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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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.