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Understanding the Posse Comitatus Act

Rohn Robbins

The recent finger-pointing in New Orleans following the devastation of Hurricane Katrina brings to the fore a bit of relative arcana, the Posse Comitatus Act. First, before we go into the history and modern application of the Act, let’s define a few terms.”Posse” invokes the image of guys in white hats on thundering steeds, Winchesters in their saddlebags, chasing down some evil scofflaw and, at least in part, the image is apt. “Posse,” from the Medieval Latin, means “power” or “force,” and derives from the same word as “potent.” It usually connotes a “force” or body of men. “Comitatus,” also from the Latin, means “country.” Taken together, then, “posse comitatus” means “the power or force of the country,” generally manifested as a force under arms.Passed in 1878 as part of a military appropriations act, the Posse Comitatus Act provides, among other things, that it is unlawful to employ any part of the Army of the United States for the purpose of executing the laws, except in cases and such circumstances as such employment may be expressly authorized by the Constitution or by an act of Congress. In other words, federal troops cannot be used to enforce the laws within the various states unless the Constitution or an act of Congress so provides. This harkens back, of course, to the primary dichotomy between federalism and state’s rights.Although the original Act referred only to the Army, the Air Force was added in 1956, and the Navy and the Marine Corps have been included by a regulation of the Department of Defense. The Act does not apply to the Coast Guard nor the National Guard while under the authority of the governor of the state.In essence, the Act defines the role of the US Military in our lives and keeps us from becoming little more than a wealthy banana republic. The Act prohibits the American military from acting as a domestic police force.By the way, none of this should be confused with the Posse Comitatus organization which is an avowed racists, white-supremacist group aligned with the Aryan Nation, a modern day spin-off of the Nazis, which has absconded with the name and made it their own. Other than the name, the Act and the group have no association.Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of Reconstruction, and to ensure that any lingering vestiges of rebellion were thwarted. However, in accomplishing those goals, the Army increasingly became involved in traditional police roles and in enforcing the politically volatile and unpopular mandates of Reconstruction. The stationing of federal troops at political events and polling places under the rubric of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original mission to defend our shores from outside threat. The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its intended role.Despite the noble lineage of the Act, in truth the Act has been eroded over time, particularly since the early 1980s, starting first, with an exception allowing use of federal troops for drug interdiction at our borders. The 1995 bombing of the Murrah Federal Building Oklahoma City led President Clinton to propose a further exception to the Act to allow the military to aid civilian authorities in investigations involving “weapons of mass destruction.”Further erosion of the Act has taken place through the device of the various federal Civil Disturbance Statutes whose provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. In case of civil disturbance, the president must first give an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles Rodney King race riots of the early 1990s. Federal military personnel may also be used pursuant to the Stafford Act, in times of natural disaster, upon request from a state governor. This is, of course, where Hurricane Katrina and Governor Kathleen Babineaux Blanco come in. In such an instance, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. But only if formally asked to do so by the governor. What at least some of the finger-pointing was about, then, was Governor Blanco’s unheeded, and perhaps improperly articulated, cry for help in the immediate devastating aftermath of Hurricane Katrina and the White House’s (some would say after-the-fact) claim that its hands were tied owing, in significant part, to the strictures of the Posse Comitatus Act.While the Act has been raised from obscurity by the recent natural disasters, it has crept more quietly into the debate of legal scholars and policy wonks in the wake of 9-11, enactment of the Patriot Act, and the recent heightened focus on homeland security. While, clearly, the Act must evolve with modern times, we would do well to remember its origins and the innumerable tragic lessons of history which guided the Framers in delimiting the breadth and reach of military might and the tyranny that such might, unchecked, can usher in despite the best intentions to the contrary.Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a formeradjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins can be reached at 926-4461 or at robbins@colorado.net.Vail, Colorado


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