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Remote Sensing and Posse Comitatus

by Blake Hemphill

This post is part of the student blogger project from the summer session of Space Security Law.

Blake Hempill is a native Mississippian and rising 2L. He intends to enter the field of Entertainment Law.

While last week I took a look at remote sensing in general use, this week I will take a closer look at the problems connected with the federal government’s use of it in connection with the Posse Comitatus Act. The Posse Comitatus Act is a law developed out of the aftermath of Southern Reconstruction after the American Civil War. Its passage stems from a compromise between Republicans and Southern Democrats to concede the 1876 Presidential election to the Republican candidate, Rutherford B. Hayes, after Democratic candidate, Samuel Tilden, lost the fight for 20 disputed electoral votes giving Hayes a one electoral vote victory. To end the controversy surrounding the election, the Republican leadership promised to remove the remaining federal troops from the South in exchange for the Democrats acknowledgement of Hayes as the victor. This led to the passage of the Posse Comitatus Act to limit the use of the army in the enforcement of state and local laws, and in local law enforcement from seeking their assistance or resources.

It’s this second point that is at most contention when it comes to the area of remote sensing. With the increasing prevalence of drugs in society came a bigger push by the governments, both state and federal, of the United States to try to combat them. This fight obviously leads to the problem of resources, and how local and state governments could keep up with what is needed to actually be able to carry out searches and make arrests. As the last blog post showed, the way these searches are best carried out is through aerial surveillance, incorporating technology that smaller governments simply can’t afford. It is here that the federal government has made the argument of the drug trade being an issue of national security, allowing army resources to be involved in the fight.

As the boundaries of the law were still very much up for debate, Congress began making concessions to allow for an increased presence of military activity in the specific area of drug enforcement. Its use of the existing law to work around, however, has made the efforts to advance the fight even more convoluted, causing the question of where the line should be clearly drawn to continue to be a major issue and even more confusing than before. It is this kind of morphing of the law that has led to the military testing the boundaries of what is and is not within its abilities even further.

This new boundary test is most evident with the use of drone tests over civilian populations (Steve Clemons, Air Force Drones Trail Civilian Auto Traffic in New Mexico, The Atlantic). While the military is merely doing testing with the drones, their use of them over civilian traffic within United States borders could very well constitute a violation of both the spirit of the Fourth Amendment of the Constitution and the Posse Comitatus Act. There’s no clear police action in these cases, but the targeting of civilian vehicles to test a drones tracking capabilities seems to fall into the category of an invasion of privacy, and can lead to a slippery slope of their use on a wider scale for actual police action.