A majority of Americans in a recent poll expressed support for the use of our military as part of law enforcement during domestic emergencies. President Bush evidently shares this view, for he proposed using the military to enforce the law in the aftermath of Hurricane Katrina. He suggested as well that the military might be best qualified to quarantine sections of the United States in the event of a bird flu epidemic. He has proposed that the Department of Defense, not a civilian agency, receive $5 billion to stockpile flu vaccines.
It’s hard to think of a stance more antithetical to the political convictions of our founders. “No standing armies” was one of the rallying cries of the American Revolution. This strong historical distrust of the military later found expression in the Posse Comitatus law of 1878, still in force.
Archaic as the title of that law sounds, the principle is as relevant today as it was more than a hundred years ago. Martial law is not to be imposed lightly. Recovering an understanding of why the Founders feared the domestic use of the military will be essential if we are to block this new threat to our republic.
The Posse Comitatus law was carefully observed for nearly 80 years, but in 1957 President Eisenhower sent the military to Little Rock, Ark., to quell anti-integration protests, and President Kennedy sent troops to Mississippi and Alabama in the 1960s. In the 1980s and 1990s the erosion of the restrictions on the use of the military accelerated. Under President Reagan, Congress authorized the use of the military’s air and sea power in efforts to control drug smuggling. The Coast Guard served aboard Navy ships to handle the actual boarding and arrest, while the Navy provided intelligence, surveillance and other facilities.
The military later became involved in immigration control, tariff enforcement, civil disturbance riot control, national disasters and crowd control, as in the deployment of 10,000 troops to the 1996 Atlanta Olympics. Coincidentally, perhaps, public esteem for the military rose from a mid-70s low of 25 percent to a peak of 75 percent in 2000. Even after the prison scandals at Abu Ghraib and elsewhere, the military remained in 2005 the most respected institution in the United States.
Not so two hundred years ago. The framers of the U.S. Constitution remembered how British soldiers served as police in 1770. Untrained in police work, the soldiers lost their discipline and fired into a crowd in an incident that came to be called the Boston Massacre. The framers also remembered military abuses such as quartering, which occasionally put British eavesdroppers into the homes of colonial patriots.
Contemporaries then, as now, realized that sometimes upholding the law required more than the local constable. Sometimes the sheriff needed a posse comitatus, or posse, as they say in Western movies. Always, though, the posse was composed of civilians. When the sheriff wanted people with military experience, he called on the militia, weekend warriors as it were, not the full-time military.
When the militia, later the National Guard, served as a posse comitatus it was under civilian authorities, obligated to uphold the Constitution. For 70 years, troops served in police roles, including monitoring the polls to keep drunks and women and other unauthorized voters from voting illegally.
The lead-up to the Posse Comitatus law began in 1854 when Attorney General Caleb Cushing ruled that the soldiers could legitimately serve, and in a military, not a civilian, capacity. After Cushing’s ruling, throughout the Civil War and Reconstruction the Army, not the militia, served as a peacekeeping force in both the West and the South.
The West was short of law enforcers but well stocked with Indians and outlaws. The West was also too far away from Washington, D.C., military headquarters for post commanders to wait for permission to respond to an Indian attack or an outlaw’s rampage. Necessity led military commanders to take the law into their own hands, sometimes at the expense of constitutional niceties. Although justified by exigency, the use of the military as police threatened the Constitution.
The extensive use of the military to quell disturbances and enforce anti-Confederate, pro-black laws in the Reconstruction South was offensive to Southerners who had just lost a war to that same army. Offense became outrage in 1876 when it seemed that Republican Rutherford B. Hayes won the presidency in part because federal troops controlling the polls had rejected likely Democratic voters.
Reacting to the use of the military for partisan political purposes, the Democrat-controlled House of Representatives passed the Posse Comitatus Act. Rejecting 70 years of tradition that allowed troops to be used in civilian roles if they were under civilian authority, the Posse Comitatus Act defined the use of troops as the equivalent of martial law.
Posse Comitatus applied to the Army, Navy and Marines (the Air Force was covered after World War II), and the Reserves. The Coast Guard is exempt, as is the National Guard. The Coast Guard is not under the Department of Defense. The National Guard is historically a state force, similar to the old-time militias, unless federalized by the president. Violation of the Posse Comitatus Act is subject to a fine up to $10,000 and/or up to two years in prison.
Each exemption from the Posse Comitatus Act — like the ones proposed now — potentially makes martial law easier to accept. This is especially the case when the public trusts no other institution as much as its military. Martial law suspends civil rights and liberties guaranteed by the Constitution. A military commander may declare that civil courts and police are not functioning and impose military law. The commander may order curfews, seize private property and prohibit constitutionally guaranteed rights to speech and assembly. Those charged will lack due process guarantees such as the right to appeal when tried and are imprisoned under the military rather than the civilian court system. Just such abuses led to the enactment of Posse Comitatus.
Although Congress must prescribe what the military can be used for, the president may override restrictions in event of war, insurrection or “other serious emergency.”
With a president who seems to prefer using the military rather than any other arm of the executive, regardless of circumstance, we need protection from military interference today as much as ever. With all due respect, the president and those who support using the army in time of domestic disturbance like that of the Gulf Coast last month are wrong.