Resurrecting Posse Comitatus in the Post-9/11 World By COL Craig Trebilcock abated, this policy may foreshadow Posse Comitatus Act 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 Police and the provost the Reconstruction era, when feder- enforcement activity under Posse Com- marshal from Fort Rucker, 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 Help AUSA continue to be the Voice for America’s Army he Institute of Land Warfare (ILW), the educational arm of AUSA, publishes papers and Torchbearers that educate the Administration, TCongress and the general public on issues directly affecting America’s Army and our Soldiers. The printing of these papers costs money and ILW, as a non-profit, must depend on contributions. Help ILW continue to ensure that America has the strongest Army possible and that our Soldiers are taken care of. For more information, please contact Millie Hurlbut at 703-907-2679 or [email protected]. 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 governor. 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 United States, 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 martial law 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.