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Maintaining The Divide
Posse Comitatus should stay as is.


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Mackubin Thomas Owens

I see that my good friend and Naval War College colleague Derek Reveron has climbed aboard the military-should-be-the-lead-agency-in-domestic-catastrophes bandwagon. He’s in good company. In the wake of Hurricane Katrina, the president, members of Congress, editorial writers, and pundits have been making the case for increased use of the military in domestic affairs. The only folks that seem to be opposed are the governors, but we can write off their opinion as an attempt to defend their own turf.

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I certainly agree with Derek that the military is extremely well equipped to act as the lead agency in disaster relief. If we are looking for efficiency and respect, the military outshines most other agencies, whether at the local, state, or federal level. After all, generals and admirals become generals and admirals because they are good at getting things done–and often being outspoken. Who didn’t love it when General Honore blasted a reporter for being “struck on stupid”?

But why stop at disaster relief? The American political system is messy and inefficient, but if efficiency is the main criterion in deciding who does what domestically, why not let the military take the lead in everything? The most obvious response is that there is a little document called the Constitution that established a federal republic. Domestic affairs are primarily the concern of the states, not the federal government, and most assuredly not the U.S. military.

Of course there are many things the military can do on the domestic front, especially during natural disasters. But before we take steps to further involve the U.S. military in domestic affairs, we need to answer two fundamental questions: Do we really want the American public turning to the military for solutions to the country’s problems? And do we really want to saddle the military with a variety of new, non-combat missions, vastly escalating its commitment to formerly ancillary duties?

If we do, we will find that we have involved the military in the political process to an unprecedented and perhaps dangerous degree. These additional assignments will also divert focus and resources from the military’s central mission of combat training and war-fighting.

The United States has avoided such extreme manifestations of “bad” civil-military relations as coups and military dictatorship. Nonetheless, some observers have argued that the state of American civil-military relations has deteriorated seriously since the end of the Cold War. They fear that current trends will result in a large, semi-autonomous military so different and estranged from society that it will become unaccountable to those whom it serves. They are also concerned about the politicization of the military, and the increased employment of the military in domestic affairs will only exacerbate this trend.

Indeed, concern about politicization of the military was the catalyst for passage of the Posse Comitatus Act in 1878. A perusal of recent articles reveals the undeniable fact that most commentators do not understand the Posse Comitatus Act at all: It does not constitute a bar to the use of the military in domestic affairs. It does, however, ensure that such use is authorized only by the highest constitutional authority: Congress and the president.

Posse Comitatus has a Valuable History

The Constitution itself does not prohibit the use of the military in domestic affairs. Indeed, the U.S. military has intervened in domestic affairs some 167 times since the founding of the Republic. In the Anglo-American tradition, the first line of defense in enforcing the law is the posse comitatus, literally “the power of the county,” understood to be the people at large who constituted the constabulary of the shire. When order was threatened, the “shire-reeve” or sheriff would raise the “hue and cry” and all citizens who heard it were bound to render assistance in apprehending a criminal or maintaining order. Thus, the sheriff in the American West would “raise a posse” to capture a lawbreaker.

If the posse comitatus was not able to maintain order, the force of first resort was the militia of the various states, the precursor of today’s National Guard. In 1792, Congress passed two laws that permitted implementation of Congress’s constitutional power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions”: the Militia Act and the “Calling Forth” Act, which gave the president limited authority to employ the militia in the event of domestic emergencies. In 1807, at the behest of Pres. Thomas Jefferson, who was troubled by his inability to use the regular Army as well as the militia to deal with the Burr Conspiracy of 1806-07, Congress declared the Army to be an enforcer of federal laws, not only as a separate force, but as a part of the posse comitatus.

Accordingly, troops were often used in the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner, and in 1854, Franklin Pierce’s attorney general, Caleb Cushing, issued an opinion that included the Army in the posse comitatus:

A marshal of the United States, when opposed in the execution of his duty, by unlawful combinations, has authority to summon the entire able-bodied force of his precinct, as a posse comitatus. The authority comprehends not only bystanders and other citizens generally, but any and all organized armed forces, whether militia of the states, or officers, soldiers, sailors, and marines of the United States.

Troops were also used to suppress domestic violence between pro- and anti-slavery factions in “Bloody Kansas.” Soldiers and Marines participated in the capture of John Brown at Harpers Ferry in 1859.

After the Civil War, the U.S. Army was involved in supporting the Reconstruction governments in the southern states and it was the Army’s role preventing the intimidation of black voters and Republicans at southern polling places that led to the passage of the Posse Comitatus Act. In the election of 1876, Pres. Ulysses S. Grant deployed Army units as a posse comitatus in support of federal marshals’ maintaining order at the polls. In that election, Rutherford B. Hayes defeated Samuel Tilden with the disputed electoral votes of South Carolina, Louisiana, and Florida. Southerners claimed that the Army had been misused to “rig” the election.

If It Ain’t Broke

While the Posse Comitatus Act is usually portrayed as the triumph of the Democratic Party in ending Reconstruction, the Army welcomed the legislation. The use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.

And this is the crux of the issue. The Posse Comitatus Act prohibits the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances except in cases and under circumstances expressly authorized by the Constitution or by an act of Congress. As the foremost authority on the use of the military in domestic affairs writes:

All that [the Posse Comitatus Act] really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general [Caleb Cushing], and one that had never been tested in the courts. The president’s power to use both regulars and militia remained undisturbed by the Posse Comitatus Act. . . .But the Posse Comitatus Act did mean that troops could not be used on any lesser authority than that of the president and 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. [Italics added.]

Do we really want to return to the days when “lesser authority” than the president could use the military for domestic purposes?

Derek observes that the U.S. military is respected and trusted by the American people. But what happens to this trust and respect the first time a soldier shoots an American citizen? As it is, the U.S. military has had to fend off attempts by domestic law-enforcement agencies to rope them into cooperation that could have resulted in the death of U.S. citizens. For example, an Army officer observed that “had legal advisers to Joint Task Force 6 [the military's counter-drug taskforce] which supported the BATF [Bureau of Alcohol, Tobacco, and Firearms] during the siege at the Branch Davidian Compound in Waco, Texas, not questioned that agency’s request for support, the Armed Forces would have been inappropriately and illegally involved in an operations that ultimately led to the deaths of U.S. citizens.”

Even so, the fact is that Congress may at any time authorize the president to employ the U.S. military for domestic purposes, including law enforcement. Separately, the president has all the power he needs to employ the military in domestic affairs if he needs to do so. It is the so-called Insurrection Act. Although intended as a tool for suppressing rebellion when circumstances “make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings,” presidents used this power on five occasions during the 1950s and 60s to counter resistance to desegregation decrees in the south. Reports indicate that President Bush chose not to invoke the Insurrection Act in the case of Katrina because of concerns that such an action would have been viewed as federal bullying of a southern Democratic governor.

Posse Comitatus is Still Relevant

Derek’s comments notwithstanding, increasing the use of the military for domestic purposes will adversely affect its ability to wage war. The U.S. military is structured to play “away games.” It is good at protecting the United States by threatening the sanctuary of our adversaries abroad. There are, of course, things the military can do to enhance the security of the American homeland, but we should not be blurring further the distinction between military activities and domestic affairs. To paraphrase what Casper Weinberger said in opposition to the use of the military in the drug war, further weakening the Posse Comitatus Act in response to terrorism makes for terrible national security policy, poor politics, and guaranteed failure in the terror war.

The response to Katrina indicates that procedures at all levels of government must be streamlined. But the maintenance of both healthy civil-military relations and a combat-ready force dictates that we don’t repeal or modify the Posse Comitatus Act or give the president power beyond that of the Insurrection Act. And by no means should we expect the military to go beyond its current mission of supporting civil authorities in the event of domestic emergencies.

Mackubin Thomas Owens is an associate dean of academics and a professor of national-security affairs at the Naval War College in Newport, R.I. He is writing a history of U.S. civil-military relations.



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