September 11, 2005

BETTER SORRY THAN "SAFE":

THE POSSE COMITATUS ACT: A PRINCIPLE IN NEED OF RENEWAL: 75 Wash. U. L.Q. 953 (Matthew Carlton Hammond, Summer 1997, Washington University Law Quarterly)

In response to the military presence in the Southern States during the Reconstruction Era, Congress passed the Posse Comitatus Act ("PCA" or the "Act") to prohibit the use of the Army in civilian law enforcement. The Act embodies the traditional American principle of separating civilian and military authority and currently forbids the use of the Army and Air Force to enforce civilian laws. In the last fifteen years, Congress has deliberately eroded this principle by involving the military in drug interdiction at our borders. This erosion will continue unless Congress renews the PCA's principle to preserve the necessary and traditional separation of civilian and military authority.

The need for reaffirmation of the PCA's principle is increasing because in recent years, Congress and the public have seen the military as a panacea for domestic problems. Within one week of the bombing of the federal building in Oklahoma City, President Clinton proposed an exception to the PCA to allow the military to aid civilian authorities in investigations involving "weapons of mass destruction." In addition to this proposal Congress also considered legislation to directly involve federal troops in enforcing customs and immigration laws at the border. In the 1996 presidential campaign, candidate Bob Dole pledged to increase the role of the military in the drug war, and candidate Lamar Alexander even proposed replacing the Immigration and Naturalization Service and the Border Patrol with a new branch of the armed forces.

The growing haste and ease with which the military is considered a panacea for domestic problems will quickly undermine the PCA if it remains unchecked. Minor exceptions to the PCA can quickly expand to become major exceptions. For example in 1981, Congress created an exception to the PCA to allow military involvement in drug interdiction at our borders. Then in 1989, Congress designated the Department of Defense as the "single lead agency" in drug interdiction efforts.

The PCA criminalizes, effectively prohibiting, the use of the Army or the Air Force as a posse comitatus to execute the laws of the United States. It reads:

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 not more than two years, or both.

Though a criminal law, the PCA has a more important role as a statement of policy that embodies "the traditional Anglo-American principle of separation of military and civilian spheres of authority, one of the fundamental precepts of our form of government."

Major and minor exceptions to the PCA, which allow the use of the military in law enforcement roles, blur the line between military and civilian roles, undermine civilian control of the military, damage military readiness, and inefficiently solve the problems that they supposedly address. Additionally, increasing the role of the military would strengthen the federal law enforcement apparatus that is currently under close scrutiny for overreaching its authority. Although it seems benign, such an increase in military authority revives fears of past overreaching during the late 1960s.

This Note argues that the principle embodied by the PCA should be renewed by rejecting exceptions to the Act and reaffirming the policy behind its inception. This renewal is necessary to preserve the historic division between civilian and military roles, to maintain civilian superiority over the military, to enhance military readiness, and to efficiently attack domestic problems. Part II reviews the historical traditional American fear of a standing army and the circumstances leading to the PCA's passage. Part III discusses the current scope of the PCA and the permissible roles of the military. Part IV explains how exceptions to the PCA endanger its underlying principle. The explanation covers the spectrum of possible exceptions to the PCA: drug interdiction, border duty, and biological and chemical weapons investigations. Part V proposes legislative action to reaffirm the policy of the PCA and to limit to any further exceptions to it.

Posted by Orrin Judd at September 11, 2005 8:45 PM
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