History of The Posse Comitatus Act

History of The Posse Comitatus Act

During the early years that the United States was being founded, a tradition developed that detested the Involvement of the military in civilian matters under ordinary circumstances. The Posse Comitatus Act, 18 U.S.C. Section 1385 tangibly expresses this tradition. It forbids the army and the air force from executing civilian law except when they are authorized. The term “Posse Comitatus” refers to the power or force of a country. A sheriff has a right to summon individuals that are above the age of fifteen to assist him/her in certain instances where aid is required, such as pursing and arresting felons and in keeping peace. President Rutherford B. Hayes signed the act on June 18, 1878, to limit the federal government in enforcing domestic policies through the use of federal military personnel. Congress has, for a long time approved the use of the armed forces in instances where the federal manpower has been inadequate in enforcing the law and in extraordinary circumstances. It has never been easy to strike a balance between rule and exception. Failure to do so has, however proved to be inappropriate. In the event of an unforgiving rule, a shay’s rebellion goes unchecked.

On the other hand, when exceptions are granted too generously, a Kent state tragedy or a Boston Massacre occurs. Exceptions to the rule occurred during the 9/11 terrorists attacks that were carried out against the United States. During this period, law enforcement agencies were assisted by the military to counter-terrorism. In this report, an analysis of the history of the Posse Comitatus Act and its relevance today will be provided.

History of The Posse Comitatus Act

Before the posse comitatus act was enacted in 1878, it was common and legal for the United States military to get involved in civilian law enforcement. The practice was started by President George Washington in 1794 when he instructed demolition to put an end to the whiskey Rebellion. The practice was better qualified by the judiciary act of 1789, allowing the country’ Marshalls to use the assistance of the military as a posse comitatus. Some examples of when the army was used in civilian law enforcement include the 1863 draft riots in New York, the capture of John Brown in 1859, the enforcement of fugitive slave laws in 1854, the bloody Kansas in 1850 and the uprisings against Catholics in Philadelphia in 1846. The country’s military was also continually used during the reconstruction period.

Boston Massacre

During 1768 to 1770, the City of Boston was occupied by British troops who enforced taxes and regulations intending to show British control over its colony. The atmosphere in Boston at the time was tense due to the frequent cases of violence between the troops and the townsmen. Consequently, a confrontation ensued on March 5, 1770, on King street between a detachment of soldiers and an unruly mob. The troop ended up firing on the crowd, which led to the death of five men. The event was referred to as the “Boston Massacre” and was termed as a good example that portrayed British tyranny. A trial for the officers and the troops involved in the massacre was conducted in Boston. Their defense was led by John Adams, who claimed that the troops carried out the act for purposes of self-defense. Despite the massacre, British troops continued to put an end to disorder in the city. The practice was further encouraged by the parliament when it made it less likely for the conviction of a soldier who had used excessive force when calming cases of disorder that were made by the civilians.

Five years later, the declaration of independence claimed that the improper use of standing armies and troops was one of the examples of tyranny by King George. Thomas attacked parliament and the king for keeping troops and civilians in the same location during times of peace without the permission of local legislatures; this he claimed made the military to be superior to civil power. The claim was so revolutionary that it was carried over during the establishment of the nation. It led the founders of the nation to limit the powers of the military even in scenarios where the country experienced threats from hostile Indian tribes and powerful European nations. The articles of confederation did not allow states to maintain naval vessels or raise armies during times when there was peace. It, however, allowed a disciplined and well-regulated army that was sufficiently accoutered and armed.

During the constitutional convention, the perils of armed services were further discussed. A debate ensued on whether there was a need for standing armies or whether the country’s defense would be left to the state militia. The convention allowed congress to keep a standing army. It, however, imposed various safeguards such as ensuring that the president was the head of the military and frequently reviewing military appropriations. The power to declare war was reserved to congress. The only domestic role that the army was to undertake was putting an end to any cases of rebellion. Despite all these restrictions that were put in place, the issue of standing armies remained a point of disagreement. Luther Martin, one of the delegates in the convention, stated that a standing army gives power to the government to deprive citizens of their powers, which turns them into slaves.

The federalist papers also highlight the distrust that was there between standing armies. Alexander Hamilton claimed that standing armies put citizens under military subordination, pushing them towards a monarch. He campaigned for a small force that would be put under civil authority, which would be available when it came to restoring order during extreme scenarios. His concerns were also echoed by other individuals who were afraid of a standing army. These fears made The Bill of Rights to be included in the Second amendment, which ensured that the military was decentralized but regulated and also guaranteeing that citizens have the right to keep and bear arms. The Third Amendment is also included; it prohibits troops from being quartered in any house during times of peace without permission from the owner.

During the early years after founding the nation, federal law claimed that regular troops were not allowed to execute the law. Federal marshals were empowered by The Judiciary Act of 1789 to command any assistance that they needed while performing their duties. In 1792, the president was allowed by Congress to use the military for domestic purposes but only in situations where law enforcement officers could not contain the military or in any violent internal disorder. The statute differentiates between standing armies and citizen soldiers that can be used during times of emergencies; this was an indication that Congress did not want to include the military in law enforcement matters.

Despite the distinction that was made between the regular army and the militia, with time, soldiers were still being called upon to serve in the marshal’s posse. By the mid-19th century, military personnel could participate in a posse while acting under their personal capacity. The use of a military force was also encouraged as long as the force reported to a civil authority. The civil war affected the limits that had been set for domestic military power. In 1861, new laws allowed the president to use the military or militia when he thought that it was difficult to enforce laws using the standard measures.

Reconstruction Era

The limits on the use of the military in ordinary affairs that were so crucial to the founding fathers were cast aside during the reconstruction era, allowing the military to govern the confederate states that had been defeated. The military was therefore used to enforce laws and stop disorders at the same time. The army, together with civilian deputy sheriffs, patrolled the Mexican border in search of cattle rustlers. The military was also used in the enforcement of revenue laws with individuals that had failed to pay their revenues. Other notorious cases that the military involved themselves include their involvement in local political matters and state legislative bodies

Presidential Elections

The presence of the military was unusually high in Southern states when they were used during the 1876 presidential election. The election was crucial since it helped to bring down the reconstruction era. The end of the period saw various reforms being carried out. One of the changes was in the Posse Comitatus Act. The 1876 Presidential elections are cited as the main reason why the PCA was passed. Southern states had been reconstituted during the elections. Many individuals in the South were not in support of Grant, the outgoing Republican President, and the Republican presidential candidate Rutherford B. Hayes. Federal troops were therefore sent to the South to assist US marshals in the monitoring and patrol of the polls. They claimed that they did not want former confederate officers to vote and that they were there to enforce federal election laws. The election contests were bitter in all four southern states. The elections saw Grant winning the presidency by one electoral vote. Many people felt that the presence of federal troops in the South intimidated people from voting for their preferred Democratic candidate Samuel Tilden. The result was a Republican president who was at odds with the Democratic congress. In response to the 1876 elections, the posse comitatus was outlawed, Allowing the enactment of the Posse comitatus act. (PCA)

The law restricted the military form executing any laws unless Congress had permitted it. The immediate objective of the act was to prevent the military from having any influence on the elections. The act, however, went the extra mile and restricted the roles of the army, which was the immediate aim of the founding fathers. Other individuals argued that if the military continued to enforce civilian laws, it would cause a threat in the long term since the military would be subordinated to civilian control. The Civil War also increased the tensions surrounding The Posse Comitatus act. In preparation for the Civil War, the army had to recruit many citizens to increase its numbers. Some representatives, such as Elias, were against the military’s request, claiming that an increase in the numbers of the military was the same as an increase in the numbers of the national police. This fear was propagated by frequent military involvement in law enforcement matters.

Proponents of the Posse Comitatus Act argued that it would assist in checking the power of the military and that the military was not responsible for executing civil Laws. The enforcement of civil laws by the military suggested that the government was not a free government, which made them one with the military. The proponents of the act further argued that the enforcement of civil laws by the military increased the country’s reliance on the military. They claimed that the population would also begin resenting the military.

In the end, congress allowed the involvement of the military in situations such as enforcing the Civil Rights Bill, the collection of customs duties, and the neutrality laws. All authorities were required to rely on the traditional posse comitatus, Which involved the use of the population within a jurisdiction to assist in the execution laws. In situations where the population did not want to assist the authorities in executing civil laws, the state or government was allowed to request help from the president who deployed the military to assist civil authorities in carrying out their duties and to help in restoring order. The Posse Comitatus Act was, therefore, a restriction to the use of the military by anyone without being authorized by Congress.

The proponents of the act claimed that it would restore American principles that were laid out by the founding fathers by separating military and civilian power. The opponents of the act, however, viewed it as a method aimed at crippling civilian authority and therefore increasing crime. They argued that the Bill was big and superfluous and that it was much more dangerous since it restricted laws from being enforced. The Bill was therefore amended to exclude military acts that were allowed by the constitution and to limit its application to the arm.

The statute therefore reads

Whoever, except in cases and under the 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.

The Insurrection Act was modified by Congress in 2006 to be part of the 2007 defense authorization bill. President George W Bush wanted Congress to revise the country’s federal laws to allow armed forces to enforce laws and restore public order after a terrorist incident or attack, natural disaster, or any other situation. The changes were included during the 2007 fiscal year in the John Warner national defense authorization act. These changes that had been made in the Insurrection act were however, appealed in 2008 — returning the act to its previous wording. The Insurrection act had initially been written with the purpose of limiting the president’s power in the event of lawlessness, a rebellion or Insurrection.

Coverage of The Act

Since the act references the Air Force and the army, there have been questions as to whether it applies to other military branches. In terms of the Marines and the Navy, the act does not allow the air force or the army to execute the law. The act does not mention anything about the National Guard, the coast guard, the Marine Corps, and the Navy. The courts have generally stated that the act does not apply to the Marine Corps and the Navy.

The act does not also say anything about the coast guard. The Guard forms a branch of the armed forces that can be relocated to the Navy by order from the president or in times of war. The act is only applicable to the coast guard if they remain a part of the department of homeland security. However, what it means is that it remains under the control of the secretary of the Navy or the Department of Defence.

The Act does not mention whether it covers the National Guard, regular members of the army that are off duty, civil employees, and civil air patrol. The National Guard is, however, a member of both federal and state law. As a result, the court has stated that while not in federal service, members of The National Guard are not covered by the Posse Comitatus Act. The United States Coast Guard is therefore not restricted by the posse comitatus act and is allowed to enforce federal law. This is applicable during peacetime when the coast guard is operating under the Department of Homeland Security and during Wartime when it operates within the United States Navy.

The military cooperation with the Civilian Law Enforcement Agencies Act was enacted in 1981. It provides situations in which the military and the coast guard can offer their assistance to civilian law enforcement agencies. The situations are mostly cases of drug smuggling in the country. The posse comitatus act emphasizes technical and supportive assistance such as surveillance, technological aid, intelligence, support, and the use of aircraft, vessels, and facilities.

In regards to civilian employees and acting citizens that are off duty, the act is not clear as to whether it extends to soldiers who, while off-duty help in civilian law enforcement in a manner that any citizen is expected to provide assistance. The PCA was passed by congress to respond to cases in which the military had been used in civilian law enforcement as the posse comitatus. There is however, a debate in Senate which claims that the act is not justified to strip the military on all of their civilian obligations and rights. Other individuals have questioned whether the Act applies to civilian employees of the Armed Forces. Within the policy restrictions of the Posse Comitatus Act, the DOD has issued a directive which claims that civilian employees are under the control or direct command of a military officer. It can, therefore, be concluded that civilian employees working in the military are considered as part of the military and, therefore, not take part in civilian law enforcement matters unless they are off duty.

When the Pose Comitatus Act does Not Apply

The constitution states that the only situation where the Posse comitatus act is not applicable is “in cases and under the circumstances expressly authorized by the Constitution,” 18 U.S.C. § 1385. It is, however, crucial to note that the military is not allowed by the constitution to execute any law. The exception was however, included as a face-saving compromise and that it should be ignored in most cases. The regulations which cover settling civilian disturbances using the army are not quite in-depth, they, however, allow two exceptions that are based on the constitution, these include the protection of federal properties and in cases of sudden emergencies. The court has however, not answered the question as to whether the exceptions include events where the president is acting under inherent or implied constitutional powers.

The act is not applicable in situations where Congress has expressly allowed the military to execute the law. Congress has achieved this in three ways. It has established general rules in regard to certain types of assistance. Congress has provided the armed forces with a branch of civilian law enforcement authority. It is also addressing individual circumstances and cases with legislation that is crafted more narrowly. As a result, the coast guard has been entrusted with wide-ranging law enforcement responsibilities. Secondly, Congress has, over the years, passed various particularised statutes, for instance, one which allows the president to use the armed forces in times of domestic violence and Insurrection. Congress has also enacted legislation which allows armed forces to share equipment and information with civilian law enforcement agencies.

While performing their military responsibilities, the armed forces are beyond the reach of The Posse Comitatus Act. As long as the main aim of an activity addresses a military purpose, the activity is not abandoned because it also helps in civilian law enforcement. The posse comitatus act is, however, limited to the wilful misuse of the air force or army.

Some of the posse comitatus act statutory exceptions can be found in the Insurrection Act. In these acts, Congress has granted the president purity to use the military during a civil disturbance or Insurrection. The president is therefore required to issue a proclamation in the event that it wants to use the military in civilian matters.

Geographical Application

In terms of Geographic application, The Posse Comitatus Act does not express its extraterritorial application. It is, however unlikely that the act was meant to apply beyond the limits of the United States possessions and territories. The act was enacted to respond to problems that were occurring within the United States. These problems were associated with American policies’ political processes and actions which made the military to take part in civilian law enforcement responsibilities. It, however, appears that Congress wanted the restrictions and authority of the act to apply in America and beyond its borders.

Relevance of the Posse Comitatus Act

The Posse comitatus act is still being enforced today. The law is mainly used in the fight against drugs. One of the most pertinent issue that is still facing the United Stais the war against drugs. The military is still not allowed to get involved in civil enforcement matters. They are only allowed to get involved in matters of national security such as national wars that the country takes part in, such as Iraq. The powers of the PCA were recently questioned when the current President, Donald Trump, used the military to protect the country’s border. The White House allowed troops stationed at the border to enforce civilian laws such as the use of lethal force while protecting the border. It allowed the military to protect the border through any means such as the use of little Force, temporary detention, and Crowd Control when necessary. Critics of trump argue that sending military personnel to the Southern border was a violation of the Posse Comitatus Act. The president’s act of sending the troops to the Southern border was however, not considered as a violation of the PCA since it was stated that the troops were sent to offer legislative support. The PCA allows such actions. The logistical support provided by the military involved medical help providing equipment and vehicles to the Border Patrol. The White House justified their actions by claiming that the military personnel will not be performing any law enforcement duties, which would be a violation of the Posse Comitatus Act.

The Posse Comitatus Act Is, however, still crucial since it separates civilian matters from the military. The Separation of military and civilian affairs is, therefore vital since it assists the military to have a clear purpose of its role and gives power to civilian law enforcement agencies. The act is also being used to control the powers of the president. Without the PCA , presidents will have excess power to control civilians by using the military. Such a situation would affect the country’s democratic rights. The act therefore ensures that the powers of the president are Limited.

The Posse Comitatus Act Arguments

Discussions have recently been carried out as to whether The Posse Comitatus Act should be changed. It is crucial to analyse these arguments that are in favour and against the change of the act. There are several arguments which state that the PCA should be changed. The first argument claims that the 9/11 terrorist attack changed the country’s way of life which makes it crucial for the act to be amended. Never Again is the primary phrase that is used by individuals who want future attacks to be stopped by changing the PCA. They state that the country should review the manner in which it handles terrorism, meaning that the restrictions placed on civilian-military law enforcement cooperation should be lifted. The second argument states that all of the countries’ elements of power need to be utilized in stopping any future terrorist attacks. The military should, therefore, not be excluded since it is one of the country’s elements of power. Proponents of the change believe that the United States military has the capability of stopping terrorist attacks.

The third argument states that the military and its pieces of equipment are usually underutilized, and therefore using them in the fight against domestic terrorism would be the utilization of the country’s assets. The final argument claims that since the main purpose of the military is national security, there is, therefore, no difference between national and domestic protection. They argue that the main aim of the military should be the countries first line of Defence. All these arguments, therefore, state that it does not make sense for the military not to fight all these wars in the country.

Some individuals offer their arguments that the PCA should not be changed. The first agreement has its on the tradition of the military, where it does not involve itself in civilian law enforcement matters. They claim that such involvement can be very dangerous to the country and that any restrictions should not be carried out. They desire to uphold the principles of the founding fathers when they decided to enact The Posse Comitatus Act. This group of individuals wants things to remain as they were in the past.

The second argument claims that the PCA should not be changed since it would involve mixing the military who have warrior skills in civilian law enforcement. It argues that if the military enforces the civilian laws while dealing with the public, it will not consider the rights of the individual and will lead to an escalation of violent situations. Escalation is, however, key for the military, and soldiers do not place emphasis on the rights of an individual. If authorized, they can, therefore, use excessive force, which might affect the individual. According to them, soldiers receive military exercises that prepare them for engagement during war. They do not have training on software rules which are provided to civilian law enforcement officers. Training should, therefore, be carried out if they are to be involved in domestic law enforcement operations. Their involvement can make the situation go wrong such as the 1997 Esequiel Hernandez case where the man was shot along the Texas-Mexico border.

Opponents against the change of the PCA also based their arguments in the control of the military. They claimed that instances where the military involves itself in civilian matters undermine civilian control. The military’s involvement in civilian issues will, therefore, give them power over civilian affairs and thus provide them with control over civilians. They also argued that easing the restrictions of the PCA can damage the readiness of the military. The military is mainly involved in national security and therefore prepares to fight and win the nation’s wars. As a result, allocating the military to other activities apart from war diminishes their readiness. The final argument states that the military is not the right tool for enforcing civilian laws. It makes the military to deviate from its primary mission and using it for civilian affairs is more expensive since the country uses substantial financial resources to train a soldier. Training an individual who civilian law enforcement is however, much cheaper.

Conclusion

The civil and revolutionary wars have left various impressions on Americans. History taught Americans at an early age that the government can go too far and that when one sees soldiers on domestic soil, they should be regarded with mistrust. After the 9/11 attacks, Americans began to face the reality that this is different from what they had grown up learning. They started to view their military differently. The attack led to the creation of the department of homeland security, which was meant to draw a clear line between intelligence and defense agencies. Before 1876, the role of the military had not been clearly defined. They could be used in safeguarding matters of national interests while at the same time enforcing civilian authority. Various factors, such as the Boston massacre, made the founding fathers want to change the role of the military in enforcing civilian affairs. The founding fathers claimed that the roles of the military should be clearly defined and highlighted. This involved ensuring that the army only worked on National matters that were aimed at protecting the country. Domestic affairs were, on the other hand, left to civilian law enforcement agencies. The law referred to as the Posse Comitatus ACT was, as a result, enacted. There have, however, been various modifications to the law. The PCA had initially been enacted to control elections after the troublesome elections that had been experienced in the past. However, with time, the bill was also directed to limit the powers of the president. The PCA ensures that the military does not get involved in matters of civilian affairs since its involvement can lead to hazardous effects. Matters of civilian law should be left to civilian law enforcement agencies. There are, however, exceptions to the PCA, the president can involve the military in domestic affairs during natural disasters or when there is an Uprising. The law is still in effect today and is used to protect the country against cases of drug abuse. Laws such as the Posse Comitatus Act are what make the United States be the country that it is. The law should, however, be amended to include a much clearer version, which is much more specific so that it does not create any confusion of civilian, military roles, it’s exceptions, and bodies responsible for following the law.