and Constitution of the State to which they are enlisting, or in my case when I joined the National Guard, the Constitution of the Commonwealth of Virginia. Guardsman, except when in an Active Duty for Training status, are governed under the provisions of Title 32 United States Code. They have two Commander-in-Chiefs, the President and the Governor of their respective state. The training, which are conducted during their Individual Duty Training (IDT) weekends and during Annual Training are prescribed by their Federal mission, with one exception, and this may be dated, National Guard units are required to complete a prescribed period of Civil Disturbance Training, which when I was an S3 of an Infantry Battalion was essentially putting on the Riot Control Gear and receiving Training on crowd control. Some of the other aspects of this training included the Federal Torts Claim Act, Rules of Engagement, and Procedures on the Processing of Individuals Detained. In Title 32 Status, members of the National Guard are permitted to serve as law enforcement role in their respective states; if Federalized, and brought to Active Duty under the authority of Title 10, they are not permitted to serve in a law enforcement role.
This is the duality of their Constitutional Roles, in Title 32 they are serving in the Organized State Militias of their respective states not in Federal Service; in Title 10 they are serving in Federal Service in their role as a member of the Reserve Components of either United States Army or United States Air Force.
The prohibition on the Armed Forces performing a Law Enforcement Role is an outgrowth of the Union Army’s occupation of the South after the Civil War. As part of the disputed election of 1877, Southern Democrats agreed to vote for Rutherford B. Hayes over the Democratic nominee provided Hayes agreed to two things: 1. End Reconstruction in the South; and 2. Introduce legislation which would prohibit the use of Federal Troops as Law Enforcers in the United States. As a result in 1878 Congress passed the Posse Comitatus Act of 1878 which is codified in 18 USC § 1385 and states: “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.” Posse Comitatus is a Latin phrase for the power of county and derives from the English Common Law power of County Sheriffs being able to conscript able bodied men to keep order. The Posse Comitatus Act is also codified in 10 USC § 375 and states: “The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
Clearly there is a fine line between using the Federal Military to ensure that local authorities enforce Federal prescribed laws or court decisions such as the integration of the Universities of Mississippi and Alabama; assisting the states in restoring order such as the LA Riots in 1964, the Riots in Detroit in 1965, the Rodney King Riots in LA, and the commitment of Federal Troops to South Florida after Hurricane Andrew and to New Orleans after Hurricane Katrina; and actually enforcing the laws of the United States.
The actions of the Iowa National Guard were ill conceived, while getting an A for initiative, the get an F for judgment. The Iowa National Guard, like most states has training facilities located in the state, in the case of Iowa, they have Camp Dodge. With a little thought and planning they could have achieved their training goals using the state installation without alarming the citizenry of Iowa or the other 49 States and 4 Territories, Commonwealth, or Districts. (For those dying to know: Guam, the Virgin Islands, Puerto Rico, and the District of Columbia.)
I apologize for not posting this sooner, but I had to do some research to ensure I had my facts stated correctly.
Excellent summary, but you have omitted “State Active Duty” which is entirely state based (and not subject to the Posse Comitatus law). The authority of guardsmen is governed by state law and may or may not include police powers, depending on the state.
Good summary of the different statuses (statii?) in The Army Lawyer, December 2007, pages 33 and 34. See here:
http://tinyurl.com/cm37e2
Good summary, but I take exception to one o your closing statements. The only public outcry was from people OUTSIDE of the town where the exercise was to take place. No one in the town of 443 people in Iowa wehre the event was to take place raised an objection, and in fact they were interested in being involved and observing the training of their fellow citizens. The only objections were out of state busy bodies, who got wrapped around the axle over a false perception that there was some sort of involuntary event taking place against US citizens. Folks from other states and jurisdictions need to mind their own business. If yo don’t want the Guard training in your town, by all means fight it with evey legal means at your disposal. Let other towns set their own limits.
At the same time this was happening Nebraska is considering a bill that would do away with Posse Comitatus in Nebraska. The bill would would give peace officer powers to the National Guard even when federalized under title 10 and also would allow National Guard members from other states to act as peace officers in Nebraska.
We need some public outcry in Nebraska as this in not getting any media attention !
A bad idea that could have gone really wrong really fast. Particularly at my house. Had they come on my property with weapons evident they would have been told only once to unass my property before killshots would have gone down range. Had they entered my house that is what the bayonet is for.
A bad idea that could have gone really wrong really fast. Particularly at my house.
Because instead of being a reasonable adult and understanding that these are a bunch of kids learning to be soldiers, you’re going to be a flaming asshole? And how are you going to explain to PVT Snuffy’s mother that you shot her kid because he got lost during an exercise and accidentally wandered onto your property? But you don’t care about his life; so long as your lawyer gets you off you’d be good with that.
You really are a typical fucking marine.
The facts are always much appreciated. NG often gets a bad wrap for things beyond their control, such as not utilized properly or correctly deployed. But we don’t help ourselves with our own poor judgements as this situation illustrates.
And Ben, you are an ignorant, sniveling idiot. You want to let armed and half trained young people of questionable judgement run roughshod over you, given the current federal socialist regime, you go right ahead. My first question as a member of that unit would be who the fuck was in charge and what were they thinking. After the armed people take whatever of yours they deem needs to be confiscated, (most likely your guns if you have any) you can whine and snivel to console yourself. They want to learn to be soldiers, they need to go and do SOLDIER THINGS. And if they are wearing a uniform that says U.S. ARMY on it, they better be quelling a riot with the proper authority beforehand, or closing with the enemy to destroy him by fire and maneuver, because they have no authority, NONE, to be playing wargames on my property. And if their fucking leadership knew their business, they would know that too. And I don’t give a fuck what the governor says about it either, he don’t own my land. I do, and I don’t tolerate bullshit or stupidity in my zone of operations. Got news fer ya too, I would cap your ass too if you trespassed on my property, after providing one warning to get the hell off it.
My property and my city are not a fucking army MOUT site. They can find somewhere else to do that stuff.
USMC Steve, Not my argument between you and Ben, but I resent the claim that these are young people of questionable judgment. Nobody questioned their judgment in signing their enlistment papers.
Also, just so we are clear, that while our laws stipulate self-defense is a right, it is not necessarily a right to use deadly force. Given judicial precedence your act of killing someone on your property simply because they strayed on your property would be considered by most juries a “reckless” act. And you would be facing Involuntary Manslaughter at the very least.
I will give this one more try, but hold out little hope given that the respondents are cherry picking what I have been saying to fit their replies.
In each post I clearly said I would give one warning to trespassers, even armed ones in uniform. The second warning would be audible, the sound of a mag going in the well and the bolt slapping home on a live round.
The questionable judgement statement comes from the fact that Pvt Snuffy Smith that was referred to earlier would most likely not ask any questions about being given an order to enter homes and conduct searches in direct violation of the Constitution, but then again, given that socialists are now in control of all parts of our federal government, the Constitution is irrelevant now anyway. And their training is in no way equivalent to regular Army or Marine personnel so they are even less likely to know the specifics of what they can and cannot legally do. Their leadership certainly didn’t.
I don’t care whether it is title 10, title 32, or anything else. Someone comes up to me and tells me they want to search my shit, and they will be resisted. The legal system in this country is shit in the first place, and will get no better in the current political maelstrom that is developing under the mulatto socialist in chief we are now stuck with. One more reason why I distance myself from my fellow man, when (apparently) over half the country wanted to go socialist. It just proved my belief that at least half the people in this country were totally fucked in the head.
And their training is in no way equivalent to regular Army or Marine personnel
But that isn’t their fault. The fact is that their duties to defend the nation are the same duties every regular Army or Marine signs up for. Actually, NG folks sign up for more duties in defense of Nation and State than do regular military people.
The questionable judgment statement…
Then the next question is whether it is good judgment to obey or maybe to refuse the order. I think your point is questioning the judgment of the people giving snuffy the order in the first place, which everyone seems to agree is questionable in some respect.
In each post I clearly said I would give one warning to trespassers,…
That is all well and good. However, if you pull the trigger and kill the trespasser don’t expect everyone to just walk away happy that you claimed self defense. I respect your right to defend yourself, and I respect your ability to defend yourself. But the laws of our land take a dim look at any killing, in self defense or otherwise.
Even when someone is illegally forcing a search it may still not be self-defense to resist. However badly either one of us wanted to kick the stuffing out of them. The legally prudent (and non-reckless in context manslaughter) action would be to pursue defense of our privacy property rights through the courts.
Personally would not fault you for defending yourself. However, I am not the one that would be seeking to convict you of something in the aftermath.
The legal system in this country is shit in the first place.
Our jury system is one of the final bastions of defense we have against a totalitarian government. Our jury system is also hated by any given enemy nation trying to bring us down.
What is bad about our legal situation right now is government officials, judges and juries, that are afraid or unwilling to enforce our laws. … and now… the conundrum we face when defending ourselves. If we follow the law, will our rights indeed be protected or will a flakey judge or jury make a flaky decision for or against us? It kinda leads one to consider pulling the trigger and asking questions later.
Steve,
MEUs have conducted urban exercises in American cities for years now. These Soldiers were not being dispatched to conduct unauthorized searches and seizures, they were going to conduct a training exercise. I have seen enough of these to assume that houses would only be included as part of the exercise if the owner’s consent was obtained beforehand. Where the Iowa National Guard failed was to get out in front of this story by releasing a clear explanation of their intentions and methods before it the story broke on its own. And quite honestly, idiots like you who proclaim that you will open fire on American Soldiers are a greater threat to my 2nd Amendment rights than the Iowa National Guard.
Ben, you obviously don’t know the first thing about “typical Marines”.
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