Major
Craig T. Trebilcock, U.S. Army Reserve
October 2000
Major
Craig Trebilcock is a member of the Judge Advocate Generals Corps in the |
The
Posse Comitatus Act has traditionally been viewed as a major barrier to the
use of
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
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.
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
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
The use of the military in opposing drug smuggling and illegal immigration was a
significant step away from the acts 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.
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
Congress
has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes:
Federal
military personnel may also be used pursuant to the Stafford Act,
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 presidents 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 presidents 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 divertedfrom 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
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 militarys 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
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
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. ByDoD 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 toTitle 10. It does not include the Coast Guard or the National Guard operating in state-controlledTitle 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).
[9] Pursuant to this mission, theUSS 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 assetUSS Kidd then fired on the smugglers ship, rendering it immobile and leading to its seizure, along with900 bales of marijuana.
[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.