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USAWC STRATEGY RESEARCH PROJECT
POSSE COMITATUS, THE ARMY, AND HOMELAND SECURITY:
WHAT IS THE PROPER BALANCE?
by
Colonel Deborah L. Geiger
United States Army
Colonel Christine Stark
Project Adviser
This SRP is submitted in partial fulfillment of the requirements of the Master of Strategic Studies Degree.
The U.S. Army War College is accredited by the Commission on Higher Education of the Middle States
Association of Colleges and Schools, 3624 Market Street, Philadelphia, PA 19104, (215) 662-5606. The
Commission on Higher Education is an institutional accrediting agency recognized by the U.S. Secretary
of Education and the Council for Higher Education Accreditation.
The views expressed in this student academic research paper are those of the author and do not reflect
the official policy or position of the Department of the Army, Department of Defense, or the U.S.
Government.
U.S. Army War College
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15 MAR 2006
00-00-2005 to 00-00-2006
4. TITLE AND SUBTITLE
5a. CONTRACT NUMBER
Posse Comitatus, The Army, and Homeland Security What is the Proper
Balance?
5b. GRANT NUMBER
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6. AUTHOR(S)
5d. PROJECT NUMBER
Deborah Geiger
5e. TASK NUMBER
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U.S. Army War College,Carlisle Barracks,Carlisle,PA,17013-5050
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13. SUPPLEMENTARY NOTES
14. ABSTRACT
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24
Standard Form 298 (Rev. 8-98)
Prescribed by ANSI Std Z39-18
ABSTRACT
AUTHOR:
Colonel Deborah L. Geiger
TITLE:
Posse Comitatus, The Army, and Homeland Security: What is the Proper
Balance?
FORMAT:
Strategy Research Project
DATE:
24 January 2006
KEY TERMS:
Restructure Army, National Guard, Force Structure
CLASSIFICATION:
Unclassified
WORD COUNT: 6635
PAGES: 20
Within a few months of the September 11 th terrorist attacks upon our nation, the Office of
Homeland Security was created and, ultimately, a National Strategy for Homeland Security was
written. In The National Security Strategy of 2002, President Bush formalized the protection of
the homeland as the military’s highest priority mission. Protecting the homeland often requires
military capabilities to manage crises and mitigate the consequences of an attack or natural
disaster. The United States National Security Strategy addresses the complexities and
challenges our military faces in its role securing the homeland. The two viable options that will
be explored in this paper are the status quo, which can be maintained with respect to the Army’s
role in homeland security—with its attendant risks—or revisions can be made to the Posse
Comitatus Act and the Army’s force structure in order to deal more effectively with an increased
role in domestic emergencies. This paper will document the historical background and legal
parameters of the PCA along with its impact on Army domestic operations, and offer realistic
recommendations for modifying the Act and changing Army force structure to help achieve part
of the overall vision set forth in the National Security Strategy.
POSSE COMITATUS, THE ARMY, AND HOMELAND SECURITY:
WHAT IS THE PROPER BALANCE?
Within a few months of the September 11 th terrorist attacks upon our nation, the Office of
Homeland Security was created and, ultimately, a National Strategy for Homeland Security was
written. In The National Security Strategy (NSS) of 2002,1 President Bush formalized the
protection of the homeland as the military’s highest priority mission. The Quadrennial Defense
Review (QDR) of 2001 2 had already emphasized the military’s responsibility in supporting civil
authorities in the event of natural and man-made disasters. The National Military Strategy
(NMS) of the United States of America 2004 3 reinforced the NSS by establishing homeland
security as the most important priority of the military today. The NSS, NMS, and the National
Strategy for Homeland Security 4 provide general strategic guidance for the employment of
forces outside and within the United States.
This National Homeland Security Strategy is the keystone to achieving the unity
of effort necessary to succeed on this battlefield. It must coherently integrate the
ends, ways, and means of the Federal, state, and local levels to enable the
effective use of all available resources, at all levels of government, toward a
common purpose: the security of America and its citizenry. 5
Prior to the terrorist attacks of September 11, the United States’ National Security threats
clearly belonged to the military, and domestic security threats were the domain of civilian law
enforcement at the federal, state, and local levels. In the post-9/11 world, however, the formerly
clear-cut divisions in authority and boundaries no longer exist between war and many criminal
attacks.
If the highest DOD priority is defense of American national territory, this mission
must receive the level of attention it merits. Evolving national strategy for
homeland security requires that DOD consider the employment of military forces
in ways previously considered outside the scope of operations.6
This new scope of operations requires a thorough review of the legal limitations, specifically the
Posse Comitatus Act (PCA)7, which is imposed upon the military when conducting domestictype operations. The blending of law enforcement and military strategies toward a common
purpose and response effort in supporting national objectives must occur if there is to be a
coordinated and effective governmental response strategy. In executing this strategy, the
primary challenge is a proper balance between the Army’s response to civilian law enforcement
in protecting the homeland while ensuring civil liberties are preserved for American citizens. In
addressing this challenge, it is essential to consider whether or not the Army’s law enforcement
role in domestic disaster relief (natural/man-made) should be expanded beyond the restrictions
imposed by the PCA, and whether or not the Army should transform to better respond to
homeland security needs. At the center of the debate over these prospective changes are both
the legal restrictions imposed under the PCA, and the Army’s structure, particularly in regard to
the practice of employing forces domestically in order to protect the homeland.
In April 2002, President Bush approved the Defense Department Unified Command Plan
which established U.S. Northern Command (NORTHCOM)8 with the intent to merge command
and effort within a single operational organization in order to streamline DOD support to civil
authorities and other agencies . In 2003, NORTHCOM developed initial operational capabilities
with a continuing goal to enhance civil-military integration for homeland security with particular
emphasis on the areas of planning, operations, and response capabilities. As a newly created
combatant command, NORTHCOM coordinates military assistance to various civilian authorities
as part of their overall mission. For instance, in the category of civil support, the Department of
Defense (DOD) may be involved in emergencies such as responding to an attack, assistance to
law enforcement, disaster relief, civil disturbances, other catastrophic events, and/or continuity
of government.
Background of the Posse Comitatus Act
The Posse Comitatus Act is one of the embodiments of an American tradition against
military involvement in civilian affairs. At the end of the French and Indian War, England kept a
standing Army in the colonies of about 6,000 troops. London’s stated intent was that the
Soldiers were needed to defend against Indian aggression. The colonists had their own militias,
and they were suspicious of the purpose and ulterior motives of a foreign force living and
moving in their midst. Adding to the colonist’s discontent, England passed the Quartering Act of
1765 which required the colonists to provide housing for these “foreign” British Soldiers
stationed in their colonies. “The Declaration of Independence listed among our grievances
against Great Britain that the King had kept among us, in times of peace, Standing Armies
without the consent of our legislatures, had affected to render the Military independent of and
superior to the civil power.”9 In the Constitution, our Founding Fathers, in order to guarantee
democracy, directed civilian control of the military through the government system. Additionally,
the Bill of Rights restricted the quartering of troops in private homes.
Despite the expulsion of the British Army after the Revolution and the subsequent legal
protections enacted in the fledgling American democracy, the federalized Army’s role in civilian
matters remained significant. For instance, even within the constitutional safeguards, the
regular American Army was continually called to assist U.S. Marshals and local sheriffs. “In
2
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.” 10 Attorney
General Caleb Cushing authorized the employment of both the militia and regulars primarily to
enforce the Fugitive Slave Act of 1850 and also to serve as a police force in the turbulent
western frontiers. Under the Cushing Doctrine, Armed Forces under the command of their
officers were called into duty by U.S. Marshals or local sheriffs. The Fugitive Slave Act, enabled
the U.S. Marshals to call upon the Army to execute warrants for the arrest of slaves that
escaped and crossed into another state’s jurisdiction. “The Fugitive Slave Law, in brief caused
enormous mischief, gave antislavery feelings and abolitionism a tremendous boost in the North,
but was totally ineffective in halting the continued fleeing of slaves from the South.” 11 Along the
western frontier, Fort Commanders were often the only authority in place, and would therefore
be called upon to exercise law enforcement responsibilities in support of the local settlement
populations’ safety and security. Often, Fort Commanders exercised this law enforcement
responsibility inconsistently toward alleged criminals or Indians that appeared to threaten
settlers. “The results were sometimes violations of the Constitution and conditions otherwise
untenable to elected officials.” 12
Not only were federal troops used to enforce the Fugitive Slave Act and provide security
for settlers moving in the western frontier, federal troops were used extensively in the post-Civil
War period.
Under the Reconstruction Acts the district commanders had to cope with such
matters as horse stealing, moonshining, rioting, civil court proceedings,
regulating commercial law, public education, fraud, removing public officials,
registering voters, holding elections, and the approving of new state constitutions
by registered voters.13
The Army introduced a strong military presence in the South which performed law enforcement
functions as well as political functions.
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.14
The violence between white Americans toward African Americans with the anticipation of future
violence directly contributed to the positioning of the Army in the South. Ironically, the Army’s
involvement in political tasks, rather than law enforcement tasks, caused the most contempt
amongst the citizens, the government, and Congress. Federal troops were stationed at political
3
events and polling places during the contested presidential election of 1876. Republican
candidate Rutherford Hayes defeated Democratic candidate Samuel Tilden by one electoral
vote. “In the election of 1876, Democrats attacked Republicans for forcing blacks to vote the
Republican ticket.”15
To all U.S. Marshalls: You are hereby placed in command of all the Military
Forces in the United States-militia, soldiers and marines-for use at the November
elections. You may also appoint all (Republican) citizens your deputies for the
same occasions. These instructions have been submitted to the President, and
have his approval, Alphonso Taft, Attorney General, Washington, Sept 4, 1876. 16
President Grant’s decision to allow troops to be used in the states of South Carolina, Louisiana,
and Florida as the posse comitatus at polling places is credited for the Republican Party victory.
The use of the military for a political purpose was widely viewed by the southern states as a
barrier to freedom, an injustice, and repressive of democracy.
A “trinitarian” relationship between the government, the people, and the military existed in
harmony to prevent abuses in the Army operating under U.S. Marshals or local officials. The
Posse Comitatus Act was enacted in 1878 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.17 The catalyst for change in the enacting of the PCA was the
positioning of federal troops at political events and polling places under the guise of maintaining
domestic law and order. “The misuse of military in our election—the most central event to a
democracy—led Congress to enact the PCA in 1878.” 18 It is ironic that the PCA embodies the
tradition of separating civilian and military authority (Army/Air Force) in law enforcement when
the central reason for its passage dealt with the military’s involvement in political functions
especially during the post-Reconstruction South. Since the Civil War, and more recently in the
past 20 years, several laws have been enacted which grant specific exceptions to the PCA.
The military has become the means to address policy and domestic security issues by the more
recent erosions of the PCA through Congressional legislation and Executive policy. These main
exceptions include disaster relief; insurrection; the war on drugs and terrorism; the protection
against weapons of mass destruction; and the protection of our nuclear materials. Most
recently, because of the catastrophic destruction of Hurricane Katrina and the demonstrated
need for immediate assistance, a renewed debate concerning the legal application and
restrictions under the PCA exists.
4
Legal Application of the Posse Comitatus Act
The PCA is a restrictive statute that does not apply to all military members, has many
statutory exceptions, and is complex to interpret. Without approval of Congress or Constitutional
authority, direct and active federalized military involvement with civilian law enforcement to
enforce the laws in the United States is restricted under the PCA. The PCA is a criminal statute
which carries a fine up to $10,000 and/or two year imprisonment. To date, however, no one has
been prosecuted under the PCA. In addition to fines and imprisonment, courts may suppress
evidence that is illegally obtained under PCA which could allow a subject to go free. The main
direct prohibitions include an arrest; search and seizure; interdiction of vessels, aircraft, or
vehicles; surveillance; stop and frisk; or any other active civilian law enforcement activity. When
directly interpreted, the statute pertains only to active-duty Army and Air Force members.
Department of Defense Policy 5525.5 extended the same prohibitions of the PCA to the U.S.
Navy and the Marine Corps.
Exceptions to Posse Comitatus
The listed exceptions below are not all-encompassing, but highlight the main exceptions
when the military is authorized to provide assistance to civilian law enforcement authorities
without violating the PCA. These exceptions to the PCA include: military purpose doctrine; riot,
insurrection or lawlessness; emergency authority; disaster relief; drug interdiction; emergency
situations involving chemical or biological weapons of mass destruction.
These statutes permit direct military participation in civilian law enforcement,
subject to applicable limitations within the respective statutes. Specific statutes
and other reference must be consulted before determining military participation is
permissible.19
The Coast Guard and the National Guard are the only services that the PCA provides broad
exceptions to its prohibitions. The Coast Guard, in its normal capacity, enforces maritime law
and provides border control, and the PCA does not apply. When State National Guard units
operate under the authority of the Governor and State control, they are exempt from the
restrictions of PCA. This is not the case when the National Guard is federally activated or when
the Coast Guard is transferred from the Department of Homeland Security to DOD. In these
cases, they are subject to the restrictions under the PCA. For instance, if a State Governor
declares a state of emergency because of natural disasters such as earthquakes, hurricanes,
forest fires, floods, etc., the limitations under the PCA do not apply. However, if a federal
emergency is declared and those same units which were activated are then federalized, the unit
personnel are now restricted under the PCA. Another exception where the PCA does not apply
5
is in the off-duty conduct of military personnel acting as private citizens, unless the individual is
required or ordered by an official military officer to perform an active law enforcement function.
The PCA is used only in the United States; however, DODD 5525.5 extends the application of
PCA to overseas jurisdictions.
Restrictions
The main restrictions of the PCA are framed in 10 U.S.C Sections 371-381 and are
broken down into three major areas. These major categories of restrictions include: the use of
information; the use of military equipment and facilities; and the use of military personnel. The
use of military personnel is further separated into three tests to determine compliance of the
PCA. “DODD 5525.5 further divides the restrictions on the use of DOD personnel in civilian law
enforcement activities into categories of direct assistance, training, expert advice, operation or
maintenance of equipment, and other permissible assistance.” 20 Criminal information sharing
typically occurs between military and civilian law enforcement entities. The main restrictions on
information sharing include intelligence gathering from DOD i …
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