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Saturday, February 1, 2003

Blurring the Civilian-Military Line

Should Domestic Law Enforcement Be Militarized?

Gene Healy is senior editor at the Cato Institute.

The soldier’s mission, as soldiers often phrase it, is “killing people and breaking things,” and they’re trained accordingly. In contrast, police officers, ideally, are trained to operate in an environment where constitutional rights apply and to use force only as a last resort. Accordingly, Americans going back at least to the Boston Massacre of 1770 have understood the importance of keeping the military out of domestic law enforcement. That understanding is reflected in the Posse Comitatus Act (PCA) of 1878, which makes it a criminal offense to use U.S. military personnel as a police force.

The phrase “posse comitatus,” Latin for “the power or force of the county,” refers to the sheriff’s common-law power to call on the male population of a county for assistance in enforcing the laws. The PCA forbids law-enforcement officials from employing the U.S. military for that purpose. Congress passed the act in response to perceived abuses associated with the practice of using U.S. Army troops to police the Reconstruction-era southern states. But the PCA has a policy rationale that transcends its particular origins; as one federal court explained: “It is the nature of their primary mission that military personnel must be trained to operate under circumstances where the protection of constitutional freedoms cannot receive the consideration needed in order to assure their preservation. The posse comitatus statute is intended to meet that danger.”

In the year since the terror attacks of September 11, however, we’ve heard a slowly building chorus of calls to amend or weaken the act and to give the U.S. military a hands-on role in domestic security. In October 2001, Senator John Warner, ranking Republican on the Senate Armed Services Committee, told Deputy Secretary of Defense Paul Wolfowitz that the posse comitatus principle may have outlived its usefulness; Wolfowitz agreed. Though Secretary of Defense Donald Rumsfeld had insisted that there was no plan to seek changes in the law, in July 2002 the White House released its National Strategy for Homeland Security, which called for a “thorough review of the laws permitting the military to act within the United States.” Perhaps most troubling were the comments of General Ralph E. Eberhardt, head of the newly designated Northern Command, which directs all military forces within the United States: “We should always be reviewing things like Posse Comitatus and other laws if we think it ties our hands in protecting the American people.”

Of course, where appropriate, we want constitutional and statutory constraints to “tie the hands” of the authorities in their pursuit of domestic security. Safety and security are not the only ends of government—as Lord Acton reminds us, liberty is our highest political end. The Posse Comitatus Act is, alas, a weak and porous barrier to military involvement in domestic law enforcement, but it’s designed to protect both our liberty and our safety. Changed circumstances after September 11 provide no compelling reason to weaken it further.

To understand just how implausible it is to suggest that the PCA ties the military’s hands domestically, it’s necessary to understand how the PCA works. The statute makes it a criminal offense for anyone to use U.S. armed forces to “execut[e] the laws.” But this does not bar any and all uses of armed soldiers for domestic law enforcement. First, the courts have held that “executing the laws” consists of hands-on policing: searching, arresting, and coercing citizens. Thus, the act does not prohibit the military from providing equipment, advice, and training to civilian authorities—even though such civil-military cooperation often works to inculcate a dangerous warrior ethos among domestic peace officers.

Second, the PCA applies only to federal troops: army regulars and federalized National Guardsmen. If Guard units remain under the command of state governors, the PCA is unoffended—even if injudicious use of troops leads to events like the killing of four students at Kent State in 1970.

Third, the act does not bar the use of federal troops even for hands-on policing, so long as Congress has passed a statutory exception to the PCA—and there are statutory exceptions in place that permit the military to operate domestically where an attack with weapons of mass destruction threatens imminent loss of human life. Finally, even though the act has clearly been violated any number of times since its passage, no one has ever been prosecuted for violating it.

How Would the Military Be Used?

To date, none of the prominent public figures calling for a revision of PCA have explained what sorts of operations they want the military to carry out in the domestic fight against terrorism. Putting aside fears about collateral damage to civilians from the deployment on the home front of troops trained to fight wars—where would it make sense from a security standpoint? No one—not Warner, not Wolfowitz, not Eberhardt—has come forward with a specific example of a situation in which soldiers should be given arrest authority.

Nor should that be surprising: it’s difficult to think of a domestic situation where military deployment would be useful in corralling terrorists. How can U.S. troops be effectively employed at home to prevent a shoe-bomber, a hijacker, or the release of nerve gas in a subway system? The cruel genius of asymmetric warfare is that it operates to neutralize the advantages the U.S. army enjoys against any conventional foe.

The U.S. military is the most effective in the world, but it’s nonetheless a blunt instrument—devastating in set-piece battles, but ill-suited to a home-front fight against al Qaeda saboteurs and assassins. That point was perhaps best illustrated on Thanksgiving weekend in 2001, when authorities in Florida stationed a tank outside Miami International Airport, as if the next terror attack would come in the form of an al Qaeda mechanized column.

And the very bluntness of the military instrument makes it a dangerous tool to employ on American soil. The legacy of American military involvement in domestic affairs is not a proud one. As constitutional scholar David Kopel has noted, the U.S. army has been used repeatedly to suppress unionization and break up strikes, as in 1899 at Coeur d’Alene, Idaho, when military forces imposed martial law on the area for two years. President Truman’s unconstitutional seizure of U.S. steel mills during the Korean War was carried out by the U.S. Army. More recently, in 1981, Congress passed legislation designed to increase military involvement in the war on drugs.

Misuse of this authority helped lead to the 1993 tragedy in Waco, Texas. Federal law enforcement authorities used false allegations of methamphetamine trafficking by the Branch Davidians to obtain military hardware and personnel. Indeed, it was U.S. Army Delta Force commanders who advised federal agents to launch a tank assault against the Branch Davidians’ dwellings. The result was more than 80 dead, including 27 children. And in 1997, a Marine anti-drug patrol shot and killed high-school student Esquiel Hernandez, who was shooting a .22 caliber rifle while tending goats on his own farm in Texas near the Mexican border. The Justice Department paid out $1.9 million to the Hernandez family as settlement of a wrongful death lawsuit.

Despite the dangers that inevitably accompany the use of soldiers as police forces, civil-military separation continues to erode. Because the U.S. military is so devastatingly effective in the fights it’s designed for, public officials have increasingly sought to employ it for fights it’s not. Most recently, during the month-long hunt for the Washington, D.C.-area sniper, Secretary of Defense Donald Rumsfeld approved the use of Army RC-7 surveillance aircraft to find the killer terrorizing greater Washington. The low-flying planes, crammed with $17 million worth of infrared sensors and other surveillance technologies, are typically used for tasks like monitoring troop movements around the DMZ on the Korean Peninsula. Federal officials argued that they could help pinpoint the sniper’s location.

Old-Fashioned Police Work

At the time, however, constitutional scholar and criminal-justice expert Stephen Halbrook predicted that when the sniper was caught, it would not be through use of high-tech military hardware, but through old-fashioned police work. Halbrook was right. In the end, the killers’ greed, a credit-card number, a fingerprint, ballistics work, and a witness identification of the car at a rest stop in Maryland led to the arrest of John Allen Muhammad and John Lee Malvo.

What should we make of federal officials’ readiness to use the military to solve a domestic murder spree with no solid connection to international terrorism? First, it should be noted that use of the Army planes did not violate the PCA. If the Army had employed Delta Force counter-snipers on the ground, hunting Muhammad and Malvo, that would have been a clear violation of the Act and a serious threat to civil-military separation. But as noted, the courts define “executing the laws” as arresting, shooting, searching, and laying hands on or coercing citizens; they have not held that provision of advice or equipment constitutes execution of the laws in violation of the PCA.

That does not mean that Pentagon involvement in the sniper hunt is no cause for concern, however. Federal officials’ eagerness to seek military help in this case suggests that we’ll see more military involvement in high-profile investigations in the future. As former U.S. Representative Bob Barr put it, “If you use this as a precedent, where do you then draw the line? The next time you have a sniper, do you bring the military in after two deaths?” And even where the military’s role is limited to advice, training, and provision of equipment, the erosion of the civilian-military line is troubling. After all, to the best of our knowledge, Army personnel at Waco limited themselves to provision of equipment and advice. Even that limited involvement helped lead to the greatest disaster in U.S. law-enforcement history.

Increasingly, public officials are coming to view militarization of law enforcement not as a last resort for situations in which civil order breaks down entirely, but as a panacea to be used whenever public safety is threatened. In the midst of the sniper ordeal, then-Maryland Governor Parris Glendening announced he was considering using the National Guard to provide security at polling stations on election day. Put aside concerns about effectiveness (the snipers shot one victim who was standing less than 50 yards from a Virginia state trooper) and collateral damage to innocents (what, after all, are soldiers trained to do when they come under fire by a sniper?): consider the ominous image of armed soldiers surrounding polling places. It’s an image one normally associates with a banana republic, not a free, democratic one.

  • Gene Healy is a vice president at the Cato Institute. His research interests include executive power and the role of the presidency, as well as federalism and overcriminalization.