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Comment by derektank | Hacker News Reader

National guard members are subject to the restrictions imposed by Posse Comitatus when on Title 10 orders. National Guard members can only perform domestic law enforcement duties when under the command of a state's governor and TAG.

Putting active duty military members on Title 10 orders, such those of the 82nd Airborne Division which reporting indicates Trump also wanted to use in 2020, would also be an obvious violation of Posse Comitatus if those troops were used to arrest, surveil, or otherwise control protestors. Active duty troops may perform in a supporting function for domestic law enforcement, such as by providing engineering, logistics, or communications to law enforcement, which is what US troops do when they're on the border (or when they are supporting counter-smuggling operations).

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If the Roman Senate's law says the army can't cross the Rubicon river, and anyone who does lead an army across will be executed - then that's the law.

But if an army actually crosses the Rubicon? Turns out that law doesn't count for much when the other guy has an army, and all the senators have to flee the country.

Then the guy with the army is in charge. He can retrospectively legalise his actions, grant himself a pardon, and fill recently-vacated positions of power with allies who'll sign it all off.

So while the exact details of "Title 10" and "Posse Comitatus" are very important to an army before they cross the Rubicon - if they do cross the Rubicon the law will suddenly turn out to be far more flexible than anyone expected, and it'll turn out their actions were legal after all.

You are making an important and fatal mistake: you are confusing law and power.

Caesar's civil war was illegal under the laws of the Roman Republic. Caesar successfully took power, so there was no one to enforce those laws, but he did break them, and ultimately, the Republic. As far as I know Caesar never even bothered legitimizing his war or self-pardoning - he didn't need to, he won and the Senate made him dictator for life.

> So while the exact details of "Title 10" and "Posse Comitatus" are very important to an army before they cross the Rubicon - if they do cross the Rubicon the law will suddenly turn out to be far more flexible than anyone expected, and it'll turn out their actions were legal after all.

This is very important: only if they win will their illegal actions go without punishment, and winning is not guaranteed.

There is a reason we generally prefer the rule of law to the rule of power.

I don't think michaelt was confused; I think he was making the exact point that you are.

The Insurrection Act[1] is still in force. The President can legally suspend Posse Comitatus with a simple proclamation and then he can use federalized Guard or regular troops to enforce law as he pleases.

Article II and Congress have invested absolutely vast powers in the Presidency. The main check on their exercise is not Congress, or the Judiciary, or even the Deep State, but rather just traditions. Unfortunately, both parties have been attenuating those traditions for many administrations.

I don't think we're going to see the US government morph, Roman style, into a new form of government that's only nominally a republic. I think it's already happened quite some time ago. And just like in ancient Rome, most people have no idea it happened, because it will continue to use the same legal structure, just applied in new and interesting ways.

What we're seeing now is the struggle between two factions of the elites over who controls this new system.

[1] https://en.wikipedia.org/wiki/Insurrection_Act_of_1807

> National guard members are subject to the restrictions imposed by Posse Comitatus when on Title 10 orders.

True.

> National Guard members can only perform domestic law enforcement duties when under the command of a state's governor and TAG.

False. Posse Comitatus (18 USC Sec. 1385) does not prohibit the military (including the National Guard when called into federal service) from being used for domestic law enforcement, it prohibits that from being directed by those without specific authority in the Constituton or act of Congress to do so. The Insurrection Act provides authority to the President to do so, either at the request of state governments (10 USC Sec. 251) or on his own unilateral determination of necessity (10 USC Sec. 252, 253).

It's probably a common blindspot for people on HN to think in technical terms like this of what is and isn't permitted. But it comes down to people who are armed and emotional.

I'm sorry, you're saying military commanders and judge advocates knowing and understanding the bounds of their authorities are mere technicalities?

This "armed and emotional" bit gives off some real "I never served and don't understand the military as much as I think I do" vibes.

> you're saying military commanders and judge advocates knowing and understanding the bounds of their authorities are mere technicalities

Yes, I'm saying that given the right circumstances what is legal on paper does not matter in the real world.

> This "armed and emotional" bit gives off some real "I never served and don't understand the military as much as I think I do" vibes.

I have never served but I have read history books. This isn't a pure hypothetical: these things have happened before, there are examples going back as far as you would like. My sibling comment even expanded on one of these.

> I'm sorry

If you're sorry then I think it would have been possible to edit your comment not to have the tone of personal insult.

I think it took the tone of an insult partly because "armed and emotional" comes off as a huge insult to our military leadership. There's probably nothing more important to being a great military leader than the ability to keep a cool head in the midst of trying and even horrifying situations. I would guess there is a point of pride in doing that which was being assailed in your comment.

> "armed and emotional" comes off as a huge insult

Care to explain how having weapons or emotions is insulting? Everyone serving in the military is a human and humans have emotions. There's no shame in that and I think it requires quite a mean spirited mis-reading of what I said to take that from it.

> the ability to keep a cool head in the midst of trying and even horrifying situations

I think we're in agreement, you just have a different idea of what it means to be emotional. The desire to maintain a cool head in the face of horror is based in emotion. The effect of keeping a cool head might be exactly the reason why the technicalities of legality break down.

All that said we also have to remember that not everyone serving is a "great military leader" and that's also part of the point at hand.

This is getting a bit silly, but I'll try again.

> it comes down to people who are armed and emotional.

This implies that real people are making emotional decisions instead of guided by reason.

> technical terms like this of what is and isn't permitted

These technical terms that you are discounting are some of the real weapons that human beings use to give them options beyond simply following orders that they disagree with.

This is an incredibly nuanced topic, and to reduce it to people making "armed and emotional" decisions shows a lack of appreciation for what people try to do in difficult situations.

Again, your position is based on a disdain for emotion and a preference for "reason.' This is not a position I share, we are not Vulcans. I see no shame in recognising the emotional nature of our fellow actors.

I would point out the humour in an emotional reaction to my choice of words derailing the conversation but the realisation that there are people who believe their "great military leaders" are somehow "above" emotions and that this is a good thing is genuinely terrifying

Nobody is saying emotions don't exist. But I, like many others, believe that our ability to choose our reactions based on reason rather than emotion is what separates us from animals. We don't always succeed, but this is why your unevidenced claim implying that emotion is the primary driver of decision making has ruffled feathers.

People including myself have emotional reactions, but I choose to respond with a reasoned explanation, and I certainly wouldn't engage in violence with you over it, even if a portion of my lizard brain demanded that I should.

> unevidenced claim implying that emotion is the primary driver of decision making

You've added the words "primary driver" here yourself, I never made such a claim. But I hope you can see that not only that leap but also your desire to overcome your "animalistic" emotions are both rooted in emotion.

I won't waste my time looking for evidence for a claim I didn't make and I don't think it's up for debate that the majority of people in the armed forces are "armed and emotional." But in terms of the original claim that checks and balances only serve up to the point of human failure I could point to any number of examples and would repeat the fact that others have raised some in this thread.

It also would have been possible for you to not claim that military servicemembers are not in control of their emotions, and that this may make them present a danger to others by misusing their weapons.

But you did claim that, or at least imply it, so here we are.

Then it seems you are not sorry. Either way, it would have been absurd for me to ignore the humanity of the people I share the world with, especially given the ample amount of examples of military men being lost in their emotions.

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