US Legal Titles for Military and Police · 10:57pm Jul 11th, 2019
Too many laws to discuss, so here I'll focus on just a handful because they're the most relevant for my writing.
The United States Code (hereafter USC) is the sum total of all the federal laws of the United States. When someone says "I'm going to throw the book at you," this is that book. It contains 53 titles. Each addresses some aspect of federal policy. The entire USC is approximately 22 million words.
The most important two titles of the USC relevant to the military are 10: Armed Forces, and 50: War and National Defense. 10 is one of the biggest titles by length, whereas 50 is fairly average. 10 is divided into sections for each department of the military, while 50 is divided into more than 40 chapters related to some aspect of the military as a whole.
So why two titles? What's the difference?
Broadly, 10 covers warfighters, while 50 covers everyone else. A big part of that everyone else is the intelligence community, which is the cause of most of the debate, confusion, and controversy.
If you're versed in the laws of war, you know that military members exist to fight external threats and must be designated, uniform-wearing forces. On the other hand, spies exist in a covert capacity, do not wear uniforms, and therefore have no protections under the laws of war. Of course, covert spies are only one facet of intelligence organizations. In fact, many times intelligence is actually being collected by uniformed military members aboard marked ships and aircraft. Despite this, and more to the point of Title 50, many intelligence organizations in the US are ostensibly civilian-run. I say ostensibly because many of them wind up staffed by military members, further tying 10 and 50 together.
The bin Laden raid was hyped as a Title 50 operation. In that context, it meant that it was run by the CIA. Yes, the military could have done it. Yes, it was military members that actually went in and shot him. But under Title 50 authority, it was not the military but another organization that was the head of the operation.
The 10/50 debate is long and heated, and with new authorities being developed for new warfare areas such as cyberspace and drones, will continue to be contentious.
How does the CIA control military members on raids? For that matter, how do organizations like NSA, NRO, and NGA wind up at least partially staffed by the military?
It is not uncommon for dissimilar organizations to borrow each other's authorities. For example, the US military is not allowed to conduct law enforcement, so Coast Guard personnel deploy aboard a Navy ship, enabling it to hunt drug smugglers under Coast Guard law enforcement authority. For another example, in the movie Sicario, a CIA group added an FBI agent in order to operate inside the United States under the FBI's law enforcement authority.
Sidebar: The Posse Comitatus act says that the federal government may not use the Army to enforce policy within the US. It was intended to limit the government's power and avoid martial law. Yes, technically this means they could just use the Navy instead, but it's implied to apply to the whole military.
Another part of limiting federal power is intelligence oversight. Just as the military may not enforce laws, the intelligence community may not spy on American citizens. Both must be focused on foreign adversaries, leaving domestic affairs to law enforcement and homeland security.
Yes, these rules may have been broken in the past, but they do at least exist.
So as discussion turns domestic, this leads to law enforcement titles of the USC. 18: Crimes and Criminal Procedure, 28: Judiciary and Judicial Procedure, and 34: Crime Control and Law Enforcement. Each has a role in aspects of what constitutes a crime, how police arrest suspects, and how trials are run.
Title 6 covers domestic security, which is similar but distinct from criminal law. The Department of Homeland Security is here. The Coast Guard falls under DHS, but also has its very own title, 14, and has authorities inside 33: Navigation and Navigable Waters. Despite being one of the United States armed forces, the Coast Guard is not a branch of the military aimed at foreign adversaries. It mostly exists to enforce laws within the US territorial seas. In times of war, the Coast Guard can be pulled under the Navy to operate with military authority.
Title 32: National Guard deserves a note. A National Guard force is owned by its respective state, and can be mostly used as the state governor sees fit, to include law enforcement. The force can also be loaned to the federal government where it will then operate under Title 10 authority.
Other titles add additional complexity, for example at a foreign embassy where you might have a bunch working at once:
This blog may be somewhat incoherent, but is as proper of a summary as I can give out of 22 million words.
TL;DR-
The military cannot enforce laws
The military and intelligence community cannot operate inside the US
There are generally legal exceptions or workarounds for everything
Don’t forget the ever changing regulatory nightmare of USC 922.
Granted that’s gun laws, but still a horrifying mess that’s the bane of my existence.
The one that sticks out to me is just moving more people to the departments that are allowed to do what you want them to, which in this case would mean away from the military.
Also, headcanon time: Commissioner Gordon technically succeeded in purging the Gotham Police Department of corrupt elements, but this left them critically and permanently understaffed because it's still, y'know, Gotham. Not enough honest folk there for a game of bridge, much less a police force. As such, they're willing to collectively turn a blind eye to vigilantism as long as it sticks to essentially police work of stopping crimes and apprehending criminals; the rest of the legal system is not short on manpower, and will not tolerate those attempting to replace or circumvent them. (As an explanation for why Batman doesn't kill people, this is really just an extended version of Gordon's own statement of what would convince him to hunt down the Bat)
I enjoyed this.