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Debate Club
DEBATE CLUB 10/10/05

What Good is Posse Comitatus?

David Glazier and Paul Schott Stevens debate.

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Since 1878, the Posse Comitatus (Latin for "power of the county") Act has prohibited the use of the military to police American soil. But laws allowing military personnel to take part in anti-terror and -drug campaigns within the United States have weakened the act in recent years and the much maligned federal response to the disasters along the Gulf Coast may be its death knell.

To improve the government's reaction to such disasters, President Bush has indicated that he might favor empowering the Department of Defense to lead such responses—a move that would vanquish Posse Comitatus.

Should the President scrap the longstanding law?

David Glazier is a research fellow at the Center for National Security Law and a veteran of the Navy. Paul Schott Stevens is President of the Investment Company Institute and served as Special Assistant for National Security Affairs to President Reagan.

Glazier: 10/10/05, 10:26 AM
Scrapping the Posse Comitatus Act to facilitate the political expediency of giving the military the lead in disaster relief rather than holding FEMA accountable for aiding state and local governments would be a mistake. This doesn't mean the military should stand idly by during disasters; it should provide support. Citizens would be rightfully outraged if capabilities they pay for went unused while Americans suffered, particularly since the armed services frequently provide disaster relief overseas.

What we should not endorse, however, is giving regular U.S. military forces authority to enforce domestic law against U.S. citizens. It is true that the act's direct origin was rooted in a post-Reconstruction reaction to the employment of Union forces in the South. But criticism seeking to tarnish its continued vitality by suggesting it has racist roots ignores two vital points.

First, posse comitatus constraints are entirely consistent with the framers' views. Events like the Boston Massacre focused our forebears on problems inherent with using soldiers to maintain domestic order, and the Declaration of Independence highlights grievances stemming from standing military forces directed at the colonists. Up to the Civil War, congress denied the Army authority to enforce traditional domestic law even against itself; soldiers accused of common law crimes had to be turned over to local officials for trial. It was only as a result of operations outside U.S. territory during the Mexican War and early portion of the Civil War that congress finally expanded the Articles of War to permit the military to punish soldiers for traditional crimes. Even more relevant than this indirect evidence are statements of Hamilton and Jay. In Federalist 29, for example, Hamilton says the federal government may call out citizens as a posse comitatus although not specifically mentioned in the Constitution, or employ the militia where necessary to support the civil magistrate. Both are cited as reasons why the army would not be employed in a domestic role. And both Hamilton and Madison stressed that the militia would physically defeat any federal efforts to use the army to usurp state authority.

The second key point is that the laws to be enforced in a disaster relief operation are state and local ordinances governing public order and safety, such as prohibitions on looting, enacted under these jurisdictions' police powers. As seen in New Orleans, enforcement of these laws in a bona fide emergency requires a great deal of discretion, tantamount to lawmaking. Other than on federal lands and territories not part of any state, the federal government has no constitutional authority to make or enforce these types of laws. So the Posse Comitatus Act serves a valid role even today in restricting the federal government to the exercise of its constitutional powers. Repealing the act can't increase the scope of federal authority; it can only muddy the waters, encouraging extra-constitutional acts that will eventually be challenged in the courts.

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Stevens: 10/11/05, 09:07 AM
Dave, in my judgment the question of "scrapping" or "maintaining" the Posse Comitatus Act has served to obscure the real issue underlying federal/state and military/civilian relations in times of serious national emergency. The fate of the act is not the real issue. The real issue is framing a proper role for our regular Armed Forces in homeland security.

The act expresses a longstanding national policy—but one of limited application—concerning the respective roles of civil and military authority in enforcing the law. You assert that this was the framers' intent, and as a matter of general policy and practice I would agree. At the same time, however, it seems very clear that the president's commander in chief and other powers, as consistently interpreted by the Supreme Court from the early years of the republic, were intended to be sufficient to any national necessity—not just "in time of war" but, as in United States v. Russell, also where there is an "immediate and impending public danger" of whatever kind. The proposition that law enforcement is strictly a civilian function is a strong one indeed, but it is one that yields to the Constitution and to the judgment of Congress in numerous other statutes. This is to say that it yields to exigent circumstances as they are perceived by our national political leaders.

As you know, the statute was not adopted under circumstances that correspond in any way to those contemplated in our current debate—I take those to be, for example, a catastrophic terrorist incident or an extraordinary natural disaster. Congressional democrats forced through the Posse Comitatus Act to end the supervision of Southern elections by Union troops because they believed this practice had stolen the Presidential election from their candidate, Samuel Tilden, in 1876. The purpose of the act was to confine the use of the armed forces to the role that had been viewed to be appropriate before the Civil War. Indeed, the Posse Comitatus Act restriction on using the military to "execute the laws" is subject to two broad exceptions. Such use is not proscribed where it is "expressly authorized" either by the Constitution or by any Act of Congress. And Congress has so authorized on numerous occasions.

I do understand that there is a strong institutional reluctance on the part of the Defense Department's civilian and military leaders alike to be drawn into domestic roles that entail downside risks, in the form of yet more (albeit somewhat indeterminate) operational demands or public criticism. DOD, understandably, is not fully prepared for the kinds of domestic roles that it might be called upon to play in future. For years, the refrain of "Posse Comitatus" has served as a wolf's bane to keep the domestic mission away—but I hope no longer. The size, complexity, and fragility of our society, and the multitude of threats that we face, require a new approach in which the armed forces can and should play a significant if carefully defined role.

Let me close with one further observation. Since 9/11, state and local authorities across the country—and DOD for its part as well—have emphasized the primary role of the "first responders" and non-federal actors. For many purposes, this emphasis is exactly right. But Hurricane Katrina is instructive about where the logic ends. As a native of New Orleans and someone fairly conversant with the local political scene, I for one was not surprised that a natural disaster of this dimension utterly overwhelmed the local and state infrastructure. FEMA was never designed, nor is it likely ever to be able, to fill a vacuum of this kind—absent leadership, funding, manpower, training, communications, transport, etc. that will provide it an operational character far beyond anything that exists today. Where else, in times of such grave emergency, is the president or the nation to look but the DOD?

Glazier: 10/11/05, 12:03 PM
You correctly identify the central issue as "framing a proper role for our regular armed forces in homeland security." I suspect we both agree, but should clarify upfront, that the military's authority to combat terrorists directly should not stop at our borders. Thanks to our unique insularity, Americans have long had the luxury of viewing war as something that takes place somewhere else. But the president's decision that al Qaeda's attacks rose to the level of armed conflict, reinforced by the congressional authorization for the use of military force, NATO's invocation of collective self-defense, and the United Nation's response together provide a credible legal basis for shifting terrorism from a crime to a war paradigm. It would be absurd to argue that the military could not defend directly against such threats on our own soil; that's what militaries are for. Any doubts our framers had about the limits of employing the army in combat against a foreign threat would have been whether it could be employed overseas, not in defense of American soil.

The crux of our issue is thus what constitutes "homeland defense" beyond responding to armed attack, and what should the military role be in responding to those non-military aspects. I would not argue that the Constitution should be read so narrowly as to preclude federal involvement in a complex civil defense emergency, whether recovery from a natural disaster or a weapons of mass destruction incident. But there are real issues about whether the federal government can constitutionally command, versus coordinate, such responses. Current federal disaster relief statutes, specifically identify that as state authority/responsibility. And it should be noted that the law of war treats civil defense as a protected non-combatant function; assigning the military primacy in this role will only further confound efforts to put the war on terror on sound legal footing.

Simply invoking the phrase homeland defense is an insufficient basis for finding constitutional or legal authority, or practical justification, for Department of Defense involvement, particularly in law enforcement. The coincidence that our military is currently riding a crest of popular confidence far exceeding other government entities is also insufficient grounds for dumping this responsibility on them. By that logic we'd soon have the military running every facet of our government, so there is a real slippery slope lurking here.

I'm sympathetic to perceptions that military leaders reflexively just say no to any new missions. You are correct that many military capabilities, as well as many elements of the skill sets cultivated in military personnel, are relevant to disaster relief. But it would be na´ve to think this means the military would do a credible job of actually running things right off the shelf. The military is good at what it does because of years of experience, training, and the implementation of terribly costly lessons learned. It has been hard enough just to establish interoperable command and control capabilities among our four services; we're still not where we want to be, and there have been issues in the current conflicts with "joint" commanders lacking necessary expertise to direct operations they were charged with overseeing. The success or failure of future disaster relief operations will depend on the planning, training, interagency coordination, and prudent investments in interoperable systems made well in advance. It's a full time job, and since the administration has largely squandered the four years we've had since 9/11 to get it right, it now must be full time plus nights and weekends for the foreseeable future if we're to have any chance to be ready for the next Katrina or big terrorist attack. To expect the military to get it right as a collateral duty is unfair to both our servicemen and the citizens in need of this protection. I believe that the law enforcement aspects at the core of the Posse Comitatus issue are even more problematic, as I hope we can explore in more detail tomorrow.

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Stevens: 10/12/05, 09:09 AM
Years ago I worked as deputy staff director of the president's Blue Ribbon Commission on Defense Management, better known as the "Packard Commission" after its Chairman, David Packard of Hewlett-Packard Corp. This was back in the mid-80s, in the latter days of the Cold War. President Reagan had tasked the commission with developing recommendations on, among other subjects, military organization and command—recommendations that later helped frame the Goldwater-Nichols Act. As part of our study, we received a briefing on the Unified Command Plan. As you know, this is the plan under which geographical areas of the world are placed under the responsibility of different combatant commanders. At the time of our briefing, only one part of the globe had no assigned commander responsible for U.S. military operations: the United States. It struck me then as a very odd omission. I was informed that the domestic U.S. was everyone's responsibility—which meant, for every practical purpose, it was no one's. With the much more recent organization of Northern Command that omission finally has been corrected—and none too soon, considering the rise of global terrorism and the threat of WMD. It is indicative of how far we have come that Northern Command reportedly (according to The New York Times) is now developing a proposal to specially train and equip an active duty force that could respond quickly in the event of overwhelming natural disasters like Hurricane Katrina. It remains to be seen how DOD leadership views such a proposal, but I hope it receives their strong support.

You suggest that there is some Constitutional impediment or limitation to the President's domestic use of the armed forces in a manner that pre-empts state or local government, or involves "law enforcement" (your term), or is intended to "execute the laws" (the term in the Posse Comitatus Act). I agree that there may well be very strong political and practical limits on any such use of the armed forces; prudence would counsel that the military be used very sparingly indeed for domestic missions of any kind. But I find nothing in the Constitution to suggest that a president is altogether prohibited from using his commander in chief powers in fulfilling his responsibility to "take Care that the Laws be faithfully executed." In various circumstances, our presidents have done exactly that—in connection, for example, with the Chicago Pullman strike, desegregation in Little Rock, and civil disturbances following the assassination of Martin Luther King.

I submit that the aggregate "national security powers" of the president have always been thought sufficient—and should remain sufficient—to respond to the most compelling domestic needs of the nation. Consider, for example, a deadly biological terrorist incident that necessitated the maintenance of a rigorous quarantine around a major metropolitan region. No president is likely to choose to hazard the safety of the nation at large on the capabilities of state and local police or National Guard units under the exclusive direction of state authorities. Nor in these and other truly extraordinary circumstances is a "coordinating" role for DOD likely to suffice.

Dave, we may disagree on the advisability of using regular military forces at a given time or for a given domestic mission. But I for one think that that must—and as a matter of constitutional law does—remain among the president's options.

Your parade of horribles—the military would be running every facet of our government, the military cannot take on these collateral duties and still do its war fighting, turning to DOD in such circumstances will only confound our other domestic counter-terrorism efforts, etc.—I find altogether unpersuasive. As I have said from the outset and will emphasize once again, using the armed forces in domestic missions should be radically the exception and not the rule. I just hope DOD will embrace the need to prepare for such exceptional circumstances. If it fails to do so, the American people may, at their time of greatest need, wonder at and regret its reluctance.

Glazier: 10/12/05, 01:01 PM
Isn't it curious that while thousands of nuclear weapons threatened devastation during the Cold War, no one seemed to have a problem with Posse Comitatus, but now the threat of possible disruption of a single city makes military law enforcement authority essential? Even though each state can call on National Guard troops with valid authority and some experience in law enforcement? Assuming arguendo that you are correct that the commander in chief power includes authority to order a military response to severe domestic emergencies, why repeal a statute that would only check illegitimate use of the military in circumstances not rising to the level you describe? Your logic, if correct, seems to support retaining the Posse Comitatus Act.

Of course that expansive view of executive authority is open to question. You're undoubtedly familiar with Youngstown, where the Supreme Court held Truman could not seize steel mills to prevent labor interference with the Korean War effort. An even more relevant, but lesser known, lesson comes from New Orleans (how ironic) in 1815. As a native, you surely recall Andrew Jackson ordered martial law which he kept in force even after he crushed the British in the most complete victory in American history. But are you aware of the private rebuke President Madison ("the father of the Constitution") had delivered to Jackson? "In the United States there is no authority to declare and impose Martial law, beyond the positive sanction of the Acts of Congress. To enforce the discipline and to ensure the safety, of his garrison, or his camp, an American Commander possesses indeed, high and necessary powers; but all his powers are compatible with the rights of the citizens, and the independence of the judicial authority."

There is a huge, and proper, distinction between the military's supporting role and the actual law enforcement performed by agencies such as the Coast Guard (USCG). Law enforcement requires months of specialized training, bolstered by on the job experience under supervision of experienced practitioners, and periodic refresher training, to develop competence. Working closely with USCG law enforcement detachments (LEDETs) I embarked commanding a frigate on a counter-drug deployment highlighted the extensive differences between military and police work. My Navy crew was superb, but knew next to nothing about procedures or legal issues associated with search and seizure, evidence gathering and custody, making arrests, etc. Sailors and Coast Guardsmen, soldiers or marines and police, etc. are not fungible commodities. One of the reasons for the administration's selection of military commissions to try suspected terrorists is its belief that they can ignore such niceties as legal gaffes in the collection of evidence. But there is no constitutional authority for such trials of U.S. citizens arrested for domestic crimes, so errors made by troops in law enforcement roles would let even serious criminals walk, while innocent citizens would suffer the indignity of unmerited intrusion on their rights.

Further, while outsiders might view the requirement that Navy ships shift tactical control to a Coast Guard commander while LEDETs conduct boardings as a legal fiction, in fact there is real value added from working under a commander intimately familiar with the practical and legal ramifications of the operation being undertaken. I spent four days under USCG control while diplomatic arrangements were made for the transfer of 228 illegal migrants we interdicted off Central America and I can tell you with confidence that this task would have been all put impossible without being able to call upon their professional and legal expertise. Military officers and support staffs simply lack the professional knowledge necessary to direct law enforcement efforts.

The military has significant capabilities to play supporting roles in disaster relief, and should be called upon to do so where it is in the best interests of our citizens. But when it comes to actual law enforcement, there is good reason why we develop and maintain professional expertise, and our citizens should be able to count upon having this role limited to properly trained individuals.

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Stevens: 10/13/05, 06:57 PM
Our lack of concern about homeland defense (or the domestic mission of our armed forces) during the Cold War isn't "curious" at all. It had a lot to do with forward deployment and the implications of the strategic doctrine of "mutual assured destruction." Deterrence was predicated on neither the U.S. nor the USSR having any homeland left after a nuclear exchange—that is, until missile defense efforts re-emerged. But all that, as they say, is another story.

Have I said anything about repeal of the Posse Comitatus Act? I do not think so, because repeal is unnecessary. As I have said, that act expresses a national policy that remains highly appropriate, within limits. Congress continues to tailor those limits, by the way. It has expressly authorized use of the armed forces for law enforcement in a wide variety of roles, among them the following: to respond to domestic disturbances; to protect high ranking government officials; in emergencies involving nuclear/chem/bio threats that civilian law enforcement cannot handle; to execute quarantine and health laws; and for a variety of other purposes. (I discuss all these in further detail in a report I authored in October 2001 for the Center for Strategic and International Studies, entitled U.S. Armed Forces and Homeland Defense: The Legal Framework.)

I agree that the Supreme Court's so-called Steel Seizure case in 1952 is of great importance. But the significance of that case lies in how the court viewed the interplay of Congressional and executive authority. As I and others read the case, in the absence of an express Congressional prohibition of the kind President Truman disregarded in seizing the steel mills, a clear majority of the Supreme Court would have agreed that the president has the power under the Constitution to take at least temporary actions in the case of a serious national emergency. It also seems that the court likely would have deferred to the president's reasonable finding of such an emergency, leaving this question for the Congress and president to decide between them as the "political" branches of government. I think the proposition that Article II of the Constitution endows the president with certain inherent emergency powers is well established—and, where necessary, such powers extend to domestic use of the armed forces.

As for your argument that the president has no power to declare "martial law," in order to suspend civil liberties or the functions of the judiciary, that's a red herring. Such extreme measures are not implied even if the president were to employ the military in times of serious national emergency. Moreover, no matter what domestic mission our military forces might undertake at the president's direction, they would remain under effective civilian control, exercised through duly constituted civilian command authorities. This tradition of civilian control is an article of such faith with our armed forces that I have no qualms about their attempting to usurp power that is not theirs under the Constitution. Old Hickory may have deserved Madison's rebuke for his actions in New Orleans, but those actions were taken in response to a foreign invasion of our soil in wartime and they must be considered their historical context. Jackson, I assure you, is remembered in New Orleans as a savior and not as a despot.

You close with the familiar and cogent argument that law enforcement is best left to others specially trained for that purpose. Again, as a general proposition, I completely agree. Maintaining a robust law enforcement and emergency management capability, one that is equal to most all requirements and is exercised through appropriate local, state and federal agencies, supplemented where necessary by National Guard units under state control—this should be a high national priority. Our experience as a nation, including our recent experience of Hurricane Katrina, demonstrates that these expedients will fail us upon occasion, however. When and if they do, the American people and their civilian political leaders will look—and should look—to our regular armed forces to help fill the breach. DOD should prepare for such eventualities, and the Posse Comitatus Act neither does nor should prevent that.

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Glazier: 10/14/05, 11:44 AM
At the end of the day it appears that we likely agree on the important points although I think I probably take a less expansive view of executive authority. Having read your CSIS report, I confess that I was looking for the appropriate opportunity to quote some of your language, such as "The so-called Posse Comitatus Act expresses a long-standing national policy of appropriately limited application concerning the respective roles of civil and military authority in enforcement of the law." As I've previously observed, the factual circumstances of the act's origin are a red herring in discussions over its continued vitality because of its implicit incorporation of principles clearly held by the framers and arguably implied, even if not explicitly stated, in the Constitution.

I agree with your observation that our military focus during the Cold War was outward, in fact I'd say this has been true ever since the last 19th-century Indian War. Modern Americans have been spoiled by the luxury of viewing national defense as something conducted on other people's turf, and your October 2001 analysis was thus a timely demonstration that the terrorist threat requires recognition of a real need for defense efforts in the homeland as well. My point about the Cold War was simply to suggest that if the potential catastrophic disruption of our entire society by nuclear war was not sufficient to convince lawmakers that a direct military role in law enforcement was necessary, the serious but substantially less widespread devastation from a terrorist attack or hurricane should not either.

As I think you agree, even during war or disaster we remain a nation of law, with the Constitution as ultimate law of the land. While the executive may be able to infer significant constitutional authority to use federal capabilities, including the military, to respond to such challenges, fundamental limits should still remain on the authority of a government of enumerated powers even in time of crisis. There is a clear distinction to be made between use of the armed forces to ensure respect for the Constitution and federal law, such as protecting civil rights on the one hand, and the enforcement of ordinary laws enacted under state police powers and properly the province of state and local governments on the other. I thus see a constitutional basis for preserving Posse Comitatus, as well as the practical reason that while our military forces are quite capable of supporting many aspects of civilian law enforcement, they lack the expertise required to carry out the function in a manner consistent with preserving the fundamental rights of our citizens. Unlike some provisions of International Human Rights law, there is nothing in the Constitution making the Bill of Rights subject to derogation in time of emergency.

As you get the last word, I look forward to hearing your assessment of our areas of substantial divergence, if any.

Stevens: 10/14/05, 04:52 PM
In the debate over Posse Comitatus, the fault lines indeed are drawn along one's perceptions of presidential authority, on the one hand, and of our active duty military, on the other. Watergate and Vietnam were a part of my experience as a younger man, so I can sympathize with those who take a restrictive view of the president's role in our constitutional system. My study of our history, and of the Supreme Court's interpretation of Article II of the Constitution, impels me to take a more expansive view. In Federalist 23, Alexander Hamilton observed that "[i]t is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them." An "energetic Executive," he thought, was "essential to the protection" of the nation. One of the means that Congress has put at the disposal of the president is our armed forces. I do not think that the threats to our nation have diminished in the years since Hamilton wrote—to the contrary, our society is now so large, its functioning is so complex, and the structure of our economic life is so fragile, that the risks and vulnerabilities have greatly multiplied. In a more bucolic time, we could perhaps think only of the militia answering the call of domestic duty. I think that day has gone by. September 11th, convinced me that the violence and death terrorists seek to inflict upon us is limited only by the technology they have available—a conclusion that makes the threat of weapons of mass destruction vivid indeed. A president pondering such a world understandably might conclude that deployment of regular military units in a variety of domestic roles—some of them involving maintenance of civil order and enforcement of the law—might be necessary. In time of serious national emergency, I do not think the Posse Comitatus Act should stand in the way. Nor should it stand in the way of DOD seeking now to train and equip itself to respond in such circumstances.

The other fault line I mentioned is one's perception of our armed forces. I suspect you would agree with me that the men and women who serve in uniform represent the very best of our nation. I have no fear, as I said yesterday, that they would usurp our Constitutional order. For evidence of this one need only consider the institutional reluctance that our military leadership has shown to take on domestic missions. Still, there are those who argue—is there some intimation of this view in your concluding paragraph?—that a strict view of Posse Comitatus is necessary as a safeguard against the military running roughshod over our rights and liberties, or even plotting to take control of the government. Having observed our national security establishment very close up, I have never subscribed to an Oliver Stone view of it. In any event, this fear likely is best addressed by DOD actually preparing for domestic contingencies, and in that process addressing these military-civil issues, rather than hoping they will never arise.

To sum up, in my view Posse Comitatus is not the issue. Defining and preparing DOD to fulfill a necessary homeland security mission is. DOD's role should be carefully circumscribed. State and local authorities, and civilian federal agencies, should carry the load. But it is foreseeable that circumstances will require even our regular military forces to play their part in responding to an extraordinary domestic emergency. They should be prepared to do so. If the president so directs, nothing in the Constitution or the Posse Comitatus Act stands in the way.

It has been fun batting this ball around with you, Dave. Thanks for the insights and erudition you brought to this dialogue.

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