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Aba under review POSSE COMITATUS UNDER REVIEW 1878 Law Prohibits Military Aid to Domestic Law Enforcement BY MARGARET GRAHAM TEBO The Bush administration has orderedlawyers in the departments of Justiceand Defense to investigate whether thePosse Comitatus Act should beamended to allow the U.S. military tobecome more involved in domestic lawenforcement. Review of the 124-year-old law is partof the administration's planning for acomprehensive homeland-securitystrategy. Congress will vote this fall ona bill to allow the federal Office of Homeland Securityto coordinate andoversee domestic terrorism defense, potentially includingadvising thepresident to send U.S. military personnel to assist inthe investigation andcapture of suspected terrorists on U.S. soil. The 1878 act was passed in the wake of the Civil War andwas intended toend the practice of using the military to superviseelections in formerConfederate states. The act makes it a crime to use themilitary to aiddomestic law enforcement, except as authorized by theConstitution or anact of Congress. 18 U.S.C. § 1385. It is because of the act that only state governors, andnot the president, cancall out National Guard troops for domestic deployment?tohelp in naturaldisasters, for example. The Coast Guard is not subject toposse comitatusbecause it was established for the specific purpose ofpolicing U.S.navigable waters. The act is driven by the notion that people with tanksand weapons should besubordinate to civilian authority, says David Cole, aprofessor at GeorgetownUniversity Law Center. "What mystifies me about the administration's suggestionthat possecomitatus needs to be reviewed is that it lacks anyspecific justification. Theyhave not pointed to any particular need for militaryassistance of domesticlaw enforcement," Cole says. There are already some exceptions to the law. Soldiershave been deployedalong the U.S.-Mexico border since the 1980s to help withdrug interdiction,for example. Though some scholars argue that usingsoldiers in that wayviolates posse comitatus, no such challenge has succeededin gettingtroops pulled off of border duties. The act also does not prohibit the military from lendingequipment to civilianauthorities or responding to a threat of biological orchemical weapons beingreleased in the United States, among other actions. Cole and others say that changing a law that has survivedthe trials of twoWorld Wars and the Cold War could open a Pandora's box ofissues. Theycontend that the threats to U.S. security are notnecessarily greater now thanwhen the Soviet Union had thousands of warheads aimed atthe UnitedStates or when the Japanese bombed Pearl Harbor. Theyalso point to manyLatin American, Eastern European, Caribbean and Asiancountries wheremilitary coups have deposed democratically electedgovernments andreplaced them with military leaders. The Justice Department could not be reached for comment. "I have not seen the case made that civilian authoritiescannot handle thingswithout the military," Cole says. "If the military isallowed to operate within theUnited States, then you really only have a democracy atthe sufferance of themilitary." ©2002 ABA Journal

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