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The Posse Comitatus Act: A Harmless Relic from the Post-Construction Era or a Legal Impediment to Transformation?

Authored by Lieutenant Colonel Donald J. Currier. | September 2003

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ABSTRACT

The Secretary of Defense should seek repeal of The Posse Comitatus Act (PCA). This Act presents a formidable obstacle to our nation?s flexibility and adaptability at a time when we face an unpredictable enemy with the proven capability of causing unforeseen catastrophic events. The difficulty in correctly interpreting and applying the Act causes widespread confusion at the tactical, operational, and strategic levels of our military.

Given that future events may call for the use of the military to assist civil authorities, a review of the efficacy of the PCA is in order. This paper documents the historical context of the PCA, explains the parameters of the law, and provides an analysis of the PCA?s value in today?s security environment. An analysis of the PCA will reveal that, although the policy goals behind the Act are generally sound and desirable, Congress could better implement their intent through other means.

CONCLUSION AND RECOMENDATION

At the time Congress enacted the PCA, it served two purposes. First, it was an expression of Congress? distaste for using the military in a civil law enforcement role. Second, it ended the practice of U.S. Marshals using the military to assist them in apprehending fugitives. The balance of political power had changed in Congress, and the new majority wanted to seize upon the opportunity to prevent the involvement of the Army in southern political matters forevermore?regardless of any potential adverse collateral consequences. More important than what the PCA did accomplish is what it did not do. It did not prevent subsequent presidents from using the military in exactly the same manner as President Grant did during Reconstruction. It has not stopped subsequent presidents from using the military for domestic purposes when the need was compelling. At its inception, PCA was the wrong tool for the wrong job. An angry Congress used a criminal statute of the type found in Title 18 of the U.S. Code instead of an organic statute of the type found in Title 10 of the U.S. Code. Congress attempted to clarify its intent more than 100 years later by enacting more specific military assistance statutes. They codified the new statutes more appropriately in Title 10 of the U.S. Code, sections 371-378. They should have concurrently repealed the existing PCA. Over the past 124 years, the Act has slowly been evolving into a mischievous relic from the post-Reconstruction era. The PCA today stands as a dangerous legal impediment to the agility and adaptability of our national defense.

The Secretary of Defense should immediately seek repeal of the PCA. Because the Act has become a symbol of civilian supremacy over the military, this will be a formidable, but not impossible, political task. The potential operational and political consequences of ignoring the PCA are worse. If, as some have suggested, we are prepared simply to disregard the PCA in the future, we are inviting political harm for our leaders and potential personal civil and criminal liability for our soldiers. Worse yet, the Act will continue its chilling effect upon those who would act boldly, at the very moment when our national survival may depend on boldness.

The lack of successful prosecutions under the Act indicates its uselessness as a criminal statute. Just as the Navy and Marine Corps have been successfully prevented from inappropriate participation in civil law enforcement by DoD directives, so too can the Army and Air Force be adequately restrained. The more specific existing DoD policy directives, coupled with the current provisions of Title 10 of the U.S. Code evincing congressional intent, are much better suited than the PCA to implement the policy goals of minimizing military involvement in civil law enforcement.