Background on "Posse Comitatus" (was Re: firing a high-powered...)

[Declan McCullagh]

At 03:53 PM 10/5/01 -0700, Tim May wrote:
>It's called "Posse Commitatus," and it's clear that troops cannot be used 
>on U.S. soil.

Tim knows all about this, of course, but for the benefit of the folks who 
may not, here's an excerpt from an article I co-authored a few years ago.

-Declan

[...]
With the end of the cold war, it would have made sense for the U.S. 
military to shrink. Retired Army chief of staff Edward Meyer told a 
Washington Post reporter in 1989 that "the end of the cold war makes it 
inevitable that the Army will shrink far below the 772,000 on duty today."
It didn't. Supporters of an expansive U.S. military have spent the last 
decade finding something for it to do. In the 1980s, Congress amended the 
Posse Comitatus Act of 1878  which restricts the use of troops to enforce 
civilian laws  to let the president enlist the military in the War on 
Drugs. President Reagan in 1986 signed a national security decision 
directive declaring drug trafficking a threat to the security of the United 
States.
The framers of the Constitution opposed standing armies in general, and 
especially their use for any purpose other than defending the country 
against foreign enemies. It was the arrest of civilians by the British 
army, quartering of soldiers in private homes, and similarly incendiary 
tactics that provided the tinder that sparked the American Revolution.
Less than a century later, President Lincoln usurped constitutional 
authority in well-chronicled ways. His justification: The inherent power of 
the commander-in-chief and his duty to "take Care that the Laws be 
faithfully Executed." During the Civil War and Reconstruction, the arrest 
and trial of civilians by military and civilian courts  and the impotence 
of civilian courts when the military refused to respect orders of habeas 
corpus  led to the passage of the Posse Comitatus Act.
Since that time, understanding of the dangers of deploying the military in 
the domestic arena has diminished. Francis Mullen, administrator of the 
Drug Enforcement Agency, once casually dismissed civil libertarians' 
concerns about potential abuses if the military joined law enforcement. 
"There is sufficient oversight on the part of Congress and others," he told 
a Newsweek reporter, "to deter infringement on individual liberties." A 
Democratic congressman characterized the Posse Comitatus Act as a "sinful, 
evil law." Military leaders appear more aware of the danger of deploying 
forces domestically. Marine Major General Stephen G. Olmstead, deputy 
assistant secretary of defense for drug policy, warned a Senate 
subcommittee in 1987 that calling out the military to fight the drug war 
within the U.S. would be unwise. "One of [America's] greatest strengths is 
that the military is responsive to civilian authority and that we do not 
allow the Army, Navy, and the Marines and the Air Force to be a police 
force. History is replete with countries that allowed that to happen. 
Disaster is the result."
Use of military procedure by FBI agents proved disastrous at Ruby Ridge. 
Vicky Weaver was murdered in part because the officers who shot her were 
governed by military rules of engagement. They allow troops to shoot an 
enemy on sight  a far cry from the rules controlling domestic law 
enforcement. At Ruby Ridge the rules of engagement let officers fire at any 
armed adult, rather than engage in usual threat assessment.
Even though using the military to perform civilian functions is 
extraordinarily dangerous, the Posse Comitatus Act has gradually been 
eroded. The Stafford Act of 1984 allows the military to help during natural 
disasters. After a natural disaster, a governor can ask the president to 
declare a state of emergency. Once it declares an emergency, FEMA can 
deploy soldiers on active duty. In August of 1992, the Army was deployed in 
South Florida to respond to Hurricane Andrew, and a month later on the 
island of Kauai after Hurricane Iniki.
Since the Posse Comitatus Act remained in effect during this time, soldiers 
could not enforce the law, arrest or detain civilians, or serve search 
warrants. In South Florida the soldiers doled out aid to citizens and 
illegal immigrants alike, no questions asked. Active-duty soldiers were not 
permitted to provide security at relief centers occupied by civilians.
When it comes to the use of troops to restore order during riots, however, 
the president can suspend the Posse Comitatus Act at the stroke of a pen. 
The act doesn't cover soldiers deployed as authorized by the Constitution 
or exempted from the act by statute. Defense Department regulations* 
outline one of the larger loopholes. It allows the use of soldiers "to 
prevent loss of life or wanton destruction of property and to restore 
governmental functioning and public order when sudden and unexpected civil 
disturbances, disaster, or calamities seriously endanger life and property 
and disrupt normal governmental functions."
The reality? The president can deploy troops whenever he feels like it. 
President Bush did just this in response to the the Los Angeles riots. On 
April 29, 1992, the jury released its verdict in the Rodney King trial. A 
wave of riots followed. On May 1, 1992, California asked the president for 
aid; Bush responded with an executive order allowing the secretary of 
defense to call out the Army.
[...]

* DoD Directive 3025.12.