America's New War?
Houston Chronicle and the Associated Press
November 9, 2001
SAN ANTONIO -- America is at war, and because it's generally thought that some enemies are within our borders, it makes sense to many to send the Army after them in the interest of homeland security. After all, the military is trained to find and engage hostile forces.
But with few exceptions, letting the military loose for domestic law enforcement has been a criminal act for more than a century.
The terrorist attacks of Sept. 11 have Pentagon officials, members of Congress and others thinking that it might be a good time to amend the Posse Comitatus Act of 1878, which 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.
"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?"
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 more terrorist acts.
"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 to nab illegal immigrants, or serving as armed sky marshals aboard air flights within the United States.
The issue of expanding the military's domestic reach sharply divides lawyers who've spent years studying and working with the Posse Comitatus Act, which excludes the Coast Guard or National Guard troops under the control of state governors.
Jeffrey Addicott, a retired lieutenant colonel in the Army's Judge Advocate General's Corps, wrote in an article last year that the law handcuffs the nation when it comes to responding to terrorist attacks.
"We've got a homeland defense office, but if there (are) 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.
He said the law, passed by Southern legislators angry about widespread use of the Army in post-Civil War law enforcement, has lost much of its relevance, and that worries about encroachment on civil liberties must be balanced against the need to protect Americans at home.
"This is a new kind of war. These (terrorists) will set off a nuclear device if they can," Addicott said. "We have to make a compromise now to prevent these guys from committing an act of terror on a larger scale.
"The question is, `Is there the political will to do it?' " he said. "Congress really has to take the ball. It's taken 5,000 casualties to figure this out."
But Dennis Corrigan, a retired colonel who for years taught Posse Comitatus at the Army's JAG school, says legislators should resist the urge to change the 123-year-old law.
"We have a long history of wanting our military to be involved in military actions against foreign powers and not operating domestically unless defending against a foreign force," said Corrigan, now a businessman in Guilford, N.H.
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, which have brought mixed results, have included using armed federal troops for drug interdiction and patrol of the U.S.-Mexico border to enforce immigration laws.
In 1997, a Marine corporal on a drug surveillance patrol shot and killed an 18-year-old goat herder in the desert near Redford about 200 miles southeast of El Paso. A Marine inquiry determined that its personnel were not adequately trained for the mission, and soon afterward such patrols ended.
Michael Spak, a former Army JAG colonel, says the exceptions made in the name of national security in recent decades have left Posse Comitatus a hollow shell of its original self. He says the law should be scrapped entirely.
"It's crazy to go through these machinations," said Spak, who now teaches at Chicago-Kent College of Law.
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."
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