Altering the Posse Comitatus Act: Letting the Military Address Terrorist Attacks on U.s. Soil

• Jurisdiction: United States,Federal
• Citation: Vol. 39
• Publication year: 2022

39 Creighton L. Rev. 667. ALTERING THE POSSE COMITATUS ACT: LETTING THE MILITARY ADDRESS TERRORIST ATTACKS ON U.S. SOIL

Creighton Law Review

Vol. 39

CHRISTOPHER J. SCHMIDT(fn*) DAVID A. KLINGER(fn**)

I. INTRODUCTION

In the aftermath of the September 11, 2001 terrorist attacks, one of the authors of this Article, David A. Klinger, along with Lieutenant Colonel Dave Grossman, United States Army (Retired), wrote an article describing why Congress should create an exception to the Posse Comitatus Act ("PCA"), a Reconstruction-era law generally forbidding the military from enforcing civil law on American soil.(fn1) Asserting that America's police agencies lack the capacity to respond effectively to certain types of conventional terrorist activity (e.g., attacks involving military style assaults in public places) that could lead to many deaths, they argued that the PCA should be amended to permit the use of military assets and personnel to deal with terrorism of this sort.(fn2) Because they focused their attention on why the military should be allowed to take action against terrorists within our borders, Klinger and Grossman offered less detail about two other matters relevant to the issue they broached: when and how the military should be called into service. This follow-up article takes up where Klinger and Grossman left off, putting meat on the bones of their proposal by offer-ing a detailed discussion of the circumstances under which the military could be used to deal with terrorist activity and how such mobilizations might occur.

The remainder of this Article proceeds as follows: First, in order to bring readers who have not read Klinger and Grossman's article up to speed, Part II reviews the highlights of their argument about why the military should be involved in certain anti-terror activities in the United States. Here we specify the sorts of terrorist activity Klinger and Grossman had in mind, identify the limitations inherent in American law enforcement when it comes to directly confronting terrorists in such circumstances, and explain why the military is the appropriate institution to overcome these limitations.

Part III discusses the legal standards that govern the use of the military in domestic anti-terror activity and how the history behind these standards might be expected to influence the decisions that leaders would have to make during a terrorist attack. Here we detail our belief that while the Constitution and applicable federal statutes authorize the military to act against some sorts of terrorist attacks, the law also contains a sizable gray area where the use of the military goes. We also discuss some practical problems that could well forestall an effective military response in the face of a terrorist strike on American soil, whatever form it might take.

Part IV lays out our proposal for dealing with the present roadblocks to effective anti-terror responses. Here, we put forth a clear, narrow exception to the PCA that would alleviate the uncertainties that presently exist by providing military and law enforcement personnel with clear guidelines for when and how the military may assist the police when dealing with terrorists. In so doing, we explain how our exception would allow the military to address terrorists on American soil while preserving the American citizenry's civil liberties and historical skepticism about using military power here in the homeland.

Finally, we conclude in Part V with some comments on how military and law enforcement personnel might prepare for their respective and collaborative roles should the sort of foreign terrorist attack we envision come to pass.

II. WHY THE MILITARY MAY BE NEEDED TO ASSIST CIVILIAN LAW ENFORCEMENT

The crux of Klinger and Grossman's argument about why the military should be permitted to deal with certain sorts of terrorism on American soil is that American law enforcement does not have the ca-pacity to effectively counter certain sorts of attacks.(fn3) More specifically, they were concerned about the prospect that al Qaeda or other Islamic terrorist organizations would launch in the United States the sort of military-style assaults on people gathered in public spaces that terrorists repeatedly carried out in the Middle East and southwest Asia,(fn4) and recently Spain and England.(fn5) Arguing that attacks with assault rifles, explosives, and other military ordinance are part of the operational doctrine of Islamic terrorist organizations, they asserted it was logical to suspect the terrorists who declared war on our nation might undertake similar attacks here in the United States.(fn6)

After laying out this predicate, Klinger and Grossman explained why they believed American law enforcement is not equipped to deal with military-style assaults by terrorists. They rooted their argument in an overview of how our nation's police are postured to deal with episodes of mass violence, pointing out the police have neither the operational philosophy nor the tools to effectively handle military-style terrorist attacks.(fn7) For decades, American police have operated on the premise that the best way to handle a crisis involving criminal violence is to contain the problem, control the problem location, and then seek to de-escalate the situation through negotiations or some other non-lethal means. Special Weapons and Tactics (SWAT) teams play a critical role in this approach by providing containment of crisis locations, having the capacity to put pressure on criminal adversaries, and, if need be and as a last resort, judiciously applying deadly force to resolve the situation.(fn8) In recent years many American law enforcement agencies developed an exception to this general approach, adopting what have been dubbed "rapid response" policies that encourage their officers to take aggressive action against armed criminals who are actively attacking (dubbed "active shooters") in order to stop the assault at the earliest possible moment.(fn9)

While this doctrinal shift towards taking the fight to active shooters might at first appear to mean the police are ready to deal with any sort of armed assault, Klinger and Grossman assert the following:

[R]apid response tactics . . . offer little hope in terms of dealing with large scale, well coordinated terrorist attacks. [They] were designed to deal with one or two disturbed individuals armed with the sorts of weapons that are commonly available in America, not well-trained terrorist cells consisting of foreign nationals who are equipped with military ordinance bent on killing as many American citizens as possible. Consequently, the first police officers to respond to a terrorist attack of this sort may find themselves quickly outgunned. It would then be up to SWAT to save the day. The problem is that they, too, may well be outgunned, for SWAT teams are trained and equipped to deal with conventional criminals, not foreign terrorists. They simply do not have the capabilities to match the sorts of explosives, armor, and support systems that well-equipped terrorists could bring to bear in an attack.(fn10)

American law enforcement has struggled to stop a number of incidents in which small groups or rogue individuals attempted to cause destruction on American soil. Klinger and Grossman recap the LAPD's violent standoff with the domestic terrorist group SLA in 1974 when 8700 rounds of ammunition were used, and the SLA threw six small explosives at police.(fn11) In 1995, a demented individual stole a National Guard tank and went on a joy ride in San Diego, destroying much in his path before police got lucky when the tank lost a tread, and police were able to shoot the driver after opening the tank hatch.(fn12) Similarly, in June 2004, a gunman drove an armed bulldozer through a Colorado town, wreaking destruction.(fn13) SWAT teams could do little to stop the bulldozer, only after it got stuck in a building it plowed into were SWAT officers able to enter the bulldozer and discover the driver killed himself.(fn14) Colorado Governor Bill Owens alerted the National Guard and was prepared to send troops if they were so requested.(fn15)

Klinger and Grossman go on to argue that because our police are not designed to take on well-armed foreign terrorists, this leaves our nation essentially unprotected against a looming threat, and we need to greatly increase our capacity to protect ourselves. They assert one logical approach to this would be to authorize our military to respond to foreign terrorist activities on American soil for the simple reason the military has both the weapons and the mindset to deal with the threat posed by terrorists.(fn16)

They further argue the military is the proper institution to deal with incipient and realized attacks by foreign terrorists because such attacks are not mere crimes, but also acts of war.(fn17) They assert that "[w]hen terrorists from abroad take or plan violent actions within the United States . . . they do not merely violate the laws of whatever state in which they act (and relevant federal laws); the actions of the terrorists constitute acts of war."(fn18) Terrorists who enter from outside society for the purpose of destroying it do not fit within the criminal model.(fn19) Crime is deviation from the domestic legal order, not an attack upon the very basis of that order.(fn20) Large-scale terrorist hostilities against the United...