The dirty little secret of the Posse Comitatus Act, experts say, is that it doesn't restrict much.
What is a posse comitatus, anyway?
This fine old scrap of Latin is invoked against any attempt to expand the military's role in domestic security. It came up in the drug wars of the 1980s, after 9/11, and most recently after Hurricane Katrina, when President Bush suggested "a broader role for the armed forces" in disaster relief. In the words of former Virginia Gov. James Gilmore, a Republican who chaired a commission championing state and local leadership in homeland security, "Posse comitatus stands for the principle that we should not use the military for law enforcement in this country."
Strip away the symbolism, however, and what remains is one obscurely worded sentence in Title 18 of the U.S. Code. As President Reagan's civil defense director, retired Army Col. John Brinkerhoff, wrote sarcastically in 2002, "Seldom has so much been derived from so little." The Posse Comitatus Act of 1878 threatens a prison term and fines -- although no one has actually been charged in the law's 127-year history -- against "whoever ... uses any part of the Army ... to execute the laws," unless, that is, they do so "under circumstances expressly authorized by ... Act of Congress."
So what are those circumstances? The answer lies in an even older law, the Insurrection Act, whose earliest provisions date to 1792. George Washington, as president, used the act in 1794 to repress the Whiskey Rebellion in Pennsylvania. The act's provisions were successively broadened under Presidents Jefferson, Lincoln, and finally Grant: "Whenever the President considers that unlawful obstructions ... make it impracticable to enforce the laws ... by the ordinary course of judicial proceedings, he may ... use such of the armed forces, as he considers necessary to enforce those laws."
Together, these two statutes open a loophole wide enough to march an army through -- which is precisely what President Eisenhower did to integrate schools in Little Rock, Ark., in 1957; what President Johnson did to suppress the race riots of the 1960s; and what the elder President Bush did to suppress the riots following the Rodney King incident in Los Angeles in 1992. The New Orleans looting of 2005 could easily have been added to that list, said Vermont Law School professor Stephen Dycus, lead author of the best-selling casebook on national security law. "The president has all the authority he needs," Dycus says.
"That's the dirty little secret about the Posse Comitatus Act," agreed Timothy Edgar, national security policy counsel for the American Civil Liberties Union. "It really doesn't restrict very much."
And yet this slender reed of law has been made a pillar of democracy. Why? The answer lies in a 200-year history of American ambivalence about the military's role in domestic law enforcement, an ambivalence nowhere more pronounced than in the military itself.
The Posse Comitatus Act is named for what it specifically forbids: the early practice of posse comitatus, literally "the power of the county," by which shorthanded civilian law enforcement officials -- a county sheriff in medieval England, a U.S. marshal in 19th-century America -- could, in an emergency, deputize a posse of royal or federal troops from the nearest fort.
In the 19th-century United States, posse comitatus became entangled with the bitter issues of states' rights and race. Federal officials would deputize troops to enforce laws where the local authorities refused to. Such troops hunted fugitive slaves in the North before the Civil War and protected black voters in the South afterward. The cynical compromises of 1876-78 that ended Reconstruction also ended the deputizing of troops, by legislating criminal charges against any marshal who ever again called up soldiers for a posse.
That prohibition, however, never applied to a governor's calling up his own state's militia -- what today is called the National Guard. Nor does it apply to federal troops that provide aid after disasters -- search and rescue, medical care, food, etc. -- as codified under the 1988 Stafford Act, which also created the Federal Emergency Management Agency. The prohibition does not even apply to federal troops' providing "support for civilian law enforcement," as long as they do not enforce the law themselves: 12 long sections of the U.S. Code (Title 18, Section 371-382), mostly passed during the "war on drugs," instruct the Defense Department to offer intelligence, training, and equipment, stopping short only of "direct participation by any member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity."
The military has always been ambivalent about such domestic duties. The 19th-century War Department issued orders restricting posse comitatus even before the 1878 ban, and the modern Defense Department has built up that one-line law into reams of regulations. "Posse comitatus is overused by the military to avoid missions they don't want," said retired Air Force Col. Randall Larsen, an outspoken homeland-security expert. A pair of Coast Guard lawyers, Capt. Gary Felicetti and Lt. Cmdr. John Luce, were even harsher in a 2004 article in the military magazine Parameters: "A misleading [Defense Department] regulation that requires an army of lawyers to navigate [is] used to ward off undesired and potentially resource-depleting missions."
Yet, at the same time, the military's Northern Command -- in charge of protecting the U.S. homeland -- plans for a possible leading role in "catastrophic" emergencies, and military manuals acknowledge the exception to the Posse Comitatus Act for "federal troops acting pursuant to the presidential power to quell insurrection."
The Insurrection Act is old-fashioned and blunt, starting with its title. "At least we ought to rename that; that's a minimum," implored Senate Armed Services Chairman John Warner, R-Va., the one legislator to press consistently, and fruitlessly, for changes to these laws. But the text itself stands out amid more-modern and more-modest sections of the U.S. Code like a Viking warrior at a tea dance. Title 10, Section 331, of the Insurrection Act simply permits the president to send federal troops to the aid of a state government. Section 332, a little stronger, allows the president to send troops even without the state's invitation. Section 333 specifically authorizes federal intervention if state authorities "fail or refuse" to protect the rights of any citizens group. These clauses, Dycus said, "provide the president with all the authority he could ever want to use military forces for law enforcement, quarantines, and so on."
The only limit is a single sentence at the end -- Title 10, Section 334 -- that requires the president first, before he uses the military, to publicly order any insurgents to disperse. This one formality is critical, Dycus insists. Without this proclamation clause, the president could delegate to some unelected official the Insurrection Act's authority to declare an emergency and to enforce the law with troops. Similarly, without the narrowly tailored Posse Comitatus Act in place, any U.S. marshal could call in the troops even when there was no emergency at all.
But as the laws now stand, Dycus said, "the key point is that it is the president's call. He's got to make a public pronouncement; he has to take a public position and face the political consequences. The genius in this arrangement -- which gives the president extremely broad authority -- is that it also includes political accountability for the highest elected official in the country." If that makes presidents think twice, perhaps it's just as well.