[Paleopsych] Washington University Law Quarterly: The Posse Comitatus Act: A Principle in Need of Renewal
Premise Checker
checker at panix.com
Tue Jul 19 01:21:58 UTC 2005
The Posse Comitatus Act: A Principle in Need of Renewal
by Matthew Carlton Hammond
http://law.wustl.edu/WULQ/75-2/752-10.html
Volume 75 Number 2 Summer 1997
Cite As 75 Wash. U. L.Q. 953
THE POSSE COMITATUS ACT: A PRINCIPLE IN NEED OF RENEWAL
I. INTRODUCTION
In response to the military presence in the Southern States during the
Reconstruction Era, Congress passed the Posse Comitatus Act[1] ("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.[2] In the
last fifteen years, Congress has deliberately eroded this principle by
involving the military in drug interdiction at our borders.[3] 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.[4] Within one week of
the bombing of the federal building in Oklahoma City,[5] President
Clinton proposed an exception to the PCA to allow the military to aid
civilian authorities in investigations involving "weapons of mass
destruction."[6] In addition to this proposal Congress also
considered legislation to directly involve federal troops in enforcing
customs and immigration laws at the border.[7] 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.[8]
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. [9] Then in 1989, Congress designated
the Department of Defense as the "single lead agency" in drug
interdiction efforts.[10]
The PCA criminalizes, effectively prohibiting, the use of the Army or
the Air Force as a posse comitatus [11] 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. [12]
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." [13]
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.[14] Additionally, increasing the role of the
military would strengthen the federal law enforcement apparatus that
is currently under close scrutiny for overreaching its authority.[15]
Although it seems benign, such an increase in military authority
revives fears of past overreaching during the late 1960s.[16]
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. [17] Part V proposes legislative
action to reaffirm the policy of the PCA and to limit to any further
exceptions to it.
II. PASSAGE OF THE PCA: REAFFIRMATION OF A LONG-STANDING AMERICAN TRADITION
The hotly contested presidential election of 1876 directly led to the
passage of the PCA,[18] but the principle behind the Act--excluding
the military from the civilian sphere--is as old as the United
States.[19] Since the writing of the Declaration of Independence,
Americans have mistrusted standing armies and have seen them as
instruments of oppression and tyranny. [20] Over time, the military
has increased its esteem among the populace, but it has always been
held separate from civilian government and limited to its focussed
goal of military preparedness and national security. [21]
This antimilitarism bent of the United States is evident in our
foundation documents. [22] The Declaration of Independence decries
King George III's use of armies "to compleat works of death,
desolation and tyranny . . . totally unworthy . . . of a civilized
nation."[23] Specifically, the Signers of the Declaration of
Independence attacked the keeping of a standing army in time of
peace,[24] the military's independence from the civil control,[25]
and the quartering of troops among the population of the
colonies.[26]
In response to these concerns, the Articles of Confederation limited
the role of the military.[27] Specifically, they restricted the
raising of armies and the maintaining of naval vessels.[28] They also
reserved the appointment of officers, other than the rank of general,
to the states, thus lessening the central government's control over
the military.[29] In addition to establishing a weak central
government, the Articles of Confederation's reliance upon militia for
military power was inadequate to meet the needs of the nation.[30]
In the Constitution, the Founding Fathers mandated civilian control of
the military through the government structure.[31] While allowing for
a standing army and the maintenance of a navy,[32] the Constitution
restricts military appropriations to two years;[33] designates the
President as the Commander-in-Chief, thereby subordinating the
military to civilian authority;[34] and empowers Congress to regulate
the armed forces.[35] Additionally, the Bill of Rights proscribes the
peacetime quartering of soldiers in private homes[36] and provides
for the states to have a well-regulated militia as a counterbalance to
a national army.[37]
Fear of a standing army helped to motivate the enactment of the Bill
of Rights beyond the specific amendments relating to the
military.[38] By guaranteeing individual rights in the First
Amendment[39] and freedom from unreasonable search and seizure in the
Fourth Amendment,[40] it was that the abuses of the British army
could be prevented in the new republic.[41] The Founding Fathers
recognized that the military's authoritarian nature, while effective
in defending democracy, remains antithetical to the basic tenets of
democracy. [42] According to this reasoning, "[s]kepticism and
criticism" of the military are "absolute requisites of freedom" that
are missing from every unfree nation.[43]
Fear of the military seemed to have been forgotten until the
mid-1800s, when the events leading up to enactment of the PCA began
prior to the Civil War. The Fugitive Slave Act of 1850 allowed federal
marshals to call on the posse comitatus to aid in returning a slave to
his owner. [44] In the context of the Fugitive Slave Act, Attorney
General Caleb Cushing issued an opinion defining the posse comitatus
to include the military even if entire units had to be called upon
while remaining under the direction of their own officers. [45] This
use of the military by federal marshals became common; in Kansas, for
example, federal troops were used to quell disorder between pro- and
anti-slavery factions.[46]
The post-Civil War military presence in the South continued to foment
a distaste for military involvement in the civilian sphere.[47] The
military presence was necessary to support the Reconstruction
governments installed in the South ,[48]1[3] but the situation came
to a head during the 1876 presidential election, which was determined
by only one electoral vote. [49] In the election, Rutherford B. Hayes
won with the disputed electoral votes of South Carolina, Louisiana,
and Florida.[50] In those states, President Ulysses S. Grant had sent
troops as a posse comitatus for federal marshals to use at the polls,
if necessary. [51] This misuse of the military in an election--the
most central event to a democracy--led Congress to enact the PCA in
1878.[52]
III. THE SCOPE OF THE PCA
In the nearly 120 years that the PCA has been in effect, there have
been no criminal prosecutions under the Act, although it is a criminal
statute. [53] This lack of criminal prosecutions has deprived courts
of the opportunity to interpret the PCA directly. [54] Courts have
had a few opportunities to interpret the statute indirectly,
however.[55] Defendants have unsuccessfully raised the PCA as a
shield, contending that a violation of the Act divests the trial court
of jurisdiction[56] and that evidence gathered through a violation of
the PCA should be suppressed.[57] The PCA has been successfully used
where (1) the involvement of the military drew into question whether
federal law enforcement officers were lawfully performing their
duty[58] and (2) a PCA violation enabled the federal government to
avoid liability under the Federal Tort Claims Act[59] because the
tortious act in question "could not have been authorized on behalf of
the United States by any action short of a Congressional
enactment."[60]
This dearth of judicial interpretation has left "the parameters of the
[PCA] . . . substantially untested."[61] Due to the resulting lack of
clarity, the PCA does not actually prohibit all so-called "exceptions"
to its application, and such exceptions-in-name have been enacted to
clarify--or, depending upon your view, alter--its boundaries[62] and
to provide guidance to military commanders.[63] The greatest
uncertainties regarding the PCA concern what constitutes "any part of
the Army or Air Force"[64] and what actions "execute the laws."[65]
A. Elements of the Armed Forces Covered by the PCA
The PCA expressly applies only to the Army and Air Force.[66]
Congress did not mention the Navy, Marine Corps, Coast Guard, or
National Guard in the PCA; accordingly, the PCA does not limit
them.[67] However, the Department of Defense has extended by
regulation the PCA's prohibitions to the Navy and Marine Corps. [68]
Although, the Coast Guard is part of the armed forces, in peacetime it
falls under the authority of the Department of Transportation[69] and
has an express law enforcement function.[70] Additionally, the PCA
only applies to forces in federal service, and therefore, the National
Guard is not limited by the PCA in its normal status of state
service.[71] Because the National Guard is the modern militia, this
distinction actually follows the intent of the PCA, which was not
meant to limit militias.[72] The courts have also implicitly limited
army to the official military establishment rather than its broader
plain meaning.[73]
The breadth of the PCA in its application to "any part of the Army or
Air Force" is uncertain and can be a factual question.[74] The PCA
applies to on-duty service members, but not to off-duty service
members acting in a private capacity.[75] Conversely, when an
off-duty service member acts under the direction of military
authorities, the PCA applies.[76] Whether the PCA applies to civilian
employees of the armed forces remains undecided. On the basis of
general agency principles, the PCA should arguably apply to civilian
employees during the performance of their duties,[77] but Department
of Defense regulations do not apply PCA restrictions to them.[78]
Furthermore, according to the Judge Advocate General, civilian
employees of the Army are technically not part of the military.[79]
B. What Action Constitutes a Violation of the PCA
The PCA proscribes the use of the military[80] "as a posse comitatus
or otherwise to execute the laws."[81] Courts have used three
formulations of an active versus passive test to determine a PCA
violation. All three formulations result from litigation that ensued
following the 1973 standoff between federal authorities and the
American Indian Movement at Wounded Knee, South Dakota.[82] The
formulations allow passive assistance in support of law enforcement
without causing a PCA violation.[83]
In United States v. Red Feather ,[84] the court defined a PCA
violation as "direct active use of Army or Air Force personnel,"[85]
thus creating the passive versus active dichotomy. The court found
that a provision of military equipment and supplies was not an active
use of the military.[86] The court found support for this position in
Congress's passage of the Economy Act of 1932,[87] which provides for
the transfer of resources between executive departments. [88]
In United States v. Jaramillo ,[89] the court focussed on whether use
of the military "pervaded the activities" of the civilian law
enforcement agencies to determine a PCA violation.[90] The court
found that the provision of supplies and equipment alone did not
constitute a violation,[91] and it concerned itself with whether the
military observers involved had too much influence over civilian law
enforcement decisions regarding negotiations, use of equipment, and
the policy on the use of force.[92] Although the court did not
necessarily find a violation of the PCA, the evidence cast doubt on
whether the federal authorities were "lawfully engaged in the lawful
performance of their official duties." [93] Therefore, the court
dismissed the indictment for obstructing law enforcement
officers.[94]
United States v. McArthur ,[95] approved by the Eighth Circuit in
United States v. Casper,[96] promulgated the third formulation of the
active versus passive test and focussed on the individual subjected to
the PCA violation.[97] The McArthur formulation asked whether
"military personnel subjected . . . citizens to the exercise of
military power which was regulatory, proscriptive, or compulsory in
nature." [98] On basically the same facts as Jaramillo, the McArthur
court found no PCA implications.[99] United States v. Yunis[100]
further clarified the elements of the McArthur formulation: regulatory
power "controls or directs";[101] proscriptive power "prohibits or
condemns";[102] and compulsory power "exerts some coercive force."
[103]
It should be noted that the PCA's effect is limited to the United
States and does not bar the military's support of law enforcement
agencies abroad. In Chandler v. United States,[104] the court held
that the PCA has no extraterritorial effect.[105] However, some
restrictions do exist on the military's activities outside the United
States. These restrictions arise out of military regulations[106] and
congressional acts that have limited military support to foreign
civilian law enforcement authorities.[107]
C. Exceptions to the PCA
The PCA explicitly recognizes constitutional and legislative
exceptions to its application. [108] The existence of any
constitutional exceptions was contested at the time of the PCA's
enactment.[109] Some proponents of the PCA saw the exceptions as
inherent in the executive powers of the President and in his position
as Commander-in-Chief of the armed forces, [110] thus making them
beyond the reach of Congress to limit.[111] Others who supported the
PCA's passage recognized no such exceptions. [112] The existence of
constitutional exceptions to the PCA may only actually lie in the
"twilight zone" where the President may act where Congress has not, as
described by Justice Jackson's concurrence in Youngstown Sheet & Tube
Co. v. Sawyer. [113]
Another "constitutional" exception to the PCA is described by the
Department of Defense regulations based upon the "inherent right of
the U.S. Government . . . to ensure the preservation of public order
and to carry out governmental operations . . . by force, if
necessary."[114] The Office of Legal Counsel of the Department of
Justice has promulgated a similar view in recognition of the U.S.
government's power to protect federal functions.[115] The power to
protect federal functions has been so broadly interpreted, however,
that if accepted it would become the exception that swallows the rule.
Now-Chief Justice William Rehnquist interpreted this power to extend
to any "uniquely federal responsibility" while he was an attorney in
the Office of Legal Counsel.[116] However, this exception has yet to
be tested in the courts and would likely be interpreted as narrowly as
the other exceptions to the PCA.
Congress itself has recognized several exceptions to the PCA, [117]
which this Note categorizes as exceptions-in-fact and
exceptions-in-name.[118] The exceptions-in-fact are true exceptions
that exempt otherwise criminal actions under the PCA and alter its
boundaries. Exceptions-in-name include exceptions that are described
or perceived as exceptions to the PCA, but which authorize allowable
acts under any of the court-created tests. [119] Exceptions-in-name
do not alter the accepted boundaries of the PCA and do not make
previously criminal acts legal. They are sometimes simply termed
"clarifications."[120]
Exceptions-in-name allow the military to provide equipment and
supplies,[121] technical assistance,[122] information,[123] and
training to law enforcement agencies.[124] Such provisions constitute
passive assistance to civilian law enforcement, which does not subject
any civilian to the regulatory, proscriptive, or coercive power of the
military. [125]
Exceptions-in-fact include protection of the rights of a discoverer of
a guano island,[126] removal of persons illegally occupying Indian
lands,[127] protection of national parks, [128] investigation of
crimes against the President or others in the line of
succession,[129] and protection of civil rights where local
authorities do not or cannot protect them.[130] Exceptions-in-fact
also include the quelling of civil disturbances and labor strife that
rises to the level of civil disorder. For example, Troops were used to
put down the Whiskey Rebellion[131] long before the PCA was passed
and to maintain order during school desegregation in the South after
the Act's passage. Troops have also been used to quell riots in
Detroit and other cities.[132] More recently, they were deployed on
the streets of Los Angeles in 1992 after the Rodney King
verdict.[133]
The courts have recognized another type of exception through the
military purpose doctrine, which is not explicitly mentioned in the
PCA.[134] The doctrine 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.[135] However, the doctrine is interpreted by the
McArthur formulation--whether a person is subjected to military power
that is regulatory, proscriptive, or coercive[136]--when the
activities occur off-base.[137]
D. Allowable Domestic Uses of the Military
There are many other uses of the military which seem to implicate the
PCA, but are not within its scope because law is not being enforced.
Since the passage of the PCA, the military has been used several times
for domestic purposes that do not conform to its traditional role. The
PCA proscribes use of the army in civilian law enforcement, but it has
not prevented military assistance in what have been deemed national
emergencies, such as strike replacements and disaster relief. However,
these emergencies differ in character from other exceptions to the PCA
by their very nature as emergencies and by the duration of the
military involvement.
Presidents Richard Nixon and Ronald Reagan both used the military to
replace striking federal employees. In 1970, President Nixon sent
30,000 federal troops to replace striking postal workers in New
York,[138] and in 1981, President Reagan replaced striking air
traffic controllers. [139] The military has also been used to replace
striking coal miners.[140]
Disaster relief, another common use of the military, does not seem to
violate the PCA because it is not a mission executing the laws. In the
1906 San Francisco earthquake, the Army led the effort to put out
fires and restore order. More recently, Hurricane Hugo in Florida
resulted in a large military presence during the relief effort.[141]
However, the military also found itself providing election facilities
in Florida--a situation too similar to that which precipitated the
passage of the PCA in 1876.[142]
IV. EXCEPTIONS TO THE PCA ENDANGER THE MILITARY AND THE UNITED STATES
The PCA's exceptions-in-name and exceptions-in-fact endanger the
military and the United States by blurring the traditional line
between military and civilian roles, undermining civilian control of
the military, damaging military readiness, and providing the wrong
tool for the job.[143] Besides the current drug interdiction
exceptions, the 104th Congress considered two bills to create new
exceptions to the PCA. [144] The Border Integrity Act[145] would
have created an exception to allow direct military enforcement of
immigration and customs laws in border areas. [146] The Comprehensive
Antiterrorism Act[147] would have allowed military involvement in
investigations of chemical and biological weapons. [148] This Note
will discuss these two proposed exceptions together with the exception
mandating military involvement in counter-drug operations to
illustrate the negative effects of creating exceptions to the PCA.
Increasing direct military involvement in law enforcement through
border policing--an exception-in-fact[149]--is an easy case against
which to argue. Investigative support--an exception-in-name[150]--is
passive, indirect enforcement. Drug interdiction--an exception-in-name
for the most part--falls between border policing and investigative
support because of the extensive military involvement.
A. Blurring the Lines
The differences in the role of civil law enforcement and the role of
the military are blurred by the PCA's exceptions. Civilian law
enforcement is traditionally local in character, responding to needs
at the city, county, or state level. Civilian law enforcement trains
for the law enforcement mission, which differs from the military
mission.[151] Civilian law enforcement requires the cognizance of
individual rights and seeks to protect those rights, even if the
person being protected is a bad actor. Prior to the use of force,
police officers attempt to de-escalate a situation. Police officers
are trained to use lesser forms of force when possible to draw their
weapons only when they are prepared to fire.
On the other hand, soldiers are trained when to use or not to use
deadly force. [152] Escalation is the rule. The military exists to
carry out the external mission of defending the nation. Thus, in an
encounter with a person identified with the enemy, soldiers need not
be cognizant of individual rights, and the use of deadly force is
authorized without any aggressive or bad act by that person.[153]
This difference between soldiers and police has been tragically
illustrated in the recent shooting of a young man by marines
patrolling near the Mexican border.[154]
The exceptions of border duty, investigative support, and drug
interdiction blur the traditional line between civilian law
enforcement and the role of the military. Border duty by soldiers
under the Border Integrity Act has traditionally been the
responsibility of civilian law enforcement. Drug interdiction has
traditionally been a task for civilian law enforcement, and long-term
military involvement comes close to subjecting civilians to all three
types of military power--a fear of the Founding Fathers.[155]
Investigative support by the military is very reminiscent of the
military surveillance conducted in the 1960s, which was condemned by
Congress and members of the Supreme Court as an improper use of the
military.[156]
B. Undermining Civilian Control of the Military
Civilian control of the military is undermined whenever military
activities invade areas that "endanger liberties or the democratic
process, even when that expansion is sanctioned by the civilian
leadership."[157] The military should not gain "unwarranted
influence" in civilian affairs.[158] The purpose of civilian control
is "to ensure that defense policy and the agencies of defense policy
are subordinated to other national traditions, values, customs,
governmental policies, and economic and social institutions."[159]
The civilian government must therefore consider the institutional
characteristics of the military, including personnel, doctrine,
training, equipment, and morale, when making policy decisions about
the domestic use of the military.[160] A military with many
nonmilitary functions is more "autonomous" and thus under less
civilian control.[161]
In the case of counter-drug activities, the government has disregarded
all these considerations. The counter-drug mission is not a good fit
for the military: the chronic nature of the drug problem requires the
military's deep involvement over time without any true success[162]
because the high profitability of drug trafficking makes its complete
deterrence impossible.[163] This involvement without success hurts
morale,[164] and the long-term nature of the involvement cannot help
but increase the "unwarranted influence" of the military in civilian
affairs.[165]
Both border duty and investigative support, if enacted, would create
the same concerns as the counter-drug mission. Increasing the
involvement of the military in civilian law enforcement will make it
difficult to maintain the military's subordinate role over the
long-term. Additionally, use of the military in civilian law
enforcement damages its professionalism, which the PCA's enactment
helped to develop. Many of these same concerns underlay the
government's reluctance to send the military abroad without clear
criteria and timelines for withdrawal,[166] yet those concerns have
been ignored in domestic military use.
C. Damaging Military Readiness
The military's primary mission is national security, and the wisdom of
all military decisions is ultimately weighed against whether national
security is enhanced or damaged. Military readiness is a key to modern
warfare and to the maintenance of national security.[167] In
recognition of this fact, the military can refuse a request for aid in
drug interdiction and in the investigation of chemical and biological
weapons if military readiness might be compromised.[168] However,
this power of refusal does not prevent injury to military
readiness,[169] because while the military still takes on these
missions, their mere consideration injures readiness through the
redirection of resources in the decisionmaking process by adding a
nonmilitary factor to the decision.[170]
The border duty, investigative support, and drug interdiction
exceptions are double-edged swords with respect to military readiness.
The military has embraced new missions like drug interdiction as a way
to preserve force structure and budget levels and to improve public
relations.[171] In this respect, these new missions may aid readiness
by preserving support for military strength and funding, but this
benefit is outweighed by the shift of focus slightly away from the
mission to fight a war.[172] This change of focus lessens the
fighting edge of the military[173] and dampens the "warrior spirit."
[174] Additionally, these missions require equipment modifications
and the reallocation of resources.[175] For example, F-15 pilots do
not hone their dogfighting skills by tracking a single-engine Cessna
flying north from Mexico; in the Gulf War, there were stories of
inadequately trained National Guard units that had participated more
frequently in nontraditional missions, yet were incapable of
fulfilling their military mission.[176]
The three exceptions to the PCA affect military readiness in a variety
of ways. Drug interdiction has injured military readiness as a result
of expensive equipment modifications and the redirection of resources.
The 1993 Department of Defense budget included more than $1.4 billion
for drug interdiction missions.[177] This budget allocation has
resulted in a "drug command" of sorts which is entirely focussed on
the domestic mission of drug interdiction.[178] Border duty requires
a different mindset and a different level of restraint than
warfare,[179] thus disrupting the optimum culture and mindset needed
to maintain national security. Investigatory support by the military
is also a mission differing from that which currently exists in the
military.[180] To redirect resources or to consider performing such
nonmilitary missions involves considerations that lessen the
importantance of strictly improving military readiness, even when the
only question is where to train.
D. Wrong Tool for the Job
Illegal immigration, drug interdiction, and investigative support
relating to terrorism are all long-term problems requiring long-term
solutions. These problems are not easily resolved, however, and no
foreseeable end to the military's involvement appears
forthcoming.[181] Because of the significance of the problems and
their continuing and chronic nature, using the military to combat
these problems is like using a sledge hammer to open a locked trunk
when all one needs is the key. It is better to fashion a key than to
destroy the trunk.
All three exceptions to the PCA require using the wrong tool for the
job. For example, border duty forces the military to alter its mindset
and training. The border patrol and other law enforcement agencies
already have the proper mindset and qualifications and are better able
to do the job. Using an F-15 to track drug smugglers' slow planes is
both excessive and expensive. A basic military soldier costs the
government $82,000 a year in training and upkeep. A soldier's
involvement in drug interdiction is much more expensive than a
civilian counterpart's participation. Investigatory support for
weapons of mass destruction to counter terrorism is more than a minor
exception because terrorism is a continuing problem without end. We
would best be served by developing these resources in civilian law
enforcement. [182]
V. RENEWAL OF THE POLICY EMBODIED BY THE PCA
The fundamental precept of maintaining the separation between the
military and civilian spheres of action[183] must be renewed, not
eroded by exceptions. Both exceptions-in-name and exceptions-in-fact
should be avoided because they injure that separation.[184] To
maintain the principle that animates the PCA, the PCA should be
reaffirmed and strengthened. Below are three possible approaches.
One approach is to do nothing, but to do nothing would only leave the
situation in its current unacceptable state. The military is seen as a
panacea to many domestic problems that do not properly fall within the
military sphere. Congress may resolve to leave the PCA alone, but it
should be remembered that in 1878 the PCA was enacted precisely
because the government had to be reminded of the fundamental principle
of separating the military from the civilian sphere.[185] The need to
remind, or re-remind, government of that fundamental principle exists
today.
Another approach is to amend the Constitution, but this is less
appealing than the first approach. A constitutional amendment by its
very nature would strengthen the principle of excluding the military
from the execution of civilian laws, but it is inflexible. In this
case, a constitutional amendment would limit the powers of the
President by limiting his authority as Commander-in-Chief and executor
of the laws.[186] If these powers are qualified by Congress, as some
commentators suggest,[187] then the amendment would only add
inflexibility to the Constitution, thereby weakening one of its
greatest assets.[188] Normally, the "twilight zone"[189] of
Presidential power provides enough flexibility to allow the United
States to best meet the uncertainties of the future. A constitutional
amendment would remove the "twilight zone" with respect to military
use. It might be possible to amend the Constitution to allow
nonmilitary use of the military through the exercise of emergency
powers, but the resulting amendment would still create a fixed
standard that might not foresee some future event, making it
unacceptable.[190] Additionally, a constitutional amendment should
not be enacted unless absolutely necessary for the functioning of our
government or society.[191]
The third and best approach, is a legislative reaffirmation of the
fundamental principle behind the PCA with added guidelines to help
focus considerations of PCA exceptions. Legislative action refocusses
the debate on the use of the military from the pressing problems into
which they may possibly be drawn and retains the flexibility that a
constitutional amendment would remove. Additionally, the legislative
solution maintains flexibility yet Congress and the President remain
constrained by public opinion in their use of the military.[192] This
Note proposes that Congress repeal the PCA in Title 18 and enact the
following statute in Title 10:
(a) Any part of the armed forces,[193] excluding the Coast Guard,
is prohibited from acting as a posse comitatus or otherwise to
execute the laws, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress.[194]
(b) Exceptions to paragraph (a) allowing use of the armed forces
must meet the following criteria:
(1) the use must be triggered by an emergency, which is defined as any
occasion or instance for which Federal assistance is needed to
supplement State and local efforts and capabilities to save lives
and to protect property and public health and safety, or to lessen
or avert the threat of a catastrophe[195]--generally a sudden,
unexpected event;[196]
(2) the use must be beyond the capabilities of civilian
authorities; and
(3) the use must be one limited in duration and not one which
addresses a chronic, continuing issue or problem.
(c) Clarifications to prohibitions in subsection (a) are to be made
by regulations to be published in the Federal Register and printed
in the Code of Federal Regulations.
(d) This section is an affirmation of the fundamental precept of
the United States of separating the military and civilian spheres
of authority.
(e) Nothing in this section shall be construed to affect the law
enforcement functions of the United States Coast Guard.
First, a repeal of the PCA in Title 18, Crimes and Criminal Procedure,
and recodification into Title 10, Armed Forces, would bring the law
into line with its current function and force. The PCA is a law of
policy, both in application and political discourse. The total lack of
prosecutions under the PCA[197] causes the law to lack force and
credibility, because the crime is going unpunished. Recodification
recognizes the law as a limitation on the use of the military without
losing credibility due to the lack of enforcement. Additionally, other
criminal statutes would cover misappropriation of military
services,[198] or Congress could modify them to cover activity
prohibited by the PCA. The 94th Congress considered such a
recodification. [199]
The general language in subsection (a) of the proposed law would be
substantially similar to the current wording of the PCA.[200] This
language leaves some of the ambiguity and vagueness in the law, which
in turn leaves intact the flexibility of the current law and clearly
marks it as a continuation of the PCA. Past interpretations of the PCA
would therefore apply equally to the proposed law as they do to the
current law.
However, one significant change in the language extends the principle
of the PCA to the Navy and Marine Corps by reference to "the armed
forces." This extension broadens the language of the PCA[201] and
makes the current policy--as it is evinced by Department of Defense
regulations--law, thereby erasing a meaningless distinction.[202] By
codifying the DoD regulations, any change would require congressional
approval.[203] The Coast Guard is explicitly excluded from the
proposal in both subsections (a) and (d) to leave their current law
enforcement responsibilities intact.
The criteria for exceptions creates a structure for considering what
exceptions to the PCA are proper. In subsection (b), the proposed
basic criteria for exceptions is an emergency of limited duration and
a nonchronic nature that is beyond the capabilities of civilian
authorities.[204] The purpose of such criteria is to keep the
military from getting drawn into a substantial, long-term, and
distracting role, such as involvement in drug interdiction activities.
The emergency requirement recognizes the importance of the separation
of military and civilian spheres by stating that anything less will
not involve the military. An emergency also suggests something more
than an ordinary occurrence, which further ties in the notion of a
nonchronic problem requiring a limited time commitment. The military
should be used as a stop-gap, not as a permanent or regular solution
to a problem.[205] Requiring the problem to be beyond the
capabilities of civilian authorities forces the military to stay out
of matters that can otherwise be handled by the proper
authorities[206] and will encourage the development of those
authorities' capabilities to deal with chronic, nonemergency problems.
The framework of this proposal would allow exceptions for civil
disturbances, insurrection, strike replacement, and disaster relief,
because all are limited in scope, require resources usually beyond
local authorities, and would by nature be emergencies. The use of
troops for border duty would fail under all three requirements because
no emergency is occurring, involvement is not of limited duration, and
customs and immigration problems are not beyond the capabilities of
immigration authorities. The counter-drug exception also fails under
all three criteria, particularly because it involves no emergency and
is not of limited duration. The investigative support exception for
weapons of mass destruction fails under the limited-duration and
capabilities-of-civilian authorities criteria, but like the PCA, the
proposal does not prohibit investigatory support.
The requirement of regulations to clarify the law lessens the need for
exceptions-in-name while providing military commanders with guidance.
One of the reasons Congress passed the counter-drug exception was that
the military commanders lacked guidance. The inclusion of clarifying
regulations in the Code of Federal Regulations delineates the
acceptable uses of the military and promotes public discourse about
the appropriateness of these uses.
VI. CONCLUSION
The Departments of Justice and Defense got it right as recently as
1979:
The [PCA] expresses one of the clearest political traditions in
Anglo-American history: that using military power to enforce the
civilian law is harmful to both civilian and military interests.
The authors of the [PCA] drew upon a melancholy history of military
rule for evidence that even the best intentioned use of the Armed
Forces to govern the civil population may lead to unfortunate
consequences. They knew, moreover, that military involvement in
civilian affairs consumed resources needed for national defense and
drew the Armed Forces into political and legal quarrels that could
only harm their ability to defend the country. Accordingly, they
intended that the Armed Forces be used in law enforcement only in
those serious cases to which the ordinary processes of civilian law
were incapable of responding.[207]
The need to fight "the war" on drugs, to combat terrorism, and to
deter illegal immigration are long-term problems that are currently
high on the public agenda and will not go away without long-term
solutions. Tight budgets and the desire for a quick-fix do not create
an emergency justifying the conversion of martial rhetoric to reality.
Relegating these problems to a military solution poses dangers to our
individual rights and to the history and underlying structure of the
United States that should not be ignored.
Resources must be made available to create viable civilian law
enforcement responses to these problems. If these resources must be
redirected from the military, then Congress should do so. Declare
"war," but let it be fought by civilian law enforcement with the right
weapons for the job. The military should be the last resort, not the
first solution. In the long run, the "war" will be more effectively
fought with dedicated "soldiers" with an undivided focus.[208]
_________________________________________________________________
[1.] Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878)
(codified as amended at 18 U.S.C. § 1385 (1994)).
[2.] See 18 U.S.C. § 1385 (1994).
[3.] See generally Jim McGee, Military Seeks Balance in Delicate
Mission: The Drug War, WASH. POST, Nov. 29, 1996, at A1. The military
has become "embedded" in the drug war and performing domestic police
missions traditionally belonging to civilian law enforcement. Id.
[4.] Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of
Civilian Control of the U.S. Military, 29 WAKE FOREST L. REV. 341, 342
(1994); see also McGee, supra note 3; Editorial, A Hasty Response to
Terrorism, N.Y. TIMES, June 9, 1995, at A28.
[5.] On April 19, 1995, a fertilizer bomb in a parked truck destroyed
the federal office building in Oklahoma City, Oklahoma. David
Johnston, Terror in Oklahoma City: The Investigation, at Least 31 Are
Dead, Scores Are Missing After Car Bomb Attack in Oklahoma City Wrecks
9-Story Federal Office Building, N.Y. TIMES, Apr. 20, 1995, at A1, B8.
At least 165 people were killed. See Terror in Oklahoma: The Victims;
165 People Who Were Killed in the Oklahoma City Explosion, N.Y. TIMES,
May 7, 1995, at 36 (list of those killed).
[6.] Todd S. Purdum, Terror in Oklahoma: The Overview, Clinton Seeks
More Anti-Terrorism Measures, N.Y. TIMES, Apr. 27, 1995, at A1, A21.
"Weapons of mass destruction . . . are generally considered to be
nuclear or massive chemical or biological weapons." Id. The exception
to the PCA would have been enacted in the Counterterrorism Act of
1995, S. 735, 104th Cong., 1st Sess. § 908 (June 5, 1995) (version 4)
(the House version was H.R. 1710).
The House of Representatives later deleted this provision from their
version of the bill to gain support from conservative Republicans and
salvage the legislation. Terrorism Bill Plan May Break Deadlock, N.Y.
TIMES, Dec. 2, 1995, at 8. An exception for nuclear materials is
already law. See 18 U.S.C. § 831 (1994) (authorizing the Attorney
General to request assistance from the Department of Defense in
enforcing prohibitions against transactions involving nuclear
materials).
[7.] See Border Integrity Act of 1995, H.R. 1224, 104th Cong., 1st
Sess.
[8.] See Otto Kreisher, Alexander's Ideas Hard to Pin Down; Military,
Welfare Experts Call Plans Lousy, Unworkable, SAN DIEGO UNION-TRIB.,
Mar. 1, 1996, at A6, available in 1996 WL 2145186.
[9.] See Department of Defense Authorization Act, 1982, Pub. L. No.
97-86, § 905, 95 Stat. 1099, 1114-16 (1981) (codified as amended at 10
U.S.C. § 371-380 (1994)).
[10.] National Defense Authorization Act for Fiscal Years 1990 and
1991, Pub. L. No. 100-189, § 1202, 103 Stat. 1353, 1563 (1989)
(codified as amended at 10 U.S.C. § 124(a) (1994)). The statute states
as follows:
Lead Agency.--
1. The Department of Defense shall serve as the single lead
agency of the Federal Government for the detection and
monitoring of aerial and maritime transit of illegal drugs
into the United States.
2. The responsibility conferred by paragraph (1) shall be
carried out in support of the counter-drug activities of
Federal, State, local, and foreign law enforcement agencies.
10 U.S.C. § 124(a) (1994); see also McGee, supra note 3, at A1 (since
1989, the military has spent over seven billion dollars on
counter-drug efforts).
[11.] Posse comitatus is defined as follows: "The power or force of
the county. The entire population of a county above the age of
fifteen, which a sheriff may summon to his assistance in certain
cases, as to aid him in keeping the peace, in pursuing and arresting
felons, etc." BLACK'S LAW DICTIONARY 1162 (6th ed. 1990). The
definition is your basic movie western posse. In 1854, the Attorney
General interpreted posse comitatus to include the military. See infra
notes 44-45 and accompanying text.
In Norman England, the posse comitatus also had a military character
and could be called out to defend the kingdom against insurrection and
invasion. Walter E. Lorence, The Constitutionality of the Posse
Comitatus Act, 8 U. KAN. CITY L. REV. 164, 166-67 (1939-40).
[12.] 18 U.S.C. § 1385 (1994). Currently, the fine for individuals is
up to $250,000. See 18 U.S.C. § 3571(b) (1994).
[13.] Posse Comitatus Act: Hearing Before the Subcomm. on Crime of the
Comm. on the Judiciary on H.R. 3519, 97th Cong., 1st Sess. 10-11
(1981) [hereinafter PCA Hearing] (statement of Edward S.G. Dennis,
Jr., Chief, Narcotics and Dangerous Drug Sec., Crim. Div., U.S. Dep't
of Justice).
[14.] See infra Part IV.
[15.] See, e.g., Stephen Labaton, Bill on Terrorism, Once a Certainty,
Derails in House, N.Y. TIMES, Oct. 3, 1995, at A1; The F.B.I.
Overreaches, N.Y. TIMES, May 10, 1995, at A22; see also James Bennett,
Two States, Two Gatherings and a Lot of Anti-Government Sentiment,
N.Y. TIMES, Oct. 3, 1995, at A1.
[16.] See Laird v. Tatum, 408 U.S. 1, 3-8 (1972) (discussing the
Army's domestic surveillance system in the late 1960s). The plaintiffs
sued to stop the Army from compiling files on civilians as part of its
support of federal law enforcement. Id. at 2. The Supreme Court
dismissed the lawsuit for lack of standing. Id. at 12-15; see also
Letter from former Senator Sam J. Ervin, Jr. to Rep. William J.
Hughes, Chairman, Subcomm. on Crime, Comm. on the Judiciary, House of
Representatives (June 2, 1981) [hereinafter Ervin Letter] (Sen. Ervin
chaired the committee that investigated the military's spying on
civilians in 1967 and 1968), in PCA Hearing, supra note 13, at 86.
[17.] Border duty is a direct use of the military to execute civilian
laws. Use of the military for investigative support is on the opposite
end of the spectrum--a passive, indirect execution of civilian laws
with only minor involvement foreseen. Drug interdiction falls between
the two: it is passive, but the involvement is extensive. In 1993, the
Department of Defense had $1.4 billion in its annual budget to finance
drug interdiction. Charles J. Dunlap, Jr., The Last American Warrior:
Non-Traditional Missions and the Decline of the U.S. Armed Forces,
FLETCHER F. WORLD AFF., Winter/Spring 1994, at 65, 69. For a
description of current activities of the military in counter-drug
activities, see McGee, supra note 3.
[18.] See infra note 49-51 and accompanying text.
[19.] See supra note 13 and infra notes 20-43 and accompanying text.
"[M]emories of the arrogance of the British Army" fueled the early
controversy over the military. M.E. Bowman, The Military Role in
Meeting the Threat of Domestic Terrorism, 39 NAVAL L. REV. 209, 211
(1990).
[20.] The Declaration of Independence eloquently expressed this
mistrust:
He has erected a multitude of New Offices, and sent hither swarms
of Officers, to harass our People, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without
the Consent of our Legislature.
He has affected to render the Military independent of and superior
to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign
to our constitution, and unacknowledged by our laws; giving his
Assent to their acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from Punishment for any
Murders which they should commit on the Inhabitants of these
States:
. . . .
He has abdicated Government here, by declaring us out of his
Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and
destroyed the lives of our people.
He is at this time transporting large armies of foreign mercenaries
to compleat the works of death, desolation and tyranny, already
begun with circumstances of Cruelty & perfidy scarcely paralleled
in the most barbarous ages, and totally unworthy the Head of a
civilized nation.
He has constrained our fellow Citizens taken Captive on the high
Seas to bear Arms against their Country, to become the executioners
of their friends and Brethren, or to fall themselves by their
Hands.
THE DECLARATION OF INDEPENDENCE paras. 12-19 (U.S. 1776).
[21.] See PCA Hearing, supra note 13, at 15 (statement of William
Howard Taft IV, Gen. Counsel, U.S. Dep't of Defense); ANDREW J.
GOODPASTER & SAMUEL P. HUNTINGTON, CIVIL-MILITARY RELATIONS 9-11
(1977); cf. Letter from Larry L. Simms, Deputy Asst. Att'y Gen.,
Office of Legal Counsel, U.S. Dep't of Justice, to Rep. L.A. "Skip"
Befalis 4-5 (Aug. 6, 1979) (noting that because "the primary mission
of the Navy is to be the instrument of seapower in the national
defense," it should not become involved in interdiction efforts
despite the lack of a PCA bar to such involvement), reprinted in PCA
Hearing, supra note 13, at 523, 526-27.
[22.] See generally U.S. CONST.; ARTICLES OF CONFEDERATION, 1 Stat. 4
(U.S. 1778) (superseded by U.S. CONST.); THE DECLARATION OF
INDEPENDENCE (U.S. 1776).
[23.] THE DECLARATION OF INDEPENDENCE para. 15 (U.S. 1776).
[24.] Id. para. 13 ("He has kept among us, in times of peace, Standing
Armies without the Consent of our Legislature.").
[25.] Id. para. 14 ("He has affected to render the Military
independent of and superior to the Civil Power.").
[26.] Id. para. 15 ("For quartering large bodies of armed troops among
us: For protecting them, by mock Trial, from Punishment for any
Murders which they sould commit . . . .").
[27.] ARTICLES OF CONFEDERATION arts. 6, §§ 4,5, 1 Stat. 4, 4-5 (U.S.
1778); id. art. 7, 1 Stat. at 5.
[28.] Id. art. 6, §§ 4-5, 1 Stat. at 4-5.
No vessels of war shall be kept up in time of peace by any State,
except such number only, as shall be deemed necessary by the United
States in Congress assembled, for the defence of such State, or its
trade; nor shall any body of forces be kept up by any State, in
time of peace, except such number only, as in the judgment of the
United States, in Congress assembled, shall be deemed requisite to
garrison the forts necessary for the defence of such State; but
every State shall always keep up a well regulated and disciplined
militia, sufficiently armed and accoutered, and shall provide and
constantly have ready for use, in public stores, a due number of
field pieces and tents, and a proper quantity of arms, ammunition
and camp equipage.
No State shall engage in any war without the consent of the United
States in Congress assembled, unless such State be actually invaded
by enemies . . . : nor shall any State grant commissions to any
ships or vessels of war, nor letters of marque or reprisal, . . .
unless such State be infested by pirates, in which case vessels of
war may be fitted out for that occasion, and kept so long as the
danger shall continue, or until the United States in Congress
assembled shall determine otherwise.
Id.
[29.] Id. art. 7, 1 Stat. at 5.
When land-forces are raised by any State for the common defence,
all officers of or under the rank of colonel, shall be appointed by
the Legislature of each State respectively by whom such forces
shall be raised, or in such manner as such State shall direct, and
all vacancies shall be filled up by the State which first made the
appointment.
Id.
[30.] John A. Hardaway, Colonial and Revolutionary War Origins of
American Military Policy, MIL. REV., Mar. 1976, at 77, 81.
[31.] J. Bryan Echols, Open Houses Revisited: An Alternative Approach,
129 MIL. L. REV. 185, 200 (1990).
[32.] U.S. CONST. art. 1, § 8, cls. 12-13.
[33.] Id. art. 1, § 8, cl. 12 ("The Congress shall have Power . . . To
raise and support Armies, but no Appropriation of Money to that Use
shall be for a longer Term than two Years . . . ."). However,
appropriations for the Navy are not similarly limited. See id. cl. 13
("To provide and maintain a Navy . . . ."). The failure to limit navy
appropriations follows from the failure to mention the navy as an evil
in the Declaration of Independence. See supra note 20. Indeed, navies
were seen as instruments of the great powers and were not thought to
be a threat to civil supremacy.
[34.] U.S. CONST. art. 2, § 2 ("The President shall be Commander in
Chief of the Army and Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United
States . . . .").
[35.] Id. art. 1, § 8, cl. 14 ("To make Rules for the Government and
Regulation of the land and naval forces."). The Constitution preserves
the right of states to appoint officers for their militias, but limits
the states' authority by requiring militia training to conform with
Congress's requirements. Id. cl. 16; cf. THE ARTICLES OF CONFEDERATION
art. 7 (U.S. 1778) (as discussed supra notes 27-30 and accompanying
text).
[36.] U.S. CONST. amend. III ("No Soldier shall, in time of peace be
quartered in any house, without the consent of the Owner, nor in time
of war, but in a manner to be prescribed by law."). For a discussion
of the history and purpose of the Third Amendment, see William Sutton
Fields, The Third Amendment: Constitutional Protection from the
Involuntary Quartering of Soldiers, 124 MIL. L. REV. 195 (1989).
[37.] U.S. CONST. amend. II ("A well regulated Militia, being
necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.").
[38.] See Peter M. Sanchez, The "Drug War": The U.S. Military and
National Security, 34 A.F. L. REV. 109, 117 (1991) ("Despite
[Alexander] Hamilton's assurances [in response to public fears
regarding a national army], the Constitution was only ratified after
Federalists agreed to incorporate the Bill of Rights." (quoting W.
PETERS, A MORE PERFECT UNION 231-37 (1987))).
[39.] U.S. CONST. amend. I.
[40.] Id. amend. IV.
[41.] See Sanchez, supra note 38, at 118 (mentioning the belief that
the Bill of Rights "would effectively preclude the new government from
usurping the rights of citizens, whether by military or other means").
[42.] See THE FEDERALIST NO. 41, at 258-60 (James Madison) (Clinton
Rossiter ed., 1961); see also Dunlap, supra note 4, at 388 ("[T]he
military is the antithesis of democracy." (footnote omitted));
Hardaway, supra note 30, at 80 (Colonial feeling was that a standing
army "was simply incompatible with a democratic system of
government."). "The ideals of liberty, democracy, equality, and peace
have contrasted with the military's concern with authority, hierarchy,
obedience, force, and war." GOODPASTER & HUNTINGTON, supra note 21, at
7. "It ill behooves a democracy to become over-fond of its soldiery,"
said one Founding Father. DeWitt C. Smith, Jr., From Yesterday's Fears
to Today's Realities, PARAMETERS, Fall 1977, at 90, 90.
The Founding Fathers' fear of a standing army is also evident in the
constitutions of the thirteen original states, which note that
standing armies are "dangerous." See, e.g., N.H. CONST. pt. 1, art. 25
("Standing armies are dangerous to liberty, and ought not to be
raised, or kept up, without consent of the legislature."); VA. CONST.
art. 1, § 13 ("[S]tanding armies, in time of peace, should be avoided
as dangerous to liberty; and . . . in all cases the military should be
under strict subordination to, and governed by, the civil power.");
see also H.W.C. Furman, Restrictions upon Use of the Army Imposed by
the Posse Comitatus Act, 27 MIL. L. REV. 85, 92 n.41 (1960).
[43.] See Smith, supra note 42, at 90.
[44.] See Act of Sept. 18, 1850, ch. 60, 9 Stat. 462, 462-63. See
supra note for the definition of posse comitatus.
[45.] Extradition of Fugitives from Service, 6 Op. Att'y Gen. 466, 473
(1854).
[46.] Furman, supra note 42, at 93.
[47.] See Lorence, supra note 11, at 169.
[48.] See id. The military support of these governments was described
as a "rotten-borough or carpet-bag system." G. NORMAN LIEBER, U.S. WAR
DEP'T, OFFICE OF THE JUDGE ADVOCATE GEN., DOC. NO. 64, THE USE OF THE
ARMY IN AID OF THE CIVIL POWER 10 (1898) (quoting Rep. J.D.C. Atkins).
In the Reconstruction South a monumental task faced the military:
Unplanned and aimed not at eradicating states but at hurrying their
return to the Union . . . , [the Military Reconstruction Laws] one
way or another imposed on the Army the duties of initiating and
implementing state-making on the basis of biracial citizen
participation. Protecting the personnel of the federal courts and
Freedman's Bureau, shielding blacks and whites who collaborated in
the new order of equality under state law from retaliations by
indignant vigilante neighbors, and monitoring the quality of daily
marketplace justice in ten thousand villages--these were tasks that
West Point had not prepared Army officers to perform.
Harold M. Hyman, Ulysses Grant I, Emperor of America?: Some
Civil-Military Continuities and Strains of the Civil War and
Reconstruction, in THE UNITED STATES MILITARY UNDER THE CONSTITUTION
OF THE UNITED STATES, 1789-1989, at 175, 186 (Richard H. Kohn ed.,
1991) [hereinafter U.S. MILITARY UNDER THE CONSTITUTION].
The size of the standing army increased in post Civil War America.
Emory Upton, The Military Policy of the United States (1881)
(unpublished manuscript) (see tables and charts), reprinted in S. DOC.
NO. 379, 1st Sess. (1916). With its increased size and permanence, the
army began transforming itself into a professional army. See id. With
a standing army of significant size, the PCA became even more
important as a limit on the role of the military in society and as a
shield from improper requests by civilian authorities. See PCA
Hearing, supra note , at 38-39 (statement of Christopher H. Pyle,
Professor, Mount Holyoke College).
[49.] Furman, supra note 42, at 94; Lorence, supra note 11, at 173-74.
[50.] See Lorence, supra note 11, at 172-74.
[51.] Furman, supra note 42, at 94-95, 94 & nn.56-57; Lorence, supra
note 11, at 172.
[52.] Furman, supra note 42, at 94-96; see also LIEBER, supra note 48,
at 10-12; Lorence, supra note 11, at 174-79; cf. Federal Document
Clearing House, Buyer Offers Amendment to Anti-terrorism Legislation;
Limits and Clarifies Role of Military, Gov't Press Release, June 14,
1995, available in 1995 WL 14249788 (suggesting that the PCA was also
passed to prevent the use of troops to quell labor disputes).
Grant's improper actions finally pushed the PCA through after
several prior defeats. The original text of the PCA read as
follows:
From and after the passage of this act it shall not be lawful to
employ any part of the Army of the United States, as a posse
comitatus, or otherwise, for the purpose of executing the laws,
except in such cases and under such circumstances as such
employment of said force may be expressly authorized by the
Constitution or by act of Congress; and no money appropriated by
this act shall be used to pay any of the expenses incurred in the
employment of any troops in violation of this section and any
person wilfully violating the provisions of this section shall be
deemed guilty of a misdemeanor and on conviction thereof shall be
punished by fine not exceeding ten thousand dollars or imprisonment
not exceeding two years or by both such fine and imprisonment.
Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878).
Congress adopted the modern text of the PCA, see supra note 12, in
1956. See An Act to Codify Title 10 and Title 32, ch. 1041, § 18(a),
70A Stat. 1, 626 (1956) (codified as amended at 18 U.S.C. § 1385
(1994)). The modern text was meant "to restate, without substantive
change, the law replaced." Id. § 49(a), 70A Stat. at 640.
In 1866, prior to the passage of the PCA, the Supreme Court cast doubt
on the use of the military to enforce the laws in place of civilian
authorities, even in a time of stress. See Ex parte Milligan, 71 U.S.
(4 Wall.) 2 (1866).
[53.] CHARLES DOYLE, CONG. RES. SERV., NO. 88-583A, USE OF THE
MILITARY TO ENFORCE CIVILIAN LAW: POSSE COMITATUS ACT AND OTHER
CONSIDERATIONS 2 (1988); Furman, supra note 42, at 86; Interview with
Brig. Gen. Walter B. Huffman, Asst. Judge Advocate Gen. for Military
Law and Operations, U.S. Army, in Burke, Va. (Dec. 31, 1995)
[hereinafter Huffman Interview]. In 1879, two Army officers were
indicted in Texas for violating the PCA after providing a U.S.
marshall with troops to enforce the revenue laws. LIEBER, supra note
48, at 28 n.1. Other than this one mention, there is no record that
the officers were ever prosecuted.
[54.] See PCA Hearing, supra note, at 10 (statement of Edward S.G.
Dennis, Jr., Chief, Narcotics and Dangerous Drug Sec., Crim. Div.,
U.S. Dep't of Justice); Sanchez, ]
supra note 38, at 120. The lack of opportunity for judicial
interpretation will continue because military enforcement of the PCA
is seldom challenged in the courts. Id.
[55.] See infra Part III.B.
[56.] See, e.g., Chandler v. United States, 171 F.2d 921, 935-36 (1st
Cir. 1948), cert. denied, 336 U.S. 918 (1949) (finding jurisdiction
where the Army arrested the defendant in Germany and returned him to
the United States); Ex parte Mason, 256 F. 384, 385-87 (C.C.S.D.N.Y.
1882) (finding jurisdiction for military court in a court martial
proceeding against a soldier for an attempted murder while on guard
duty at a civilian jail despite finding a PCA violation).
[57.] See United States v. McArthur, 419 F. Supp. 186 (D.N.D. 1975),
aff'd sub. nom., United States v. Red Feather, 541 F.2d 1275 (8th Cir.
1976), cert. denied sub nom., Casper v. United States, 430 U.S. 970
(1977); United States v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975),
aff'd, 541 F.2d 1275 (8th Cir. 1976); United States v. Jaramillo, 380
F. Supp. 1375 (D. Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir.
1975). But see People v. Burden, 288 N.W.2d 392 (Mich. Ct. App. 1979)
(applying exclusionary rule to drug investigation in which a member of
the U.S. Air Force participated with the approval of his commander),
rev'd, 303 N.W.2d 444 (Mich. 1981); Taylor v. State, 645 P.2d 522
(Okla. Crim. App. 1982) (applying the exclusionary rule for a PCA
violation as a result of a military police officer's active
participation in a search and arrest).
[58.] See Jaramillo, 380 F. Supp. 1375 (D. Neb. 1974) (directed
verdict on charge of obstruction of law enforcement officers for
defendants because the military's involvement in response to civil
disorder raised reasonable doubt whether the officers were in lawful
performance of their duty), appeal dismissed, 510 F.2d 808 (8th Cir.
1975).
[59.] Ch. 646, 62 Stat. 983 (1948) (codified as amended at 28 U.S.C. §
2674 (1994)).
[60.] Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961)
(finding a PCA violation where Air Force helicopter and pilots were
used to search for civilian prison escapees and plaintiff was injured
when the helicopter landed).
[61.] PCA Hearing, supra note 13, at 10 (statement of Edward S.G.
Dennis, Jr., Chief, Narcotics and Dangerous Drug Sec., Crim. Div.,
U.S. Dep't of Justice) (citing REPORT OF THE TASK FORCE ON EVALUATION
OF AUDIT, INSPECTION AND INVESTIGATIVE COMPONENTS OF THE DEP'T OF
DEFENSE 197 (1980)).
[62.] See infra notes 117-20 and accompanying text.
[63.] See PCA Hearing, supra note 13, at 12; H. REP. NO. 97-71, pt. 2,
at 3 (1981); see also INTERNATIONAL & OPERATIONAL LAW DEP'T, THE JUDGE
ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, DOC. NO. JA422, OPERATIONAL LAW
HANDBOOK 22-2 (1995) [hereinafter ARMY LAW HANDBOOK].
[64.] 18 U.S.C. § 1385 (1994).
[65.] Id.; see DOYLE, supra note 53, at 12 (stating that "case law
does not definitively answer the question of what constitutes use to
`execute the laws'").
[66.] 18 U.S.C. § 1385. The Air Force was expressly included under the
PCA when Congress codified Title 10 of the U.S. Code in 1956. United
States v. Walden, 490 F.2d 372, 375 n.5 (4th Cir. 1974); see also
supra note 52. The inclusion was natural because the Air Force was
originally part of the Army as the Army Air Corps. Walden, 490 F.2d at
374-75, 375 n.5. Even prior to 1956, Congress included the Air Force
under the PCA. See National Security Act of 1947, ch. 343, §§ 207(a),
208(a), 305(a), 61 Stat. 495, 502-04, 508.
[67.] See United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991)
(failing to extend PCA prohibitions to the Navy where defendant was
transported to the U.S. on a Navy vessel); Schowengerdt v. General
Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987) (same), cert. denied,
503 U.S. 951 (1992). But see Walden, 490 F.2d at 375 (noting that
failure to include the Navy in the text of the PCA does not evince
congressional approval of the Navy's use to enforce civilian laws),
cert. denied, 416 U.S. 983 (1979); People v. Caviano, 560 N.Y.S.2d
932, 936 & n.1 (N.Y. Sup. Ct. 1990) (finding the PCA applicable to the
Navy); People v. Blend, 175 Cal. Rptr. 263, 267 (Cal. Ct. App. 1981)
(stating that the PCA "applies to all branches of the federal
military"). The first version of the Act would have included "any part
of the land or naval forces." 7 CONG. REC. 3586 (1878). The Navy was
possibly dropped to avoid a challenge under House rules for
germaneness because the law was in an army appropriations bill.
Walden, 490 F.2d at 374; DOYLE, supra note 53, at 15; see 7 CONG. REC.
3845 (1878) (chronicling a the debate under the House rule for
germaneness). Although it is unlikely, another suggestion is that the
failure to include the Navy was a drafting error. PCA Hearing, supra
note 13, at 22 (comments of Rep. William J. Hughes).
[68.] U.S. DEP'T OF DEFENSE, DIRECTIVE NO. 5525.5, DOD COOPERATION
WITH CIVILIAN LAW ENFORCEMENT OFFICIALS encl. 4, at 4-6 (Jan. 15,
1986) (extending the PCA's application to the Navy and Marine Corps
"as a matter of DoD policy") [hereinafter DOD DIR. 5525.5], available
at <http://www.dtic.mil/adm/> (visited Jan. 1, 1996); SECRETARY OF THE
NAVY, DEP'T OF THE NAVY, INSTRUCTION NO. 5820.7B, COOPERATION WITH
CIVILIAN LAW ENFORCEMENT OFFICIALS, OFFICE OF THE SECRETARY 4 (Mar.
28, 1988) (same) [hereinafter SECNAVINST 5820.7B]. Interestingly, the
Code of Federal Regulations included a section applying the PCA to the
Navy and Marines which substantially followed the DoD Directive,
compare DoD Cooperation with Civilian Law Enforcement Officials, 32
C.F.R. pt. 213 (1992) with DOD DIR. 5525.5, supra, but the Defense
Department repealed the section in 1993 because it had "served the
purpose for which [it was] intended and [is] no longer valid." 58 Fed.
Reg. 25,776 (Apr. 28, 1993) (repealing 32 C.F.R. pt. 213).
[69.] 14 U.S.C. § 1 (1994); DOYLE, supra note 53, at 16.
[70.] 14 U.S.C. § 2 (1994). As part of the drug interdiction effort,
Coast Guard personnel are detailed to Navy ships to perform their law
enforcement function because the Navy cannot exercise the powers of
arrest or search and seizure. See 10 U.S.C. § 379 (1994). The
Department of Justice has taken the position that members from the
other military branches are also not limited by the PCA when detailed
to the Department of Transportation, because they are not subject to
military command or charged to the military force structure. See
Memorandum from William H. Rehnquist, Asst. Att'y Gen., Office of
Legal Counsel, U.S. Dep't of Justice, to Benjamin Forman, Asst. Gen.
Counsel (Int'l Affairs), U.S. Dep't of Defense 3 (Sept. 30, 1970)
(Legality of Deputizing Military Personnel Assigned to the Department
of Transportation), in PCA Hearing, supra note 13, at 562, 564.
[71.] Furman, supra note 42, at 101; Sanchez, supra note 38, at 119.
However, the National Guard is still limited by applicable state law
when in state service. Id.
[72.] DOYLE, supra note 53, at 17.
[73.] United States v. Jaramillo, 380 F. Supp. 1375, 1382 (1974)
(excluding the Special Operations Group of the United States Marshall
Service from the definition of army under the PCA), appeal dismissed
510 F.2d 808 (8th Cir. 1975). For a full discussion of the PCA and its
application to all the different elements of the military, see Furman,
supra note 42, at 98-103 & 99 fig.
[74.] See, e.g., cases cited supra note 67. The "any part" language
applies the PCA to any unit of troops, regardless of "its size or
designation." Jaramillo, 380 F. Supp. at 1379.
[75.] Congress acknowledged this fact during the debates regarding the
enactment of the PCA, admitting that the Act was not meant to limit a
soldier as a citizen. See 7 CONG. REC. 4245 (1878) (comments of Sen.
Merrimon in response to a question of whether a soldier could come to
the defense of a fellow citizen being assaulted). Senator Merrimon
stated in Congress:
If a soldier sees a man assaulting me with a view to take my life,
he is not going to stand by and see him to do it; he comes to my
relief not as a soldier, but as a human being, a man with a soul in
his body, and as a citizen.
Id.
[76.] See DOD DIR. 5525.5, supra note 68, encl. 4, at 4-6; SECNAVINST
5820.7B, supra note 68, §9.b(4), at 7. The test has also been
described as based upon the service member's conduct and upon whether
civilians were subjected to military power. See DOYLE, supra note 53,
at 19.
[77.] See Clarence I. Meeks III, Illegal Law Enforcement: Aiding Civil
Authorities in Violation of the Posse Comitatus Act, 70 MIL. L. REV.
83, 100 (1975). It would not suffice to allow the principal to achieve
a goal through an agent that the principal is proscribed from
achieving herself. See id.
[78.] DOD DIR. 5525.5, supra note 68, encl. 4, at 406; SECNAVINST
5820.7B, supra note 68, § 9.b(3), at 7.
[79.] Furman, supra note 42, at 102-03 & n.109 (citing a 1956 opinion
of the Judge Advocate General of the U.S. Army). But see SECNAVINST
5820.78, supra note 68, at § 9.c(2) (extending the PCA prohibitions to
the Navy's civilian employees).
[80.] Because the PCA has been extended to the Navy and Marine Corps
by regulation, see supra note 68 and accompanying text, the term
"military" is used in this Note to refer to the Army, Navy, Air Force,
and Marines Corps.
[81.] 18 U.S.C. § 1385 (1994); supra note 12 (text of the Act). The
PCA also is limited to "willful" use, see text accompanying supra note
12, but courts have not used the term to limit the PCA's scope. DOYLE,
supra note 53, at 11 n.18.
[82.] See infra notes 84-103 and accompanying text.
[83.] See DOYLE, supra 53, at 11-13. Courts and commentators have read
the legislative history of the PCA to allow "incidental" benefits to
civilian law enforcement. Id. at 13.
[84.] 392 F. Supp. 916 (D.S.D. 1975) (granting a motion in limine to
exclude evidence of activities of military personnel in a criminal
prosecution for interfering with law enforcement officers at Wounded
Knee).
[85.] Id. at 921-23.
[86.] Id. at 923. The defendant was charged with interfering with law
enforcement officers in lawful execution of their duties. Id. at
918-19. The government filed a motion in limine to bar evidence of the
loan of military equipment, of the military's presence, and of any
other military involvement at Wounded Knee. Id. at 918. The judge
found that evidence of a PCA violation would be admissible because it
would relate to whether the federal officers acted in lawful execution
of their duties, but granted the motion to bar evidence of passive
involvement. Id. at 925.
[87.] Ch. 314, § 601, 47 Stat. 382, 417-18 (1932) (codified as amended
at 31 U.S.C. § 1535 (1994)).
[88.] Red Feather, 392 F. Supp. at 923.
[89.] 380 F. Supp. 1375, 1381 (D. Neb. 1974) (directing verdict for
defendant charged with obstructing law enforcement officers at Wounded
Knee because a possible violation of the PCA raised a reasonable doubt
as to whether the officers acted in lawful performance of their duty),
appeal dismissed, 510 F.2d 808 (8th Cir. 1975).
[90.] Id. at 1379.
[91.] Id. The list of material provided by the military included star
parachute flares, M-16 ammunition, protective vests, sniper rifles,
and unarmed armored personnel carriers. Id.
[92.] See id. at 1380-81. Military observers counseled the federal
authorities to substitute a shoot-to-wound policy for their
shoot-to-kill policy, encouraged negotiations, and approved the
request for armored personnel carriers with strict conditions on their
use. Id. at 1379-80.
[93.] Id. at 1381.
[94.] Id.
[ ]95. 419 F. Supp. 186 (D.N.D. 1975) (finding that the approach of
the court in Jaramillo, see supra notes 89-94 and accompanying text,
would not establish a PCA violation on the part of federal
authorities), aff'd sub nom., United States v. Red Feather, 541 F.2d
1275 (8th Cir. 1976), cert. denied sub nom., Casper v. United States,
430 U.S. 970 (1977).
[96.] 541 F.2d 1275, 1278 (8th Cir. 1976) (referring with approval to
the McArthur test formulated in the district court), cert. denied sub
nom., Casper v. United States, 430 U.S. 970 (1977).
[97.] See McArthur, 419 F. Supp. at 194.
[98.] Id.
[99.] See id. at 194-95.
[100.] 681 F. Supp. 891 (D.D.C. 1988) (denying motion to dismiss
indictment of airplane hijacker who was transported to the United
States on Naval vessels).
[101.] Id. at 895. A prisoner under the exclusive control and
authority of civilian law enforcement while being transported by the
military is not subjected to military regulatory power. See id.
[102.] Id. at 896. A prisoner aboard a military vessel and confined by
military personnel, but in the custody of civilian law enforcement at
all times, is not subjected to military proscriptive power. See id.
[103.] Id. Involvement of the military which is "indifferent, passive,
and subservient" to civilian law enforcement is not a PCA violation.
See id.
[104.] 171 F.2d 921 (1st Cir. 1948).
[105.] Id. at 936. The Army arrested the defendant in Germany after
World War II and then transported him to the United States to face
charges of treason. Id. at 927. The defendant, a U.S. citizen, was
convicted of treason for his propaganda radio broadcasts on behalf of
the German government during World War II. Id. at 928-29. The Ninth
Circuit followed Chandler in dealing with the arrest of Tokyo Rose and
her return to the United States by military authorities. See Iva Ikuko
Toguri D'Aquino v. United States, 192 F.2d 338, 351 (9th Cir. 1951),
cert. denied, 343 U.S. 935 (1952). The Yunis court could have also
found no PCA violation by following Chandler and D'Aquino. See Yunis,
681 F. Supp. 891 (D.D.C. 1988) (finding no violation of the PCA under
the McArthur test, see supra notes 95-98 and accompanying text, where
the allegedly unlawful military involvement occurred outside the
United States).
[106.] Huffman Interview, supra note 53.
[107.] See Foreign Assistance Act of 1974, Pub. L. No. 93-559,
§ 30(a), 88 Stat. 1795, 1803 (codified as amended at 22 U.S.C. §
2420(a) (1994)). Under the Foreign Assistance Act, Congress prohibited
military foreign assistance monies from being spent to "provide
training or advice . . . for police, prisons, or other law enforcement
forces for any foreign government or any program of internal
intelligence or surveillance on behalf of any foreign government
within the United States or abroad." Id.; see also International
Security Assistance Act of 1978, Pub. L. No. 95-384, § 3, 92 Stat.
730, 730 (codified as amended at 22 U.S.C. § 2291(c) (1994)) (barring
officers and employees of the United States from making arrests in
foreign countries as part of drug control efforts); DOYLE, supra note
53, at 25.
[108.] 18 U.S.C. § 1385 (1994) ("except in cases and under
circumstances expressly authorized by the Constitution or Act of
Congress").
[109.] The statutory language recognizing constitutional exceptions in
the PCA was a compromise.
[110.] 7 Cong. Rec. 4686 (1878); see U.S. CONST. art. 2, §§ 2, 3.
[111.] Furman, supra note 42, at 91-92; Lorence, supra note 11, at
185-91.
[112.] DOYLE, supra note 53, at 20.
[113.] See 343 U.S. 579, 644-45 (1952) (Jackson, J., concurring); PCA
Hearing, supra note 13, at 41 n.39 (statement of Christopher H. Pyle,
Professor, Mount Holyoke College).
[114.] DOD DIR. 5525.5, supra note 68, encl. 4, § A(2)(c), at 4-2. The
exception permits military action to protect federal property and
functions, to prevent loss of life, and to restore public order when
local authorities cannot control a situation. Id. These exceptions
have yet to be tested. DOYLE, supra note 53, at 21 n.29. The Office of
Legal Counsel at the Department of Justice bases the exception
explicitly on the President's duty to faithfully execute the laws.
Memorandum from William H. Rehnquist, Asst. Att'y Gen., Office of
Legal Counsel, U.S. Dep't of Justice, to Robert E. Jordan III, Gen.
Counsel, U.S. Dep't of the Army 1-2 (May 11, 1970) (Authority to Use
Troops to Protect Federal Functions, Including the Safeguarding of
Foreign Embassies in the United States) [hereinafter Federal Functions
Memorandum], in PCA Hearing, supra note 13, at 558, 559.
[115.] Federal Functions Memorandum, supra note 114, at 1-2.
[116.] Id.
[117.] See ARMY LAW HANDBOOK, supra note 63, at 22-2.
[118.] Others have implicitly recognized this distinction. See PCA
Hearing, supra note , at 35-37 (comments by Christopher H. Pyle,
Professor, Mount Holyoke College); Paul Jackson Rice, New Laws and
Insights Encircle the Posse Comitatus Act, 104 MIL. L. REV. 109
(1984). This Note makes the distinction explicit here to illustrate
that both types of exceptions have deleterious effects and should be
avoided.
[119.] See PCA Hearing, supra note , at 35-37 (comments of Christopher
H. Pyle, Professor, Mount Holyoke College).
[120.] See, e.g., PCA Hearing, supra note, at 11 (statement of Edward
S.G. Dennis, Chief, Narcotics and Dangerous Drug Sec., Crim. Div.,
U.S. Dep't of Justice). Congress intended to clarify the boundaries of
the PCA. ARMY LAW HANDBOOK, supra note 63, at 22-2.
[121.] 10 U.S.C. §§ 372, 381 (1994).
[122.] Id. § 373(2).
[123.] Id. § 371.
[124.] Id. § 373(1).
[125.] See supra notes 95-103 and accompanying text.
[126.] See 48 U.S.C. § 1418 (1994). This exception existed before the
passage of the PCA. Act of Aug. 18, 1856, ch. 164, § 5 11 Stat. 119,
120. Guano islands are islands rich in guano deposits. See 48 U.S.C.
§ 1411 (1994). Guano is "a substance that is found on some coasts or
islands frequented by sea fowl, is composed chiefly of their partially
decomposed excrement, is rich in phosphates, nitrogenous matter, and
other material for plant growth, and has been used extensively as a
fertilizer." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1007 (1986).
A great rush of claims made on guano islands occurred from 1856 to
1903: 94 claims were made during that period, and 66 islands were
recognized by the State Department. JIMMY M. SKAGGS, THE GREAT GUANO
RUSH: ENTREPRENEURS AND AMERICAN OVERSEAS EXPANSION 200 (1994). The
law continues to have relevance because the United States still
maintains possession of nine of the recognized islands. Id. For an
in-depth discussion of the rush to claim guano-rich islands, see
generally SKAGGS, supra.
[127.] See 25 U.S.C. § 180 (1994). This exception may have also
provided authority for the military presence at Wounded Knee.
[128.] See 16 U.S.C. §§ 23 (detail of troops for protection of park),
78 (detail of troops to Sequoia and Yosemite Parks), 593 (protection
of timber in Florida) (1994).
[129.] See 18 U.S.C. § 1751(i) (1994).
[130.] See 10 U.S.C. §§ 331-333 (1994).
Other exceptions to the PCA, as listed in DOD DIR. 5525.5, supra note
68, encl. 4, § A.2(e), at 4-2 to 4-3, include:
(i) 16 U.S.C. § 1861(a) (1994) (enforcement of the Fishery
Conservation and Management Act of 1976);
(ii) 18 U.S.C. §§ 112, 1116 (1994) (assistance to law enforcement
officers in crimes against foreign officials, official guests of
the United States, and other internationally protected persons);
(iii) 18 U.S.C. § 351 (1994) (assistance to law enforcement
officers in crimes against members of Congress);
(iv) 22 U.S.C. §§ 408, 461-462 (1994) (actions in support of the
neutrality laws);
(v) 18 U.S.C. § 831 (1994) (assistance to law enforcement officers
in crimes involving nuclear materials);
(vi) 42 U.S.C. § 97 (1994) (execution of quarantine and certain
health laws);
(vii) 43 U.S.C. § 1065 (1994) (removal of unlawful inclosures from
public lands);
(viii) 48 U.S.C. §§ 1422, 1591 (1994) (support for territorial
governors if civil disorder occurs);
(ix) 50 U.S.C. § 220 (1994) (actions in support of certain customs
laws); and
(x) 42 U.S.C. § 1989 (1994) (execution of certain warrants
relating to enforcement of specified civil rights laws).
[131.] Sanchez, supra note 38, 120 & n.13.
[132.] See Jerry M. Cooper, Federal Military Intervention in Domestic
Disorders, in U.S. MILITARY UNDER THE CONSTITUTION, supra note 48, at
120.
[133.] See generally Kurt Andrew Schlichter, Comment, Locked and
Loaded: Taking Aim at the Growing Use of the American Military in
Civilian Law Enforcement Operations, 26 LOY. L.A. L. REV. 1291 (1993)
(the author served as an Army National Guardsman deployed to Los
Angeles during the riots); Eric Schmitt, Elite U.S. Forces Sent in to
Perform a Rare Role, N.Y. TIMES, May 2, 1992, § 1, at 8. For a
discussion of the military's use in relation to civil disorder, see
Cooper, supra note 132.
[134.] See DOYLE, supra note 53, at 13-14.
[135.] Id.
[136.] See supra notes 95-103 and accompanying text.
[137.] DOYLE, supra note 53, at 14.
[138.] JAMES B. JACOBS, SOCIO-LEGAL FOUNDATIONS OF CIVIL-MILITARY
RELATIONS 54 (1986).
[139.] Id. at 55.
[140.] For a thorough discussion of the use of the military in labor
disputes, see JOAN M. JENSEN, ARMY SURVEILLANCE IN AMERICA, 1775-1980,
at 44-45, 139-40 (1991) and Jacobs, supra note 138, at 51-76.
[141.] See, e.g., Edmund L. Andrews, Army Has Trouble Building
Beachhead in Disaster Zone, N.Y. TIMES, Aug. 31, 1992, at A10; Edmund
L. Andrews, Urgency Is Growing: 4 Days After Hurricane, Thousands
Still Need Food and Shelter, N.Y. TIMES, Aug. 28, 1992, at A1; see
also Stephanie Nano, Flood Area Hails Tardy Old Friend: The Sun, S.F.
EXAMINER, July 19, 1993, at A1 (mentioning President Clinton's offer
of federal troops to help with cleanup after floods in the Midwest);
Jeffrey Schmalz, Troops Find Looting and Devastation on St. Croix,
N.Y. TIMES, Sept. 22, 1989, at A22 (reporting the use of federal
troops on St. Croix after Hurricane Hugo).
[142.] Huffman Interview, supra note 53.
[143.] This Note does not project immediate doom nor suggest that the
armed forces or its members would consider a military coup or
improperly influence the civilian government. Indeed, within the U.S.
Army officer corps there exists "an implicit--one could almost say
instinctive--acceptance of the civil power's superiority to the
military in government." Edward M. Coffman, The Army Officer and the
Constitution, PARAMETERS, Sept. 1987, at 2, 2. This Note argues that
there are good reasons for the policies behind the PCA, policies that
should not be discarded by the exigencies of the moment. Id.
[144.] See supra notes 5-7 and accompanying text.
[145.] H.R. 1224, 104th Cong., 1st Sess. (1995).
[146.] See supra note 7 and accompanying text.
[147.] S. 735, 104th Cong., 1st Sess. (1995).
[148.] See supra note 6 and accompanying text.
[149.] See supra notes 117-20, 126-33 and accompanying text.
[150.] See supra notes 117-25 and accompanying text.
[151.] See PCA Hearing, supra note , at 29-30 (comments by Rep.
William J. Hughes).
[152.] Soldiers do receive training in intermediate levels of force
for peacekeeping missions, but the main focus is on how and when to
use deadly force as part of the wartime rules of engagement. Huffman
Interview, supra note 513(LANE Training provides soldiers with
examples of hostile acts which can be responded to without waiting to
be fired upon which consist of simulation exercises in a field
setting); see also Anthony DePalma, Canada Assesses Army: Warriors or
Watchdogs?, N.Y. TIMES, Apr. 13, 1997, § 1, at 4 (noting increase of
U.S. training for peacekeeping); Mark S. Martins, Rules of Engagement
for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV.
3, 27 (1994). This focus flows directly from the military's
responsibility "to fight or be ready to fight wars should the occasion
arise." Toth v. Quarles, 350 U.S. 11, 17 (1955), cited in Dunlap,
supra note 4, at 357 n.119. To fulfill that responsibility, the Army
has challenged itself to "[i]mprove[] lethality and readiness" in the
21st century. Dennis J. Reimer, Soldiers Are Our Credentials, MIL.
REV., Sept.-Oct. 1995, at 4, 13 fig.5 (at the time of this writing the
author was U.S. Army Chief of Staff).
[153.] See generally Martins, supra note 152. It is interesting that
we want the military to take on some police functions, yet we will not
let that same military train foreign police or even give them advice.
See Foreign Assistance Act of 1974, Pub. L. No. 93-559, § 30(a), 88
Stat. 1795, 1803 (codified as amended at 22 U.S.C. § 2420(a) (1994));
see also supra note 107 and accompanying text.
[154.] Jesse Katz, A Good Shepherd's Death, L.A. TIMES, June 21, 1997,
at A1 (chronicling the debate about troops use near the border as the
danger is illustrated by this killing); Border Killing Brings
Criticism of Military Role, CHICAGO TRIB., May 23, 1997, at 15.
[155.] See supra notes 22-43 and accompanying text.
[156.] See Laird v. Tatum, 408 U.S. 1 (1972).
[157.] Dunlap, supra note 4, at 344 (emphasis removed).
[158.] Id. at 343 (emphasis removed) (paraphrasing President
Eisenhower's Farewell Address).
[159.] Id. at 344 (quoting ALLAN R. MILLET, THE AMERICAN POLITICAL
SYSTEM AND CIVILIAN CONTROL OF THE MILITARY 2 (1979)).
[160.] Id. at 344 n.13 (quoting MILLET, supra note 159, at 2).
[161.] GOODPASTER & HUNTINGTON, supra note 21, at 22 (citing David R.
Segal et al., Convergence, Isomorphism, and Interdependence at the
Civil-Military Interface, J. POL. & MIL. SOC., Fall 1974, at 157ff).
A military establishment . . . that encompasses many nonmilitary
functions and that operates in a civilianized manner is likely to be
more autonomous--freer from civilian contacts and, potentially,
civilian control--than a military establishment that is purely
military and that, precisely because of its specialization, is
dependent upon civilian society for support.
Id. (quoting Segal, supra) (footnote omitted).
[162.] See McGee, supra note 3, at A30. "[The military's involvement]
should [have been] a temporary stopgap, but it's been
institutionalized." Id. (quoting Lawrence J. Korb, Asst. Sec'y of
Defense under President Reagan) (second set of brackets in original).
[163.] See 134 CONG. REC. 11,643, at 11,644 (1988) (comments of Sen.
Daniel P. Moynihan) (stating that "100 of the [illegal aliens crossing
the Mexican border into the U.S.] could bring across a year's supply
and more of Mexican heroin for the American market"); see also PETER
REUTER ET AL., RAND CORP., SEALING THE BORDERS: THE EFFECTS OF
INCREASED MILITARY PARTICIPATION IN DRUG INTERDICTION 123 (1988)
(stating that "a single cargo plane, fully loaded, could supply the
nation's current demand [for cocaine] for a year"); Michael H. Abbott,
The Army and the Drug War: Politics or National Security?, PARAMETERS,
Dec. 1986, at 95, 96 (noting that drugs are second to petroleum, in
monetary value, as the largest U.S. import); Christopher S. Wren, Why
Seizing Drugs Barely Dents Supply, N.Y. TIMES, Dec. 15, 1996, § 4, at
4 (reporting that increased seizures of illegal drugs do not increase
costs to the drug user).
[164.] Cf. Thomas E. Ricks, The Military: The Great Society in
Camouflage, ATLANTIC MONTHLY, Dec. 1996, at 24, 38 (stating that
"murky new missions . . . may be chipping away at the Army's sense of
itself"); DePalma, supra note 152.
[165.] See McGee, supra note 3, at A30 ("[T]he open-ended nature of
the military's commitment is the greatest potential hazard."
(interview with Lawrence J. Korb, Assistant Sec'y of Defense under
President Reagan)). At least one critic sees the expansion of the
Junior Reserve Officer's Training Program, the large number of retired
military personnel working as teachers, and the appointment of a
retired general as the "drug czar" and another as head of the D.C.
school system as steps towards militarization and a decline in
civilian control of the military. Courtland Milloy, Overruling
Civilian Rule, WASH. POST, Nov. 13, 1996, at B1 (describing the views
of Sam Smith, editor of the Progressive Review).
[166.] See, e.g., Clifford Krauss, The Somalia Mission: Congress;
Clinton Gathers Congress Support, N.Y. TIMES, Oct. 8, 1993, at A14
(noting Congress's approval of President Clinton's plan to limit the
goals of U.S. forces in Somalia and commit to an end date for troop
deployment); Elaine Sciolino, Loosening the Timetable for Bringing
G.I.'s Home, N.Y. TIMES, Nov. 17, 1996, § 4, at 3 (discussing military
doctrine of no overseas deployment without a specific timetable for
withdrawal); Elaine Sciolino, U.S. Narrows Terms for Its Peacekeepers,
N.Y. TIMES, Sept. 23, 1993, at A8 (noting anxiety within Clinton
administration over "open-ended peacekeeping missions in Somalia and
Bosnia"); Senatorial Passion: U.S. Interest or Deadly Quagmire?, N.Y.
TIMES, Dec. 14, 1995, at A15 (quoting from Senate debate about sending
troops to Bosnia and the fear of an open-ended mission). But see
Sciolino, Loosening the Timetable for Bringing G.I.'s Home, supra, at
3 (reporting criticism of establishing a clear exit strategy for
troops deployed overseas).
[167.] Reimer, supra note 152, at 9 (stating that "readiness and
training . . . [are] the reason the Army exists").
[168.] See Department of Defense Authorization Act, 1982, Pub. L. No.
97-86, § 905(a)(1), 95 Stat. 1099, 1116 (1981) (codified as amended at
10 U.S.C. § 376 (1994))); PCA Hearing, supra note 13, at 16 (statement
of William H. Taft IV, Gen. Counsel, U.S. Dep't of Defense).
[169.] To be effective the military would have to be able to say "no,"
but it is actually marketing itself with a 55-page pamphlet to local
law enforcement. See McGee, supra note 3, at A30.
[170.] "[R]eadiness is a tough, continuous job." Smith, supra note 42,
at 91 (emphasis added). The most "productive"--and full-time--purpose
of the military during peacetime is the deterrence of war. Id. As
Elihu Root said, the goal of the military is "[n]ot to promote war,
but to preserve peace through intelligent and adequate preparation."
Id.
[171.] See Ricks, supra note 164, at 38 (noting the need for the Army
to justify its existence "[a]rguably for the first time in its
existence"); William Rosenau, NonTraditional Missions and the Future
of the U.S. Military, FLETCHER F. WORLD AFF., Winter/Spring 1994, at
31, 32 (suggesting that non-military missions could protect the
infrastructure of the Army by giving it "a new organizational
vision").
[172.] These new missions occur at a time when the Army has increased
its overseas operational deployments by 300%, but has been forced to
accommodate for diminishing resources. See Reimer, supra note 153, at
5, 7; see also Ronald B. Flynn, The National Guard Drug Interdiction
Mission: A Circumvention of Posse Comitatus? 21 (Apr. 2, 1990)
(unpublished U.S. Army War College Military Studies Program Paper,
available through Defense Technical Information Center) (contending
that the military's involvement in the counter-drug effort detracts
from training readiness as it relates to war-fighting). But see Dale
E. Brown, Drugs on the Border: The Role of the Military, PARAMETERS,
Winter 1991-92, at 50, 50 (describing military involvement in
counter-drug efforts as "valuable, real-world training for the
participating units").
[173.] Mike O'Connor, Does Keeping the Peace Spoil G.I.'s for War?,
N.Y. TIMES, Dec. 13, 1996, at A3 (discussing the need for
approximately 18 months of rest and retraining to reestablish the
basic military readiness of the Army troops who were deployed in
Bosnia); see also DePalma, supra note 152. The work of U.S. soldiers
in Bosnia "runs counter to their traditional training" and their
skills are perishable. Id. One sergeant, a tanker, spends each day
checking identification at a checkpoint. Id. As a result of mostly
working in small groups, the soldiers' ability to work in large
coordinated groups suffers. Id.
[174.] Dunlap, supra note 17; see Ricks, supra note 164, at 38.
[175.] In fiscal year 1990, forty-eight percent of all AWACS, radar
surveillance planes, flying hours worldwide were devoted to
counter-drug efforts. Brown, supra note 172, at 53. In the case of the
National Guard, 532,899 man-days and 5155 missions were devoted to the
counter-drug effort. Id.
[176.] See Alex Prud'Homme, Phantom Army: For the Most Part the
National Guard Fought Well in the Gulf but Some Outfits, Plaqued by
No-Shows and Poor Training, Never Got to the Front, TIME, June 10,
1991, at 18; see also DARPA Seeks to Upgrade National Guard Training,
DEF. & AEROSPACE ELECS., Feb. 22, 1993 (noting the National Training
Center did not believe that National Guard troops called up for the
Persian Gulf War were not combat ready), available in 1993 WL 289339;
National Guard: Peacetime Training Did not Adequately Prepare Combat
Brigades for Gulf War, GEN. ACCT. OFF. REP. & TESTIMONY, Dec. 1, 1991
(referencing GAO report on lack of readiness of National Guard
troops), available in 1991 WL 2659334. This turns on the use of the
National Guard in nontraditional missions, when their active service
time should be spent honing their fighting capabilities so that they
can back up the regular army in time of war.
[177.] Dunlap, supra note 17, at 69.
[178.] See McGee, supra note 3, at A30 (discussing the military's
counter-drug headquarters). This "drug command" is referred to as
Joint Task Force Six ("JTF-6"). JTF-6 circulates a 55-page pamphlet to
local law enforcement, which in effect markets Green Berets, Navy SEAL
teams, and other services. Id.
[179.] Border duty consists of patrolling the U.S. border to stop
illegal entry and enforcing customs laws at border entry points.
[180.] To fulfill this mission, it is entirely reasonable for the
military to begin civilian surveillance again under the same rationale
used in the 1960s. See supra note 16 and accompanying text.
[181.] See Wren, supra note 163, at 4 (noting that drug trafficking
does not seem to follow basic economic principles). Increased seizures
have not increased the cost to users of illegal drugs. Id. Increased
interdiction results in increased seizures, but those seizures only
increase transportation expenses; the drug dealers are hassled, but
the drug flow continues. Id.
The 1996 price of cocaine is only one-fifth of the 1981 price, and
heroin is less than half of its 1980 price. William March, Drugs
Ignore Politicians, TAMPA TRIB., Sept. 28, 1996, at 1. In 1981,
Congress began involving the military in the drug war. See supra note
9-10 and accompanying text. Obviously, military involvement and
increased seizures have not helped to turn the tide in the drug war;
it is being lost.
[182.] See Editorial, False Choices on Terrorism, N.Y. TIMES, Apr. 30,
1995, § 4, at 14 (suggesting that the F.B.I. should receive more
funding and use it to improve the training of agents); Editorial,
Washington's Undeclared War on Drugs, ST. LOUIS POST-DISPATCH, Dec. 8,
1996, at 2B (suggesting that the drug war is best handled by agencies
other than the military). These resources need to be developed when
civilian law enforcement is not able to take full advantage of
information provided by the military. See Ted Waronicki, Letter to the
Editor, War on Drugs Must Begin in the Home, TAMPA TRIB., Oct. 20,
1996, at 3 (noting that civilian law enforcement agencies attempted to
apprehend only a small percentage of suspicious aircraft identified by
the military).
[183.] See supra Part II.
[184.] See supra Part IV.
[185.] See supra notes 47-52 and accompanying text.
[186.] See supra notes 110-13 and accompanying text.
[187.] See supra note 111 and accompanying text.
[188.] See Kathleen M. Sullivan, Constitutional Constancy: Why
Congress Should Cure Itself of Amendment Fever, 17 CARDOZO L. REV.
691, 700 (1996). "It would have been an unwise attempt to provide, by
immutable rules, for exigencies which, if foreseen at all, must have
been seen dimly, and which can be best provided for as they occur."
Id. (quoting McCullogh v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819)
(Marshall, C.J.)).
[189.] See supra note 113 and accompanying text.
[190.] See Sullivan, supra note 188, at 700-01.
[191.] See generally Sullivan, supra note 188 (discussing arguments
against constitutional amendments in general); cf. Ronald L. Goldfarb,
The 11,000th Amendment: There's a Rush to Amend the Constitution, and
It Shows No Signs of Letting Up, WASH. POST (Nat'l Weekly Ed.), Nov.
25-Dec. 1, 1996, at 22, 22-23 (noting that over 11,000 amendments have
been proposed in Congress since 1789--more than one a week). As
Professor Kathleen Sullivan has said, "[T]here are strong structural
reasons for amending the Constitution only reluctantly and as a last
resort. This strong presumption . . . has been bedrock in our
constitutional history, and there is no good reason for overturning it
now." Sullivan, supra note 188, at 694.
[192.] See GOODPASTER & HUNTINGTON, supra note 21, at 26.
[193.] Title 10 defines the term "armed forces" to "mean the Army,
Navy, Air Force, Marine Corps, and Coast Guard." 10 U.S.C. § 101(a)(4)
(1994).
[194.] See supra text accompanying note 12 for the current text of the
PCA and note the use of the same phrasing.
[195.] This definition is taken nearly verbatim from 42 U.S.C. §
5122(1) (1994) (regarding disaster relief).
[196.] This language is derived from 15 U.S.C. § 2655(c) (1994).
[197.] See supra note 53 and accompanying text.
[198.] The statutes that currently cover embezzlement or
misappropriation of federal services, funds, or equipment would fill
the void left by repeal of the PCA from Title 18.
[199.] See S. 1, 94th Cong. 1st Sess., tit. II, pt. G. The text of the
bill proposed the following text as a re-enactment of the PCA in 10
U.S.C. § 127:
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, knowingly uses
any part of the Army, Navy, or Air Force as a posse comitatus or
otherwise to execute the laws is guilty of a Class A misdemeanor.
Nothing in this section shall be construed to affect the law
enforcement functions of the United States Coast Guard.
Id., cited in James P. O'Shaughnessy, Note, The Posse Comitatus Act:
Reconstruction Politics Reconsidered, 13 AM. CRIM. L. REV. 703, 711
n.43 (1976).
[200.] See text accompanying supra note 12.
[201.] See supra notes 66-67 and accompanying text. The 94th Congress
also considered similarly broadening the coverage of the PCA. See
supra note 201.
[202.] See supra note 68 and accompanying text.
[203.] A regulation that is not codified does not require
congressional approval to be changed. Cf. supra note 68 (noting the
withdrawal of a section similar to the DoD Regulations from the Code
of Federal Regulations presumably to make the regulations easier to
change).
[204.] A similar proposal was made by Professor Christopher Pyle. See
PCA Hearing, supra note 13, at 42.
What is at stake is nothing less than a consistent theory of the
proper role of armed forces in a democratic republic.
That theory . . . envisions the military as a back-up force,
operating under its own command, prepared to deal with large scale
emergencies, beyond the capabilities of civilian authorities, not
for the purpose of executing civilian laws, or even assisting in
their execution, but for restoring order, saving lives, and
protecting property from natural or man-made disasters.
Id. (emphasis added) (statement Christopher H. Pyle, Professor, Mount
Holyoke College).
[205.] See McGee, supra note 3, at A30.
[206.] See PCA Hearing, supra note 13, at 16 (testimony of William H.
Taft, Gen. Counsel, U.S. Dep't of Defense) (quoting an Aug. 6, 1979
report on the PCA by the Departments of Justice and Defense).
[207.] Id.
[208.] This Note does not suggest that the armed forces are any less
dedicated, but these domestic problems are not, and should not be,
their primary mission. When the need arises, the armed forces must be
able to direct their resources towards their primary mission; thus,
they cannot give these domestic problems the full attention that they
need.
More information about the paleopsych
mailing list