Using the Military During National Emergencies

Law professor Scott Silliman examines the much misunderstood Posse Comitatus Act

In the wake of hurricanes Katrina and Rita, President Bush has suggested a broader role for the armed forces in disaster relief operations. Similarly, U.S. Sen. John Warner has indicated he would be holding hearings in the Senate Armed Services Committee on the legal restrictions on the president's use of the military in national emergencies. At the heart of the debate is the Posse Comitatus Act, a much misunderstood 1878 law that allows for far greater use of the military in national emergencies than many believe.

The act itself is straightforward, providing that "(W)hoever, 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." The words posse comitatus literally mean "power of the county" and connote a group of people summoned by a local sheriff to aid in enforcing the law. The act was a political accommodation by Congress following the disputed presidential election of 1876 between Rutherford Hayes and Gov. Samuel Tilden of New York. Many southern Democrats believed that President Grant's deployment of federal troops around the polling places in Louisiana, Florida and South Carolina influenced the election, and the Posse Comitatus Act was meant to appease those concerns.

Court opinions have clarified what the act does and does not prohibit. First, it applies only to the active duty military and not to the National Guard, unless the Guard is federalized by the president. The Guard normally operates under state, not federal, law, and is answerable to the respective governor rather than the president. Unless there is some restriction in state law restricting use of guard forces in a law enforcement function, they can properly be used in that capacity at the call of the governor. That was the case when guardsmen were employed by Louisiana Gov. Blanco to augment the local police in dealing with looters in New Orleans following Hurricane Katrina. Four years ago, after the attacks of Sept. 11, those in uniform guarding airports across the country were guardsmen operating under state control because nothing prohibited their use in that role.

Secondly, the act prohibits only direct or active participation in law enforcement activities, not indirect or supportive participation. So when military advisers and equipment were deployed with FBI and ATF personnel to Waco, Texas, during the 1993 confrontation with David Koresch and the Branch Davidians, there was no violation of the act. Nor was there anything illegal in using an Army aircraft with sophisticated sensors to assist in the Washington sniper investigation because those manning the equipment in the rear of the plane were civilians. Mere surveillance by military personnel has also been held not to violate the act.

Lastly, by its own terms, the Posse Comitatus Act does not restrict using active duty armed forces in law enforcement activities where "authorized by the Constitution or Act of Congress." There is arguably Constitutional authority for using active duty armed forces to protect federal property and functions or to prevent loss or life or wanton destruction of property during disasters. Further, statutes creating exceptions abound, such as when Congress authorized using the armed forces during the 1980s and '90s in the war against drugs. A statute directly applicable to disaster relief, such as following hurricanes Katrina and Rita, is the Stafford Act, which authorizes the use of active duty personnel either upon the request of a governor or by the president's own call when he believes the primary responsibility for dealing with an emergency of national significance lies with the federal government.

In the final analysis, statutory exceptions and court decisions clearly give the president broad authority to use the active duty military in a broad array of disaster relief operations, except in direct and active participation in law enforcement. That is where the National Guard forces, operating under state control, serve as a fitting complement. No further amendments of the 1878 are necessary or appropriate. The role of our military to fight our wars and protect us from attack must remain clear and unambiguous. It should not be blurred by trying to change them into policemen.