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1878 Military Law Gets New Attention

by T.A. Badger, Associated Press, 24 November 2001


SAN ANTONIO -- America's military is largely prohibited from acting as a domestic police force, but with the increased fears of terrorism, some experts say it's time to rethink those restrictions.

"Our way of life has forever changed," wrote Sen. John Warner, R-Va., in a letter last month to Defense Secretary Donald Rumsfeld. "Should this law now be changed to enable our active-duty military to more fully join other domestic assets in this war against terrorism?"

The law, known as the Posse Comitatus Act, was championed by Southern lawmakers in 1878 who were angry about the widespread use of the Army in post-Civil War law enforcement.

It currently bans the Army, Navy, Air Force and Marines from participating in arrests, searches, seizure of evidence and other police-type activity on U.S. soil. The Coast Guard and National Guard troops under the control of state governors are excluded from the act.

Deputy Defense Secretary Paul Wolfowitz, testifying in October before the Senate Armed Services Committee, agreed that it might be desirable to give federal troops more of a role in domestic policing to prevent terrorism.

"In certain cases we can do more than anyone else in the country because of the special capabilities that we have," he said.

Those roles could be varied, such as helping local law enforcement in the event of a terrorist attack, patrolling the nation's borders or serving as armed sky marshals aboard flights over the United States.

But the issue of expanding the military's domestic reach sharply divides lawyers who have spent years studying Posse Comitatus, Latin for "power of the county."

Dennis Corrigan, a retired colonel who taught the law at the Army's Judge Advocate General's school, says legislators should resist the urge to change it.

The military isn't trained to be a police force, he says, so it should stick to the skills for which it is trained: surveillance, information gathering, logistical support. All of these activities are allowable under Posse Comitatus.

"There should be a partnership between the military and civilian sectors -- the civilian doing the confrontation and the military providing support," said Corrigan, now a businessman living in Gilford, N.H. "I'm not sure, even with what's going on today, that Congress wants the military arresting people."

Jeffrey Addicott, a retired lieutenant colonel in the Army JAG Corps, wrote that the law handcuffs the nation when it comes to responding to terrorist attacks.

"We've got a homeland defense office, but if there's not reforms, the Posse Comitatus Act will cut them off at the knees," Addicott, now a law professor at St. Mary's University in San Antonio, said in a recent interview.

"This is a new kind of war," Addicott said. "We have to make a compromise now to prevent these guys from committing an act of terror on a larger scale."

Army Secretary Thomas White said late last month that the Pentagon's review of Posse Comitatus would not likely lead to recommendations that Congress overhaul the act.

"But we are looking at the details of the law to see if revisions are appropriate in the way it's executed or the exceptions that can be taken," White said.

Exceptions over the years have seen armed federal troops used for drug interdiction and patrol of the U.S.-Mexico border to enforce immigration laws with mixed results.

In 1997, a Marine corporal on a drug surveillance patrol shot and killed an 18-year-old goat herder in the Texas desert about 200 miles southeast of El Paso. A Marine inquiry determined its personnel were not adequately trained for the mission. Soon afterward, such patrols ended.

Michael Spak, a former Army JAG colonel now teaching at Chicago-Kent College of Law, says the exceptions made in the name of national security in recent decades have left Posse Comitatus a hollow shell. He says the law should be scrapped entirely.

Any amendment to loosen Posse Comitatus would be strictly pro forma, he says, because as it's now construed, the statute has enough wiggle room for the government to use the military for domestic action as it sees fit.

"It's good for the law to tell the truth and for everybody to follow the law," he said. "But is it necessary? No."

© 2001 Associate Press
Reprinted for Fair Use Only.

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