FORUM

When Defense Secretary Rumsfeld agreed to a request from the FBI for the use of military surveillance planes to help track down the so-called “D.C. sniper,” the issue of the Posse Comitatus Act once again splashed across the front pages of domestic newspapers. Apart from the usual ranting by the “Black Helicopter” crowd that views every use of the United States military as a continuing government conspiracy to garrison this nation with United Nations forces, the use of the military in this manner is entirely a propos and not in violation of the Posse Comitatus Act.

The 1878 Posse Comitatus Act prohibits the use of the military to execute the civil laws of the United States. In full text, the Act states:

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 mort than two years, or both.

Posse comitatus is Latin for “the force of the country” and refers to the English common law doctrine that empowered the local sheriff to summon able-bodied men to help enforce the law in an emergency situation. The Act came about due to the use of federal troops in the Southern States to assist civilian law enforcement of the Reconstruction Act of 1867, following the American Civil War. It originally only applied to the United States Army, but was extended in 1947 to the Air Force (the Department of Defense now views the Act as applying to all services). The Posse Comitatus Act does not apply to a member of the Reserve component when not on active federal duty, nor to members of the State National Guard when not in federal service. Finally, the Act does not apply to the Coast Guard, which is an arm of the Department of Transportation.

Several laws grant specific exceptions to the application of the Posse Comitatus Act. Title 18 United States 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 Comitatus Act. In addition, the Posse Comitatus Act does not prevent the President from using the military in cases of civil disorders or emergencies. In fact, the military has been used dozens of times in such domestic operations. The Act also does not apply to the use of United States armed forces personnel who either arrest or assist in the arrest of international criminals outside of the territory of the United States.

Most importantly, in the context of the D.C. sniper, a variety of US courts have held that military support to domestic law enforcement short of actual search, seizure, arrest, or similar confrontation with civilians does not violate the Act. Specific examples of permitted support to domestic law enforcement include traffic direction and the provision of information, equipment, and facilities.

As the War on Terror continues and America braces for more terrorist attacks on its soil, the question of whether the Posse Comitatus Act should be revoked or modified will continue to be raised. Arguments that the Posse Comitatus Act is a Congressional statute and can be repealed in toto do not sit well with the long national tradition of excluding the military from domestic law enforcement. Americans clearly have an aversion to the use of soldiers as a policing force. In a letter sent to Defense Secretary Rumsfeld in October of 2001, Senator John Warner (R-VA) asked if the Posse Comitatus Act should “now be changed to enable our active-duty military to more fully join other domestic assets in this war against terrorism?” For now, the answer appears to be "no."

Nevertheless, the possibility that the D.C. sniper may be linked to a radical terrorist group - either philosophically or in fact - clearly rubricates the need to consider an increased use of our military to support civilian law enforcement authorities. Indeed, just this summer, a new four-star general combatant command responsible for coordinating military support for defending the territory of the United States and providing civil aid was created. This command for homeland defense has been designated "Northern Command" and is based in Colorado.

Whoever the D.C. sniper turns out to be, it is certain that the United States is slowly crossing the mental bridge from using its armed forces to wage conventional warfare on foreign soil to developing action-oriented tactics and strategies to combat terrorism in the homeland. Fortunately, the steps have thus far been measured and proportionate to the threat.

October 17, 2002