Mark Knight

Jim Root wrote, on the "WHO KILLED JFK?" thread: 11) That within hours of the assassination of JFK, Walker made contact with a German newpaper, while staying in a Shreveport, LA hotel, that then printed the story that Oswald had shot at him. This story ran days before the FBI developed that same lead and received information about the incident from Marina Oswald. This is something I've questioned for some time. Since Dallas police hadn't arrested anyone for shooting at Walker, how did Walker know that Oswald did it...unless it was an intentional miss, and Walker knew about it beforehand? If I was I math student, I'm sure this would mean that 2 + 2 + x = 6...and that for Walker to arrive at the value of x [i.e., that Oswald was the shooter], he'd have to know the entire equation. Or am I missing something? I just don't see how Walker could have "deduced" that Oswald was the shooter at Walker's home a few months before, based upon the known evidence...and at the time Walker spoke with the German newspaper, the FBI didn't know, and Marina hadn't announced it. For Walker to come to this conclusion, he needed to have information that simply wasn't available to investigators at the time. Or am I missing something here? This alone makes me think that the idea that Oswald shot at Walker either (1) is a false lead, or (2) occurred, but with the idea of advancing Oswald's identity as a left-wing nut, and was done with Walker's knowledge, if not necessarily his approval.

OK, guys, I believe you. It's just that I've been accused of not seeing "obvious" attempts at humor before on the Forum, and since I instantly recognized a resemblance to Patty Hearst, I wondered if my "defective" humor detection apparatus had failed me once again. Actually, it appears that the SLA was better educated in "revolucion" than the media wanted us to believe. And I'm not here to hijack the thread; I'm simply here to learn and ask questions.

My opinion--and until there is unquestionable evidence, opinions are all that is available--on who killed JFK has evolved over the past [nearly] 42 years. When Oswald was gunned down in the basement garage of the DPD by Ruby, I just knew it was a conspiracy; somebody wanted to "shut him up" before Oswald said too much or revealed too many details. I was 9 years old then. Then the Warren Commission Report came along. This bipartisan group [allegedly] had access to all the investigative resources of the United States Government, and the Commission claimed that a preponderance of evidence showed beyond a reasonable doubt that Lee Harvey Oswald shot President Kennedy alone, with no conspiracy before the fact. That was a difficult result to accept, but as a loyal American I accepted their judgement. I was nearly 10 years old then. Then the inconsistencies between the Warren Commission testimony and the conclusions began to surface. When LIFE Magazine's "A Matter of Reasonable Doubt" issue came out in 1966, it was obvious that the Warren Commission's conclusions weren't supported by the Zapruder film [or at least not by the stills that were released]. Over the years, I've read everything I could get my hands on to try to understand the "5W's and an H" that would tell the story: who, what, when, where, why, and how. That's what led me to journalism classes in college, in fact. But the questions weren't being answered with 100% certainty. The "who?" became "whodunnit?", and the "where?" became "where was/were the shooter(s)?"; the "why?" was still "why?", but the more information that poured forth, the less certain the answere appeared. Who, among those who claimed involvement in the assassination, were true confessors and who were publicity seekers? Where was a conspiracy hatched? Washington? New Orleans? Miami? Dallas? Vegas? Los Angeles? Havana? As a child, I resented having information withheld "for your own good." As an adult, the resentment has only grown. The questions that remain unanswered in my own mind have actually been answered somewhere, but the multiplicity of conflicting answers actually serves to block the light of truth. These days, for example, maybe Oswald wasn't really Oswald [two Oswald theory]. Maybe what we saw in the Z-film didn't really happen [film alteration theories]. Documents are forged, and others are lost or destroyed. Truth is fiction and fiction is truth. So where does that leave my thoughts? I believe that ONE aspect of the assassination was the intention to provoke an attack on Cuba. Mafia wanted their playground back, exiles wanted their homeland back, right-wingers wanted the Commies out of the Western Hemisphere, military hawks wanted missiles out of the Caribbean. In fact, there were more reasons FOR attacking Cuba after the assassination than AGAINST. But the smoking gun, of Castro's involvement in the assassination, just never materialized. Whether this was because it didn't exist, or whether it was because it was covered up--and, if so, by whom?-- has yet to be determined conclusively. I believe that, for this scenario to be proven, one must believe that the evidence points toward conspiracy...which I believe it overwhelmingly does. But determining who the conspirators were is a task akin to attaching metal handles to Jello and carrying it across the room.

James, Am I mistaken, or is this "Tania" photo actually one of Patricia Campbell "Patty" Hearst, who assumed the name "Tania" with the so-called Symbionese Liberation Army in California in the 1970's...rather than one "Tania" who toiled alongside Che? Or was that post meant to be humorous, and I simply missed the point?

Well said, Pat! I believe the work of Mr. Thompson and that of Mr. Fetzer have helped, rather than hindered, the evaluation of the evidence. And I believe that the only folks who benefit from these guys virtually bitch-slapping each other are the Posners and the MacAdams types, who smile because this sort of bickering and infighting makes the CT crowd look something less than professional to the general public.

Gerry Hemming wrote: What did I say about either buying a goddamn tape-recorder or learn shorthand !! Or do you feel constrained by your upcoming "review" of Joan's book ?? Angelo NEVER came forth, and it was an associate who called me; advising that I make a quick call to Miami after I had "outed" his name on the forum, and it was picked up by a web search. Tim, it sounds like you're pissing him off. Now, maybe in law school you learned that accuracy didn't matter, as long as you sold your argument; but when I was in journalism school, accuracy mattered. As Operation Mockingbird shows, maybe it didn't matter to some journalists, but apparently there was some sort of code of ethics among professors of journalism, if not among the practitioners. And right next to accuracy was the philosophy of not pissing off your sources, if for no other reason than to be able to return to them if necessary. One certainly doesn't piss in their Wheaties, and then ask them, "How's breakfast?"

Gerry, this was reminiscent of the George Carlin bit of many years back, about puttin' the welfare people to work fillin' in the Bering Strait, and then chargin' the Indians a dollar a head to go back where they came from. Personally, I loved it.

So, Tim...how's that letter coming?

In Vietnam, friend and foe were visually indistinguishable. Ditto Iraq. In Vietnam, the government did not have control of the country. Ditto Iraq. In Vietnam, it became apparent that there was no way to militarily win in a country in which the insurgency was everywhere. Ditto Iraq. Quagmire. Ditto Iraq.

HICCUP!!! [unintended double post]

Good post, Jack. Some personally honest people can be UNWITTING disinformation agents, by definition. And on the subject of the JFK assassination, most disinformation agents are of the unwitting variety. The hard part is determining who's trying to mislead, and who's been misinformed.

Mr. Hemming...I would have to believe that the conclusion Davis draws is quite valid. Unless Walker was 100% sure that the alleged assassination attempt wouldn't be repeated, it seems he was living quite recklessly. But IMHO, the only way to know that it wouldn't happen again would be to know that the person(s) behind the attempt were either jailed or dead--all of them, if there was more than one--OR to have been in on the plot...in other words, it had to have been faked; a phony attempt; just for show. Now, since we all know that the alleged attempted assassin, Oswald, was still walking the streets...and no one else was ever arrested for the attempt...then the first scenario is blown out of the water for a lack of credibility. Which leaves us with the second scenario: the attempted assassination was fake, there was no intent to kill Walker, and the police reports/investigation were merely to establish a recorded history of the incident for some purpose. So I suppose we're left to figure out what the purpose was. While I'm not much at getting inside the minds of persons still alive, I'm even worse at discovering the thoughts of the dead. But the more I consider the Walker shooting, the less I think that Oswald actually did it...or, more exactly, if Oswald DID sling some lead in Walker's direction, there obviously was no intention to actually kill him. And Walker knew that; otherwise, he'd have taken some countermeasures to ensure his own security. To think otherwise flies in the face of logic, because nothing I've seen anywhere indicates that Walker had any desire to be a martyr, for whatever cause.

Jim, the Hickerson notes bring a few questions to mind. As an ambassador, Hickerson was an employee of the State Department. The State Department, as we all know these days, was a primary means for "spooks" to get into and out of certain countries, as the recent Valerie Plame incident illustrates. Now, if we assume that Oswald was attached to either military intel or the CIA, we can also assume there were various other channels that could be used to get this information to him WITHOUT putting it in writing. So why would this information be put in writing, and on the two specific dates that coincide with Oswald's itinerary? Was it to lay a trail, for those wise enough to find it? Was it a CYA move, in case Oswald's cover had been blown once he got inside the USSR, that said essentially, we knew how he got in, but we weren't behind it? I agree with your assumption that it's possible that Oswald and Walker were in contact, perhaps giving Oswald instructions en route to the USSR. But I wonder why the information was put into written form...unless there was a point in having them written. Perhaps this was the only way to get the info where it was to go within the necessary time frame...but that's just specualtion on my part. If Oswald's false defection was to be a secret in perpetuity, leaving a paper trail that corresponds with key dates is, IMHO, inexcusable...unless it was to eventually be disclosed...and if so, to whom? Why?

Jim, I think the Walker shooting attempt is at the heart of understanding the JFK assassination case. If Oswald didn't do it, then a key argument of the lone nutters is eliminated. But if he DID do it, at what level do we accept it...that Oswald was nuts enough to shoot anybody, as the WC contends...or that Oswald saw himself as a patriot, and saw the attempted assassination of Walker as a form of heroism? There are just so many layers to this particular mystery itself--not to mention other aspects of the assassination--that it's a key reason that I asked the question, whether we would recognize the truth when we saw it. I think your investigation into Walker, and Taylor and Hurt and whoever else turns up this direction, will be one of the keys to understanding what actually happened. But will it be THE key, or just A key--one among many needed to know the truth? And so it goes with Jack White et al and the photographic evidence...seems like everyone's looking for THE key, when perhaps we should be concentrating on A key, part of a collection that will finally unlock the labrynth of evidence and false leads. While I don't discount the value of their work, because I believe it IS valuable, it may only yield PART of the picture. The entire spectrum is represented in the world of the JFK assassination investigators, from those who think they've solved it with a single piece of evidence [Colonel Mustard behind the wheel with the shellfish toxin], to those who try to weave in every factoid ever discovered. In such an environment, I wonder how we'll know if --or when--we get it right.

Saw an ABC News program rehashing the New Orleans debacle the other night. It seems the Governor of Louisiana had called FEMA and asked for "everything you've got," but since the request wasn't specific enough--numbers of National Guardsmen, number of buses, etc--FEMA delayed ANY response until they received a specific number. Unfortunately, FEMA failed to relay this desire for specificity back to the governor...hence the communications breakdown. SO...was the governor at fault for not saying how many troops and how many buses, or was FEMA at fault for not responding...even the response that they needed specific numbers?? Biggest problem was, governow wasn't IN New Orleans to see what was going on...and mayor and local emergency officials were without communications--except TV networks, apparently--for a couple of days. Question that comes to MY mind is...why couldn't/didn't network news organizations HELP establish communications between New Orleans and other governmental agencies? They could obviously communicate between their reporters in NO and their anchors in New York...right? So why not set up communications between NO and Baton Rouge? Or NO and Washington? Obivously it COULD be done, but it WASN'T done.

Every post on this topic supports my theory that the truth may be out there already, but its form may be unrecognizable. Jim Root brings up a lot of valid points, but one question that keeps coming back to me is: Did Oswald really take a shot at Walker? Any suppositions based upon this "fact" may end up being a house built upon weak and shifting sand. There is, in my opinion, no "rock" upon which to base the conclusion that Ozzie Rabbit fired at Walker...Marina's not the most credible witness, and she wasn't there anyway...DeM. only repeated what he'd been told, as I understand it...so who was really there? If Oswald didn't drive, but the attempted assassin left in a car, whose car was it, and who was driving? Was the '57 Chevy in the pic DeM.'s car? What's real and what's "smoke" in this scenario? Otherwise, I think the Oswald/Walker and Walker/Taylor relationships have been underinvestigated in years past, and may shed some light on what happened with LHO, both in the USSR and stateside. And Nic, I agree that "what you think you KNOW may not be the case." I've encountered a lot of instances of that already...what I've been told as "fact" turned out to be fiction. That's why I raised the question...how are we gonna know the facts when we see them? There's already enough "reasonable doubt" out there to drive a person over the edge. So how does one discover what's real when so many of the principals are dead, or refuse to speak, or refuse to speak with clarity?

8. Old "vintage" WWII aircraft were utilized in the coup in Guatemala as well as the Bay of Pigs (whatever it was). Huh. And they told us the mission failed due to the absence of air cover. Howzaboutdat?

Tim, all I can add is that it IS truly sad when someone like yourself, hardy and HALE, BOGGS down in the muck and the mire that is the speculation about what is and isn't coincidence. Is it coincidence? Perhaps we should wait and FORD that stream when we get there. Just don't keep NIXON the idea...seems like we're all at the HELMS of separate ships in this line of inquiry.

Lee, in one short sentence you have succinctly summed up the point I was attempting to make. What if the whole truth IS out there, for all to see, but we're so busy analyzing EVERYTHING that we give false leads and the truth equal weight...and the truth gets overwhelmed by the sheer volume of false leads? In separating the wheat from the chaff, the bulls**t from the bedding straw, sometimes I'm afraid we toss out some of the good with the bad...and, I'm afraid, we often fail to recognize what we've done. Then later, when there's a missing piece to the puzzle, we question what we have instead of what's missing...or vise-versa. The human mind is amazing. It discovered that E=mc2, but then it gets fooled by simple optical illusions...not to mention the intentional deceptions through sleight of hand that occur. And so it is with the evidence in the JFK case. We know, and yet we know not; we believe, and yet we doubt. We see, and we fail to see. It's as if we've entered a carnival house of mirrors, where what we see is not necessarily what is. And sometimes our filtering mechanism to determine fact from fiction is faulty. Like a blind mouse with a faulty sense of smell, wandering through a maze...when we find the cheese, will we know it?

Gratz ain't gonna like you, John...how dare any of us question the patriotism of anyone named Bush? Those references were probably written by Commies, and we all know that you can't believe the Commies..."godless Commies," I believe, was the Cold War term. Interesting stuff...wonder if any of it lends itself to verification?

Mark, thank you for your acknowledgement of Bush accepting responsibility. Tim, that was merely a matter of stating the truth...no more, no less, and certainly no reason to thank me. It's not like that statement from me turned the tide of those who see Bush as an incompetent nincompoop, nor will it change the minds of the faithful who see his presidency as just ever-so-slightly below the second coming of Jesus Christ [i believe you fall into the latter group, Tim]. I contrast Bush's presidency with Kennedy's. Kennedy put the call out for "the best and the brightest," and in many areas got them. Bush's administration, in comparison, appears to be filled with hacks and weasels and assorted vermin, with a few occasional good guys thrown in for their "what about so-and-so" rebuttals that they need to make far too often. As far as Bush's business acumen, since you brought it up...in baseball, the Cincinnati Reds seem to be managing from the George W. Bush playbook. In the oil business, the ONLY good move he made was selling the business for several times its actual worth, and then to friends of the family [if I had done that, it would have been called "bailing me out."] I don't think you make your case very persuasively. Had Mr. Bush not gone into politics--the "other" family business--extrapolating the results of his business experiences, he would've been just another well-connected loser.

With all the investigative techniques employed over the past 42 years, a lot of widely differing theories and ideas have come out in regards to the JFK assassination. But if someone finally came forward and had a story that was true, and that named names and gave all the intimate details...would we know the truth when we saw it, or would we "pull a Posner" and pull out all the stops to try to refute it if it didn't follow our own "pet" theories? How would we know the truth when we saw it? I'd like to see the responses from other forum members on this. I've given it a lot of thought, and while it troubles me, I have no answers of my own. So what answers do YOU have?

I am, of course, way too much of a gentleman to point out to Mark that I told him so. No, you're not. IF you had been keeping up with the news, you would have known that Mike Brown had planned for some time to retire--from a position he'd held but a relatively short time--before the end of 2005. I believe he'll probably end up getting some sort of pension out of this debacle over which he presided...not exactly a case of "heads rolling" if they get to take the "golden parachute" route. But I will eat a big slice of "I-WAS-WRONG" humble pie over George W. Bush taking responsibility today for what went wrong. With the exception of Carter's mea culpa over the disastrous attempted Iran hostage rescue, I can't recall a president since Kennedy taking responsibility for failures on his watch. Now, if W had only said something on the order of "Ich ben ein New Orleanian," I might have been able to relate to him a little better. Instead, we got Barbara Bush, First Mom, blaming the refugees...I suppose for being so poor as to not have cars, or so honest as to not have stolen the buses to have made their "getaway" from New Orleans.

Pat, I don't think it's merely a coincidence. Nor do I think it's a coincidence that six months later Boggs disappeared and was presumed dead, or that 26 months later Ford was president. So Nixon has breakfast with Boggs and Ford, and the very next act is to instruct Haldeman to have Helms call off the FBI police dogs or that whole "Bay of Pigs thing" might unfold/unravel. Of course, Boggs and Nixon are dead, and Ford will probably take the truth to his grave with him.

The assertion that President Bush would have violated the Posse Comitatus Act had he ordered in National Guardsmen to assist in New Orleans prior to being INVITED to do so is BOGUS. http://www.homelandsecurity.org/journal/ar.../Trebilcock.htm The Myth of Posse Comitatus Major Craig T. Trebilcock, U.S. Army Reserve October 2000 -------------------------------------------------------------------------------- Major Craig Trebilcock is a member of the Judge Advocate General’s Corps in the U.S. Army Reserve. He is assigned as an operational law attorney with the 153d Legal Support Organization in Norristown, PA. His area of specialization includes the laws applicable to U.S. forces engaged in operations in both the United States and abroad. Major Trebilcock is a graduate of the University of Michigan (A.B. with high honors, 1982) and the University of Michigan Law School (J.D., 1985). His military education includes the Judge Advocate General Basic Course (1988) and Advanced Course (1992), U.S. Army Command and General Staff College (1997), and the U.S. Navy War College International Relations Seminar (2000). Major Trebilcock is a civilian immigration attorney with the firm of Barley, Snyder, Senft, & Cohen in York, PA. -------------------------------------------------------------------------------- The Posse Comitatus Act has traditionally been viewed as a major barrier to the use of U.S. military forces in planning for homeland defense.[1] In fact, many in uniform believe that the act precludes the use of U.S. military assets in domestic security operations in any but the most extraordinary situations. As is often the case, reality bears little resemblance to the myth for homeland defense planners. Through a gradual erosion of the act’s prohibitions over the past 20 years, posse comitatus today is more of a procedural formality than an actual impediment to the use of U.S. military forces in homeland defense. History The original 1878 Posse Comitatus Act was indeed passed with the intent of removing the Army from domestic law enforcement. Posse comitatus means “the power of the county,” reflecting the inherent power of the old West county sheriff to call upon a posse of able-bodied men to supplement law enforcement assets and thereby maintain the peace. Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of the Reconstruction era, and to ensure that any lingering sentiments of rebellion were crushed. However, in reaching those goals, the Army necessarily became involved in traditional police roles and in enforcing politically volatile Reconstruction-era policies. The stationing of federal troops at political events and polling places under the justification of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original national defense mission. The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its role of defending the borders of the United States. Application of the Act To understand the extent to which the act has relevance today, it is important to understand to whom the act applies and under what circumstances. The statutory language of the act does not apply to all U.S. military forces.[2] While the act applies to the Army, Air Force, Navy, and Marines, including their Reserve components, it does not apply to the Coast Guard or to the huge military manpower resources of the National Guard.[3] The National Guard, when it is operating in its state status pursuant to Title 32 of the U.S. Code, is not subject to the prohibitions on civilian law enforcement. (Federal military forces operate pursuant to Title 10 of the U.S. Code.) In fact, one of the express missions of the Guard is to preserve the laws of the state during times of emergency when regular law enforcement assets prove inadequate. It is only when federalized pursuant to an exercise of presidential authority that the Guard becomes subject to the limitations of the Posse Comitatus Act. The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.”[4,5] Execution of the laws is perceived to be a civilian police function, which includes the arrest and detention of criminal suspects, search and seizure activities, restriction of civilian movement through the use of blockades or checkpoints, gathering evidence for use in court, and the use of undercover personnel in civilian drug enforcement activities.[6] The federal courts have had several opportunities to define what behavior by military personnel in support of civilian law enforcement is permissible under the act. The test applied by the courts has been to determine whether the role of military personnel in the law enforcement operation was “passive” or “active.” Active participation in civilian law enforcement, such as making arrests, is deemed a violation of the act, while taking a passive supporting role is not.[7] Passive support has often taken the form of logistical support to civilian police agencies. Recognizing that the military possesses unique equipment and uniquely trained personnel, the courts have held that providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act. Military personnel may also be involved in planning law enforcement operations, as long as the actual arrest of suspects and seizure of evidence is carried out by civilian law enforcement personnel.[8] The Posse Comitatus Act was passed in the 19th century, when the distinction between criminal law enforcement and defense of the national borders was clearer. Today, with the advent of technology that permits weapons of mass destruction—chemical, biological, or nuclear weapons—to be transported by a single person, the line between police functions and national security concerns has blurred. As a matter of policy, Western nations have labeled terrorists “criminals” to be prosecuted under domestic criminal laws. Consistent with this, the Department of Justice has been charged as the lead U.S. agency for combating terrorism. However, not all terrorist acts are planned and executed by non-state actors. Terrorism refers to illegal attacks on civilians and other nonmilitary targets by either state or non-state actors. This new type of threat requires a reassessment of traditional military roles and missions along with an examination of the relevance and benefits of the Posse Comitatus Act. Erosion of the Act While the act appears to prohibit active participation in law enforcement by the military, the reality in application has become quite different. The act is a statutory creation, not a constitutional prohibition. Accordingly, the act can and has been repeatedly circumvented by subsequent legislation. Since 1980, Congress and the president have significantly eroded the prohibitions of the act in order to meet a variety of law enforcement challenges. One of the most controversial uses of the military during the past 20 years has been to involve the Navy and Air Force in the “war on drugs.” Recognizing the inability of civilian law enforcement agencies to interdict the smuggling of drugs into the United States by air and sea, the Reagan Administration directed the Department of Defense to use naval and air assets to reach out beyond the borders of the United States to preempt drug smuggling. This use of the military in antidrug law enforcement was approved by Congress in 10 U.S.C., sections 371–381. This same legislation permitted the use of military forces in other traditionally civilian areas—immigration control and tariff enforcement. The use of the military in opposing drug smuggling and illegal immigration was a significant step away from the act’s central tenet that there was no proper role for the military in the direct enforcement of the laws. The legislative history explains that this new policy is consistent with the Posse Comitatus Act, as the military involvement still amounted to an indirect and logistical support of civilian law enforcement and not direct enforcement.[9] The weakness of the analysis of passive versus direct involvement in law enforcement was most graphically demonstrated in the tragic 1999 shooting of a shepherd by marines who had been assigned a mission to interdict smuggling and illegal immigration in the remote Southwest. An investigation revealed that for some inexplicable reason the 16-year-old shepherd fired his weapon in the direction of the marines. Return fire killed the boy. This tragedy demonstrates that when armed troops are placed in a position where they are being asked to counter potential criminal activity, it is a mere semantic exercise to argue that the military is being used in a passive support role. The fact that armed military troops were placed in a position with the mere possibility that they would have to use force to subdue civilian criminal activity reflects a significant policy shift by the executive branch away from the posse comitatus doctrine. Congress has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes: 10 U.S.C., sections 331–334. These provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. In case of civil disturbance, the president must first give an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles “race riots” of the early 1990s. Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Act’s underlying principle that the military is not a domestic police force auxiliary. An infrequently cited constitutional power of the president provides an even broader basis for the president to use military forces in the context of homeland defense. This is the president’s inherent right and duty to preserve federal functions. In the past this has been recognized to authorize the president to preserve the freedom of navigable waterways and to put down armed insurrection. However, with the expansion of federal authority during this century into many areas formerly reserved to the states (transportation, commerce, education, civil rights) there is likewise an argument that the president’s power to preserve these “federal” functions has expanded as well. The use of federal troops in the South during the 1960s to preserve access to educational institutions for blacks was an exercise of this constitutional presidential authority. In the past five years, the erosion of the Posse Comitatus Act has continued with the increasingly common use of military forces as security for essentially civilian events. During the 1996 Olympics in Atlanta, over ten thousand U.S. troops were deployed under the partial rationale that they were present to deter terrorism. The use of active-duty military forces in a traditional police security role did not raise any serious questions under the act, even though these troops would clearly have been in the middle of a massive law enforcement emergency had a large-scale terrorist incident occurred. The only questions of propriety arose when many of these troops were then employed as bus drivers or to maintain playing fields. This led to a momentary but passing expression of displeasure from Congress.[10] Homeland Defense The Posse Comitatus Act was passed in an era when the threat to national security came primarily from the standing armies and navies of foreign powers. Today the equation for national defense and security has changed significantly. With the fall of the Soviet Union our attention has been diverted—from the threat of aggression by massed armies crossing the plains of Europe to the security of our own soil against biological or chemical terrorism. Rather than focusing on massed Russian intercontinental ballistic missiles as our most imminent threat, we are increasingly more aware of the destructive potential of new forms of asymmetric warfare. For instance, the U.S. Office of Technology Assessment states that 100 kilograms of dry powdered anthrax released under ideal meteorological conditions could kill up to three million people in a city the size of Washington, DC.[11] The chemical warfare attacks carried out by Japanese terrorists in the subways of Tokyo during the 1990s heightened our sense of vulnerability. The Oklahoma City bombing and the unsuccessful attempt to topple the World Trade Center have our domestic security planners looking inward for threats against the soil of the United States from small but technologically advanced threats of highly motivated terrorists. What legal bar does the Posse Comitatus Act present today to using the military to prevent or respond to a biological or chemical attack on the soil of the United States? In view of the erosion of the Posse Comitatus Act in the past 20 years, the answer is “not much.” The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues. The plethora of constitutional and statutory exceptions to the act provides the executive branch with a menu of options under which it can justify the use of military forces to combat domestic terrorism. Whether an act of terrorism is classified as a civil disturbance under 10 U.S.C., 331–334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the act’s erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.[12] Conclusion Is the Posse Comitatus Act totally without meaning today? No, it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter. Although no person has ever been successfully prosecuted under the act, it is available in criminal or administrative proceedings to punish a lower-level commander who uses military forces to pursue a common felon or to conduct sobriety checkpoints off of a federal military post. Officers have had their careers abruptly brought to a close by misusing federal military assets to support a purely civilian criminal matter. But does the act present a major barrier at the National Command Authority level to use of military forces in the battle against terrorism? The numerous exceptions and policy shifts carried out over the past 20 years strongly indicate that it does not. Could anyone seriously suggest that it is appropriate to use the military to interdict drugs and illegal aliens but preclude the military from countering terrorist threats that employ weapons of mass destruction? For two decades the military has been increasingly used as an auxiliary to civilian law enforcement when the capabilities of the police have been exceeded. Under both the statutory and constitutional exceptions that have permitted the use of the military in law enforcement since 1980, the president has ample authority to employ the military in homeland defense against the threat of weapons of mass destruction in terrorist hands. -------------------------------------------------------------------------------- Click on an endnote number to return to the article. [1] “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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”—18 U.S.C. 1385. [2] The act as originally passed referenced only limitations upon the Army. After World War II, it was amended to include the Air Force. By DoD Directive 5525.5, the limitations of the act have been administratively adopted to apply to the Navy and Marine Corps as well. [3] The peacetime law enforcement mission of the Coast Guard has been well recognized since the founding of its parent agency, the Revenue Marine, in 1790. [4] For the sake of brevity, the term military as employed in this article refers to the Army, Air Force, Navy, and Marines, their Reserve components, and the National Guard when in federalized status pursuant to Title 10. It does not include the Coast Guard or the National Guard operating in state-controlled Title 13 status. [5] The Uniform Code of Military Justice is an exception to the Posse Comitatus Act. The code gives the military the inherent right to maintain good order and discipline over its personnel through law enforcement activity, prosecution, and punishment. As such, the code gives the military jurisdiction to enforce both military and civilian laws against its own military personnel. [6] State v. Nelson, 298 NC 573, 260 SE 2d 629, cert den; 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980). [7] Ibid. [8] United States v. Red Feather, 392 F. Supp. 916 (DC SD 1975). [9] Pursuant to this mission, the USS Kidd intercepted a drug-smuggling boat in 1983. When the smugglers refused to yield without force, the problem of passive versus active law enforcement was handled by lowering the Navy ensign on the ship and raising the Coast Guard ensign. The Coast Guard asset USS Kidd then fired on the smugglers’ ship, rendering it immobile and leading to its seizure, along with 900 bales of marijuana. [10] “Business, Capitol Hill Question Military’s Role in Olympics,” Defense Week, 22 July 1996. [11] U.S. Congress, Office of Technology Assessment, Proliferation of Weapons of Mass Destruction: Assessing the Risks (Washington, DC: Government Printing Office, 1993), OTA-ISC-559, p. 54. [12] The enforcement of a prosecution under the Posse Comitatus Act would necessarily be brought by the Department of Justice, the lead agency charged with combating domestic terrorism. This further suggests that as long as coordination of the use of military forces was part of a coordinated interagency effort that the likelihood of prosecution under the Posse Comitatus Act of any executive branch official would seem remote at best.