Posse Comitatus Home

Using the Military for Homeland Security: Violation of Posse Comitatus? Notice how quick Liberals are these days to protect "freedom"? Some claim using the military for homeland security - like protecting the Olympics - violates the Posse Comitatus Act. At first glance, the plain language of the act suggests they have a case: 10 U.S.C. Section 1385. Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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. But in interpreting the act, courts have allowed a great deal of cooperation between the military and local, state, and federal law enforcement agencies. Congress, too, has enacted laws that allow military personnel and equipment to be used in law enforcement. That's because the purpose of limiting the military's role is simply to ensure that law enforcement actions do not violate citizens' constitutional rights. Where military personnel have been properly trained, or where searches and seizures are actually made by civilian law enforcement, even if supported by the military, there is no unusual danger that constitutional rights will be violated. Foreign terrorists, whom international law treats as illegal combatants, and even U.S. citizens fighting for foreign powers, under Supreme Court precedent, are not citizens with constitutional rights that must be protected. Therefore, there is no worry that using the military to monitor and apprehend these folks will violate anyone's constitutional rights. It is true that our government does many things nowadays that are not authorized by the Enumerated Powers Clause of the constitution. But protecting the rights of citizens, whether by law enforcement or military action, ARE legitimate functions of government - some of the few. Our enemies claim to be soldiers, not mere criminals, and the Bush Administration has done right in treating them as such. In English Law, from which our constitutional rights are derived, the Posse Comitatus was the "force of the country" - the able bodied men who could be called to police or military service to protect their homes. In the Federalist Papers, our Founding Fathers envisioned the militia authorized by the constitution in the same way, and used military force to quell insurrection in their own time. The Posse Comitatus Act was passed during Reconstruction, when the Union Army that had ravaged the South was still acting as a domestic police force even after the South's civil magistracy had been restored. Let's not sacrifice our safety today for the politics of the 1860s.