In the aftermath of Hurricanes Katrina and Rita, the Bush administration has
asked the Department of Defense to reconsider its longstanding compliance with a
nineteenth century law that precludes active military personnel from playing a
role in law enforcement activities. And President Bush has called on Congress to
consider amending the law so that the military could assume greater
responsibility immediately following a natural disaster. But asking the military
to serve as a police force is dangerous in many respects.
The law preventing the military from assuming a law enforcement role is the
Posse Comitatus Act of 1878 (PCA). Congress enacted the law in response to one
of the closest presidential elections in history. Rutherford B. Hayes won the
1876 election by only one vote in the Electoral College. After the election, it
was discovered that President Ulysses S. Grant had dispatched Army troops
throughout the South to be used by federal marshals to influence voting at the
polls.
Congress and the courts have made many exemptions to the PCA since the
nineteenth century. The law does not apply to the Coast Guard, or to the
National Guard so long as it is not under federal command. Also, the military is
allowed to provide equipment, supplies, technical assistance, information, and
training to law enforcement entities. The president can use the armed services
to suppress an insurrection when a governor or state legislature requests
assistance. And the military can be used when crimes are committed involving
nuclear materials or chemical or biological weapons.
However, the Department of Defense has traditionally held that the PCA prevents
the military from having an active role in a search, seizure, arrest, or similar
police activities. The Pentagon understands all to well that the goals of the
armed services and those of law enforcement agencies are very different, as are
their methods. Much has changed in America since 1878, but there are still
compelling reasons as to why the military should not be used as a surrogate for
law enforcement.
The role of the military, first and foremost, is to protect America's national
security interests. Given our ongoing war against terrorism, the military must
remain focused on fighting terrorism, both at home and abroad. Asking the
armed services to serve as first responders to a natural disaster will divert
military resources and distract our troops, perhaps to the peril of the country.
Instead, the Bush administration needs to ensure that municipal and state
governments have sufficient resources to be able to rely on their law
enforcement personnel in times of natural disasters.
The training of soldiers is very different from that of police and other members
of law enforcement. Soldiers are taught to neutralize a threat immediately, with
any force necessary. Law enforcement personnel are trained to remedy a
potentially volatile situation by initially taking the least aggressive method
available. They are taught to draw their guns only when absolutely necessary. To
require soldiers to serve as a police force, especially during the very tense
periods that frequently follow natural disasters, would result in unnecessary
conflicts. And fatalities would likely be commonplace.
Law enforcement personnel must also be mindful of many considerations that
soldiers never contemplate. Police officers must be attentive to the legal
rights of criminals and honor those rights, even in precarious situations. But
as is evidenced by the prisoner abuse scandal in Iraq's Abu Gharib prison,
soldiers sometimes have difficulties conceiving of the accused as having any
rights at all. And law enforcement must be concerned with the proper collection
and preservation of evidence for purposes of prosecution. Soldiers simply are
not knowledgeable on these issues.
Given the daunting task of using the military to function as police officers and
other law enforcement personnel, it's not surprising that President Bush has
already met with some resistance from within the Pentagon. Paul McHale, the
assistant secretary of defense for homeland security, noted in a recent
interview that, "what we ought not to do is convert D.O.D. into a department of
first responders." The Department of Defense has been opposed to lessening the
restrictions of the PSA for many years.
In 1979 the Departments of Defense and Justice reviewed the limitations imposed
by the Posse Comitatus Act. They issued a report in which the Defense Department
strongly reiterated its desire to continue to adhere to the PCA. The report
noted, "The authors of the [PCA] .knew.that military involvement in civilian
affairs consumed resources needed for national defense and drew the Armed Forces
into political and legal quarrels that could only harm their ability to defend
the country."
The military should play an important role in the recovery efforts that follow a
natural disaster. In fact, it frequently has since the San Francisco earthquake
of 1906. But asking soldiers to serve as police officers is misguided. It puts
our troops, the nation's security interests, as well as the legal rights and
very lives of citizens at risk.
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Gene C. Gerard taught American history at a small college in suburban Dallas, and is a contributing author to the forthcoming book “Americans at War,” to be published by Greenwood Press. His previous articles have appeared in Political Affairs Magazine, Dissident Voice, The Free Press, OrbStandard, Intervention Magazine, The Modern Tribune, and The Palestine Chronicle
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