| US Military Dictionary: Posse Comitatus Act |
A law enacted in 1878 to prohibit the use of the U.S. army in civilian law enforcement, unless otherwise instructed by the president, thereby excluding the military from the civilian sphere. After President Ulysses S. Grant sent a posse comitatus to the polls in the election of 1876, it was presented by Southern Democratic members of the House who resented the use of federal troops during Reconstruction.
See the Introduction, Abbreviations and Pronunciation for further details.
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Act of Congress:
Posse Comitatus Act (1878) |
Posse comitatus means "the power or force of the county." The term refers to a doctrine of ancient English common law authorizing a sheriff to summon the assistance of the able-bodied male population above the age of 15. Appointed special deputies, these men would aid the sheriff in keeping the peace, executing writs, quelling riots, capturing felons, and otherwise enforcing the laws. Unlike the organized militia, a posse was usually gathered as needed. The practice continued in the United States, as the posse became a necessary American colonial and frontier tradition.
History Leading Up to the Act
Before 1878, it was common for the United States Army to enforce civilian laws. In frontier territories, the army was often the only source of law enforcement, supplemented by occasional U.S. Marshals. Over time, marshals and county sheriffs regularly called upon the army to assist in enforcing the laws. In 1854, for example, the U.S. attorney general wrote that the posse comitatus includes every male person above the age of 15, including the military:
Whatever may be their occupation, whether civilian or not, and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.
Soldiers were called upon to assist in catching fugitive slaves, as well as to guard polling places in federal elections. During the Reconstruction period that followed the Civil War, the army, initially under the command of General Ulysses S. Grant (who was later elected president), occupied the South.
By the time of the 1876 presidential election, Southern states were reconstituted. Many Southerners opposed both Grant, the outgoing Republican president, and Rutherford B. Hayes, the Republican presidential candidate. Federal troops actively assisted U.S. Marshals in patrolling and monitoring polling places in the South, claiming to be enforcing the federal election laws and preventing former Confederate officers from voting (as was the law at that time). Following bitter election contests in four Southern states, Hayes won the presidency by one electoral vote. Many felt that the federal troops, which supported Hayes and the Reconstructionist Republican candidates for Congress, intimidated Southerners who would have voted for Samuel Tilden, the Democratic candidate.
The resulting Democratic Congress was at odds with the Republican President Hayes. In response to what was seen as undue influence over the 1876 election, Congress outlawed the practice of posse comitatus by enacting the Posse Comitatus Act (PCA) (as 20 Stat. 152) as a rider to the Army Appropriation Act for 1880. The act stated: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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."
Congressional debates indicate that the PCA was intended to stop army troops from answering the call of a marshal to perform direct law enforcement duties and aid in execution of the law. Further legislative history indicates that the more immediate objective was to put an end to the use of federal troops to police elections in ex-Confederate states where civil power had been reestablished.
Significantly, President Hayes vetoed the act because it "makes a vital change in the election laws of the country, which is in no way connected to the use of the Army." Congress overrode the veto. Accordingly, the willful use of the army or air force as a posse comitatus or otherwise to execute the laws is a felony, unless the use is expressly authorized by the Constitution or an act of Congress.
Units and Actions Covered By the Act
The PCA directly applies only to the army and air force, without mentioning the navy, the Marine Corps, the Coast Guard, or the National Guard. The National Guard is subject to Article I, section 8 of the Constitution, "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." The National Guard is under state control until called into federal service, and is authorized to enforce the laws upon the request of a governor.
Because the Coast Guard has a law enforcement function and is not under the control of the Department of Defense, it is not subject to the PCA. Although the naval service is not mentioned in the PCA, Department of Defense regulations extend the PCA to the navy and Marine Corps.
Although the president has constitutional power to use the military to protect the nation in time of emergency and to repel invasions, in the Civil Disturbance Statutes Congress expressly authorized the president to use the armed forces under emergency circumstances. Where there is an insurrection in a state against its government, the president may, in addition to calling out the militia, "use such of the armed forces as he considers necessary to suppress the insurrection." Also, the president may use the armed forces to suppress a rebellion, insurrection, domestic violence, or unlawful conspiracy that obstructs the execution of the laws of the United States or deprives the people of the United States from their constitutional rights, privileges, and immunities. These statutes were relied on to authorize the use of federal troops to enforce federal court orders for school desegregation in Arkansas (1957), Mississippi (1962), and Alabama (1963), as well as to assist the National Guard in quelling urban riots.
Other statutory exceptions allow active use of the armed forces to remove persons wrongfully settling on Native American lands, and in emergency situations to actively enforce federal laws prohibiting the illegal possession and use of radioactive material. Other laws allow the president to direct the armed forces actively to enforce specific federal laws.
The PCA was originally intended to eliminate the direct active use of federal troops by law enforcement officers. The act does not prohibit the use of military supplies or equipment. To this end, Congress passed various laws expressly authorizing the use of military equipment and supplies by civilian law enforcement, with the accompanying use of military personnel to maintain and operate the equipment being used in civilian law enforcement. For example, military drug-sniffing dogs were designated as equipment, and military dog handlers operating the equipment have been lent to the Drug Enforcement Agency and other law enforcement agencies. Military equipment may be used for aerial reconnaissance, interception of aircraft and vessels, and in operations against terrorists, drug traffickers, prohibited narcotics and drugs, weapons of mass destruction, and components of weapons of mass destruction. Additionally, the military may share with civilian law enforcement "any information collected during the normal course of military training or operations that may be relevant to a violation of any federal or state law within the jurisdiction of such officials."
Ongoing Debate
Debate is ongoing as to whether the PCA should be repealed, moderated, or strengthened. Some argue that the act should be repealed because the federal government needs the full force of a flexible military to combat terrorism within the territorial United States. Others suggest the act is obsolete and should be repealed because numerous legislative exemptions have eroded the underlying policy and left the PCA a hollow shell. Others insist that although there are many exceptions, the act is essential to bar misuse of the military by civilian authorities and to prevent a military dictatorship from assuming control of the nation through use of the armed forces. Still others argue that the act means only that federal military forces may not be commandeered by civilian authorities for use in active and direct law enforcement as a posse comitatus. If local authorities need military personnel for specialized operations enforcing state laws, it is argued, they may call on the state governor for the assistance of the state National Guard.
Bibliography
Baker, Bonnie."The Origins of the Posse Comitatus." Air and Space Power Chronicles (1999). Online at
Hammond, Matthew Carlton. "The Posse Comitatus Act: A Principle in Need of Renewal." 75 Washington University Law Quarterly 953 (1997). Online at
Library Notes on Posse Comitatus (2002). Naval War College.
Quillen, Chris. "Posse Comitatus and Nuclear Terrorism, Spring 2002 Parameters." U.S. Army War College Quarterly 60 (2002). U.S Army.
Trebilcock, Major Craig T. "The Myth of Posse Comitatus." Journal of Homeland Security (2000).
| Military Dictionary: Posse Comitatus Act |
(DOD) Prohibits search, seizure, or arrest powers to US military personnel. Amended in 1981 under Public Law 97-86 to permit increased Department of Defense support of drug interdiction and other law enforcement activities. (Title 18, "Use of Army and Air Force as Posse Comitatus" - United States Code, Section 1385)
| Wikipedia: Posse Comitatus Act |
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This article needs additional citations for verification. Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (December 2008) |
The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385) passed on June 18, 1878, after the end of Reconstruction, with the intention (in concert with the Insurrection Act of 1807) of substantially limiting the powers of the federal government to use the military for law enforcement. The Act prohibits most members of the federal uniformed services (today the Army, Air Force, and State National Guard forces when such are called into federal service) from exercising nominally state law enforcement, police, or peace officer powers that maintain "law and order" on non-federal property (states and their counties and municipal divisions) within the United States.
The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act during peacetime.
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The Act was a response to, and subsequent prohibition of, the military occupation by U.S. Army troops of the former Confederate States during the ten years of Reconstruction (1867–1877) following the American Civil War (1861–1865). The U.S. withdrew Federal troops from Southern states as a result of a compromise in one of the most disputed national elections in American history, the 1876 U.S. presidential election. Samuel J. Tilden of New York, the Democratic candidate, defeated Republican candidate Rutherford B. Hayes of Ohio in the popular vote. Tilden garnered 184 electoral votes to Hayes' 165; 20 disputed electoral votes remained uncounted. After a bitter fight, Congress struck a deal resolving the dispute and awarding the presidency to Hayes.
In return for Southern acquiescence regarding Hayes, Republicans agreed to support the withdrawal of federal troops from the former Confederate states, ending Reconstruction. Known as the Compromise of 1877, this deal of political expediency removed federal protection for Southern ex-slaves.[1] The U.S. Constitution places primary responsibility for the holding of elections in the hands of the individual states. The maintenance of peace, conduction of orderly elections, and prosecution of unlawful actions are all state responsibilities, pursuant to the states' primary job of exercising police power and maintaining law and order.
During the local, state, and federal elections of 1874 and 1876 in the former Confederate states, all levels of government chose not to exercise their police powers to maintain law and order.[citation needed] Many acts of violence, and a suppression of the vote of some political and racial groups, resulted in the election of state legislators and U.S. congressmen who halted and reversed political reform in the American South.[1]
When the U.S. Representatives and Senators from the former Confederate states reached Washington, they set as a priority the creation of a statute prohibiting any future President or Congress from directing, by military order or federal legislation, the imposition of federal troops in any U.S. state.
The original Posse Comitatus Act referred essentially to the United States 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 United States Coast Guard, when acting in its peacetime capacity (originally as part of the Treasury Department, later the Department of Transportation, and now within the Department of Homeland Security), is not included in the Act. However, if, in wartime, a portion of the Coast Guard were subsumed within the Department of the Navy, as it was during World War II, that portion would lose its federal police power authority and responsibility over the federal law enforcement duties of its civilian mission. This law is often relied upon to prevent the Department of Defense from interfering in domestic law enforcement.[2]
The text of the relevant legislation is as follows:
Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):
On September 26, 2006, President Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, in the wake of Hurricane Katrina.
These changes were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006.[3]
Section 1076 is titled "Use of the Armed Forces in major public emergencies". It provided that:
The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.[4]
In 2008, these changes were repealed in their entirety, reverting to the previous wording of the Insurrection Act.[5]
There are a number of situations in which the Act does not apply. These include:
Although it is a military force,[6] the U.S. Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act. The Coast Guard enforces U.S. laws, even when operating as a service for the U.S. Navy.
In December 1981, additional laws were enacted clarifying permissible military assistance to civilian law enforcement agencies and the Coast Guard, especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (e.g., use of facilities, vessels, and aircraft, as well as intelligence support, technological aid, and surveillance) while generally prohibiting direct participation of Department of Defense personnel in law enforcement (e.g., search, seizure, and arrests). For example, a U.S. Navy vessel may be used to track, follow, and stop a vessel suspected of drug smuggling, but Coast Guard Law Enforcement Detachments (LEDETS) aboard the Navy vessel would perform the actual boarding and, if needed, arrest the crew.[citation needed]
On October 1, 2008, the US Army announced that the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command (NORTHCOM), as an on-call federal response force for natural or man-made emergencies and disasters, including terrorist attacks.
This marks the first time an active U.S. Army unit will be given a dedicated assignment to NORTHCOM, where it is stated they may be "called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack." These soldiers will also learn how to use non-lethal weapons designed to "subdue unruly or dangerous individuals" without killing them, and also includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and beanbag bullets.[7] however, the "non-lethal crowd control package [...] is intended for use on deployments to the war zone, not in the U.S. [...]".[7]
The US military will have around 20,000 uniformed personnel in this role in the United States by 2011, specifically trained and equipped to assist state and local government, respond to major disasters, terrorist attack, other major public emergencies.[8] This shift in strategy is a result of recommendations by Congress and outside experts.[8] This response capability is not new, but now accompanies a permanent assignment of forces to NORTHCOM.
This formalizes a role for the use of federal troops within the United States during major public emergencies and disasters, as was the case in the aftermath of Hurricane Katrina in 2005.[7] This has raised concern about the relationship between Posse Comitatus and the use of the military in domestic disaster support and homeland defense roles.[9] however, federal military forces have a long history of domestic roles, including the occupation of sovereign Southern states during Reconstruction and the confiscation of private firearms in the Katrina aftermath.[10] The Posse Comitatus Act prohibits the use of federal military forces to "execute the laws"; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to conventional law enforcement.[1]
On December 10, 2008, the California Highway Patrol announced its officers, along with San Bernadino Sheriff's Department deputies and US Marine Corps Military Police, would jointly staff some sobriety and drivers license checkpoints.[11] however, the Marines at the checkpoints are not arresting individuals or enforcing any laws, which would be a violation of the Posse Comitatus Act.[12] A spokesperson said that the Marines were present to observe the checkpoint to learn how to conduct checkpoints on base, to help combat the problem of Marines driving under the influence. The Marines at a recent checkpoint learned techniques to conduct sobriety checkpoints and field sobriety tests.[12]
On March 10, 2009, active duty Army military police troops from Fort Rucker were deployed to Samson, Alabama in response to a murder spree. Samson police officials confirmed the troops' presence, but it remains unclear who requested the troops and under what authority they were deployed. The governor of Alabama did not request military assistance and President Obama did not authorize their deployment. According to police officials, the soldiers were involved in traffic control and securing the crime scene. An investigation into possible violations of several federal laws including the Posse Comitatus Act, is underway.[13]
In late June, of 2009, a Freedom of Information Act request was filed by John Greenewald, Jr. of The Black Vault in order to obtain records pertaining to this event. Although it appeared that the investigation into who initiated the event was ongoing, the papers, specifically the officer's duty logs, clearly stated who made the phone call. For the public, it remained a mystery. The name was redacted, and whited out, under the FOIA exemption known as (b)(6), withheld for privacy, along with the names of the twenty-two MPs who hit the streets.[14]
Posse Comitatus (Latin): Power of the county. The whole force of the county: that is, all the male members of a county over fifteen, who may be summoned by a sheriff to assist in preventing a riot, the rescue of prisoners, or other unlawful disorders. Clergymen, peers, and the infirm are exempt.[15]
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This article includes a list of references or external links, but its sources remain unclear because it has insufficient inline citations. Please help to improve this article by introducing more precise citations where appropriate. (December 2008) |
Lindorff, David. "Could It Happen Here?". Mother Jones magazine, April 1988.
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