Posse Comitatus and the Military’s Role in Disaster Relief

Randall Jackson. Senior Legal Research Associate.
February 2006.

Introduction

There are currently adequate laws and structures in place to facilitate the use of the military in relief efforts in the event of a major catastrophe of whatever kind. Posse comitatus plays a key role in delineating exactly under what circumstances the military may and may not be used for the explicit purpose of enforcing domestic law. It is of crucial importance for key decision makers within the federal government, state governments and the military (including the National Guard) to understand exactly what is allowed and what is not allowed under various conditions. Steps should be taken to ensure that rules for using the military are clearly understood by all levels of leadership.

Background

Under posse comitatus, the Army and Air Force may not be used to enforce domestic law.1 This status has been extended to include the Marines and the Navy.2 It has also been interpreted to apply to the National Guard when federalized (chapter 10 status). However, far from being simply an absolute prohibition, posse comitatus additionally delineates under what circumstances the armed forces may be used for domestic law enforcement. Therefore as a statute, it is just as much empowering as prohibitory. The rather broad conditions under which it empowers the armed forces to enforce domestic law are “under circumstances expressly authorized by the Constitution or Act of Congress.”3 A good example of such authorization is the Coast Guard. Although a member of the US Armed Forces, the Coast Guard does not fall under posse comitatus because Congress has, through statute, empowered it to enforce domestic law.4

Through the years Congress has enacted other legislation aimed at allowing the military into domestic law enforcement under certain circumstances. Broadly speaking, these statutes have tended to involve insurrection or threat to the US from external enemies. The prime example is the “Insurrection Act.”5 Under the Insurrection Act, in times of civil disturbance or uprising in which “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”6 the military is authorized to enforce domestic law as long as the President has first issued an order to disperse peaceably and return home. Because law enforcement is authorized, this is a true exception to posse comitatus.

Similarly Congress has enacted statutes empowering the military to play a role in interdicting drug flows,7 illegal immigration information sharing8 and the handling of chemical, biological and nuclear weapons/materiel.9 It must be clearly understood, however, that these latter “exceptions” are not really exceptions to posse comitatus. While they create a role for the military in domestic law enforcement operations, that role is still circumscribed and limited to “passive,” as opposed to “active” duties. For example, law enforcement authorities may cooperate with military personnel in surveillance operations (thereby making use of the sophisticated training and equipment held by the military), but any actual arrest must be made exclusively by non-military law enforcement personnel.10 So while the military is brought in to assist domestic law enforcement, it is still remaining passive and therefore technically not enforcing domestic law. Posse comitatus remains intact.

The Stafford Act11 is often cited as an exception to posse comitatus, however again it is not an exception because it does not empower the military to enforce domestic law. Rather, it outlines how the military may be used for short-term disaster relief.12 Additionally, there are provisions in the Stafford Act allowing the military to take steps to protect life and property,13 but such steps are not to be undertaken as active law enforcement actions.

In regards to quarantine, generally state health officials have primary quarantine authority, while the federal government has authority over inter-state and international quarantine. Although quarantine can affect inter-state commerce, the court has ruled that its health component overrules and allocates quarantine to the police power of the state.14

Under 42 USC §264 (§361 of the Public Health Service Act), the Secretary of Health and Human Services (HHS) has primary responsibility for preventing the introduction, transmission, and spread of communicable diseases from foreign countries into the United States and within the United States and its territories/possessions. HHS then delegates to the Centers for Disease Control and Prevention (CDC) the authority to detain, medically examine, or conditionally release individuals reasonably believed to be carrying a communicable disease which have been delineated by the President through an Executive Order. If the Director of the CDC determines that steps taken towards quarantine by state and/or local official are inadequate, “he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”15 No mention is made of the use of military resources for enforcement purposes (CDC is outside of DoD). However, should the pandemic create a situation in which domestic law cannot be enforced, it is possible the Insurrection Act could be used to authorize quarantine enforcement by the military.16

The National Guard is sometimes subject to posse comitatus, sometimes not. While operating under state jurisdiction (chapter 32 status), it is not subject to posse comitatus. However once federalized (chapter 10 status), posse comitatus applies. As long as a state’s National Guard remains under state control it can act to enforce domestic law, and often does so in times of catastrophe. Retaining this power can be part of the motivation behind a governor’s refusal to request federalization.

Analysis

The general thrust of posse comitatus and its surrounding statutes is that the military should only be used as domestic law enforcers in the event of some sort of insurrection, uprising or invasion (Insurrection Act). One can argue that this is parallel to the military’s chief mission of protecting the country from external threat. Statutes such as the Stafford Act wherein the military is empowered to play a role, but still prohibited from enforcing domestic law, do not affect posse comitatus standing. The question is whether or not lawless activity following a catastrophe such as Katrina can be defined as rising to the level of insurrection, even if the activity is aimed not at insurrection per se, but rather general looting and lawlessness.

It would seem that the federal government did not see the activity surrounding Katrina as rising to the level of insurrection because it did not invoke the Insurrection Act. However upon closer look, it appears that political considerations more than technical legal considerations may have carried the day. In a September 9, 2005, article in the New York Times, it was reported that President Bush’s advisors had debated whether or not to invoke the Insurrection Act to speed federal intervention and more quickly stop lawless behavior. However the Administration became wary of the reaction to President Bush overriding a southern Democratic governor. A senior Administration official was quoted in the article as saying, “[c]an you imagine how it would have been perceived if a president of the United States of one party had pre-emptively taken from the female governor of another party the command and control of her forces, unless the security situation made it completely clear that she was unable to effectively execute her command authority and that lawlessness was the inevitable result?”17 The clear message here is that the necessary legal authority existed through the Insurrection Act (the italicized language very strongly reflects the language of the Act); the concern was the politics of the specific situation.

Had the political situation been perceived differently, the federal government could have intervened under the authority of the Insurrection Act. Such an invocation would have suspended posse comitatus and allowed the military to act as law enforcement officers to restrict the looting and general lawlessness. No additional legislation or statutes would have been needed – simply an appropriate usage of the structure already in place.

Under the Stafford Act, and appropriate to the federal structure of the US, disaster relief remains under the purview of the state governor. The President may act directly if the event transpires on federally controlled land, such as the Oklahoma City bombing, but otherwise requires a request from the governor in order to send federal support. In the case of Katrina, a request was sent by Governor Blanco on August 27 to receive federal assistance. That request did not include a request that the Louisiana National Guard change to chapter 10 status. Other than by request from the governor, federalization may only occur by Congress if it determines “that more units and organizations are needed for the national security”18; or by the President if needed to repel invasion or put down insurrection.19 Governor Blanco came under a lot of pressure to make the request, but ultimately decided to retain state control, informing the White House minutes before a news conference at which the President had hoped to announce the switch to chapter 10 status.

Retaining the state National Guard under state control is important for maintaining critical resources for the governor. By keeping the National Guard under state control, it can continue to play a role in domestic law enforcement. By switching to chapter 10, the National Guard can no longer play this role, leaving it to state and local police officers. If they had been previously relying upon National Guard units, this can create a serious vacuum.

When the National Guard remains in chapter 32 status and federal troops also aid in disaster relief, a shared command structure is created. In the case of Katrina, Louisiana’s Adjutant General, Maj. Gen. Bennett Landreneau and the commander of Joint Task Force Katrina, Lt. Gen. Russel Honore, shared command. This essentially means that they kept control of their respective forces and coordinated their efforts. The White House had proposed creating a dual-reporting structure. In this unusual scenario the Louisiana National Guard would have been federalized (thus putting all operations under Lt. Gen. Honore’s control) but Lt. Gen. Honore would have reported to both Gov. Blanco and the President. The Governor rejected this proposal for fear of losing control of the Guard and undermining the efforts of Maj. Gen. Bennett Landreneau.20

In a major disaster, the military can play an important role by bringing to bear equipment, training and expertise vital to rapid and efficient relief efforts. But these skills are not law enforcement. They include providing shelter, clearing debris, providing rescue operations and other physical operations requiring sophisticated logistical coordination and execution. Regardless of posse comitatus, the military can and should perform this role. Posse comitatus is simply not relevant to these functions. Where it does become critical is law enforcement. The military can not, and should not be asked to function as a domestic law enforcement entity. The Department of Defense (DoD) is amongst the most vocal supporters of this position. To begin with, DoD sees its mission as war fighting. Redirecting resources to domestic operations can serve to weaken the military’s war fighting capability. Therefore relief undertakings should be quick and limited to the immediate needs that the equipment and training of the military can fulfill. Furthermore, training appropriate to war zones, e.g. rules of engagement, are not going to be appropriate in a disaster situation. Mixed training or training some units in non-war fighting scenarios can again take away from the overall preparedness of the military for its primary mission.

In the event of a direct terrorist attack on the United States, the military would most likely be called upon to play a role, particularly if chemical, biological, radiological or nuclear weapons were used. In regards to posse comitatus, this is a situation in which the government would likely waive the statute. Whether it would fall under the Insurrection Act specifically, or perhaps fall under the inherent power of the government to repel attack or invasion, it would constitute a situation in which the government would suspend posse comitatus.

In 2002 Congress reiterated its support of posse comitatus.21 It is an important part of the civilian controlled military central to the form of government and government-military relations of a functioning democracy. Posse comitatus does not impede the military from performing important functions in the assistance of state and local officials in the event of a major catastrophe. The only function prohibited is that of domestic law enforcement. Yet this function can be carried out by state National Guard units if state and local police are overwhelmed. It is therefore important for the governor to retain the National Guard in its chapter 32 status. It is also important for local and state police, as well as first responders, to communicate well with invited military units so that the muscle and might of the military can be efficiently and helpfully applied. This is the best role for the military and one which requires no new legislation. It does require that all relevant leaders understand the roles they are to play, what they may and may not do, and with whom they need to be communicating.

Conclusion

The really big question remaining is whether all of this is believed to be adequate. Posse comitatus does not in any way hinder the military from applying the kind of specialized expertise and equipment it has to catastrophic events. All it does is prohibit military personnel from enforcing domestic law, a function which can be carried out by local and state police as well as the National Guard as long as it remains under state control. Should the situation further deteriorate into lawlessness, the Insurrection Act is available to empower a vibrant military role in re-establishing order, including through domestic law enforcement.

It would seem that rather than enacting new structures or eliminating something like posse comitatus it would make more sense to more fully and efficiently make use of the structures already in place. Establishing clear lines of communication and confirming that leadership understands the roles and limitations of key players can ensure that resources are best applied in disaster situations.

An important concept in the American democratic system is that of the ultimate control of military power resting in civilian hands. With the Stafford Act, subject to posse comitatus, that structure is retained without sacrificing the capabilities held by the military that can be of great assistance in a catastrophe. It is appropriate for those skills, funded by US taxpayers, to be used in a time of great need by US taxpayers.

Issues for Further Study (N.B. For sidebar or separate box)

I. Perhaps it is time to revisit the Insurrection Act. Because it is the most prominent true exception to posse comitatus, perhaps it needs to be broadened to reflect a richer menu of instances in which it could be elicited. Three possibilities regarding such a proposal include:

a. Rename the Insurrection Act, but leave it unchanged. This possibility assumes that the current language of the Insurrection Act sufficiently empowers the military to enforce domestic law in a fairly broad set of circumstances: 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.”22 The potential problem here is any baggage associated with the term “insurrection.” Because this word conjures up specific images of attempts to overthrow the government, it may drive leaders to be overly cautious in invoking it, for fear of being accused of overreaching. This seems to have been the case with the Administration and Katrina. Perhaps the Insurrection Act could be renamed as the Domestic Disaster Relief Act or Major Disaster Assistance Act, for example. Alternatively, perhaps the proposals and the original should be combined, rather than eliminating the original (i.e. perhaps “insurrection” should remain within the title): e.g. the Domestic Disaster Relief and Insurrection Act. The idea is to remove any      political stigma from the name and thus empower leadership to look solely to the circumstances of the disaster for guidance as to whether or not to turn to the Act.

b. Change the language of the statute and rename. Perhaps it is appropriate to more explicitly state the circumstances which entail “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.”23 Instances of looting and other lawless behavior in the aftermath of a major catastrophy perhaps should be explicitly cited as grounds for invoking this Act in order to empower the military to temporarily enforce domestic law until civilian authorities can recover. Perhaps a clause could be added pointing to a situation in which an extreme disaster may have eliminated local and state authority. Adding language regarding a possible role for the military in enforcing a quarantine might also help to clarify and appropriately empower the military to help.

There is precedence for this in the Immediate Response Authority DoD doctrine which allows commanders to provide resources and assistance to civil authorities without or prior to a declaration under the Stafford Act when a disaster overwhelms the capabilities of local authorities and necessitates immediate action. The immediate response authority may also include law enforcement activities that would ordinarily be prohibited by posse comitatus. The controlling directive does not require a request from state or local officials, but states that

“DoD Components shall not perform any function of civil government unless absolutely necessary on a temporary basis under conditions of Immediate Response. Any commander who is directed, or undertakes, to perform such functions shall facilitate the reestablishment of civil responsibility at the earliest time possible.”24

The immediate response authority is not provided for in any statute, but is said to have deep historical roots. The 1906 San Francisco earthquake and fire are noted examples. There, the commanding general of the Pacific Division, on his own initiative, deployed all troops at his disposal to assist civil authorities to stop looting, protect federal buildings, and to assist firefighters.25

c. Leave the Insurrection Act as is. There is adequate language in the statute as is and only needs to be better understood and utilized when needed.

II. How can local authorities, first responders and local/state police best communicate with the military on the ground? That is to say, if the military is to play a supporting role as outlined in the Stafford Act, what kinds of communication structures are needed to assure that the resources are applied as needed?

III. This paper has looked to the National Guard to play a key role in disaster relief by remaining in chapter 32 status. In the context of the Total Force Structure of the US military, are National Guard units less able to undertake the kind of disaster relief activities required (such as law enforcement)? The fear is that through integration within the Total Force Structure, National Guard units will be less able to address state-specific needs; or those with specific needs may be located in another state, requiring the governor to reach an agreement with that state’s governor to obtain the resources. Should state National Guard units prepare more thoroughly for potential state-specific scenarios? Will that undermine the larger US military capability and the Total Force Structure?

1 “Posse Comitatus Act” 18 USC §1385.

2 10 USC §375.

3 “Posse Comitatus Act” 18 USC §1385.

4 see 14 USC §89.

5 10 USC §§331-334.

6 10 USC §332.

7 e.g. 10USC §381.

8 e.g. 10USC §371.

9 10USC §382 and 18USC §831, respectively.

10 see Trebilcock, Maj. Craig T., USAR, “The Myth of Posse Comitatus,” Journal of Homeland Security, October, 2000.

11 42 USC §5121 et seq.

12 10 days – 42 USC §5170(c)(1).

13 42 USC §5170(c)(6)(B).

14 Gibbons v. Ogden, 1824; Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 1902.

15 42 CFR § 70.2.

16 Elsea, Jennifer and Kathleen Swendiman, CRS Report for Congress, Federal and State Quarantine and Isolation Authority, pp. 22-23, December 12, 2005.

17 Lipton, Eric, Eric Schmitt and Thom Shanker, “Storm and Crisis: Military response; Political Issues Snarled Plans For Troop Aid,” New York Times, September 9, 2005, section A, page 1, column 5, italics added.

18 10 USC 1003, §10103.

19 10 USC 1211 §12406.

20 Moller, Jan and Robert Travis Scott, Governor, White House detail response, “Times-Picayune,” September 8, 2005.

21 see 6 USC §466.

22 10 USC §332.

23 10 USC §332.

24 U.S. Dep’t of Defense, Military Support to Civil Authorities, DoD Dir. 3025.1 § 4.4.10 (1993).

25 Elsea, Jennifer, CRS Report for Congress, The Use of Federal Troops for Disaster Assistance: Legal Issues, PP. 5-6, September 16, 2005.