Running Head: POSSE COMITATUS ACT

The Posse Comitatus Act: A Dangerous Relic
Jack Monell, PhD.
Capella University
July, 2009

Abstract
The events preceding, during and after Hurricane Katrina have proven to be a turning point for the President’s responsibility and authority to use federal, especially active duty military forces, resources and personnel to respond to a large scale unprecedented disaster. Previous Presidents have proven that the Office of the President can and will use federal military forces to assist State Governors and U.S. Territories in the event of a natural or man-made disaster and even to quell large scale violence and riots. It has been the ever present and often misunderstood Posse Comitatus Act that has proven to be an Achilles Heel in the formulation of a proper response to the use of federal military forces, personnel and equipment. The foresightedness of our leaders, both military and civilian, has delivered several exceptions and statutory authorizations to mitigate some of the restrictions previously imposed. But the plight of our National Guard readiness has been called into question more often than once, especially in light of the upsurge in federal deployments overseas in active combat roles. Our National Guard are not prepared, although they may be ready and willing. The Defense Support to Civil Authorities doctrine of the Department of Defense must be expanded and that includes re-looking at the Posse Comitatus Act of 1878.

Introduction
Urban Myth: The Posse Comitatus Act 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 that two years, or both.
- Title 18, U.S. Code, Section 1385 The words above are what many know as the Posse Comitatus Act. That is all there is! Nothing more! And yet these fifty-one words have shaped military doctrine and political policy since 1878. The Posse Comitatus Act was enacted in 1878 in response to the military occupation and use of military forces by U.S. Marshalls in the southern states during and after The Reconstruction Period. An article written in 2003 titled Posse Comitatus Act: A Harmless Relic from the Post-Construction Era or a Legal Impediment to Transformation has summed up the current belief by many about the Posse Comitatus Act saying, “[a]t its inception, PCA [posse comitatus act] was the wrong tool for the wrong job” (p. 16). The imposition of and use of military forces to seize, or arrest, civilians certainly exposes our basic system of government to the threat of military rule and the possible suspension of our basic Constitutional rights and liberties. A 2005 Congressional Report addressed the recent use of federal military members in the wake of Hurricane Katrina, recognizing that the use of federal troops pose a risk to individual liberties and the sovereignty of the states (p. 1). According to Stephen Halbrook, PhD., our democratic history has proven that by relying on the people, or citizens, of our city and state we “promote popular participation in law enforcement” and thereby “prevent authoritarian rule by the use of the military to enforce law” (p. 7). Even the Father of our Constitution, James Madison wrote to the Federal Marshals, at the direction of President Thomas Jefferson, “Should any aid be necessary you will call for the assistance of the good citizens of the district as the posse comitatus or civil power of the territory.” After the Civil War the Southern states had entered a period from 1865 to 1877 commonly known as The Reconstruction Period. During this time the U.S. Army occupied the Southern states, served with public order and police powers, exercised judicial proceedings and asserted martial law functioning as local government offices. According to John Brinkerhoff (2002) the Civil Rights Act of 1866 validated the use of the U.S. Army and this empowered the U.S. Marshals to “summon and call to their aid the posse comitatus of the counties, or portions of the land and naval forces of the United States, or of the militia.” Posse Comitatus is defined by Black’s Law Dictionary as: “the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc.” Since 1878 the Posse Comitatus Act was seen several amendments and exceptions levied against it in an attempt to meet the threat and politics of the day. The Insurrection Act was passed by Congress in 1807, prior to the Posse Comitatus Act of 1878, delegating authority to the President to call upon the military during an insurrection, rebellion or civil disturbance – act the request of the state government. However, since that time it has been used in part by the state and federal authorities to quell civil disturbances. Kevin Govern, author of Making Martial Law Easier, offers several examples of exempted and permissible domestic federal military operations. During the 1919 race riots that encompassed over 20 cities throughout our nation, President Wilson order federal troops into the streets to deal with the violence and restore order. In 1932 President Hoover used federal military forces to remove over 20,000 World War I veterans that had taken over the Washington Mall in protest. During the 1957 desegregation violence, President Eisenhower federalized the Arkansas National Guard and also called up federal troops to counter the violence. President Kennedy sent federalized National Guard and federal troops into Mississippi and Alabama to counter the 1962 racial violence. President George H.W. Bush actually sent federal troops twice; in 1989 to St. Croix, U.S. Virgin Islands to quell civil disturbances and proved disaster assistance after Hurricane Hugo and then in 1992 into Los Angeles, California to restore order after the racial riots of the Rodney King case. And most recently, President George W. Bush sent federal troops into the Gulf Coast after Hurricane Katrina to quell riots, unrest, restore order, and provide disaster relief (Govern, 2007, p. 224). What is important to understand, especially in light of the Katrina Operation, is that both federal and National Guard troops responded to the event. But the federal troops were harshly scrutinized and hampered by those senior military officials, politicians, media and others screaming “Posse Comitatus” all the while these thousands and thousands of federal troops were down there without any ammunition – only the National Guard had both the legal authority and equipment, although limited, to enforce lawful order and restore peace by force if necessary. It is this disparity of policy, equipment, training and immediate response capability that has driven senior military officials, subject matter experts, legal analysts and the like to question the continued validity of the Posse Comitatus Act in its purest form. Under typically ordinary circumstances the National Guard, both Army and Air, are not encumbered by the Posse Comitatus Act as long as they stay under Title 32 status belonging to the state governors for command and control. While this is a key element to the support the local and state governments these forces, its members and equipment have been seriously depleted due to the prolonged Global War on Terror and the unprecedented use of guard members in Title 10, Active Duty, combat roles overseas. In 2007 these deficiencies were brought to light in a huge way as everyone from our State Governors to Lieutenant General Steven Blum, Chief, National Guard Bureau made comments such as these: GAO Report, January 2007 “The high use of the National Guard for federal overseas missions has reduced equipment available for its state-led domestic missions, at the same time it faces an expanded array of threats at home.” Lt. Gen. H. Steven Blum, Chief, National Guard Bureau “They (the governors) are rightfully concerned that while the personnel part of the Guard has never been better, never been more ready, the equipment piece to the National Guard back here at home has never been less ready, and they are trying to resolve that obvious disconnect…The message is clear: What we have in the budget does not produce the level of readiness that they feel comfortable with.” North Carolina Governor Michael Easley, Co-lead on National Guard issues for the National Governors Association “We the governors rely on the Guard to respond to natural disasters, a pandemic or terrorist attack…Currently, we don’t have the manpower or the equipment to perform that dual role” of responding to both state and federal needs.
Source: The Gavel – Blog Archive of The Speaker of the House. National Guard Readiness. Since the inception of the Posse Comitatus Act there has been numerous statutory exceptions, many case examples have already been provided. Other such exceptions include; (1) Military Support for Law Enforcement Agencies, 10 U.S.C. 371-382 – allowing military forces to share information and equipment to civilian law enforcement agencies, but prohibiting search, seizures and arrests, (2) Inherent Emergency Power – although not a statutory exception, it is an identified inherent right under the Constitution for the preservation of public order to carry out governmental operations, by force if necessary, (3) The Stafford Act, 42 U.S.C. 5121 – authorizing the President to make an enormous range of federal and military aid available to states victim of man-made and/or natural disasters, (4) the Emergency Assistance (10-Day Authority), 42 U.S.C. 5170 – the President may order the Department of Defense to assist requesting Governors to preserve life and property before a Presidential declaration for up to 10 days and also (5) The Immediate Response Authority, a Department of Defense doctrine that allows military commanders to provide equipment, resources and assistance to local authorities without any declaration if that commander feels the capabilities of the local authorities are overwhelmed. The Posse Comitatus Act was enacted on 18 Jun 1878 to remove the U.S. Army from the Southern states and prohibit the U.S. Marshals from abusing their previous authority to call upon the military to deal with public order and police incidents. Many authors and analysts, including this one, will argue that the Posse Comitatus Act was designed for a specific purpose and that it’s time is over, and never should have been. The United States has entered a new era of not only global complex threats, but serious debilitating domestic threats and disasters that demand an immediate response capability currently unmatched by any other organization than the U.S. military. The restrictions imposed on our military are the result of senior military officers, policy makers and others based on a failed understanding of the Posse Comitatus Act and its true intent.

Concluding Remarks In 2001 the Quadrennial Defense Review declared that homeland security should be the primary mission of the Department of Defense and that even before the attacks of September 11, 2001 that the Department of Defense was seeking a “new strategy for America's defense that would embrace uncertainty and contend with surprise” (p. III). The crisis of Hurricane Katrina shed light not only on the ill preparations of the Federal Emergency Management Agency, but the chaotic and confused response by the active duty military and National Guard because of their lack of preparation and misunderstanding of an archaic and misunderstood Posse Comitatus Act that has served to be a vulnerability to our nations ability to prepare for, respond to and recover from both man-made and natural disasters and emergencies. Finally, it has never stopped President’s from calling upon the military when the need was overwhelming. The Posse Comitatus Act of 1878 has outlived its original intent and is a dangerous relic.

References
Bradley, M., Stephens, S., & Shaw, M. (2007, October). The Posse Comitatus Act: Does It Impact the Department of Defense during Consequence Management Operations?. Army Lawyer, Retrieved June 7, 2009, from International Security & Counter Terrorism Reference Center database.
Brinkhoff, J. (February 2002) The Posse Comitatus Act and Homeland Security. Homeland Security Journal. Retrieved June 4, 2009, from http://www.homelandsecurity.org/journal/Articles/brinkhoffpossecomitatus.htm
Elsea, J. (September 16, 2005). The Use of Federal Troops for Disaster Assistance: Legal Issues. Congressional Research Service Report for Congress. Retrieved July 7, 2009 from http://www.ncseonline.org/NLE/CRSreports/07May/RS22266.pdf
Govern, K. (2007, Fall2007). Making Martial Law Easier in the U.S. Homeland Security Review, 1(3), 221-229. Retrieved July 9, 2009, from International Security & Counter Terrorism Reference Center database.
Halbrook, S. The Posse Comitatus Act, The Constitution, and Military Enforcement of Drug Laws. Retrieved on July 8, 2009 from http://www.stephenhalbrook.com/law_review_articles/posse-comitatus.pdf
Leshinsky, E. (December 2006) Masters Thesis. Prepared for Disaster? Improving the Department of Defense’s Immediate Response Authority. Center for Homeland Defense and Security. Naval Postgraduate School. Monterey, California.
National Guard Readiness (2007). The Gavel – Blog of The Speaker of The House. Retrieved July 10, 2009 from http://www.speaker.gov/blog/?p=346
Quadrennial Defense Review of 2001 (September 30, 2001) Department of Defense. Retrieved June 6, 2009, from http://www.defenselink.mil/pubs/pdfs/qdr2001.pdf
The Posse Comitatus Act: A Harmless Relic From The Post-Reconstruction Era or A Legal Impediment To Transformation? (September 2003). Posse Comitatus Act: A Harmless Relic from the Post-Construction Era or a Legal Impediment to Transformation?, Retrieved June 7, 2009, from International Security & Counter Terrorism Reference Center database.
Trebilcock, C. (2000) Posse Comitatus – Has the Posse Outlived its Purpose? Retrieved June 4, 2009, from http://www.csis.org/media/csis/pubs/trebilcock.pdf