Soldiers are not municipal police officers. They are not state police troopers, sheriffs, the cop on the beat or “Officer Friendly,” for that matter. The assumption that American soldiers are inherently qualified to enforce local and state laws, by changing the federal Posse Comitatus law is irrational.
First, some background into this statute. The term is Latin for “force of the county,” and refers to an ad-hoc body of every-day citizens who have been gathered by the civil authorities to chase and catch felons, quash riots, and otherwise enforce the law, including local ordinances when applicable. To put this on simple terms, this refers to the "Posse" that the sheriff of countless Western movies hastily assembled to do what needed doing.
The act, passed by Congress in 1878, specifically bars the participation of any military forces from executing U.S. laws without the express authorization of Congress. The act specifically provides for the distinct bifurcation of military and civilian spheres of authority.
But the underlying issue goes back to the days of the American Revolution, when colonial-era Americans first gave formal voice to a healthy distrust of standing armies in our midst. In its lengthy recitation of specific grievances to King George III, the Declaration of Independence included these two accusations: “He has affected to render the Military independent of and superior to the Civil power ….
“For protecting them [soldiers], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.” That point of view was never codified into federal law in the United States until after the Civil War. The use of federal troops to enforce Reconstruction laws, as well as to put down labor unrest, came to a head in the Hayes-Tilden presidential election of 1876. Republican Rutherford B. Hayes won that contest by one electoral vote.
The Democratic response to Hayes’ victory was that the election had been wrongfully influenced. Hayes’ predecessor, President Ulysses S. Grant, had sent federal troops to guard polling places in several Southern states. The vanquished party complained that Tilden supporters had been intimidated and discouraged by the Yankees in blue. Therefore, they did not step forward to cast their vote.
The debate on the issue intensified and 1878, Congress passed the act that removed the military from any subsequent involvement in what were clearly civilian affairs. According to many legal scholars, and from my corner of the foxhole, Posse Comitatus has served America well since then. The foresight of earlier generations ensured that soldiers would not perform domestic police duty
Having served in the U.S. military for nearly three decades, and for a decade before that in the civilian law enforcement arena, I believe that my perspective is based on a clear understanding of both professions: I believe that if soldiers were woven into the national law enforcement community, our nation would be treading on a course that would threaten our fundamental civil liberties and freedoms.
The erosion of our way of life would not happen overnight, not even in months. However, federal troops dispersed among local or state police officers will ultimately result in jurisdictional control of civil law enforcement by the federal government. It is imperative that American citizens see through the facade that shields this issue from scrutiny. Specifically, we must challenge the assumption that deploying soldiers alongside the constabulary will be in the best interest of America and will strengthen homeland defense against terrorism.
If the military were to assume a domestic law enforcement function it would set the stage for the most extreme form of “mission-creep,” one that could easily be irreversible. The definition of federal, state and municipal law enforcement would be rewritten to provide for roving infantry squads with their rifles at the ready.
And on a strictly practical level, it is a grave mistake to assume that a soldier can perform domestic law enforcement functions. Soldiers are not trained to “police” anything, or any place, in the fashion that civilian police officers do. To attempt that is to guarantee an inevitable mishap that will result in grievous damage.
It may be argued that since the Army has a Military Police Corps, that surely they would be logical and formidable additions to any police force. Not so, this too, is an abstract and uninformed assumption.
While the Army does have an military occupational specialty for Military Police (95B), the career track is officially classified into the combat support field. MPs are trained and taught as soldiers to operate forward deployed in a combat scenario. On the battlefield, the MP may be tasked to control civilians fleeing the combat zone, guard prisoners of war, or conduct dangerous route reconnaissance while searching for mines, ambushes and any sign of enemy activity. All of these routine tasks can rapidly turn very deadly. The skills involved are vastly different in complexion and scope from policing a civilian community.
When we reach the point that we fall under the scrutiny of an armed machine-gunner while making a quick stop for bread and milk at the corner store, then we have become exactly what our Founding Fathers fought and died to prevent.
This all sounds like an extreme scenario to any reader and, in fact, it is. However, who can say that this will never happen? If it does, and becomes status quo in time, how will the town, city, or state ever be able to autonomously police itself again, after relinquishing its own responsibilities to the federal government?
Gen. John Keane, the current Army Vice Chief of Staff (who has already been selected to replace outgoing Chief of Staff Gen. Eric Shinseki next year), said last week, “We don’t see any reason to change” the Posse Comitatus law. Keane also alluded to the fact that such a mission, if delegated to the military, would likely fall to the National Guard. He also clarified that homeland security would not be the Guard’s singular mission.
History and logic provide evidence that removing this legal barrier would create far more problems, and legal complexities for America, than provide solutions to the homeland security challenge.
There is much that needs to be done to protect our nation from terrorism. This will be a long-term effort that will require lifestyle changes for many. Personal sacrifices are to be expected and they will vary in type, influence, and quantity. The current situation is similar to World War II, when all Americans sacrificed for the common good.
The days of domestic bliss and the average American’s cozy polarization from the evils of this complicated world ended last Sept. 11th. However, bringing the military into civilian law enforcement is a step in the wrong direction. Let the Posse Comitatus Act stand as it has since 1878.
J. David Galland DefenseWatch