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Matthew Carlton Hammond
excerpted from: Matthew Carlton Hammond, The Posse Comitatus Act: a Principle in Need of Renewal , 75 Washington
University Law Quarterly 953-984 (Summer 1997)
In response to the military presence in the Southern States during the Reconstruction Era, Congress passed the
Posse Comitatus Act(1) ("PCA" or the "Act") to prohibit the use of the Army in civilian law enforcement. The Act
embodies the traditional American principle of separating civilian and military authority and currently forbids the
use of the Army and Air Force to enforce civilian laws.(2) In the last fifteen years, Congress has deliberately eroded
this principle by involving the military in drug interdiction at our border(3) This erosion will continue unless
Congress renews the PCA's principle to preserve the necessary and traditional separation of civilian and military
authority.
The need for reaffirmation of the PCA's principle is increasing because in recent years, Congress and the public
have seen the military as a panacea for domestic problems.(4) Within one week of the bombing of the federal
building in Oklahoma Cit(5) President Clinton proposed an exception to the PCA to allow the military to aid civilian
authorities in investigations involving "weapons of mass destruction."(6) In addition to this proposal Congress also
considered legislation to directly involve federal troops in enforcing customs and immigration laws at the borde(7)
In the 1996 presidential campaign, candidate Bob Dole pledged to increase the role of the military in the drug war,
and candidate Lamar Alexander even proposed replacing the Immigration and Naturalization Service and the
Border Patrol with a new branch of the armed forces.(8)
The growing haste and ease with which the military is considered a panacea for domestic problems will quickly
undermine the PCA if it remains unchecked. Minor exceptions to the PCA can quickly expand to become major
exceptions. For example in 1981, Congress created an exception to the PCA to allow military involvement in drug
interdiction at our border(9) Then in 1989, Congress designated the Department of Defense as the "single lead
agency" in drug interdiction efforts.(10)
The PCA criminalizes, effectively prohibiting, the use of the Army or the Air Force as a posse comitat(11) to
execute the laws of the United States. It reads:
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. (12)
Though a criminal law, the PCA has a more important role as a statement of policy that embodies "the traditional
Anglo-American principle of separation of military and civilian spheres of authority, one of the fundamental
precepts of our form of government(13)
Major and minor exceptions to the PCA, which allow the use of the military in law enforcement roles, blur the
line between military and civilian roles, undermine civilian control of the military, damage military readiness, and
inefficiently solve the problems that they supposedly address.(14) Additionally, increasing the role of the military
would strengthen the federal law enforcement apparatus that is currently under close scrutiny for overreaching its
authority(15) Although it seems benign, such an increase in military authority revives fears of past overreaching
during the late 1960s.(16)
This Note argues that the principle embodied by the PCA should be renewed by rejecting exceptions to the Act
and reaffirming the policy behind its inception. This renewal is necessary to preserve the historic division between
civilian and military roles, to maintain civilian superiority over the military, to enhance military readiness, and to
efficiently attack domestic problems. Part II reviews the historical traditional American fear of a standing army and
the circumstances leading to the PCA's passage. Part III discusses the current scope of the PCA and the permissible
roles of the military. Part IV explains how exceptions to the PCA endanger its underlying principle. The
explanation covers the spectrum of possible exceptions to the PCA: drug interdiction, border duty, and biological
and chemical weapons investigation(17) Part V proposes legislative action to reaffirm the policy of the PCA and to
limit to any further exceptions to it.
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. Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878) (codified as amended
at 18 U.S.C. § 1385 (1994)).
2. . See 18 U.S.C. § 1385 (1994).
3. See generally Jim McGee, Military Seeks Balance in Delicate Mission: The Drug War,
Wash. Post, Nov. 29, 1996, at A1. The military has become "embedded" in the drug war
and performing domestic police missions traditionally belonging to civilian law
enforcement. Id.
4. . Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of Civilian Control of the
U.S. Military, 29 Wake Forest L. Rev. 341, 342 (1994); see also McGee, supra note 3;
Editorial, A Hasty Response to Terrorism, N.Y. Times, June 9, 1995, at A28.
5. . On April 19, 1995, a fertilizer bomb in a parked truck destroyed the federal office
building in Oklahoma City, Oklahoma. David Johnston, Terror in Oklahoma City: The
Investigation, at Least 31 Are Dead, Scores Are Missing After Car Bomb Attack in
Oklahoma City Wrecks 9-Story Federal Office Building, N.Y. Times, Apr. 20, 1995, at
A1, B8. At least 165 people were killed. See Terror in Oklahoma: The Victims; 165
People Who Were Killed in the Oklahoma City Explosion, N.Y. Times, May 7, 1995, at
36 (list of those killed
6. . Todd S. Purdum, Terror in Oklahoma: The Overview, Clinton Seeks More
Anti-Terrorism Measures, N.Y. Times, Apr. 27, 1995, at A1, A21. "Weapons of mass
destruction ... are generally considered to be nuclear or massive chemical or biological
weapons." Id. The exception to the PCA would have been enacted in the Counterterrorism
Act of 1995, S. 735, 104th Cong., 1st Sess. § 908 (June 5, 1995) (version 4) (the House
version was H.R. 1710).
The House of Representatives later deleted this provision from their version of the bill to gain
support from conservative Republicans and salvage the legislation. Terrorism Bill Plan May Break
Deadlock, N.Y. Times, Dec. 2, 1995, at 8. An exception for nuclear materials is already law. See
18 U.S.C. § 831 (1994) (authorizing the Attorney General to request assistance from the
Department of Defense in enforcing prohibitions against transactions involving nuclear materials).
7. . See Border Integrity Act of 1995, H.R. 1224, 104th Cong., 1st Ses
8. . See Otto Kreisher, Alexander's Ideas Hard to Pin Down; Military, Welfare Experts Call
Plans Lousy, Unworkable, San Diego Union-Trib., Mar. 1, 1996, at A6, available in 1996
WL 2145186.
9. . See Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, § 905, 95 Stat.
1099, 1114-16 (1981) (codified as amended at 10 U.S.C. § 371-380 (1994)
10. . National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No.
100-189, § 1202, 103 Stat. 1353, 1563 (1989) (codified as amended at 10 U.S.C. §
124(a) (1994)). The statute states as follows:
Lead Agency.--
(1) The Department of Defense shall serve as the single lead agency of the Federal Government
for the detection and monitoring of aerial and maritime transit of illegal drugs into the United
States.
(2) The responsibility conferred by paragraph (1) shall be carried out in support of the
counter-drug activities of Federal, State, local, and foreign law enforcement agencies.
10 U.S.C. § 124(a) (1994); see also McGee, supra note 3, at A1 (since 1989, the military has
spent over seven billion dollars on counter-drug efforts).
11. . Posse comitatus is defined as follows: "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 definition is your basic
movie western posse. In 1854, the Attorney General interpreted posse comitatus to
include the military. See infra notes 44-45 and accompanying text.
In Norman England, the posse comitatus also had a military character and could be called out to
defend the kingdom against insurrection and invasion. Walter E. Lorence, The Constitutionality of
the Posse Comitatus Act, 8 U. Kan. City L. Rev. 164, 166-67 (1939-40
12. . 18 U.S.C. § 1385 (1994). Currently, the fine for individuals is up to $250,000. See 18
U.S.C. § 3571(b) (1994).
13. . Posse Comitatus Act: Hearing Before the Subcomm. on Crime of the Comm. on the
Judiciary on H.R. 3519, 97th Cong., 1st Sess. 10-11 (1981) [[hereinafter PCA Hearing]
(statement of Edward S.G. Dennis, Jr., Chief, Narcotics and Dangerous Drug Sec., Crim.
Div., U.S. Dep't of Justice
14. . See infra Part IV.
15. . See, e.g., Stephen Labaton, Bill on Terrorism, Once a Certainty, Derails in House, N.Y.
Times, Oct. 3, 1995, at A1; The F.B.I. Overreaches, N.Y. Times, May 10, 1995, at A22;
see also James Bennett, Two States, Two Gatherings and a Lot of Anti-Government
Sentiment, N.Y. Times, Oct. 3, 1995, at A
16. . See Laird v. Tatum, 408 U.S. 1, 3-8 (1972) (discussing the Army's domestic surveillance
system in the late 1960s). The plaintiffs sued to stop the Army from compiling files on
civilians as part of its support of federal law enforcement. Id. at 2. The Supreme Court
dismissed the lawsuit for lack of standing. Id. at 12-15; see also Letter from former
Senator Sam J. Ervin, Jr. to Rep. William J. Hughes, Chairman, Subcomm. on Crime,
Comm. on the Judiciary, House of Representatives (June 2, 1981) [hereinafter Ervin
Letter] (Sen. Ervin chaired the committee that investigated the military's spying on
civilians in 1967 and 1968), in PCA Hearing, supra note 13, at 86.
17. . Border duty is a direct use of the military to execute civilian laws. Use of the military for
investigative support is on the opposite end of the spectrum--a passive, indirect execution
of civilian laws with only minor involvement foreseen. Drug interdiction falls between the
two: it is passive, but the involvement is extensive. In 1993, the Department of Defense
had $1.4 billion in its annual budget to finance drug interdiction. Charles J. Dunlap, Jr.,
The Last American Warrior: Non-Traditional Missions and the Decline of the U.S. Armed
Forces, Fletcher F. World Aff., Winter/Spring 1994, at 65, 69. For a description of current
activities of the military in counter-drug activities, see McGee, supra note
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