Sanity Injection

Injecting a dose of sanity into your day’s news and current events.

What is the Posse Comitatus Act?

Posted by sanityinjection on December 2, 2008

If you have friends who are actively involved in libertarian or militia circles, you have probably heard of “posse comitatus”. The Posse Comitatus Act is a favorite topic among these groups because it restricts the ability of the federal government to deploy military troops on US soil. It is getting renewed attention now because the Department of Defense this fall authorized for the first time a permanent active deployment of an Army unit on US soil as an emergency response force. Some have argued that this represents a violation of the spirit, if not the letter of the Posse Comitatus Act.

In order to evaluate this argument, it’s important to have a clear understanding of the Act’s origins and what it actually says. Some people think that the Act is part of the Constitution or in some way fundamental to the founding of our country. In fact, it is simply a law passed by Congress in 1878. Many people wrongly assume that the Act bans any military deployment on US soil, when in fact there are several major loopholes and exceptions.

The Posse Comitatus Act came into being after the post-Civil War period of Reconstruction, when federal troops were finally removed from the former Confederate states in 1877. After reversing the reforms made under Reconstruction and effectively disenfranchising blacks, the Southern states wanted to ensure that the Federal government could not send the Army back into their states when state and local authorities refused to enforce the laws protecting the rights of blacks. The law was later expanded to include the Air Force and the state National Guard when serving under federal control. The Navy and Marines are not covered specifically by the Act, but the Defense Department has a regulation including them in its prohibitions. The Coast Guard is exempt.

Essentially, the law prohibits the military from serving as law enforcement, except on federal property or when specifically authorized by Congress to do so. There are two main exceptions. The first is that the Attorney General may request military assistance for civilian law enforcement in the event of a threat to release nuclear or radioactive materials. The second is for use of the military by the President to combat lawlessness, insurrection, or rebellion under the terms of the Insurrection Act. It was under the Insurrection Act that President Eisenhower sent the National Guard into Arkansas to enforce desegregation, and that President George H. W. Bush sent troops to Los Angeles to combat rioting in 1992.

Thus, until now those who have complained about violations of the Posse Comitatus Act have generally been incorrect. However, these previous actions have been temporary in nature. Since the Civil War, there has never, until now, been a standing military unit whose mission is to act as a domestic emergency response force, including posse comitatus powers of law enforcement in the case of civil unrest. This development comes as a result of the problems with federal response in the aftermath of Hurricane Katrina. The Defense Department wants to be able to insert troops quickly in the event of a natural disaster or terrorist attack when local and state authorities are incapable of acting or need assistance.

The problem is that while the creation and deployment of the response unit is not a direct violation of the Posse Comitatus Act, any law enforcement actions in the situations just described probably would be. It’s questionable whether this activity would be covered under the Insurrection Act, so a special Act of Congress would probably be needed before this military unit could engage in crowd control or other law enforcement.

In 2006, both the Posse Comitatus and Insurrection Acts were modified by Congress in ways that would have resolved this problem, but those changes were repealed by Congress this year.

Personally, I don’t have a problem with military troops assisting local and state police and National Guard units in an emergency, any more than I have a problem with the FBI assisting local police. I think the point of these two laws is to prevent the military from usurping the powers of state and local authorities without Congressional oversight. So, although it may dismay my libertarian and right-wing friends, I think a judiciously worded amendment (perhaps more narrowly written than the 2006 amendments) to either the Posse Comitatus or Insurrection Act, or both, would be appropriate, perhaps with a time limit after which Congressional authorization would be required in order for the military to continue in that role in a given incident.

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