Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Exceptions to the PCA Endanger the Military and the United States


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited


Matthew Carlton Hammond


Matthew Carlton Hammond, The Posse Comitatus Act: a Principle in Need of Renewal , 75 Washington University Law Quarterly 953-984 (Summer 1997)

The PCA's exceptions-in-name and exceptions-in-fact endanger the military and the United States by blurring the traditional line between military and civilian roles, undermining civilian control of the military, damaging military readiness, and providing the wrong tool for the jo(1) Besides the current drug interdiction exceptions, the 104th Congress considered two bills to create new exceptions to the PCA.(2) The Border Integrity Ac(3) would have created an exception to allow direct military enforcement of immigration and customs laws in border areas. (4) The Comprehensive Antiterrorism A(5) would have allowed military involvement in investigations of chemical and biological weapons.(6) This Note will discuss these two proposed exceptions together with the exception mandating military involvement in counter-drug operations to illustrate the negative effects of creating exceptions to the PCA. Increasing direct military involvement in law enforcement through border policing--an exception-in-fac(7) --is an easy case against which to argue. Investigative support--an exception-in-name(8) --is passive, indirect enforcement. Drug interdiction--an exception-in-name for the most part--falls between border policing and investigative support because of the extensive military involvement.

A. Blurring the Lines

The differences in the role of civil law enforcement and the role of the military are blurred by the PCA's exceptions. Civilian law enforcement is traditionally local in character, responding to needs at the city, county, or state level. Civilian law enforcement trains for the law enforcement mission, which differs from the military missio(9) Civilian law enforcement requires the cognizance of individual rights and seeks to protect those rights, even if the person being protected is a bad actor. Prior to the use of force, police officers attempt to de-escalate a situation. Police officers are trained to use lesser forms of force when possible to draw their weapons only when they are prepared to fire.

On the other hand, soldiers are trained when to use or not to use deadly force.(10) Escalation is the rule. The military exists to carry out the external mission of defending the nation. Thus, in an encounter with a person identified with the enemy, soldiers need not be cognizant of individual rights, and the use of deadly force is authorized without any aggressive or bad act by that person(11) This difference between soldiers and police has been tragically illustrated in the recent shooting of a young man by marines patrolling near the Mexican border.(12)

The exceptions of border duty, investigative support, and drug interdiction blur the traditional line between civilian law enforcement and the role of the military. Border duty by soldiers under the Border Integrity Act has traditionally been the responsibility of civilian law enforcement. Drug interdiction has traditionally been a task for civilian law enforcement, and long-term military involvement comes close to subjecting civilians to all three types of military power--a fear of the Founding Father(13) Investigative support by the military is very reminiscent of the military surveillance conducted in the 1960s, which was condemned by Congress and members of the Supreme Court as an improper use of the military.(14)

B. Undermining Civilian Control of the Military

Civilian control of the military is undermined whenever military activities invade areas that "endanger liberties or the democratic process, even when that expansion is sanctioned by the civilian leadership(15) The military should not gain "unwarranted influence" in civilian affairs.(16) The purpose of civilian control is "to ensure that defense policy and the agencies of defense policy are subordinated to other national traditions, values, customs, governmental policies, and economic and social institutions.(17) The civilian government must therefore consider the institutional characteristics of the military, including personnel, doctrine, training, equipment, and morale, when making policy decisions about the domestic use of the military.(18) A military with many nonmilitary functions is more "autonomous" and thus under less civilian contro(19)

In the case of counter-drug activities, the government has disregarded all these considerations. The counter-drug mission is not a good fit for the military: the chronic nature of the drug problem requires the military's deep involvement over time without any true success(20) because the high profitability of drug trafficking makes its complete deterrence impossibl(21) This involvement without success hurts morale, (22) and the long-term nature of the involvement cannot help but increase the "unwarranted influence" of the military in civilian affair(23)

Both border duty and investigative support, if enacted, would create the same concerns as the counter-drug mission. Increasing the involvement of the military in civilian law enforcement will make it difficult to maintain the military's subordinate role over the long-term. Additionally, use of the military in civilian law enforcement damages its professionalism, which the PCA's enactment helped to develop. Many of these same concerns underlay the government's reluctance to send the military abroad without clear criteria and timelines for withdrawal,(24) yet those concerns have been ignored in domestic military use.

C. Damaging Military Readiness

The military's primary mission is national security, and the wisdom of all military decisions is ultimately weighed against whether national security is enhanced or damaged. Military readiness is a key to modern warfare and to the maintenance of national securit(25) In recognition of this fact, the military can refuse a request for aid in drug interdiction and in the investigation of chemical and biological weapons if military readiness might be compromised.(26) However, this power of refusal does not prevent injury to military readines(27) because while the military still takes on these missions, their mere consideration injures readiness through the redirection of resources in the decisionmaking process by adding a nonmilitary factor to the decision.(28)

The border duty, investigative support, and drug interdiction exceptions are double-edged swords with respect to military readiness. The military has embraced new missions like drug interdiction as a way to preserve force structure and budget levels and to improve public relations(29) In this respect, these new missions may aid readiness by preserving support for military strength and funding, but this benefit is outweighed by the shift of focus slightly away from the mission to fight a war.(30) This change of focus lessens the fighting edge of the milita(31) and dampens the "warrior spirit."(32) Additionally, these missions require equipment modifications and the reallocation of resource(33) For example, F-15 pilots do not hone their dogfighting skills by tracking a single-engine Cessna flying north from Mexico; in the Gulf War, there were stories of inadequately trained National Guard units that had participated more frequently in nontraditional missions, yet were incapable of fulfilling their military mission.(34)

The three exceptions to the PCA affect military readiness in a variety of ways. Drug interdiction has injured military readiness as a result of expensive equipment modifications and the redirection of resources. The 1993 Department of Defense budget included more than $1.4 billion for drug interdiction mission(35) This budget allocation has resulted in a "drug command" of sorts which is entirely focussed on the domestic mission of drug interdiction.(36) Border duty requires a different mindset and a different level of restraint than warfar(37) thus disrupting the optimum culture and mindset needed to maintain national security. Investigatory support by the military is also a mission differing from that which currently exists in the military.(38) To redirect resources or to consider performing such nonmilitary missions involves considerations that lessen the importantance of strictly improving military readiness, even when the only question is where to train.

D. Wrong Tool for the Job

Illegal immigration, drug interdiction, and investigative support relating to terrorism are all long-term problems requiring long-term solutions. These problems are not easily resolved, however, and no foreseeable end to the military's involvement appears forthcomin(39) Because of the significance of the problems and their continuing and chronic nature, using the military to combat these problems is like using a sledge hammer to open a locked trunk when all one needs is the key. It is better to fashion a key than to destroy the trunk.

All three exceptions to the PCA require using the wrong tool for the job. For example, border duty forces the military to alter its mindset and training. The border patrol and other law enforcement agencies already have the proper mindset and qualifications and are better able to do the job. Using an F-15 to track drug smugglers' slow planes is both excessive and expensive. A basic military soldier costs the government $82,000 a year in training and upkeep. A soldier's involvement in drug interdiction is much more expensive than a civilian counterpart's participation. Investigatory support for weapons of mass destruction to counter terrorism is more than a minor exception because terrorism is a continuing problem without end. We would best be served by developing these resources in civilian law enforcement.(40)

Read the following links:

Passage of the PCA: Reaffirmation of a Long-Standing American Tradition
The Scope of the PCA
Exceptions to the PCA Endanger the Military and the United States
Renewal of the Policy Embodied by the PCA

1. . This Note does not project immediate doom nor suggest that the armed forces or its members would consider a military coup or improperly influence the civilian government. Indeed, within the U.S. Army officer corps there exists "an implicit--one could almost say instinctive--acceptance of the civil power's superiority to the military in government." Edward M. Coffman, The Army Officer and the Constitution, Parameters, Sept. 1987, at 2, 2. This Note argues that there are good reasons for the policies behind the PCA, policies that should not be discarded by the exigencies of the moment. I

2. . See supra notes 5-7 and accompanying text.

3. . H.R. 1224, 104th Cong., 1st Sess. (1995

4. . See supra note 7 and accompanying text.

5. . S. 735, 104th Cong., 1st Sess. (1995

6. . See supra note 6 and accompanying text.

7. . See supra notes 117-20, 126-33 and accompanying tex

8. . See supra notes 117-25 and accompanying text.

9. . See PCA Hearing, supra note 13, at 29-30 (comments by Rep. William J. Hughes

10. . Soldiers do receive training in intermediate levels of force for peacekeeping missions, but the main focus is on how and when to use deadly force as part of the wartime rules of engagement. Huffman Interview, supra note 513(LANE Training provides soldiers with examples of hostile acts which can be responded to without waiting to be fired upon which consist of simulation exercises in a field setting); see also Anthony DePalma, Canada Assesses Army: Warriors or Watchdogs?, N.Y. Times, Apr. 13, 1997, 1, at 4 (noting increase of U.S. training for peacekeeping); Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 Mil. L. Rev. 3, 27 (1994). This focus flows directly from the military's responsibility "to fight or be ready to fight wars should the occasion arise." Toth v. Quarles, 350 U.S. 11, 17 (1955), cited in Dunlap, supra note 4, at 357 n.119. To fulfill that responsibility, the Army has challenged itself to "[i]mprove[ ] lethality and readiness" in the 21st century. Dennis J. Reimer, Soldiers Are Our Credentials, Mil. Rev., Sept.-Oct. 1995, at 4, 13 fig.5 (at the time of this writing the author was U.S. Army Chief of Staff).

11. . See generally Martins, supra note 152. It is interesting that we want the military to take on some police functions, yet we will not let that same military train foreign police or even give them advice. See Foreign Assistance Act of 1974, Pub. L. No. 93-559, 30(a), 88 Stat. 1795, 1803 (codified as amended at 22 U.S.C. 2420(a) (1994)); see also supra note 107 and accompanying tex

12. . Jesse Katz, A Good Shepherd's Death, L.A. Times, June 21, 1997, at A1 (chronicling the debate about troops use near the border as the danger is illustrated by this killing); Border Killing Brings Criticism of Military Role, Chicago Trib., May 23, 1997, at 15.

13. . See supra notes 22-43 and accompanying tex

14. . See Laird v. Tatum, 408 U.S. 1 (1972).

15. . Dunlap, supra note 4, at 344 (emphasis removed

16. . Id. at 343 (emphasis removed) (paraphrasing President Eisenhower's Farewell Address).

17. . Id. at 344 (quoting Allan R. Millet, The American Political System and Civilian Control of the Military 2 (1979)

18. . Id. at 344 n.13 (quoting Millet, supra note 159, at 2).

19. . Goodpaster & Huntington, supra note 21, at 22 (citing David R. Segal et al., Convergence, Isomorphism, and Interdependence at the Civil- Military Interface, J. Pol. & Mil. Soc., Fall 1974, at 157ff).

A military establishment ... that encompasses many nonmilitary functions and that operates in a civilianized manner is likely to be more autonomous--freer from civilian contacts and, potentially, civilian control--than a military establishment that is purely military and that, precisely because of its specialization, is dependent upon civilian society for support.

Id. (quoting Segal, supra) (footnote omitted

20. . See McGee, supra note 3, at A30. "[The military's involvement] should [have been] a temporary stopgap, but it's been institutionalized." Id. (quoting Lawrence J. Korb, Asst. Sec'y of Defense under President Reagan) (second set of brackets in original).

21. . See 134 Cong. Rec. 11,643, at 11,644 (1988) (comments of Sen. Daniel P. Moynihan) (stating that "100 of the [illegal aliens crossing the Mexican border into the U.S.] could bring across a year's supply and more of Mexican heroin for the American market"); see also Peter Reuter et al., Rand Corp., Sealing the Borders: The Effects of Increased Military Participation in Drug Interdiction 123 (1988) (stating that "a single cargo plane, fully loaded, could supply the nation's current demand [for cocaine] for a year"); Michael H. Abbott, The Army and the Drug War: Politics or National Security?, Parameters, Dec. 1986, at 95, 96 (noting that drugs are second to petroleum, in monetary value, as the largest U.S. import); Christopher S. Wren, Why Seizing Drugs Barely Dents Supply, N.Y. Times, Dec. 15, 1996, 4, at 4 (reporting that increased seizures of illegal drugs do not increase costs to the drug user

22. . Cf. Thomas E. Ricks, The Military: The Great Society in Camouflage, Atlantic Monthly, Dec. 1996, at 24, 38 (stating that "murky new missions ... may be chipping away at the Army's sense of itself"); DePalma, supra note 152.

23. . See McGee, supra note 3, at A30 ("[T]he open-ended nature of the military's commitment is the greatest potential hazard." (interview with Lawrence J. Korb, Assistant Sec'y of Defense under President Reagan)). At least one critic sees the expansion of the Junior Reserve Officer's Training Program, the large number of retired military personnel working as teachers, and the appointment of a retired general as the "drug czar" and another as head of the D.C. school system as steps towards militarization and a decline in civilian control of the military. Courtland Milloy, Overruling Civilian Rule, Wash. Post, Nov. 13, 1996, at B1 (describing the views of Sam Smith, editor of the Progressive Review

24. . See, e.g., Clifford Krauss, The Somalia Mission: Congress; Clinton Gathers Congress Support, N.Y. Times, Oct. 8, 1993, at A14 (noting Congress's approval of President Clinton's plan to limit the goals of U.S. forces in Somalia and commit to an end date for troop deployment); Elaine Sciolino, Loosening the Timetable for Bringing G.I.'s Home, N.Y. Times, Nov. 17, 1996, 4, at 3 (discussing military doctrine of no overseas deployment without a specific timetable for withdrawal); Elaine Sciolino, U.S. Narrows Terms for Its Peacekeepers, N.Y. Times, Sept. 23, 1993, at A8 (noting anxiety within Clinton administration over "open-ended peacekeeping missions in Somalia and Bosnia"); Senatorial Passion: U.S. Interest or Deadly Quagmire?, N.Y. Times, Dec. 14, 1995, at A15 (quoting from Senate debate about sending troops to Bosnia and the fear of an open-ended mission). But see Sciolino, Loosening the Timetable for Bringing G.I.'s Home, supra, at 3 (reporting criticism of establishing a clear exit strategy for troops deployed overseas).

25. . Reimer, supra note 152, at 9 (stating that "readiness and training ... [are] the reason the Army exists"

26. . See Department of Defense Authorization Act, 1982, Pub. L. No. 97- 86, 905(a)(1), 95 Stat. 1099, 1116 (1981) (codified as amended at 10 U.S.C. 376 (1994))); PCA Hearing, supra note 13, at 16 (statement of William H. Taft IV, Gen. Counsel, U.S. Dep't of Defense).

27. . To be effective the military would have to be able to say "no," but it is actually marketing itself with a 55-page pamphlet to local law enforcement. See McGee, supra note 3, at A3

28. . "[R]eadiness is a tough, continuous job." Smith, supra note 42, at 91 (emphasis added). The most "productive"--and full-time--purpose of the military during peacetime is the deterrence of war. Id. As Elihu Root said, the goal of the military is "[n]ot to promote war, but to preserve peace through intelligent and adequate preparation." Id.

29. . See Ricks, supra note 164, at 38 (noting the need for the Army to justify its existence "[a]rguably for the first time in its existence"); William Rosenau, NonTraditional Missions and the Future of the U.S. Military, Fletcher F. World Aff., Winter/Spring 1994, at 31, 32 (suggesting that non- military missions could protect the infrastructure of the Army by giving it "a new organizational vision"

30. . These new missions occur at a time when the Army has increased its overseas operational deployments by 300%, but has been forced to accommodate for diminishing resources. See Reimer, supra note 153, at 5, 7; see also Ronald B. Flynn, The National Guard Drug Interdiction Mission: A Circumvention of Posse Comitatus? 21 (Apr. 2, 1990) (unpublished U.S. Army War College Military Studies Program Paper, available through Defense Technical Information Center) (contending that the military's involvement in the counter-drug effort detracts from training readiness as it relates to war-fighting). But see Dale E. Brown, Drugs on the Border: The Role of the Military, Parameters, Winter 1991-92, at 50, 50 (describing military involvement in counter-drug efforts as "valuable, real-world training for the participating units").

31. . Mike O'Connor, Does Keeping the Peace Spoil G.I.'s for War?, N.Y. Times, Dec. 13, 1996, at A3 (discussing the need for approximately 18 months of rest and retraining to reestablish the basic military readiness of the Army troops who were deployed in Bosnia); see also DePalma, supra note 152. The work of U.S. soldiers in Bosnia "runs counter to their traditional training" and their skills are perishable. Id. One sergeant, a tanker, spends each day checking identification at a checkpoint. Id. As a result of mostly working in small groups, the soldiers' ability to work in large coordinated groups suffers. I

32. . Dunlap, supra note 17; see Ricks, supra note 164, at 38.

33. . In fiscal year 1990, forty-eight percent of all AWACS, radar surveillance planes, flying hours worldwide were devoted to counter-drug efforts. Brown, supra note 172, at 53. In the case of the National Guard, 532,899 man-days and 5155 missions were devoted to the counter-drug effort. I

34. . See Alex Prud'Homme, Phantom Army: For the Most Part the National Guard Fought Well in the Gulf but Some Outfits, Plaqued by No-Shows and Poor Training, Never Got to the Front, Time, June 10, 1991, at 18; see also DARPA Seeks to Upgrade National Guard Training, Def. & Aerospace Elecs., Feb. 22, 1993 (noting the National Training Center did not believe that National Guard troops called up for the Persian Gulf War were not combat ready), available in 1993 WL 289339; National Guard: Peacetime Training Did not Adequately Prepare Combat Brigades for Gulf War, Gen. Acct. Off. Rep. & Testimony, Dec. 1, 1991 (referencing GAO report on lack of readiness of National Guard troops), available in 1991 WL 2659334. This turns on the use of the National Guard in nontraditional missions, when their active service time should be spent honing their fighting capabilities so that they can back up the regular army in time of war.

35. . Dunlap, supra note 17, at 6

36. . See McGee, supra note 3, at A30 (discussing the military's counter- drug headquarters). This "drug command" is referred to as Joint Task Force Six ("JTF-6"). JTF-6 circulates a 55-page pamphlet to local law enforcement, which in effect markets Green Berets, Navy SEAL teams, and other services. Id.

37. . Border duty consists of patrolling the U.S. border to stop illegal entry and enforcing customs laws at border entry point

38. . To fulfill this mission, it is entirely reasonable for the military to begin civilian surveillance again under the same rationale used in the 1960s. See supra note 16 and accompanying text.

39. . See Wren, supra note 163, at 4 (noting that drug trafficking does not seem to follow basic economic principles). Increased seizures have not increased the cost to users of illegal drugs. Id. Increased interdiction results in increased seizures, but those seizures only increase transportation expenses; the drug dealers are hassled, but the drug flow continues. Id.

The 1996 price of cocaine is only one-fifth of the 1981 price, and heroin is less than half of its 1980 price. William March, Drugs Ignore Politicians, Tampa Trib., Sept. 28, 1996, at 1. In 1981, Congress began involving the military in the drug war. See supra note 9-10 and accompanying text. Obviously, military involvement and increased seizures have not helped to turn the tide in the drug war; it is being los

40. . See Editorial, False Choices on Terrorism, N.Y. Times, Apr. 30, 1995, 4, at 14 (suggesting that the F.B.I. should receive more funding and use it to improve the training of agents); Editorial, Washington's Undeclared War on Drugs, St. Louis Post-Dispatch, Dec. 8, 1996, at 2B (suggesting that the drug war is best handled by agencies other than the military). These resources need to be developed when civilian law enforcement is not able to take full advantage of information provided by the military. See Ted Waronicki, Letter to the Editor, War on Drugs Must Begin in the Home, Tampa Trib., Oct. 20, 1996, at 3 (noting that civilian law enforcement agencies attempted to apprehend only a small percentage of suspicious aircraft identified by the military).

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