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Will military enforce
domestic law?

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Amid debate over whether U.S. troops should be used to secure the U.S. border, or deployed in any other domestic capacity in the war against terrorism, the Bush administration will review the Posse Comitatus Act of 1878.

There is considerable confusion both in the public and among lawmakers about what this law actually says and whether any changes in it might be warranted.

“Federal law prohibits military personnel from enforcing the law within the United States except as expressly authorized by the Constitution or an Act of Congress,” President Bush said July 16 in the plan he submitted to Congress for the new Department of Homeland Security. “The threat of catastrophic terrorism requires a thorough review of the laws permitting the military to act within the United States in order to determine whether domestic preparedness and response efforts would benefit from greater involvement of military personnel and, if so, how.”

The PCA is commonly and falsely believed to forbid the U.S. military from enforcing domestic law in all circumstances. In fact, it forbids it only in some circumstances.

Said Homeland Security Director Tom Ridge on “Fox News Sunday” on July 21, “Well, I think there’s been much conversation about that concept, which as you know is called posse comitatus, and that is historically within this country, we do not give our military law-enforcement responsibilities. And I think the discussion, the public discussion, is really about the private discussion that will undoubtedly occur between the new secretary of the Department of Homeland Security and the Secretary of Defense Donald Rumsfeld, once his new North American Command is established, because I think it would be very appropriate for the two secretaries to determine what military assets would be available, under what circumstances, to support civilian authorities in the event of another terrorist attack.”

Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, on CNN’s “Late Edition,” said, “I don’t fear looking at it to see whether or not our military can be more helpful in a very supportive and assisting role even than they have been up to now – providing equipment, providing training, those kind of things which do not involve arresting people.”

Sen. Joseph Biden, D-Del., chairman of the Senate Foreign Relations Committee, said on “Fox News Sunday,” “I think it is time to revisit it. Back after Oklahoma City, former Sen. Sam Nunn and I introduced legislation that would moderately alter the Posse Comitatus – let me be precise – allow, for example, the military, that has expertise in weapons of mass destruction, to be called in. Let’s say you had word that there was something going on in one of the tunnels in Amtrak, or you had some major event where they thought there may have been a weapon of mass destruction involved. Right now, when you call in the military, the military would not be allowed to shoot to kill, if in fact they were approaching the weapon, and so on.”

The primary sentence of the Posse Comitatus Act, as amended since 1878, now says, “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.” “Posse comitatus” means “the power or force of the county,” according to Black’s Law Dictionary (1990), and refers to any group empowered to enforce domestic law.

Contrary to popular belief, the PCA does not presently forbid all U.S. military units from enforcing domestic laws. The plain language of the law does not cover the Navy, Marine Corps or National Guard. “The PCA expressly applies only to the Army and Air Force,” wrote Matthew Carlton Hammond in an article in the Washington University Law Quarterly (Summer 1997). “Congress did not mention the Navy, Marine Corps, Coast Guard or National Guard in the PCA; accordingly, the PCA does not limit them. However, the Department of Defense has extended by regulation the PCA’s prohibitions to the Navy and Marine Corps.”

The phrase “under circumstances expressly authorized by the Constitution or Act of Congress” and the ambiguity of “to execute the laws” have been interpreted to allow numerous uses of the military to enforce domestic law since the PCA was enacted. Traditionally, a “constitutional” exception to the PCA has been interpreted broadly, said Hammond. “The exception permits military action to protect federal property and functions, to prevent loss of life, and to restore public order when local authorities cannot control a situation,” he wrote. Congress already has explicitly carved out exceptions to the PCA for drug interdiction and for responses to biological and chemical incidents. According to Hammond, no one has ever faced criminal prosecution under the law.

Writing in the Spring 2002 edition of Parameters, a highly respected military journal published by the U.S. Army War College, Chris Quillen wrote, “Almost any presidential decision or congressional legislation can circumvent Posse Comitatus rather easily.” Noted Hammond, “Presidents Richard Nixon and Ronald Reagan both used the military to replace striking federal employees. In 1970, President Nixon sent 30,000 federal troops to replace striking postal workers in New York, and in 1981, President Reagan replaced striking air-traffic controllers.”

There is also one relatively recent example of the use of the American military to restore order after a major domestic disturbance. U.S. Marines detained suspects and performed searches during the Los Angeles riots of 1992, even though some involved believed that they were violating U.S. law. They did so because Marine Corps doctrine – the theory behind conducting operations – told them that this was the only way to restore order. Wrote Thomas E. Ricks in his well-known “Making the Corps” (1997), “In Los Angeles, Maj. [Timothy] Reeves notes, when faced with violating doctrine or violating the law, some Marines chose the latter course, and detained suspects and conducted warrantless searches.”

Given the confusion over the PCA, Quillen said that the military might react inappropriately to an emergency situation. He called for clarifying the law and federal regulations.

“The likely federal response to a nuclear incident currently suffers from conflicting and confusing guidance that is dependent on too many external factors to be timely and therefore effective,” he wrote. “In the end, however, the federal response would be almost totally dependent on the Defense Department for its resolution. Given the legal limits placed on DOD’s actions, this situation is a disaster waiting to happen.”

William Lind of the Free Congress Foundation, who has advised the Marines on what he calls Fourth Generation Warfare – including urban conflicts involving non-state actors such as terrorists – said he thinks the National Guard should deal with domestic emergencies as far as possible and that the military should stay out of policing the homeland. Further restricting the PCA would lead to “a concern about civil liberties,” he said. But in addition, “the military would be extraordinarily ineffective at the job. All top-down approaches will fail.”

To maintain order domestically in the long term in the face of potential terrorist attacks or other calamities, Lind said, the United States needs to rebuild its tradition of local self-reliance and look to local police forces and civilian preparedness.

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