Military Resists Domestic Role

But the Defense Department is quick to point out that the troops people see on the streets are not federal soldiers, but state National Guard troops, acting under orders from their governors. While military personnel are playing a supporting role in coping with the aftermath of the terrorist attacks in Washington and New York, they are not policing their fellow citizens. Since 1878, when Congress passed the Posse Comitatus Act, the military has been prohibited from operating in a domestic law enforcement role. The law, which is Latin for "power of the country," does not apply to the Coast Guard or the National Guard when called up by state governors.

Defense officials have repeatedly cited Posse Comitatus as a reason for limiting the military's role in fighting terrorism in the United States. But Posse Comitatus is not as prohibitive as many people believe. It is an evolving doctrine, says Craig Trebilcock, an immigration attorney with the firm of Barley, Snyder, Senft & Cohen in York, Pa., and a major in the Army Reserve. An erosion of the law's prohibitions over the last two decades has made it more of a procedural formality than an impediment to using military troops domestically, he says. Trebilcock is the author of "The Myth of Posse Comitatus," published in the online Journal of Homeland Security in October 2000.

First of all, the act is a statutory creation, not a constitutional prohibition. It was created when the distinction between criminal law enforcement and defense of the national borders was clearer. And Congress has repeatedly circumvented the law with subsequent legislation, says Trebilcock. In addition, the President can assign military personnel to respond to civil disturbances and to preserve federal functions in the event of an emergency.

U.S. troops have been called out to quell riots in Los Angeles, provide security for the Atlanta Olympics and patrol the skies of major cities following the Sept. 11 attacks. The courts have consistently upheld the role of the military for domestic security, says Trebilcock.

The biggest impediment to using the military for domestic law enforcement is a practical one, says Trebilcock. Warfighting skills are very different from policing skills. "You wouldn't take a New York City beat cop and drop him into a war zone," says Trebilcock. "Well, you can't do the opposite either."

Defense leaders repeatedly rebuffed suggestions from Transportation Secretary Norman Mineta that military personnel, including elite Delta Force special operations troops, be used to provide security on commercial airliners, at least until more air marshals could be trained following the Sept. 11 terrorist hijackings. Paul Wolfowitz, deputy secretary of Defense, said the department would do what it could to support Transportation with training or expertise, but Wolfowitz was hardly encouraging: "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."