A QUESTION OF LAW
#120 POSSE COMITATUS
Constance Rudnick: Welcome to “MSL Presents: A Question of Law.” Thank you for joining us. This program is brought to
you by the Massachusetts School of Law and is shown nationwide. The topic for today’s show is the Posse Comitatus Act.
At the peak of the October 2002 hunt for the Beltway Sniper, a highly sophisticated military search plane flew back and
forth in the skies over our nation’s capital. Its cameras and sensors were scouring the countryside for evidence of the
sniper, who seemed destined to evade the grasp of traditional law enforcement. Most of the public applauded the
possibility that the military might at last *find out the culprit. At the same time, few, save some constitutional
scholars and military law experts, raised the question of whether military involvement in a domestic law enforcement
effort violated a 125-year-old law known as the “Posse Comitatus Act.” This act was passed in 1878 as a country healing
from the wounds of the Civil War attempted to put behind it the image of armed soldiers guarding polling places in the
South. As a practical matter, however, the act has not been a significant barrier to military involvement in domestic
law enforcement. The war on drugs has, for example, been extensively carried out by military personnel, as have disaster
relief efforts and border patrols. Following 9-11, no one questioned the presence of Army troops at our nation’s
airports, and the skies over many U.S. cities were patrolled by military aircraft. Has the Posse Comitatus Act outlived
its usefulness, or is their still a legitimate reason to restrain military involvement in domestic law enforcement
efforts? Have Congress and the President too frequently relied on the military in times of domestic emergencies? Joining
me to discuss these and related questions is Lyle Denniston. Lyle is a regular contributor to MSL’s “A Question of Law.”
For more than 40 years, he’s been reporting on the Supreme Court for newspapers and periodicals. His longevity and
talents have earned him the title “Dean of Legal Journalists.” He’s currently using his considerable abilities to report
on the Supreme Court and other legal news from the nation’s capital, including today’s topic, for the “Boston Globe.”
And I am Constance Rudnick, a professor at the Massachusetts School of Law. Lyle, why don’t we start by having you
explain to our audience exactly what this weird-named act provides and how it got to be in the first place.
Lyle Denniston: Right. Well, the title of the act actually means the “community,” the posse of the county, or from the
old Wild West movies and TV shows, when you gathered together people in, you know, a posse, you went after the
fugitives. And the idea here was that the military, particularly in the post Civil War period, had been used to help the
reconstruction governments in the South control the populous. And this was a form of, a kind of using the military as a
posse to regulate local civilian activity. And Congress, you know, particularly in 1878 reacted to that. They reacted to
President Grant’s use of the military, as you put it, around the polls in the presidential election of 1876, which was
obviously a very bitterly contested election. Congress said, “What we are doing here now is making it a crime for anyone
to use the military as a posse to ‘execute the law.’” The law, however, in the beginning and since--and it’s been
amended many times--has two exceptions. It says that you can use the military if it is authorized by Congress by
statute, and you can use it as permitted by the Constitution. Now, Congress has used its power to create exceptions
liberally, and the government has interpreted the constitutional exception very broadly, including that you can use the
military if it is necessary to preserve governmental functioning, which means--
Constance Rudnick: Two awfully big exceptions.
Lyle Denniston: Awfully, indeed they are.
Constance Rudnick: Were those exceptions invoked, do you know, to any degree in the first 20 or 30 years of the act’s
existence?
Lyle Denniston: No. The use of the authority to create opportunities for use of the military in domestic and civilian
law enforcement really is a comparatively modern phenomenon. In 1981, Congress made the biggest exception of the modern
era when it said that you could use the military in the war on drugs. In 1989, they made the Defense Department the lead
agency in the war on the drugs. This was a wholesale exemption from the restrictions of the Posse Comitatus Act. And
more recently, the government has undertaken to promote--it hasn’t yet got permission from Congress to do this--the use
of the military in homeland security in response to terrorism. So this is another “loophole,” I guess, that the
administration seeks.
Constance Rudnick: So if Congress has not through the Homeland Security Act condoned the use of the military to enforce
this war on terrorism, then how was it that we had military personnel all of the many airports right following the 9-11
tragedy?
Lyle Denniston: Well, most of this I suspect comes under the Defense Department directive, which is based upon not
specific authorization from Congress but the President’s powers as Commander in Chief and this governmental function
exception that I spoke about earlier. The military has, particularly in this administration and particularly during the
war on terrorism, has understood that the Posse Comitatus Act was not a serious inhibition on the President’s
constitutional power to make use of the military to protect the homeland.
Constance Rudnick: In fact, the military has been used in other perhaps not so laudable situations. Weren’t they
involved in the Waco Branch Davidian situation--
Lyle Denniston: They were involved, yes. Right.
Constance Rudnick: --which is hardly the brightest light in the history of law enforcement in this country.
Lyle Denniston: Right. You know, the task force, the Military Tank Corps was used in that episode. The military has also
been used in what would appear to be an entirely civilian non-military activity, that is, protecting the people who went
to the 1996 Olympics in Atlanta. And in fact, military personnel not only provided security there; they were, in fact,
used as bus drivers and other quite ordinary civilian workers. So there have been other episodes in addition to, of
course, pervasive use during the war on drugs.
Constance Rudnick: Well, it sounds like the exceptions have pretty much assumed the rule. Why doesn’t Congress just
repeal the law?
Lyle Denniston: Well, I think one of the reasons why the act was put there in the beginning and why it remains is that
there is a very long-standing tradition in our country against mixing military and civilian activities. It goes back
certainly to the Declaration of Independence, when we complained George *III having quartered troops in our houses and
having put the military over civilian rule. And the founders themselves in the Constitution wrote the Third Amendment,
which bars the quartering of troops in people’s private homes. They also wrote the Second Amendment in part to protect
against too much military threat to people’s liberties. So it’s a long-standing tradition that we try to keep the
military, as it were, in its place and try to maintain civilian control over the military. So that’s a tradition that I
think Congress does not want to try to completely contradict by repealing the Posse Comitatus Act. It represents an
ongoing belief that we should restrict the military; but in practical matter, there are many people, scholars and
military law experts, who believe that in fact the exceptions are not gradually but precipitately swallowing up that
whole tradition.
Constance Rudnick: Is there not a fear that the exceptions are going to be used in inappropriate situations, in
situations which are more traditional law enforcement, like the sniper? You’re talking about something where you had
1000 local law enforcement individuals who seemed perfectly capable. If it’s so important to keep the military from law
enforcement separate, then why is it that it was so easy for them to get planes? And why would they do that? Why would
law enforcement ask for, somebody ask for military involvement, and why was it necessary?
Lyle Denniston: Well, the most conventional use of the military in domestic/civilian law enforcement is not to actually
make arrest and seize citizens, but to provide military equipment and military expertise. And the reason that the
surveillance planes were called in for the beltway sniper is because they are highly sophisticated in terms of aerial
tracking of heat, detections of movements and so on, and the cameras are very sensitive. And it was simply a belief on
the part of the local law enforcement authorities with the obvious support of the Pentagon that is additional technology
that we can bring to bear because we haven’t been able to find this perpetrator. And so the usual reason for local
authorities to turn to the military is for equipment and technology and personal expertise, and not for actual police to
do the search, seizure, and arrest. And in fact, the Defense Department directive on when you can use the military for
domestic/civilian law enforcement expressly says you cannot use it to pursue individuals.
Constance Rudnick: Then how did they get the military planes involved in the sniper, right? Was it because they hadn’t
found him and therefore were not technically pursuing him?
Lyle Denniston: No, it wasn’t that. That seems the obvious. It was because they were acting under the exception to use
the equipment only. There were FBI people on board the military aircraft who were actually there to take any direction
action if that were necessary. And the courts, in the few cases that had been tried on the meaning of the Posse
Comitatus Act, have always drawn a distinction between direct and indirect military involvement, active and passive
military involvement. So the courts have contributed to the expansion of the exceptions.
Constance Rudnick: If it’s just a question of resources, then if it’s that important, again, to keep the military away
from more traditional law enforcement type situations, then why don’t we just make the same technology available to
domestic law enforcement in a non-military situation and have some law enforcement, the FBI, have a plane that could be
used under the same kinds of advanced technological--
Lyle Denniston: Well, I think the reason that you don’t do it is because essentially, you would have to duplicate at the
local level across the country the resources of the Pentagon, you know, *with the massive resources, technological and
personnel resources that are available to the Pentagon. It would be frightfully expensive to try to recreate that at the
local level. So Congress obviously reaches for the easiest availability is, “Let’s grab the military and bring them in
for purposes of law enforcement assistance so that we don’t have to spend the money to create a duplicate system in the
local law enforcement community.”
Constance Rudnick: Okay. We need to take a break. We will be back; and when we are, I hope you will be with us. Welcome
back to “MSL Presents: A Question of Law.” And today, we’re talking about the Posse Comitatus Act, which is a
125-year-old law which limits the manner in which the military can be used in domestic law enforcement. Lyle, before we
broke, you spoke extensively about this governmental function exception, and this is something in the statute that
allows the military to be used in domestic law enforcement and other endeavors, not just like disaster relief and things
like that, without Congress getting involved. Can you explain where the law would provide--I don’t mean the statute, but
where the Constitution would provide for the use of military in very ordinary domestic situations. They may be severe,
but--
Lyle Denniston: Yes. The Posse Comitatus Act, in saying that there can be exceptions that are in conformity with the
Constitution, basically has been understood to be looking to that part of Article Two of the Constitution, which defines
the President’s powers. The President is given powers as Commander in Chief, and that gives him control over the
military as a civilian. And he, therefore, has some discretion to use that role for maintenance of domestic order. There
also is that part of Article Two which says that the President is to take care that the laws are faithfully executed.
And the memorandum, and I think I referred to it earlier, that was written in 1970 in the Justice Department by William
Rehnquist, now the Chief Justice, who was then a major figure in the Justice Department in the Reagan Administration,
takes the phrase in the Constitution “the President’s obligation to faithfully execute the law” and interprets that as
meaning that the President has the authority when it is necessary to make sure that all the governmental functions
continue to be carried out when they are threatened by activities that otherwise might just violate local *criminal
laws. The President has not only the opportunity but the obligation to bring in the military to assist in maintaining
governmental functions. That’s why when you see the military going out to participate in activities like disaster relief
when there are natural disasters. Another reason why the military gets involved is because the National Guard is called
in in a lot of those, and the National Guard is not covered by the Posse Comitatus Act. Neither is the Coast Guard.
That’s why the Coast Guard, for example--
Constance Rudnick: Is involved with the drug--
Lyle Denniston: --is used in the drug war, so that, you know, if you want to use the Navy, let’s say, in the drug war,
you just load up the vessel with a bunch of Coast Guard officers, and they actually go out and do the boarding and the
arresting of drug dealers at sea. So you see, the governmental function is probably the biggest exception, but also the
omission of the National Guard and the Coast Guard from that also provides additional opportunities.
Constance Rudnick: How is that the National Guard, which I thought was military entity, gets exempted from the
prohibition?
Lyle Denniston: Well, first of all, because the statute itself only applies to federal military forces. So if the
National Guard were federalized, in other words, if the President called them up as he often does in times of foreign
hostilities or wars, then they would be covered by it. But most of the time, the National Guard is not federalized. They
are a part of state government, and the concern in the beginning was not that the states’ militia would be used in--
Constance Rudnick: In the present way.
Lyle Denniston: --domestic law enforcement, but the national Army would be used. But the Coast Guard is exempted simply
because the Congress has never intended to include them. And the Coast Guard, as you know, has never been a part of the
Pentagon. It has always been traditionally a part of one of the civilian agencies, and I believe--it’s part of the
Department of Transportation now, but formerly was a part of the Department of Treasury. So it’s not a military agency
as such.
Constance Rudnick: Ah-ha. I think you also mentioned that the pending legislation on the Homeland Security Act is going
to either expressly or impliedly incorporate a large use of the military. Can you share with us some examples, and let’s
talk about whether there’s a danger in the extended use of the military in homeland security.
Lyle Denniston: Well, let me begin with an example that predates 9-11. After the Oklahoma City Bombing, President
Clinton asked Congress to create an exception to the Posse Comitatus Act where weapons of mass destruction were used.
That was not enacted at that time, but the Bush Administration is now starting with that precedent and saying that where
there is this monumental threat to domestic, civic order from Al-Qaida and from foreign terrorist organizations, then we
need the authority to use the military for such things as protecting vital installations so that you can conceive of the
military being placed around, let’s say, nuclear power stations, around airports. It’s conventional now to see law
enforcement officers very visible throughout airports, civilian airports. In a time of additional peril, we can see the
government using that. And so as part of the Bush Administration’s rather broad-scale attempt to revise American
statutory law in order to deal with the perceived threats from the war on terrorism, they want to make a very active and
much broader use of the military for protective purposes.
Constance Rudnick: Now, as a practical matter, are we talking about additional bodies? Are we talking about additional
resources, or are we talking about something else? Why does the President need to have the military involved in a
domestic law enforcement effort?
Lyle Denniston: Well, it’s because, remember now, most civilian law enforcement, even though the FBI is known to
everybody and is highly visible, most civilian law enforcement is a state and local matter. There is a perception in the
government now that state and local governments simply do not have the personnel or the resources to deal with the war
on terrorism. That means that you have to bring federal resources in in large groups, large contingencies, and large
amounts of federal resources. The military is the best place to find those. So it isn’t simply a question of adding to
those resources, though the President clearly wants additional personnel and equipment to deal with the war on
terrorism; it is also a question of making sure that the Posse Comitatus Act does not stand in the way of additional
uses of those personnel and resources to keep order, to keep us protected from Al-Qaida and other terrorist threats.
Constance Rudnick: Is there a belief that the use of the military will be a deterrent against further terrorism that an
equivalent number of local law enforcement people would not deter? In other words, are people going to be more afraid?
Are individuals who might be thinking of engaging in some terrorist activities or some anti-governmental activities, are
they going to be dissuaded more by the presence of an army or by the presence, then, by the presence of a group of
police officers?
Lyle Denniston: Well, I think, *Connie, there is a symbolic component here. The administration realizes that when the
military is there on the frontline, it is a presence. It is a symbol of authority, of national power. It is there as a
show of force against terrorist threats. So there is that symbolic element, but I think it is much more a substantive
component. The military has the personnel. The military has the equipment. The military has the sophistication to deal
with these new kinds of threats. And so it is better to put them to use rather than to try and throw a lot of money
quickly into local law enforcement.
Constance Rudnick: Is there a genuine fear or a realistic fear that the military may end up intruding into other
civilian areas other than law enforcement? And I’m thinking back to you mentioned reconstruction; and during
reconstruction, the governments of many Southern states were in fact military governments. Is that what is underlying
this distrust of the military in law enforcement, and that is it’s okay if we just have them at airports, but who knows
where they’re going to end up, and pretty soon, they might end up in the State House?
Lyle Denniston: Well, you see, we have a dual history in our country with regard to the military. The military is highly
respected. It is a mainstream institution. It controls a lot of our feelings of patriotism. We look to the military as
our guardian, as it were. But there’s that other tradition, which says that we are suspicious about the military having
too much power. That’s why we continue to have a Secretary of Defense who is a civilian rather than a military officer.
That’s why we don’t have a military officer serving as President of the United States, though Mr. Eisenhower had been a
military officer; but he was elected as a civilian. There’s this wonderful quote from one of the founders who suggests
that our people are often too enamored of soldiery. In other words, we do not want to get too much in love with having
the military actively involved in our day-to-day life. And there is the concern about what lawyers call “the slippery
slope.” You bring the military in to protect airports. What’s next? Are you going to bring the military into local law
enforcement where there is a sniper who’s threatening an entire region of a Metropolitan area? So that there is this
abiding concern that if you start letting the military move in the way it did in the post-Civil War reconstruction
period, if you start allowing that to happen, then our civil liberties are at issue because the military, while it is
very sophisticated in many ways, is a kind of a blunt instrument, or at least that’s our traditional belief. It’s not
capable of having the nuances, refinements that we’d expect from civilians. And that’s another reason why, by the way,
many people are suspicious about using military tribunes to try suspected terrorists because the military justice system
is not--
Constance Rudnick: Is very different.
Lyle Denniston: --is not as attentive to civil liberties as the civilians’.
Constance Rudnick: The history of court decisions in the military is that the military gets deference, and they should
be treated differently.
Lyle Denniston: That’s right.
Constance Rudnick: And therefore, the same kind of protections that apply to those of civilians on the street do not
apply in the military.
Lyle Denniston: Well--
Constance Rudnick: We have to stop--
Lyle Denniston: All right.
Constance Rudnick: --because our time is up. But thank you very much for joining us, as always, and thank you for
joining us. Hope to see you again.