The Posse Comitatus Act 

 and the United States 

 Army: A Historical 

 Perspective 

 

Combat Studies Institute Press

Fort Leavenworth, Kansas 

Matt Matthews

 

Global War on Terrorism

Occasional Paper 14
 The Posse Comitatus Act 

 and the United States 

 Army: A Historical

 Perspective

Combat Studies Institute Press

Fort Leavenworth, Kansas 

by 

Matt Matthews
Library of Congress Cataloging-in-Publication Data

Matthews, Matt , 1959-

 The Posse Comitatus Act and the United States Army : a historical perspective / 

by Matt Matthews.

 p. cm.

 Includes bibliographical references.

 1. United States. Army--Operations other than war. 2. United States. Army--

Civic action. 3. United States. Posse Comitatus Act (Use of Army). 4. Law 

enforcement--United States. I. Title. 

 UH723.M37 2006

 343’.0154--dc22

 2006003827

CSI Press publications cover a variety of military history topics. The views 

expressed in this CSI Press publication are those of the author and not necessarily 

those of the Department of the Army or the Department of Defense.

A full list of CSI Press publications, many of them available for downloading, can 

be found at http://cgsc.leavenworth.army.mil/carl/resources/csi/csi.asp.
iii

Foreword

Anytime the use of US Armed Forces in support of civil authorities 

is considered, government and military leaders, pundits, and citizens 

reflexively turn to the Posse Comitatus Act for guidance. Since 9/11, the 

US Armed Forces face an increased likelihood that they will be called on 

to participate in actions typically viewed as civil matters. Many have also 

called for an increased role for the US Armed Forces in responding to 

natural disasters. Though many constitutional provisions, laws, and legal 

rulings govern this question, in the minds of many, the Posse Comitatus 

Act has prominence. Most individuals think they know what the Posse 

Comitatus Act allows and disallows; most of them are wrong. 

Before 1878, the use of the US Army in support of and at times 

instead of civil law enforcement was rare; however, it was not considered 

unlawful. The Civil War and Reconstruction forced a reexamination of 

those precedents and the legal principles behind them. After the passage 

of the Posse Comitatus Act in 1878, the Armed Forces have been called 

on much less frequently to conduct civil law enforcement duties. When 

employed, their use has been controversial, and the constitutional basis for 

their use has been challenged in the media, in politics, and in the courts. 

In this monograph, Matt Matthews provides an insightful overview 

of the passage of the PCA during the Reconstruction era. He then reviews 

case studies in which the armed forces were called on to support civil 

authorities and examines how military leaders dealt with the provisions 

of the act. Finally, Mr. Matthews calls for a much-needed review of the 

act, now more than 125 years old. This monograph will be a useful read 

for military and civilian professionals alike who will likely be called on to 

make critical decisions regarding the use of US Armed Forces in support 

of civil authorities. CSI—The Past is Prologue.

Timothy R. Reese

Colonel, Armor

Director, Combat Studies Institute

v

Acknowledgments

When I arrived at the Combat Studies Institute (CSI), fellow research 

historian Major (Retired) Jim Gebhardt and Catherine Shadid Small, 

editor-extraordinaire, warmly welcomed me. Jim, took time to explore 

topics for my inaugural “Global War on Terrorism Occasional Paper,” and 

Catherine lent her considerable skills as an editor to the initial chapters 

of the project, offering suggestions and helping place me on the course 

to coherent rhetoric. Angela Bowman, accomplished editor, also afforded 

my work yet another set of expert eyes. Toward the end of the project, 

Betty Weigand, another talented CSI editor, contributed her considerable 

skill. Major (Retired) Kendall Gott, CSI historian, stopped by daily to 

offer advice on my project. I am extremely grateful to all of them for their 

help.

I would be remiss in not mentioning Colonel Timothy R. Reese, 

Director, Combat Studies Institute; Dr. William G. Robertson, Deputy 

Director, CSI and CAC Command Historian; as well as Lieutenant 

Colonel Steven E. Clay, Chief, Research and Publications Team. All three 

of these individuals saw the need for a study on the US Army and the 

Posse Comitatus Act and offered essential review and guidance.

The Combined Arms Research Library (CARL) at Fort Leavenworth 

was also a crucial asset in this endeavor. Their interlibrary loan staff 

performed astounding feats, many times procuring material the very next 

day.

Finally, I would like to thank my long-suffering wife, Susan Day 

Harmison, for whom I am deeply indebted. On numerous occasions, she 

was able to feign interest in this topic and, without her, this project would 

never have come to fruition.

vii

Contents

Page

Foreword ................................................................................................ iii

Acknowledgments ....................................................................................v

Introduction ..............................................................................................1

Chapter 1. The Army as a Posse Comitatus from 1787 to 1865 .............5

The Constitution ....................................................................5

The Judiciary Act and the Calling Forth Act .........................7

The Whiskey Rebellion .........................................................9

From Adams to Tyler ..........................................................13

The Army and the Fugitive Slave Act .................................14

Chapter 2. Reconstruction and the True Origins of the Posse

Comitatus Act ......................................................................23

Presidential Reconstruction .................................................23

Congressional Reconstruction .............................................24

President U.S. Grant Strikes Back ......................................27

The End of Reconstruction and the Passage of the 

Posse Comitatus Act ............................................................30

Chapter 3. Posse Comitatus Act Causes Confusion ..............................39

Chapter 4. The 1992 Los Angeles Riots and the Posse 

Comitatus Act .....................................................................47

Chapter 5. The Posse Comitatus Act and the Assault on 

the Branch Davidian Compound .........................................63

Chapter 6. Conclusions ........................................................................71

Bibliography ..........................................................................................75

Appendix. Statutory Exceptions to the Posse Comitatus Act ................81

About the Author ....................................................................................85
viii


Introduction

. . . the Army is not composed of lawyers, capable of 

judging at a moment’s notice of just how far they can go 

in the maintenance of law and order . . .

President Ulysses S. Grant, Letter

to Congress, 13 January 1875

Throughout much of this Nation’s history, times of turmoil have 

called into play an obscure and often indefinable law known as the Posse 

Comitatus Act (PCA). From its inception in 1878, lawmakers have heralded the act as a safeguard for limiting military involvement in civil law 

enforcement operations. Nevertheless, history clearly demonstrates that 

the initial intent of the law has been misconstrued. In times of crisis, the 

unclear and misleading nuances inherent in the act have hampered the 

expediency of military involvement. In many if not most cases where 

civic need has resulted in military involvement, controversy followed. 

In the wake of Hurricane Katrina, the Posse Comitatus Act is once 

again in the spotlight. Some military and political leaders credit the dilatory response to the catastrophe on the PCA, citing unclear perimeters for 

involvement. The highest level of government is currently debating this 

antiquated law with Senator John Warner, Chairman of the Senate Armed 

Forces Committee, pressing the Department of Defense for a complete 

review of the law. Newly appointed Chairman of the Joint Chiefs of Staff, 

General Peter Pace, has also recommended that political leaders consider 

modification to the PCA.1

In 2002, the United States Northern Command (NORTHCOM) (a 

headquarters that has sole operational authority over homeland military 

operations) prompted inquiries from the media and civil libertarians 

concerned that it may be overstepping its legal authority. In an effort to 

clarify its function and address the principles governing its actions, the 

NORTHCOM website devotes two pages to the Posse Comitatus Act.2

This study, designed as a short, concise monograph, provides 

fundamental information for those who may find themselves involved 

in supporting domestic law enforcement actions. Chapter 1 provides 

a brief overview of the US Constitution as it relates to civilian rule 

over the military as well as a succinct examination of the use of the 

Army in civil law enforcement until the Civil War. Chapter 2 offers an 

overview of Reconstruction and investigates the true origins of the 

Posse Comitatus Act. Chapter 3 discusses the 1973 Wounded Knee 

incident and the resulting court cases related to the PCA, along with the 
bewildering array of exceptions applied to the PCA in the war on drugs. 

Chapter 4 offers a historical vignette designed to demonstrate how the 

PCA created controversy during and following the 1992 Los Angeles 

riots, possibly slowing efforts to quell the uprising and permitting the 

violence to escalate and spread. Equally important, Chapter 5 examines 

the controversial 1993 Branch Davidian fiasco, which narrowly avoided 

a flagrant violation of the PCA. Finally, Chapter 6 examines the future of 

the Posse Comitatus Act and potential alternatives open to policy makers. 

With its expanded role in homeland defense and the Global War 

on Terrorism (GWOT), the US Army will undoubtedly serve more 

often in a domestic law enforcement capacity. It is, therefore, incumbent on those responsible for public policy to examine the PCA, 

clarify its intent, and rectify misunderstandings that could hamper expedient military involvement in the Global War on Terrorism. 

While such examinations are ongoing, it would behoove every officer and noncommissioned officer to have a firm understanding of the 

history of the act and its use and misuse historically by the US Army.
Notes

1. Art Pine, “Should Congress Scrap Posse Comitatus?” U.S. Naval 

Institute Proceedings, The Independent Forum on National Defense, December 

2005, 46–48.

2. US Northern Command, “Who We Are—Operating with the Law,” the 

Web page declares, “The PCA generally prohibits U.S. military personnel from 

direct participation in law enforcement activities. Some of those law enforcement 

activities would include interdicting vehicles, vessels, and aircraft; conducting 

surveillance, searches, pursuit and seizures; or making arrest on behalf of 

civilian law enforcement authorities. Prohibiting direct military involvement in 

law enforcement is in keeping with long-standing U.S. law and policy limiting 

the military’s role in domestic affairs.” [on-line]; available from http://www.

northcom.mil/index.cfm?fuseaction=s.who_operatinglaw; Internet; accessed 9 

January 2006.



Chapter 1

The Army as a Posse Comitatus from 1787 to 1865

A marshal of the United States, when opposed in the execution of his duty by unlawful combinations, has authority to summon the entire able-bodied force of his precinct 

as a posse comitatus. This authority comprehends, not 

only bystanders and other citizens generally, but any and 

all organized armed force, whether militia of the State, 

or officers, soldiers, sailors, and marines of the United 

States.

Attorney General Caleb Cushing, 27 May 1854

It is common today to find individuals from both ends of the political spectrum lecturing on the importance of the Posse Comitatus Act 

(PCA). Many pundits would have us believe the PCA is a pillar of freedom 

designed in complete accordance with the views expressed by the founding fathers.1

 Nothing, however, could be further from the truth. Contrary 

to popular opinion, the US Army throughout most of its history has played 

an important role in civil law enforcement. In fact, from 1807 to 1878 the 

United States government deemed the practice of using the Army and the 

federalized militia as a posse comitatus permissible.

The Constitution

Latin for “power of the county” or “the force of the county,” the posse 

comitatus in English law dates back to 1411. The regulation allowed local 

sheriffs to call on all citizens above the age of 15 to assist in maintaining order. By the late 18th century, the posse comitatus had become an 

acknowledged feature of one’s duty as a citizen.2

Without doubt, images of military dictator Oliver Cromwell usurping 

the power of Parliament or of British soldiers shooting down their own 

citizens during the Boston Massacre were seared into the memories of 

the delegates to the 1787 Constitutional Convention.3 By that time, the 

Declaration of Independence and the Articles of Confederation had 

already articulated the citizenry’s disdain for standing armies. While the 

specter of such an instrument rising up and crushing their new democratic 

experiment was ever present, the framers of the Constitution preferred not 

to regulate against it.4 In the end, the Constitution made the president the 

commander in chief of the military, to include the federalized state militia. 

As a counterweight, Congress would control the purse, reviewing Army 

appropriations every two years.5 Incidentally, the Constitution placed no 


similar control measure on the Navy, simply mandating that Congress 

“provide and maintain a Navy.”6 “Next to the effectual establishment of the 

Union,” James Madison explained in Federalist No. 41, “the best possible 

precaution against danger from standing armies is a limitation of the term 

for which revenue may be appropriated to their support. This precaution 

the Constitution has prudently added.”7

What the Constitution did not add, however, were any provisions prohibiting the use of the Army or federalized militia as a posse comitatus. 

Although debated by the Federalists and anti-Federalists alike, in the end 

the framers chose to ignore the issue altogether, the majority agreeing 

with the views expressed by Alexander Hamilton. “The army,” he wrote in

Federalist No. 8, “...may usefully aid the magistrate to suppress a small 

faction, or an occasional mob, or insurrection, [but] will be utterly incompetent to the purpose of enforcing encroachments against the united efforts 

of a great body of people.”8 Simply stated, the Army would never grow 

so large or become so powerful that it would menace the Republic; yet, 

it could be used to enforce the laws. Hamilton elaborated on this idea in 

Federalist No. 28:

That there may happen cases in which the National 

Government may be under the necessity of resorting to 

force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; 

that seditions and insurrections are, unhappily, maladies 

as inseparable from the body politic, as tumors and eruptions from the natural body. . . . Should such emergencies 

at any time happen under the National Government, there 

could be no remedy but force. The means to be employed 

must be proportioned to the extent of the mischief.9

In Federalist No. 29, Hamilton argued for allowing the federal 

government to summon a highly trained militia in an emergency so that it 

could “better dispense with the employment of a different kind of force.”10

In other words, as long as the government maintains a professional militia, 

it can forgo the use of a standing army. Although the founders preferred to 

use the militia to “execute the laws of the Union, suppress insurrections 

and repel invasions,”11 they failed to clearly bar the use of federal troops 

to enforce civil laws. In the end, the framers of the Constitution believed 

that military force used against citizens was a last resort, and the rule 

of law would always play a fundamental role in such an operation. As 

Richard H. Kohn so brilliantly states in his essay, “The Constitution and 

National Security: The Intent of the Framers,” “Defiance would be a 

confrontation between individuals and government, not member states and 
a confederacy, and thus within the capacity of the courts, the marshals, the 

posse comitatus, the militia, or finally the regular army to combat.”12

The Judiciary Act and the Calling Forth Act

When Congress passed the Judiciary Act of 1789 establishing the 

judicial courts as well as the US marshal structure, it clearly granted the 

marshal the “power to command all necessary assistance in the execution of 

his duty.”13 Even though the law did not specifically mention the marshal’s 

use of the military as a posse comitatus, the words “all necessary assistance” 

would seem to indicate that using the army or militia is permissible. An 

1878 opinion, issued by the attorney general, supports this fact:

It has been the practice of the Government since its organization (so far as known to me) to permit the military 

force of the United States to be used in subordination to 

the marshal of the United States when it was deemed necessary that he should have their aid. . . .This practice was 

deemed to be well sustained under the twenty-seventh 

section of the judiciary act of 1789, which gave to the 

marshal power “to command all necessary assistance in 

the execution of his duty” and was sanctioned not only by 

the custom of the Government but by several opinions of 

my predecessors.14

Congress more precisely defined its intent within three years of passing The Judiciary Act. On 2 May 1792, the Second Congress of the United 

States endorsed the Calling Forth Act. This law implied that a federal marshal could use the militia as part of a posse comitatus.

15

 The bill also authorized the president to call on the states’ militia forces (when Congress was 

out of session) to repel invasions from both foreign and domestic enemies, 

and to quell insurrections within the United States. More importantly, Section 2 of the act specifically spelled out the president’s authority in civil 

law enforcement matters:

That whenever the laws of the United States shall be 

opposed, or the execution thereof obstructed, in any state, 

by combinations too powerful to be suppressed by the 

ordinary course of judicial proceedings, or by the powers 

vested in the marshals by this act, the same being notified 

to the President of the United States, by an associate 

justice or district judge, it shall be lawful for the President 

of the United States to call forth the militia of such state 

to suppress such combinations, and to cause the laws to 

be duly executed. And if the militia of a state, where such 
combinations may happen, shall refuse, or be insufficient 

to suppress the same, it shall be lawful for the President, 

if the legislature of the United States be not in session, to 

call forth and employ such numbers of the militia of any 

other state or states most convenient thereto, as may be 

necessary, and the use of militia, so to be called forth, may 

be continued, if necessary, until the expiration of thirty 

days after the commencement of the ensuing session.16

As a measure of last resort before calling on the militias, Congress 

required the president to first issue a public statement that would “command such insurgents to disperse, and retire peaceably to their respective 

abodes, within a limited time.”17

With the passage of the Calling Forth Act, the legal framework was in 

place for the president to muster the states’ militias to suppress rebellion 

and uphold the laws of the land. On a lesser scale, the act provided the 

federal marshal the power to use the militia as a posse comitatus. One area 

of ambiguity was the use of regular troops. Arguably, both the president 

and the federal marshal could call on regular troops and militia. Robert 

Coakley demonstrates in his work The Role of Federal Military Forces in 

Domestic Disorders, 1789–1878 that while the framers of the Constitution 

didn’t legislate against it, they believed “the creation and use of a standing 

army to control the people was the greatest danger to be avoided.”18 Conversely, Coast Guard attorneys Commander Gary Felicetti and Lieutenant 

John Luce, in their skillfully constructed legal analysis of the PCA, maintain that, “The failure of the law to mention regular troops specifically may 

have been due to their small numbers in relation to the states militias.”19

US Marine Corps lawyer Major Clarence Meeks makes no such 

distinction in his legal appraisal, “Illegal Law Enforcement: Aiding Civil 

Authorities in Violation of the Posse Comitatus Act”:

The Act of 1792 . . . authorized the use of militia, not regulars, making an intentional distinction between the two 

components based on the constitutional provision which 

allowed the use of militia in executing the law. Unfortunately the passage of time eroded this distinction and regulars were called upon to serve in the marshal’s posse.”20

While the use of the Regular Army by the federal marshal remains 

open to interpretation, former US Coast Guard attorney Christopher A. 

Abel is convinced that, 
In spite of the framers’ desire to hold the nation’s military 

power in check, they did not prohibit the Army and Navy 

in enforcing the law of the land. Although the Constitution 

specifically gives responsibility for faithfully executing 

the laws of the United States to the commander in chief, 

it places no express limitation on his ability to employ the 

military in discharging his law enforcement obligation.21

In just over two years, the eruption of a tax revolt in western 

Pennsylvania tested the Constitution and the new laws on a grand scale.

The Whiskey Rebellion

When frontiersmen in western Pennsylvania rebelled against paying 

a federal excise tax on their whiskey and production facilities, President 

George Washington initially reacted with caution. However, in July 1794, 

after rebels burned the home of a federal tax collector, and several thousand insurrectionists gathered to challenge openly the authority of the federal government, it appeared that the Pennsylvania state authorities were 

unwilling or unable to restore order. In response, President Washington 

requested an opinion from Associate Supreme Court Justice James Wilson 

to determine whether the revolt was a “combination too powerful to be 

suppressed by the ordinary course of judicial proceedings” as the Calling 

Forth Act required. Within two days the judge responded, declaring “the 

laws of the United States are opposed, and the execution thereof obstructed 

by combinations too powerful to be suppressed by the ordinary course 

of Judicial proceedings or by the powers vested in the Marshal of the 

district.”22

On 7 August 1794, the president, as required by law, issued a proclamation ordering the insurgents to disband:

Wherefore . . . I, George Washington, President of the 

United States, do hereby command all persons being 

insurgents as aforesaid, and all others who it may concern, 

on or before the first day of September next, to disperse 

and retire peaceably to their respective abodes. And I do 

moreover warn all persons whomsoever against aiding, 

abetting, or comforting the perpetrators of the aforesaid 

treasonable acts; and do require that all officers and other 

citizens, according to their respective duties and the laws 

of the land, to exert their utmost endeavors to prevent and 

suppress such dangerous proceedings.23
10

Washington next sent commissioners into the western counties of 

Pennsylvania with the power to confer amnesty on those in revolt against 

the government, if they would agree to abide by the law. At the same time, 

the president requested the governors of several states to call out their 

militias. On 24 September, the peace commissioners reported that although 

they had made some progress, they felt they could not collect the excise 

tax in certain counties, and that they needed a more powerful force.

By October, Washington had federalized and assembled over 10,000 

militiamen to put down the rebellion. Nevertheless, his greatest concern 

was that the newly assembled army would circumvent civilian authority, 

and he worked diligently to prevent such an occurrence. In a masterful 

operations order clearly delineating the role of federalized militia and 

civil authorities, Alexander Hamilton laid out the president’s plan to the 

commanding general of the expedition:

The objects for which the militia have been called 

forth are:

1. To suppress the combinations which exist in 

some of the western counties of Pennsylvania in opposition to the laws laying duties upon spirits distilled within 

the United States and upon stills.

2. To cause the laws to be executed.

These objects are to be effected in two ways:

1. By military force.

2. By judiciary process and other civil proceedings.

The objects of military force are twofold:

1. To overcome any armed opposition which may 

exist.

2. To countenance and support the civil officers in 

the means of executing the laws.

With a view to the first of these two objects, you may 

proceed as speedily as may be, with the army under your 

command, into the insurgent counties to attack and, as 

far as shall be in your power, subdue all persons whom 

you may find in arms in opposition to the laws above 

mentioned. You will march your army in two columns 

from the places where they are now assembled, by the 

most convenient routes . . . bearing in mind that you 

ought to act, until the contrary shall be fully developed, 
11

on the general principle of having to contend with the 

whole force of the counties of Fayette, Westmoreland, 

Washington, and Allegheny, and of that part of Bedford 

which lies westward of the town of Bedford, and that you 

are to put as little as possible to hazard. . . . 

When arrived within the insurgent country, if an armed 

opposition appear, it may be proper to publish a proclamation inviting all good citizens, friends of the Constitution 

and laws, to join the United States. If no armed opposition exist, it may still be proper to publish a proclamation, 

exhorting to a peaceful and dutiful demeanor and giving 

assurances of performing, with good faith and liberality, 

whatsoever may have been promised by the commissioners to those who have complied with the conditions prescribed by them and who have not forfeited their title by 

subsequent misdemeanor.

Of these persons in arms, if any, whom you may make 

prisoners: Leaders, including all persons in command, are 

to be delivered to the civil magistrates; the rest to be disarmed, admonished, and sent home (except such as may 

have been particularly violent and also influential). . . .

With a view to the second point, namely, the countenance and support of the civil officers in the means of 

executing their laws, you will make such dispensations 

as shall appear proper to countenance and protect, and, 

if necessary and required by them, to support and aid the 

civil officers in the execution of their respective duties; 

for bringing offenders and delinquents to justice; for seizing the stills of delinquent distillers, as far as the same 

shall be deemed eligible by the supervisor of the revenue 

or chief officer of inspection; and also for conveying to 

places of safe custody such persons as may be apprehended and not admitted to bail.

The objects of judiciary process and other civil proceedings shall be:

1. To bring offenders to justice.

2. To enforce the penalties on delinquent distillers 

by suit.

3. To enforce the penalties of forfeiture on the same 
12

persons by seizure of their stills and spirits.

The better to effect these purposes, the judge of the 

district, Richard Peters, esq., and the attorney of the district, William Rawl, esq., accompany the army.

You are aware that the judge can not be controlled in 

his functions, but I count on his disposition to cooperate 

in such a general plan as shall appear to you consistent 

with the policy of the case; but your method of giving 

direction to proceedings, according to your general plan, 

will be by instructions to the district attorney. . . .

When insurrection is subdued and requisite means 

have been put in execution to secure obedience to the laws, 

so as to render it proper for the army to retire (an event 

which you will accelerate as much as shall be consistent 

with the object) you will endeavor to make an arrangement 

for attaching such a force as you may deem adequate, to be 

stationed within the disaffected counties in such a manner 

as best to afford protection to well-disposed citizens and 

officers of the revenue and to suppress by their presence 

the spirit of riot and opposition to the laws.

But before you withdraw the army you shall promise 

on behalf of the President a general pardon to all such as 

shall not have been arrested, with such exceptions as you 

shall deem proper. The promise must be so guarded as not 

to affect pecuniary claims under the revenue law. . . . 

You are to exert yourself by all possible means to 

preserve discipline amongst the troops, particularly a 

scrupulous regard to the rights of persons and property, 

and a respect for the authority of the civil magistrates, 

taking special care to inculcate and cause to be observed 

this principle, that the duties of the army are confined to 

attacking and subduing of armed opponents of the laws 

and to the supporting and aiding of civil officers in the 

executing of their functions.

24

In the end, the Whiskey Rebellion proved rather anticlimactic. With 

little bloodshed, Washington and his “Army of the Constitution” quickly 

restored order to the region. Hamilton’s instructions, skillfully written at 

the behest of the president, undoubtedly represent what the majority of 

America’s early lawmakers had envisioned. Knowing occasions would 
13

exist when the military would be summoned to deal with internal problems, 

they nonetheless expected that instrument to remain under the control of 

civil authorities. It is possible that Hamilton’s directive was the first and 

the last to define clearly the responsibilities of the military when called on 

to take part in civil operations. The Army’s subsequent roles in civilian 

law enforcement have never again been defined so distinctly.

From Adams to Tyler

On 28 February 1795, Congress revamped the Calling Forth Act of 1792. 

Delighted by Washington’s performance during the Whiskey Rebellion, 

Congress increased the president’s power. The president no longer had to 

rely on a judge before calling out the militia. More importantly, he could 

call forth citizen soldiers to put down insurrections and uphold the laws 

even when Congress was in session.25

In 1799, a minor tax rebellion in eastern Pennsylvania, eerily similar 

in some ways to the excise revolt faced by Washington in 1794, confronted 

President John Adams. Adams responded, to a great extent, in the same 

manner as Washington, albeit with one notable exception. Apparently 

unconcerned with any provisions in the Act of 1795, Secretary of War 

James McHenry called on both Regular Army units and militia forces to 

quell the insurrection. The great Federalist desire for a stronger central 

government and a more potent standing army surely played a role in this 

decision. The need for frugality, coupled with the need for expediency of 

action, prompted the employment of the Regular Army.26

In 1806 when Aaron Burr threatened to launch a filibuster against 

Spanish-held territories in Florida and Mexico, President Thomas Jefferson 

issued an edict demanding that “all officers civil and military,” along with 

“judges, justices, and other officers of the peace,” help crush what he 

considered a domestic rebellion. Concerned about the legalities of using 

the Regular Army, Jefferson consulted James Madison for a legal opinion. 

Madison responded by informing the president, “it does not appear 

that regular troops can be employed under any legal provision against 

insurrections—but only against expeditions having foreign countries as 

the object.”27 Exasperated by this perceived limitation on the executive 

branch, Jefferson requested that Congress grant him the power to use 

the Regular Army in cases of insurrections. On 3 March 1807, Congress 

passed a new act allowing the president to call on all land and naval forces 

to uphold the nation’s laws. Jefferson signed the bill into law five days 

later, significantly strengthening the president’s authority in cases of civil 

unrest.28
14

For the next 42 years, other presidents would use their enhanced power to face various challenges related to civil disorders. In 1849, the United 

States Supreme Court provided additional backing to the executive branch 

when it ruled in favor of President John Tyler, who had threatened to use 

military force against an armed uprising in Rhode Island during the Dorr 

Rebellion in 1842. In the case of Luther v. Borden, Chief Justice Roger B. 

Taney fully upheld the president’s prerogative stating:

It is said that this power in the President is dangerous to 

liberty, and may be abused. All power may be abused if 

placed in unworthy hands. But it would be difficult, we 

think, to point out any other hands in which this power 

would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against 

each other, and the constituted authorities unable to execute the laws, the interposition of the United States must 

be prompt, or it is of little value. The ordinary course of 

proceedings in courts of justice would be utterly unfit for 

the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the 

high responsibility he could not fail to feel when acting 

in a case of so much moment, appear to furnish as strong 

safeguards against a willful abuse of power as human prudence and foresight could well provide. At all events, it 

is conferred upon him by the Constitution and laws of 

the United States, and must therefore be respected and 

enforced in its judicial tribunals.29

The Army and the Fugitive Slave Act

With the passage of the Fugitive Slave Act in 1850, the Army was 

plunged into a boiling political caldron kindled by pro-slavery and freestate zealots. The new law bolstered both the Constitution and the 1793 

Fugitive Slave Law by making it the duty of US marshals and their deputies to apprehend escaped slaves anywhere in the United States or its territories when issued the proper documentation from federal authorities. The 

marshals were endowed with the power “to summon and call to their aid 

the bystanders, or posse comitatus of the proper county.” “All good citizens” were also “commanded to aid and assist in the prompt and efficient 

execution of this law, whenever their services may be required.” When 

President Millard Fillmore signed the legislation into law on 18 September 

1850, the ink had barely dried before outraged Northerners set out to forcibly scuttle the new act.30
15

When a federal marshal called on citizens to help guard an escaped 

slave in Pennsylvania, the crowd not only refused to take part in his posse 

but also freed his captive. As a result, court officials requested the president send soldiers to support the marshal. After an intense discussion with 

his cabinet, President Fillmore concluded that he did have the power to use 

the military to assist law enforcement officials in their efforts to uphold 

the law. Fillmore immediately ordered the Philadelphia-based Marines to 

support federal law enforcement officials, if a federal judge sanctioned 

the official’s request. The president was determined “to avoid the use of 

military force as far as possible”; however, he was just as resolute when 

he announced his willingness “to bring the whole force of the government 

to sustain the law.”31

Soon violence erupted in Boston, Massachusetts, when free black men 

released a fugitive slave and facilitated his flight to Canada. With Southern 

politicians clamoring for a federal response and abolitionists in Boston 

determined to resist the law, Secretary of War C.M. Conrad sent explicit 

orders to the federal troops in Boston:

It is possible that the civil authorities may find it necessary to call in military force to aid in the execution of the 

law. If such should be the case, and the marshal or any 

of his deputies shall exhibit to you the certificate of the 

circuit or district judge of the United States in the State 

of Massachusetts, stating that in his opinion the aid of a 

military force is necessary to insure the due execution of 

the laws, and shall require your aid and that of the troops 

under your command as part of the posse comitatus, you 

will place under the control of the marshal yourself and 

such portion of your command as may be deemed adequate to the purpose. If neither the circuit or district judge 

shall be in the city of Boston when the exigency above 

referred to shall occur, the written certificate of the marshal alone will be deemed sufficient authority for you to 

afford the requisite aid.32

In 1851, President Fillmore informed the United States Senate that it 

was his right to use the Army and the Navy to uphold the law. He also felt 

the Calling Forth Act of 1795 only required him to issue a public declaration to cease and desist, if he were calling out the militia, and did not 

apply to the president’s use of the Regular Army. Fillmore did not consider 

the 1807 law, believing it violated the president’s “constitutional authority.” Surprisingly, for a man so well acquainted with the Constitution and 
16

presidential prerogatives, Fillmore was uncertain whether federal enforcement agents could “summon as the posse comitatus an organized militia 

force, acting under its own appropriate officers, without the consent of 

such officers.”33

In reviewing the matter, the Senate Judiciary Committee stood firmly 

with Fillmore, finding that a marshal could call on both the militia and the 

Regular Army as a posse comitatus.

The committee are not aware of any reason that exempts 

the citizens who constitute the military and naval forces 

of the United States from like liability to duty. Because 

men are soldiers or sailors, they cease not to be citizens; 

and while acting under the call and direction of the civil 

authority, they may act with more efficiency, and without 

objection, in an organized form, under appropriate subordinate command.

In the end, however, the Judiciary Committee opted to remain silent on 

Fillmore’s views of presidential power and the law of 1807.34

By 1854, US marshals were turning more often to the military to assist 

in the return of fugitive slaves. Although these operations were never 

widespread or frequent, each one created a controversy. With the passage 

of the Kansas-Nebraska Act that same year, Northern outrage reached 

fever pitch and any small incident involving the return of escaped slaves 

only added to the conflagration. In May 1854, Boston once again became 

the scene of widespread chaos. In an effort to return a fugitive slave to 

Virginia, almost 1,600 military and police personnel formed what Robert 

W. Coakley describes as “the largest posse comitatus in the nation’s history.”35

 With President Franklin Pierce fully involved in coordinating the 

federal response to the mayhem in New England, his attorney general, 

Caleb Cushing, issued a legal opinion that clearly defined the responsibilities of the US marshal and the military:

A marshal of the United States, when opposed in the execution of his duty by unlawful combinations, has authority to summon the entire able-bodied force of his precinct 

as a posse comitatus. This authority comprehends, not 

only bystanders and other citizens generally, but any and 

all organized armed force, whether militia of the State 

or officers, soldiers, sailors, and marines of the United 

States.36
17

During the turbulent years preceding the Civil War, the US Army 

became increasingly engaged in peace-keeping efforts in the Kansas Territory, often providing soldiers to combat outbreaks of violence between 

pro-slavery and free-state forces. In 1857, unrest within the Mormon community in the Utah Territory prompted President James Buchanan to send 

Army troops to the region. Although their use was not widespread in this 

particular campaign, they did function as part of a posse comitatus for US 

judges and federal marshals.

One of the most significant events before the Civil War occurred in 

Harpers Ferry, Virginia, in the autumn of 1859. Attempting to ferment a 

slave revolt, John Brown and 18 abolitionists seized government buildings 

and hostages in what could be termed America’s first terrorist attack. The 

Secretary of War and President Buchanan acted swiftly to procure federal 

troops under the command of Colonel Robert E. Lee to crush the insurrection. The response of the US government to Brown’s raid may serve as 

a precursor for future military operations on American soil when terrorist 

attacks threaten to overwhelm local law enforcement.37

Concern over the military’s involvement in civil law enforcement 

would soon fall by the wayside as the country moved rapidly toward civil 

war. In the Reconstruction period that followed, however, Southern states, 

which had once championed the use of the Army as a civil law enforcement tool, would discover to their consternation just how well the Army 

could perform this mission.
18

Notes

1. “Civil libertarian groups such as the ACLU have been concerned about 

the Bush administration possibly casting a critical eye on the Posse Comitatus 

Act, particularly as the United States carries out its war against terrorists and 

implements its homeland defense strategy.” Kevin Drew, “ACLU examines 

Pentagon role in sniper probe: Military law experts warn of ‘slippery slope,’” CNN.

Com/Law Center, 17 October 2002 [on-line]; available from http://archives.cnn.

com/2002/LAW/10/16/sniper.military.libertarians/, accessed 12 September 2005; 

“After repeatedly denying they plan to undermine or alter the Posse Comitatus 

Act of 1878, . . . Bush administration officials are starting to change their tune. . . . 

Unsatisfied with the broad authority federal statutes already provide it, the Bush 

administration seems to be looking at something closer to the normalization of 

military law enforcement. That is a dangerous idea . . . ,” Gene Healy, “Misguided 

Mission for Military,” Cato Institute, 31 July 2002 [on-line]; available from 

http://www.cato.org/research/articles/healy-020731.html, accessed 12 September 

2005.

2. Black’s Law Dictionary simply describes the term as “a group of citizens who are called together to assist the sheriff in keeping the peace.” Bryan A. 

Garner, ed., Black’s Law Dictionary, 7th ed., s.v. “posse comitatus”; The Oxford 

Companion to Law more specifically defines it as: “In early English law, the force 

of able-bodied citizens of the county summoned and commanded by the sheriff to 

assist in maintaining public order, to pursue felons, or to participate in the military 

defense of the country. Attendance was enforced by the penalty of culvertage or 

turntail, which implied forfeiture of property and perpetual servitude. As the sheriff’s authority declined, the posse became a purely civil body and in time, the authority to call out such assistance was entrusted to justices and magistrates.” The 

Oxford Companion to Law (1980), s.v. “posse comitatus,” by David M. Walker.

3. “An English-speaking person” declared Dave R. Palmer, “could hardly 

have grown to adulthood in the eighteenth century and not have heard the haunting story of Oliver Cromwell.” Dave R. Palmer, 1794 America, Its Army, and 

the Birth of a Nation (Novato, CA: Presidio Press, 1994), 94–96; in his highly 

convincing work, The Role of Federal Military Forces in Domestic Disorders, 

1789–1878, Robert Coakley notes, “The image of hated Redcoats shooting down 

innocent citizens in the Boston Massacre of 1771 was a vivid one, easily transferable to any soldier employed as an instrument of internal control by the central 

government.” Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878, Army Historical Series (Washington, DC: Center of 

Military History, US Army, 1988), 3.

4. The insurrection in western Massachusetts known as Shay’s Rebellion 

(1786–87) also played a major role in the final outcome of the Constitutional Convention. When irate farmers rose up against authorities in the state, the national 

government found itself powerless to intercede. George Washington and many 

other Federalist were shocked by the proceedings. In a letter to James Madison, 
19

Washington wrote, “What stronger evidence can be given of the want of energy 

in our government than these disorders? If there exists not a power to check them, 

what security has a man for life, liberty, or property? Thirteen Sovereignties pulling against each other, and all tugging at the federal head will soon bring ruin to 

the whole. . . ”, Robert W. Coakley, Role of Federal Forces, 4–7.

5. US Constitution, art. II, sec. 2, “The President shall be Commander in 

Chief of the Army and Navy of the United States, and of the Militia of the several 

States, when called into actual Service of the United States. . . .” US Constitution, 

art. I, sec. 8 [12] “To raise and support Armies, but no Appropriations of Money to 

that Use shall be for a longer Term than two Years.” [14] “To make Rules for the 

Government and Regulation of the land and naval Forces.” [15] “To provide for 

calling forth the Militia to execute the Laws of the Union, suppress Insurrections 

and repel Invasions.” [16] “To provide for organizing, arming, and disciplining 

the Militia, and for governing such Part of them as may be employed in the Service of the United States. . . .” Laurence H. Tribe, American Constitutional Law

(Mineola: The Foundation Press, Inc., 1978), lviii, lx.

6. US Constitution, art. I, sec. 8 [13].

7. Alexander Hamilton, James Madison, and John Jay, The Federalist and 

Other Constitutional Papers, ed. E.H. Scott (Chicago: Scott, Foresman & Co., 

1898), 227.

8. Ibid., 46.

9. Ibid., 149–150.

10. Ibid., 155.

11. US Constitution, art. I, sec. 8 [15].

12. Richard H. Kohn, “The Constitution and National Security: The Intent 

of the Framers,” The United States Military Under the Constitution of the United 

States, 1789–1989 (New York: New York University Press, 1991), 67.

13. Act of 24 September 1789, chapter 20, 1 Stat. 73, sec. 27; http://www.

constitution.org/USlaw/judiciary_1789.htm, accessed 24 August 2005.

14. Op. Att’y Gen. 162, 163 (1878), quoted in Commander Gary Felicetti 

and Lieutenant John Luce, “The Posse Comitatus Act: Setting the Record Straight 

on 124 Years of Mischief and Misunderstanding Before Any More Damage Is 

Done,” Military Law Review 175 (March 2003): 98. 

15. Commander Gary Felicetti and Lieutenant John Luce assert, “the 1792 

amendment actually authorized the use of the militia to assist the marshal’s posse.” Felicetti and Luce, 98; Major Clarence I. Meeks also makes clear that the Act 

“authorized the use of the militia in various circumstances, for instance to assist 

the marshal’s posse in executing civil law.” Major Clarence I. Meeks III, “Illegal 

Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus 

Act,” Military Law Review 70 (Fall 1975): 88.
20

16. Act of 2 May 1792, chapter 28, Stat. I, sec. 2. The Library of 

Congress, American Memory: A Century of Lawmaking For a New Nation, U.S. 

Congressional Documents and Debates, 1774–1875, http://memory.loc.gov/cgibin/ampage?collId=11s1&filename=001/11s1001.db&recNum=387, accessed 24 

August 2005. 

17. Ibid., sec. 3. 

18. Coakley, Role of Federal Forces, 19.

19. Felicetti and Luce, “Setting the Record Straight,” 98.

20. Meeks, 88.

21. Christopher A. Abel, “Not Fit for Sea Duty: The Posse Comitatus Act, 

The United States Navy, and Federal Law Enforcement at Sea,” William and Mary 

Law Review 31 (1990): 445.

22. Coakley, Role of Federal Forces; Robert W. Coakley, “Federal Use of 

Militia and the National Guard in Civil Disturbances: The Whiskey Rebellion to 

Little Rock,” Bayonets in the Streets: The Use of Troops in Civil Disturbances, 

ed. Robin Higham (Lawrence: University Press of Kansas, 1969), 18–19; Leland 

D. Baldwin, Whiskey Rebels: The Story of a Frontier Uprising (Pittsburgh: The 

University of Pittsburgh Press, 1939), 184–185.

23. John C. Fitzpatrick, ed., The Writing of George Washington from the 

Original Manuscript Sources, 1745–1799, 33 (Washington, DC: US Government 

Printing Office, 1940), 460–461.

24. Harold C. Syrett, ed., The Papers of Alexander Hamilton, Volume 17, 

August 1794–December 1794 (New York: Columbia University Press, 1972), 

331–336.

25. “. . . And in the case of insurrection in any state, against the government 

thereof, it shall be lawful for the President of the United States, on application of 

the legislature of such state or of the executive (when the legislature cannot be 

convened), to call forth such number of the militia of any state or states, as may 

be applied for, as he may judge sufficient to suppress such insurrection. . . . That 

whenever the laws of the United States shall be opposed, or the execution thereof 

obstructed, in any state, by combinations too powerful to be suppressed by the 

ordinary course of judicial proceedings, or by the powers vested in the marshals 

by this act, it shall be lawful for the President of the United States, to call forth the 

militia of such states, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of 

militia so called forth may be continued, if necessary, until the expiration of thirty 

days after the commencement of the next session of Congress.” Act of 28 February 1795, Stat. II, chapter 36, sec. 1, 2. See The Library of Congress, American 

Memory: A Century of Lawmaking For a New Nation.

26. Coakley, Role of Federal Forces, 69–77; Interestingly, Alexander 

Hamilton was convinced the government “...ought to appear like Hercules and 
21

inspire respect by the display of strength.” Ralph Adams Brown, The Presidency 

of John Adams (Lawrence: University Press of Kansas, 1975), 127–128.

27. Dumas Malone, Jefferson the President: Second Term, 1805–1809

(Boston: Little, Brown and Company, 1974), 252–253.

28. “That in all cases of insurrection, or obstruction to the laws, either of 

the United States, or of any individual State or Territory where it is lawful for the 

President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful 

for him to employ for the same purposes, such part of the land or naval forces 

of the United States, as shall be judged necessary, having first observed all the 

pre-requisites of the law in that respect.” Public Acts of Congress, An Act authorizing the employment of the land and naval forces of the United States, in cases 

of insurrections, See The Library of Congress, American Memory: A Century 

of Lawmaking For a New Nation, U.S. Congressional Documents and Debates, 

1774–1875. Annals of Congress, 9th Congress, 2d Session, 1285 [on-line]; available from http://memory.loc.gov/cgi-bin/ampage, accessed 7 September 2005.

29. Luther v. Borden, Supreme Court of the United States, 1849, 48 U.S. 

(7 How.) 1, 12 L.Ed. 581; available from http://www.cornellcollege.edu/politics/

courses/Allin/365-366/documents/luther_v_borden.pdf, accessed 7 September 

2005.

30. Art. IV, sec. 2, of the United States Constitution states: “No Person held 

to Service or Labour in one State, under the Laws thereof, escaping into another, 

shall, in Consequence of any Law or Regulation therein, be discharged from such 

Service or Labour, but shall be delivered up on Claim of the Party to whom such 

Service or Labour may be due.” Laurence H. Tribe, American Constitutional 

Law, lxi–lxii; The Fugitive Slave Law of 1793, art. 4, “For the better security 

of the peace and friendship now entered into by the contracting parties, against 

all infractions of the same, by the citizens of either party, to the prejudice of the 

other, neither party shall proceed to the infliction of punishments on the citizens 

of the other, otherwise than by securing the offender, or offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be had 

by judges or juries of both parties, as near as can be, to the laws, customs, and 

usage’s of the contracting parties, and natural justice: the mode of such trials to 

be hereafter fixed by the wise men of the United States, in congress assembled, 

with the assistance of such deputies of the Delaware nation, as may be appointed 

to act in concert with them in adjusting this matter to their mutual liking. And it 

is further agreed between the parties aforesaid, that neither shall entertain, or give 

countenance to, the enemies of the other, or protect, in their respective states, 

criminal fugitives, servants, or slaves, but the same to apprehend and secure, and 

deliver to the state or states, to which such enemies, criminals, servants, or slaves, 

respectively below.” The University of Oklahoma Law Center, http://www.law.

ou.edu/hist/fugslave.html, accessed 8 September 2005.

31. Robert J. Rayback, Millard Fillmore: Biography of a President
22

(Newtown: American Political Biography Press, 1959), 268–271.

32. Frederick T. Wilson, Federal Aid in Domestic Disturbances, 1781–1903, 

67th Cong., 2d sess., S. Doc. No. 263; quoted in Coakley, Role of Federal Forces, 

129.

33. Coakley, Role of Federal Forces, 129–130.

34. Ibid., 130–131.

35. Ibid., 137.

36. Extradition of Fugitives from Service, US Attorney General Opinion, 

Vol. 6, 466, 1854; quoted in Coakley, Role of Federal Forces, 132.

37. According to Ken Chowder, “The Oklahoma City bombing in 1995 was 

a frontal attack on a US government building, just like the Harpers Ferry raid. 

Antiabortion murders, government bombings, anarchist bombs in the mail—

nearly every time political violence surfaces, it gets described in the press as a 

part of a long American tradition of terrorism, with John Brown as a precursor 

and hero, a founding father of principled violence.” Ken Chowder, “The Father of 

American Terrorism,” American Heritage (February/March 2000): 91; Coakley, 

Role of Federal Forces, 188–193; “The QRF troops are ‘not for the purposes of 

law enforcement but to engage in warfighting on our own soil, if the use of military power is essential to the defeat [of] terrorists attacking within our own country,’ Assistant Secretary of Defense for Homeland Defense Paul McHale said in a 

June 9 speech at the Heritage Foundation. ‘We have—and we want our adversaries to know we have—U.S. Army units [and] sometimes U.S. Marine Corps units 

on alert for ground deployment in the United States, if high-end military power is 

required to assure the safety of the American people within our own country in a 

warfighting role.’” Elaine M. Grossman, “DOD Urged to Ready Troops Against 

Larger Terrorist Force in US,” Inside the Pentagon (21 July 2005): 1, http://ebird.

afis.mil/e20050721380627.html, accessed 21 July 2005.
23

Chapter 2

Reconstruction and the True Origins of the

 Posse Comitatus Act

So how did a racist law from the bitter Reconstruction 

period morph, in many minds, into shorthand for the 

respected principle that Americans do not want a military 

national police force?

Gary Felicetti and John Luce, Parameters

After four years of unprecedented bloodshed, the Civil War came to a 

tentative close at Appomattox Courthouse, Virginia, on 9 April 1865. With 

the assassination of President Abraham Lincoln less than a week later, 

Vice President Andrew Johnson found himself in the unenviable position 

of commander in chief at a time of national disunity and crisis. Johnson’s 

challenge would be to bring together a deeply fractured nation, calm the 

masses, and restore stability. The new president was ill prepared for this 

task.

Presidential Reconstruction

Under Johnson’s Reconstruction plan, or “restoration” as he equated 

it, the president sought to bring the errant Confederate states back into 

the Union. Although Johnson’s approach required Southern states to ratify the 13th Amendment1

 to the Constitution and renounce their debt and 

ordinances of secession, his policy was, for the most part, extraordinarily 

charitable. Johnson was convinced “the only safety of the nation lies in a 

generous and expansive plan of conciliation, and the longer this is delayed, 

the more difficult will it be to bring the North and the South into harmony.”2

For the newly emancipated black population, however, there would be no 

conciliation, for in Johnson’s view “white men alone must manage the 

South.”3 Black suffrage was never high on the president’s agenda, and 

according to Eric Foner in Reconstruction: America’s Unfinished Revolution, 1863–1877, “Johnson never wavered from the conviction that the 

federal government lacked the authority to impose such a policy upon the 

states, and that the status of blacks must not become an obstacle to the 

speedy completion of Reconstruction.”4 In the South, whites denounced 

the US Army occupation and were outraged that the initial occupation 

force consisted of more than 100,000 black federal soldiers.5

By the close of 1865, Johnson had appointed scores of pardoned exConfederates to preside over Southern state governments. Taking full 

advantage of Johnson’s altruistic agenda, newly formed pro-Confederate 
24

state administrations sprang up throughout the South. These traditionalist 

governments acted quickly to pass new laws, known as “Black Codes,” 

severely limiting the rights of blacks. Describing the Southern state leaders’ intent to keep the black population under the thumb of a white government, politician Benjamin F. Flanders stated, “Their [the South’s] whole 

thought and time will be given to plans for getting things back as near to 

slavery as possible.”6

 One exasperated US Army colonel reported to his 

superior officer his impression of the Southern way of thinking:

Men, who are honorable in their dealings with their white 

neighbors, will cheat a negro without feeling a single 

twinge of their honor; to kill a negro they do not deem 

murder; to debauch a negro woman they do not think fornication; to take property away from a negro they do not 

deem robbery. . . . They still have the ingrained feeling that 

the black people at large belong to the whites at large.7

Johnson’s liberal approach to Reconstruction produced a resurgence 

of conservative state governments across the South that encouraged unimpeded racism and terror campaigns against the black population.

While the Army tried to maintain some semblance of order and justice using military commissions, provost courts, and courts established 

by the Freedman’s Bureau,8 President Johnson continually hampered their 

efforts. As Harold M. Hyman makes clear, “Many of the [Southern] officials who were responsible for law and order in their communities chose 

not to punish terrorism directed against blacks, white Unionist civilians, 

and bluecoats. Johnson was choosing increasingly to support the attackers, 

not the victims.”9

Congressional Reconstruction

Outraged by the atrocities occurring throughout the South, an invigorated and radicalized Congress struck back. In April 1866, after overriding 

President Johnson’s veto, Congress passed the Civil Rights Act, a direct 

assault on the Southern “Black Codes.” The new law made anyone born in 

the United States a citizen (with the exception of Native Americans) and 

greatly expanded the rights of blacks. Interestingly, the Civil Rights Act 

contained a posse comitatus clause almost identical to the one used in the 

Fugitive Slave Act of 1850:

And be it further enacted, That it shall be the duty of all 

marshals and deputy marshals to obey and execute all 

warrants and precepts issued under the provisions of this 

act, when to them directed; and should any marshal or 
25

deputy marshal refuse to receive such warrant or other 

process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, 

be fined in the sum of one thousand dollars, to the use 

of the person upon whom the accused is alleged to have 

committed the offense. And the better to enable the said 

commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United 

States and the requirements of this act, they are hereby 

authorized and empowered, within their counties respectively, to appoint, in writing, under their hands, any one 

or more suitable persons, from time to time, to execute 

all such warrants and other process as may be issued by 

them in the lawful performance of their respective duties; 

and the persons so appointed to execute any warrant or 

process as aforesaid shall have authority to summon and 

call to their aid the bystanders or posse comitatus of the 

proper county, or such portion of the land or naval forces 

of the United States, or of the militia, as may be necessary to the performance of the duty with which they are 

charged, and to insure a faithful observance of the clause 

of the Constitution which prohibits slavery, in conformity 

with the provisions of this act; and said warrants shall run 

and be executed by said officers anywhere in the State or 

Territory within which they are issued.10

Congress fired a second volley into President Johnson’s policies on 

13 June 1866 when it proposed the 14th Amendment to the US Constitution. Section 1 of this amendment proclaimed, in part, that no state can 

“deprive any person of life, liberty, or property, without due process of 

law; nor deny to any person within its jurisdiction the equal protection 

of the laws.”11 In July 1866, in support of Congress’ efforts to protect 

black Southern citizens, General in Chief Ulysses S. Grant issued General 

Order No. 44 empowering US Army forces in the South to arrest anyone 

involved in crimes aimed at “citizens and inhabitants of the United States” 

when local law enforcement failed to do so.12

After making significant gains in the elections of 1866, radical Republicans in the 39th Congress passed the First Reconstruction Act on 2 March 

1867,13 setting in motion a series of events that would result in US Army 

control of governments across the South. Claiming that “no legal State governments or adequate protection for life or property now exist in the rebel 
26

States,” Congress declared the existing Southern governments merely provisional. A military commander who was empowered under ensuing acts 

to remove any official from office would now control the Southern states 

(except Tennessee, which had already rejoined the Union). The Army 

would enforce the rules, guaranteeing the protection of “all persons in their 

rights of person and property,” and “to suppress insurrections, disorders, 

and violence, and to punish, or cause to be punished, all disturbers of the 

public peace and criminals.”14 More importantly, the Army would ensure 

black males were allowed to vote and that former Confederates were not. 

Under these new rules, the South held constitutional conventions and the 

voters approved new, more liberal state constitutions. Once a state ratified 

the 14th Amendment, it was reinstated to the Union and the Army’s protective presence was withdrawn. With the Army shielding black and white 

Republicans at the polls and former Confederates denied the right to vote, 

groundbreaking interracial Republican governments sprang up throughout 

the South. These radical administrations quickly ratified the 14th Amendment, and by 1870, the Union had readmitted all Southern states. Through 

it all the Army played a highly visible role. As Harold M. Hyman stated in 

his article on the Civil War reconstruction period, the Army’s responsibilities included:

. . . initiating and implementing state-making on the basis 

of biracial citizen participation. Protecting the personnel 

of the federal courts and Freedmen’s Bureau, shielding 

blacks and whites who collaborated in the new order of 

equality under state law from retaliations by indignant 

vigilante neighbors, and monitoring the quality of daily 

marketplace justice in ten thousand villages.15

As the Union readmitted the new Republican governments, the Army, 

which had helped place them in power, relinquished control.

Angered by Congress’ attempt to ensure equal rights for blacks and 

whites, the Southern white majority continued their terror campaign. By 

1866, the Ku Klux Klan had gained influence among angry and disgruntled 

white Southerners. The Klan was responsible for an unparalleled wave of 

violence that included political assassinations, mass murder, arson, and 

other terrorist acts designed to intimidate supporters of the new Republican 

governments and their civil rights programs.16

In response to the escalating violence, the Republican governments 

of Alabama, Florida, Louisiana, and Tennessee immediately requested 

aid from the federal government to combat the Klan. As a rule, President 

Johnson remained detached from the situation, simply passing the states’ 
27

requests on to a bewildered War Department. Attorney General William 

W. Evarts finally formulated a plan to help the besieged states. In formulating his legal opinion, Evarts, referring to the Cushing Doctrine of 1854, 

concluded that federal marshals could request assistance from the Army 

and that soldiers serving in the posse comitatus must follow the orders 

of the marshal. “They should be used,” Evarts stipulated, only in “rare 

cases of necessity.” Evarts drew a distinct line between use of the Army to 

support civil law enforcement and the president’s constitutional authority 

to use force.17 The War Department clarified Evarts opinion, finding that 

when the military is summoned to support civil law enforcement, the military chain of command remained intact and orders would pass through the 

military chain of command:

The obligation of the military individual officers and 

soldiers in common with all citizens, to obey the summons of a marshal or sheriff must be held subordinate to 

the paramount duty as members of a permanent military 

body. Hence the troops can act only in their proper organized capacity, under their own officers, and in obedience 

to the immediate orders of those officers.18

The War Department further clarified the process by naming the president as the final approving authority for the use of the military in support 

of civilian authorities: 

If time will permit every demand from a civil officer for 

military aid, whether it be for the execution of a civil process or to suppress insurrection, should be forwarded to 

the President with all the material facts of the case, for 

his orders; and in all cases the highest commander whose 

orders can be given in time to meet the emergency will 

alone assume the responsibility of action.19

President U.S. Grant Strikes Back

Congress and the Army found a leader in Ulysses S. Grant, inaugurated 4 March 1869 as 18th President of the United States, with whom 

they could more easily work. As the Klan continued their intimidation 

tactics and murderous activities in the South, Grant and Congress were 

committed to crushing them. 

After dismantling Georgia’s state government for the second time, and 

passing two enforcement acts to deal with the Klan, Congress passed a 

third and more draconian measure known as the Ku Klux Klan Act on 

20 April 1871. Sections 3 and 4 of the act articulate the extreme measures 
28

Congress was prepared to take to curtail terrorist activities on American 

soil:

Section 3. That in all cases where insurrection, domestic 

violence, unlawful combinations, or conspiracies in any 

State shall so obstruct or hinder the execution of the laws 

thereof, and of the United States, as to deprive any portion 

or class of the people of such State of any of the rights, 

privileges, or immunities, or protection, named in the 

constitution and secured by this act, and the constituted 

authorities of such State shall either be unable to protect, 

or shall, from any cause, fail in or refuse protection of the 

people in such rights, such facts shall be deemed a denial 

by such State of the equal protection of the laws to which 

they are entitled under the constitution of the United 

States: and in all such cases . . . it shall be lawful for the 

President, and it shall be his duty to take such measures, 

by the employment of the militia or the land and naval 

forces of the United States, or of either, or by other means, 

as he may deem necessary for the suppressions of such 

insurrection, domestic violence, or combinations. . . .

Section 4. That whenever in any State or part of a State 

the unlawful combinations named in the preceding section 

of this act shall be organized and armed, and so numerous and powerful as to be able, by violence, to either 

overthrow or set at defiance the constituted authorities of 

such State, and of the United States within such State, or 

when the constituted authorities are in complicity with, 

or shall connive at the unlawful purposes of, such powerful and armed combinations; and whenever, by reason of 

either or all of the causes aforesaid, the conviction of such 

offenders and the preservation of the public safety shall 

become in such district impracticable, in every such case 

such combinations shall be deemed a rebellion against the 

government of the United States and during the continuance of such rebellion, and within the limits of the district 

which shall be so under the sway thereof, such limits to 

be prescribed by proclamation, it shall be lawful for the 

President of the United States, when in his judgment the 

public safety shall require it, to suspend the privileges of 

the writ of habeas corpus, to the end that such rebellion 

may be overthrown: Provided, That all the provisions of 
29

the second section of [the Habeas Corpus Act of 3 March 

1863], which relate to the discharge of prisoners other 

than prisoners of war, and to the penalty for refusing to 

obey the order of the court, shall be in full force so far as 

the same are applicable to the provisions of this section: 

Provided further, That the President shall first have made 

proclamation, as now provided by law, commanding such 

insurgents to disperse: And provided also, That the provisions of this section shall not be in force after the end of 

the next regular session of Congress.20

With only 6,000 troops available, the Army was spread too thin to support all the beleaguered Republican governments across the South. However, Attorney General Amos T. Akerman and Solicitor General Benjamin 

H. Bristow were determined to use the new laws to stamp out the Klan. 

In North Carolina, the Army, serving as a posse comitatus, assisted attorneys and federal marshals in rounding up hundreds of suspected Klansmen. Many of those arrested received lengthy prison terms. Mississippi 

alone handed down more than 700 indictments, and grand juries across the 

South imposed 3,000 indictments.21

On 30 March 1870, President Grant oversaw the ratification of the 

15th Amendment to the Constitution22 and in May 1871, on the heels of the 

passage of the Ku Klux Klan Act, ordered the Army to:

. . . be employed by their commanding officers in assisting the authorized civil authorities of the United States in 

making arrest of persons accused under the said act; in 

preventing the rescue of persons arrested for such cause; 

in breaking up and dispersing bands of disguised marauders, and of armed organizations, against the peace and 

quiet or lawful pursuits of the citizens in any state.23

In October 1871, Grant, after issuing two proclamations for the Klan 

to cease and desist, suspended the writ of habeas corpus in several northern counties of South Carolina. Under the control of a federal marshal, the 

Army conducted a coordinated sweep of the countryside, rounding up 600 

men with ties to the Klan. Many were tried and sent to prison in Albany, 

New York, under the watchful eye of the US Army. By the fall of 1871, the 

Army had provided support for 200 posses in South Carolina alone.24

The Ku Klux Klan Act and the power of the posse comitatus doctrine 

had enabled the president to utilize the Army to suppress some of the most 

heinous terrorist organizations in American history. By 1872, the Army 

was partially responsible for vanquishing the Klan from the South, greatly 
30

reducing the amount of violence.25 Despite the fact that the Army had 

dismantled the active terrorist cells, white Southerners were determined 

to carry on their battle through legitimate channels. Leaders in the Ku 

Klux Klan and the other terrorist organizations sought legitimate political 

means to regain power. Although the Army had thwarted their campaign 

of violence and quest for white supremacy, the Klan’s desire to succeed 

had not diminished and the role the US Army played in their downfall 

would not be forgotten.26

The End of Reconstruction and the Passage of the Posse 

Comitatus Act

With the passage of the Amnesty Act of 1872 (a bill authorizing nearly 

all ex-Confederates to once again hold office) and with Northern Republican support for Southern reconstruction rapidly fading, white Southerners 

began to gain political strength.27 As the US Army gradually decreased its 

role in the South as a protector of the radical Republican regimes, white 

Democratic governments began to reestablish control. With the military 

presence not as visible in the South, rebel activists again terrorized black 

voters. As John Franklin points out, “Negroes could hardly be expected to 

continue to vote when it cost them not only their jobs but their lives. In one 

state after another, the Negro electorate declined steadily as the full force 

of the Klan came forward to supervise elections that federal troops failed 

to supervise.”28 By 1874, the Democratic Party had regained control of 

the House of Representatives, and by 1876, only Louisiana, Florida, and 

South Carolina remained under radical Republican control.

With the approach of the 1876 presidential election, white Democrats in Louisiana flogged blacks, harassed Republicans, and slaughtered 

elected officials. The actions of white Democrats “would have disgraced 

Turks in Bulgaria,” reported Harper’s Weekly.

29 In South Carolina, open 

warfare broke out between blacks and whites with Democrats proclaiming 

they would win the election “if we have to wade in blood knee-deep.”30

Alphonso B. Taft, Grant’s new attorney general, responded to the escalating crisis by informing US marshals in the South they were responsible 

for maintaining order at the polling places. Taft advised the marshals that 

they had the power to call on the Army as a posse, and the War Department seconded the attorney general’s orders by directing military officers 

to comply with the wishes of the marshals. Federal deputy marshals were 

immediately dispatched to supervise the election proceedings while Army 

commanders once again pre-positioned troops across the South, ready to 

respond to any chaos around the polls. As a result of the Army’s visible 

presence, author Robert Coakley points out that “election day itself passed 
31

without any major disturbance anywhere in the South, although certainly 

this peaceful result was in part due to the positioning of the troops.”31

The presidential race of 1876 between Republican Rutherford B. 

Hayes and his Democratic opponent Samuel J. Tilden was so close that a 

special commission, comprised of members of the House, the Senate, and 

the Supreme Court, was required to determine the winner. In return for a 

Democratic promise not to challenge the commission’s findings, Presidentelect Hayes, in what can only be described as a “back-room deal,” vowed 

to remove a large portion of the Army from the South.32 Furthermore, he 

assured Southerners that the federal government would no longer interfere 

in their internal affairs.33 In this so called “Compromise of 1876,” black 

civil rights became the first casualty. The newspaper The Nation reported, 

“The negro will disappear from the field of national politics. Henceforth, 

the nation, as a nation, will have nothing more to do with him.”34 W.E.B. 

DuBois affirmed the true meaning of the compromise when he wrote “The 

slave went free; stood a brief moment in the sun; then moved back again 

toward slavery.”35

As large segments of the US Army pulled out of the South, white 

Democratic Southerners rejoiced. In his book After Appomattox: How the 

South Won the War, Stetson Kennedy proclaimed that: 

Scenes enacted all across the South served to ease somewhat the bitterness that Appomattox had engendered in 

the hearts of Southern whites. The departing U.S. troops 

did not lay down their arms as the Confederates had been 

required to do at Appomattox, and Grant was not there to 

give Lee back his sword; but the final victory was nonetheless sweet.36

However, several questions remained unanswered for Southern 

whites. How could they protect themselves from another Reconstruction 

procedure? How could they stop federal marshals from calling on the 

few remaining soldiers as a posse? “What good was home rule,” Stetson Kennedy wrote, “if there were going to be U.S. marshals all over the 

place?”37

Shortly after the election, Democrats began to allege that Tilden would 

have been triumphant in Louisiana and South Carolina if federal troops 

protecting the polls had not frightened away white Democratic voters. The 

facts, however, would indicate that the Army had actually kept the Klan 

from menacing Republicans at the polls. Nonetheless, Democrats in the 

House of Representatives demanded answers from President Grant. Grant 

responded to the allegations by the Democrats that he had “been guided 
32

by the Constitution and the laws which have been enacted and the precedents which have been formed under it.”38 He informed Congress that 

he had acted under Article IV, Section 4, of the Constitution and under 

the Revised Statutes of 1874, specifically RS5297. As Congress codified 

all federal laws in 1874, RS5297 combined the Calling Forth Act of 1795 

and the 1807 law, which enabled the president to use the Regular Army. 

Revised Statutes 2002 and 5528 also allowed the Army to “repel the armed 

enemies of the United States or to keep peace at the polls.”39 In his report 

to Congress, Grant made no mention whatsoever of the posse comitatus 

doctrine and its frequent application during the Reconstruction period.40

In 1877, with Democrats firmly in control of the House of Representatives, retribution for the Army’s role in the Reconstruction began. With one 

Southern congressional representative calling the acts of the Army “tyrannical and unconstitutional,” Democrats in the 44th Congress attempted to 

attach a rider to the Army’s appropriations bill that would prohibit the use 

of the Army in state political quarrels without the approval of Congress. 

The bill was defeated in the Senate, and Congress adjourned without an 

authorization to pay the Army’s bills, including the salaries of thousands 

of soldiers, for nearly a year. 

By the time the 45th Congress met in November 1877, Southern 

Democrats had gained even more seats, and again declared vengeance on 

the Army. Maryland Democratic Congressman William Kimmel attempted 

to attach a new amendment to the Army appropriations bill that would make 

it unlawful “to use any part of the land or naval forces of the United States 

to execute the laws either as a posse comitatus or otherwise, except in such 

cases as may be expressly authorized by act of Congress.” In debating the 

matter, Kimmel revealed his disdain of soldiers in the Regular Army:

He lives by blood! His is a business apart from the people. . . . [H]is habits unfit him for the relations of civil 

life. . . . He sacks, desecrates, indulges when and where 

he dares. He serves, obeys, destroys, kills, suffers[,] and 

dies for pay. He is a mercenary whom sloth, luxury[,] and 

cowardice hires to protect its ease, enjoyment, and life.41

Ironically, Southerners once applauded the use of the Army to assist in the 

return of their fugitive slaves.

After much political wrangling, Kentucky Congressman J. Proctor 

Knott introduced the following amendment to the Army appropriations 

bill:

From and after the passage of this act it shall not be lawful 

to employ any part of the Army of the United States as 
33

a posse comitatus, or otherwise, for the purpose of 

executing the laws, except in such cases and under such 

circumstances as such employment of said force may 

be expressly authorized by the Constitution or by act of 

Congress; no money appropriated by this act shall be used 

to pay any of the expenses incurred in the employment 

of any troops in violation of this section and any person 

willfully violating the provisions of this section shall 

be deemed guilty of a misdemeanor, and on conviction 

thereof shall be punished by fine not exceeding ten 

thousand dollars or imprisonment not exceeding two 

years, or by both such fine and imprisonment.42

The Knott Amendment became known as the Posse Comitatus Act. 

This amendment passed the House and the Senate as part of the Army 

appropriations bill, and President Hayes signed it on 18 June 1878. 

Though a few congressional representatives from Northern and Western 

states voted for the amendment after witnessing the acts of the Army during labor disputes in 1877, the Southern Democrats carried the amendment through Congress.43 Consequently, there can be little doubt that the 

Posse Comitatus Act was a direct result of the Army’s involvement in 

Reconstruction and the military’s involvement in Grant’s campaign against 

the Klan. In fact, the act was almost certainly intended as one last bulwark 

against federal meddling in the internal affairs of the white supremacist 

South.44 It is perhaps the ultimate irony that a nation conceived in liberty 

and dedicated to democratic ideals has until this time upheld the precepts 

of the Posse Comitatus Act, a law with origins in oppression and tyranny.

The New York Times responded unenthusiastically to the new law, proclaiming, “the move in Congress to restrict the use of the Army for checking great and dangerous domestic violence is, in short, a move against 

economy and efficiency, as well as against principle and precedent.”45 In 

what would prove a highly prophetic statement to Congress, Secretary 

of War George McCrary claimed that the Posse Comitatus Act should be 

“repealed, or that the number of cases in which the use of the Army shall 

be ‘expressly authorized’ be very much enlarged.”46

On 7 July 1878, the War Department issued orders to units in the field, 

describing the new law and how it limited their role and ability to respond 

in civil law enforcement situations. Nevertheless, in what would become 

a precedent of confusion and uncertainty in the interpretation of the Posse 

Comitatus Act, 12 days following the announcement Lieutenant Colonel 

Nathaniel A. Dudley responded to a request from a local sheriff and led 

a force of 50 Regular Army cavalry troops into Lincoln, New Mexico 
34

territory. Dudley, an officer described as suffering from “muddled thought 

and bad judgment,” responded after the sheriff trapped a rival faction of 

gunmen in a house. After unlimbering a mountain howitzer and setting up 

a Gatling gun which they threatened to use, Dudley and his men provided 

covering fire for the sheriff’s squad and helped set fire to the house. The 

ensuing melee killed five men, while the legendary Billy the Kid and others 

managed to escape. As a result, a court of inquiry indicted Dudley for 

violating the Posse Comitatus Act. This incident was the first in a long line 

of incidents that would lead to confusion and misinterpretation and would 

stain the image of the Posse Comitatus Act for the next 128 years.47
35

Notes

1. Amendment XIII [1865] Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly 

convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have the power to enforce this article by appropriate legislation. Tribe, lxv.

2. Howard K. Beale, The Critical Year: A Study of Andrew Johnson and 

Reconstruction (New York: Harcourt, Brace and Company, 1930), 27.

3. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–

1877 (New York: Harper & Row, 1988), 180.

4. Ibid., 180.

5. Ibid., 8.

6. Benjamin F. Flanders to Henry C. Warmoth, 23 November 1865, 

Warmoth Papers; as quoted in Foner, 199.

7. Samuel Thomas to O.O. Howard, 6 September 1865, M-5 1865, Letters 

Received, Ser. 15, Washington Headquarters, RG 105, NA [FSSP A-9206]; as 

quoted in Foner, 150.

8. The Bureau of Refugees, Freedmen and Abandoned Lands or The 

Freedmen Bureau was established by Congress on 3 March 1865 and operated by 

the War Department. See Freedmen’s Bureau Online; available from http://freedmensbureau.com, accessed 22 September 2005.

9. Harold M. Hyman, “Ulysses Grant I, Emperor of America?: Some 

Civil–Military Continuities and Strains of the Civil War and Reconstruction,” The 

United States Military Under the Constitution of the United States, 1789–1989, 

ed. Richard H. Kohn (New York and London: New York University Press, 1991), 

187.

10. See 1866 Civil Rights Act, 14 Stat. 27–30, 9 April 1866 A.D., Historical 

Documents and Speeches—Civil Rights Act (1866); available from http://www.

historicaldocuments.com/CivilRightsActof1866.htm, accessed 22 September 

2005.

11. Tribe, lxv.

12. James E. Sefton, The United States Army and Reconstruction, 1865–

1877 (Baton Rouge: Louisiana State University Press, 1967), 73.

13. Robert W. Johannsen, Reconstruction, 1865–1877 (New York: Free 

Press, 1970), 89–92.

14. Ibid.

15. Hyman, 186.

16. For a complete history of this terrorist organization during Reconstruction, 
36

see Stanley F. Horn, Invisible Empire, The Story of the Ku Klux Klan, 1866–1871

(Cos Cob: John E. Edwards, 1969).

17. Coakley, Role of Federal Forces, 300.

18. Ibid., 301.

19. Sefton, 215.

20. The Rise and Fall of Jim Crow, Historical Document, Enforcement Act of 

1871 Passed by the 42nd Congress; available from http://www.pbs.org/wnet/jimcrow/stories_events_enforce.html. 

21. Foner, 457; Jean Edward Smith, Grant (New York: Simon & Schuster, 

2001), 546–547.

22. Section 1: The right of citizens of the United States to vote shall not be 

denied or abridged by the United States or by any State on account of race, color, 

or previous condition of servitude. Section 2: The Congress shall have the power 

to enforce this article by appropriate legislation. US Constitution, amend. 15, sec. 

1 and 2.

23. Coakley, Role of Federal Forces, 310.

24. Sefton, 228; Coakley, Role of Federal Forces, 312.

25. Smith, 547; Robert Coakley writes that “after 1871, the Klan did disappear from the scene gradually, but the military offensive was only partially 

responsible for its decline. Political and economic factors intruded to do the job 

less dramatically.” Coakley, Role of Federal Forces, 313.

26. “To hasten withdrawal of federal troops,” Coakley points out, 

“Southerners progressively abandoned the clandestine tactics of the Klan for 

overt political action on behalf of the Democratic Party.” Coakley, Role of Federal 

Forces, 313.

27. Major H.W.C. Furman stated that “the passage of the General Amnesty 

Act permitted a Democratic recovery in the South.” Major H.W.C. Furman, 

“Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act,” 

Military Law Review 7 (1960): 94.

28. John Hope Franklin, Reconstruction After the Civil War (Chicago: 

University of Chicago Press, 1991), 172.

29. Foner, 570.

30. Ibid., 574.

31. Coakley, Role of Federal Forces, 334.

32. “As one historian has written, the Hayes men ‘surrendered the Negro to 

the Southern ruling class, and abandoned the idealism of Reconstruction, in return 

for the peaceable inauguration of their President.’” Smith, 604.

33. Coakley writes that “in return for acquiescence by the Democrats to 

Hayes’ receiving the disputed electoral votes of Florida, Louisiana, and South 
37

Carolina, and thus assuring his election to the presidency by one electoral vote, 

the President-elect agreed to recognize Democratic governments in Florida, 

Louisiana, and South Carolina and to end the Army’s civil mission in the exConfederate states.” Coakley, Role of Federal Forces, 337.

34. Foner, 582.

35. Ibid., 602.

36. Kennedy Stetson, After Appomattox: How the South Won the War

(Gainesville: University Press of Florida, 1995), 279.

37. Ibid., 282.

38. Coakley, Role of Federal Forces, 342.

39. See The Library of Congress, American Memory: A Century of 

Lawmaking For a New Nation, U.S. Congressional Documents and Debates, 

1774–1875, Statutes at Large, 43rd Cong., 1st sess. Vol. 18, Part I, image 1071; 

available from http://memory.loc.gov, accessed 9 October 2005.

40. Coakley, Role of Federal Forces, 342–343; Gary Felicetti and John Luce, 

“The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief 

and Misunderstanding Before Any More Damage Is Done,” Military Law Review

175 (March 2003): 109–110.

41. Felicetti and Luce, “Setting the Record Straight,” 112.

42. Coakley, Role of Federal Forces, 344.

43. Ibid., 344. Coakley points out that it was in fact “Southern Democrats 

who took the lead in urging restrictions.”

44. Ibid., 343–344; “In response to Reconstruction, the South also swayed 

Congress to pass the Posse Comitatus Act, which prohibited federal military 

authorities from exercising localized civilian police powers. This was in direct 

response to President Grant’s successful but short-lived use of the military in the 

South to suppress white supremacists’ campaign of terror and intimidation against 

blacks and their Republican supporters.”

45. “The Army and the Militia,” New York Times, 11 June 1878, in 

Donald J. Currier, “The Posse Comitatus Act: A Harmless Relic from the PostReconstruction Era or a Legal Impediment to Transformation?” Carlisle Papers 

in Security Strategy (Carlisle Barracks, PA: US Army War College, September 

2003), 5–6.

46. US War Department, Annual Report of the Secretary of War (1878), as 

quoted in Currier, 6.

47. Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military 

Forces in Domestic Disorders, 1877–1945, Army Historical Series (Washington, 

DC: Center of Military History, US Army, 1997), 63–73.

39

Chapter 3

Posse Comitatus Act Causes Confusion

Not only is the law confusing to pundits and commentators, it is confusing to soldiers of all ranks, as well 

as political leaders in Congress and the executive branch. 

Even military lawyers, who have the luxury of spending 

time in academic settings studying the Act have found it 

to be confusing.

Donald J. Currier, Carlisle Papers in Security Strategy

Since its inception in the latter part of the 19th century, the Posse 

Comitatus Act has regulated military involvement in a multitude of national 

dilemmas. During the turbulent years of 1878 through 1892, the Army 

was actively engaged in helping maintain order in the Trans-Mississippi 

West. Lawmakers also called on military forces to help quell the antiChinese riots in the Washington and Wyoming Territories in 1885 and 

1886. Perhaps an early precursor of difficulties to follow occurred when 

renowned Civil War veteran Brigadier General John Gibbon received a 

sharp rebuke from the War Department for violating the Posse Comitatus 

Act while intervening in the anti-Chinese riots in Seattle, Washington, in 

1885. During the next ten years, concerns regarding violations of the act 

were again voiced when the actions of Army officers assisting with the 

Chicago Pullman Strike of 1894 were questioned. Before the end of the 

century, there were three more accusations of military violations of the 

PCA concerning the Army’s efforts to maintain the peace between miners 

and corporate mine officials in Coeur d’ Alene, Idaho. It was determined 

that in two of the three occasions the Army did commit serious violations 

of the PCA.1

The onset of the 20th century and the advent of the world war era ushered in new challenges for those attempting to interpret and govern within 

the guidelines of the Posse Comitatus Act. During World War I, the act was 

“suspended” by Secretary of War Newton D. Baker, effectively “clearing 

the way for repeated violations in the years ahead.”2 Volatile race relations 

and labor disputes would call for military forces to assist with law enforcement actions throughout the 20th century. Civil rights demonstrations and 

antiwar protests required the military to assist in maintaining civil order in 

a variety of ways and with varying degrees of success.3 Nevertheless, no 

convictions of military commanders for violating the act ever resulted.4
40

In most of these law enforcement missions, the Army participated 

in accordance with executive directives under the authority vested in the 

president by the Constitution and the Revised Statutes of 1874. From 1956 

on, Congress authorized the president to employ troops domestically under 

US Code, specifically, Title 10, Sections 331 through 334. 

Title 10, Section 331 is a direct result of the 1795 and 1807 acts and 

Revised Code 5297. The law states:

Whenever there is an insurrections [sic] in any State against 

its government, the President may, upon the request of its 

legislature or of its governor if the legislature cannot be 

convened, call into Federal service such of the militia of 

other States, in the number requested by that State, and 

use such of the armed forces, as he considers necessary to 

suppress the insurrection.5

Title 10, Section 332 allows the commander in chief to use the militia 

and armed forces to enforce federal authority:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against 

the authority of the United States, make it impracticable 

to enforce the laws of the United States in any State or 

Territory by the ordinary course of judicial proceedings, 

he may call into Federal service such of the militia of 

any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the 

rebellion.6

Title 10, Section 333, a direct successor to the Ku Klux Klan Act of 

1871 and Revised Statute 5299, states:

The President, by using the militia or the armed forces, 

or both, or by any other means, shall take measures 

as he considers necessary to suppress, in a State, any 

insurrection, domestic violence, unlawful combination, 

or conspiracy, if it—

(1) so hinders the execution of the laws of that State, 

and of the United States within the State, that 

any part or class of its people is deprived of a 

right, privilege, immunity, or protection named 

in the Constitution and secured by law, and the 

constituted authorities of that State are unable, 

fail, or refuse to protect that right, privilege, or 
41

immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws 

of the United States or impedes the course of 

justice under those laws.

In any situation covered by clause (1), the State shall be 

considered to have denied the equal protection of the laws 

secured by the Constitution.7

Title 10, Section 334 requires the president to issue the time-honored 

proclamation to disperse, which dates back to George Washington and the 

Whiskey Rebellion:

Whenever the President considers it necessary to use the 

militia or the armed forces under this chapter, he shall, 

by proclamation, immediately order the insurgents to 

disperse and retire peaceably to their abodes within a 

limited time.8

It was not until 1956 that Congress saw fit to move the Posse Comitatus 

Act to Title 18, Section 1385 of the US Code. The amended PCA reflected 

the new status of the Air Force as a separate branch of service:

Whoever, except in cases and under circumstances 

expressly authorized by the Constitution or Act of 

Congress, willfully uses any part of the Army or Air Force 

as a posse comitatus or otherwise to execute the laws shall 

be fined not more than $10,000 or imprisoned not more 

than two years, or both. This section does not apply to 

Alaska.9

In 1959, Congress removed the section related to Alaska when that territory 

became a state.

By 1973, the Posse Comitatus Act was a relatively forgotten law, one 

that was comparatively unused, and seldom invoked. That same year, 

however, events at Wounded Knee, South Dakota, brought the Posse 

Comitatus Act to the attention of the American public. When radical 

members of the American Indian Movement (AIM) took over a small 

village on the Pine Ridge Indian Reservation on 27 February 1973, federal 

law enforcement personnel responded immediately. For two months, 

federal agents laid siege to the Native American community. During the 

siege, the US Army and the National Guard of several states supplied 

equipment and advice to the federal law enforcement agents. Recalling 

the notorious engagement with the Sioux at Wounded Knee in 1890, the 

Army was keen to avoid repeating the scenario. “The name of the game” 
42

stated the director of military support “is not to kill or injure the Indians. 

Any Army involvement resulting in loss of life and injury would reflect 

badly upon the Army. Time is not of the essence. Federal forces should not 

be the aggressor. . . . The object of the exercise is not to create martyrs.”10

Dressed in civilian clothes, US Army officers on the scene worked 

inconspicuously with civil law enforcement in an effort to avoid casualties 

and the commitment of the Regular Army soldiers.11

When the siege ended on 5 May 1973, law enforcement officials 

arrested many of the AIM activists. In spite of this, lawyers for the defense 

attempted to prove that the Army’s involvement in support of the federal 

agencies was a violation of the PCA. The Army’s minor involvement in 

the operation also generated a flurry of federal civil court cases. After 

years of litigation and conflicting court opinions, the South Dakota federal 

district court in the case of United States v. Red Feather clarified the 

Posse Comitatus Act, determining that military involvement in civil law 

enforcement operations is either active or passive. The court concluded:

The senators who drafted and debated the bill and 

President Hayes who signed the bill into law, were of 

the belief that 18 U.S.C. Sec. 1385 made unlawful the 

use of federal military troops in the active role of direct 

law enforcement or execution of process. Based upon the 

clear intent of Congress, this Court holds that the clause 

‘to execute the laws,’ contained in 18 U.S.C. Sec. 1385, 

makes unlawful the use of federal military troops in an 

active role of direct law enforcement by civil law enforcement officers. Activities which constitute an active role in 

direct law enforcement are: arrest; seizure of evidence; 

search of a person; search of a building; investigation of 

crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect or other like

activities. Such use of federal military troops to ‘execute 

the laws,’ or as the Court has defined the clause, in ‘an 

active role of direct law enforcement,’ is unlawful under 

18 U.S.C. Sec.1385 . . . [emphasis added].

Activities which constitute a passive role . . . military personnel under orders to report on the necessity for military 

intervention; preparation of contingency plans to be used 

if military intervention is ordered; advice or recommendations given to civilian law enforcement officers by military 

personnel on tactics or logistics; presence of military per-
43

sonnel to deliver military material, equipment or supplies, 

to train local law enforcement officials on the proper use 

and care of such material or equipment, and to maintain 

such material or equipment; aerial photographic reconnaissance flights and other like activities. Such passive 

involvement of federal military troops which might indirectly aid civilian law enforcement is not made unlawful

under 18 U.S.C. Sec 1385 . . . [emphasis added].12

Finally, the court had clearly spelled out what the Army could and 

could not do when executing civil law enforcement missions. The Army, 

which had long sought proper legal guidance for conducting these types 

of operations, gratefully accepted this ruling. The ruling also provided the 

Army with an additional layer of cover. Many officers considered domestic 

law enforcement missions unglamorous and fraught with potential careerending pitfalls, and, from time to time, had used the PCA as a clever guise 

to avoid distasteful assignments. As one Department of Defense (DOD) 

official put it, “the PCA was not a barrier preventing a military response 

to a genuine threat, but rather a bureaucratic reason not to do something 

perceived as less than a genuine threat.”13

While US v. Red Feather provided some clarity to the armed forces, 

new federal laws would once again blur the lines between the military 

establishment and domestic law enforcement. Concerned with combating 

the growing drug problem in America, in 1981 Congress approved the 

Department of Defense Authorization Act of 1982. Attorneys Gary Felicetti 

and John Luce summarized the new laws as follows:

(1) Section 371, Use of information collected during 

military operations, permitted DOD to share information collected in the course of normal operations with law 

enforcement officials.

(2) Section 372, Use of military equipment and facilities, 

permitted DOD to make equipment, bases, or facilities 

available to civilian law enforcement officials.

(3) Section 373, Training and advising civilian law 

enforcement officials, permitted DOD to train civilian 

officials on any equipment made available to them under 

section 372.

(4) Section 374, Assistance by Department of Defense 

personnel, permitted DOD personnel to operate and maintain any equipment made available under section 372, but 
44

only to agencies that enforce federal drug, immigration, 

or customs law and subject to other specific restrictions 

such as high-level request and “emergency” conditions.

(5) Section 375, Restriction on direct participation by 

military personnel, required the Secretary of Defense to 

issue regulations so that any assistance provided under 

the authority of this law did not permit direct participation in specified law enforcement activities.

(6) Section 376, Assistance not to affect adversely military preparedness, prohibited assistance given under 

authority of this law that would adversely affect military 

preparedness. 

(7) Section 377, Reimbursement, directed the Secretary 

of Defense to develop regulations for reimbursement by 

civilian agencies.

(8) Section 378, Nonpreemption of other law, indicated 

that nothing in this law limited the executive’s use of military in law enforcement beyond that provided by the law 

existing prior to the 1982 Authorization Act.14

Some referred to the new US Code as “the Posse Comitatus Act 

Amendment of 1981.”15 In reality, the new laws were merely exceptions 

to the PCA, precisely the type the Secretary of War had predicted in 1878, 

when he told Congress that the Act should be “repealed, or that the number 

of cases in which the use of the Army shall be ‘expressly authorized’ be 

very much enlarged.”16

The Department of Defense regulations relating to US Code, Title 10, 

Sections 371 through 378, issued in April 1982, placed even more stringent conditions on the military by applying a broad interpretation of the 

new laws. According to Felicetti and Luce, the new regulations “extended 

the Act’s coverage outside the United States, ignored key sections of the 

1982 law to reach conclusions that it actually increased restrictions on all 

DOD activity, and applied the overly restrictive DOD interpretation of the 

Posse Comitatus Act to the Navy and Marine Corps as a matter of DOD 

policy.”17

In 1986, the executive branch issued a Department of Defense Directive declaring the “war on drugs” a national security matter, and ordered 

the military to lend its tactical planning expertise to law enforcement both 

in the United States and around the world. In passing the 1989 Defense 

Authorization Act, Congress sought to increase the role of the armed 
45

forces in domestic law enforcement by removing many of the restraints in 

US Code, Title 10, Sections 371 through 378.18

Consequently, the new laws resulted in a backlash not only in the media 

but also within the Department of Defense. While the military objected to 

being dragged into this new civil law enforcement realm, civil libertarians 

complained that the Army’s involvement was unconstitutional. Senator 

Samuel A. Nunn of Georgia told a national television audience “that the 

nation now had several posse comitatus acts.”19 But as political pundits 

and politicians debated and the military sought desperately to distance 

itself from additional civil law enforcement entanglements, racial issues 

smoldered in the second largest city in America. Three years later, these 

racial issues caused a raging fire.
46

Notes

1. By far the best account of these operations can be found in Clayton D. 

Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic 

Disorders, 1877–1945 (Washington, DC: Center of Military History, US Army, 

1997), 57–178.

2. Ibid., 230–231.

3. Paul J. Scheips, The Role of Federal Military Forces in Domestic 

Disorders, 1945–1992 (Washington, DC: Center of Military History, US Army, 

2005).

4. Commander Gary Felicetti and Lieutenant John Luce, “The Posse 

Comitatus Act: Liberation from the Lawyers,” Parameters, US Army War College 

Quarterly (Autumn 2004): 9.

5. GPO Access; http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?W

AISdocID=5748508828+0+0+0; accessed 15 October 2005.

6. Ibid., 574818489759+0+0; accessed 15 October 2005. 

7. Ibid., 574633478759+0+0; accessed 15 October 2005.

8. Ibid., 574658479096+0+0; accessed 15 October 2005.

9. Title 18, Sec. 1385, Added 10 August 1956, ch. 1041, Sec 18(a), 70A 

Stat. 626. US Code Online via GPO Access; http://frwebgate1.access.gpo.gov/cgibin/waisgate.cgi?WAISdocID=574409487935+1+0; accessed 15 October 2005.

10. James R. Gardner, “The Civil Disturbance Mission of the Department of 

the Army, 1963–1973: An Analysis of Perceptions, Policies and Programs” (Ph.

D. diss., Princeton University, 1977), quoted in Scheips, 435.

11. Scheips, 435–437.

12. US v. Red Feather, 392 F. Supp 916 (D.C.S.D 1975). 

13. Currier, 13; Gregory D. Grove, The U.S. Military and Civil Infrastructure 

Protection: Restrictions and Discretion Under the Posse Comitatus Act (Stanford: 

Center for International Security and Cooperation, October 1999), 23, as quoted 

in Currier, 13.

14. Felicetti and Luce, “Setting the Record Straight,” 151.

15. Scheips, 439.

16. US War Department, Annual Report of the Secretary of War (1878), 

quoted in Currier.

17. Felicetti and Luce, “Liberation from the Lawyers,” 8.

18. Felicetti and Luce, “Setting the Record Straight,” 161.

19. Scheips, 439–440.
47

Chapter 4

The 1992 Los Angeles Riots and the Posse Comitatus Act

I frankly did not know until several months after the 

riots that posse comitatus did not apply. Did MG Covault 

make the same assumption I did, did he make a mistake 

(or his JAGs), or was he given guidance?

Major General James D. Delk,

 California Army National Guard

By late afternoon on 29 April 1992, after an all-white jury acquitted 

white police officers for beating black motorist Rodney King, the city of 

Los Angeles, California, exploded in an unparalleled wave of violence. 

Across the nation, television viewers watched in stunned disbelief as rioters pulled Reginald Denny from his truck and brutally beat him with a 

large piece of medical equipment, a claw hammer, and a huge piece of 

concrete, causing 91 fractures to his skull. As a final indignity, gang members pummeled the unconscious Denny with liquor bottles and danced 

over his nearly lifeless body.1

Within hours, rioters started hundreds of fires and a murderous looting 

rampage began on a massive scale.2 The Los Angeles Police Department 

(LAPD), instead of making a strong show of force, beat a hasty retreat. 

Their response served to embolden the rioters, laying the foundation for 

the violence and mayhem to escalate into one of the most disturbing civil 

uprisings in American history.3 The Los Angeles riots would become one 

of the “maladies” Alexander Hamilton had predicted, a situation in which 

“there could be no remedy but force.”4

By 2100 on 29 April 1992, it was clear to Los Angeles Mayor Tom 

Bradley that he would need additional support to combat the growing 

violence. Immediately, California Governor Pete Wilson called for the 

mobilization of 2,000 members of the California Army National Guard 

(CANG). At that time, CANG Adjutant General Major General Robert C. 

Thrasher began mobilizing major elements of the 40th Infantry Division 

(Mechanized) and the 49th Military Police Brigade. While citizen soldiers 

rushed to their armories, the rioting spread over 30 miles of south central 

Los Angeles. By 0400 on 30 April, Major General Daniel J. Hernandez, 

commander of the 40th Infantry Division (Mechanized), had assembled 

2,000 guardsmen in their armories. By daybreak on 30 April, 10 people 

were dead, dozens injured, and 601 fires had been set.5
48

The 40th Infantry Division (Mechanized) headquarters in Los Alamitos 

assigned Major General James D. Delk, deputy adjutant general, as the 

overall military field commander of the operation, and Major General 

Hernandez and his staff to oversee the tactical operations.

The slow response of the National Guard, delayed by a lack of equipment and ammunition as well as with problems installing locking plates on 

their M16 rifles, essential to prevent troops from firing on full automatic, 

alarmed Governor Wilson. By 1400, the decision was made that the Los 

Angeles County Sheriff’s Department’s Emergency Operations Center 

(EOC) would coordinate all National Guard law enforcement missions. 

In a meeting at 1430 between senior law enforcement personnel and Delk, 

the California Highway Patrol was assigned the mission of protecting firefighters who were being continually fired on by the rioters. LAPD Chief 

Daryl F. Gates asked Delk if the Guard could “handle everything else.” 

Delk assured him “that the National Guard was ready and prepared to do 

whatever was necessary throughout the duration of the civil disturbance.” 

Five minutes later, the first National Guard military police companies 

arrived on the beleaguered streets of Los Angeles.6

While the National Guard operations cell and police commanders in 

the EOC attempted to identify and prioritize missions, enterprising brigade 

and battalion commanders sought out missions from their local police stations. Conscious of the need for expediency, division headquarters ordered 

units to report to senior law enforcement officers at various locations and 

perform whatever missions the police deemed necessary. Soon, battalion 

commanders and senior police officers were working in concert with each 

other. LAPD district commander Bayan Lewis recalled, “The first night 

the Guard deployed, I would turn to the battalion commander and say, ‘I 

need you to take troops to this location, we need to seal this, we need a 

barricade on this road, we need so and so,’ and they did it.”7 According to 

Christopher M. Schnaubelt, an intelligence officer in the division’s 2d Brigade, “This sort of direct coordination between mid-level law enforcement 

leaders and supporting military units greatly improved what was at best an 

ad hoc process for requesting and approving military support.”8 By 2000, 

approximately 1,000 National Guard soldiers were on the streets with 

1,000 more in reserve waiting for missions from the LAPD and county law 

enforcement officials.9 Even with 2,000 National Guard soldiers in place, 

it was becoming increasingly difficult for law enforcement to keep pace 

with the escalating violence. At 2356, both the LAPD and the Los Angeles 

Sheriff’s Department urgently requested the mobilization of 2,000 more 

National Guard soldiers.10
49

Once deployed, the CANG immediately made their presence felt. 

When military police encountered a violent confrontation at the corner of 

Vernon and Figueroa streets, a butt stroke from a soldier’s M16 to the head 

of an antagonistic gang member convinced fellow gang members and the 

surging crowd to disperse.11 As CANG members set up security at various sites targeted by looters, others provided security for firefighters and 

established checkpoints. During the night, at least two dozen shots were 

fired at National Guard soldiers.

Although the situation on the streets of Los Angeles was slowly 

improving, some political leaders remained skeptical that the National 

Guard and local law enforcement could accomplish the mission. Warren 

Christopher, a Washington insider and at that time in private law practice in Los Angeles, convinced Mayor Bradley to request federal troops. 

Christopher suggested to Bradley that the Regular Army would be more 

effective than the National Guard. Christopher stated, “I felt things were 

out of control. The National Guard was very slow to move in and that’s 

fairly typical too. The National Guard is not very effective in these situations.”12 Christopher began making inquires in Washington, DC, as to 

how federal troops could be utilized in this situation. Before long, both 

Governor Wilson and Mayor Bradley were talking directly with President 

George H.W. Bush and General Colin Powell.13 By late evening on 30 

April, Secretary of Defense Richard B. Cheney ordered the Secretary of 

the Army to place 4,000 soldiers on alert. Active Duty troops alerted for 

possible deployment to Los Angeles included 2,500 soldiers from the 7th 

Infantry Division (Light) at Fort Ord, California, and 1,500 Marines from 

Camp Pendleton, California.14

Although there were nearly 2,000 California Army National Guard 

soldiers either on the Los Angeles streets or in reserve, at 0100 on 1 May, 

Governor Wilson requested the standby federal troops from President 

Bush. The president was quick to respond. By 0515 on 1 May, the president ordered 4,000 Active Duty soldiers and Marines into Los Angeles. 

As required by Title 10, Section 334, President Bush issued proclamation 

6427:

Law and Order in the City and County of Los Angeles, 

and Other Districts of California

By the President of the United States of America

A Proclamation

WHEREAS, I have been informed by the Governor 

of California that conditions of domestic violence and 
50

disorder exist in and about the City and County of Los 

Angeles, and other districts of California, endangering life 

and property and obstructing execution of the laws, and 

that the available law enforcement resources, including 

the National Guard, are unable to suppress such acts of 

violence and to restore law and order;

WHEREAS, such domestic violence and disorder are 

also obstructing the execution of the laws of the United 

States, in affected area; and

WHEREAS, the Governor of California has requested 

Federal assistance in suppressing the violence and 

restoring law and order in the effected area.

NOW, THEREFORE, I GEORGE BUSH, President of 

the United States of America, by virtue of the authority 

vested in me by the Constitution and the laws of the 

United States, including Chapter 15 of Title 10 of the 

United States Code, do command all persons engaged 

in such acts of violence and disorder to cease and desist 

therefrom and to disperse and retire peaceably forthwith.

IN WITNESS WHEREOF, I have hereunto set my hand 

this first day of May, in the year of our Lord nineteen 

hundred and ninety-two, and of the Independence of 

the United States of America the two hundred and 

sixteenth.15

After issuing his cease and desist proclamation as required by law, the 

president issued Executive Order 12804 based on Chapter 15 of Title 10, 

US Code, Sections 331 through 333:

Providing for the Restoration of Law and Order in the 

City and County of Los Angeles, and Other Districts 

of California

WHEREAS, I have today issued Proclamation No. 6427; 

and

WHEREAS, the condition of domestic violence and disorder described there-in continue, and the persons engaging in such acts of violence have not dispersed;

NOW, THEREFORE, by virtue of the authority vested 

in me as President of the United States and Commander 

in Chief of the Armed Forces by the Constitution and the 
51

laws of the United States, including Chapter 15 of Title 

10 of the United States Code, it is hereby ordered as 

follows:

Section 1. Units and members of the Armed Forces of the 

United States and Federal law enforcement officers will 

be used to suppress the violence described in the proclamation and to restore law and order in and about the 

City and County of Los Angeles, and other districts of 

California.

Sec. 2. The Secretary of Defense is authorized to use such 

of the Armed Forces as may be necessary to carry out the 

provisions of section 1. To that end, he is authorized to 

call into the active military service of the United States 

units or members of the National Guard, as authorized 

by law, to serve in an active duty status for an indefinite 

period and until relieved by appropriate orders. Units or 

members may be relieved subject to recall at the discretion of the Secretary of Defense.

In carrying out the provisions of this order, the Secretary 

of Defense shall observe such law enforcement policies 

as the Attorney General may determine.

Sec. 3. Until such time as the Armed Forces shall have 

been withdrawn pursuant to section 4 of this order, the 

Attorney General is further authorized (1) to coordinate 

the activities of all Federal agencies assisting in the suppression of violence and in the administration of justice in 

and about the City and County of Los Angeles, and other 

districts of California, and (2) to coordinate the activities 

of all such agencies with those of State and local agencies 

similarly engaged.

Sec. 4. The Secretary of Defense is authorized to determine when Federal military forces shall be withdrawn 

from the disturbance area and when National Guard units 

and members called into active military service of the 

United States in accordance with section 2 of this order 

shall be released from such active service. Such determination shall be made in the light of the Attorney General’s 

recommendations as to the ability of State and local 

authorities to resume full responsibility for the maintenance of law and order in the effected area.
52

Sec. 5. The Secretary of Defense and the Attorney General 

are authorized to delegate to subordinate officials of their 

respective Departments any of the authority conferred 

upon them by this order.

Sec. 6. Nothing contained in this order shall confer any 

substantive or procedural right or privilege on any person or organization, enforceable against the United 

States, its agencies or instrumentalities, its officers, or its 

employees.16

With this executive order, President Bush committed federal troops to 

the Los Angeles riots. While certainly not as detailed as President Washington’s proclamation issued during the Whiskey Rebellion, President 

Bush’s edict was, nonetheless, quite similar. 

Bush was responding to the governor’s request under Chapter 15 of 

Title 10, Section 331. The riots, however, were not an insurrection but a 

combination of unlawful obstructions, combinations, and assemblages, as 

well as a case of domestic violence, all covered under Sections 332 and 

333. Therefore, in both his proclamation and his executive order, the president cites Chapter 15 of Title 10 in its entirety.17 Emphasizing his resolve 

to stop the violence, the president informed the Nation “that he would 

use whatever force was necessary to restore order.”18 By the morning of 1 

May, the riots had resulted in 31 deaths and over 1,000 injuries, while the 

total number of fire calls reached a staggering 3,244.19

Bush’s executive order also federalized the California Army National 

Guard taking them out of state service and placing them under the command 

of the newly formed Joint Task Force–Los Angeles (JTF-LA). Under state 

control, the Posse Comitatus Act did not apply to the National Guard.20

Similarly, the PCA did not apply to the Army, Marines, and federalized 

National Guard soldiers collected under JTF-LA because the president 

issued the executive order “under circumstances expressly authorized by 

the Constitution or Act of Congress.”21 Unfortunately, the order from the 

president caused some confusion within JTF-LA, exacerbated by bewildered and perplexed military attorneys. To this day, many soldiers and 

policy makers remain in a quandary regarding the entire event, while the 

hostility between the CANG and the Active Duty component of JTF-LA 

continues.22

The newly appointed JTF-LA commander, Major General Marvin L. 

Covault, landed at Los Alamitos at 1630 on 1 May. He was a seasoned 

combat veteran and the commanding general of the 7th Infantry Division 
53

(Light). By the time he arrived, Covault’s staff and assistant division commander were already on the ground and busily engaged in setting up the 

joint task force tactical operations center. Covault appointed Hernandez 

as the Army Forces (ARFOR) commander and Brigadier General Marvin T. Hopgood of the First Marine Expeditionary Force as the Marine 

Corps Forces (MARFOR) commander.23 Although the command transition appeared to go smoothly, Hernandez recalled that there was “natural 

animosity between the Guard and the Regular Army.”24 At the time, Delk 

told Covault “. . . morale among National Guardsmen had plummeted 

when they heard that federal forces were being called in to ‘save the situation’ after they had brought order to the streets.” However, he did inform 

Covault that the appointment of Hernandez as ARFOR commander would 

serve to bolster the Guard’s morale.25

From the beginning, it was clear Covault’s mind-set was diametrically opposed to that of the commanders’ of the California Army National 

Guard. While the CANG vigorously sought out law enforcement missions, 

Covault attempted to distance the new JTF-LA from any involvement in 

police duties. A brigade commander in the 7th Infantry Division (Light) 

put it plainly when he stated, “We weren’t going to try to do police work.”26

Unfortunately, the “we” now included the California Army National Guard 

who had already been involved in such duties.

As the Regular Army and Marine forces began to move into Los 

Angeles, the CANG and local law enforcement were already making great 

strides in regaining control of the streets. By 0630 on 1 May, the CANG 

had 1,220 soldiers supporting the LAPD and 1,600 troops in place to aid the 

Los Angeles Sheriff’s Department. Meanwhile, 2,700 additional soldiers 

waited in reserve for new missions.27 Delk believed that by the time the 

Guard was federalized, the riots had actually ended and there were more 

than enough CANG troops available to confront looters and arsonists.28

The CANG’s tactical method was in evidence the very day Covault 

arrived in Los Angeles. On Long Beach Boulevard, rioters had set fires 

and were shooting their weapons randomly, while gang members set up 

barricades in an effort to keep the police and firefighters at bay. Other 

rioters continued their looting rampage, paying little attention to the small 

police force at the scene. The situation changed rapidly though, with the 

arrival of then Captain Donald J. Currier and the 270th Military Police 

Company. Currier was the deputy district attorney for Sacramento County, 

a former police officer, and a Desert Storm veteran. Many of his men were 

police officers in civilian life, and the entire company had served in Desert 

Storm. As the company’s vehicles rolled onto Long Beach Boulevard, the 
54

tumult and looting quickly ceased and the crowd began to disperse. In a 

short period of time, the military policemen apprehended arrant looters, 

set up three-man traffic control points, and cleared the streets for several 

miles.29 These actions helped to further calm the city.

Throughout the riot-torn areas, the Guard provided all manner of 

assistance to civilian law enforcement. In her case study, “The Flawed 

Emergency Response to the 1992 Los Angeles Riots,” Susan Rosegrant 

identified some of the Guard’s missions in quelling the uprising. The 

missions included “managing traffic control points, patrolling shopping 

centers to prevent looting, riding along in police cars to provide extra 

law enforcement power, guarding emergency work crews, and protecting 

sensitive sites, such as utility buildings or fire departments.”30 Bayan 

Lewis was convinced that the Guard gave the city “that psychological, 

mental impact that the army is in the streets, and government is back in 

control . . . .”31 By the end of 1 May, however, there had been a total of 43 

people killed and 1,257 injured, while the total number of structure fires 

had climbed to 5,017.32

According to Delk, on 1 May CANG’s mission changed. “All of our 

soldiers were now engaged in law enforcement missions, not riot control. 

In that regard, commanders were struck by the fact there were so many 

criminals obviously still in the street even though many thousands had 

already been arrested and remained incarcerated.”33 Delk was correct in 

his assertions. The military had been minimally involved in what may be 

termed “riot control.” Instead, CANG’s efforts had focused on thwarting 

incidents of arson, looting, gang warfare, and all manner of criminal activity made possible by the prevailing chaos. 

By 2200 on 1 May, Los Angeles Police Chief Gates and Sheriff 

Sherman Block were highly skeptical of the need for federal troops. They 

believed the riots were abating and they would only require the continued 

support of the CANG. However, if federal troops were brought in, Block 

and Gates hoped to use them in the same manner as they were using 

the National Guard. In their first meeting with Covault, both Block and 

Gates were surprised to learn the general had a far different plan. Covault 

told Block and Gates that the worst was over and JTF-LA, to include 

the federalized CANG, would not perform civil law enforcement duties. 

The Webster report concluded that Covault’s decision “had an immediate 

effect on the relationship between the LAPD and National Guard,” and 

left nearly 10,000 National Guard soldiers “with few actual assignments to 

perform.”34 After the riots, a joint meeting of California law enforcement 

officers concluded: “The calling in of federal troops appears to have been 
55

a mistake. This resulted in the National Guard becoming federalized 

which severely limited their flexibility and missions they were able to 

undertake.”35

By the end of 2 May 47 people had been killed and 2,116 wounded 

(211 of those critically), while fire calls had risen to 5,534. These figures far surpassed any in the Nation’s history. Although 8,601 people had 

already been arrested, there remained much work to do.36

By the time the California Army National Guard reverted to state status 

and federal forces withdrew on 9 May, the death toll for the Los Angeles 

riots had risen to 54, while the number of injured reached 2,328. Over 

850 buildings were burned and $900 million in property was destroyed.37

Whether Covault’s decision to disengage his forces from law enforcement 

missions played a role in lengthening criminal activity associated with the 

riots is open to debate.

 Until the morning of 2 May, the CANG operations cell had approved 

almost 100 percent of the law enforcement support missions requested. But 

with the new JTF-LA headquarters assuming command over the CANG as 

well as the incoming federal troops, the CANG’s ad hoc mission approval 

system came to a halt. Under the new system, JTF liaison teams attached 

to the LAPD operations bureaus and the Los Angeles emergency operations center managed law enforcement requests. JTF liaison personnel 

also turned the CANG operations center into a JTF liaison headquarters 

to collect all incoming requests and forward them to JTF-LA headquarters in Los Alamitos. Once a request arrived at Los Alamitos, it faced a 

rigorous review from Covault and his staff. The entire process took six to 

eight hours and sent the CANG’s 100-percent approval rate crashing to 

a mere 20 percent.38 Judge William Webster, former Director of the Federal Bureau of Investigation, complained, “When missions were received 

by the U.S. military and requests for the California National Guard were 

made, the military commanders would consider whether the request was 

for a ‘law enforcement’ function or a ‘military’ function. If the request 

was for a law enforcement function, the request was uniformly denied.”39

Brigadier General Louis Antonetti, who served as Deputy Plans, Operations, and Military Support Officer (POMSO) in the CANG during the 

riots, recalled that, “Only 16 of 162 requests were approved and executed 

once the rules changed.”40 Currier, now a colonel in the CANG, remembered being “very frustrated by the order to stand down.”41

While the raison d’être remains murky, the available evidence would 

seem to suggest that JTF-LA either misunderstood the Posse Comitatus 

Act and the executive order or they did comprehend it and chose to use the 
56

PCA as a clever stratagem to distance themselves from law enforcement 

duties. It is also possible that Covault knew the law, but decided JTF-LA 

would simply not perform civil law enforcement tasks. To this day, participants are divided as to what really transpired.

Months after the riots, Delk, who was writing a book on the subject, 

sent Covault a questionnaire to gather information. In his letter to Covault 

he states, “I frankly did not know until several months after the riots that 

posse comitatus did not apply.” Delk wanted to find out if Covault had 

made “the same assumption . . . did he make a mistake (or his JAGs), or 

was he given guidance?” Covault, or his public affairs officer, responded 

in the following manner:

The impact of the Posse Comitatus Act on the operations 

of JTF-LA is a topic which has seen considerable comment, much of it is inaccurate. For example, the Report 

by the Special Advisor inaccurately concluded that the 

JTF-LA commander was ‘apparently unfamiliar with the 

President’s Proclamation and erroneously believed that 

federal troops were prohibited from becoming involved 

in law enforcement functions under the federal Posse 

Comitatus Act.’

 a. It is true that federal military forces are normally precluded by the Posse Comitatus Act from engaging in law 

enforcement activities. However, the President’s authority to order federal troops into use to quell a civil disturbance is specifically exempted from those restrictions. 

Accordingly, the JTF-LA Commander was free (subject 

to limitations that could have been set by the Attorney 

General) to use his force in any capacity, including typical 

law enforcement functions. 

b. The fact of the matter is, that like many military 

operations, operational decisions at the JTF headquarters 

level were made consistent with the commander’s intent 

and the capabilities of the available forces. The JTF-LA 

commander and his staff understood from the outset that 

the Posse Comitatus Act had no effect, and the Act in 

no way limited the decision-making process within the 

JTF headquarters. The issue in the overall Los Angeles 

crisis was one of ROLES AND MISSIONS. The military 

could (and was) best used to create a secure environment, 

provide widespread presence, and provide a sense of 
57

confidence among the populace. It was not the military’s 

mission to solve Los Angeles’ crime problem, nor were 

we trained to do so. The military was there in support of 

local government and local law enforcement. The Webster 

Commissions’ staff never understood that. They never 

looked beyond the legal issue.42

Over the years, numerous authors have challenged the JTF-LA commander’s perceptions. In his book Official Negligence, Lou Cannon noted 

that:

Covault had just enough legal knowledge to be dangerous. He knew that the Posse Comitatus Act ordinarily prevented the use of soldiers as police officers, but did not 

realize that the president’s authority to use troops to quell 

domestic violence is exempt from restrictions of this law. 

Covault might have learned this by reading the proclamation, which specifically provided for soldiers to be used in 

a law enforcement capacity.43

In his article, “Combat in Cities: The LA Riots and Operation Rio,” 

written for the Foreign Military Studies Office at Fort Leavenworth, 

Kansas, William W. Mendel maintained, “Regular military officers were 

concerned with breaking the law by being involved in law enforcement 

activities (although they were under a Presidential Order to restore law 

and order).”44 Donald Currier, in a critique of the Posse Comitatus Act for 

the Strategic Studies Institute, wrote that, “many observers have attributed misunderstanding of the Act to General Covault, particularly as to the 

confusion surrounding which missions were permissible and which missions were not.”45 Colonel (Retired) Thomas R. Lujan, former Staff Judge 

Advocate for the United States Special Operations Command and noted 

expert on the PCA, concluded: 

The JTF commander [Covault] apparently believed 

that he and his troops were constrained by the Posse 

Comitatus Act, and therefore could not legally participate 

in law enforcement activities. He was mistaken. . . . The 

JTF commander may have had political, policy, or tactical 

reasons for refusing law-enforcement missions, but his 

asserted reliance on the proscription of Posse Comitatus 

was misplaced.46

The harshest condemnation came from Judge William H. Webster and 

Hubert Williams in their report The City in Crisis, in which they asserted:
58

. . . there was a general misunderstanding on the part of 

the U.S. Military and the National Guard as to what role 

the military could fulfill in quelling a civil disturbance. 

Each of them mistakenly assumed that the federal troops 

and the federalized National Guard could not undertake 

missions that required them to perform the role of peace 

officers. By the time of federalization, the Armed Forces 

had set up a Joint Task Force, which had concluded that 

the military would take on non-confrontational functions, 

allowing the law enforcement officers the support to take 

on the more common law enforcement type operations. 

General Covault, who commanded the federal troops, 

including the National Guard after federalization, refused 

to accept certain missions because the Army was not 

trained to carry out such missions. Apparently, General 

Covault was unfamiliar with the President’s Proclamation 

and erroneously believed that federal troops were prohibited from becoming involved in law enforcement functions under the federal Posse Comitatus Act.47

At first glance, it would hardly seem possible that Covault and his staff 

misinterpreted the PCA and the presidential executive order. At 2100 on 

1 May in Los Angeles, top officers from the military, federal law enforcement, and the Department of Justice met and signed a log stating they 

understood the presidential proclamation and executive order.48 Furthermore, on 2 May a public affairs guidance update from the Secretary of 

Defense was faxed to JTF-LA from United States Army Forces Command 

(FORSCOM). The guidance clearly stated: “Although the statute known 

as the Posse Comitatus Act (18 U.S.C. 1385) normally prohibits use of 

the Army and the Air Force to enforce the law within the U.S., the Act’s 

prohibition does not apply when use of the armed forces is specifically 

authorized by statute.”49

At JTF-LA headquarters in Los Alamitos, however, the situation was 

not so black and white. On 1 May, Colonel (Retired) Linda C. Harrel, a 

captain and a California Army National Guard lawyer at the time of the 

riots, recalled one of the Active Duty lawyers from JTF-LA advising “his 

commander, the Joint Forces Commander, to stand down as we had violated the posse comitatus act.”50 Major General (Retired) Thomas W. Eres, 

who served as the Staff Judge Advocate for the 40th Infantry Division 

(Mechanized) during the riots, remembered that there was “very much 

concern about legal ramifications,” from the attorneys in JTF-LA. Eres 

stated: “. . . there were various opinions expressed among the active duty 
59

JAGs,” and “lots of fog.” According to Eres, many of the lawyers were 

confused by the lack of a “legal annex” in the president’s executive order 

and by the fact that no one at headquarters was an expert on Chapter 15, 

Title 10, Sections 331 through 334.51 It would appear, at least in the initial 

stages of the JTF-LA operation, that military lawyers were confused about 

the PCA and provided Covault either incorrect or incoherent guidance.

While it is possible Covault understood the PCA, it appears both the 

CANG and Active Duty lawyers were confused regarding the implications of the law. In all likelihood, they may have given their commander 

the wrong information. To this day, some former CANG lawyers believe 

the PCA did apply.52 One senior CANG officer who participated in stopping the riots is convinced Covault fully understood the PCA, but used 

the law to distance JTF-LA from an undesirable assignment.53 This argument is bolstered by Currier, who recalled, “Soldiers were often told by 

their leaders that the reason they were no longer authorized to assist law 

enforcement officers was that such conduct was prohibited under the 

Posse Comitatus Act.”54 Even Delk was under the impression the Posse 

Comitatus Act applied.

Years after the end of this violent civil uprising, questions still linger. 

Did those in positions of authority, both military and civilian, understand 

the tenets of the act? Less than a year later, in Waco, Texas, the Posse 

Comitatus Act would once again take center stage as federal law enforcement agents sought assistance from the US Army in their standoff with 

David Koresh and his Branch Davidians.
60

Notes

1. Lou Cannon, Official Negligence: How Rodney King and the Riots 

Changed Los Angeles and the LAPD (New York: Times Books, 1997), 304–306.

2. Christopher M. Schnaubelt, “Lessons in Command and Control from 

the Los Angeles Riots,” Parameters, US Army War College Quarterly (Summer 

1997), 2; available from http://www.au.af.mil/au/awc/awcgate/army-usawc/

param_schnau97sum.htm, accessed 1 October 2005.

3. Scheips, 442–443.

4. Hamilton, Jay, and Madison, 2.

5. James D. Delk, Fires & Furies: The L.A. Riots (Palm Springs: ETC 

Publications, 1995), 46.

6. William H. Webster and Hubert Williams, The City in Crisis: A Report by 

the Special Advisor to the Board of Police Commissioners on the Civil Disorders 

in Los Angeles (n.p. 1992), 152; Schnaubelt, 2.

7. Susan Rosegrant, “The Flawed Emergency Response to the 1992 Los 

Angeles Riots,” The Kennedy School of Government Case Program, C16-00-

1588.0 (Cambridge: Kennedy School of Government, 2000), 19.

8. Schnaubelt, 9.

9. Ibid., 3.

10. Schnaubelt, 3.

11. Delk, 64.

12. Cannon, 342.

13. Delk, 98.

14. Scheips, 445.

15. Webster and Williams, 14.

16. Ibid., 14.

17. Scheips, 445.

18. Ibid., 446.

19. Delk, 95.

20. In his article “The Posse Comitatus Act and Homeland Security,” John 

R. Brinkerhoff points out that the PCA “May not apply to the National Guard (qua 

militia) even when it is called to federal active duty. The Posse Comitatus Act 

contains no restrictions on the use of the federalized militia as it did on the regular 

Army. It is commonly believed, however, that National Guard units and personnel 

come under the Posse Comitatus Act when they are on federal active duty, and this 

interpretation is followed today.” John R. Brinkerhoff, “The Posse Comitatus Act 

and Homeland Security,” Homeland Security Journal; available from http://www.
61

homelandsecurity.org/journal/Articles/brinkerhoffposs, accessed 12 September 

2005.

21. Rosegrant, 17; Schnaubelt, 10; Jennifer K. Elsea, “The Posse Comitatus 

Act and Related Matters: A Sketch,” CRS Report for Congress, Congressional 

Research Service, The Library of Congress, Updated 6 June 2005, CRS-3.

22. Telephonic interviews and e-mail correspondence conducted by the 

author, September–November 2005. Many of the respondents asked not to be 

quoted on this subject. 

23. Delk, 113–114.

24. Major General (Retired) Daniel J. Hernandez, telephone interview with 

author, 16 November 2005.

25. Delk, 114.

26. Rosegrant, 17.

27. Schnaubelt, 3.

28. Delk, 306.

29. Delk, 109–110.

30. Rosegrant, 16.

31. Ibid., 16.

32. Delk, 138.

33. Delk, 180–181.

34. Webster and Williams, 154.

35. Delk, 306.

36. Delk, 180–181.

37. Scheips, 448.

38. Schnaubelt, 10–11.

39. Webster and Williams, 154.

40. Brigadier General Louis Antonetti, Deputy Adjutant General for Joint 

Staff of the California Army National Guard, e-mail interview with author, 18 

November 2005.

41. Colonel Donald J. Currier, e-mail interview with author, 13 October 

2005.

42. Answers to questions regarding JTF-LA, Major General (Retired) Delk, 

e-mail to author, 7 October 2005; Major General James D. Delk, letter to 7th 

Infantry Division, 17 December 1992, copy in author’s file.

43. Cannon, 343.

44. William W. Mendel, “Combat in Cities: The LA Riot and Operation 
62

Rio,” Foreign Military Studies Office (July 1996), 3; available from http://fmso.

leavenworth.army.mil/documents/rio.htm. 

45. Currier, “The Posse Comitatus Act: A Harmless Relic from the PostReconstruction Era or a Legal Impediment to Transformation?,” 12.

46. Thomas R. Lujan, “Legal Aspects of Domestic Employment of the 

Army,” Parameters, US Army War College Quarterly (Autumn 1997), 7; available from http://carlisle-www.army.mil/usawc/Parameters/97/autumn/lujan.htm.

47. Webster and Williams, 153.

48. Ibid.,153.

49. Msg, Secy of Defense to HQDA; 2 May 92, sub: Public Affairs Guidance 

Update, Joint Task Force/Los Angeles (JTF/LA), LA Riots file, Historian’s files, 

CMH, copy in author’s file.

50. Colonel (Retired) Linda C. Harrel, e-mail interview with author, 22 

September 2005.

51. Major General (Retired) Thomas W. Eres, telephone interview with 

author, 15 November 2005.

52. Colonel (Retired) Linda C. Harrel, e-mail interview with author, 10 

November 2005.

53. Colonel Donald J. Currier, e-mail interview with author, 13 October 

2005.

54. Currier, “The Posse Comitatus Act: A Harmless Relic from the PostReconstruction Era or a Legal Impediment to Transformation?,” 12.
63

Chapter 5

The Posse Comitatus Act and the Assault on the Branch 

Davidian Compound

No list of military support capabilities is ever allinclusive. Innovative approaches to providing new and 

more effective support to law enforcement agencies are 

constantly sought, and legal and policy barriers to the 

application of military capabilities are gradually being 

eliminated. 

JTF-6 Operational Support Planning Guide

The first tip about the Branch Davidian compound to the Bureau 

of Alcohol, Tobacco, and Firearms (BATF) came from Deputy Sheriff 

Daniel Weyenberg of the McLennan County, Texas, Sheriff’s Department 

in May 1992. Weyenberg informed BATF officials in Austin, Texas, that 

an obscure religious group called the Branch Davidians, located outside 

Waco, Texas, were receiving large shipments of firearms and significant 

amounts of black powder. The leader of the religious sect, Vernon Wayne 

Howell, known to his followers as David Koresh, appeared to be building a military-type compound and stockpiling all manner of firearms. 

Suspicious of this unusual activity, Weyenberg encouraged the BATF to 

investigate the situation.1

By November 1992, Assistant US Attorney Bill Johnston was convinced the BATF had gathered enough evidence on illegal weapons activity to obtain search warrants for the Davidian compound. Once given 

permission to proceed, the BATF wasted little time in planning for a tactical operation to serve what they considered “high risk” warrants against 

Koresh and his followers. Early in their investigation, the BATF recognized the need for their own highly trained special response team. They 

also concluded that the assignment would require assistance from the US 

military.2

The first known meeting on the subject of military involvement took 

place in early November. At that time, the BATF discussed with Lieutenant 

Colonel (LTC) Lon Walker, a Department of Defense representative within 

the BATF, the possible use of military assets in their upcoming enforcement action against the Davidian compound. Although there were no 

detailed notes taken at this meeting, LTC Walker did jot down one item in 

his “summary of events.” Walker was certain he was “not told of any drug 

connection” in the Davidian investigation.3
64

On 4 December 1992, in Houston, Texas, the BATF held a large planning meeting to discuss “tactical options” for executing the warrants at 

the Davidian compound. LTC Walker was present at this meeting and 

informed the BATF “that the military probably could provide a great deal 

of support and [he] suggested things like aerial over flight thermal photography.” LTC Walker went on to explain, though, “that without a drug 

connection the military support would be on a reimbursable basis.” At 

this time BATF Special Agent Davy Aguilera told him that “there was no 

known drug nexus.”4

The reimbursement issue was a major problem for the BATF.5 The 

BATF believed their organization required military assistance, but they 

were not keen on paying for it. Federal law clearly stated, nonetheless, that 

unless a civilian law enforcement agency could prove a drug connection or 

drug nexus, they would be required to pay for the assistance.6

On 11 December 1992, an agent from the BATF convened a meeting with members of the Texas Governor’s Office and the National Guard 

Counterdrug Program to discuss the state support available to the BATF. 

At this meeting, state officials did not address “reimbursable” costs; they 

simply informed the BATF that to obtain National Guard Counterdrug 

Program support they would obviously need a drug connection.7 Staff officials recommended a coordinating agency known as Operation Alliance 

as a viable means for such an undertaking. As a coordinating agency for 

border control and drug enforcement, the alliance works with 17 federal 

agencies and numerous state and local law enforcement entities. Its mission is to synchronize counterdrug efforts in the Southwest. All requests 

for military support to federal law enforcement are channeled through 

Operation Alliance.8

Three days later, 14 December 1992, the BATF requested military support from the Texas Counterdrug Program, specifically, the Texas National 

Guard, to provide “aerial reconnaissance photography, interpretation and 

evaluation of photos, and transportation of BATF agents aboard aircraft 

during the reconnaissance.” Although there was no indication of a drug 

connection, the Texas Counterdrug Task Force commander signed off on 

the operation.9

On 16 December 1992, the BATF informed LTC Walker they now had 

evidence suggesting the possible presence of a methamphetamine laboratory on the Branch Davidian compound. The next day, LTC Walker told 

the BATF that with the “suspicion of drug activity,” it would be possible 

to use military equipment without reimbursing the government. It was recommended that the BATF pursue the drug connection.10
65

Starting the first week in January 1993, the Texas National Guard began 

flying missions over the Davidian compound. That same week, the BATF, 

circumventing Operation Alliance, applied directly to the Department of 

Defense Coordinator for Drug Enforcement Policy and Support for the use 

of office and stakeout equipment. Although the BATF provided no proof 

of a drug nexus, the Regional Logistics Support Office in El Paso, Texas, 

promptly supplied the requested equipment.11

The following week, the BATF asked the Regional Logistics Support 

Office for the use of a military operations on urbanized terrain (MOUT) 

site to train its special response team. They also requested the use of seven 

Bradley fighting vehicles, maintenance support, drivers’ training, and oncall support. The request was the largest in the history of the Regional 

Logistics Office, so large, in fact, that they handed the request over to the 

Texas National Guard.12

Operation Alliance formally requested assistance from Joint Task 

Force-6 (JTF-6) for the BATF on 2 February 1993. JTF-6, established in 

1989 at Fort Bliss, Texas, was a direct result of President George H.W. 

Bush’s war on drugs. Designed to support federal as well as local law 

enforcement and their counterdrug operations, JTF-6, unlike many military organizations, readily embraced their law enforcement support mission. Secretary of Defense Richard Cheney promoted their aggressive use 

asserting, “I believe that our military forces have the capability to make a 

substantial contribution toward drug interdiction, and I am instructing them 

to make the necessary preparations to carry out that responsibility”13

The Operation Alliance request for assistance to the BATF went 

directly to the Commander of JTF-6, Major General John M. Pickler. 

Specifically, the BATF wanted JTF-6 to supply them with US Army 

Special Forces Operational Detachment “Alpha” 381 (ODA 381), part of 

the Rapid Support Unit (RSU) allotted to JTF-6. Normally, these units 

serve a six-month tour with JTF-6.14

The BATF wanted the Special Forces soldiers to assist them with 

“medical treatment, communications procedures, operational plan development, review and approval, and ‘room clearing discriminate fire operations’ termed ‘close-quarter combat’ by the military.” In a bold move, the 

BATF also asked for Special Forces medics and communications specialist to assist them in the assault on the Davidian compound.15

No one at JTF-6 seemed concerned about the BATF’s questionable 

drug nexus nor did they voice any consternation over possible legal entanglements related to the use of the Special Forces soldiers. The JTF-6 staff 

promptly approved the mission.16 A congressional investigation would 
66

later report that “while some senior military officers and DEA [Drug 

Enforcement Agency] officials had opportunities to voice concerns about 

the BATF’s alleged drug nexus, they chose not to exercise those opportunities.”17 It would appear that JTF-6 was fully committed to their counterdrug mission, and they were not about to let legal barriers become an 

obstacle to mission success.

Fortunately for the Army, when JTF-6 passed the assignment on to 

the Rapid Support Unit, a Special Forces officer placed a call to the US 

Army Special Forces Command Staff Judge Advocate at Fort Bragg, 

North Carolina, to voice his apprehension about the proposed mission. 

On hearing the complaint, Major Philip Lindley, Staff Judge Advocate for 

the US Army Special Forces Command, immediately placed a call to the 

commander of the Special Forces Rapid Support Unit.

After familiarizing himself with the BATF request, Major Lindley 

called JTF-6 to voice his concerns about the proposed Special Forces 

assignment. In his opinion, the building of the rehearsal site, review and 

endorsement of the BATF assault plan, and the request for on-site medical 

support during the raid all constituted “active” participation on the part of 

the Army. He believed if military medical personnel were near the compound during the raid, they could be forced to treat the injured children 

and to search arrested individuals. If, in fact, there was a methamphetamine lab on the Davidian compound and the soldiers’ uniforms became 

contaminated, they could become involved in the collection of evidence. 

Major Lindley considered this active or direct participation in civil law 

enforcement and a clear-cut violation of the Posse Comitatus Act.

When Major Lindley communicated his misgivings about the mission 

to JTF-6, he was told by a JTF-6 lawyer that he was a “toad in the road” 

and an “unwarranted obstacle to mission success.” The JTF-6 attorney also 

indicated that Major Lindley was trying to “undermine” and “undercut” 

JTF-6’s operation. Major Lindley responded, “that he tended to take comments such as that personally.” The senior officer replied that he [Major 

Lindley] could take it personally and promptly hung up the phone.18

Determined to stave off a potential disaster, Major Lindley began a 

memorandum for record and alerted his superiors to the potential crisis. It 

did not take long for Major Lindley’s complaint to reach the Office of the 

Secretary of Defense. At this juncture, JTF-6 deemed it advisable to conduct a more thorough legal review, and after requesting more information 

from federal law enforcement officials on the drug nexus, dramatically 

scaled back their proffered assistance to the BATF. The Special Forces 

assistance to the BATF would now fall within legal guidelines and include 
67

only range safety, communications, and medical evacuation training. More 

importantly, however, no one from the Rapid Support Unit would accompany the BATF to help serve the warrants at the Davidian compound.19

On 28 February 1993, 76 BATF agents attempted to execute their 

search and arrest warrants on the Branch Davidian compound. As a result, 

a massive firefight occurred that killed four and wounded over 20 ATF 

agents, while six of Koresh’s cult followers were fatally gunned down 

and another four wounded. The casualties sustained by the BATF were the 

largest in the history of the organization. On 19 April, after a 51-day siege, 

fire engulfed the compound resulting in the deaths of 74 Davidians, 21 of 

whom were under the age of 14.20

Although the Texas National Guard provided myriad kinds of military 

machinery to federal law enforcement during the siege, and Active Duty 

soldiers assisted in maintaining the equipment, these activities all fell 

within the legal guidelines.21 Only by the slimmest of margins though, had 

the Army avoided direct participation in this major fiasco. While the commander of JTF-6 and the Assistant Secretary of Defense would later tell 

congressional investigators “the approval process worked as intended,” 

the Reform and Oversight Committee saw matters differently. In their 

report, they concluded: 

. . . that this was so only because Special Forces Command 

legal advisors at the U.S. Special Forces Command 

Headquarters, who were outside the normal approval 

process, but who had learned of ATF’s request for assistance from Special Forces soldiers at Operation Alliance, 

strongly voiced objections to the Special Forces training 

mission of ATF as proposed by JTF-6. As a result of these 

concerns reaching extremely senior levels of command 

within the Department of Defense, the training missions 

were scaled back significantly and potential violations of 

the law were avoided.22

Beyond violating the law, the US Army’s image and reputation could 

have suffered a severe blow had Special Forces soldiers been directly 

involved in the Waco disaster. Colonel (Retired) Thomas R. Lujan, the 

Staff Judge Advocate for the United States Special Operations Command 

at the time of the incident, is convinced: 

The specter of members of the Army’s special operations 

forces accompanying BATF agents storming a religious 

compound, however misguided its leader, could have 

seriously compromised public support of the US Army. 
68

Had the initial request been approved (it was) and acted 

upon (it wasn’t), this could easily have been the single 

most debilitating event to occur within the Army since 

the tragedy at My Lai. In fact, this occurrence could have 

been even more egregious because it would have taken 

place on American soil, would have been a clear violation 

of the Posse Comitatus Act, and would have raised the 

issue of military involvement in a case of alleged religious freedom.23

There can be little doubt that in their zeal to execute the mission, JTF-6 

was willing to bend the rules. Their actions could have resulted in an angry 

outcry from the American public, branding the Army as a force opposed 

to civil liberties. Fortunately, a few intrepid officers risked military ire and 

challenged the chain of command and, in so doing, averted a violation of 

the Posse Comitatus Act. Their actions not only precluded the military’s 

involvement in a questionable enterprise, but also almost certainly saved 

the Army a great deal of potential embarrassment, and perhaps even the 

lives of some soldiers.
69

Notes

1.	 Report of the Department of the Treasury on the Bureau of Alcohol,

Tobacco, and FirearmsInvestigation of Vernon Wayne Howell also known as David

Koresh (Washington, DC: Superintendent of Documents), September 1993, 17.

2. Ibid., 37; Joint Task Force-6 Operational Support Planning Guide, 

Treasury Documents T08786, 08791, quoted in Report 104-749, House of 

Representatives, Investigation into the Activities of Federal Law Enforcement

Agencies Toward the Branch Davidians (Washington, DC: US Government 

Printing Office), 2 August 1996, 35. Hereafter cited as House Investigation.

3. House Investigation, 35. 

4. Ibid., 36.

5. “The drug enforcement exception to the Posse Comitatus Act has been 

very effective at undermining the honesty of law enforcement personnel, who are 

encouraged to allege a drug nexus in many investigations for the purpose of getting, gratis, federal military assistance. The U.S. Marshals Service claimed a possible drug problem involved with the Randy Weaver family at Ruby Ridge, Idaho 

in order to get military reconnaissance flights over the cabin, which revealed 

no evidence of drugs.” David B. Kopel and Paul M. Blackman, “Can Soldiers 

Be Peace Officers? The Waco Disaster and the Militarization of American Law 

Enforcement,” 30 Akron L. Rev. 619 [online] (1997); available from http://wwwpersonal.umich.edu/~arafi/waco/soldierspeace.htm, accessed 1 October 2005.

6. 10 U.S.C. Sec. 377; House Investigation, 32.

7. House Investigation, 36.

8. Operation Alliance, 1; available from http://www.globalsecurity.org/military/ops/alliance.htm, accessed 1 October 2005.

9. House Investigation, 36–37.

10. Ibid., 37.

11. Ibid., 37.

12. House Investigation, 37–38.

13. Joint Task Force North, 1; available from http://www.jtfn.northcom.mil/

subpages/history.html, accessed 15 October 2005.

 14. Lujan, 4; John C. Danforth, Interim Report to the Deputy Attorney

General Concerning the 1993 Confrontation at the MT. Carmel Complex, Waco,

Texas, Pursuant to Order No. 2256-99 of The Attorney General, 21 July 2000, 31.

15. Lujan, 4; House Investigation, 38.

16. Lujan, 4; House Investigation, 40.

17. House Investigation, 40; Thomas R. Lujan wrote that, “It became clear 

from the after-action reports and investigations that BATF’s primary interest 
70

in this case stemmed from their conclusion that the Branch Davidians were 

stockpiling weapons in their compound. That conclusion perhaps could have been 

foreshadowed by a series of anomalies related to the BATF request for Special 

Forces support. They were the peripheral nature of the BATF in drug operations 

(usually spearheaded by the Drug Enforcement Agency at the federal level), the 

lack of involvement of the specialized drug laboratory reaction force, and the 

extensive nature of military support requested. All provided strong indications 

that further command inquiry was advisable. And although the commanding 

general of the JTF testified before Congress that he saw no reason to pierce the 

veil of the BATF request, the implications of this sequence of events should be 

understood by commanders and senior staff officers engaged in such operations 

in the future.” Lujan, 5.

18. Lujan, 5, 13; House Investigation, 42.

19. House Investigation, 40, 42; Lujan, 4.

20. Report of the Department of the Treasury, 1; Lujan, 4.

21. The House Investigation concluded, “1. The activities of active duty 

military personnel in training the ATF and in supporting the FBI’s activities during the standoff did not violate the Posse Comitatus Act because their actions did 

not constitute direct participation in the government’s law enforcement activities. 

2. The activities of National Guard personnel in training the ATF, in participating 

in the ATF raid on the Davidian residence, and in supporting the FBI’s activities 

during the standoff did not violate the Posse Comitatus Act because the personnel 

were not subject to the prohibitions in the act.” House Investigation, 5.

22. House Investigation, 39.

23. Lujan, 5.
71

Chapter 6

Conclusions

The old law is widely misunderstood and unclear. 

It leaves plenty of room for people to do unwise and 

perhaps unlawful things while trying to comply with their 

particular version. It certainly does not provide a basis for 

defining a useful relationship of military forces and civil 

authority in a global war with terrorism.

John R. Brinkerhoff, Journal of Homeland Security

The US military’s engagement in the Global War on Terrorism 

(GWOT) presents several questions regarding the Posse Comitatus Act. 

Has the law, with its confusing array of exceptions, become so ambiguous 

that it is no longer applicable without extensive and protracted legal wrangling? Most importantly, does the PCA truly protect the American people, 

or does it, in fact, place them at greater risk in the GWOT?

The PCA, initially designed to assist in dismantling black freedoms, 

is now regarded as a protector of American freedoms. An example of 

this mindset is in a recent Air Force guidance document that underscores 

“adherence to the Act important . . . to protect our constitutional values.”1

The Constitution, though, makes no mention of military involvement in 

civil law enforcement one way or the other. It certainly places no restrictions on the use of the Army as a posse comitatus. A recent Congressional 

Research Service report clearly states, “The Constitution does not explicitly bar the use of military forces in civilian situations or in matters of law 

enforcement. . . .”2

Because the Constitution does not address the issue of military participation in civil law enforcement, it is possible the framers never envisioned 

or proposed military involvement in routine, day-to-day civilian police 

duty. In a recent report to Congress, Charles Doyle, a Senior Specialist 

in American Public Law, concluded that there was perhaps “. . . visible 

protrusions of a larger, submerged constitutional principle which bars the 

use of the armed forces to solve civilian inconveniences.”3 Hamilton envisioned the Army assisting the magistrate in suppressing “a small faction, 

or an occasional mob or insurrection,” to occur only in “emergencies.”4 As 

an example, the Army’s participation in the struggle against the Ku Klux 

Klan during Reconstruction would fall into the suppression of a “small faction” category, while the military’s involvement in the 1992 Los Angeles 

riots would certainly constitute the suppression of a mob. 
72

Perhaps a gray area for the military is its law enforcement function 

in the “war on drugs.” Minus the political rhetoric, it is arguable that 

this mission is an ordinary civil law enforcement responsibility, one that 

does not rise to the level of emergency as Hamilton envisioned. Notably, 

Congress enacted a multitude of exceptions to the Posse Comitatus Act to 

allow the military to assume the lead in drug interdiction. These exceptions, compounding those already in existence (see appendix), have added 

to the confusion surrounding the PCA. They have involved the military 

in questionable episodes, such as Waco, which may serve to distract from 

what should be the current major focus on the home front—the Global 

War on Terrorism.

In the Global War on Terrorism, the Army could find itself confronting a large faction of terrorists on US soil. Not surprisingly, planners are 

currently moving forward with stratagems to deal with such an eventuality, specifically an attack by 100 or more terrorists on an American town 

or city.5 The military must be able to react with utmost speed to a terrorist 

attack on American soil and not find its actions bogged down with legal 

uncertainties inherent in the PCA.

In this Global War on Terrorism era, when rapid response to a crisis 

is essential, military lawyers must thoroughly understand the PCA. Policy 

makers and military personnel need to be cognizant of the roles of both 

state and federal forces as prescribed in the act. As history has demonstrated, military officers cannot always rely on the veracity of intelligence 

supplied by federal law enforcement agencies. It is, therefore, incumbent 

on military personnel to verify all information to avoid violations of the 

PCA.

In determining the future of the PCA, the concerns brought forth in 

this paper may serve as a framework for consideration by military personnel and policy makers. Ambiguity and misunderstanding will hopefully 

give way to clarity and transformation, thereby maximizing the effectiveness of all involved. Whether new laws will be passed or the PCA will be 

scuttled or realigned is yet to be determined. However, when future events 

warrant the use of the military in a civil law enforcement role, it is imperative that impediments such as those encountered in the PCA will no longer 

thwart swift and decisive action.
73

Notes

1. Office of the General Counsel, Air Force General Counsel Guidance 

Document: Posse Comitatus (Washington, DC: Department of the Air Force), 

September 2003.

2. Jennifer K. Elsea, “The Use of Federal Troops for Disaster Assistance: 

Legal Issues,” CRS Report for Congress, Congressional Research Service, The 

Library of Congress, 16 September 2005, CRS-2.

3. Charles Doyle, “The Posse Comitatus Act & Related Matters: The Use of 

the Military to Execute Civilian Law,” CRS Report for Congress, Congressional 

Research Service, The Library of Congress, 1 June 2000, CRS-12.

4. Hamilton, Jay, and Madison, 149–150.

5. “A larger band of 100 or more terrorists ‘is a level of threat nobody 

is prepared to deal with,’ says James Carafano, a senior research fellow at the 

Heritage Foundation in Washington. In fact, Carafono told ITP this week he 

doubts U.S. troops are truly ready to handle even a platoon-sized terror threat in 

an American city or town. But U.S. Northern Command is moving to do just that, 

says one source. To meet DOD’s new strategy for homeland defense, the combatant headquarters charged with militarily protecting the United States against 

terrorist wants larger ground forces trained to a single standard and put on alert to 

respond to major incidents that surpass the response capabilities of state or local 

law enforcement.” Grossman, 1.

75

Bibliography

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Coakley, Robert W. The Role of the Federal Military Forces in Domestic 

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81

Appendix

Statutory Exceptions to the Posse Comitatus Act

5 USC App (Inspector General Act of 1978) 8(g): Department of Defense 

Inspector General is not limited by the Posse Comitatus Act (18 USC 

1385) in carrying out audits and investigations under the Act.

10 USC 331–335: President may use the militia and armed forces to 

suppress insurrection and enforce federal authority in the face of 

rebellion or other forms of domestic violence.

10 USC 374 note (§1004 of the National Defense Authorization Act 

for 1991, as amended): During fiscal years 1991 through 2002, the 

Secretary of Defense may provide counterdrug activity assistance on 

request of federal or state law enforcement agencies.

10 USC 382: The Secretary of Defense may provide assistance to the 

Department of Justice in emergency situations involving chemical or 

biological weapons of mass destruction.

10 USC 382 note (§1023 of the National Defense Authorization Act 

for Fiscal Year 2000): During fiscal years 2000 through 2004, the 

Secretary of Defense may provide assistance to federal and state law 

enforcement agencies to respond to terrorism or threats of terrorism.

16 USC 23: Secretary of the Army may detail troops to protect Yellowstone 

National Park on the request of the Secretary of the Interior.

16 USC 78: Secretary of the Army may detail troops to protect Sequoia 

and Yosemite National Parks on the request of the Secretary of the 

Interior.

16 USC 593: President may use the land and naval forces of the United 

States to prevent destruction of federal timber in Florida.

16 USC 1861(a): Secretary of Transportation (or the Secretary of the Navy 

in time of war) may enter into agreements for the use of personnel 

and resources of other federal or state agencies—including those of 

the Department of Defense—for the enforcement of the Magnuson 

Fishery Conservation and Management Act.

Charles Doyle, “The Posse Comitatus Act & Related Matters: The Use of 

the Military to Execute Civilian Law,” CRS Report for Congress, Congressional 

Research Service, The Library of Congress, updated 1 June 2000.
82

18 USC 112, 1116: Attorney General may request the assistance of federal 

or state agencies—including the Army, Navy, and Air Force—to 

protect foreign dignitaries from assault, manslaughter, and murder.

 18 USC 351: FBI may request the assistance of any federal or state agency—

including the Army, Navy, and Air Force—in its investigations of the 

assassination, kidnapping, or assault of a member of Congress.

 18 USC 831: Attorney General may request assistance from the Secretary 

of Defense for enforcement of the proscriptions against criminal 

transactions in nuclear materials (18 USC 175a, 229E, and 2332e 

cross reference to the Attorney General’s authority under 10 USC 381 

to request assistance from the Secretary in an emergency involving 

biological weapons, chemical weapons, and weapons of mass 

destruction, respectively).

18 USC 1751: FBI may request the assistance of any federal or state 

agency—including the Army, Navy, and Air Force—in its investigations 

of the assassination, kidnapping, or assault of the President.

18 USC 3056: Director of the Secret Service may request assistance from 

the Department of Defense and other federal agencies to protect the 

President.

22 USC 408: President may use the land and naval forces of the United 

States to enforce Title IV of the Espionage Act of 1917 (22 USC 401–

408).

22 USC 461: President may use the land and naval forces and militia 

of the United States to seize or detain ships used in violation of the 

Neutrality Act.

22 USC 462: President may use the land and naval forces and militia of the 

United States to detain or compel departure of foreign ships under the 

provisions of the Neutrality Act.

25 USC 180: President may use military force to remove trespassers from 

Indian treaty lands.

42 USC 98: Secretary of the Navy at the request of the Public Health 

Service may make vessels or hulks available to quarantine authority 

at various US ports.

42 USC 1989: Magistrates issuing arrest warrants for civil rights violations 

may authorize those serving the warrants to call for assistance from 

bystanders, the posse comitatus, or the land or naval forces or militia 

of the United States.
83

42 USC 5170b: Governor of state in which a major disaster has occurred 

may request the President to direct the Secretary of Defense to permit 

the use of DOD personnel for emergency work necessary for the 

preservation of life and property.

43 USC 1065: President may use military force to remove unlawful 

enclosures from the public lands.

48 USC 1418: President may use the land and naval forces of the United 

States to protect the rights of owners in guano islands.

48 USC 1422: Governor of Guam may request assistance of senior military 

or naval commander of the armed forces of the United States in cases 

of disaster, invasion, insurrection, rebellion, or imminent danger 

thereof, or of lawless violence.

48 USC 1591: Governor of the Virgin Islands may request assistance 

of senior military or naval commander of the armed forces of the 

United States in the Virgin Islands or Puerto Rico in cases of disaster, 

invasion, insurrection, rebellion, or imminent danger thereof, or of 

lawless violence.

50 USC 220: President may use the Army, Navy, or militia to prevent 

the unlawful removal of vessels or cargoes from custom areas during 

times of insurrection.

85

About the Author

Matt M. Matthews joined the Combat Studies Institute in July 2005 

after working for 16 years as a member of the World Class Opposing Force 

(OPFOR) for the Battle Command Training Program at Fort Leavenworth, 

Kansas. Mr. Matthews graduated from Kansas State University in 1986 

with a B.S. in History. He served as an Infantry enlisted man in the Regular 

Army from 1977 to 1981; a Cavalry officer in the US Army Reserve from 

1983 to 1986; and as an Armor officer in the Kansas Army National Guard 

from 1986 to 1991. Mr. Matthews has coauthored numerous scholarly 

articles on the Civil War in the Trans-Mississippi to include “Shot All To 

Pieces: The Battle of Lone Jack,” “To Play a Bold Game: The Battle of 

Honey Springs,” and “Better Off in Hell: The Evolution of the Kansas 

Red Legs”; he is a frequent speaker at Civil War Roundtables; and he 

recently appeared on the History Channel as a historian for Bill Kurtis’ 

Investigating History. Mr. Matthews was the mayor and city commissioner 

of Ottawa, Kansas, from 1993 to 1999.
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