Resurrecting in the Post-9/11 World By COL Craig Trebilcock abated, this policy may foreshadow is brief but to the where current trends are leading. point: Whoever, except in cases and under he Posse Comitatus Act is Posse comitatus means “power of the circumstances expressly authorized by the “T dead,” declared a headline on county,” and while it reflects the inher- Constitution or Act of Congress, willfully a political blog recently. At first glance ent power of the old-West county sher- uses any part of the Army or Air Force as a this seems mere hyperbole, an overre- iff to assemble a posse of able-bodied posse comitatus or otherwise to execute the action to the assignment of a U.S. men to supplement law-enforcement laws shall be fined under this title or im- Army Infantry brigade by the Bush ad- assets and thereby maintain peace, it prisoned not more than two years, or both. ministration to homeland security op- was enacted in response to the grow- It is equally important to examine erations in October 2008. More re- ing politicization of the Army during who is precluded from domestic law- cently, Military and the provost the , when feder- enforcement activity under Posse Com- marshal from , Ala., were al troops were asked, among other itatus as it is to determine who is deployed in south Alabama following things, to enforce post-Civil War poli- not bound. Specifically, the National mass murders there in March. Left un- cies in the South. The language of the Guard, when operating in Title 32

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May 2009 I ARMY 21 state-controlled status, and the U.S. law because it does not require the in- ment role and replaced it with a “trust Coast Guard are not prohibited from a vitation of a state’s civilian . me, I know what I’m doing” approach direct law-enforcement role. The Coast The Bush amendments to the Insur- to presidential authority. Guard may make arrests to enforce rection Act were included in the mas- Federalism, the sharing of power maritime law, and the National Guard sive 2007 Defense Authorization Act as between the states and the federal may arrest and detain civilians—when a bill rider. It changed the broad presi- government, is a cornerstone ideal of its orders from the state governor au- dential police powers of the Insurrec- the , embodied through- thorize such activity in the interest of tion Act, expanding their scope to in- out the Constitution, including in the public safety/security—without violat- clude employment at the President’s 10th Amendment: The powers not dele- ing Posse Comitatus. discretion during “natural disaster, gated to the United States by the Consti- Over time, there have been many his- epidemic or other serious public health tution, nor prohibited by it to the States, toric and statutory exceptions to the emergency, terrorist attack or incident, are reserved to the States respectively, or Posse Comitatus Act. Indeed, in the last or other condition [italics added].” Thus to the people. When the scope of this two decades of the previous century, the words of the Posse Comitatus Act power shift was fully recognized by the Department of Defense used the still existed within the federal U.S. Congress, it had a short political life Navy to interdict drug smuggling, sta- Code, but the principles underlying it and was revoked by the 2008 Defense tioned marines on the border with Mex- had been outmaneuvered and were ef- Authorization Act. In so doing, the ico to catch smugglers and routinely fectively dead, buried amid hundreds principles of federalism and the Posse utilized federal military personnel as a of pages of a funding bill. Comitatus Act were resurrected. security supplement at major civilian Against this background, however, sporting events, such as the Olympics. he desire by a President to protect the Bush administration assigned the Following the attacks of 9/11, the Posse TU.S. citizens from lawlessness and 1st Brigade Combat Team, 3rd Infantry Comitatus Act appeared to have lost all violence certainly seems a noble and Division, to the recently created U.S. relevance. That and the political heat appropriate use of executive branch Northern Command (NORTHCOM) President Bush took for a slow relief ef- authority at first glance. What drew in October 2008, as a “dedicated force fort following Hurricane Katrina left fire against the new Insurrection Act to respond to potential chemical, bio- the Bush administration frustrated with language was its virtually unlimited logical, radiological, nuclear and high- the limits it perceived as unduly re- granting of police power to the Presi- yield explosive (CBRNE) incidents in stricting the President’s use of the mili- dent. Under the amended language, the homeland.” Reacting to an outcry tary in homeland security operations. the decision of whether circumstances of civilian groups who opposed the as- To remedy this “defect,” the 2007 Na- warranted deploying federal troops signment, NORTHCOM future opera- tional Defense Authorization Act was into the streets, and for how long, was tions chief COL Michael Boatner made signed into law by President Bush in left solely to the discretion of the Presi- it clear in several interviews and arti- September 2006, containing language dent. Unlike prior Posse Comitatus Act cles that the present mission of the written by the administration that vast- statutory exceptions, this legislation unit “will not be called upon to help ly expanded presidential authority un- provided the federal executive with with law enforcement, civil distur- der the Insurrection Act. the authority to supersede and replace bance or crowd control.” The Insurrection Act is an exception a state’s civilian response to a domestic While these statements are reassur- to the Posse Comitatus Act, allowing upheaval, not merely to supplement it. ing and no doubt reflect current intent, the President to use the active Army— There were three fundamental power the Bush administration established a and other military branches—to re- shifts embodied in the amended Insur- new precedent by integrating active store the rule of law during times of rection Act. It completely removed the duty combat infantry into the domestic “insurrection, domestic violence, un- governors’ roles as commanders of their security operations fabric of the United lawful combination, or conspiracy.” state National Guard forces; the require- States. The 1st Brigade Combat Team is The original intent of the Insurrection ment for the governor to invite federal currently in place under NORTHCOM Act was that when a rebellion against intervention was circumvented, allow- command, ready for domestic deploy- the law reached a point when local ing the President to send federal forces ment. Future plans call for expansion to and state law enforcement were inca- into a civilian community against the include an aviation component, among pable of responding or when the wishes of a state’s chief executive even others. states themselves rebelled, the Presi- when the situation did not arise out of If this historic policy change is ac- dent might then intervene, using ac- an insurrection or rebellion; and the cepted and validated by the Obama ad- tive duty forces as a federal police provision’s vague language permitted ministration, a future President may force to restore order. While the term the President to utilize this new author- elect to expand or change that intent is frequently overused, and ity in other conditions of his own defin- and CBRNE mission to include civic often in the wrong contexts, this sce- ition. It effectively gutted the Posse disturbance operations. Perhaps it is nario described under the Insurrec- Comitatus Act’s limits against employ- only unfortunate timing, but the con- tion Act is the imposition of martial ing active duty troops in a law-enforce- current attempt to expand presidential

22 ARMY I May 2009 authority in the temporarily amended ment roles domestically and abroad. It is for these reasons, among others, Insurrection Act with the planning for There is no doubt that when things that Presidents prior to the Bush ad- and assignment of the 1st Brigade go really badly—in terms of a disaster ministration sought to minimize the Combat Team to a U.S. operational mis- or civil disturbance—the military pos- deployment of active duty military sion raises legitimate questions about sesses unique equipment and training forces within the United States. Com- whether the nation is incrementally re- capabilities that can lend stability to a bat troops are trained to inflict maxi- defining the role of the military for do- fractious situation. But when they cre- mum effective force upon an enemy mestic use without fully weighing the ated a republic in which the rule of abroad, not to adhere to domestic po- long-term consequences. law and civilian control of the military lice principles of avoiding force in all are founding principles, the founding but the most extreme circumstances. art of the challenge in establishing fathers placed tight legal constraints All the rules-of-engagement cards in Ppolicies and force structures for on the standing army’s ability to take the world do not change that fact. This homeland security is that two funda- to the streets and expected such use to reality sometimes blurs at the edges— mentally different missions can arise end at the earliest possible juncture to recent peacekeeping missions have re- out of one domestic security situa- restore the status quo. quired U.S. troops to replace foreign tion—the humanitarian response mis- While the military is one of the most civilian police—but it should not be sion and the law-enforcement security admired institutions in the country to- forgotten that those turbulent overseas mission. As such, the fundamental day, operational planners recognize missions are often accompanied with question for current domestic security that unintended consequences can oc- civilian casualties that would not be planners is, “How does the United cur when veteran combat soldiers are tolerated at home. Those embracing States employ one force package that placed in a position of authority over the premise that police and combat in- can perform both domestic missions, anxious civilians in a chaotic environ- fantry are complementary in their mis- if necessary?” This is an extension of ment. Tired, stressed teenagers with sions have likely not served with a the perennial challenge to military weapons make mistakes, and when well-honed veteran infantry unit and commanders who, while recognizing those mistakes are made on the na- should carefully consider the political that soldiers and marines are not civil- tional stage during a domestic up- fallout if combat troops act like com- ian policemen, are often called upon heaval, the consequences will be se- bat troops when a threat to them arises by politicians to perform law-enforce- vere both personally and politically. on a U.S. street during an emergency.

May 2009 I ARMY 23 Times have changed—foreign ene- country. The Second Amendment to the aforementioned competing principles. mies have attacked our soil. Our secu- Constitution is not just a “right to buy If, after such a debate, the political rity policies, which formerly looked guns” law, as it is often loosely viewed decision by the Obama administration for threats primarily abroad, must also today; the founding fathers recognized is that the nation’s security is so threat- change. Having a military unit’s unique the fundamental responsibility of the ened that it is time to set aside our his- logistics capability to respond to a so- state and its governor to preserve its toric principles for not building the ac- phisticated weapons of mass destruc- territorial security, writing into the tive duty military into our domestic tion attack makes sense to minimize ca- Constitution that a well regulated , security structure, then it can be said sualties. This fact, however, does not being necessary to the security of a free that the decision was made voluntarily, necessarily equate with abandoning the State, the right of the people to keep and intelligently and with full consideration principles underlying Posse Comitatus bear Arms, shall not be infringed. This of future consequences. And if the deci- by assigning an active duty combat in- provision and the 10th Amendment’s sion is that this is not in the nation’s fantry brigade to this role. reservation of power to the states when best interest, then the necessary plan- The National Guard is a key part of not granted expressly to the federal ning can occur now, in advance of a fu- the homeland security structure and government were both early political ture security emergency, so that an ef- has historically been the first level of expressions of the people’s healthy dis- fective response capability, composed military response to disasters, under trust of too much control and power in of state National Guard soldiers and the control of the state’s governor. the hands of a central government. other non-Title 10 assets, can be trained Composed of office workers, students While domestic security needs have and equipped to handle our future do- and civilian emergency personnel, changed since 9/11, the historic Ameri- mestic security needs. among others, the state National Guard can discomfort with the use of a stand- The Posse Comitatus Act’s underly- has a close link with its civilian roots ing army for domestic law enforcement ing principles protect the people’s lib- that is weaker with active duty forces. survives from these historic roots. erties as much as any soldier on point. National Guard soldiers train and live The United States is at a crossroads, They reflect that we are a nation of in the civilian areas where they would where long-term policy decisions as to laws and civilian control, not a mili- serve during times of crisis. The Na- the proper role of active duty forces in tary-backed regime where the threat tional Guard’s response during a do- our domestic security structure must of force preserves the government’s mestic emergency can bring the same be made. Current political leaders de- power. In the post-9/11 world, the chal- military logistical advantages without veloping those policies must weigh lenge exists to provide an agile re- undermining the state’s constitutional whether the threat to our domestic se- sponse capability to security threats role in protecting its soil, without hand- curity is sufficiently dire that we are without creating unrestricted executive cuffing an active duty unit’s ability to now prepared to weaken the princi- power. Future homeland security poli- respond when a civilian relief mission ples of federalism and civil liberties cies should be designed to limit the evolves into a law-enforcement situa- underlying the Posse Comitatus doc- employment of federal troops in do- tion and without undermining the trine by integrating active duty troops mestic security operations, not to ren- principles of Posse Comitatus. into our domestic security structure der them the preferred policy choice or While every servicemember swears on a permanent basis. to maximize their use. For all of its fail- an oath to protect the nation “against ings, perhaps the greatest value of the all enemies foreign and domestic,” the ny decision has the potential to Posse Comitatus Act is its mere exis- nation’s leadership recognizes—due Achange who we are as a nation tence, a reminder that the United to Posse Comitatus—that the latter and should be made in the open with States is not a nation that relies on its phrase does not mean tanks and sol- vigorous public debate between Con- standing Army to preserve domestic diers regularly patrolling civilian gress and the President of the advan- order. We should be careful not to cre- streets looking for those enemies. Our tages and liabilities of such steps. It ate a structure that makes access to that laws provide that only in the most ex- should not be done surreptitiously, asset too easy or frequent, lest it be treme circumstances when all civilian buried in a few lines of statutory lan- used too easily and too frequently. I state and local security efforts have guage in a telephone book-sized fund- failed should the military option be ing bill. It should not be a fait accompli COL Craig Trebilcock is a civilian attorney considered, and even then, the re- through the reassignment of infantry and an officer in the U.S. Army Reserve. sponse historically begins with the forces on a manning document, as this He is the author of two books, One Week- National Guard at the state level. is, at its core, a political decision. The end A Month and No Time for Ribbons, As such, the Posse Comitatus Act is decision to alter U.S. civilians’ historic about soldiers’ experiences in Iraq, in addi- not merely a law that restricts the uti- relationship with their armed forces tion to several articles on national security lization of active duty forces within the by expanding the mission of active issues. He is a 22-year Army veteran who United States. Rather, it is the statutory duty forces to include deployment to served in Iraq (2003–04) with the 1st Ma- expression of historic principles and our streets merits fresh review by the rine Expeditionary Force as well as in values that define who we are as a President and Congress in view of the peacekeeping efforts in the Balkans (1997).

24 ARMY I May 2009