Posse Comitatus: The What & The Remembering Why

President Bush, showing in full bloom the instincts that make it clear that whatever he is politically he is not a conservative of the traditional limited-government or Constitutionalist variety, has lofted a trial balloon to promote the idea of having the military play a more extensive, earlier and perhaps even primary role in handling future disasters. The fact that he has mentioned it more than once,and that press secretary Scott McClellan has discussed both that idea and the idea of bypassing governors when disaster strikes, suggests that the notion is not just something that popped into his head on the spur of the moment.

The president (like most presidents but to an exaggerated degree) almost always seeks to expand and enhance the power of the national government when an opportunity presents itself in which such power grabs can seem like a relatively logical response. We see a pattern explained most thoroughly by Robert Higgs in his now-classic (at least in certain circles) book, Crisis and Leviathan.

At least during the 20^th century Higgs discusses, federal power has expanded during times of crisis – mostly wars but also economic emergencies like the Great Depression– when such expansion seemed at least tolerable, even plausible, to most Americans. When a war or crisis ended, gestures were made toward returning to a constitutional republican form of governance by offloading some of the "emergency" powers. But some of the extraordinary powers remained in place and became not only permanent, but part of the status quo that seemed "normal" to most Americans once they got used to it – or simply the way things are for younger people or those without much sense of history.

Thus over the course of the century not only has the power of the central government expanded exponentially, but a central government whose power and prerogatives the founders would not recognize, and which would frighten most of them, has come to seem just the way things are – indeed, the very definition of "freedom and democracy" that most Americans assume we have and which is the best and freest form of government possible. So more power for the feds has become the "natural" first-reach instinct of almost every national politician of either major party in the face of a perceived crisis (even a crisis arguably caused or at least contributed to by bloated government, as I have argued both 9/11and Katrina were).

MILITARIZING SOCIETY

The ongoing recognition of denizens of the state apparatus that, as Randolph Bourne recognized so memorably during World War I, that "war is the health of the state" has ensured that we have had a plenitude of military conflicts during the century just past. The habit of declaring "war" on such long-term and perhaps insoluble problems as poverty and government-disapproved drug use has not only compounded the trend, it has contributed to an ongoing militarization of society.

Whenever you see a police response to a major (or minor) criminal incident these days, the gendarmes assembled don't look like the friendly cop on the beat some of us remember from (possibly) more innocent days. They look like armored warriors, even the imperial "storm troopers" of the Star Wars movies, with their body armor, automatic weapons, shields, and tight formations. No wonder some neighborhoods in America feel more like occupied territory than like places where the people rule themselves.

In a crisis like the aftermath of Katrina in New Orleans, the presence of troops can seem comforting. Even though it is now widely acknowledged that the early stories about murders, rapes and gang violence in the Superdome and convention center were outright false, it was a stressful time. Violence, hunger, fear and uncertainty, compounded by lack of food and water and the knowledge that everything you owned was probably destroyed, proved iconic to an American TV viewership safe in their own homes. So most Americans, including those stranded or trapped, welcomed the people in military uniforms at the scene of a disaster.

And so Americans became a little more accustomed to seeing people on the streets with military uniforms and automatic weapons or imposing vehicles, and beginning to process that presence as not only normal but perhaps even comforting.

This may not mean we'll be pushed into a military dictatorship the day after tomorrow. But it makes the prospect just a bit more thinkable.

It is important for Americans, then, to remember or learn why we have a Posse Comitatus law and how it has served to protect American freedoms and our constitutional order.

POWER OF THE COUNTY

Posse Comitatus is a Latin term meaning "power of the county." Black's Law Dictionary defines it this: "Posse Comitatus: the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc. Besides the old English common law of which Black was probably the prime exponent, Americans catch a whiff of the Old West in the concept. Sheriffs in real history probably didn't gather a posse to go after bad guys as often as happened in Hollywood movies. But it happened.

The idea that every able-bodied person is ultimately responsible for keeping peace, that it is not solely the task of designated professionals, especially when something approaching a crisis is imminent, is not only part of our heritage as Americans. It is a bedrock of republican liberty, not just in America but wherever it has been reasonably successful.

The Posse Comitatus law was passed in 1878, not only in response to some of the abuses committed by federal troops during the Reconstruction period in the South after the Civil War, but more specifically after many suspected that federal troops influenced the election of 1876, in which Rutherford B. Hayes was chosen by the Electoral College and federal troops ran some polling places in the South. Specifically, Hayes won the disputed electoral votes of South Carolina, Louisiana and Florida, states where President U.S. Grant had sent troops as a posse comitatus by federal marshals at the polls.

The use of federal troops in an election, the most central event in any democracy, bothered many in Congress who didn't think it was stolen (or perhaps welcomed the theft). The Posse Comitatus Act was enacted in 1878. It reads as follows (as revised in 1956):

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned for not more than two years, or both."

A regulation by the Department of Defense includes the Navy and the Marine Corps as bound by the act. The Coast Guard, which until the creation of the Department of Homeland Security was under the Department of Transportation, has always had some domestic law enforcement responsibilities, even though it has some quasi-military functions as well.

NO MILITARY LAW ENFORCEMENT

What the act does is to ensure that the military is not used for domestic law enforcement. This is an important safeguard for individual liberty and citizens' rights. When military forces are used to enforce domestic laws on citizens, the danger of a military or military-dominated dictatorship is a constant danger.

The fact that the law was passed in 1878 does not necessarily mean that it was only then that U.S. citizens abruptly discovered the potential dangers of military domination. The attitudes of the colonists who eventually broke away from Great Britain was profoundly influenced by the fact that the British quartered troops forcefully in the homes of civilians and that the military often operated independently of civilian authorities. The Declaration of Independence also attacked the very idea of keeping of a standing army in time of peace.

The Articles of Confederation restricted the raising of armies and navies and reserved the appointment of officers below the rank of general to the states, thus limiting the power of the central government. The constitution mandated civilian control of the military, in part by making a civilian, the president, the commander-in-chief, and in part through governmental structures. It restricts military appropriations to two years and empowered Congress to regulate the armed forces. Some aspects of the Bill of Rights, including the Fourth Amendment protection against unwarranted search and seizure, were also inspired by abuses by the British military during the colonial period.

Prior to the Civil War, many Americans opposed having a standing army at all, as Arthur Ekirch's too-little-known book, Civilian and Military: A History of the Anti-Militarist Tradition in the United States documents in detail. However, as this paper shows, authorities gradually began to use the military domestically. The Fugitive Slave Act of 1850 permitted federal marshals to call on the military to help return slaves to their "owners." In Kansas, federal troops were used to quell disorder between pro-slavery and anti-slavery mobs. The heavy military presence in the South after the war increased distaste for military rule over civilians. The use of the military to guard polling stations in the election of 1876 was a final straw.

DIFFERENT MISSIONS

All this makes sense in a government of laws. Military people, as any of them will be pleased to inform you, are trained to kill people and break things. Within the confines of strategy and tactics, that's how you win wars. Civilian law enforcement officers are expected not only to go after bad guys, but to remember that they are considered innocent until proven guilty and to respect their rights – including rights like Miranda warnings that have been added since the Posse Comitatus Act was passed. They are different kinds of jobs.

Nobody has been convicted under the PCA and few have been prosecuted, but it has protected our liberties nonetheless. The downside of this, however, is that there is very little case law to help courts interpret the law. The little existing case law, however, suggests that the law is flexible enough to permit the use of the military in times of riot or natural disaster. At first the test was active-versus-passive, that is the military could furnish equipment and supplies but couldn't actively police Americans. In 1975, led by President Richard Nixon - who was being beseiged by anti-Vietnam war protests - a somewhat looser test emerged, whether "military personnel subjected ... citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature." In other words, military actions used against unarmed U.S. civilians.

Prohibiting the military from engaging in civilian law enforcement not only is a protection from the danger of a military dictatorship, it also protects the effectiveness and integrity of the military. If the military were asked on a regular basis to engage in civilian law enforcement (or even disaster relief) it would soften the warrior mentality and take resources and training time from the primary mission of being ready to fight an actual war. Weakening the Posse Comitatus Act, as has been suggested before by politicians of both parties,would almost certainly reduce the respect citizens have for the military, which has gradually increased since the act was passed.

Posse Comitatus is a Latin phrase that sounds obscure to most people, so it might not seem like a big thing to amend the act to make it easier to deploy the military in essentially civilian duties. But it is a big thing. The president's call to consider changes so far seems to have had little resonance, as have earlier calls. But Bush is a stubborn man who sometimes confuses stubbornness with integrity or commitment to principle. It serves those of us who prefer that this country not be governed like a banana republic to appreciate the Posse Comitatus Act, communicate its importance to others, and be on the alert for efforts to change it.