POLICING BY THE MILITARY IN AMERICA, NOT JUST ABROAD:
Current Laws Already Envision A Broad Domestic Role For The Military And Revising The Posse Comitatus Act Won't Change That

By PHILLIP CARTER
Wednesday, Jul. 31, 2002

The 124-year-old Posse Comitatus Act criminalizes using the military to enforce domestic laws. Last week, The New York Times reported that the Department of Defense was reviewing - and considering revising - the Act in light of post-Sept. 11 homeland security concerns.

Civil libertarians and legal commentators expressed dismay at the idea. But in fact, the military has provided support to civil authorities for some time now, in and out of the law enforcement arena.

Moreover, it has done so entirely lawfully. That is because while the Posse Comitatus Act itself has not changed significantly, other laws have - in a way that drastically narrows the Act's scope.

The Posse Comitatus Act and Its Purpose

A "posse comitatus" is a group convened from the community to enforce domestic laws. (Think, for example, of the Western sheriff's posse.) The Posse Comitatus Act aims to preserve a wall of separation between the military and domestic police and policing. Congress originally enacted it in 1878 to stop federal troops from enforcing civilian laws in the South, and it has stood since then as a bulwark between military and civil authority.

Accordingly, the Act criminalizes the use of "any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws" - unless the use is authorized by Congress or the Constitution. Only domestic police, not military police, can generally enforce or carry out domestic laws, the Act warns.

Over our history, however, Congress has repeatedly blessed the use of the military for domestic purposes. As a result, the Posse Comitatus Act's exception for Congressionally-authorized domestic uses of the military has swallowed the rule against such use.

The Largest Exception - The National Guard

First, the Posse Comitatus statute only applies to the federal armed forces - not the National Guard, which belongs to the states. This distinction dates back to the original act in 1878, which was passed at the end of Reconstruction to appease Southern interests by forbidding the federal military from enforcing laws in the states.

One example of this is the National Guard's current mission to support the Border Patrol and Customs Service. Another example is the use of National Guard troops (instead of federal troops) in most natural disasters.

The Military Is Already Authorized to Support Domestic Law Enforcement

Title 10 is the part of the United States Code that covers the federal military. It authorizes the domestic use of military assets to support law enforcement in numerous areas. Most of the Title 10 exceptions allowing military involvement in domestic policing were carved out during the Reagan Presidency for the so-called "War on Drugs."

These exceptions allow the military to provide specialized support to domestic law enforcement agencies - particularly in areas where domestic law enforcement agencies don't have any capability. Those areas include long-range surveillance and intelligence capabilities. Vague phrases in the statute such as "training and advising civilian law enforcement officials" or "maintenance and operation of equipment" hint at other such areas.

Indeed, the only limit which remains on military personnel is a "restriction on direct participation by military personnel" in specific police actions - defined to include only "search, seizure, arrest, or other similar activity." (And even these activities can be performed if another law authorizes it.)

This leaves the field wide open for military support in other areas, such as the provision of information, use of military helicopters, surveillance capabilities, just to name a few.

Legally Authorized Categories of Military Support to Civilian Authorities

During the 1980s and 1990s, Congress further revised Title 10 to add more provisions for military support to civil authorities.

For example, one provision authorizes the Secretary of Defense to provide any information "collected during the normal course of military training or operations" to local, state and federal law enforcement. Presumably, this does not authorize the Department of Defense to purposely collect information for domestic law enforcement officials. Nevertheless, the section goes on to say that "the needs of civilian law enforcement officials for information shall, to the maximum extent practicable, be taken into account in the planning and execution of military training or operations."

Congress even added a special exception to this section for chemical and biological emergencies. It gives the military the authority to provide special assistance to local law enforcement in these areas.

A third provision authorizes the Defense Department to use military personnel to train federal, state and local law enforcement officials on the operation of military equipment and any other matters relevant to the purpose of this chapter. This authorizes everything from specialized training in chemical decontamination to more generalized training in tactics.

The next provision goes even further. It allows the military to provide personnel to operate equipment such as helicopters and other special items that may be used by law enforcement. Military personnel may use their equipment for several purposes, including "detection, monitoring, and communication of the movement of air and sea traffic." But they can only use it outside the United States and within 25 miles of the border.

Closer to the border, the military personnel would "hand off" these contacts to law enforcement for interdiction. This exception was clearly carved out to support the war on drugs, and the way incoming drug shipments were acquired and apprehended.

Finally, another provision authorizes the military to play an active role in "emergency situations involving chemical or biological weapons of mass destruction." Added in 1996 by Congress, this exception authorizes the military, in broad terms, to support the Justice Department.

Most of these provisions require a determination by the Secretary of Defense that such assistance is necessary. Some require a joint determination by the Secretary of Defense and Attorney General. None explicitly require the approval of Congress or the federal courts.

Thus, there are just two major constraints on these powers. First, the Secretary of Defense (and sometimes the Attorney General) must authorize such action. Second, military personnel cannot play a direct role in the enforcement of civil law.

No One Has Suggested Giving the Military Domestic Search and Arrest Power

Given that these laws are already on the books, one might wonder what is really at the heart of the current debate over the Posse Comitatus Act and, more generally, over the supposed future expansion of the military's role in domestic law enforcement.

The closest that our troops now come to that kind of domestic law enforcement is the work they do on the borders under the auspices of the Border Patrol and Customs Service. And even there, American soldiers operate with an extremely limited set of rules of engagement.

They provide manpower and other forms of support. But they leave the searching and arresting to the professional Border Patrol officers who have the legal authority to do so.

Giving the military search and arrest power would truly make America into a police state. But that option need not be debated, for it has not been seriously proposed.

An Enlargement of Current Military Powers Is What Is Really At Stake

What is being proposed is an enlargement of the types of powers we already see today. They include, as I have described above, the enhanced use of military intelligence, surveillance and reconnaissance capabilities in coordination with domestic law enforcement authorities.

Some of these enhancements ought to be uncontroversial - for instance, few would complain about military authorities providing domestic police with enhanced information on terrorism threats from abroad. However, some may object to the use of sophisticated military-surveillance equipment inside our borders.

The debate over the military's role in American society is an important one, and these issues must be discussed in light of our present security concerns. But to have an effective debate, we must know the facts and law as they stand today. Our military has provided support to civil authorities for a long time, and it will continue to do so until Congress or the courts decide otherwise.


Phillip Carter left the Army as a military police Captain last summer; he currently serves part-time in the California National Guard and attends law school at the University of California, Los Angeles. His articles on military affairs can be found on his webpage.