In the aftermath of Hurricane Katrina, many have called for a stronger military authority to enforce state and federal law. Does the Posse Comitatus Act (PCA) still apply in 2006?

Posse Comitatus (force of the county) is the common title of an 1878 law barring the use of U.S. military members by U.S. marshals to enforce state and federal law unless also authorized by the president or Congress. The law is rooted in American race politics. In 1850, Congress passed the Fugitive Slave Act, permitting federal marshals to form a “posse comitatus” to return escaped slaves to their owners. In 1854, U.S. Attorney General Caleb Cushing wrote an opinion allowing marshals to order Army soldiers to serve on posses to secure escaped slaves.

Following the Civil War, Cushing’s finding was cited as the Army was called on to keep order in southern states, enforcing unpopular federal laws related to protecting the rights of blacks. Southern politicians resented such use of the military. The 1878 Posse Comitatus law was, therefore, promoted mainly by former Confederates to overturn Cushing’s opinion. It does not bar using the military to enforce laws, but insists the president or Congress sanction such action.

 — Dr. Alan Gropman, Distinguished Professor of
National Security Policy, Industrial College of the Armed Forces

Pro: Lt. Cmdr. Gatha Manns, USN

Many social scholars have written a plethora of articles about the PCA. Some support the proposition that the law as written adequately serves its intended purpose of limiting the use of the armed forces for law enforcement and civic order functions and therefore needs no change. Others support an extensive revision of the PCA in such detail as to virtually remove the discretion from the commander in chief.

Many believe the PCA eliminated nearly all armed forces participation in law enforcement. This is a fundamental mischaracterization. Undoubtedly, our founding fathers feared military involvement in civilian affairs because of abuses suffered at the hands of the British army during the colonial period. Our founding fathers were, however, equally concerned about creating a central government too weak to enforce the laws. The latter concern carried more weight, and prior to the Reconstruction Era enactment of the PCA, there was general acceptance of military participation in law enforcement. It is widely thought the PCA was enacted to limit a marshal’s local-level authority over the Army and was not intended to limit inherent presidential power. The PCA exempts from application “circumstances expressly authorized by the Constitution or Acts of Congress.”

Whoever, except in cases 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. (18 USC 1385).

There has been much debate about the meaning of the term “expressly” in the PCA. The confusion hinges on whether the constitutional exception to the PCA requires an express authorization for the president to lawfully use military forces in civilian law enforcement activities. Legal dictionaries define “expressly” as “in definite and distinct terms.” Congress in recent years spoke directly about this issue, confirming the president’s inherent authority to use military forces when required to fulfill his constitutional obligations.

(6 USCS 466). Sense of Congress reaffirming the continued importance and applicability of the PCA.
        (a) Findings. Congress finds the following:
               (4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.

Congress authorized broad statutory exceptions to the PCA. For example, Congress authorized the president’s use of armed forces to suppress insurrection, rebellion, and domestic violence under the 1956 Insurrection Act (10 USC 331-382); and to share information and equipment with civilian law enforcement officials (10 USC 371-382). Under the above act, the president also may consider the needs of law enforcement officials prior to planning military operations. The president also may allow law enforcement officials to use military facilities, equipment, and personnel (but military forces may not directly participate in a search, seizure, arrest, or similar activity); Congress established a branch of the military service, the Coast Guard, as a law enforcement organization during peacetime (14 USC 2). The Coast Guard’s primary duty is to “enforce all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States.”

The language of the PCA, the Constitution, and federal statutes provides ample authority for the president and state governors to use the armed forces in the performance of civilian law enforcement duties. Anything more definitive could virtually override the president’s ability to use discretionary judgment in the fulfillment of his obligations under the Constitution. When the president does use his inherent constitutional authority to call out military forces in domestic law enforcement activities, the issue becomes one of political accountability. This political check on presidential discretion and judgment is a natural part of our federal system of government, and this is the way it should be. The PCA still works today.

Lt. Cmdr. Gatha Manns, USN, Judge Advocate General’s Corps, is the staff judge advocate and university general counsel, National Defense University.

Con: Harvey Rishikof, JD

Much debate and mythology surround the PCA. The fear of the “militarization” of government response to domestic incidents and crises strikes a fundamental American core value — the military should not be used for law enforcement and social order functions. Arguments contending that the PCA should not be reformed fall into three schools. The first focuses on the classic aversion to a standing national army, the negative consequences that flow from undermining civilian control, the adverse effects such domestic duties may have on military readiness, and how — in short — the military is the wrong tool for domestic law enforcement and social order.

The second school of argument emphasizes how the Constitution and current laws already provide the president and governors ample authority to exercise federal military power when the need arises.

The third school subtly argues that Congress through its past actions and more recent legislation for the “wars” on drugs and terrorism — as an unintended consequence — already has amended the PCA.

The distinctions between “war” and “relief” as well as between “domestic” and “foreign” deployments are being redefined by the new threats of the 21st century. Congress needs to review the PCA and a variety of other relevant pieces of legislation because the military is an integral component of a national response plan if state and federal authorities are overwhelmed.

In addition, the general process and legislation governing the deployment of the National Guard should similarly be reviewed, vetted, and discussed. Consider some of the following questions: What is the command and control process for civilian authorities, both federal and state, with military counterparts when Northern Command is the “lead authority”? What will be the limits of martial law? Will military authority be able to compel state officials? What will be the rules of liability in the event deadly force is used? What will be the process by which military authority is removed and civilian authority is reinstated? What will be the role of the civilian courts and military courts to prosecute violations? Finally, what is the reimbursement plan anticipated by Congress between the states and military authorities?

As these questions illustrate, the debate over the PCA should be reframed to encompass the potential deployment of the National Guard and military assets under state and/or federal power and the resulting consequences. In the Hurricane Katrina emergency, for example, the National Guard that was deployed to restore order became sworn Louisiana law enforcement officers under the Emergency Management Assistance Compact (EMAC) Act. Each guardmember came with a different lethal shooting policy or rules of engagement. The guardmembers were instructed under Louisiana law on how to employ force, a civil code jurisdiction. In the event a shooting took place, Louisiana law would have applied, not their own respective state laws. As it turns out, the 50 states and U.S. territories have different shooting policies, as do the different federal agencies, not to mention the military. This is an issue that deserves to be addressed, identified, and clarified.

In another example, imagine Northern Command being the lead agency in an epidemic catastrophe requiring a massive quarantine. What is the process for consultation with federal authorities and elected state officials? What happens when a dispute takes place over the use of force or plan of action? Given the role envisioned for the National Guard, should the chief of the National Guard become a four-star general with a vote on the Joint Chiefs for such circumstances?

As DoD prepares for future catastrophic events, the PCA is part of the discussion. At the very least, local, state, and federal hearings are necessary. Whether more legislative action is required to clarify the command and control issues relevant to military involvement in a domestic event will not be clear until such a hearing takes place.

Our founding fathers could not have anticipated the challenges, threats, and military capabilities that define the modern era. In the words of the DoD’s “Strategy for Homeland Defense and Civil Support” (2005), we can no longer think in terms of the “home” game and the “away” game — there is only one game. The more debate and analysis that takes place before a disaster hits, the better the chance appropriate legislation will exist to create a truly delineated, integrated, and coordinated national response plan that fully integrates the military.

Harvey Rishikof, JD, is chair of the Department of National Security Strategy and a professor, National Security Law, at the National War College.