in connection with the Army appropriation bill of 1878. The significance of this speech arises out of its detailed use of quotations from the framers of the U.S. Constitution. As the U.S. Supreme Court would state almost a decade after Kimmel's oration: "It is never to be forgotten that, in the construction of the language of the Constitution . . we are to place ourselves as nearly as possible in the condition of the men who framed the instrument." 170

Kimmel began by tracing the sources of the Founding Fathers' distrust of standing armies from ancient Rome through English history. Quoting the charge in the Declaration of Independence that George III "has kept among us in time of peace standing armies," Kimmel stated: "This dread and detestation of standing armies appears on every page of their progress toward independence and the establishment of the Constitution of 1787." 171 At least eight of the original state constitutions included prohibitions on standing armies.

"In the debates in the conventions which adopted the Constitution of 1787 the spirit of resistance to standing armies is ever present," averred Kimmel, who quoted Patrick Henry, George Mason, James Madison ("the Father of the Constitution"), and William Grayson to prove it.172 As quoted by Kimmel, standing armies were "to execute the execrable demands of tyranny" (Henry), make “the people lose their liberty" (Mason), are "one of the greatest mischiefs" (Madison), and would "deprive us of our liberties" (Grayson). 173 Kimmel also provided similar quotes from The Federalist Papers by Madison and Hamilton.

Kimmel went on to demonstrate, by reference to the same sources and to the Second Amendment, that the Constitution's framers intended that a militia, composed of the armed citizens, "should be a substitute for a standing army." 174 "If insurrections should arise or invasion take place, the people ought unquestionably to be employed to suppress and repel them rather than a standing army," said Madison. 175 The remainder of the speech goes to great lengths to demonstrate the superiority of the militiaman, the armed citizen, over the professional soldier to preserve civil liberty. Kimmel argued that the posse comitatus, the people at large, could be summoned by the sheriff to preserve peace. Army intervention in civil affairs meant corruption, electoral fraud, suppression of workers, and extortion. Kimmel closed his speech by moving the adoption of a version of what became the Posse Comitatus Act. 176

Military Enforcement of Controlled Substance Laws

The most frequently heard objection to the bill's prohibition on military enforcement of law was first stated by Representative Burchard: "In some of the interior districts of the United States-the mountain regions-there are men engaged in illicit distillation. I do not know that there is in our internal-revenue law a provision which expressly declares that if there be resistance to an officer engaged in seizing an illicit distillery the soldiery of the United States may be used to assist the officers in the execution of the law." 177

Congressman Knott was unmoved: "The subordination of the military to the civil power ought to be sedulously maintained." 178 In reply, Representative Aldrich saw hidden interests behind the bill: "There is a class of men in Kentucky, who are sometimes called 'moonshiners,' who make whiskey and never pay the tax upon it when they sell it, and they will be pleased to hear of the adoption of such an amendment as this." 179 Representative Southard offered the alternative of the posse comitatus: "Call upon the laboring-man to aid in the enforcement of the law and he will respond right manfully." 180

In the Senate, discussion centered on the misuse of soldiers as posse comitatus. Senator Kernan stated: "I suppose no one claims that you can use the Army as a posse comitatus unless that use is authorized by the Constitution, which it clearly is not, or by act of Congress." 181 If peace officers need assistance to quell disorders, he added, "they should summon the unorganized citizens and not summon the officers and men of the Army as a posse comitatus . . . .

" 182

As in the House, Senate opponents of the bill were alarmed that the Army could not be used to assist revenue officers seize illicit distilleries. 183 Senator Merrimon replied as follows: "Suppose that a collector of internal revenue shall be about to seize an illicit distillery, and he is resisted, where is the force to come from to aid him in the execution of that law in that behalf? . . . It is not to apply for the Army; ... but it is to call in the aid of the posse comitatus, the people around him, every citizen, everybody liable to do public duty at all." 184

Opponents of the bill were quick to recognize that the citizenry would not help enforce unpopular restrictions on whiskey. Senator Blaine recalled an old Attorney General opinion that soldiers could be used where the posse comitatus refused to assist the sheriff arrest a fugitive slave. Blaine continued: "If you attempt to seize an illicit distillery, and all the surrounding population feel in regard to that illicit

distillery—and there are some parts of this country where they do feel a good deal that way-just as the people of Boston did about the arrest of fugitive slaves, so that when you call the posse comitatus they are on the side of the illicit distiller, what will you do then?" 185

Supporters of the bill continued to view it as a needed statutory prohibition of what was already basic in the Constitution. In the words of Merrimon, "the Army has been used not once, but time and time again, in a way that not a court in this nation would sanction. The Army has not only been used in collection of the internal revenue in a way not authorized by law, but it has been used and prostituted to control elections repeatedly." 186 "It never was lawful, it never will be lawful, to employ the Army of as a posse comitatus until you destroy the distinction between the civil power and the militiary power in this country," added Senator Hill.187 Thus, the Congress which enacted the Posse Comitatus Act was quite aware that the Act would put an end to use of the Army to raid illegal whiskey distilleries.

Limits Under State Law to Law Enforcement by the Military

The framers of the Posse Comitatus Act were quite aware of explicit prohibitions by the state constitutions of a militarized civil society. The following language of the Virginia Declaration of Rights of 1776, Article XVIII, came to be the prototype of other state bills of rights: "That a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper, natural, and safe Defense of a free State; that standing Armies, in Time of Peace, should be avoided, as dangerous to Liberty; and that, in all Cases, the Military should be under strict Subordination to, and governed by, the civil Power."

The Virginia declaration expressed the revulsion of the colonists to execution of the laws by select militias called out by royal governors as well as by the King's standing army.1 188 The Founding Fathers rejected a select or elite militia, in contrast with a general militia composed of the citizens at large, because the former resembled a standing army, and could advance the arbitrary designs of despots. 189 When the populace at large was ultimately responsible for law enforcement, their refusal to act in support of the sheriff or governor would signify their nonsupport of an unjust law.

Today, most state bills of rights still include language similar to that in the Virginia Declaration quoted above. The original intent of these rarely litigated provisions was to avoid a military execution of the laws. Despite this tradition, the National Guard, a select militia according to the original usage, is currently being used in domestic marijuana eradication efforts.

Recent Abuses

Recent court cases illustrate the abuse and terrorization of civilian populations which inevitably result from military law enforcement. Unlawful policies of California's Campaign Against Marijuana Planting (CAMP) were enjoined in Nationa Organization for the Reform of Marijuana Laws (NORML) v. Mullen. 190 CAMP teams used airplanes and helicopters at low altitudes, thereby invading privacy, disrupting schooling and work, and endangering the public. 191 On the ground, CAMP officers ordered families out of houses, held persons at gunpoint, confiscated registered firearms, and otherwise frightened law-abiding citizens who had noting to do with marijuana.192 Roadblocks and detentions were commonplace. The Court concluded that "the policy, no matter how well-intentioned, gives CAMP personnel virtually unbridled discretion to enter and search private property anywhere in the vicinity of an eradication raid, and to seize personal property and detain innocent citizens without probable cause or even reasonable suspicion of any criminal activity." 193 In William v. Garrett, 722 F. Supp. 254 (W.D. Va. 1989), plaintiffs complained of civil rights violations arising out of Virginia's Marijuana Eradication Program (MEP). Aerial and ground searches of the property revealed only roses and other houseplants, but one of the landowners was held at the point of an M-16 rifle. The court dismissed the action, finding that the state police and Guardsmen defendants were entitled to qualified immunity.

California's major eradication efforts spawned further litigation, and the court upheld a cause of action against constitutional rights violations in Drug Policy Foundation v. Bennett. 194 Defendant included both the U.S. military and the National Guard. Armed men pointed M-16 automatic rifles at several persons not suspected of any wrongdoing, including a 16-year-old girl and a 9-year-old boy. 195 Some of these deadly force displays, the court found, deprived plaintiffs of liberty without due process of law. Fourth Amendment violations were also found. The court held that a private right of damages exists for violation of the Defense Authorization Act (i.e., the limited exception to the Posse Comitatus Act). 19

196

In Puerto Rico (in a program that is promoted as a national model by Rep. Charles Schumer), the National Guard participated in a "task force” in which residents of a public housing apartment were rousted from their beds at two o'clock in the morning by 300 men, all of them heavily armed. The men broke down doors, took over the apartments, and began rummaging through the occupants' belongings. After taking the place over, some of the men began sexually harassing the women, searching through children's lunchboxes, and even inspecting babies' diapers. The Waco Tragedy

Military forces were integral to the Waco disaster.

To procure National Guard helicopters for use in the February 28, 1993 attack on the Mount Carmel Center, BATF falsely told the State of Texas that there was suspicion of drug activity among the Branch Davidians.

Although the National Guard helicopters were claimed to be used only as a "distraction," some witnesses later reported that the roof of the Mount Carmel compound was ripped by gunfire from above, as could be the case only if the helicopters opened fire.

Psychologist Bruce Perry examined the Branch Davidian children who left the compound in the weeks following the BATF raid. One child drew a picture of a house beneath a rainbow. Perry asked, “Is there anything else?" and the child then drew bullet holes in the roof.197 Newsweek magazine reprinted Davidian girl's picture of her home with a dotted roof. “Bullets” the girl explained. 198

Jack Zimmerman, the lawyer for the late Steve Schneider, David Koresh's top aide, visited the compound during the siege. He later testified that he saw many bullet holes in the ceilings with a downward trajectory, indicating that the helicopters had been firing into the compound from above. The BATF stated that the helicopters were simply used as a "diversionary device" during the raid, and no shots came from the helicopters. 199

At least during wartime, there are sound tactical reasons for beginning an assault on a building by strafing the second story roof. The bullets coming through the ceiling will force people on the second floor to retreat to the first floor. It will therefore be easier for assault personnel to enter the second story. In addition, riflemen defending the building against ground attack will be deprived of the advantage of an elevated firing platform.

But strafing a building is not a particularly effective way to rescue children who are thought to be in danger. The second story of the Mount Carmel Center was the living quarters for the women and children; men were not allowed up there.

The Davidians claim that just after Jaydean Wendell fell asleep after nursing her baby, a bullet from a helicopter tore through the ceiling, entered her skull, and killed her. As her last act, she handed her baby to another woman.200 The Treasury Department Report of the Waco incident offers no competing explanation for her death.

On April 19, 1993, military tanks were used in the final assault on the Branch Davidians' home. The tanks broke down walls, and the rubble from the collapsing walls killed several people. Many of the Branch Davidian women attempted to escape from the burning building by fleeing to an underground bus which would have provided safety from the fire. Access to the shelter was blocked by debris from the tank attack.

The tanks were used to insert over 300 rounds of CS chemical warfare agent. CS is so deadly that its use in international warfare was banned by the Paris Convention of 1993, to which the United States is a party. Sadly, the children in the Branch Davidian compound were subjected to a chemical warfare and tank attack that would have violated international law if the victims of the attack had been Iraqi soldiers, rather than American children.

In short, to say that the National Guard, or any other portion of the military, is being used for law enforcement is to indulge in an Orwellian perversion of language. Our highest law is the Constitution, and the Constitution was intended to keep the military out of a domestic policing role.

Remedies to Militarization of Law Enforcement

Several reforms are needed to strengthen the Posse Comitatus Act, which is itself but an expression of Constitutional mandate. Reforms would include:

Repeal of the drug exceptions to the Posse Comitatus Act;

Making knowing violation of Posse Comitatus Act a predicate felony for felony murder;

Creation of a civil cause of action for persons injured by Posse Comitatus Act violations;

Abolition of most federal-state multi-agency law enforcement task forces, particularly those involving the National Guard.

Elimination of the loophole in the Posse Comitatus Act that allows military equipment to be used against American citizens.

Tanks, helicopters, and men pointing automatic rifles at children have no place in a free society. Neither the push to make America a "drug-free" society nor desire to "do something about terrorism should be accomplished at the expense of losing our freedom.

Ultimately, the most important antidote for militarization of federal law enforcement is the same as the antidote for the other federal law enforcement abuses that have terrified so many people. The federal government should get out of criminal issues that it has no authority over in the first place. The Constitution specifically authorizes federal enforcement of only two types of laws, both of which involve uniquely federal concerns. The first authorized federal criminal law enforcement is based on the Congressional power "To provide for the punishment of counterfeiting the securities and current coin of the United States." The counterfeiting enforcement power immediately follows the delegation of Congressional power "To coin money, regulate the value thereof, and of foreign coin.

"201

The second Congressional criminal power involves the power "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Although currency and the high seas clearly involve areas of federal, and not state concern, it is notable that the authors of the Constitution felt a need specifically to authorize Congressional law enforcement regarding these matters. Given the need for specific authorization, it is questionable whether Congress should arrogate to itself vast criminal powers supposedly deriving from the "necessary and proper" clause, the interstate commerce power, or the taxing power. Much of the expansion of federal criminal power has taken place as a result of an excessive judicial deference to Congress' proclivity for reading the interstate commerce power as a general grant of legislative authority on any subject.

Most of the federal government's criminal law jurisdiction is built on an intellectual foundation of sand which will, perhaps, one day be swept away by jurists committed to the text of the Constitution rather than to the political trends of the day,202

ANTITERRORIST AGENDA

There is no evidence that any of the repressive proposals discussed above would have prevented the Oklahoma City bombing. To use the bombing as a pretext for new laws which endanger traditional American freedoms is highly inappropriate. Rather than infringing on Constitutional rights, there are two simple steps which could significantly reduce future terrorism. First, the President should announce that whenever it is determined that a foreign government has perpetrated a terrorist attack against Americans, either in America or abroad, the United States will retaliate personally against the head of the foreign government. After the Reagan administration attempted to kill Libya's Mohammer Khaddafi with a bombing raid, Libyan terrorism is said to have diminished. The state sponsors of terrorism, including Syria and Iran, are well-known. They should no more enjoy immunity for their murderous conspiracies than any other murderer should.

Second, grandiose plans for "one thousand new FBI agents" to fight terrorism are as politically transparent as the previous promises of "100,000 new cops on the streets." Rather than further inflating the already bloated federal criminal justice establishment, additional antiterrorism resources can be found by reassigning FBI (and other federal) agents who are currently assigned to matters which have no real connection to legitimate federal concerns, such as child support enforcement, obscenity cases, and non-interstate drug cases.

CONCLUSION

"Those who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety," observed Benjamin Franklin. In the case of many current repressive proposals aimed at terrorism, America may not even get more safety in exchange for significantly less freedom. Everything that terrorists do is already illegal. Current laws already provide ample authority for investigations of potential terrorists, including persons who have done nothing more than talk big. Various proposals that are offered as supposed solutions to terrorism-including more spying on peaceful dissidents, more electronic surveillance, trials with secret evidence, felonizing charitable donations to foreign humanitarian causes, and federalizing and militarizing criminal law-will make America more dangerous, not safer. Releasing the federal government from the rule of law would be a Faustian bargain even if

terrorism were wiped out. Given the irrelevance of repressive legislation to genuine counter-terrorism, future generations may look back in dismay at officials who want to sell the birthright of all Americans for a mess of pottage.

FOOTNOTES

1. Herbert McClosky & Alida Brill, Dimensions of Tolerance: What Americans Believe About Civil Liberties (N.Y.: Russell Sage Foundation, 1988). Research assistance for this testimony was provided by Chris Little and Scott Hattrup.

2. "It established some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin, Congressman and Cabinet officer of the early American Republic, quoted in Richard E. Gardiner, ""To Preserve Liberty": A Look at the Right to Keep and Bear Arms," 10 Northern Kentucky Law Review 63, 79n. (1982).

3. Roger Daniels, Prisoners Without Trial.

4. American Civil Liberties Union, Americans for Tax Reform, American Friends Service Committee, American Immigration Lawyers Association, Center for Democracy and Technology, Citizens Committee for the Right to Keep and Bear Arms, Gun Owners of America, Law Enforcement Alliance of America, National Association of Criminal Defense Lawyers, National Rifle Association of America, Presbyterian Church (SA) Washington Office, Second Amendment Foundation, Open Letter to President Clinton and Congressional Leadership: a Joint Letter from a Coalition of Diverse Organizations Concerned about Civil Rights, Apr. 26, 18995.

5. Martin Van Creveld, Technology and War: From 2000 BC to the Present (N.Y.: Free Press, 1989), p. 306.

6. Associated Press, Apr. 28, 1995 (Washington).

7. Center for National Security Studies, Misleading "Fundings" in Clinton Terrorism Bill (Wash., Feb. 22, 1995), p.1.

8. Misleading "Findings", pp. 1–2.

9. Source for table: FBI data, reported in Misleading "Findings".

10. Hillyard and Percy-Smith, pp. 257-58, 272; Ewing and Gearty, p. 216. The Irish Bishops' Commission for Prisoners distributes a leaflet to Irish emigrants to Britain, warning young people that if arrested, they should expect "rough, accusational anti-Irish treatment” and should be prepared for “disorientation resulting from solitary confinement . . . and lack of contact with anyone except the police." The leaflet advises Irish to "sign nothing" without first consulting a lawyer. Mary Holland, “Ireland Laments Her Innocents Imprisoned Abroad,” Observer, October 22, 1989. p. 2.

11. Hillyard and Percy-Smith, p. 273; Regina v. Secretary of States for the Home Department, ex parte Stitt, reported in The Times, February 3, 1987 (Divisional Court ruling that requiring reasons for exclusion "would be fraught with difficulty and danger"), quoted in Ewing and Gearty, p. 217.

12. Brogan v. United Kingdom (1989), 11 European Human Rights Reporter 117 (12-7 vote).

13. Kevin Dawson, "Pressure Mounts to Reopen Birmingham Case," The Sunday Tribune, October 22, 1989, p. A15; James Carvel, "PM Clings to Detention Powers," The Guardian, October 21, 1989, p. 1.

14. Barry James, “Justice in England Undergoes Stress," Los Angeles Times, April 7, 1985 (United Press International). The "five techniques" were condemned by the European Court of Human Rights as inhuman and degrading. Ireland v. United Kingdom (1978) 2 European Human Rights Reporter 25.

15. Campbell, p. 35. The ban on the use of voices of Irish nationalists was dropped after Prime Minister Thatcher left office. Serge Schemann, “Overseas, Oklahoma City Bombing is Seen through Prism of Experience," N.Y. Times, Apr. 30, 1995., p.

28.

16. Labour Member of Parliament Ken Livingstone denounced the plan to "prevent access to radio and TV by those who are critical of government policy in Ireland." On the other hand, South African President P.W. Botha applauded the move, and suggested that South Africa emulate the British plan. Campbell, p. 35.

17. Ewing and Gearty, p. 248, citing Independent, November 11, 1988; February 13, 1989.

18. Duquesne and Goodman, p. 26, citing Interception of Communications Act, July 25, 1985. American wiretaps authorize only the recording of conversations regarding the subject of the tap. British wiretappers are required to record all conversations on the tapped line. Ewing and Gearty, p. 70.

19. §3(1); Campbell, p. 37.

20. Firearms Act, 1982; "Carry on Squirting," New Law Journal 133 (1983): 989.