The Posse Comitatus Act: liberation from the lawyers

Parameters, Autumn, 2004 by Gary Felicetti, John Luce

The Almost Invisible Law

In many respects, the Posse Comitatus Act remained invisible for the first several decades of the 20th century. In May 1917, the Secretary of War unilaterally instituted a "Direct Access Policy" that essentially reinstated key parts of the Cushing Doctrine for over four years. On 29 occasions, local officials used Army troops to break strikes, prevent labor meetings, stifle political dissent, and arrest or detain workers without the right of habeas corpus. Few in power appeared to care.

Congress did move decisively to increase the military's law enforcement role in a host of situations ranging from protecting waterfront facilities to enforcing routine fisheries regulations. (21) Yet, for the first 80-plus years, Congress did not even discuss the Act, leaving the impression that it wasn't considered particularly relevant.

The Act was considered "obscure and all-but-forgotten" in 1948. (22) In 1956, however, the Act was moved to 18 U.S. Code, section 1385, and amended to include the Air Force, which had been separated from the Army. An attempt was made to subject the Navy to the Act in 1975; however, the bill died in committee.

Resurrection of the Act During the 1970s

In the early 1970s, the Posse Comitatus Act emerged from obscurity as creative defense lawyers attempted to develop new exclusionary rules based on the Act. A typical case involved a criminal defendant seeking acquittal because the arresting law enforcement official received assistance from a member of the DOD, allegedly in violation of the Act. While this effort was almost always unsuccessful, the cases in the 1970s marked the triumph of the deceptive 19th-century politicians who cloaked the Act in patriotic rhetoric.

A bit of legal background is required to understand these cases. As with most laws, the Posse Comitatus Act has several elements, or sub-parts. To violate the Act, someone must: (1) willfully (2) use the Army or Air Force (3) as a posse comitatus or otherwise (4) to execute the laws (5) in a way that is not authorized by the Constitution or an act of Congress.

Each of these elements must be satisfied. It's all or nothing. Under a cardinal rule of statutory construction, words cannot be ignored, especially since, in this case, Congress considered but rejected attempts to remove them from the Act. A case, therefore, can be resolved if the court finds that any single element is not satisfied.

This is precisely what occurred in the most important Army cases from the 1970s. The courts defined "to execute the laws," found this element unmet, and ruled against the defense. In doing so, however, the courts provided only a limited discussion of the Act and did not explicitly note the many other un-discussed elements. (23) This proved to be a significant source of future misunderstanding.

In another important case, a court held that the Act did not apply to the Navy and declined to apply an exclusionary rule for the violation of a similar internal administrative regulation. In doing so, however, this court articulated a broader "spirit" of the Act, opining that the legislative history showed congressional intent to apply the Act's policy to all armed services (24) Unfortunately, the court took a few remarks from the 1878 congressional debate grossly out of context and missed that the speaker's amendment deleted the Navy from the bill. Over time, this court's sloppy work (totally unnecessary to resolve the case) became another source of misunderstanding.