The Law of Posse Comitatus
Police and military powers
once statutorily divided are swiftly merging
by Lynne Wilson
CovertAction Quarterly magazine,
Terrorism is escalating to the point that
Americans soon may have to choose between civil liberties and
more intrusive means of protection...
Former Secretary of Defense William S.
Army Times, October 27, 1998
President Bush unveiled his broad "Homeland
Security" department proposal in mid-July, including "a
review of the law that could allow the military to operate more
aggressively within the United States." The proposal champions
a "greater involvement of military personnel" in "domestic
preparedness and response efforts." Prior to this broad proposal,
Department of Defense (DOD) officials repeatedly stated that they
had no intention to recommend rewriting or repealing the Posse
Comitatus Act, a post-Civil War statute that restricts the military's
ability to participate in civilian law enforcement. That cautious
approach has now been openly abandoned.
At this point, it may not matter. Not
much of the Posse Comitatus Act is left to repeal. Whatever viewpoint
you come at it from, whether from the perspective of an Army Delta
Force commander or an antiglobalization activist, the Posse Comitatus
Act no longer provides the strong wall between the military and
domestic law enforcement for which it was originally intended.
"The military has been dragged into
various internal security roles for a long time now," recently
commented Peter Kraska, an expert on the militarization of local
The Posse Comitatus Act states simply:
Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as a posse comitatus
or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.
Congress passed the Posse Comitatus Act
in 1878 to end military occupation of the defeated Southern states
during the Reconstruction period. Southern Democrats had complained
bitterly about the oppressive use of the military in a law enforcement
role. The Act incorporates a founding American principle of keeping
the nation's military forces separate from and subordinate to
the "Civil Power.''
The Act embodies the long-standing principle
in Anglo-American law that there should be a total separation
of military from civil law enforcement. As one southern Senator
stated during debates over the Act, "whenever you conclude
that it is right to use the Army to...discharge those duties that
belong to civil officers and to the citizens, then you have given
up the character of your Government; it is no longer a government
for liberty...it has become a government of force.''
That the Act provides much less of a shield
against a "government of force" than its framers intended
is the result of complex factors. Part of what has led to the
erosion of military/civil law enforcement separation is the language
of the Act itself. Unlike a constitutional provision such as the
Fourth Amendment, it does not have the status of Supreme Law and
can be amended or repealed or excepted by a simple congressional
majority. Also unlike the Fourth Amendment, courts have consistently
admitted, rather than excluded, evidence obtained in violation
The Posse Comitatus Act is relatively
narrow in its scope. For example, the Act appears to prohibit
indirect involvement such as the supply of support, training,
intelligence and equipment to civilian law enforcement. But courts
have consistently interpreted its language to proscribe only direct
military involvement in the execution of laws. Only one court
has interpreted the Posse Comitatus Act broadly, finding the Act
"absolute in its command and explicit in its exceptions.''
When applied in the context of an individual case, most courts
essentially look the other way when a military officer is involved.
Furthermore, the Act only applies on its
face to two military branches, the Army and the Air Force. It
has been held to apply to the Navy and Marines by DOD regulation.
It does not apply to the Coast Guard.
Because the federalized National Guard
is part of either the Air Force or the Army, it is covered by
the Act. When acting as a militia, however, a state's National
Guard is exempt from the Act's proscriptions. By definition, state
militias are armed and trained separately from regular armed forces.
Under this "State Militia" exemption, state National
Guard troops are free to make arrests and to conduct otherwise
prohibited searches at airports and elsewhere.
Congress has approved the direct use of
military troops during civil disturbances. These provisions grant
the President the authority to use military troops to enforce
civilian laws where a state has requested assistance or is unable
to protect its citizens or property. An order to disperse must
first be given. This statutory exception potentially encompasses
any civil disturbance that might arise from "terrorist activity."
It was used to justify the presence of active duty Army personnel
in Los Angeles during the 1992 rioting subsequent to the Rodney
King incident. The mere potential for a "civil disturbance"
or a terrorist attack at the 1996 Olympics in Atlanta drew over
10,000 U.S. troops and only a faint protest from Congress.
On its face, the Act only provides criminal
sanctions as a remedy for violations. However, no one has ever
been prosecuted for violating it. Criminal prosecution by the
government is the only remedy, as the act by its terms does not
give individuals the right to sue. Although attempts have been
made to obtain civil damages for violations of the Act, recovery
has only been successful against military officials for violating
a plaintiff's Fourth Amendment rights under Bivens v. Six Unknown
Courts have also consistently upheld military
involvement in local law enforcement where a military purpose
such as a "sting" operation justified the involvement.
Consistent with the act's language, courts require the active
involvement of military officers at the request of local law enforcement
before a violation will be found. Such cases are almost nonexistent.
Under this interpretation, U.S. Army Delta Force involvement during
the 1999 Seattle anti-WTO protests did not violate the Posse Comitatus
Act because the involvement occurred at the request of Secretary
of State Madeleine Albright, not the mayor of Seattle.
THIS JUST IN
One of the most hawkish congressional
enthusiasts for Bush's plans to send U.S. troops to the streets
of Baghdad is Joseph Biden, Democrat of Delaware. Apparently he
wants to see the same troops on the streets of U.S. cities. Interviewed
on Fox News on July 21, he strongly endorsed giving power of arrest
to U.S. soldiers. Posse Comitatus, said Biden "has to be
amended." Even Mr. Homeland Security Tom Ridge begged to
Prior to the "War on Drugs,"
military involvement in local law enforcement efforts was a relatively
rare occurrence. The key exceptions were the use of military equipment
and advisers during the large student demonstrations of the early
1970s and in the 1973 American Indian Movement occupation at Wounded
Knee, South Dakota. Criminal litigation arising out of Wounded
Knee did much to simultaneously clarify and confuse what military
behavior does and does not constitute a violation of the Posse
Comitatus Act. The litigation also illustrates how fluid the boundaries
of the Act are.
During AlM's takeover of the Pine Ridge
Reservation at Wounded Knee, Army officers and the South Dakota
National Guard supplied local law enforcement officials with military
equipment including ammunition, weapons, flares, and armored personnel
carriers. Mechanics from both the Nebraska and the South Dakota
National Guards repaired and maintained the personnel carriers.
The U.S. government charged four AIM defendants
with obstructing justice in violation of 18 U.S.C. §231(a)(3),
an offense requiring interference with any "law enforcement
officer lawfully engaged in the lawful performance of his official
duties.'' Each federal court assumed that the National Guards
had been federalized and were thus subject to the Act.
Each of the four defendants argued that
the government could not prove "lawful performance"
because civil reliance on military assistance at Wounded Knee
violated the Posse Comitatus Act. Although the four federal courts
looked at the same evidence, each came to a separate conclusion.
The Banks court granted the motion for acquittal on the obstruction
charges, stating that civil law enforcers had used the military
"as a posse comitatus or otherwise." The Jaramillo court
held that while the Act does not per se prohibit the furnishing
of military equipment such as armored personnel carriers, advice
rendered by military officers and the equipment maintenance performed
by military personnel so "pervaded" the activities of
civilian personnel that there was a reasonable doubt as to whether
law enforcement officers were lawfully engaged in the performance
of their duties.
The Red Feather court agreed that "direct
active use" of military materiel violates the Act. But the
Red Feather court went further to list what "active"
military roles are forbidden in civil law enforcement: arrests,
seizing evidence, searching persons or buildings, investigating
crimes, interviewing witnesses, pursuing escaped prisoners and
searching for suspects. In addition, the Red Feather court held
as acceptable certain "passive" military roles that
indirectly aid civil law enforcers, including the presence of
military personnel giving advice or recommendations on tactics
or logistics, delivering and maintaining military materiel, training
civilian officials in the use and care of equipment and conducting
Significantly, the McArthur court, like
the Red Feather and Jaramillo courts before it, concluded that
the Act forbade neither the military's giving materiel or equipment
to civil law enforcers, nor the lending of military advisers.
However, although three of the four Wounded Knee courts came to
this conclusion, none agreed on the standard to be applied to
determine when the Act has been violated.
The disagreement among the Wounded Knee
courts has created confusion about the Act's parameters. Four
different levels of military involvement have been ruled to be
* as long as citizens are not subjected
to military compulsion;
* if it does not involve direct active
use of troops in civil law enforcement;
* presence of military personnel must
not pervade or influence the actions of civil officials; and
* mere presence of military advisers is
On appeal, the federal Eighth Circuit
Court of Appeals upheld the Wounded Knee convictions. In so doing,
however, it merely agreed with the McArthur court's rationale
that so-called "passive" military involvement is not
prohibited. It did little to clarify what military activities,
especially in the context of a mass protest, cross the Act's boundaries.
Then came the Drug War in the early 1980s.
This was the beginning of an almost obsessive congressional determination
to insert a military presence into domestic drug law enforcement,
regardless of Posse Comitatus. After the inconsistencies of the
Wounded Knee cases, confusion persisted in the courts over what
level of military involvement constituted a violation of the Act.
Of particular concern was just where "active" participation
ended and "passive" participation began. Because of
conflicting court interpretations, military authorities expressed
reluctance to assist civil law enforcement in the drug war even
if the aid might be considered "legally proper."
Congressional hearings were held in 1981
to consider whether amendments to the Act were needed that would
more clearly enable the military to "passively" provide
intelligence, materiel, transport services, and training to local
law enforcement agencies. In debating the proposed amendments,
members likened drug smugglers to an "invading army"
that was pitted against local law enforcers so lacking in resources
that they could interdict only 15% of the then $80 billion worth
of drugs flowing into the country annually.
Congress passed amendments to the Posse
Comitatus Act as part of the DOD Authorization Act of 1982. The
amendments passed over the numerous objections of civil liberties
groups. Most important of these was the prediction that even passive
military assistance, such as the provision of equipment and equipment
operators on a routine basis, would unduly threaten the civil-military
separation. Further, the ACLU warned that permitting military
personnel to train civilians in the operation of military equipment
would allow the military to assume functions that should be the
responsibility of police academies.
The 1981 amendments to the Posse Comitatus
Act permit the military to provide civilian law enforcement officials
with information, equipment and facilities as well as training
and advice. They further give military personnel limited authority
to actually operate or maintain equipment made available to civilian
forces in certain situations such as aerial reconnaissance when
enforcing drug laws. Courts have interpreted these amendments
as permitting the use of both military equipment and military
operators to assist local police officers in searches for drugs.
Later amendments to the Posse Comitatus
Act include a 1987 requirement that the Secretary of Defense conduct
an annual briefing for local law enforcement personnel in each
state regarding the "information, technical support, and
equipment and facilities available to civilian law enforcement
from the Department of Defense." This section also requires
that the DOD make available to these law enforcement officials
a comprehensive list of all the "suitable" military
In addition, Congress specifically amended
the Act in 1993 to provide procedures for states (and local agencies)
to purchase "law enforcement equipment suitable for counter-drug
activities" through the Department of Defense. What these
amendments have meant is the proliferation of local police use
of military equipment (flash-bang grenades, assault rifles, armored
personnel carriers) that are accouterments of war. Anyone who
has participated in anti-globalization protests such as those
in Seattle or Washington, DC, has witnessed the proliferation
of armored personnel carriers as weapons of intimidation. The
use of such equipment is permissible under both amendments to
the Posse Comitatus Act as well as court interpretations that
approve of the use of military equipment by civilian law enforcement.
Other courts have gone further to say
that there are no limits on a state governor's powers to use the
National Guard "to execute the laws." Further, courts
have also said that all a governor has to do is to "generally
authorize" use of the National Guard, leaving implementation
and supervision up to local police. At least one state court has
held that such an arrangement (almost by definition) does not
violate a state constitutional requirement that the "military
must at all times be subordinate to civil authority."
COUNTER-TERROR AND BEYOND
In January 1999, the Department of Defense
asked President Clinton to appoint a "military leader"
in the event of a terrorist attack on U.S. soil. The powers of
this "Homeland Defense Command" leader were left unclear.
Also left unclear was just how far the U.S. Army can exercise
"Homeland Security" law enforcement activities in light
of what is left of the Posse Comitatus Act.
We now have a "terrorist attack"
and the formation of a new "Homeland Security Department"
seems imminent. What is left of the Posse Comitatus Act is being
bent into strange contortions. At least 1,600 federalized National
Guard troops now patrol "homeland security" activities
along U.S. borders under the supervision of federal law enforcement
agencies. These troops are considered exempt from the Act since
they are somehow no longer part of the Army or Air Force once
deputized and are rather under the operational control of a federal
law enforcement agency. State-controlled National Guard troops
patrol airports. The Senate Armed Services Committee has recommended
expanding the use of federally funded state National Guard troops
to perform other "homeland security" activities "as
has been the practice for more than a decade in connection with
counter-drug activities" authorized under 32 U.S.C. §112.
Other congressional discussions encompass
the last Posse Comitatus barrier, that of involving the U.S. Army
directly in routine state and local law enforcement activities
of search, seizure and arrest. Last October, Senator John Warner
(R-Va) ranking member of the Armed Services Committee, openly
questioned the value of retaining the Posse Comitatus Act. Most
military leaders don't even want the burden. Deputy Secretary
of Defense Paul Wolfowitz rejected a suggestion that Army Delta
Force troops be used to provide airliner security by saying: "This
is fundamentally a civil function. It doesn't require all the
exotic training that Delta Force members have. It requires law
enforcement training that our people don't have."
But the last wall erected by the Posse
Comitatus Act has more to do with our basic values and the democratic
principles on which our country was founded and by which we profess
to live than it does with the practicalities of training. As former
Secretary of Defense Caspar Weinberger stated bluntly, military
involvement in civilian law enforcement is "extremely repugnant
to a democratic society." It is truly a frightening thought
that Americans might out of fear of terrorism choose "a more
intrusive means of protection" over democracy, civil liberties
and egalitarian values.
Lynne Wilson is a Seattle attorney who
writes about police misconduct and new police technology for CovertAction
and the National Lawyers Guild. She received the 2002 Paul Robeson
Peace and Justice Lawyer of the Year award from Mothers for Police
Democracy in America