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