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.
Gene C. Gerard teaches American history
at a small college in suburban Dallas. He is a contributing author to
the forthcoming book "Americans at War," to be published by
Greenwood Press.
