IPFS
Posse Comitatus Act and Homeland Security - (FEMA) '81-'83 John R. Brinkerhoff
Written by Ernest Hancock Subject: Police StateFrom: Mark Crispin Miller
To: newsfromunderground@googlegroups.com
Sent: Tue, 3 Feb 2009 4:45 pm
Subject: [MCM] On the Posse Comitatus Act
The quotation above is the much-discussed Posse Comitatus Act in its entirety. That is it! That is all there is to it. Seldom has so much been derived from so little. Few articles written about the act and its implications cite the law as it is written, leading one to believe that the authors have never taken the trouble to go to the U.S. Code and see for themselves or to look up the legislative history of the act or to read the exceptions in the law. As a result, much of what has been said and written about the Posse Comitatus Act is just plain nonsense.
The Story of the Posse Comitatus Act
The Effect of the Posse Comitatus Act
Why Is This Erroneous Interpretation Widely Believed?
Summary and Recommendation
0D
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Subject: [MCM] On the Posse Comitatus Act
"... [M]ost commentators who opine
on this law are wrong. The Posse Comitatus Act was not, as they assert and as
most people believe, enacted to prevent members of military services from acting
as a national police force. It was enacted to prevent the Army from being abused
by having its soldiers pressed into service as police officers (a posse) by
local law enforcement officials in the post-Reconstruction South."
"The Posse Comitatus Act does not
prevent the military services from supporting the police, nor does it preclude
them from enforcing the law when so ordered by the president. It does preclude
them from being the police in normal times."
The Posse
Comitatus Act
and Homeland Security
John R. Brinkerhoff
and Homeland Security
John R. Brinkerhoff
February
2002
As acting associate director for
national preparedness of the Federal Emergency Management Agency (FEMA) from
1981 to 1983, Colonel John R. Brinkerhoff, US Army Retired, was responsible for
policy formulation and program oversight of the Civil Defense Program, National
Mobilization Preparedness Program, Continuity of Government, and the National
Defense Stockpile. During that time the United States had a program to Defend
America against a massive nuclear attack as well as attacks by communist agents
and special forces troops. Colonel Brinkerhoff was also deputy executive
secretary of the Emergency Mobilization Preparedness Board (EMPB), the senior
level inter-agency forum to coordinate all aspects of national preparedness. The
EMPB was chaired by the National Security Advisor and consisted of the deputy
secretaries of the departments and the heads of several independent agencies.
During the EMPB era, a national plan was prepared and approved by President
Reagan, and actions were taken to implement it.
Prior to joining FEMA, Colonel
Brinkerhoff was a career senior executive in the Office of the Secretary of
Defense. His last position before leaving OSD to joint FEMA was as acting deputy
assistant secretary for reserve affairs. He was also director of manpower
programming, director of intergovernmental affairs, and special assistant to the
deputy assistant secretary of defense for reserve affairs. Before joining the
civil service, Mr. Brinkerhoff was an Army officer for 24 years. He retired in
1974 after 24 years of active commissioned service in a variety of troop
assignments in Korea, Germany, Vietnam, and the United States. While on active
duty he served two tours on the Army Staff and two tours in OSD. For the past
seven years he has been an adjunct research staff member of the Institute for
Defense Analyses working on a variety of issues including Homeland
Defense.
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
-Title 18, U.S. Code, Section 1385
The quotation above is the much-discussed Posse Comitatus Act in its entirety. That is it! That is all there is to it. Seldom has so much been derived from so little. Few articles written about the act and its implications cite the law as it is written, leading one to believe that the authors have never taken the trouble to go to the U.S. Code and see for themselves or to look up the legislative history of the act or to read the exceptions in the law. As a result, much of what has been said and written about the Posse Comitatus Act is just plain nonsense.
The Posse Comitatus Act is often
cited as a major constraint on the use of the military services to participate
in homeland security, counterterrorism, civil disturbances, and similar domestic
duties. It is widely believed that this law prohi bits the Army, Navy, Air
Force, and Marine Corps from performing any kind of police work or assisting law
enforcement agencies to enforce the law. This belief, however, is not exactly
correct.
What is correct is that new rules
are needed to clearly set forth the boundaries for the use of federal military
forces for homeland security. The Posse Comitatus Act is inappropriate for
modern times and needs to be replaced by a completely new law.
The law was enacted originally on
18 June 1878. It was amended in 1959 to make it applicable to Alaska. It was
amended in 1994 to remove an upper limit of $10,000 on the fine that was in the
original act. As shall be noted later, in recent years Congress has enacted
other laws that specify when the Posse Comitatus Act does not
apply.
The biggest error is the common
assertion that the Posses Comitatus Act was enacted to prevent the military
services (Army, Navy, Air Force, and Marine Corps) from acting as a national
police force.
Colonel Richard Hart Sinnreich, in
an otherwise admirable piece, opined thusly in an article20in the 12 December
2001 Washington Post:
The American aversion to a military gendarmerie was formalized after Reconstruction in the Posse Comitatus Act of 1878, which severely restricts the use of active military forces in domestic law enforcement.
Reconstruction was the 12 years
from 1865 to 1877 when the U.S. Army occupied the defeated Southern states.
Major Craig T. Trebilcock, U.S. Army Reserve, in his Journal of Homeland
Security article "The Myth of Posse Comitatus," does a good job at pointing out
that the use of military personnel to enforce the law is in fact allowable, but
makes a mistake when he says:
The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its role of defending the borders of the United States.
Another gross misinterpretation of
the Posse Comitatus Act was made on 13 December 2001 in the Washington Times,
which reported that Provost Marshal William J. Bolduc of the Walter Reed Army
Medical Center reduced the police powers of the civilian police force at that
facility because they were=2 0bound by the Posse Comitatus Act. The story
said:
The Posse Comitatus Act of 1878 prohibits members of the U.S. armed forces or employees of the U.S. military from enforcing laws on civilians [emphasis added].
Sinnreich, Trebilcock, Bolduc, and
most commentators who opine on this law are wrong. The Posse Comitatus Act was
not, as they assert and as most people believe, enacted to prevent members of
military services from acting as a national police force. It was enacted to
prevent the Army from being abused by having its soldiers pressed into service
as police officers (a posse) by local law enforcement officials in the
post-Reconstruction South.
The Story of the Posse Comitatus Act
The law was enacted as a result of
the election of 1876, which was the event that ended the period of
Reconstruction after the Civil War. The law was enacted to overturn an 1854
opinion of the attorney general. The story is bound up with the conflict within
the United States about slavery and the Union.
The posse comitatus doctrine comes
from English common law. Posse comitatus means, literally, the "force of the
county"; the posse comitatus is that body of men above the age of 15 whom the
sheriff may summon or raise to repress a riot or for other purposes. [1]
In 1854, Caleb Cushing, attorney
general for President Franklin Pierce, blessed the posse comitatus doctrine and
opined that marshals could summon a posse comitatus and that both militia and
regulars in organized bodies could be members of such a posse. [2] This was done to improve the enforcement of
the Fugitive Slave Act of 1850. Among other things, this meant that the United
States was responsible for expenses incurred by U.S. marshals in employing local
police, state militia, or others in apprehending and safeguarding fugitive
slaves. The Cushing Doctrine meant that even though the armed forces might be
organized as military bodies under the command of their officers, they could
still be pressed into service by U.S. marshals or local sheriffs as a posse
comitatus without the assent of the president. This doctrine was merely the
opinion of the attorney general and was not subjected to judicial or legislative
review prior to its enunciation. The Cushing Doctrine encouraged the use of the
Army and Navy as police forces, and it was used widely in the West, where the
Army was the only armed force available to assist local officials to enforce the
law along the turbulent frontier. It had little effect in the South during the
period before the Civil War and came into prominence there only during
Reconstruction.
During Reconstruction, the Army
exercised police and judicial functions, oversaw the local governments, and
dealt with domestic violence. In effect, the Army governed the 11 defeated
Confederate States and was the enforcer of national reconstruction policy during
all or part of the period. Before the Civil War, the militia under state control
was used to control local disorders throughout the United States, but during
Reconstruction, there was no effective militia in the defeated states, so the
Army protected the people (especially the newly emancipated slaves) and dealt
with disturbances. [3] This use of the Army was validated by the
Civil Rights Act of 1866, which empowered U.S. marshals to summon and call to
their aid the posse comitatus of the counties, or portions of the land or naval
forces of the United States, or of the militia. As the former Confederate States
were readmitted to the Union, the status of the Army changed, but its role
remained much the same.
After 1868, when all but three of
the Southern states had reentered the union, the problem became one of how to
obtain assistance from the Army to enforce the law. [4] In response to a desperate plea from a U.S.
marshal in Florida, the Attorney General of the United States, William M.
Evarts, cited the posse comitatus doctrine that gave U.S. marshals and county
sheriffs the right to command all necessary assistance from within their
districts, including military personnel and civilians, to serve on the posse
comitatus to execute legal process. [5] Evarts' decision led to numerous
requests by marshals and county sheriffs for troops to use in enforcing the law,
all without presidential approval. This met with some resistance from the Army,
and the War Department said that the obligation of individual officers and
soldiers to obey the summons of a marshal or sheriff must be held subordinate to
the paramount duty as members of a permanent military body. The troops were to
act only in organized units under their own officers and would obey the orders
of those officers. [6]
In 1871, President U. S. Grant
sought to provide a basis for the use of troops other than posse comitatus. In
accordance with Grant's policy, the War Department issued general orders saying
that the forces of the United States may be committed and shall be employed to
assist the civil authorities in making arrests of persons accused of crime,
preventing the rescue of arrested persons, and dispersing marauders and armed
organizations. [7] By the end20of Grant's second term, the
South was ready and able to end U.S. Government control over their
states.
In the election of 1876, the
Democratic candidate, Samuel J. Tilden, won a majority of the popular vote, but
the Republican candidate, Rutherford B. Hayes, ended up with a majority of one
vote in the Electoral College. The election was disputed and finally determined
by a deal in which Tilden would concede the election if Hayes agreed to end
Reconstruction. Accordingly, Reconstruction ended in 1877 with the inauguration
of Hayes as the 19th president. Federal troops in the South were no longer used
to enforce the law, and the Southerners became masters in their own states for
the first time since the end of the Civil War.
Congress passed the Posse
Comitatus Act in 1878 in a dispute over the use of federal troops by U.S.
marshals in the South. Based on precedent, Attorney General Charles Devens took
the position that the U.S. Judiciary Act of 1789 authorized U.S. marshals to
raise a posse comitatus comprising every person in a district above 15 years of
age, "including the military of all denominations, militia, soldiers, marines,
all of whom are alike bound to obey the commands of a Sheriff or Marshal."
However, Congress had become disenchanted with the habit of U.S. marshals and
sheriffs20to press Army troops into their service without the approval of the
commander in chief. The Southerners in particular questioned this policy.
Ironically, the posse comitatus doctrine had been postulated in 1854 by Attorney
General Cushing to help Southerners enforce the Fugitive Slave Act. Now it was
being used to contest the Ku Klux Klan. On 27 May 1878, Representative J.
Proctor Knott of Kentucky introduced an amendment to the Army appropriations
bill; the amendment eventually became the Posse Comitatus Act. In passing the
act, the Congress voted to restrict the ability of U.S. marshals and local
sheriffs to conscript military personnel into their posses. They did not vote to
preclude the use of troops if authorized by the president or
Congress.
Somehow, in the past 125 years,
the meaning of the Posse Comitatus Act has been stood on its head. Clearly the
exposition above demonstrates that the intent of the act was not to preclude the
Army from enforcing the law but instead was designed to allow the Army to do
this only when directed to do so by the President or Congress. The official
history of the use of the military services to enforce the laws
says:
Some of those who opposed it [the Posse Comitatus Act] in the Congress charged that [it] was taking away from the20president entirely the power to use troops to repress internal disorders except on request of a state governor or legislature, that President Washington could not even had dealt with the Whiskey Rebellion under its terms. This interpretation of the Posse Comitatus Act has often been raised by those protesting against federal troops intervention in the many instances it has occurred since 1878. And indeed the question of what the real meaning of the Posse Comitatus Act was has been the subject of some dispute ever since its passage Š however ... all that it really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general, and one that had never been tested in the courts. The president's power to use both regular and military remained undisturbed by the Posse Comitatus Act, and by the law of 1861 and the Ku Klux Klan Act that had in fact been substantially strengthened during the Civil War and Reconstruction Era. But the posse Comitatus Act did mean that troops could not be used on any authority than that of the President and that 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.
The immediate impact of the Posse
Comitatus Act was not felt very much in the Southern states because President
Hayes had withdrawn the troops that had been occupying them. However, there was
great impact in the West, where the Cushing Doctrine had been used a great deal
by marshals and local sheriffs to call on local military commanders for
assistance. Having to wait for presidential approval before troops could be used
was disadvantageous given the turbulence common on the frontier. [8]
The Effect of the Posse Comitatus Act
Before speculating on why this act
is so misunderstood, it is useful to spell out exactly what the act as it is
written does and does not do. The Posse Comitatus Act
Applies only to the Army, and by
extension the Air Force, which was formed out of the Army in 1947.
Does not apply to the Navy and Marine Corps. However, the Department of
Defense has consistently held that the Navy and Marine Corps should behave as if
the act applied to them.
Does not apply to the Coast Guard, which is part of the Department of
Transportation and is both an armed force and a law enforcement agency with=2
0police powers.
Does not apply to the National Guard in its role as state troops on state
active duty under the command of the respective governors.
May not apply to the National Guard (qua militia) even when it is called to
federal active duty. The Posse Comitatus Act contains no restrictions on the use
of the federalized militia as it did on the regular Army. [9] It is commonly believed, however, that
National Guard units and personnel come under the Posse Comitatus Act when they
are on federal active duty, and this interpretation is followed today. Does
not apply to state guards or State Defense Forces under the command of the
respective governors. Does
not apply to military personnel assigned to military police, shore police, or
security police duties. The military police have jurisdiction over military
members subject to the Uniform Code of Military Justice. They also exercise
police powers over military dependents and others on military installations. The
history of the law makes it clear that it was not intended to prevent federal
police (for example, marshals) from enforcing the law. Does
not apply to civilian employees, including those who are sworn law enforcement
officers. The origin and legislative history of the act make it clear that it=2
0applies only to military personnel. In those days, there were no civilian
employees of the Army in the sense that there are today. In particular, no one
envisioned that the Army would hire civilian police officers to enforce the laws
at its facilities. Does
not prevent the President from using federal troops in riots or civil disorders.
Federal troops were used for domestic operations more than 200 times in the two
centuries from 1795 to 1995. Most of these operations were to enforce the law,
and many of them were to enforce state law rather than federal law. [10] Nor does it prevent the military services
from supporting local or federal law enforcement officials as long as the troops
are not used to arrest citizens or investigate crimes.
In recent years, several laws have
been enacted that grant specific exceptions to the application of the Posse
Comitatus Act.
Title 18 U.S. Code, Section 831,
provides that if nuclear material is involved in an emergency, the Secretary of
Defense may provide assistance to the Department of Justice, notwithstanding the
Posse Com itatus Act.
Title 10 U.S. Code, Chapter 18,
authorizes military support for civilian law enforcement agencies for
counterdrug operations and in emergencies involving chemical or biological
weapons of mass destruction. The Secretary of Defense may provide information,
allow the use of military equipment and facilities, train law enforcement
officials in the operation and maintenance of military equipment, and maintain
such equipment. Support for law enforcement agencies may not impair military
readiness, and military personnel shall not participate in searches, seizures,
arrests, or similar activities unless such participation is otherwise authorized
by law. (Military police personnel, for example, may enforce the law within
their jurisdictions.)
If there were violations of the
act, the culprits would not be members of the Army and Air Force who assisted
local law enforcement agencies but rather the local law enforcement officials
who required the troops to assist in the enforcement of laws or local military
commanders who did so without obtaining Presidential authority. It is no wonder
that there have never been any prosecutions under the law.
Why Is This Erroneous Interpretation Widely Believed?
It is worthwhile asking why the
original meaning of the Posse Comitatus Act has been transformed into its almost
exact opposite. It is not the purpose of this article to solve this mystery, but
it is useful to speculate on some of the motives of the people who have been
involved.
Some cynics believe that the
Department of Defense and the military services support the erroneous
application of posse comitatus because they do not want to get involved in
domestic emergencies. This appears to be the position of many active-component
officers. In an address to the Fletcher Conference on 15 November 2001, General
William F. Kernan, Commander in Chief, Joint Forces Command, presumably
referring to the Posse Comitatus Act, said that there were limitations on the
active components that restricted them from "doing those kinds of things, and
rightfully so." [11] General Kernan went on to propose an order
of response to domestic emergencies that starts with the first responders, then
the National Guard, and finally the Reserves and active components. This may be
a logical order, but it is based on a flawed understanding of history. The
military services, and the Army in particular, have been used on numerous
occasions to enforce the law, notably in federal efforts to desegregate public
schools and quell riots. One recent example of this was the use of active-duty
Army troops, Marines, and federalized California National Guard troops to deal
with the 1992 riots in Los Angeles prompted by the acquittal of police officers
charged with assaulting Rodney King. Now that the Quadrennial Defense Review for
2001 has declared homeland security to be the primary mission of the Department
of Defense, this aversion to the use of active components for domestic security
may be weakened. In the meantime, however, some elements of the Department of
Defense continue to hew to the line that it is improper for any element of the
department, military or civilian, to enforce the laws in any
fashion.
Americans have a general antipathy
to the use of troops as police. This stems from British practice during Colonial
times. There is a general feeling in the nation that policing is a local matter
best done by police forces whose members are trained in law enforcement. Until
recently there was also general opposition to a national police force as exists
in most Western European nations. The Federal Bureau of Investigation (FBI) was
until recently quite small and worked on cases that clearly were federal crimes.
I n recent years, the number of federal crimes has increased, particularly in
the field of civil rights violations, and now the FBI seems to be involved in
many cases that formerly would have been handled under state law by local law
enforcement agencies. The threat of imminent terrorist attack can only reinforce
the trend to more and more federal laws and more and more federal police
officers and prosecutors to deal with them. Americans appear to accept the
increase in FBI jurisdiction but are unsympathetic to the habitual use of
military personnel as police officers. In support of this feeling, persons
writing on the Posse Comitatus Act may have addressed it as a legal bar to an
unpopular possibility.
The lawyers have had a hand in
transforming the Posse Comitatus Act from its original intent to what it may or
may not be today. A substantial body of case law and judicial decisions
pertaining to the use of military personnel to enforce the laws has been
created. A casual review of these cases reveals confusion, inconsistency, and
downright perversion of the original intent of the law. Much of this litigation
has been prompted by persons averse to any role for military forces in law
enforcement. Moreover, a significant body of policy and regulation has been
created extralegally in the form of Department of Defense directives and
military service regulations. These attempts to clarify the situation only add
to the confusion. Most of them are based on a presumption significantly at
variance with the law itself.
Finally, another reason for the
misunderstanding and misapplication of this law is simply sloppy scholarship. It
is apparent that many of the numerous authors who have written about this matter
did not read the U.S. Code, studied the legislative history of the act, or
consulted the two official histories prepared by the Center of Military History
before airing their erroneous opinions. This appears to be one of those academic
chain letters in which one set of unfounded conclusions is used as a source for
derivative sets, which are accepted and passed along containing the original
errors. In effect, the misinterpretation of the Posse Comitatus Act has become
an urban myth that is widely believed without substantiation. This need not be.
The topic has been covered well in many of the standard U.S. history books, and
people who want to pursue the historical record in enough detail to get to the
real story can consult three sources:
Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878, Center of Military History, U.S. Army, Washington, DC, 1988.
Clayton D . Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945, Center of Military History, U.S. Army, Washington, DC, 1997.
Eugene P. Visco, More Than You Ever Wanted to Know About Posse Comitatus, unpublished, available by request from gvisco@bellatlantic.net
Summary and Recommendation
The Posse Comitatus Act is not a
general and universal proscription of the use of federal military forces to
enforce or execute the law. The military services may do so and have done so
when ordered by the president and pursuant to the authorization of Congress.
Although the current interpretation of the act is the opposite of its original
intention, it does discourage the military services from being used as a
national police force-something we have wisely avoided up to now. The Posse
Comitatus Act does not prevent the military services from supporting the police,
nor does it preclude them from enforcing the law when so ordered by the
president. It does preclude them from being the police in normal
times.
It is time to rescind the existing
Posse Comitatus Act and replace it with a new law. The old law is widely
misunderstood and unclear. It leaves plenty of room for people to do unwise and
perhaps unlawful things while trying to comply with their particular version. It
certainly does not provide a basis for defining a useful relationship of
military forces and civil authority in a global war with terrorism. The Posse
Comitatus Act is an artifact of a different conflict-between freedom and slavery
or between North and South, if you prefer. Today's conflict is also in a sense
between freedom and slavery, but this time it is between civilization and
terrorism. New problems often need new solutions, and a new set of rules is
needed for this issue.
President Bush and Congress should
initiate action to enact a new law that would set forth in clear terms a
statement of the rules for using military forces for homeland security and for
enforcing the laws of the United States. Things have changed a lot since 1878,
and the Posse Comitatus Act is not only irrelevant but also downright dangerous
to the proper and effective use of military forces for domestic
duties.
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1 Comments in Response to Posse Comitatus Act and Homeland Security - (FEMA) '81-'83 John R. Brinkerhoff
Fema is drunk with power and lousy at doing what they should be doing.