THE POSSE COMITATUS ACT:

A HARMLESS RELIC FROM THE POST-RECONSTRUCTION ERA

OR A LEGAL IMPEDIMENT TO TRANSFORMATION?

Donald J. Currier

September 2003
ii

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ISBN 1-58487-137-7
iii

PREFACE

The U.S. Army War College provides an excellent environment for selected military officers and 

government civilians to reflect and use their career experience to explore a wide range of strategic 

issues. To assure that the research developed by Army War College students is available to Army and 

Department of Defense leaders, the Strategic Studies Institute publishes selected papers in its Carlisle 

Papers in Security Strategy Series.

The author of this Carlisle Paper, Lieutenant Colonel Donald J. Currier, member of the Class of 2003, 

contends that the Posse Comitatus Act was too broad when it became law in 1878, although it appears 

straightforward. Since then, the law increasingly has become difficult for the military to interpret and 

apply.

STEVEN METZ

Director of Research

Strategic Studies Institute 
iv

ABOUT THE AUTHOR

DONALD J. CURRIER, a lieutenant colonel in the U.S. Army, is a member of the U.S. Army War 

College Class of 2003. He is currently assigned as the Civil Military Affairs Officer of the California 

Army National Guard. He now works at the California Department of Veterans Affairs as a full-time 

staff counsel. His recent assignments include Command of the 49th Military Police Battalion during 

Operation NOBLE EAGLE, and prior command of the 2/223d Infantry Battalion (General Studies). 

Lieutenant Colonel Currier served as a Battalion Law & Order/ EPW Officer during Operation 

DESERT STORM. He commanded the 270th Military Police Company during the 1992 Los Angeles 

Riots. He served 3 years as an enlisted military policeman prior to receiving a commission through 

ROTC in 1982. His civilian positions include city police detective in Sacramento, CA, Deputy District 

Attorney in the County of Sacramento, Counsel to the State Assembly Committee on Public Safety, 

and Chief Deputy Director at the Governor’s Office of Criminal Justice Planning in California. He 

has taught constitutional law, criminal procedure and other courses at Justice University, McGeorge 

School of Law, and the Sacramento Police Academy. His military education includes Military Police 

Basic Course, Military Police Advanced Course, CAS3, CGSC and the U.S. Army War College. He 

holds a B.A. in criminal justice from California State University at Sacramento, an M.A. from the U.S. 

Army War College, and a law degree from Lincoln University. 
v

ABSTRACT

The Secretary of Defense should seek repeal of The Posse Comitatus Act (PCA). This Act presents a 

formidable obstacle to our nation’s flexibility and adaptability at a time when we face an unpredictable 

enemy with the proven capability of causing unforeseen catastrophic events. The difficulty in correctly 

interpreting and applying the Act causes widespread confusion at the tactical, operational, and strategic 

levels of our military. 

Given that future events may call for the use of the military to assist civil authorities, a review of the 

efficacy of the PCA is in order. This paper documents the historical context of the PCA, explains the 

parameters of the law, and provides an analysis of the PCA’s value in today’s security environment. 

An analysis of the PCA will reveal that, although the policy goals behind the Act are generally sound 

and desirable, Congress could better implement their intent through other means.

1

As originally passed, the Posse Comitatus Act 

(PCA) read,

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 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.1

With the exception of a short amendment, 

i.e., extending the Act to include the Air Force, 

the PCA remains substantially as it was when 

Congress added its language to the Army 

appropriations bill in 1878. Only 52 words long, 

it deceivingly appears straightforward. As this 

paper will demonstrate, however, the Act was 

overly broad at its inception, and it increasingly 

has become both ambiguous and complex in its 

ramifications.

The Secretary of Defense should seek repeal 

of PCA because the ambiguity of the Act causes 

widespread confusion at the strategic, operational, 

and tactical levels of our military. Although 

the law has little practical effect regarding its 

intended purpose, the complexity and rigidity 

of the Act present a formidable obstacle to our 

nation’s defense flexibility and adaptability. 

We can ill afford such anachronistic restraints 

at a time when we face an unpredictable enemy 

with the proven capability of causing unforeseen 

catastrophic events. 

The possibility that such future events may call 

for military assistance to civil authorities (MACA) 

requires that we review the efficacy of the PCA. 

This paper will document the historical context 

of the PCA, clearly explain the parameters of the 

law, and provide an analysis of the PCA’s value 

in today’s security environment. An analysis of 

the Act will reveal that although the policy goal 

THE POSSE COMITATUS ACT:

A HARMLESS RELIC FROM THE POST-RECONSTRUCTION ERA

OR A LEGAL IMPEDIMENT TO TRANSFORMATION?

behind the Act is generally sound and desirable, 

Congress could have better implemented its 

intent on this subject through means other than a 

criminal statute.

HISTORICAL CONTEXT

The PCA is a federal criminal law that 

prohibits using federal troops to enforce civil 

laws, under penalty of fine and or imprisonment. 

Congress originally enacted the PCA in 1878 (as an 

amendment to the Army appropriation bill) after 

the Reconstruction. According to the Homeland 

Security Act of 2002, when Congress passed the 

Act, it “expressly intended to prevent United 

States Marshals, on their own initiative, from 

calling on the Army for assistance in enforcing 

federal law.”2 Others have argued that Congress 

intended the law to “prevent the military forces of 

the U.S. from becoming a national police force or 

guardia civil.”3 Whether or not Congress intended 

it to be so broad, the PCA generally prohibits 

any person from using the Army or Air Force to 

enforce civil law, unless otherwise provided for 

in law. 

Early Use of the Army in Civil Disturbances.

The military has a long tradition of being the 

force of last resort to quell riots. Such use in the 

United States can be traced back as early as the 

New York City Doctors’ Riot in April of 1788.4 The 

riot started when widespread reports of doctors 

robbing graves for medical research circulated 

throughout the city. A large mob marched on the 

New York City hospital, where the doctors had 

taken refuge from angry demonstrators. Having 

no police force large enough to control the crowd, 

New York City officials asked the governor 

to call out the militia to disperse the mob. The 

commanding officer ordered several volleys of 

musket fired directly into the crowd before they 
2

dispersed. The militia remained on the streets for 

several days before they were able to restore calm 

and order.5

President George Washington “federalized” 

the New Jersey, Virginia, Maryland, and 

Pennsylvania militias to quell the Whiskey 

Rebellion of 1794 in Pennsylvania. Congress 

had passed the Excise Act in 1791, which 

carried heavy taxes for distilled spirits. The 

new federal taxes brought by the Excise Act 

created widespread dissatisfaction with the 

Federal Government among Pennsylvanians. 

This dissatisfaction quickly led to civil unrest in 

a handful of Pennsylvania counties. After several 

disruptive incidents, President Washington 

issued a proclamation condemning activities 

that “obstruct the operation of the laws of the 

United States.” On July 16, 1794, the situation 

turned violent. A mob of 500 local militiamen 

attacked the home of a revenue collector, General 

Neville, near Pittsburgh. The militia captured 

Major Kirkpatrick and ten of the soldiers from 

Fort Pitt who were defending the home. Four of 

Kirkpatrick’s soldiers received serious wounds, 

and the militia commander, James McFarlane, 

died in the action.6 An armed force of 7,000 

“malcontents” marched on Pittsburgh on August 

1, intending to capture Fort Pitt. Although the 

mob dispersed before an attack on the fort was 

mounted, Governor Mifflin asked the President 

for help on August 4, 1794. 

Secretary of the Treasury Alexander Hamilton 

had fought closely with General Washington 

during the Revolutionary War. Hamilton 

estimated that the Government would need 12,000 

men to suppress the violence.7 In his estimation, 

the disturbance was more than a spontaneous 

riot, but less than a “rebellion.”8 The number 

of troops called for exceeded the capability 

of the Pennsylvania Militia. Three days later, 

President Washington issued a proclamation 

directing “all persons being insurgents, as 

aforesaid, are commanded on or before the first 

day of September next, to disperse and retire 

peaceably to their respective abodes.”9 He relied 

on the “Calling Forth Act”10 as his authority to 

mobilize a militia force of 15,000 men to engage 

the estimated 16,000 rioters. 

He met with the troops in Carlisle, 

Pennsylvania, in October to give them their 

orders. He directed them to overcome any armed 

opposition and to support the civil officers in the 

means of executing the laws. The troops met no 

resistance, and the civil disturbance ended as soon 

as the troops deployed.11 President Washington’s 

action in employing federal troops established a 

precedent for using the Army to quell riots and 

suppress rebellion. As it is the President’s duty 

under the Constitution to “take care that the laws 

be faithfully executed” and “insure domestic 

tranquility,” the tradition has continued to this 

day.

History of the PCA.

The history of the PCA really begins with 

the Judiciary Act of 1789, which established the 

Federal District Courts.12 In that act, Congress 

provided each district court with a U.S. Marshal. 

They gave the U.S. Marshals authority to employ 

the common law “power of the county” or “posse 

comitatus” to assist them in capturing fugitives 

from federal justice and to enforce the orders of 

the court. As a rule, U.S. Marshals did not make a 

practice of using the military to form their posse. 

When needed by U.S. Marshals, military support 

would be requested through the military chain 

of command and would require approval by the 

President. When supporting the U.S. Marshals, 

the Army would maintain its chain of command 

and perform the mission for a short period. 13

The practice did not become controversial 

until Congress enacted the Slave Trade Act of 

1850.14 After Congress enacted this act, U.S. 

Marshals began arresting fugitive slaves in the 

northern United States who had escaped from 

slave states in the South. U.S. Marshals became 

the object of scorn and outrage and were often the 

victim of physical assaults. They began turning to 

the military for help with greater frequency. The 

military understandably resisted participation in 

the unpopular practice of assisting in the capture of 

runaway slaves. In 1854, Attorney General Caleb 

Cushing rendered an opinion declaring that the 
3

practice of impressing the military (without the 

approval of their chain of command) into federal 

posses was legal.15 The U.S. Marshal’s authority 

had been somewhat vague and ambiguous until 

Attorney General Cushing issued his opinion on 

the issue, stating that:

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.16

It is important to note that this issue revolved 

around the propriety of U.S. Marshals using 

the military to assist in the capture of criminals 

wanted for federal crimes and the compulsion 

of military forces to protect federal courts and 

judges during times of civil unrest. The concern 

raised was not compulsory participation of the 

military in the posses raised by local sheriffs or 

police. Local officials never had the authority to 

summon the aid of federal troops. The issue once 

arose in relation to a local sheriff who asked for 

but did not receive military assistance in the state 

of Texas. In March of 1877, the Judge Advocate 

General (JAG) of the Army issued an opinion 

stating, “A sheriff or other state official has no 

such authority as that possessed by a United 

States Marshal to call upon United States troops 

as such to serve upon a posse.” 17 In June of 1878, 

before passage of the PCA, the JAG opined that 

his previous opinion also applied to the Territory 

of New Mexico, where local law enforcement 

officials were outgunned and outmanned by their 

criminal opponents. The JAG correctly pointed 

out in his opinion that the U.S. military acts as 

an agent for the executive branch of the Federal 

Government, which is beyond the command and 

direction of state and local authorities.

There were two underlying reasons why 

Congress inserted the language of the PCA in the 

Army’s annual appropriations bill in 1878. The 

first revolved around the practice of U.S. Marshals 

impressing military members into a posse under 

the authority granted by the Judiciary Act of 

1789.18 Soldiers and their leadership often saw the 

practice as necessary, but found it nonetheless 

difficult and distasteful.19

The other reason that Congress enacted the 

law was the urging of southern Democrats, 

who deeply resented President Grant’s use of 

the Army during Reconstruction in the South. 

A common belief is that Congress had a visceral 

reaction against the use of the Army to guard the 

polls during the presidential election of 1876, 

guaranteeing the right of African-Americans 

to vote and thus improving the chances for 

victory of the President’s own party. This view 

is an oversimplification of what really happened 

during those few years preceding the vote on 

the PCA. To appreciate the Army’s role during 

the years preceding enactment of the PCA, it 

is necessary to examine the historical period of 

Reconstruction of the South after the Civil War.

RECONSTRUCTION

As the American Civil War came to an end 

in April of 1865, President Lincoln advised the 

nation to show “malice toward none, with charity 

for all . . . let us strive on to finish the work we 

are in, to bind up the nation’s wounds.”20 It 

seems that not many in Congress were much 

interested in remembering President Lincoln’s 

advice after his assassination. Initially, President 

Johnson and Congress agreed that each state 

individually would have to ratify the Fourteenth 

Amendment to the Constitution before military 

occupation would end in that state. In 1867, 

when southern states resisted the grant of civil 

rights to African-Americans, Senator Thaddeus 

Stevens introduced a drastic reconstruction bill. 

In his speech promoting the bill, he argued that 

the former Confederates in the South could not 

be trusted. “Not only had they tried to tear the 

Union apart, but since the war they had acted 

as barbarians . . . murdering loyal whites daily 

and daily putting into secret graves not only 

hundreds but thousands of colored people.”21

Congress passed a compromise reconstruction 
4

bill in March 1867, giving blacks the right to vote 

and dividing the South into five military districts. 

A general officer commanded each district. 

Congress gave the Army the responsibility to 

“supervise elections, maintain order, and enforce 

the law.”22 Two subsequent reconstruction acts, 

passed the same year, authorized the Army to bar 

voters and discharge southern officials.23

Louisiana. 

The end of Reconstruction in Louisiana 

started on June 25, 1868, when the state 

legislature ratified the Fourteenth Amendment 

to the U.S. Constitution. On July 13, 1868, the 

Military Department of New Orleans issued 

Special Order No. 154, officially ending military 

law in that state.24 Within 1 month, 50 men were 

murdered, and civil law was in serious peril. 

Within 45 days, the state was in chaos. More than 

150 people were murdered, most being AfricanAmerican. On July 30, an angry mob threatened 

to attack the state legislature, but the presence 

of federal troops deterred them. General Grant, 

then General of the Army, directed that troops 

remain in Louisiana to be ready to restore order. 

Major General Buchanan, the Louisiana Military 

Department Commander, issued instructions and 

guidelines regarding the use of military forces by 

U.S. Marshals to enforce the laws of the United 

States when no other mechanism was available to 

restore order and preserve lives.25

In September 1874, a simmering political 

controversy boiled over. Since the end of 

Reconstruction, Louisiana had held a series 

of elections that resulted in competing claims 

to power by two governors, two lieutenant 

governors, and two legislatures. Election fraud 

was so extensive that it was impossible to discern 

the rightfully elected government, although 

one party enjoyed the ratification of the state 

courts. On September 14, 1874, D. B. Penn, one 

of the disputants whom the Louisiana courts 

had not recognized as an officeholder, issued a 

proclamation raising an outlaw militia. One of 

the grievances listed in his proclamation was 

that “the judicial branch of your government has 

been stricken down by the conversion of the legal 

posse comitatus of the sheriff to the use of the 

usurper, for the purpose of defeating the decrees 

of the courts, his defiance of the law leading him 

to use the very force for the arrest of the sheriff, 

while engaged in the execution of a process of 

the court.”26 Penn raised an army of 10,000 men 

and seized the City of New Orleans from the 

metropolitan police, effectively staging a forcible 

coup d’état. The recognized governor, William 

Kellogg, asked President Grant to send federal 

troops to put down the rebellion. The President 

issued a proclamation and dispatched federal 

troops. The outlaw militia surrendered to the 

federal soldiers, thus restoring order.

A turbulent election took place in November, 

resulting in a 54-50 majority of Republicans in 

the State Legislature. The first day the legislature 

returned to New Orleans, the Democratic minority 

staged a forcible coup d’état in the statehouse, 

drawing knives and pistols and physically 

beating the Republicans into submission. The 

Democrats installed five additional nonelected 

legislators. The Governor called for assistance, 

and federal troops again restored order. General 

Sheridan, the district commander, remarked that 

bloodshed would have ensued had federal troops 

not intervened. The Democrats sent a letter to 

President Grant, objecting to federal intervention 

in the political affairs of their state. This event 

caused great political tumult throughout the 

nation. Congress demanded an explanation from 

the President. On January 13, 1875, he responded 

in part that “the task assumed by the troops is 

not a pleasant one to them; that 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, and that it was 

impossible to give specific instructions providing 

for all possible contingencies that might arise.”27

Arkansas.

A similar situation occurred in Arkansas in 

1874. Two different groups claimed the right to 

the statehouse. Both requested the assistance of 

the Federal Government to eject the imposter on 
5

the other side. The President used federal troops 

to prevent either side from using their militias to 

settle the dispute. After consulting with Congress, 

the President finally recognized one of the parties, 

and the other disputant disarmed under threat of 

force from federal troops.

South Carolina. 

In 1865, six former Confederate soldiers formed 

an organization they called the Ku Klux Klan. The 

organization quickly grew throughout the former 

states of the Confederacy. By the late 1860s, the 

Klan had a membership of more that 500,000 

men.28 Its “Grand Wizard,” former Confederate 

General Nathan Bedford Forrest, formally 

disbanded the Klan in 1869. Yet, the activity of 

the Klan continued.29 On April 20, 1871, Congress 

responded by enacting the Ku Klux Klan Act. The 

following month, President Grant began issuing 

a series proclamations, warning of the impending 

use of troops, suspending the writ of habeas 

corpus, and finally deploying soldiers to suppress 

the activities of the Klan.30 Federal troops arrested 

more than 500 men, many of whom faced trial and 

conviction in federal court for violating the Ku 

Klux Klan Act.31 Many people in the South deeply 

resented the President’s actions. According to 

one historian, “It was felt in the South to be an 

abominable outrage, and the Democrats of the 

North held the same opinion.”32 In 1876, violent 

confrontations, instigated by the Ku Klux Klan, 

broke out between armed members of opposite 

political parties in South Carolina, resulting in 

several deaths. Other groups, variously known as 

Rifle Clubs, Democratic Military Clubs, and Red 

Shirts, actively resisted Negro suffrage. Atlanta

magazine provides a chilling recitation of the 

Democratic campaign plan for 1876: 

Every club must be uniformed in a red 

shirt. The clubs are to be armed with 

rifles and pistols and organized in to 

companies with experienced captains. 

Every Democrat must feel honor bound to 

control the vote of at least one Negro, by 

intimidation, purchase, keeping him away 

or as each individual may determine....

Never threaten a man individually. If he 

deserves to be threatened, the necessities 

of the times require that he should die.33

Again, the President used federal troops to 

enforce the law and suppress violence. During 

the presidential election in South Carolina, he 

stationed federal troops in 70 locations throughout 

the state to reduce the likelihood of violence. After 

the election, two men claimed the Governor’s 

seat. Newly elected President Rutherford Hayes 

invited both of the South Carolina disputants 

to the White House for a meeting, wherein they 

reached an agreement that avoided violence. The 

President ordered most of the remaining troops 

to be withdrawn. 

One cannot overstate the deep cultural 

differences between the North and South during 

Reconstruction. The hatred and disaffection 

among the white majority in the southern states 

is almost unimaginable in American society 

today. More than 50 years after Reconstruction, 

the Democratic presidential candidate, Strom 

Thurmond, illustrated the depth and persistence 

of the attitude towards blacks in the Carolinas. 

During his 1948 campaign, candidate Thurmond 

claimed, “There’s not enough troops in the 

Army to force the Southern people to break 

down segregation and admit the niggarace into 

our theaters, into our swimming pools, into our 

homes, and into our churches.”34

In 1877, the 44th Congress hotly debated 

the practice of preserving the peace in southern 

states with federal troops when they considered 

the Army’s appropriation bill. Congress did 

not pass a funding bill for the Army before 

adjourning the session. When the 45th Congress 

returned in 1878, they resumed the debate and 

finally approved the appropriation bill, with an 

amendment now known as the PCA. Congress 

apparently saw the use of federal troops in the 

South as an unacceptable use of federal power 

to influence local elections. During the debate, 

the sponsor of the amendment, Senator Knott, 

said that it expressed “the inherited antipathy 

of the American to the use of troops for civil 

purposes.”35

Shortly after the law passed, the New York 
6

Times declared that “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.”36 The Secretary 

of War was disappointed when he learned 

that the Army’s appropriation act contained 

the Knott Amendment. In his annual report to 

the Congress, he said, “In my judgment it is 

important either that this provision be repealed, 

or that the number of cases in which the use of 

the Army shall be ‘expressly authorized’ be very 

much enlarged.”37

AMERICAN DISTRUST OF A STANDING 

ARMY

There has always been popular support in 

the United States for limiting the power of the 

Federal Government. Colonists believed their 

states were perfectly capable of regulating and 

enforcing community standards. They saw no 

utility in national police powers of the Federal 

Government.38 Our Founding Fathers had an 

even stronger distrust of a large standing army. 

Before the Revolutionary War, the British Army 

provided the colonists with “protection.” Many 

colonists believed they received their only real 

protection from their own local militias, and that 

the British army was there only to protect the 

King’s interests―often to their detriment. The 

British had an unpleasant habit of quartering 

their soldiers in the homes of the colonists, often 

without remuneration. Some of the grievances 

listed by the colonists against the King of England 

in the Declaration of Independence were that “he 

has affected to render the Military independent of 

and superior to the civil power . . . for quartering 

large bodies of armed troops among us.” The 

Third Amendment to the U.S. Constitution now 

prohibits the quartering of soldiers in private 

homes, unless specifically provided for by 

Congress. 

The men in attendance at the Constitutional 

Convention also had a deep distrust of standing 

armies, believing them to be “dangerous to 

liberty.”39 During the Convention, Luther Martin 

of Maryland said, “When a government wishes 

to deprive its citizens of freedom, and reduce 

them to slavery, it generally makes use of a 

standing army.”40 Prior to the ratification of the 

Constitution, John Adams wrote in Brutus Number 

10 that “just like a standing army was a danger to 

Rome, a standing army would pose great risk to 

the liberty of the United States.”41

The Constitution provides Congress with 

the power to “raise and support armies”42 but 

restricts funding for the Army to two years at a 

time. Alexander Hamilton explained why in The 

Federalist Number 26:

The Legislature of the United States will 

be obliged by this provision, once at least 

in every two years, to deliberate upon 

the propriety of keeping a military force 

on foot; to come to a new resolution on 

the point; and to declare their sense of the 

matter, by a formal vote in the face of their 

constituents.43

The Navy has no such restriction on its budget 

because Congress saw it as necessary to ensure 

free trade. They did not view the Navy as a 

threat to liberty. The PCA may appear to be a 

straightforward reaction to President Grant’s 

action after the Civil War, but it reflected the 

larger issue of Americans’ traditional discomfort 

with a powerful army on its soil. Over the past 120 

years, the PCA has become symbolic of America’s 

distrust of a powerful army. When interpreting 

the provisions of the PCA, courts have been 

openly hostile to the idea of using the military 

to enforce civil law. When the opportunity arises 

to interpret congressional intent on the matter, 

courts have consistently found that the PCA 

is a manifestation of the American tradition of 

subordination of the military to civil authorities. 

Supreme Court Chief Justice Warren Burger 

commented on this tradition in the important 

U.S. Supreme Court case of Laird v. Tatum:

[There is] a traditional and strong resistance 

of Americans to an military intrusion into 

civilian affairs. That tradition has deep 

roots in our history and found early 

expression, for example, in the Third 

Amendment’s explicit prohibition against 
7

quartering soldiers in private homes 

without consent and in the constitutional 

provisions for civilian control of the 

military. Those prohibitions . . . explain 

our traditional insistence on limitations on 

military operations in peacetime.44

In U.S. v. McArthur, Judge Bruce Van Sickle 

avers that “history tells us that Americans are 

suspicious of a military authority as a dangerous 

tool of dictatorial power―dangerous, that is, to 

the freedom of individuals.”45 Some authors and 

pundits have referred to the provisions of the 

PCA as constitutional requirements. But, while 

there may be profound skepticism toward using 

the military to enforce civil laws, there is no 

constitutional prohibition to such conduct. In U.S. 

v. Walden, the Fourth Circuit Court of Appeals 

found that “the Constitution recognizes that 

in certain circumstances, military preservation 

and enforcement of civilian law is appropriate; 

the policy consideration underlying the Posse 

Comitatus Act is not absolute.”46

WHAT THE PCA PROSCRIBES

As we saw earlier, the text of the PCA today 

is not much different than it was in 1878. It is still 

relatively short and appears straightforward:

Whoever, except in cases and under 

circumstances expressly authorized by the 

Constitution or Act of Congress, willfully 

uses any part of the Army or the Air 

Force as a posse comitatus or otherwise 

to execute the laws shall be fined under 

this title or imprisoned not more than two 

years, or both.47

As straightforward as the Act appears, 

however, it is far more complex and perplexing 

than meets the eye. As an example, the courts 

have found several circumstances where 

federally paid soldiers are not in violation of the 

PCA, even though they are acting contrary to the 

plain language of the statute. The courts have 

applied three different tests to determine whether 

a person’s acts violate the PCA (see Appendix 1). 

WHEN THE LAW DOESN’T APPLY

Courts have found that the PCA does not 

apply to:

• Extraterritorial conduct of a military force.

• Indirect involvement in civil law 

enforcement. 

• Enforcement of civil law for civilians on a 

military installation.

• Commanders, when exercising their 

inherent authority to protect their 

installation from attack or take immediate 

steps to protect the loss of life.

• The National Guard, when used in a “state 

status.”

• Extraordinary cases where the President 

employs his Constitutional authority to 

maintain order.

• Conduct or actions that have been 

specifically exempted by Congress.

Arresting a person outside the United States 

for the purpose of bringing him or her to justice in 

federal court is not a violation of the Act. Nor is it 

a violation to arrest civilians in a foreign country 

for a violation of their own civil law. While most 

courts have long held that the PCA does not 

apply to extraterritorial activities of the military,48

the Ninth Circuit has written, in dicta, that those 

courts have wrongly decided the extraterritorial 

issue, thus making the issue ripe for Supreme 

Court review.49

The PCA does not apply to indirect 

involvement in law enforcement activities. The 

test to determine directness hinges upon whether 

or not the military has “subjected civilians to 

the exercise of military power that is regulatory, 

proscriptive, or compulsory in nature.” 50 The 

indirect conduct interpretation has provided the 

military with the authority to assist local law 
8

enforcement with equipment and manpower, 

as long as it does not directly participate in law 

enforcement tasks, such as search and seizure. 

A request for transportation of a police armored 

vehicle, for example, would not require the 

military’s direct involvement in law enforcement. 

Training police officers in the effective use of their 

armored vehicle, or even the maintenance of that 

vehicle, would likewise not violate the Act. If, 

however, a soldier were to drive the vehicle to the 

scene of a bank robbery to extract police officers 

under fire, the action would be a violation of the 

PCA. Other examples of violations would be the 

manning of roadblocks and traffic control points 

that would bring the military member in direct 

contact with the public. 

The military may also provide advice to civil 

law enforcement. However, if that advice becomes 

so pervasive that the service member actually 

exerts some control over the operation, the court 

will interpret the act of providing advice as direct 

involvement. The difference between active and 

indirect conduct can be somewhat difficult to 

determine. It is clear that loaning and maintaining 

equipment are not violations when the military is 

not on hand to help use it. It is also clear that a 

soldier who makes an arrest, upon the request of 

law enforcement personnel, is in violation of the 

PCA. It is not so clear in a situation where an Air 

Force pilot is flying surveillance at the direction 

of and in a manner directed by law enforcement 

personnel on board. In at least one case, courts 

have held that an Air Force pilot using an Air 

Force helicopter acted in violation of the PCA 

when he assisted law enforcement personnel by 

searching for an escaped criminal.51

The courts have consistently held that the 

military can enforce civil law when they are 

doing so on a military installation. Commanders 

are responsible for maintaining order and 

safeguarding military equipment. Military police 

have the authority to conduct law enforcement 

activities on military installations with exclusive 

and concurrent jurisdiction. In those cases, 

civilians are subject to federal law while they are 

on the installation, and military police have the 

authority to apprehend them when appropriate. 

The courts have also held that when a military 

commander exercises his or her inherent authority 

to protect a military base, equipment, or personnel, 

the PCA does not prohibit the commander from 

taking actions directly against civilians. While 

this exception sounds straightforward, its 

application remains problematic in practice. In 

September 1885, coal miners were in the midst of 

a labor dispute with the Union Pacific Railroad. 

Violence broke out between white miners, who 

wanted to strike, and Chinese workers, who 

were content with the conditions. Twenty-eight 

Chinese were killed and 15 wounded before the 

Army intervened. Major General John Schofield, 

the local military commander, reasoned that 

because the trains carried troops and the Union 

Pacific was supplying coal for the trains, he could 

protect the railroad equipment and the Chinese 

under this exception.52 Like most instances of 

military intervention on the frontier, the action 

never faced a test in court. It is unlikely that a 

commanding general would take such action 

today, even if ordered to do so. Military lawyers, 

unsure of the applicability of the PCA, would 

likely advise their commander that the order was 

unlawful, and that, if they followed it, they could 

be violating the PCA. 

THE NATIONAL GUARD AS AN EXCEPTION 

UNLESS FEDERALIZED

Perhaps the most confusing aspect of the Act 

to the average American (and to the average 

soldier) is the fact that a National Guardsman 

who wears the same Army or Air Force uniform 

and markings as active federal forces, is not 

subject to the PCA when in a “state status.” Of 

course, the public has no way of knowing whether 

the soldier is in a “state status.” The courts have 

held that, even though the Federal Government is 

paying a soldier’s salary and providing him with 

the uniform and equipment of the Regular Army, 

the PCA does not apply to National Guardsmen 

unless the President orders them to active duty.53

The rationale for this finding is that the Congress 

never intended to limit the authority of state 

governors to use their militia to enforce state 
9

law. Although this makes perfectly good sense to 

attorneys, governors, and lawmakers, it tends to 

confound troops, their leaders, and members of 

the public.

EXCEPTIONS UNDER THE PRESIDENT’S 

CONSTITUTIONAL AUTHORITY

By the terms of the law itself, the PCA does 

not apply when the President employs the 

Army under authority granted to him under the 

Constitution. The President’s inherent authority 

derives from a combination of sections found 

within Article II. Section 1 of Article II provides 

that “the executive Power shall be vested in 

a President of the United States of America.” 

Section 3 requires the president to “take care that 

the laws be faithfully executed.” 

Congress has enacted a number of statutes 

codifying the President’s authority under a 

variety of circumstances. The most heavily relied 

upon are the “Insurrection Statutes” found in 

Title 10, Chapter 15, of the U.S. Code. Section 

331 is an amended version of the “Calling Forth” 

statute relied upon by President Washington 

during the Whiskey Rebellion in Pennsylvania 

in 1794. 54 This section authorizes the President to 

“federalize” or “call forth” the militia of any state 

to suppress an insurrection upon the request of 

the state legislature or the governor. As we saw 

earlier, this occurred during the fall of 1794 when 

President Washington used “federalized militia” 

from Pennsylvania, Maryland, New Jersey, and 

Virginia to suppress the Whiskey Insurrection in 

Pennsylvania.55 Section 332 gives the President 

the authority to use the militia of any state or the 

regular armed forces to enforce the laws of the 

United States or to suppress unlawful rebellion.56

For example, when a state cannot or will not 

enforce the civil law, the President can use federal 

troops to restore order and enforce the law. As 

noted above, President Grant used this authority 

to send federal troops to restore order in Louisiana, 

Alabama, Arkansas, and South Carolina before 

the general election of 1876. Section 333 applies 

to situations where insurrection or domestic 

violence is preventing a class of people from 

exercising rights or immunities granted to them 

by the Constitution.57 Section 334 requires the 

President to issue a proclamation, ordering the 

insurgents to “disperse and retire peaceably 

to their abodes” before employing any of the 

previous three sections.58 Although modern-day 

proponents of the PCA often point to these types 

of situations as valid examples of why the PCA 

is necessary,59 none of these events would fall 

under the PCA, as they would each be within 

the President’s constitutional authority to restore 

order. 

President John Kennedy provides us some 

more recent examples of a president’s exercise 

of Constitutional authority. On September 11, 

1963, he federalized the Alabama Army and Air 

National Guard to enforce civil rights laws in that 

state. 60 Governor George Wallace had prevented 

African-American students from attending classes 

at the University of Alabama. The Governor used 

state police and eventually Alabama National 

Guard soldiers to enforce his orders resisting the 

federal court integration order. After federalizing 

the Alabama National Guard, President Kennedy 

spoke to the American public in a radio address. 

He explained that “the presence of the Alabama 

National Guardsmen was required on the 

University of Alabama to carry out the final and 

unequivocal order of the United States District 

Court of the Northern District of Alabama.”61

President Kennedy also used federalized 

National Guard units, as well as Regular Army 

units, to assist Federal marshals at the University 

of Mississippi from October 1962 through July 

24, 1963. In Mississippi, an African-American 

student by the name of James Meredith had tried 

to attend classes under an order from the federal 

district court. The State of Mississippi blocked his 

attendance, setting off a series of riots. The duties 

of the troops included patrolling, intelligencegathering, operating checkpoints, and providing 

security for Federal marshals.

In both of these civil rights incidents, the 

President relied on the Insurrection Statues, 

found in Title 10, sections 331-334, of the U.S. 

Code as his authority to call out the National 

Guard and to use federal troops against those 
10

“who posed organized resistance to the execution 

of the laws of the United States.”62 The President 

could have relied upon his inherent authority as 

Commander-in-Chief as well as his obligation 

under the Constitution to ensure that the 

“laws are faithfully executed,” as authority for 

employing federal troops to overcome resistance 

to federal law in Alabama.

The irony of these incidents is that the PCA 

could not prevent the very thing that the postReconstruction Congress hoped the law would 

address―a U.S. President enforcing civil law in a 

southern state by use of federal troops. If a state 

were to try to prevent African-Americans from 

voting today, there is little doubt that a President 

would employ federal troops to ensure free 

elections, just as President Grant did in 1876. 

Congress has carved out several specific 

exceptions to the PCA. Among the more notable 

are the disaster relief and protection of public 

health and safety provisions of the Stafford 

Act. Other statutes grant authority to provide 

certain assistance to customs officials and for 

sanctioned counterdrug activities. The Stafford 

Act is important because it gives the President 

“broad discretion to find that a major disaster 

exists, requiring emergency response.”63 There 

are several valid but lesser used exceptions to the 

PCA listed in Appendix 2. The fact that there is no 

comprehensive list of these exceptions adds to the 

complexity of the Act. This reality strengthens the 

argument that a criminal statute is the wrong tool 

to implement congressional intent in this area.

POLICY GOALS AS DISTINGUISHED FROM 

LAW

It is important to distinguish the PCA statute 

from the policy goal of prohibiting U.S. military 

forces from enforcing civil law. There is a variety 

of means available to implement policy. Enacting 

a federal statute is the most rigid and inflexible 

method available to the government, short of 

a Constitutional Amendment. Congress can, 

and often does, pass nonbinding resolutions, 

declaring its intent on a particular policy issue 

or matters of public concern. Congress can even 

pass a law directing the President or an agency 

head to publish certain rules on a particular topic. 

They have already done so for military support to 

law enforcement authorities.64 The administration 

can issue an administrative rule or regulation 

directing an agency of the Federal Government, 

including the military, to take certain actions or 

refrain from taking certain actions in areas of 

their jurisdiction. The President can also publish 

an executive order with much the same effect. 

The military can issue administrative directives, 

orders, policy memoranda, and regulations 

which govern the conduct of its members. The 

Department of Defense (DoD) has a longstanding 

policy of prohibiting the Navy from directly 

participating in civil law enforcement activities, 

even though the PCA does not prohibit the Navy 

from doing so. The DoD enforces this policy by 

way of a DoD Directive65 and a Navy Regulation. 

The civilian leadership of the military can modify 

these regulatory mechanisms as the need to do so 

arises.

SOUNDNESS OF THE POLICY GOAL

The United States has a strong tradition 

of civilian primacy in domestic matters. As 

mentioned above, much of this tradition stems 

from fear of a powerful Federal Government and 

a standing army. Even before Congress enacted 

the PCA, the President used military units to 

enforce the rule of law only after exhausting all 

other means at his disposal.

The Constitution provides for civilian control 

over the military by establishing the President as 

the Commander-in-Chief66 and by giving Congress 

the authority to raise armies and maintain a navy. 

Congress has further clarified the military’s 

subordinate role in Title 10 of the U.S. Code. One 

could make three persuasive arguments in favor 

of the policy goals behind the PCA. The first is 

that civil liberties are more likely trampled by 

a strong Federal Government and its military, 

than by state governments. The framers of the 

Constitution crafted the Bill of Rights to address 

their fears of a powerful federal government bent 

upon usurping the individual rights of citizens. It 
11

was not until 1949 that the Supreme Court began 

applying the individual protections found in the 

Bill of Rights to the states. In Palko v. Connecticut, 

the court held that the Fourth Amendment to the 

Constitution (found in the original Bill of Rights) 

applied to the states through the Due Process 

Clause of the Fourteenth Amendment.67

Americans jealously guard their civil rights 

and individual freedoms. They often view with 

suspicion any government action, either local or 

federal, that could intrude upon their way of life. 

The United States has a long history of limiting 

the size of its federal law enforcement apparatus, 

in large part because of the perception of 

potential for abuse.68 As the federal government 

increases its size, we are often reminded that our 

“Founding Fathers never envisioned a national 

police power. Indeed, they were skeptical about 

general federal jurisdiction.”69 As an arm of 

the Federal Government, the military is less 

susceptible to local political influence than local 

and state law enforcement agencies. While some 

would see such independence by the military 

as benefitting operational efficiency, it causes 

discomfort for citizens who wish to participate in 

government decisions that affect their lives. The 

stronger the military presence at home and the 

more legal power it has to participate in domestic 

matters, the higher the perceived potential for 

abuse. 

The second argument in favor of the policy 

behind the PCA is that the Army should focus 

on its primary mission instead of enforcing 

civil law. Since military units have only a finite 

amount of time to train for a myriad of missions, 

any additional mission requirements will 

necessarily reduce the amount of training time 

available for those most central. Time spent away 

from training translates to lower proficiency on 

warfighting tasks. (Note, however, that military 

police units conduct law enforcement duties 

as one of their wartime tasks.) Therefore, we 

can expect the military to resist any attempt to 

support law enforcement at home. Although 

such is understandable, supporting the continued 

existence of the PCA for these reasons alone is 

shortsighted and dangerously parochial. 

The third and perhaps most cogent reason 

why the policy goals behind the PCA are sound 

is that, with the exception of military police units, 

soldiers do not receive training in law enforcement 

or practice escalating levels of police-type force. 

Soldiers do not routinely receive training in the 

determination of probable cause or the reasonable 

use of force. The military does not routinely train 

soldiers to tread carefully where they might be 

infringing on a citizen’s constitutional rights. 

Nor does the Army train soldiers to collect and 

protect evidence. Instead, it trains them to use 

force to destroy an opposing military unit. As one 

law review writer comments, “Soldiers are taught 

to violently and effectively destroy the enemy, 

and their training does not include sensitivity to 

constitutional limitations on search, seizure, and 

the use of reasonable force.”70 The other side of 

this argument is that military units have adapted 

well to peacekeeping missions around the world 

when they receive adequate training for the 

mission.

American military leaders have a tradition 

of resisting any attempts to involve them in 

domestic entanglements, a tradition that existed 

long before the Congress enacted the PCA. Since 

the Federal Government has never prosecuted 

successfully anyone for violating the PCA, the 

criminal penalties hardly act as a persuasive 

deterrent to the proscribed conduct. It is important 

to note that despite the lack of prosecutions for 

violations of the PCA, the act carries potentially 

severe adverse collateral consequences when a 

court finds a violation. These consequences range 

from personal pecuniary liability in civil cases 

to potential charges of suppression of evidence 

in criminal cases. The natural abhorrence of the 

military to domestic duty, coupled with existing 

regulatory prohibitions71 promulgated to satisfy 

other existing statutes,72 are much more likely 

to be the reason why there have been so few 

recorded violations and no convictions of the 

Act.

But while the policy goals behind the law are 

sound, we must reexamine our priorities in light of 

the current security environment, and objectively 

analyze the PCA to validate its efficacy.
12

THE CONFUSING LAW

Sun-Tzu warns, “Vacillation and fussiness are 

the surest means of sapping the confidence of an 

army.”73 Not only is the law confusing to pundits 

and commentators, it is confusing to soldiers of 

all ranks, as well as political leaders in Congress74

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.75 Accordingly, “deep understanding 

of the Act is uncommon.”76 In 1981, Congress 

attempted to clarify the conduct prohibited by 

the Act by enacting sections 371 through 378 of 

Title 10, U.S. Code.77 This attempt at clarification 

appears to have been in vain.

The Los Angeles riots of 1992 are a case in 

point. Acting on a request from Mayor Tom 

Bradley, Governor Pete Wilson called out the 

California National Guard to quell the riot. 

Soldiers began working on the streets of Los 

Angeles in direct support of law enforcement 

personnel within hours. Soon, an uneasy calm had 

replaced the random violence, fires, and looting. 

Believing the National Guard was responding 

too slowly, Secretary of State Warren Christopher 

urged Governor Wilson and Mayor Bradley to 

request federal military assistance. President 

George H. Bush honored the Governor’s request 

and federalized the California National Guard, 

placing them under the command of a federal 

Joint Task Force (JTF). The President ordered 

Marines from Camp Pendleton and soldiers of 

the Army’s 7th Infantry Division (Light) at Fort 

Ord to join the JTF in Los Angeles for the purpose 

of “restoring law and order.” 

By the time federal troops arrived, local 

law enforcement officers and California 

National Guardsmen had already restored 

law and order. Concerned that federal troops 

(including federalized NG troops) were acting 

in inappropriate roles, the JTF Commander, 

Major General Marvin Covault, issued an 

order keeping all troops in staging areas and 

prohibiting them from directly supporting law 

enforcement personnel. He ordered a review of 

each mission and a validation of each mission 

every 24 hours, and authorized the continuation 

of only 20 percent of the missions previously 

conducted by the California National Guard.78

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.79

General Covault later denied misunderstanding 

the PCA in a letter to Major General James Delk, 

who later wrote a book on the subject. Despite 

his assertions to General Delk, 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.80 After the riots, 

Judge William Webster chaired a commission to 

investigate the causes and handling of the riot. 

The Webster Commission found that:

Despite an express written declaration 

by the President to the contrary, the 

federal troop commander, Major General 

Covault, took the position that the Defense 

Department’s internal plan for handling 

domestic civil disturbances coupled with 

the posse comitatus statute prohibited 

the military from engaging in any law 

enforcement functions.81

There is some controversy as to whether or not 

Mr. Mueller, the senior civilian representative of 

the Attorney General, advised General Covault 

that the PCA prohibited him from directly 

supporting law enforcement personnel. If Mr. 

Mueller did so, he was wrong. As noted above, 

the PCA does not apply in situations where the 

President has proclaimed that a state is either 

unable or unwilling to enforce the law. President 

Bush signed a proclamation on May 1, 1992, 

directing the persons engaged in violence to 

cease and desist, thus clearing the way for him to 

employ his constitutional powers to quell the riot 

with federal troops.82

The Los Angeles riot is but one example of the 

difficulty of applying the PCA in the field. In the 

case of Wrynn v. U.S. mentioned above, an Air 

Force pilot by the name of Lieutenant Pickering 

received instructions from base operations to 

assist the local sheriff with a search for an escaped 
13

prisoner. The sheriff had asked for assistance 

from the local Air Force base and the local Army 

post. During the course of the operation, the 

helicopter, commanded by Lieutenant Pickering 

and flown by another experienced pilot, landed 

on an unprepared landing site. A 17-year-old 

bystander named Wrynn was injured during the 

landing, presumably from flying debris. Although 

there is no suggestion that criminal charges were 

contemplated, the Federal Government defended 

the civil lawsuit on the grounds that Lieutenant 

Pickering violated the PCA when he followed his 

instructions to assist the sheriff in looking for the 

fugitive. The court agreed with the government 

that it was not liable for the actions of the pilots 

who, by law, were acting on their own. This 

left Lieutenant Pickering personally liable for 

any damages arising from the lawsuit. One is 

reminded of President Grant’s words to Congress 

that “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.”83 Lieutenant Pickering was a welleducated and well-trained search-and-rescue 

pilot who presumably had been familiar with the 

provisions of the PCA. 

One example of overly conservative advice 

that military lawyers provide is the opinion issued 

by the Judge Advocate General in 1952, when he 

advised the Army’s Provost Marshal General 

that military police joint patrols (police patrols 

conducted jointly with local law enforcement 

officials) were a violation of the Posse Comitatus 

Act.84 A subsequent opinion issued by the Judge 

Advocate General in 1956 described the earlier 

opinion on the same topic as “unduly pessimistic 

and restrictive.”85

Some orders, such as an order to kill unarmed 

civilians, are unlawful on their face. Others, like 

directly supporting law enforcement officers 

during times of emergency and confusion, are 

more problematic for the soldier in the field. Not 

only are the facts sometimes difficult to apply to 

the law, but also, intuitively, soldiers at ground 

level want to help. As a matter of public policy, 

America does not want commanders to question 

their orders to assist civil authorities. The PCA 

interjects an unnecessary degree of confusion into 

already confusing situations.

THE PCA AS A SHIELD TO AVOID CIVILIAN 

ENTANGLEMENTS

Since Reconstruction, the military has loathed 

performing domestic law enforcement duties.86

The PCA provides DoD with a convenient shield 

to protect it from missions that it does not want. 

On occasion, the Army has misconstrued the 

PCA to avoid providing assistance to civilian law 

enforcement.87 Former DoD official John Deutch 

once remarked that 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.88

President George W. Bush established 

protection of the homeland as the most important 

mission for the military in the National Security 

Strategy of 2002.89 Secretary of Defense Donald 

Rumsfeld lists homeland defense as the military’s 

highest priority in the 2001 Quadrennial Defense 

Review (QDR).90 Regardless of the importance 

of homeland defense to our national security, 

the focus of our military will continue to be on 

fighting and winning our nation’s wars overseas. 

To those in the Defense Department who are 

concerned about losing the focus on warfighting, 

the PCA serves as a comforting legal impediment 

preventing the military from being distracted 

from its focus on wars overseas. 

THE PCA AS A LEGAL IMPEDIMENT TO 

TRANSFORMATION

The constitutional mandate for our military 

is to provide for the common defense. The 

President’s national security strategy designates 

homeland security as the most important of 

all security interests.91 The National Military 

Strategy also lists homeland defense as the most 

important priority of the military today. The 

strategy adopted by the President and by DoD 

for securing the homeland is to project power 

overseas, attacking and destroying threats before 
14

they threaten the U.S. homeland. Yet when facing 

an agile, shrewd, and versatile adversary, we may 

not always be able to address the threat before we 

find it has reached our soil. The PCA interferes 

with the nation’s ability to defend itself against 

such a nimble asymmetric enemy.

The PCA presents a legal impediment to 

agility, a hallmark of our transforming military. 

We face the likelihood that our future enemies 

will adapt to our doctrine in innovative ways to 

create and exploit our weaknesses. In order to 

maintain dominance across the full spectrum of 

combat, we must be agile enough to stay ahead 

of our enemy’s ability to adapt. We expect to 

face asymmetrical state and nonstate actors in 

the future. Such is the enemy we find ourselves 

opposing today. President Bush recently made 

public his direction to the Central Intelligence 

Agency (CIA) operationalizing his authority to 

use lethal force against specific enemy targets 

overseas.92 Extension of this authority to the 

Continental United States (CONUS) presents a 

vexing problem. Current law prohibits the CIA 

from engaging in covert operations at home. 

This puts the burden on other agencies or the 

military. Harold Hongju Koh, a professor of 

international law at Yale University, recently 

remarked that “the inevitable complication of a 

politically declared but legally undeclared war 

is the blurring of the distinction between enemy 

combatants and other nonstate actors.”93 This is 

not news to military officers who have observed 

the change in paradigm between crime and war, 

and are grappling with how to approach it.94

Certainly the lethality of terrorist weapons grows 

greater every day. This blurring of distinctions 

among enemy combatants, criminals, terrorists, 

and other nonstate actors increases the onerous 

task of distinguishing lawful from unlawful 

actions under the PCA.

If our next battle takes place where our 

greatest vulnerability exists at home―the proper 

military force to respond may be the National 

Guard. One of the advantages cited in using 

the National Guard for homeland security is 

its exemption from the PCA when on statemandated duty.95 Certainly the National Guard 

provides a valuable resource that must be 

included in any plans for the defense of our 

homeland. In fact, the constitutional mandate of 

the National Guard or “Militia” is to “execute 

the laws of the union, suppress insurrections, 

and repel invasions.”96 Resource constraints 

and cross-border jurisdictional issues make the 

National Guard a poor candidate for this type of 

federal mission at present. It is unwise to plan to 

leave the National Guard in a state status simply 

to avoid the provisions of the PCA. In the war on 

terror, situations change quickly and our military 

must have the agility to adapt just as quickly. The 

PCA is a legal impediment to that adaptability. 

Our nation needs a force that is capable of 

implementing the National Security Strategy 

within the territorial boundaries of the United 

States. With additional planning and resources, 

the National Guard may be the right force. 

CURRENT CONGRESSIONAL INTENT

Congress recently expressed its intent on the 

matter of the PCA when it enacted the Homeland 

Security Act of 2002. In section 780, the Act 

states:

The Posse Comitatus Act has served 

the Nation well in limiting the use of 

the Armed Forces to enforce the law. 

Nevertheless, by its express terms, the 

Posse Comitatus Act is not a complete 

barrier to the use of the Armed Forces for a 

range of domestic purposes, including law 

enforcement functions, when the use of 

the Armed Forces is authorized by Act of 

Congress or the President determines that 

the use of the Armed Forces is required 

to fulfill the President’s obligations under 

the Constitution to respond promptly in 

time of war, insurrection, or other serious 

emergency.97

While Congress’ practice of limiting the role 

of the military in civilian law enforcement has 

served the nation well, the criminal provisions 

of the PCA have proven to be the wrong tool for 

this important job. Governments enact criminal 

statutes to set punishment for crimes. They enact 

organic statues in order to establish, expand, or 
15

limit the jurisdiction of government agencies. 

Some of the strongest supporters of the PCA 

acknowledge that the policy goals of the Act 

could be better accomplished if the PCA were 

repealed and recast into a noncriminal, organic 

statute.98

EFFICACY OF THE PCA

Although the PCA works well as a shield for 

the military from missions it does not want, it 

appears that our military and political leaders are 

prepared to disregard it when necessary. No one 

has been convicted of violating the statute in its 

124-year history. The military possesses unique 

capabilities that local, state, and even federal 

law enforcement agencies do not. In the event 

of a national emergency, we do not expect our 

political and military leaders to spend precious 

time reviewing statutes to determine whether 

or not their actions to respond to a catastrophic 

threat are legal. In his testimony before the Senate 

Governmental Affairs Committee on June 20, 

2002, Senator Gary Hart correctly pointed out 

that in the case of a “catastrophic attack of some 

kind, obviously, every asset of this country is 

going to come into play. Nobody’s going to be 

worrying about the niceties of the Posse Comitatus 

Act (emphasis added).”99 Recently, two random 

snipers terrorized the Washington, DC, area. 

After authorizing the use of sophisticated 

equipment such as surveillance aircraft to aid law 

enforcement officers, the Secretary of Defense 

responded to questions about the effect of the 

PCA on his actions. His response was appropriate 

but telling. He said, “Common sense and national 

need sometimes make military assistance 

necessary.”100

It is somewhat comforting to know that 

our political and military leaders are willing to 

disregard an impediment to our national security 

in times of crisis in favor of more expedient 

means that would save many lives. Similarly, 

Supreme Court Justice Robert Jackson once said, 

“There is danger that, if the court does not temper 

its doctrinaire logic with a little practical wisdom, 

it will convert the constitutional Bill of Rights into 

a suicide pact.”101 The concept is consistent with 

the Secretary of Defense’s observation that one 

must construe the PCA with common sense.

Conveniently circumventing the law during 

time of war is not a new or novel concept. The 

Latin phrase Inter arma silent leges is a legal maxim 

from the Roman Empire meaning, “In time of war 

the laws are silent.” American courts, just as the 

courts of other countries throughout history, have 

used a variety of similar legal tactics to avoid 

interfering with their leader’s prosecution of war. 

Although courts in the United States have been 

reluctant to interfere with the executive branch 

during wartime, they have enthusiastically 

addressed conduct that violated civil rights when 

the conflict ended.102

It is unlawful and unwise to plan to disregard 

the law as we see fit. The resultant ambiguity 

leaves soldiers and their leader potentially liable 

for civil and criminal penalties when they do 

what they think is right to protect public safety. 

We must strike a balance between the tradition 

of the military avoiding civil entanglements and 

the need for military involvement to preserve 

the public safety in times of crisis. Many argue 

that there are enough exceptions to the PCA to 

provide such a balance. However, this myriad 

of exceptions only complicates matters, inviting 

argument rather than resolving it. It undercuts 

intuitive common sense, causing military and 

political leaders to equivocate when they should 

be exerting their leadership. 

The PCA has helped to create an environment 

where military and political leaders will not act 

before receiving advice of counsel. The advice 

of attorneys is predictably conservative because 

of the potential for criminal and civil liability.103

Soldiers obey orders at their own peril. True, 

the threat of criminal prosecution is illusory, 

but the risk of civil penalties is real. Military 

members who dare to follow a directive to track a 

suspected terrorist could find themselves in court 

defending a civil suit for damages because the 

government chose to use the PCA to defend itself 

against liability, as it did in the Wrynn case. The 

commonsense solution to this difficult balancing 

act is to rely on Congress’ previous expression of 
16

their intent in Title 10 of the U.S. Code, sections 

371-378.104 Congress should frame new statutes 

providing closer congressional oversight to 

military assistance to civil authorities for the first 

few years upon repeal of the PCA. If Congress 

finds that the civilians who control the military 

have abused their power, they can reenact a 

criminal law similar to the PCA, more narrowly 

tailored to attack the problem then presented. In 

the meantime, Congress should remove the legal 

impediment that the PCA presents to a more 

effective and efficient military.

The message sent by Congress and the 

administration will be that we are prepared to use 

any means at our disposal to protect the American 

public. We recognize the inherent danger in using 

the military in a domestic role and will therefore 

clearly state our intent and closely monitor the 

situation for abuses.

CONCLUSION AND RECOMENDATION

At the time Congress enacted the PCA, it 

served two purposes. First, it was an expression of 

Congress’ distaste for using the military in a civil 

law enforcement role. Second, it ended the practice 

of U.S. Marshals using the military to assist them 

in apprehending fugitives. The balance of political 

power had changed in Congress, and the new 

majority wanted to seize upon the opportunity to 

prevent the involvement of the Army in southern 

political matters forevermore―regardless of any 

potential adverse collateral consequences. More 

important than what the PCA did accomplish is 

what it did not do. It did not prevent subsequent 

presidents from using the military in exactly 

the same manner as President Grant did during 

Reconstruction. It has not stopped subsequent 

presidents from using the military for domestic 

purposes when the need was compelling. At its 

inception, PCA was the wrong tool for the wrong 

job. An angry Congress used a criminal statute of 

the type found in Title 18 of the U.S. Code instead 

of an organic statute of the type found in Title 10 

of the U.S. Code. Congress attempted to clarify 

its intent more than 100 years later by enacting 

more specific military assistance statutes. They 

codified the new statutes more appropriately in 

Title 10 of the U.S. Code, sections 371-378. They 

should have concurrently repealed the existing 

PCA. Over the past 124 years, the Act has slowly 

been evolving into a mischievous relic from the 

post-Reconstruction era. The PCA today stands 

as a dangerous legal impediment to the agility 

and adaptability of our national defense.

The Secretary of Defense should immediately 

seek repeal of the PCA. Because the Act has 

become a symbol of civilian supremacy over 

the military, this will be a formidable, but 

not impossible, political task. The potential 

operational and political consequences of 

ignoring the PCA are worse. If, as some have 

suggested, we are prepared simply to disregard 

the PCA in the future, we are inviting political 

harm for our leaders and potential personal civil 

and criminal liability for our soldiers. Worse yet, 

the Act will continue its chilling effect upon those 

who would act boldly, at the very moment when 

our national survival may depend on boldness. 

The lack of successful prosecutions under 

the Act indicates its uselessness as a criminal 

statute. Just as the Navy and Marine Corps have 

been successfully prevented from inappropriate 

participation in civil law enforcement by DoD 

directives, so too can the Army and Air Force be 

adequately restrained. The more specific existing 

DoD policy directives, coupled with the current 

provisions of Title 10 of the U.S. Code evincing 

congressional intent, are much better suited 

than the PCA to implement the policy goals of 

minimizing military involvement in civil law 

enforcement. 
17

APPENDIX 1

THREE TESTS USED BY COURTS TO DETERMINE VIOLATIONS OF THE PCA

Both the PCA and DoD policy prohibit service members from directly participating in law 

enforcement activities. This chart describes the three tests used by courts. If any of the three situations 

below are present, an exception to the PCA must exist in order for the conduct to be permissible under 

the Act. The “regulate, proscribe, or compel test” is the test most often used.

Test Application Conduct Regulation Statute Case

Regulate, 

Proscribe, or 

Compel Test

Did the military 

regulate, 

proscribe, 

or compel 

civilians as 

part of the 

operation?

This test is met if the military 

exerts any type of direct 

control or coercive power over 

civilians, such as road blocks, 

searches, or detentions

DoD 5525.5 10 U.S.C 

375

U.S. v. 

McArthur105

Direct Active Use 

Test

Did the military 

directly and 

actively 

participate

in the law 

enforcement 

activity?

Transportation, furnishing 

equipment, supplies, or 

services, e.g., providing 

medical care to prisoners is 

“indirect use” and therefore 

permitted. If, however, the 

military takes a direct role, 

such as operating equipment 

or providing direct assistance, 

the action is impermissible 

unless covered by an 

exception.

DoD 5525.5 10 U.S.C 

372-375

U.S. v. Red 

Feather106

U.S. v Hartley107

Pervasiveness 

Test

Did the military 

activity pervade

the activities 

of the civilian 

authorities?

Joint operations with law 

enforcement meet this test, 

even if the only participation 

is decisionmaking during the 

execution of the operation. 

The PCA does not prohibit 

“Advice,” by itself, unless it 

is “controlling” to the point 

of pervading the activities of 

civilian authorities.

DoD 5525.5 U.S. v. 

Jaramillo108

19

APPENDIX 2

EXCEPTIONS TO THE PCA

Each of the exceptions listed below is for general reference. This is not an all-encompassing list of 

situations where federal troops can provide support to civil authorities without violating the PCA. 

Some of these exceptions are contained within the many pages of specific provisions or conditions that 

must all be present before an exception may be valid. Note that many of the exceptions listed below 

combine with others in the interest of brevity and space restrictions. 

Exception Conduct Regulation Statute Case

Extraterritorial conduct 

of a military force

When military authorities 

enforce U.S. law outside 

the United States, whether 

or not the suspect is a U.S. 

citizen, or when they assist 

foreign officials enforce their 

own laws. Arrest of foreign 

nationals overseas.

DoD 5525.5, 

Sec 8.1 requires 

Sec Def or 

Deputy Sec Def 

Approval

But see U.S. v. 

KhaN,109 holding 

that 10 U.S.C 

372 applies 

extraterritorially.

Chandler v. U.S.110

Indirect involvement Incidental or conduct 

supporting law enforcement 

activities, such as providing 

equipment, training, 

maintenance, and non-binding 

advice.

DoD 5525.5 10 U.S.C 372-377 U.S. v. Yunis111

Military law 

enforcement on military 

installations

Law enforcement conduct 

directed against service 

members and civilians on 

military installations.

DoD 5525.5 

E4.2.1.3

18 U.S.C 1382 U.S. v. Banks112

Commanders’ inherent 

authority to repel 

attacks, or protect 

immediate loss of life

When commanders exercise 

their inherent authority to 

protect their installation from 

attack or take immediate steps 

to protect the loss of life.

DoD 5525.5 

E4.1.2.3. & 

E4.1.2.3.2

DoD 3025.12

10 U.S.C 809(e) Cafeteria Workers 

v. McElroy113

National Guard The National Guard, when 

used in a “state status.”

DoD 5525.5 Gilbert v. U.S.114

Military purpose 

doctrine

The PCA does not apply to 

actions performed primarily 

for a military purpose, such as 

Investigating crimes against 

the military.

DoD 5525.5 

E4.1.2.1

Cafeteria Workers 

v. McElroy115
20

Riot, Insurrection, or 

lawlessness

Extraordinary cases where 

the President employs his 

Constitutional authority to 

maintain order.

DoD 5525.5 

E4.1.2.4

DoD 3025.12

10 U.S.C 331-334, & 

12406 U.S. Const., 

Art II

Other Congressional Exceptions:

Dignitary protection Protection of members of 

Congress, executive cabinet 

members, Supreme Court 

justices, diplomats, President, 

VP & White House staff.

DoD 5525.5 18 U.S.C 351 (g), 

1201(f), 1751/ 112 

& 116

Disaster relief Troops providing relief during 

times of national disaster.

DoD 5525.5

DoD 3025.1

DoD 3025.15

Robert T. Stafford 

Disaster Relief 

and Emergency 

Assistance Act 42 

U.S.C. 5121 et seq.

Quarantine If an individual has a 

specifically identified 

communicable disease, heath 

authorities may detain them. 

The President may use the 

military to assist the Surgeon 

General execute his duties. 

DoD 5525.5

DoD 6000.12

42 U.S.C 97 & 264 

(d)

Drug interdiction Sharing of information and 

intelligence.

DoD 5525.5 10 U.S.C 371

Customs & immigration Sharing of information and 

intelligence.

DoD 5525.5 

E4.1.2.5.14

50 U.S.C 220

Customs & immigration Sharing of equipment and 

facilities.

DoD 5525.5 10 U.S.C 372

WMD/E & protection 

of nuclear materials

Provide assistance to Dept. 

of Justice where a biological 

or chemical weapon of mass 

destruction poses a serious 

threat and civilian authorities 

require DoD assistance.

DoD 5525.5 E4 10 U.S.C 382 & 831

50 U.S.C 2301&2(1)

18 U.S.C 831

Protecting U.S. forests 

& fisheries

Removing enclosures from 

public lands.

DoD 5525.5 

E4.1.2.5.1/ 5.2

42 U.S.C 1065

16 U.S.C 23 & 593

16 U.S.C 1861(a)

Indirect cooperation Loan of equipment to other 

agencies.

31 U.S.C 1535 U.S. V. Jarmillo
21

ENDNOTES

1. Posse Comitatus Act, U.S. Code, Title 18, sec. 1385, 

1878.

2. Homeland Security Act, Public Law, 107-296, sec. 

886, 2002.

3. Craig T. Trebilcock, “The Myth of Posse Comitatus,” 

Journal of Homeland Security, October 2000 [journal on-line]; 

available from http://homelandsecurity.org/journal/articles/

Trebilcock.htm; Internet; accessed August 21, 2002. 

4. Joel Tyler Headley, Pen and Pencil Sketches of the Great 

Riots, New York: Arno Press, 1969, p. 61.

5. Geoffrey Marks and William K. Beatty, The Story of 

Medicine in America, New York: Scribner, 1973, p. 88.

6. Thomas P. Slaughter, The Whiskey Rebellion, New 

York: Oxford University Press, 1986, pp. 179-181.

7. “The Whiskey Insurrection from The Diaries of 

George Washington 30 September-19 October 1794,” The 

Papers of George Washington, July 11, 2002; available 

from http://gwpapers.virginia.edu/whiskey/; Internet; accessed 

November 28, 2002. 

8. Slaughter, p. 180.

9. Frederick T. Wilson, Federal Aid in Domestic 

Disturbances, 1787-1903, Washington, DC: US Adjutant 

General’s Office, US Army, 1903, p. 35.

10. An Act to Provide for Calling Forth the Militia to 

Execute the Laws of The Union, Suppress Insurrections, and 

Repel Invasions, Statutes at Large, 264, Vol. 1, sec. 264, 1792.

11. Wilson, p. 41.

12. The Judiciary Act, Statutes at Large, Vol. 73, secs. 

92-93, 1789.

13. Michael L. Tate, The Frontier Army in the Settlement 

of the West, Norman: University of Oklahoma Press, 1999, 

p. 82.

14. Attorney General Caleb Cushing wrote, “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.” 

Extradition of Fugitives From Service, U.S. Attorney General 

Opinion, Vol. 6, 466, 1854.

15. Ibid.

16. Ibid.

17. Wilson, p. 338.

18. The Judiciary Act.

19. Complaining about the necessity of using the Army 

for the “preservation of peace and order,” Brevet Major 

General C. C. Augur reported that, “It is a very delicate 

and unpleasant duty thus forced upon us, and one from 

which we would gladly be relieved by the establishment 

and enforcement of the civil laws.” U.S. War Department. 

Annual Report of the Secretary of War, Washington, DC: U.S. 

War Department, 1867, p. 60.

20. David Lindsey, Americans in Conflict: The Civil War 

and Reconstruction, George E. Mowry, ed., Boston, MA: 

Houghton Mifflin Company, 1974, pp. 198-206.

21. Ibid. 

22. Ibid., p. 199.

23. Ibid., p. 200.

24. Wilson, p. 143.

25. Ibid., p. 144.

26. Ibid., p. 153.

27. Ibid., p. 163.

28. Betty A. Dobratz and Stephanie Shanks-Meile, 

“White Power, White Pride!” The White Separatist Movement 

in the United States, New York: Twayne Publishers, 1997, p. 

37.

29. Ibid. 

30. John William Burgess, Reconstruction and the 

Constitution, 1866-1876, New York: C. Scribner’s Sons, 1902, 

pp. 260-261.

31. Ibid. 

32. Ibid. 

33. Richard N. Current, ed., Reconstruction, 1865-

1877, Eyewitness Accounts of American History Series, 

Englewood Cliffs, NH: Prentice-Hall, Inc., 1965, pp. 155-

157.

34. Gloria Borger, “A Bad Good Ol’ Boy,” US News & 

World Report, December 23, 2002, p. 25.
22

35. The Court discusses the floor debate on the Senate 

amendment to the Army appropriations bill and reasons 

that the language was intended as a broad prohibition on 

anyone from using the Army to enforce civil law, not just a 

restriction on its use as a posse comitatus. Wrynn v. United 

States, 200 F. Supp. 457, 464-465, E.D. N.Y. 1961. 

36. “The Army and The Militia,” New York Times, June 

11, 1878, editorial page.

37. In 1878, Secretary of War George McCrary 

complained of the lack of flexibility in the Act in his annual 

report to Congress. He wrote, 

During the year numerous attacks have 

been made upon the mail-coaches in 

New Mexico and Arizona, for purposes 

of robbery and plunder; and while I have 

been of the opinion that the mails of the 

United States may be defended by the 

use of troops, I have been obliged to give 

instructions that they cannot, without 

disregarding the act of Congress, be 

employed to aid the officers of the law 

in capturing the robbers after they have 

committed the crime. In doing so they 

would act as a posse comitatus, and this is 

nowhere by law “expressly authorized.”

U.S. War Department, Annual Report of the Secretary of War, 

Washington, DC: U.S. War Department, 1878, p. vi.

38. Kathleen F. Brickey, “Criminal Mischief: The 

Federalization of American Criminal Law,” Hastings Law 

Journal, Vol. 46, 1995, p. 1135.

39. Max Farrand and David Maydole Matteson, The 

Records of the Federal Convention of 1787, Vol. 2, Max Farrand, 

ed., New Haven, CT, and London: Yale University Press, 

1937, p. 329.

40. Ibid., Vol. 3, p. 209.

41. Herbert J. Storing and Murray Dry, eds., Brutus 

Number 10, John Adams 24 Jan. 1788, in The Complete AntiFederalist, Vol. 2, Joseph Story, ed., Chicago: University of 

Chicago Press, 1981, pp. 413-414.

42. Constitution, art. II, sec. 2.

43. Alexander Hamilton, James Madison, and John 

Jay, The Federalist, Benjamin F. Wright, ed., New York: 

MetroBooks, 1961, p. 216.

44. Laird v. Tatum, 408 U.S. 1, 15, 1972. 

45. U.S. v. McArthur, 419 F.Supp 186, 193-194, N.D. 

Dist. Ct., SW Div. 1975. 

46. U.S. v. Walden, 490 F.2d 372, 377, 4th Cir. 1974. 

47. Posse Comitatus Act.

48. Chandler v. U.S., 171 F.2d 921, 936, 1st Cir. 1948. 

49. U.S. v. KhaN, 35 F.3d 426, 431, 9th Cir. 1994. 

50. U.S. v. Casper, 541 F.2d 1275, 1278, 8th Cir. 1976. 

51. Wrynn v. United States.

52. Tate, p. 99.

53. Gilbert v. U.S., 165 F.3d 470, 6th Cir. 1999. 

54. “Whenever there is an insurrection 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 

the other States, in the number requested by that State, and 

use such of the armed forces, as he considers necessary to 

suppress the insurrection,” Insurrection Act, U.S. Code, 

Vol.10, sec. 331, 2003. “ 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,” Insurrection Act, U.S. Code, Vol.10, sec. 332, 

2003:

55. “The Whiskey Insurrection from The Diaries of 

George Washington 30 September-19 October 1794,” The 

Papers of George Washington, July 11, 2002; available 

from http://gwpapers.virginia.edu/whiskey/; Internet; accessed 

November 28, 2002. 

56. “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.” Insurrection Act, U.S. Code, Vol. 10, sec. 332, 

2003.

57. “The President, by using the militia or the armed 

forces, or both, or by any other means, shall take such 

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 
23

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 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, p. the State shall 

be considered to have denied the equal protection of the 

laws secured by the Constitution.” Insurrection Act, U.S. 

Code, Vol. 10, sec. 333, 2003.

58. “Whenever the President considers it necessary to 

use the militia or the armed forces under this chapter [10 

U.S.CS §§ 331 et seq.], he shall, by proclamation, immediately 

order the insurgents to disperse and retire peaceably to 

their abodes within a limited time.” Insurrection Act, U.S. 

Code, Vol. 10, sec. 334, 2003.

59. Matthew Carlton Hammond, “The Posse Comitatus 

Act: A Principle in Need of Renewal,” Washington University 

Law Quarterly, Vol. 75, No. 2, 1997, p. 953.

60. Robert W. Coakley, Paul J. Scheips, and Vincent H. 

Demma, Use of Troops in Civil Disturbances Since World War 

II 1945-1965, Washington, DC: Department of the Army, 

Histories Division, Office of the Chief of Military History, 

1967; reprint, revised 1971, p. 98.

61. John F. Kennedy, “Radio and Television Report 

to the American People on Civil Rights on June 11, 1963,” 

available from http://www.cs.umb.edu/jfklibrary/j061163.htm; 

Internet; accessed January 14, 2003. 

62. John F. Kennedy, Executive Order No. 11118, F.R., 

28, 9863, 1963.

63. Paul Schott Stevens, U.S. Armed Forces and Homeland 

Defense. The Legal Framework, Washington, DC: Center for 

Strategic and International Studies, October 2001, p. 17.

64. In sections 371-378, Congress directs the Secretary 

of Defense to issue regulations prohibiting “direct 

participation” by military personnel in a civilian “search, 

seizure, arrest, or other similar activity” unless expressly 

authorized by law. Military Support For Civilian Law 

Enforcement Agencies, U.S. Code, Vol. 10, 371-378, 2002.

65. Department of Defense, Department of Defense 

Cooperation with Civilian Law Enforcement, DoD Directive 

5525.5, Washington, DC: U.S. Department of Defense, 

1986. 

66. Constitution, art. I, sec. 8, clause 12.

67. Palko v. Connecticut, 302 U.S. 319, 1937. 

68. Joseph A. Califano Jr., “Too Many Federal Cops,” 

Washington Post, December 6, 2001, p. 39.

69. Brickey, p. 3.

70. John Flock, “Notes & Comments: The Legality of 

United States Military Operations Along the United StatesMexico Border,” Southwestern Journal of Law and Trade in the 

Americas, 1998, p. 454.

71. DoD Directive 5525.5.

72. Military Support For Civilian Law Enforcement 

Agencies.

73. Lionel Giles, Sun Tzu on the Art of War; the Oldest 

Military Treatise in the World, London: Luzac & Co, 1910, p. 99.

74. Congresswoman Chenoweth-Hage made the 

statement on the floor of the House, “We must get to the 

bottom of why the Federal Government waived the Posse 

Comitatus Act and involved the military in this domestic 

law enforcement action.” If she understood the PCA, she 

would know that the Federal Government cannot “waive” 

the PCA. The complexities of the PCA understandably 

delude the congresswoman into believing the military’s 

actions at Waco, Texas, would have violated the PCA if 

they had not been “waived” by the “Federal Government. 

Congress. House of Representatives, Congresswoman 

Chenoweth-Hage of Idaho speaking on the investigation 

of Waco, 106th Cong., 1st sess., Investigation WACO, 

Congressional Record, November 3, 1999, Vol. 145, pt. 153, 

p. 11444.

75. Paul Rice, “New Laws and Insights Encircle the 

Posse Comitatus Act,” Military Law Review, Vol. 104, 1984, 

p. 109.

76. 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, p. 13.

77. Military Support For Civilian Law Enforcement 

Agencies.

78. Christopher M. Schnaubelt, “Lessons in Command 

and Control from the Los Angeles Riots,” Parameters, Vol. 

27, Summer 1997, pp. 88-109.

79. Based on the author’s personal experience as 

commander of the 270th Military Police Company, CA 

ARNG, during its deployment to Los Angeles during the 

riots of 1992.

80. William W. Mendel, Combat in Cities: The LA Riots 

and Operation Rio, Fort Leavenworth, KS: Foreign Military 
24

Studies Office, July 1996, p. 3.

81. Los Angeles, Calif.. Board of Police Commissioners 

and William H. Webster, The City in Crisis : A Report, Los 

Angeles, CA: Special Advisor Study Inc, 1992, p. 12.

82. James D. Delk, Fires and Furies: The Los Angeles Riots 

of 1992, Palm Springs, CA: ETC Publications, 1995, p. 111.

83. Wilson, 163.

84. Refer to JAGA 1953/4810, Rice, 112.

85. Refer to JAGA 1956/8555, Ibid.

86. Sydney J. Freedberg, “Military Happy to Be 

Excluded from Homeland Security Department,” National 

Journal, 2002, p. 1.

87. Rice, 112.

88. Grove, 23.

89. George W. Bush, The National Security Strategy of 

the United States of America, Washington, DC: The White 

House, September 2002., p. 30.

90. U.S. Department of Defense, “Quadrennial Defense 

Review Report,” September 30, 2001; available from 

http://www.comw.org/qdr/qdr2001.pdf; Internet; accessed 

September 21, 2002. 

91. Bush, p. 31.

92. James Risen and David Johnston, “Bush Has 

Widened Authority of C.I.A. to Kill Terrorists,” New York 

Times, December 15, 2002, p. 1.

93. Ibid.

94. Christopher G. Essig, Terrorism: Criminal Act or Act 

of War: Implications for National Security in the 21st Century, 

Strategy Research Project, Carlisle Barracks: U.S. Army War 

College, March 27, 2001, p. 40.

95. Reid K. Beveridge, “Bulwark of Civilian Supremacy, 

Posse Comitatus Act Has Stood the Test of Time,” Armed 

Forces Journal International, October 2002, pp. 22-25.

96. Constitution, art I, sec. 8, clause 15.

97. Homeland Security Act.

98. Hammond, 963.

99. Congress, Governmental Affairs Committee, 

Hearing on the Homeland Security Department, 107th Cong., 

2nd sess., June 20, 2002, p. 63.

100. “Sniper Hunt: Army Spy Plane Called in; Former 

DoD Teacher among Victims of DC Killer,” Army Times, 

October 28, 2002, p.2.

101. Terminiello v. Chicago, 337 U.S. 1, 1949. 

102. William H. Rehnquist, All the Laws But One: Civil 

Liberties in Wartime, New York: Random House, Inc., 2000, 

p. 218.

103. Grove, p. 13.

104. Military Support For Civilian Law Enforcement 

Agencies.

105. U.S. v. McArthur.

106. U.S. v. Red Feather, 392 F. Supp 916, 922, Dist. Ct. 

S.D. 1975. 

107. U.S. v. Hartley, 678 F.2d 961, 978 n. 24, 11th Cir. 

1982. 

108. U.S. v. Jarmillo, 380 F.Supp 1375, 1379-1380, D. 

Neb. 1974. 

109. U.S. v. KhaN, 431

110. Chandler v. U.S.

111. U.S. v. Yunis, 924 F.2d 1086, Wash. DC Dist. Ct. 

1991. 

112. U.S. v. Banks, 539 F.2d 14, 9th Cir. 1976. 

113. Cafeteria & Restaurant Workers Union, Local 473 v. 

McElroy, 367 U.S. 886, 1961.

114. Gilbert v. U.S.

115. Cafeteria & Restaurant Workers Union, Local 473 v. 

McElroy.