Immediately after 11 September 2001, politicians looked to the military for a quick fix to the vulnerability exposed by terrorists. Not a week after the attacks, National Guard troops deployed to large airports with only vague orders as to how to protect the public. Since then, some administration officials and members of Congress have gone on record saying existing laws prohibiting the routine use of the military at home should be revisited.
Any discussion of this issue comes around to a federal statute enacted in 1878-the so-called Posse Comitatus Act. And while most commentators believe it a bastion against military tyranny, a close reading reveals that is not the case. True, the law prohibits willful uses of "any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws." But usually overlooked is the qualifying phrase, "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." This caveat specifically authorizes Congress to circumvent what most see as a general proscription. And Congress has often done so.
So what is the problem? Primarily, it is confusion as to what the Posse Comitatus Act actually says and does, exacerbated over the years by many inconsistent court interpretations and the disparate treatment given the armed forces of the Defense Department (DoD) and those of the states. Further obfuscating the issue are dozens of laws authorizing the use of military forces for domestic law enforcement, enacted before and since the Posse Comitatus Act became law. (All but a couple are still on the books.)
Not only scholars misconstrue the law. Mayors, governors, and even presidents faced with unrest their civilian forces alone cannot handle are also often bewildered. Disarray in this regard has often resulted in military personnel being used in wholly military units under military command when civilian law enforcement officers, supplemented by military personnel in a posse comitatus, would have been more apropos. (The posse comitatus is the same posse we all came to know through countless western films.)
Now many believe that a larger domestic law enforcement role for military units under military command is the solution to our newfound fear of terrorism. And to deal with the annoying Posse Comitatus Act there is another easy solution: repeal it.
Our goal should be to enable the rapid deployment of DoD personnel, equipment, techniques, and intelligence to augment civilian law enforcement resources whenever they are truly needed. But solely repealing the Act (as flawed as it is) would be a terrible mistake, leaving a vacuum in which the only guidance would be regulations promulgated (or withdrawn) by presidents and restrictions laid down by courts. To reach our goal, we need easily understood guidelines as to when, where, and how military forces may be used domestically.