The Magazine

Fighters, not First Responders

Against a larger domestic role for the U.S. military.

Oct 24, 2005, Vol. 11, No. 06 • By MACKUBIN THOMAS OWENS
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THE MAGNITUDE OF THE KATRINA disaster and the subsequent failure of local, state, and federal agencies to react in a timely manner have led some to call for an expansion of the military's role in domestic affairs. "The question raised by the Katrina fiasco," writes Daniel Henninger of the Wall Street Journal, "is whether the threat from madmen and nature is now sufficiently huge in its potential horror and unacceptable loss that we should modify existing jurisdictional authority to give the Pentagon functional first-responder status."

The president has apparently agreed that the issue deserves a look. In a national address last month, President Bush asked Congress to consider a larger role for U.S. armed forces in responding to natural disasters. "It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces--the institution of our government most capable of massive logistical operations on a moment's notice."

In a recent press briefing, he returned to the issue: "Is there a natural disaster--of a certain size--that would then enable the Defense Department to become the lead agency in coordinating and leading the response effort? That's going to be a very important consideration for Congress to think about."

The president is even contemplating using the military to address public health crises, specifically an outbreak of avian flu. In response to a reporter's question, President Bush suggested that an outbreak might trigger the need for a quarantine. "And who is best to be able to effect a quarantine? One option is the use of a military that's able to plan and move." He continued by observing that, as governor of Texas, he didn't like the idea of the president telling him how to command the Texas National Guard. "But Congress needs to take a look at circumstances that may need to vest the capacity of the president to move beyond that debate. And one such catastrophe, or one such challenge, could be an avian flu outbreak."

Some in Congress had already raised the issue. Even before the president's speech, John Warner of Virginia, chairman of the Senate Armed Services Committee, wrote a letter to Defense Secretary Donald Rumsfeld, saying that his committee would be looking into "the entire legal framework governing a president's power to use the regular armed forces to restore public order in . . . a large-scale, protracted emergency." He asked the secretary of defense to take the issue under consideration. In response, Rumsfeld informed Warner that the Pentagon was reviewing pertinent laws, including the 1878 Posse Comitatus Act, to determine whether revisions that would give the military a greater role during major domestic disasters are needed. In response, Admiral Timothy J. Keating, commander of U.S. northern command, the joint command responsible for homeland defense, has proposed that the military create an active-duty force specifically trained and equipped to assist the National Guard in response to major national disasters.

On the one hand, the call for increasing the military's role in domestic affairs is understandable. The military can respond to disaster in ways that local, state, and other federal agencies can't. On the other hand, those who demand a greater domestic role for the military must consider the impact of such a step on healthy civil-military relations in the United States. In addition, they must also take account of the fear, traditionally expressed by officers, that involving the military in domestic tasks will undermine the war-fighting capabilities of their units and cause their "fighting spirit" to decline.

A DECADE AGO, an Air Force staff judge advocate officer painted a disturbing picture of future civil-military relations if the military became involved in domestic affairs. Charles Dunlap described his article, "The Origins of the American Military Coup of 2012," published in the Winter 1992-93 issue of Parameters, the professional journal of the U.S. Army, as a "darkly imagined excursion into the future." The article takes the form of a letter from an officer awaiting execution for opposing the military coup that has taken place in the United States. The letter argues that the coup was the result of trends identifiable as early as 1992, including the massive diversion of military forces to civilian uses.

In words eerily similar to those we hear in today's debate, Dunlap's doomed officer opines that in the 1990s Americans became disillusioned with the apparent inability of elected government to solve the nation's dilemmas. "We were looking for someone or something that could produce workable answers. The one institution of government in which the people retained faith was the military." Buoyed by the military's obvious competence in the first Gulf War, the public increasingly turned to it for help. Americans called for an acceleration of trends begun in the 1980s: tasking the military with a variety of new, nontraditional missions, and vastly escalating its commitment to formerly ancillary duties.

Though not obvious at the time, the cumulative effect of these new responsibilities was to incorporate the military into the political process to an unprecedented degree. These additional assignments also had the perverse effect of diverting focus and resources from the military's central mission of combat training and war-fighting.

What Dunlap describes in this article is the "salami slice" method of overthrowing democratic government: Instead of a coup d'état that seizes the government all at once, power is taken one slice at a time. The military is asked to do more and more in the domestic arena and finally concludes that it might as well run the government as a whole. This coup is the result of an accretion of power by the military. But in the end, the result is the same: a military good at maintaining itself in power, but unable to defeat a foreign enemy.

Dunlap's essay was the opening shot of a decades-long debate over the state of American civil-military relations. During the 1990s, a number of events led observers to conclude that all was not well with civil-military relations in America. Some of the most highly publicized events reflected cultural tensions between the military as an institution and liberal civilian society, mostly having to do with women in combat and open homosexuals in the military.

But more serious examples of civil-military tensions included the military's resistance (foot-dragging) to involvement in constabulary missions and the charge that General Colin Powell, then chairman of the Joint Chiefs of Staff, was illegitimately invading civilian turf by publicly advancing opinions on foreign policy. In addition, there were many instances of downright hostility on the part of the military toward President Bill Clinton, whose anti-military stance as a young man during the Vietnam war did not endear him to soldiers. Many interpreted such hostility as just one more indication that the military had become too partisan (Republican) and politicized.

These events generated an often-acrimonious public debate in which a number of highly respected observers concluded that American civil-military relations were in crisis. In the words of Richard Kohn, a distinguished professor of history at the University of North Carolina and one of the country's foremost experts on the nexus between civilians and the uniformed military in the United States, civil-military relations during this period were "extraordinarily poor, in many respects as low as in any period of American peacetime history."

Some observers claimed that the civil-military tensions of the 1990s were a temporary phenomenon, attributable to the perceived antimilitary character of the Clinton administration. But these tensions did not disappear with the election and reelection of George W. Bush as president. If anything, relations have become more strained as a result of clashes between the uniformed services and Defense Secretary Donald Rumsfeld over efforts to "transform" the U.S. military and the planning and conduct of U.S. military operations in Afghanistan and Iraq. Much of the uniformed services' campaign against Rumsfeld has been conducted by leaks to the press.

All of these tensions will be exacerbated if the statutes and regulations are changed to permit increased military participation in domestic affairs. Even if we don't reach the point described by Dunlap, it is almost a given that the military will be politicized to a dangerous extent. Indeed, the main reason Congress passed the Posse Comitatus Act in 1878 was concern that the Army at the time was being increasingly politicized.

A PERUSAL OF RECENT ARTICLES reveals the undeniable fact that most commentators do not understand the Posse Comitatus Act at all. The Posse Comitatus Act does not constitute a bar to the use of the military in domestic affairs. It does, however, insist that such use be authorized only by the highest constitutional authority: Congress and the president.

Contrary to what many Americans believe, the Constitution itself does not prohibit the use of the military in domestic affairs. Indeed, the U.S. military has intervened in domestic affairs some 167 times since the founding of the Republic. In the Anglo-American tradition, the first line of defense in enforcing the law was the posse comitatus, literally "the power of the county," understood to be the people at large who constituted the constabulary of the shire. When order was threatened, the "shire-reeve" or sheriff would raise the "hue and cry," and all citizens who heard it were bound to render assistance in apprehending a criminal or maintaining order. Thus, the sheriff in the American West would "raise a posse" to capture a lawbreaker.

If the posse comitatus was not able to maintain order, the force of first resort was the militia of the various states, the precursor of today's National Guard. In 1792, Congress passed two laws that permitted implementation of Congress's constitutional power "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions." They were the Militia Act and the "Calling Forth" Act, which gave the president limited authority to employ the militia in the event of domestic emergencies. In 1807, at the behest of President Thomas Jefferson, who was troubled by his inability to use the regular Army as well as the militia to deal with the Burr Conspiracy of 1806-07, Congress also declared the Army to be an enforcer of federal laws, not only as a separate force, but as a part of the posse comitatus.

Accordingly, troops were often used in the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner. In 1854, Franklin Pierce's attorney general, Caleb Cushing, issued an opinion that included the Army in the posse comitatus, writing that

A marshal of the United States, when opposed in the execution of his duty, by unlawful combinations, has authority to summon the entire able-bodied force of his precinct, as a posse comitatus. The authority comprehends not only bystanders and other citizens generally, but any and all organized armed forces, whether militia of the states, or officers, soldiers, sailors, and marines of the United States.

Thus, in April 1851, federal marshals in Boston arrested Thomas Sims, a 17-year-old slave who had escaped from Georgia. He was held in a courthouse guarded by police and soldiers for nine days while his case was argued before a federal commissioner. When the commissioner decided in favor of Sims's owner, 300 armed deputies and soldiers took him from the courthouse before dawn and marched him to the Boston Navy Yard, where another 250 soldiers waited to place him aboard a ship that would carry him back into bondage.

In May 1854, a deputy marshal arrested Anthony Burns, an escaped Virginia slave, also in Boston. While a federal commissioner decided Burns's fate, abolitionists tried to rescue him. President Pierce sent federal troops to Boston to keep the peace, admonishing the district attorney to "incur any expense to insure the execution of the law." Troops were also used to suppress domestic violence between pro-and antislavery factions in "Bloody Kansas." Soldiers and Marines participated in the capture of John Brown at Harpers Ferry in 1859.

After the Civil War, the U.S. Army was involved in supporting the Reconstruction governments in the southern states, and it was the Army's role in preventing the intimidation of black voters and Republicans at southern polling places that led to the passage of the Posse Comitatus Act. In the election of 1876, President Ulysses S. Grant deployed Army units as a posse comitatus in support of federal marshals working to maintain order at the polls. In that election, Rutherford B. Hayes defeated Samuel Tilden with the disputed electoral votes of South Carolina, Louisiana, and Florida. Southerners claimed that the Army had been misused to "rig" the election.

While the Posse Comitatus Act is usually portrayed as the triumph of the Democratic party in ending Reconstruction, the Army welcomed the legislation. The use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.

And this is the crux of the issue. The Posse Comitatus Act (Section 1385, Title 18 U.S.C.) prohibits the use of the military to aid civil authorities, in enforcing the law or suppressing civil disturbances except in cases and under circumstances expressly authorized by the Constitution or Act of Congress. As Robert W. Coakley, one of the foremost authorities on the use of the military in domestic affairs, has written:

All that [the Posse Comitatus Act] really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general [Caleb Cushing], and one that had never been tested in the courts. The president's power to use both regulars and militia remained undisturbed by the Posse Comitatus Act. . . . But the Posse Comitatus Act did mean that troops could not be used on any lesser authority than that of the president and he must issue a "cease and desist" proclamation before he did so. Commanders in the field would no longer have any discretion, but must wait for orders from Washington [emphasis added].

The fact is that the Posse Comitatus Act, in conjunction with the so-called Insurrection Act, provides the president with all the power he needs to employ the military in domestic affairs if he believes it necessary. Although intended as a tool for suppressing rebellion when circumstances "make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings," presidents used this power on five occasions during the 1950s and '60s to counter resistance to desegregation decrees in the South. Reports indicate that President Bush chose not to invoke the Insurrection Act in the case of Katrina because of concerns that such an action would have been viewed as federal bullying of a Southern Democratic governor.

Do we really want to return to the days when "lesser authority" than the president could use the military for domestic purposes? The issue here is not the Posse Comitatus Act but the quality of American civil-military relations and a healthy military establishment.

THE U.S. MILITARY is currently stretched thin by missions in Iraq and Afghanistan. But the issue goes beyond stress on the force, active and reserve. History teaches that increasing the use of the military for domestic purposes adversely affects its ability to wage war. In a 1991 commentary on the relationship between pre-World War II Canadian military policy and the subsequent battlefield disasters the Canadians suffered at the beginning of the war, the late Harry Summers warned that when militaries lose sight of their purpose, the results can be catastrophic.

The U.S. military is structured to play "away games." It is good at protecting the United States by threatening the sanctuary of adversaries abroad. There are, of course, things the military can and should do to enhance the security of the American homeland, but we should not be blurring further the distinction between military activities and domestic affairs. To paraphrase what Caspar Weinberger said in opposition to the use of the military in the drug war, weakening the statutes that govern the use of the military in domestic affairs in response to Hurricane Katrina makes for terrible national security policy, poor politics, and guaranteed military failure sometime in the future.

The response to Katrina indicates that procedures at all levels of government must be streamlined. But the maintenance of both healthy civil-military relations and a combat-ready force dictates that we not repeal or modify the Posse Comitatus Act or give the president power beyond that of the Insurrection Act. And by no means should we expect the military to go beyond its current mission of supporting civil authorities in the event of domestic emergencies.

Mackubin Thomas Owens is an associate dean of academics and professor of national security affairs at the Naval War College.