The View From 1776

Posse Comitatus in America
By Melanie K. Wooten

The phrase “posse comitatus” is Latin and translates as “posse of the county”.  In the common law it was defined as:

The power or force of the county.  The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc.— BLACK’S LAW DICTIONARY 1162 (6th ed.  1990).

The British historically used their military to assist the civil authorities in times of riot or other large or unusual circumstances when additional manpower was needed.  When the American colonists began to openly disobey tax and customs laws, the British authorities sought assistance from their military forces to enforce law.  Naval vessels were used to catch smugglers at sea, and the army to conduct operations on shore.

A number of the colonists’ complaints are reflected in the Declaration of Independence, and corrected by provisions in the Constitution and Bill of Rights.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

Constitution, Article I, Section 8 [Congress has power to declare war, raise armies, etc.]

He has affected to render the Military independent of and superior to the Civil power.

Constitution, Articles I and II [Congressional power to raise, govern and pay for an army and navy; President as Commander in Chief; Writ of Habeas Corpus may only be suspended in times of rebellion or invasion (i.e.  Courts can free people held by the military)]

Amendment V [Grand Jury indictment in criminal cases except when serving in the armed forces --- effectively limits citizens being subject to martial law or a military courts-martial].

For Quartering large bodies of armed troops among us:

Constitution, Amendment III.  [No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.]

Although Americans did not like the idea of soldiers enforcing the law, it is not prohibited by the Constitution.  The militia has always been a source of manpower for the states to use in times of trouble.  The regular army was used a number of times to enforce the civil law:

1787 Shays Rebellion Massachusetts

1794 Whiskey Rebellion Pennsylvania.

1807 Congress declares the army the enforcer of federal law.

1846 Anti-Catholic Riots in Philadelphia.

1850s "Bloody Kansas” Battles between Free-Staters and pro-slavery forces.

1854 U.S.  Attorney General Caleb Cushing issues an opinion stating that all citizens, including soldiers, are subject to the call of federal authorities as a posse comitatus.  The Army and Navy were then used to enforce the Fugitive Slave Act, and return escaped slaves to their owners.

1859 U.S. Marines under Army Colonel Robert E.  Lee capture John Brown at the Harpers Ferry Arsenal.  Brown was turned over to Virginia authorities, tried, and hanged.

1861 1863 - Draft Riots in New York City were put down by troops fresh from the Battle of Gettysburg.

1865 to 1877 - Reconstruction and occupation of the defeated South.

It was the election of 1876 that led to passage of the Posse Comitatus Act.  Rutherford Hayes won the Presidency by only one electoral vote.  Hayes got the electoral college votes in highly disputed elections in three southern states.  President Ulysses S.  Grant had sent federal troops to assist officials in those states as a posse comitatus to supervise the election.

Posse Comitatus Act of 1878

“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.” 18 U.S.C.1385.

Obviously, the original 1878 Act did not mention the Air Force.  Note that the Act does not apply to the Navy, the Marine Corps, or the Coast Guard.  Department of Defense policy and regulations subject the Navy and the Marine Corps to the same posse comitatus restrictions imposed on the Army and Air Force.  The Coast Guard is authorized by law to enforce various federal laws, and can and does routinely make arrests and otherwise enforce the civil law.

Current Posse Comitatus Act Issues

One thing to keep in mind is the difference between the National Guard, the Reserves, and Regular forces.  The National Guard is a state entity, albeit federally funded in large part.  The Posse Comitatus Act (PCA) does not apply to the National Guard when acting as a state organization.  A governor can use the National Guard to control riots.  However, if the National Guard is “federalized” - called into federal service - the PCA would apply.  The Reserve and Regular components of the armed forces are always federal and are always subject to the PCA and implementing regulations.

The PCA has a number of exceptions created by subsequent legislation.  The first allows passive assistance to civilian law enforcement authorities - equipment, supplies, training, information, and technical assistance.  The Congress has also passed a number of laws specifically authorizing the military to enforce certain laws.

The majority of these exceptions will not impact the ordinary citizen.  However, the military is authorized to serve warrants in civil rights cases where state officials refuse to act.

The official U.S. position is that the Constitution specifically authorizes use of military forces:

• "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 to such an extent that duly constituted local authorities are unable to control the situation.”

• "to protect Federal property and Federal Government functions when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection.” DOD Directive 5525.

The Congress has also expanded the military role in the war on drugs by placing the Department of Defense in charge of the detection and monitoring of aerial and maritime transit of illegal drugs into the United States, including its possessions, territories and commonwealths.  DoD is further tasked with integrating the command, control, communications and technical intelligence assets of the United States that are dedicated to the interdiction of illegal drugs into an effective communications network.