Posse Comitatus and the Shield of Achilles

In the aftermath of Hurricanes Katrina and Rita, and in anticipation of any possible catastrophic terrorist attack, there’s been a lot of talk lately about revising the Posse Comitatus Act of 1878. (See here and here.) The Act (as amended) explicitly prohibits the use of the Army or Air Force for civilian law enforcement. It reads in whole:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Although this is a criminal statute prohibiting the use of the Army or Air Force by civilian authorities for law enforcement, it has come to be viewed as a more general policy statement concerning the limits of military authority in the civilian sphere. As such, DoD regulations have directed the Navy and Marine Corps to act as if the Posse Comitatus Act applied to them as well.

Col. John Brinkerhoff, (USAF ret.) who is a former Associate Director of FEMA, has described this shifting interpretation of the Posse Comitatus Act. He argues that the Act, as written, is vague and imprecise and a more thorough modern statute is needed to properly define the military/civilian relationship in today’s terms.

While the Act may be vague, there is disagreement as to whether the proper response is a loosening to allow broader use of military personnel. Major Craig Trebilcock has written that “The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues.”

Perhaps stemming from this sense that the Posse Comitatus Act has already been gutted, there are others who argue that rather than loosening the Act, its original conception must be reaffirmed. A student note from a 1997 issue of the Washington University Law Quarterly argues why any relaxation of the Act is a bad idea. Military analyst Austin Bay is also wary of weakening the Act, arguing that while the military is very good at providing emergency communications and transportation assets, usurping the responsibilities of state and local officials is a mistake. As he explains, “Local and state authorities have both the intimate and institutional knowledge that translates into better crisis planning and better crisis improvisation.”

The arguments against a weakening of the Act generally boil down to (a) we don’t want to go down a slippery slope in allowing increased military involvement in civilian affairs and (b) local law enforcement is better at most of this stuff anyway.

This is an important issue that can set the tone for how we respond to future crises ranging from terrorist attacks to natural disasters to riots. Even complex criminal investigations. In The Shield of Achilles author Philip Bobbitt, a scholar and practitioner in national security and constitutional law, argued that the interplay of law, history, and strategy defines how states organize themselves. As military threats and strategies evolve, so do states. The possible revision of the Posse Comitatus Act is part of a larger debate as to whether we have struck the right balance in the allocation of powers in the face of current threats. The arguments that are made as part of this discussion, as well as the result itself, may tell us much about how we are—or are not—being changed by recent events.