What can be done to better coordinate the efforts of law enforcement currently being conducted in nearly every federal, state and local jurisdiction?Is the law enforcement community ready and able to take on a greater role in collecting intelligence against us originated terrorist threats?
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week_10_balancing_security_and_rights_to_liberty_and_privacy.pdf
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USAWC STRATEGY RESEARCH PROJECT
REVIEW OF THE POSSE COMITATUS ACT AFTER HURRICANE KATRINA
by
Lieutenant Colonel Mark C. Weston
United States Air Force Reserve
Colonel David R. Brooks
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
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Review of the Posse Comitatus Act After Hurricane Katrina
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Mark Weston
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U.S. Army War College,Carlisle Barracks,Carlisle,PA,17013-5050
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Prescribed by ANSI Std Z39-18
ABSTRACT
AUTHOR:
Lieutenant Colonel Mark C. Weston
TITLE:
Review of the Posse Comitatus Act After Hurricane Katrina
FORMAT:
Strategy Research Project
DATE:
15 March 2006
KEY TERMS:
Military Assistance to Civil Authorities, Insurrection Act, Martial Law
CLASSIFICATION:
Unclassified
WORD COUNT: 9418
PAGES: 39
The Posse Comitatus Act of 1878 (PCA) and as amended restricts the use of the Army or
the Air Force for law enforcement purposes. Hurricane Katrina and the events of September
11, 2001, combined with the potential use of a weapon of mass destruction (WMD) in a
domestic terrorist event have brought the PCA into the spotlight for review. Should Congress
repeal the PCA, leave PCA “as-is”, or modify the PCA? This paper provides background on the
issue of the use of the military for law enforcement and makes the case that policy and not
necessarily statutory guidance drives the use of the military in the domestic venue for rapidly
responding to a wide range of crises.
REVIEW OF THE POSSE COMITATUS ACT AFTER HURRICANE KATRINA
The Posse Comitatus Act of 1878 (PCA) and as amended restricts the use of the Army or
the Air Force for law enforcement purposes.1 The PCA limits the ability of the military to directly
and rapidly respond to domestic events such as natural disasters, civil unrest, and acts of
terrorism.2 Hurricane Katrina and the events of September 11, 2001, combined with the
potential for use of a weapon of mass destruction (WMD) in a domestic terrorist event have
brought the PCA into the spotlight for review. Immediately after Hurricane Katrina President
Bush promoted the idea of the military playing a primary role in responding to future disasters or
national crises and for Congress to consider review of the law.3 This paper provides
background on the issue of the use of the military for law enforcement and makes the case that
policy and not necessarily statutory guidance drives the use of the military in the domestic
venue for rapidly responding to a wide range of crises.
In 1932, Major George S. Patton, Jr., Cavalry, opined in writing about using federal troops
in domestic disturbances:
Due to the combined effect of ignorance and careless diction, there is
widespread misunderstanding of the principle terms used in connection with the
enforcement of law by military means.4
Not much has changed since then and especially so when it comes to the PCA. Patton said,
“To be a successful soldier you must know history.” 5 Therefore the history of the PCA from its
roots to its branches requires exploration to combat the ignorance and misunderstanding of the
PCA and use of the military for law enforcement.
Foundation of Law in the United States of America
From the First Continental Congress in 1774 to the adoption of the Bill of Rights in 1791,
the founding fathers carefully crafted the foundation of the United States of America.6 The
Declaration of Independence in 1776 established the United States of America as free and
independent states from British rule.7 The Articles of Confederation, developed immediately
after the Declaration of Independence, submitted to the states in 1777, and finally ratified in
1781 legalized the ad hoc government with Congress at its center.8 The financial failure of the
Confederation government in practice led to the Constitutional Convention in 1787.9 Over a
period of four months in 1787, the Constitutional Convention produced the preamble and seven
articles establishing the Constitution of the United States of America, ratified in 1788, forming
the government with legislative, executive, and judicial branches.10 The first ten amendments to
the Constitution of the United States, which became universally known as the Bill of Rights,
were immediately proposed in 1789, and ratified in 1791, as a promised requirement for the
ratification of the Constitution.11 The durability of the Constitution is made obvious in the context
of history as it was conceived in an eighteenth-century agrarian republic and endures in an
evolving twentieth-century urban industrial economy that is transforming through globalization
into the twenty-first century. 12 Consistent throughout the foundation of law in the United States
of America is the relationship between the military and the public.
The American public has a longstanding tradition of mistrust of standing armies seeing
them as instruments of oppression and tyranny. 13 The Boston massacre of 1770 represents a
pivotal point in this mistrust when the British Army, sent to Boston to act as a police force, fired
on rioters clearly in violation of the due process principles outlined in colonial charters.14 The
Declaration of Independence that ultimately followed decried the use of armies and attacked
keeping a standing army in peace, the military’s independence from civilian control, and the
quartering of troops among the population.15 The Articles of Confederation limited the role of
the military by restricting the raising of armies and the maintenance of naval vessels.16 The
Constitution mandated civilian control by designating the President as Commander-in-Chief of
the military, and while allowing for a standing army and maintenance of a navy, it restricted
military appropriation to two years.17 The Bill of Rights prohibited the quartering of soldiers in
private homes and ensured the states of a militia as a counterbalance to a standing army. 18
Additional provisions of the Bill of Rights, including the First and Fourth Amendments, prevent a
reoccurrence of the types of abuses committed by the British Army in colonial times by allowing
free speech and press, peaceful assembly, the petition of grievances, and relief from
unreasonable searches and seizures.19 The foundation of law in the United States of America is
consistent in ensuring that the federal government does not exert undue influence directly on
the public through the military.
Basis for the Posse Comitatus Act
In spite of all of the provisions provided by our founding fathers to control the organization
and use of the military, Congress found it necessary after the 1861-1865 Civil War to restrict the
use of the military as posse comitatus with passage of the PCA in 1878.20 Posse comitatus is
the English common law doctrine of the power of the county, or the citizens who may be
summoned by the sheriff to assist the authorities in suppressing a riot, or executing any legal
precept which is forcibly opposed.21 Prior to the PCA, the U.S. military’s involvement in law
enforcement was neither illegal, nor uncommon.22 In 1794, President Washington used the
military to put down the Whiskey Rebellion in Western Pennsylvania.23
2
The Judicial Act of 1798 allowed any U.S. federal marshal to create a posse comitatus
using the military. 24 This was reinforced in 1854 by Caleb Cushing, the U.S. Attorney General
under President Franklin Pierce, with a legal ruling affirming the posse comitatus doctrine in
response to an incident involving a U.S. federal marshal using the assistance of state militia in
the enforcement of the Fugitive Slave Act of 1850.25 That ruling subsequently became known
as the Cushing Doctrine and the basis for further use of the military as posse comitatus.26 The
Cushing Doctrine arose out of the need for a ruling on the legality of the commission of an act.
That ruling established policy, but not necessarily law.
The increased use of the military in law enforcement during the 1800’s in administration of
the new territories culminated in direct military involvement in the reconstruction of the exConfederate States of the South after the Civil War.27 During the Presidential Election of 1876,
a Republican President Grant sent federal troops to polling places in the South to ensure the
rights of black citizens to vote.28 Southern Democrats perceived the presence of federal troops
as allowing the stealing of a close election by the Republican candidate, Rutherford B. Hayes,
based upon the votes from three southern states.29 Political battles resolving the close
presidential election led to the effective withdrawal of federal troops from the South in early
1877.30 The Democratic controlled House of Representatives wanted to ensure the South
remained free of federal interference after the withdrawal of federal troops, but failed to attain
agreement from the Republican controlled Senate on the 1877 Army appropriation bill passed in
the House of Representatives, which expressly prohibited use of the Army to shore up
Republican state governments in the South.31 Subsequently, the Southern Democrats allied
with the Northern Democrats, who opposed the use of the Army to crush the railroad union riots
of 1877, to propose an amendment to the 1878 Army appropriation bill placing restrictions on
the use of the military as posse comitatus.32 After extensive negotiations in conference, the
amendment finally passed both the House of Representatives and the Senate, and became
known as the Posse Comitatus Act (PCA). 33
The PCA is a criminal statute codified in Title 18, Section 1385 of the United States Code
(U.S.C.) that restricts any direct involvement of the military in enforcing civilian laws except
when expressly authorized:
Title 18 U.S. Code § 1385. Use of Army and Air Force as posse comitatus.
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. 34
3
The PCA is law, enacted by Congress, overturning the Cushing Doctrine that allowed a U.S.
federal marshal to use the military as posse comitatus. The PCA does not completely prohibit,
nor prevent the use of the military from performing law enforcement. The PCA requires that the
use of the military for law enforcement is at the direction of Congress or the President on a
constitutional or statutory basis. The Army welcomed the PCA, as the use of soldiers as a
posse comitatus typically placed them under the control of local authorities who had an interest
in the issue that created the unrest. 35 Many officers viewed the use of the military as a posse
comitatus as corrupting and politicizing the military institution.36
Shortly after signing the PCA on 18 June 1878, President Hayes successfully deployed
troops to the New Mexico Territory to enforce the law, affirming the only effective limit of the
PCA was Presidential involvement in using the military for law enforcement.37 An 1882 Senate
Judiciary Committee report confirmed that the President could use troops for law enforcement
provided that military officers retained command, and that the issue addressed by the PCA was
a U.S. federal marshal’s ability to use the Army as a posse comitatus.38 From 1877 to 1945 the
Army was effectively involved in 125 law enforcement interventions, proving that the PCA does
not prohibit, nor prevent the use of the military for law enforcement.39
Application of the Posse Comitatus Act
The PCA explicitly restricts the Army, that standing army of such great concern in the
development of the Constitution. Initially the PCA only applied to the Army and was extended to
the Air Force under the National Security Act of 1947.40 The Navy and the Marines are not
restricted by the PCA, but the Department of Defense (DoD) has made the PCA applicable to
the U.S. Department of the Navy and the Marine Corps as a matter of DoD policy. 41 The PCA
does not apply to the Coast Guard, nor does it apply to the National Guard while under Title 32
U.S.C. (state control).42 The PCA does not contain explicit restrictions on the use of federalized
militia, but the PCA does apply to the National Guard when federalized by the President under
Title 10 U.S.C. (federal control). 43 Although the courts have ruled that the PCA does not apply
extraterritorially and military authorities can directly enforce U.S. law outside of the United
States, the DoD, as a matter of policy, applies the PCA extraterritorially. 44
Exceptions and Additions to the Posse Comitatus Act
While the PCA was overly broad at inception it has increasingly become both ambiguous
and complex due to the exception in the PCA as “expressly authorized by the Constitution or by
act of Congress.”45 Congress has provided both exceptions and additional restrictions related to
the PCA. The major exceptions to the PCA are found under Presidential authority granted
4
under the Constitution and the Insurrection Statutes found in Title 10 U.S.C. Sections 331-335.46
Additional significant exceptions are found in Title 10 U.S.C. Sections 371-382 which cover
Military Support to Civilian Law Enforcement Agencies. An intrinsic exception to the PCA is the
military purpose doctrine, which “allows the military to enforce civilian laws on military
installations, to police themselves, and to perform their military functions even if there is an
incidental benefit to civilian law enforcement.” 47
Three articles of the Constitution play a pivotal role in the use of the military for law
enforcement. Article I, Section 2, of the Constitution establishes that “the President shall be the
Commander in Chief of the Army and Navy of the United States, and of the Militia of the several
States, when called into actual service of the United States.”48 Article II, Section 3, of the
Constitution directs that the President “shall take Care that the Laws be faithfully executed.”49
And Article IV, Section 4, of the Constitution most importantly proclaims:
The United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the Legislature cannot
be convened), against domestic Violence.50
These three articles of the Constitution provide the President with broad responsibilities
and inherent powers. While a requirement for an exception to the PCA is as “expressly
authorized by the Constitution,” the Supreme Court has ruled the President is not dependent on
express Constitutional authorization for the exercise of powers.51
The word “expressly” was
removed from the Senate legislative PCA bill, but restored in the final bill in compromise with the
House of Representatives.52 Republican Senator Sargent provided an explanation in
congressional debate on the use of the word “expressly” in the PCA:
so that if the power arises under either the constitution or the laws it may be
exercised and the Executive would not be embarrassed by the prohibition of
Congress so to act where the Constitution requires him to act…but still might
raise a question which he would desire to avoid if possible.53
While it may appear that the broad responsibilities and inherent Constitutional powers of the
President always allow for the direct use of the military for law enforcement as an exception to
the PCA, this is not necessarily the case, as the courts have ruled that Article IV, Section 4, of
the Constitution is only provisionally effective until such time as Congress acts.54 The President
does have two direct constitutional exceptions to the PCA, identified in Title 32, Section 215.4 of
the Code of Federal Regulations: emergency authority and protection of Federal property and
functions.55
5
Congress did act in 1792 to provide guidance for the President to deal with domestic
violence and the use of Military Assistance for Civil Disturbances through the Insurrection Act,
currently codified as Title 10 U.S.C., Chapter 15, comprised of Sections 331-335.56 Title 10
U.S.C., Sections 331-335, implement Article I, Section 8, of the Constitution, “to provide for
calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions”.57 Section 331 implements Article IV, Section 4, of the Constitution, allowing the
President to suppress insurrection against a state, upon request of the state, using the
military. 58 Section 332 implements Article II, Section 3, of the Constitution, allowing the
President to suppress rebellion against the authority of the United States.59 Section 333
implements Article II, Section 3, and the 14 th Amendment of the Constitution, allowing the
President to suppress any action that interferes with state and federal law, or deprives rights of
citizens–especially when a state is unable, fails, or refuses to react.60 Section 334 requires the
President to issue a proclamation to disperse, prior to the use of the military under the
Insurrection Act.61 And finally, Section 335 includes Guam and Virgin Islands as a “State” for
the purposes of Title 10 U.S.C., Chapter 15.62 These five sections that comprise the
Insurrection Act provide the President direct use of the military for law enforcement as a
statutory exception to the PCA. 63 The most recent use of the Insurrection Act was in April of
1992 in response to the civil unrest following the Rodney King trial in Los Angeles.64
Cong …
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