The Myth Of Posse Comitatus
10-11-2006, 10:36 AM
The Myth Of Posse Comitatus
The Myth of Posse Comitatus
Major Craig T. Trebilcock, U.S. Army Reserve
The Posse Comitatus Act has traditionally been viewed as a major barrier to the use of U.S. military forces in planning for homeland defense. In fact, many in uniform believe that the act precludes the use of U.S. military assets in domestic security operations in any but the most extraordinary situations. As is often the case, reality bears little resemblance to the myth for homeland defense planners. Through a gradual erosion of the acts prohibitions over the past 20 years, posse comitatus today is more of a procedural formality than an actual impediment to the use of U.S. military forces in homeland defense.
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. 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. The National Guard, when it is operating in its state status pursuant to Title 32 of the U.S. Code, is not subject to the prohibitions on civilian law enforcement. (Federal military forces operate pursuant to Title 10 of the U.S. Code.) In fact, one of the express missions of the Guard is to preserve the laws of the state during times of emergency when regular law enforcement assets prove inadequate. It is only when federalized pursuant to an exercise of presidential authority that the Guard becomes subject to the limitations of the Posse Comitatus Act.
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. 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.
The Posse Comitatus Act was passed in the 19th century, when the distinction between criminal law enforcement and defense of the national borders was clearer. Today, with the advent of technology that permits weapons of mass destructionchemical, biological, or nuclear weaponsto be transported by a single person, the line between police functions and national security concerns has blurred. As a matter of policy, Western nations have labeled terrorists criminals to be prosecuted under domestic criminal laws. Consistent with this, the Department of Justice has been charged as the lead U.S. agency for combating terrorism. However, not all terrorist acts are planned and executed by non-state actors. Terrorism refers to illegal attacks on civilians and other nonmilitary targets by either state or non-state actors. This new type of threat requires a reassessment of traditional military roles and missions along with an examination of the relevance and benefits of the Posse Comitatus Act.
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 20 years has been to involve the Navy and Air Force in the war on drugs. Recognizing the inability of civilian law enforcement agencies to interdict the smuggling of drugs into the United States by air and sea, the Reagan Administration directed the Department of Defense to use naval and air assets to reach out beyond the borders of the United States to preempt drug smuggling. This use of the military in antidrug law enforcement was approved by Congress in 10 U.S.C., sections 371381. This same legislation permitted the use of military forces in other traditionally civilian areasimmigration control and tariff enforcement.
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 16-year-old shepherd fired his weapon in the direction of the marines. Return fire killed the boy. This tragedy demonstrates that when armed troops are placed in a position where they are being asked to counter potential criminal activity, it is a mere semantic exercise to argue that the military is being used in a passive support role. The fact that armed military troops were placed in a position with the mere possibility that they would have to use force to subdue civilian criminal activity reflects a significant policy shift by the executive branch away from the posse comitatus doctrine.
Congress has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes: 10 U.S.C., sections 331334. These provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. In case of civil disturbance, the president must first give an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles race riots of the early 1990s.
Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant exception to the Posse Comitatus Acts underlying principle that the military is not a domestic police force auxiliary.
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.
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 U.S. Office of Technology Assessment states that 100 kilograms of dry powdered anthrax released under ideal meteorological conditions could kill up to three million people in a city the size of Washington, DC. The chemical warfare attacks carried out by Japanese terrorists in the subways of Tokyo during the 1990s heightened our sense of vulnerability. The Oklahoma City bombing and the unsuccessful attempt to topple the World Trade Center have our domestic security planners looking inward for threats against the soil of the United States from small but technologically advanced threats of highly motivated terrorists. What legal bar does the Posse Comitatus Act present today to using the military to prevent or respond to a biological or chemical attack on the soil of the United States? In view of the erosion of the Posse Comitatus Act in the past 20 years, the answer is not much.
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 10 U.S.C., 331334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the acts erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.
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 20 years strongly indicate that it does not. Could anyone seriously suggest that it is appropriate to use the military to interdict drugs and illegal aliens but preclude the military from countering terrorist threats that employ weapons of mass destruction? For two decades the military has been increasingly used as an auxiliary to civilian law enforcement when the capabilities of the police have been exceeded. Under both the statutory and constitutional exceptions that have permitted the use of the military in law enforcement since 1980, the president has ample authority to employ the military in homeland defense against the threat of weapons of mass destruction in terrorist hands.
Click on an endnote number to return to the article.
 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 both18 U.S.C. 1385.
 The act as originally passed referenced only limitations upon the Army. After World War II, it was amended to include the Air Force. By DoD Directive 5525.5, the limitations of the act have been administratively adopted to apply to the Navy and Marine Corps as well.
 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.
 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 to Title 10. It does not include the Coast Guard or the National Guard operating in state-controlled Title 13 status.
 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.
 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).
 United States v. Red Feather, 392 F. Supp. 916 (DC SD 1975).
 Pursuant to this mission, the USS 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 asset USS Kidd then fired on the smugglers ship, rendering it immobile and leading to its seizure, along with 900 bales of marijuana.
 Business, Capitol Hill Question Militarys Role in Olympics, Defense Week, 22 July 1996.
 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.
 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.
10-11-2006, 10:48 AM
The Myth Of Posse Comitatus
The Posse Comitatus Act and Homeland Security
John R. Brinkerhoff
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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.
-Title 18, U.S. Code, Section 1385
The quotation above is the much-discussed Posse Comitatus Act in its entirety. That is it! That is all there is to it. Seldom has so much been derived from so little. Few articles written about the act and its implications cite the law as it is written, leading one to believe that the authors have never taken the trouble to go to the U.S. Code and see for themselves or to look up the legislative history of the act or to read the exceptions in the law. As a result, much of what has been said and written about the Posse Comitatus Act is just plain nonsense.
The Posse Comitatus Act is often cited as a major constraint on the use of the military services to participate in homeland security, counterterrorism, civil disturbances, and similar domestic duties. It is widely believed that this law prohibits the Army, Navy, Air Force, and Marine Corps from performing any kind of police work or assisting law enforcement agencies to enforce the law. This belief, however, is not exactly correct.
What is correct is that new rules are needed to clearly set forth the boundaries for the use of federal military forces for homeland security. The Posse Comitatus Act is inappropriate for modern times and needs to be replaced by a completely new law.
The law was enacted originally on 18 June 1878. It was amended in 1959 to make it applicable to Alaska. It was amended in 1994 to remove an upper limit of $10,000 on the fine that was in the original act. As shall be noted later, in recent years Congress has enacted other laws that specify when the Posse Comitatus Act does not apply.
The biggest error is the common assertion that the Posses Comitatus Act was enacted to prevent the military services (Army, Navy, Air Force, and Marine Corps) from acting as a national police force.
Colonel Richard Hart Sinnreich, in an otherwise admirable piece, opined thusly in an article in the 12 December 2001 Washington Post:
The American aversion to a military gendarmerie was formalized after Reconstruction in the Posse Comitatus Act of 1878, which severely restricts the use of active military forces in domestic law enforcement.
Reconstruction was the 12 years from 1865 to 1877 when the U.S. Army occupied the defeated Southern states. Major Craig T. Trebilcock, U.S. Army Reserve, in his Journal of Homeland Security article The Myth of Posse Comitatus, does a good job at pointing out that the use of military personnel to enforce the law is in fact allowable, but makes a mistake when he says:
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.
Another gross misinterpretation of the Posse Comitatus Act was made on 13 December 2001 in the Washington Times, which reported that Provost Marshal William J. Bolduc of the Walter Reed Army Medical Center reduced the police powers of the civilian police force at that facility because they were bound by the Posse Comitatus Act. The story said:
The Posse Comitatus Act of 1878 prohibits members of the U.S. armed forces or employees of the U.S. military from enforcing laws on civilians [emphasis added].
Sinnreich, Trebilcock, Bolduc, and most commentators who opine on this law are wrong. The Posse Comitatus Act was not, as they assert and as most people believe, enacted to prevent members of military services from acting as a national police force. It was enacted to prevent the Army from being abused by having its soldiers pressed into service as police officers (a posse) by local law enforcement officials in the post-Reconstruction South.
The Story of the Posse Comitatus Act
The law was enacted as a result of the election of 1876, which was the event that ended the period of Reconstruction after the Civil War. The law was enacted to overturn an 1854 opinion of the attorney general. The story is bound up with the conflict within the United States about slavery and the Union.
The posse comitatus doctrine comes from English common law. Posse comitatus means, literally, the force of the county; the posse comitatus is that body of men above the age of 15 whom the sheriff may summon or raise to repress a riot or for other purposes. 
In 1854, Caleb Cushing, attorney general for President Franklin Pierce, blessed the posse comitatus doctrine and opined that marshals could summon a posse comitatus and that both militia and regulars in organized bodies could be members of such a posse.  This was done to improve the enforcement of the Fugitive Slave Act of 1850. Among other things, this meant that the United States was responsible for expenses incurred by U.S. marshals in employing local police, state militia, or others in apprehending and safeguarding fugitive slaves. The Cushing Doctrine meant that even though the armed forces might be organized as military bodies under the command of their officers, they could still be pressed into service by U.S. marshals or local sheriffs as a posse comitatus without the assent of the president. This doctrine was merely the opinion of the attorney general and was not subjected to judicial or legislative review prior to its enunciation. The Cushing Doctrine encouraged the use of the Army and Navy as police forces, and it was used widely in the West, where the Army was the only armed force available to assist local officials to enforce the law along the turbulent frontier. It had little effect in the South during the period before the Civil War and came into prominence there only during Reconstruction.
During Reconstruction, the Army exercised police and judicial functions, oversaw the local governments, and dealt with domestic violence. In effect, the Army governed the 11 defeated Confederate States and was the enforcer of national reconstruction policy during all or part of the period. Before the Civil War, the militia under state control was used to control local disorders throughout the United States, but during Reconstruction, there was no effective militia in the defeated states, so the Army protected the people (especially the newly emancipated slaves) and dealt with disturbances.  This use of the Army was validated by the Civil Rights Act of 1866, which empowered U.S. marshals to summon and call to their aid the posse comitatus of the counties, or portions of the land or naval forces of the United States, or of the militia. As the former Confederate States were readmitted to the Union, the status of the Army changed, but its role remained much the same.
After 1868, when all but three of the Southern states had reentered the union, the problem became one of how to obtain assistance from the Army to enforce the law.  In response to a desperate plea from a U.S. marshal in Florida, the Attorney General of the United States, William M. Evarts, cited the posse comitatus doctrine that gave U.S. marshals and county sheriffs the right to command all necessary assistance from within their districts, including military personnel and civilians, to serve on the posse comitatus to execute legal process.  Evarts' decision led to numerous requests by marshals and county sheriffs for troops to use in enforcing the law, all without presidential approval. This met with some resistance from the Army, and the War Department said that the obligation of individual officers and soldiers to obey the summons of a marshal or sheriff must be held subordinate to the paramount duty as members of a permanent military body. The troops were to act only in organized units under their own officers and would obey the orders of those officers. 
In 1871, President U. S. Grant sought to provide a basis for the use of troops other than posse comitatus. In accordance with Grant's policy, the War Department issued general orders saying that the forces of the United States may be committed and shall be employed to assist the civil authorities in making arrests of persons accused of crime, preventing the rescue of arrested persons, and dispersing marauders and armed organizations.  By the end of Grant's second term, the South was ready and able to end U.S. Government control over their states.
In the election of 1876, the Democratic candidate, Samuel J. Tilden, won a majority of the popular vote, but the Republican candidate, Rutherford B. Hayes, ended up with a majority of one vote in the Electoral College. The election was disputed and finally determined by a deal in which Tilden would concede the election if Hayes agreed to end Reconstruction. Accordingly, Reconstruction ended in 1877 with the inauguration of Hayes as the 19th president. Federal troops in the South were no longer used to enforce the law, and the Southerners became masters in their own states for the first time since the end of the Civil War.
Congress passed the Posse Comitatus Act in 1878 in a dispute over the use of federal troops by U.S. marshals in the South. Based on precedent, Attorney General Charles Devens took the position that the U.S. Judiciary Act of 1789 authorized U.S. marshals to raise a posse comitatus comprising every person in a district above 15 years of age, including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a Sheriff or Marshal. However, Congress had become disenchanted with the habit of U.S. marshals and sheriffs to press Army troops into their service without the approval of the commander in chief. The Southerners in particular questioned this policy. Ironically, the posse comitatus doctrine had been postulated in 1854 by Attorney General Cushing to help Southerners enforce the Fugitive Slave Act. Now it was being used to contest the Ku Klux Klan. On 27 May 1878, Representative J. Proctor Knott of Kentucky introduced an amendment to the Army appropriations bill; the amendment eventually became the Posse Comitatus Act. In passing the act, the Congress voted to restrict the ability of U.S. marshals and local sheriffs to conscript military personnel into their posses. They did not vote to preclude the use of troops if authorized by the president or Congress.
Somehow, in the past 125 years, the meaning of the Posse Comitatus Act has been stood on its head. Clearly the exposition above demonstrates that the intent of the act was not to preclude the Army from enforcing the law but instead was designed to allow the Army to do this only when directed to do so by the President or Congress. The official history of the use of the military services to enforce the laws says:
Some of those who opposed it [the Posse Comitatus Act] in the Congress charged that [it] was taking away from the president entirely the power to use troops to repress internal disorders except on request of a state governor or legislature, that President Washington could not even had dealt with the Whiskey Rebellion under its terms. This interpretation of the Posse Comitatus Act has often been raised by those protesting against federal troops intervention in the many instances it has occurred since 1878. And indeed the question of what the real meaning of the Posse Comitatus Act was has been the subject of some dispute ever since its passage however ... all that it really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general, and one that had never been tested in the courts. The president's power to use both regular and military remained undisturbed by the Posse Comitatus Act, and by the law of 1861 and the Ku Klux Klan Act that had in fact been substantially strengthened during the Civil War and Reconstruction Era. But the posse Comitatus Act did mean that troops could not be used on any authority than that of the President and that he must issue a cease and desist proclamation before he did so. Commanders in the field would no longer have any discretion but must wait for orders from Washington.
The immediate impact of the Posse Comitatus Act was not felt very much in the Southern states because President Hayes had withdrawn the troops that had been occupying them. However, there was great impact in the West, where the Cushing Doctrine had been used a great deal by marshals and local sheriffs to call on local military commanders for assistance. Having to wait for presidential approval before troops could be used was disadvantageous given the turbulence common on the frontier. 
The Effect of the Posse Comitatus Act
Before speculating on why this act is so misunderstood, it is useful to spell out exactly what the act as it is written does and does not do. The Posse Comitatus Act
* Applies only to the Army, and by extension the Air Force, which was formed out of the Army in 1947.
* Does not apply to the Navy and Marine Corps. However, the Department of Defense has consistently held that the Navy and Marine Corps should behave as if the act applied to them.
* Does not apply to the Coast Guard, which is part of the Department of Transportation and is both an armed force and a law enforcement agency with police powers.
* Does not apply to the National Guard in its role as state troops on state active duty under the command of the respective governors.
* May not apply to the National Guard (qua militia) even when it is called to federal active duty. The Posse Comitatus Act contains no restrictions on the use of the federalized militia as it did on the regular Army.  It is commonly believed, however, that National Guard units and personnel come under the Posse Comitatus Act when they are on federal active duty, and this interpretation is followed today.
* Does not apply to state guards or State Defense Forces under the command of the respective governors.
* Does not apply to military personnel assigned to military police, shore police, or security police duties. The military police have jurisdiction over military members subject to the Uniform Code of Military Justice. They also exercise police powers over military dependents and others on military installations. The history of the law makes it clear that it was not intended to prevent federal police (for example, marshals) from enforcing the law.
* Does not apply to civilian employees, including those who are sworn law enforcement officers. The origin and legislative history of the act make it clear that it applies only to military personnel. In those days, there were no civilian employees of the Army in the sense that there are today. In particular, no one envisioned that the Army would hire civilian police officers to enforce the laws at its facilities.
* Does not prevent the President from using federal troops in riots or civil disorders. Federal troops were used for domestic operations more than 200 times in the two centuries from 1795 to 1995. Most of these operations were to enforce the law, and many of them were to enforce state law rather than federal law.  Nor does it prevent the military services from supporting local or federal law enforcement officials as long as the troops are not used to arrest citizens or investigate crimes.
In recent years, several laws have been enacted that grant specific exceptions to the application of the Posse Comitatus Act.
Title 18 U.S. Code, Section 831, provides that if nuclear material is involved in an emergency, the Secretary of Defense may provide assistance to the Department of Justice, notwithstanding the Posse Comitatus Act.
Title 10 U.S. Code, Chapter 18, authorizes military support for civilian law enforcement agencies for counterdrug operations and in emergencies involving chemical or biological weapons of mass destruction. The Secretary of Defense may provide information, allow the use of military equipment and facilities, train law enforcement officials in the operation and maintenance of military equipment, and maintain such equipment. Support for law enforcement agencies may not impair military readiness, and military personnel shall not participate in searches, seizures, arrests, or similar activities unless such participation is otherwise authorized by law. (Military police personnel, for example, may enforce the law within their jurisdictions.)
If there were violations of the act, the culprits would not be members of the Army and Air Force who assisted local law enforcement agencies but rather the local law enforcement officials who required the troops to assist in the enforcement of laws or local military commanders who did so without obtaining Presidential authority. It is no wonder that there have never been any prosecutions under the law.
Why Is This Erroneous Interpretation Widely Believed?
It is worthwhile asking why the original meaning of the Posse Comitatus Act has been transformed into its almost exact opposite. It is not the purpose of this article to solve this mystery, but it is useful to speculate on some of the motives of the people who have been involved.
Some cynics believe that the Department of Defense and the military services support the erroneous application of posse comitatus because they do not want to get involved in domestic emergencies. This appears to be the position of many active-component officers. In an address to the Fletcher Conference on 15 November 2001, General William F. Kernan, Commander in Chief, Joint Forces Command, presumably referring to the Posse Comitatus Act, said that there were limitations on the active components that restricted them from doing those kinds of things, and rightfully so.  General Kernan went on to propose an order of response to domestic emergencies that starts with the first responders, then the National Guard, and finally the Reserves and active components. This may be a logical order, but it is based on a flawed understanding of history. The military services, and the Army in particular, have been used on numerous occasions to enforce the law, notably in federal efforts to desegregate public schools and quell riots. One recent example of this was the use of active-duty Army troops, Marines, and federalized California National Guard troops to deal with the 1992 riots in Los Angeles prompted by the acquittal of police officers charged with assaulting Rodney King. Now that the Quadrennial Defense Review for 2001 has declared homeland security to be the primary mission of the Department of Defense, this aversion to the use of active components for domestic security may be weakened. In the meantime, however, some elements of the Department of Defense continue to hew to the line that it is improper for any element of the department, military or civilian, to enforce the laws in any fashion.
Americans have a general antipathy to the use of troops as police. This stems from British practice during Colonial times. There is a general feeling in the nation that policing is a local matter best done by police forces whose members are trained in law enforcement. Until recently there was also general opposition to a national police force as exists in most Western European nations. The Federal Bureau of Investigation (FBI) was until recently quite small and worked on cases that clearly were federal crimes. In recent years, the number of federal crimes has increased, particularly in the field of civil rights violations, and now the FBI seems to be involved in many cases that formerly would have been handled under state law by local law enforcement agencies. The threat of imminent terrorist attack can only reinforce the trend to more and more federal laws and more and more federal police officers and prosecutors to deal with them. Americans appear to accept the increase in FBI jurisdiction but are unsympathetic to the habitual use of military personnel as police officers. In support of this feeling, persons writing on the Posse Comitatus Act may have addressed it as a legal bar to an unpopular possibility.
The lawyers have had a hand in transforming the Posse Comitatus Act from its original intent to what it may or may not be today. A substantial body of case law and judicial decisions pertaining to the use of military personnel to enforce the laws has been created. A casual review of these cases reveals confusion, inconsistency, and downright perversion of the original intent of the law. Much of this litigation has been prompted by persons averse to any role for military forces in law enforcement. Moreover, a significant body of policy and regulation has been created extralegally in the form of Department of Defense directives and military service regulations. These attempts to clarify the situation only add to the confusion. Most of them are based on a presumption significantly at variance with the law itself.
Finally, another reason for the misunderstanding and misapplication of this law is simply sloppy scholarship. It is apparent that many of the numerous authors who have written about this matter did not read the U.S. Code, studied the legislative history of the act, or consulted the two official histories prepared by the Center of Military History before airing their erroneous opinions. This appears to be one of those academic chain letters in which one set of unfounded conclusions is used as a source for derivative sets, which are accepted and passed along containing the original errors. In effect, the misinterpretation of the Posse Comitatus Act has become an urban myth that is widely believed without substantiation. This need not be. The topic has been covered well in many of the standard U.S. history books, and people who want to pursue the historical record in enough detail to get to the real story can consult three sources:
Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878, Center of Military History, U.S. Army, Washington, DC, 1988.
Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945, Center of Military History, U.S. Army, Washington, DC, 1997.
Eugene P. Visco, More Than You Ever Wanted to Know About Posse Comitatus, unpublished, available by request from firstname.lastname@example.org
Summary and Recommendation
The Posse Comitatus Act is not a general and universal proscription of the use of federal military forces to enforce or execute the law. The military services may do so and have done so when ordered by the president and pursuant to the authorization of Congress. Although the current interpretation of the act is the opposite of its original intention, it does discourage the military services from being used as a national police force-something we have wisely avoided up to now. The Posse Comitatus Act does not prevent the military services from supporting the police, nor does it preclude them from enforcing the law when so ordered by the president. It does preclude them from being the police in normal times.
It is time to rescind the existing Posse Comitatus Act and replace it with a new law. The old law is widely misunderstood and unclear. It leaves plenty of room for people to do unwise and perhaps unlawful things while trying to comply with their particular version. It certainly does not provide a basis for defining a useful relationship of military forces and civil authority in a global war with terrorism. The Posse Comitatus Act is an artifact of a different conflict-between freedom and slavery or between North and South, if you prefer. Today's conflict is also in a sense between freedom and slavery, but this time it is between civilization and terrorism. New problems often need new solutions, and a new set of rules is needed for this issue.
President Bush and Congress should initiate action to enact a new law that would set forth in clear terms a statement of the rules for using military forces for homeland security and for enforcing the laws of the United States. Things have changed a lot since 1878, and the Posse Comitatus Act is not only irrelevant but also downright dangerous to the proper and effective use of military forces for domestic duties.
1. Compact Edition of the Oxford English Dictionary, Oxford University Press, 1971.
2. I am deeply indebted to my friend and colleague Eugene P. Visco for allowing me to rely greatly for this section on his excellent paper "More Than You Ever Wanted to Know About Posse Comitatus" (2001). Gene Visco is a master operations research analyst and a scholar who does good work.
3. The white militia units were disbanded in 1867, and black militia units formed under Reconstruction state governments were not used to confront ex-Confederates. Visco, op. cit., p. 18.
4.By 1870, all of the former Confederate States had completed the Reconstruction process and were readmitted to the United States.
5. Visco, op. cit., p. 18.
6. Visco, op. cit., p. 20.
7. Visco, op. cit., p. 21. The primary purpose was to protect the freedmen from the Ku Klux Klan.
8. Coakley, cited in Visco, op. cit., p. 24.
9. Coakley, cited in Visco, op. cit., p. 23.
10. Courtesy of Gene Visco, who has done extensive research on this topic and teaches a course on military operations other than war at George Mason University.
11. General William F. Kernan, address to the Fletcher Conference, "The Military's Role in Homeland Security," 15 November 2001, DefenseLink, Joint Forces Command website.
When I was a kid, the term "federal offense" was a big deal and awed us by its implication of something really wicked. Today, it seems as if everything is a federal offense.
10-11-2006, 11:34 AM (This post was last modified: 10-11-2006 11:41 AM by Skinski7.)
The Myth Of Posse Comitatus
To put the above articles in context with many of the opposing views held in the patriot/truth/distrust/rumour community an understanding of the legal principle of 'Implied Repeal' in law is necessary.
In the past on talk radio (I infrequently listen these days) I would often hear the subject of Posse Comitatus brought up but I do not think I ever heard once the legal principle of implied repeal mentioned. The ignorance of facts in any given area of research can often lead to erronous conclusions and this tends to often be the rule more often than the exception when dealing with information from various sources including the alternative media as well as the corporate mainstream press. The law is precise and it must be addressed precisely otherwise it will simply roll over us. We must carefully pick our battles in order to be an effective and powerful force for the truth.
I became aware of the principle of 'implied repeal' due to my involvement in several court cases in regards to property right violations of government departments in Australia. In Australia we have the 'Acts Interpretation Act of 1901' and thus upon moving to the USA I checked into how conflicting statute law is handled here although I did make the assumption that it would be treated the same way and was not surprised when I discovered it so.
Acts Interpretation Act of 1901 (Commonwealth of Australia)
In all this it is important to keep in mind that law usually operates on the basis of prohibition rather than permission hence 'thou shalt not' instead of 'thou shall.' In most laws a prohibition is stated and then exceptions to the prohibition are made. When this principle is extrapolated to successive legislation we come to the process of implied repeal.
When we need to determine how different federal laws interact with one another a court will apply the implied repeal analysis to resolve conflicts that appear to exist between two or more statutes. Implied repeal means that if a statute contradicts a previous statute the latter statute will prevail in all areas pertaining to the contradiction.
Thus the Posse Comitatus Act as applied today is significantly different to the statute on the books simply due to this principle in law as applied in conjunction with successive relevent legislation.
The principle of implied repeal does not apply to the Constitution for the United States of America in regard to subsequent statute law due to the fact that Article Six (of the Constitution) recognises the Constitution as being the 'Supreme Law' of the land and thus all other law is subject. This is why it is so important to read and understand this short document if you live in the USA.
Quote:All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.Article Six, Constitution for the United States of America
I hope this clears a few things up.
"Listen to everyone, read everything, believe nothing unless you can prove it in your own research." William Cooper
10-13-2006, 12:01 AM
The Myth Of Posse Comitatus
So whats your point? It was passed origanally with the exact intent that everyone thinks it was for. To prevent military enforcement against the domestic population.
And over the years the bureaucrats and government have chipped away at that legislation into whatever they wanted it to become.
Thats kind of the point we are all trying to make.
Do you really think your a higher form of life? You...With your dripping jaws, and your bloodshot eyes. You...With your varicosities and your vermin for an appendix. You...with your hemroids and assterioids. Often I wake up at night and ponder these matters. And then I feel very strongly that I should talk them over with Brother Theodore...and then, and then I wake up fully and remember that I am Brother Theodore. And my heart aches. And my tears flow. And I see my Aunt Marie floating in the chicken soup...more dead than alive...more naked than not. And oh, now I see a mailman, a mailman giving birth to a dog of all things!
Never a moments peace, never a moments peace...never a moments peace.
10-13-2006, 01:05 AM
The Myth Of Posse Comitatus
Posse Comitatus has been subverted by training and militarizing the Police, Sheriff Office, ATF, SWAT. Much of the training now is para-military. And look what police carry around these days with their M16's, MP5's stomping around in darthvader outfits with K9's salivating, tazers ready to shoot. They're basically only a razors edge away from being full blown soilders. There was a video of some police cadet training that has been removed from YouTube that didn't look much different from training at an Army bootcamp.
This will get your blood boiling:
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