The Posse Comitatus Act: liberation from the lawyers

Parameters, Autumn, 2004 by Gary Felicetti, John Luce

Congress Increases DOD Involvement in Law Enforcement

The 1981 Act (10 U.S. Code, Sections 371-378)

By the late 1970s, the federal government formally acknowledged that it was easy to smuggle illegal drugs into the United States and distribute them to eager buyers. Marijuana from Colombia arrived by the ton-load while hundreds of pounds of cocaine were flown in daily. The situation in south Florida, "a drug disaster area," was out of control and about to get even worse. (25) Highly publicized shoot-outs between rival drug gangs introduced the term "cocaine cowboys" into the national press and reinforced the nation's Wild West image of Miami.

Against this backdrop, Congress moved in 1981 to increase cooperation between DOD and civilian law enforcement authorities as part of the 1982 DOD Authorization Act. (26) Congress did so with little support from any federal agency. In fact, the effort prompted an unlikely alliance between federal drug enforcement officials, who feared DOD dominance over a high-profile mission; DOD officials, who feared a resource drain away from the department's primary mission; and civil libertarians, who feared an eventual military state. (27)

Despite this opposition, a version of the bill became law. In a nutshell, the 1982 Defense Authorization Act established some explicit "safe harbors" of permissible DOD activity to assist law enforcement efforts. In one case, the safe harbor came with restrictions to prevent abuses. These restrictions, however, were limited to the safe harbor. The new law explicitly did not change the Posse Comitatus Act or impose any limitations beyond those in the Posse Comitatus Act itself. The entire point was to increase DOD-civilian cooperation in law enforcement.

DOD Implementing Regulations

On 7 April 1982, the Defense Department published administrative regulations implementing 10 U.S. Code, sections 371-378. (28) While many parts of the regulation initially appear consistent with the authorizing statute, the regulation defeated the law's stated purpose to increase cooperation between the military and civilian law enforcement in several important ways.

The regulations invented an extremely broad definition of the Posse Comitatus Act based upon the one element analyzed in the 1970s court cases. This transformed the tests for when one "executes the law" into the entire definition of the Act. In taking this action, the DOD instituted a version of the Act explicitly rejected by lawmakers in 1878 and rendered meaningless words deliberately left in the law by Congress.

The regulations also extended the Act's coverage outside the United States, ignored key sections of the 1982 law to reach a conclusion that it actually increased restrictions on all DOD activity, and applied the overly restrictive DOD interpretation of the Posse Comitatus Act to the Navy and Marine Corps as a matter of DOD policy.

Taken together, the overly restrictive regulatory provisions appeared to reflect the Defense Department's lack of support for the congressional intent behind the 1981 law. The DOD, however, claimed to base its policy upon the Posse Comitatus Act.