In defense of Posse Comitatus

There have been suggestions, from President Bush and others, to amend the Posse Comitatus act in order to make it easier to use the military to respond to natural disasters. The act dates to Reconstruction and essentially makes it illegal (except under certain conditions*) to deploy the military for use in domestic law enforcement. The reasons for such a law are clear and compelling, so it’s alarming, to say the least, to see the president suggesting any kind of substantial revision.

Alan Bock makes the case for posse comitatus here.

The Posse Comitatus law was passed in 1878, not only in response to some of the abuses committed by federal troops during the Reconstruction period in the South after the Civil War, but more specifically after many suspected that federal troops influenced the election of 1876, in which Rutherford B. Hayes was chosen by the Electoral College and federal troops ran some polling places in the South. Specifically, Hayes won the disputed electoral votes of South Carolina, Louisiana and Florida, states where President U.S. Grant had sent troops as a posse comitatus by federal marshals at the polls if deemed necessary.

I’ve read some about that election but don’t have a settled view as to whether it was really stolen or not. But the use of federal troops in an election, the most central event in any democracy, bothered even many in Congress who didn’t think it was stolen (or perhaps welcomed the theft). The Posse Comitatus Act was enacted in 1878. It reads as follows (as revised in 1956):

“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 for not more than two years, or both.”

[…]

What the act does is to ensure that the military is not used for domestic law enforcement. This is an important safeguard for individual liberty and citizens’ rights. When military forces are used to enforce domestic laws on citizens, the danger of a military or military-dominated dictatorship is not necessarily inevitable. But it is a constant danger.

[…]

Prohibiting the military from engaging in civilian law enforcement not only protects us from the admittedly probably remote danger of a military dictatorship, it also protects the effectiveness and integrity of the military. If the military were asked on a regular basis to engage in civilian law enforcement (or even disaster relief) it would soften the warrior mentality and take resources and training time from the primary mission of being ready to fight an actual war. Weakening the Posse Comitatus Act, as has been suggested before by politicians of both parties, would almost certainly reduce the respect citizens have for the military, which has gradually increased since the act was passed, not coincidentally in my view.

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*One of the exceptions involves the use of the military in enforcing anti-drug laws. Notoriously, this allowed the Bureau of Alcohol, Tobacco and Firearms to receive military training in preparation for the siege on the Branch Davidian compound in Waco, TX on the grounds that there was drug activity going on inside the compound (charges which were never substantiated). For a pretty darn convincing “revisionist” account of the Waco debacle see the documentary Waco: The Rules of Engagement.