The misinterpreted Posse Comitatus Act still endangers national security
August 27, 2005
By Michael Gaynor
The Posse Comitatus Act (Section 1385 of Title 18 of the United States Code) states: "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."
The Act is an intimidating, irritating and insidious anachonism that has endangered America's security instead of enhancing it, even though no one ever was prosecuted under it.
Like the "wall" between intelligence and law enforcement that finally came down AFTER the Twin Towers were destroyed and The Patriot Act became law, because very persuasive liberals apparently had feared America's government and military more than America's enemies, foreign and domestic, and their egregious error had become obvious, its effect extended beyond its express terms.
And, like the Establishment Clause of the First Amendment, with the passage of time, the Act's actual purpose was disregarded and the scope of its restriction was undesirably expanded by misinterpretation.
The Act was NOT intended to prevent military personnel from enforcing the law but instead was passed to allow them to do so 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 states:
"Some of those who opposed [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...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."
Colonel John R. Brinkerhoff, US Army Retired and acting associate director for national preparedness of the Federal Emergency Management Agency (FEMA) from 1981 to 1983, in "The Posse Comitatus Act and Homeland Security (February 2002), not only thoroughly reviewed the Act's history, but specified how its impact was expanded far beyond the terms of the Act, as follows:
"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."
On May 27, 1878, Representative J. Proctor Knott of Kentucky introduced an amendment to the Army appropriations bill that eventually became the Posse Comitatus Act.
In passing it, Congress voted to restrict the ability of United States marshals and local sheriffs to conscript military personnel into their posses. Not to prevent the use of military personnel to enforce the law if authorized by the President or Congress.
The history of the posse comitatus doctrine in America is ironic. The doctrine was invoked first to enforce the Fugitive Slave Act and then to protect emancipated slaves from the Ku Klux Klan, with soldier and sailors utilized for each purpose. Then their use was restricted by the Act, because the Southerners did not want soldiers and sailors as part of a posse comitatus and the War Department (now known as the Defense Department) did not want soldiers and sailors taking orders from United States marshalls or local sheriffs, at least without the approval of the President of the United States (also known as the Commander-in-Chief).
When parsed, the Act seems foolish as well as foreboding: "Whoever...willfully uses any part of the Army or the Air Force... to execute the laws shall be fined under this title or imprisoned not more than two years, or both."
And why should the law discriminate between the use of the Army and the Air Force, on one hand, and use of the Navy, the Marines and the Coast Guard, on the other?
And that crucial word "willfully" cries out for clarification.
Does it mean just mean deliberately or intentionally?
Or does it mean deliberately or intentionally AND with a criminal intent (a bad purpose)?
Congress should repeal the Act and then set forth in the clearest possible terms any restriction on what America's military forces may do for homeland security purposes and other domestic law enforcement purposes.
Congress has enacted some other laws that specify when the Posse Comitatus Act does not apply — for example, 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 — but a comprehensive approach is needed.
Times have changed drastically since the Act became law on June 18, 1878, following Reconstruction, as the nuclear material emergency statutory exception illustrates.
The Act was passed because the Army resented having its soldiers used as police officers (a posse) by local law enforcement officials in the post-Reconstruction South.
And to supersede a United States Attorney General opinion issued in 1854.
Not to prevent the federal government from using military personnel to enforce the law.
The posse comitatus doctrine is derived from English common law.
Posse comitatus meant the "force of the county"; that is, males over the age of 15 whom the sheriff was permitted to summon or raise to repress a riot or for other purposes.
In 1854, Attorney General Caleb Cushing opined that marshals could summon a posse comitatus and that both militia and regulars in organized bodies could be members of such a posse.
He thereby facilitated the enforcement of the Fugitive Slave Act of 1850.
Under the Attorney General opinion, although the armed forces might be organized as military bodies under the command of their officers, they could still be pressed into service by United States marshals or local sheriffs as a posse comitatus without the assent of the president.
It was convenient, and often essential, for local officials throughout America to use soldiers and sailors as police. At the time, the Army was the only armed force available in the West to assist local officials to enforce the law.
During Reconstruction, the Army governed all eleven former Confederate States. It exercised police and judicial functions, oversaw local government, and dealt with domestic violence. Before the Civil War, state militia had dealt with local disorders throughout the United States. During Reconstruction, however, there was no effective militia in the former Confederate States, so the Army by default assumed the responsibility for maintaining order and protecting the emancipated slaves.
The Civil Rights Act of 1866 approved this use of the Army and empowered United States marshals to use soldiers and sailors as posse comitatus.
By 1869, eight of the eleven former Confederate States had been readmitted to the Union and in them there was a need to obtain assistance from the Army to enforce the law. Attorney General William M. Evarts invoked the posse comitatus doctrine that gave United States marshals and county sheriffs the right to command all necessary assistance from within their districts, including military personnel and civilians, to serve on a posse comitatus to execute legal process, without presidential approval. The War Department objected. It wanted the troops obeying the orders of officers, not marshalls or sheriffs.
In 1871, President (and former General) Grant sought to provide a basis for the use of troops other than posse comitatus. In accordance with his 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.
The 1876 Presidential election was like the 2000 Presidential election. The Democrat won the popular vote, and the Republican won a majority in the Electoral College.
The Democrat, Samuel J. Tilden, disputed the election of the Republican, Rutherford B. Hayes, and eventually conceded in return for an end to Reconstruction. Reconstruction ended in 1877 with the Hayes inauguration. Federal troops in the South were no longer used to enforce the law, and the Southerners resumed control of their states.
Attorney General Charles Devens opined that the United States Judiciary Act of 1789 authorized United States 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."
Congress was displeased with United States marshals and sheriffs using Army troops without presidential approval and thereby passed the Act.
If the death penalty had the deterrent effect that that the Act and "the wall" have had, murder would be exceedingly rare.
In February 2002, Colonel Brinkerhoff wrote:
"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."
The Colonel was absolutely right.
Thing still need to be changed.
© Michael Gaynor