Bush Administration Intends to Use Soldiers as Police Officers

October 5, 2005
By Gene C. Gerard

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 too 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 PCA 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.