The Military's Involvement in Law Enforcement: the Threat Is Not What You Think
| Publication year | 2003 |
I. Introduction
The use of the military in law enforcement, both domestically and internationally, has been praised and decried from both ends of the political spectrum. It has been written about in countless articles, from serious academic journals(fn1) to sensationalistic popular magazines.(fn2) Organizations, depending on their political viewpoints, voice grave concern or trumpet strong support over such efforts from websites across the Internet.(fn3) The military's engagement in civilian law enforcement, and the law surrounding this engagement, has been fodder for an innumerable number of dissertations, articles, and theses.(fn4) In addition, it has been a frequent topic of discussion within the military itself.(fn5) Since 1990, there have been no less than thirteen articles published in
It is likely that this interest in the use of the military in law enforcement, along with the topic of the Posse Comitatus Act (PCA), stems from traditional American antimilitarism.(fn7) This antimilitarism grew out of the experiences of the rebellious royal subjects who led the nation to independence. Some argue that antimilitarism has changed to "postmodern militarism," as described by Colonel Charles J. Dunlap, Jr., USAF.(fn8) This change in America's attitudes came about as the problems faced by the country grew in complexity and danger. Civilian law enforcement agencies were perceived to be unable to handle the increasing threat from narcotics smuggling, illegal immigration, and terrorism. As a result, Colonel Dunlap argues, the mood of antimilitarism changed to one of a belief that the military services, as results-oriented "can do" organizations, were naturally the best suited to handle these intractable problems.(fn9) And so the military was given extensive missions in all kinds of traditionally civilian areas, from disaster relief, to anti-drug smuggling, to domestic counterterrorism operations. This trend continues, as can be seen recently with the Department of Defense (DOD) providing sophisticated intelligence gathering aircraft to assist in the hunt for the Washington sniper in the fall of 2002. Whether this is a wise policy choice or not depends largely on one's political perspective. Certainly the questions spark spirited debate.
The real issue that should be of concern to policymakers is not whether the military's involvement in law enforcement can be reconciled under both the PCA and our concept of civil liberties; that is likely possible. The real concern with widening the military's participation in law enforcement (as well as other nontraditional military missions) is not an erosion of civil liberties, but an erosion of military capabilities.
This Article will first briefly discuss the Posse Comitatus Act and its applicability in different situations, the exceptions to the PCA, and the use of DOD military services in counter-drug operations. Next, extraterritorial applications of the PCA will be briefly examined. Finally, the effects law enforcement activities may have on military readiness will be discussed.
This Article does not claim to be exhaustive; its goal is simply to put forward a thesis not often seen in legal periodicals. Nor does this Article claim to have the definitive answer as to whether the use of military forces in counter-drug operations, or law enforcement in general, is a good or bad thing. In the end, the use of the military in law enforcement is somewhere in the middle. On the one hand, there are good points. For example, the military's logistical and power projection capabilities increase the reach of American law enforcement. On the other hand, there are bad points. The military tends to think in terms of "complete victory" over an opponent through the use of overwhelming force, which may not be a useful mindset in law enforcement operations. Additionally, using military units for direct or indirect law enforcement degrades those units' readiness for combat operations.
The United States military is unlikely to become the tool of oppression feared by liberal legal scholars and pundits, but neither is it likely to be the "always successful" organization that those on the right think it is. The real threat posed by increasing military participation in law enforcement is that use of the military in law enforcement operations will dull the critical war-fighting skills the military services need. Fundamentally, the nation must think and choose wisely, using the military in law enforcement judiciously, when its capabilities can be of most use, of greatest success, and complementary to the skills the military needs to be effective in a modern combat environment.
II. The Posse Comitatus Act
The Posse Comitatus Act, which was enacted in 1878, is found in Title 18 of the United States Code, Crimes and Criminal Procedure. The text of the Posse Comitatus Act states as follows:
The PCA is deceptive because, on its face, it is a proscriptive law, creating criminal penalties for persons who use specific branches of the military to enforce the laws of the United States. Yet it does not appear that there have ever been any successful prosecutions for violations of the PCA.(fn12) In fact, the PCA has been used as a limit to the military services themselves, not for individuals in the military or for civilians in charge of the various military branches.
The black letter law of the PCA makes it applicable only to the Army or the Air Force. This likely came about from the Act's origin as a response to the use of the Army to enforce the law during Reconstruction after the Civil War. To keep order at southern polling stations in the election of 1876, President Grant had Union troops man the polls throughout the South. The Republican candidate, Rutherford B. Hayes, was eventually declared the winner after much confusion and dispute. Many southerners and Democrats believed that these troops "stole" the election from the Democratic candidate, Samuel J. Tilden,(fn13) and helped to bring about passage of the Act. The Air Force was added to the Act in 1947, when it was created out of the former Army Air Forces. A technical amendment made most statutes applicable to the Army also applicable to the Air Force.(fn14) Thus, it does not appear that Congress gave conscious thought as to whether or not the Air Force should specifically be covered by the PCA.
Because only the Army and Air Force are named in the text of the Act, by the letter of the statute, the PCA does not apply to the Navy, Marine Corps, Coast Guard, or National Guard when not operating in federal status. As a result, no one could be charged with the theoretical crime of using these branches of the military to execute laws.(fn15) (Since no one has evidently been prosecuted, it is highly unlikely anyone ever would be.) Furthermore, while the Coast Guard may be transferred to the Department of the Navy as a result of a declared war or by executive order,(fn16) the PCA still would not apply to the Coast Guard.(fn17)
Some courts have interpreted the PCA as applicable to the other branches (except the Coast Guard),(fn18) while other courts have found that the PCA does not apply to the other branches.(fn19) Regardless, the Department of Defense, the cabinet-level department of all the armed services except the peacetime Coast Guard, has extended the restrictions of the PCA to its constituent services by regulation.(fn20)
In the 1980s, Congress attempted to more clearly define what roles the military could play in supporting civilian law enforcement agencies. These changes were codified in Chapter 18 of Title 10, United States Code, titled
As stated earlier, DOD policy made the provisions of the PCA applicable to the Navy and Marine Corps.(fn22) Nevertheless, the DOD services can and do provide support to civilian law enforcement agencies (LEAs), and thus, at least indirectly, engage in law enforcement. The military may be indirectly involved with an LEA or provide assistance to an LEA that is incidental to a military purpose. (For these purposes, the Coast Guard is considered a law enforcement agency despite its being an armed military service.(fn23)) Furthermore, Congress, via statute, has defined certain functions as outside the scope of...
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