The Role of Federal Military Forces in Domestic Law Enforcement Title
by COL (Ret) John R. Brinkerhoff
Reprinted with permission from the Joint Center for Operational Analysis Journal
Present policies and attitudes on the use of federal military forces to enforce the law in the United States are inappropriate for the Global War on Terrorism. What was done in earlier times is unlikely to be a good way to assure the security of the homeland against terrorist attacks. Under current policies, Department of Defense (DOD) support to civil authority for catastrophic terrorist attacks is certain to be ad hoc, poorly planned, too little, and too late to provide effective help. An independent review of DOD policies on the use of federal military personnel to enforce the law within the United States is needed now.
The gist of the problem is demonstrated by the first sentence of the extract below from the 2002 National Strategy for Homeland Security.
Current polices and attitudes are based on the first clause of the first sentence, which emphasizes prohibition of using military forces to enforce the law. Future policies ought to be based on the second clause of the first sentence, which says that federal military forces can enforce the law if they are authorized to do so by an act of Congress. The problem is not the law per se but policies that flow from an inadequate appreciation of the powers that Congress has granted to the President. Current DOD policies are based on adherence to inappropriate historical precedents, unthinking application of recent court cases, and some reluctance to use military forces to enforce the law. DOD emphasizes restrictions placed on domestic law enforcement by judges instead of on the powerful presidential authorities granted by Congress.
The current situation is a culmination of over two hundred years of the use of federal troops to enforce federal laws in civil disorders. It is also an accurate reflection of recent trends in politics, defense funding, and societal attitudes. Unfortunately, the cumulative effects of these laws and policies are wrong for the present problem.
Historical Role of Federal Forces in Law Enforcement
Federal military troops have been used often to enforce the laws of the Nation. In the past two hundred fifteen years, the Army and, to a lesser extent, the Marine Corps has enforced the laws in over 167 incidents, or about 0.75 times per year on the average. Federal troops have been called on to quell insurrections, enforce unpopular federal laws, govern the seven states of the defeated Confederacy, protect minorities from harm, quell race riots, police the lawless West, guard the borders, break strikes, protect key assets against sabotage, seize and operate war plants, enforce civil rights laws, operate the postal service, and protect the population from lawless elements. (See U.S. Army Center of Military History, The Role of Federal Military Forces in Domestic Disorders, 1789-1878 (1988).)
Presidents of all persuasions have used federal troops when the need occurred. Presidents who opposed such use of troops while campaigning found that once in office they needed to do that very thing. In the early days the tendency was to rely first on the militia. It soon became apparent, however, that state militias were unreliable and in some cases, partisan, so ultimate reliance would have to be placed on the federal troops to keep the peace. Presidents still prefer to let governors rely on the state militias (now the National Guard) if they can, and indeed most domestic disorders have been handled without federal intervention.
The United States invariably has been unprepared, except for wartime periods, to deal in a timely manner with civil disorders and other domestic operations that require the use of federal troops. Laws and policies for the use of federal troops to enforce the laws were developed and institutionalized to follow the lessons learned from the previous response. As a result of this reactive preparedness, these laws and policies have usually been ill suited to the new situations and different causes. It has been as if each incident were a completely new phenomenon. Many times, commanders of federal troops ordered to intervene in civil disorders were ignorant or unsure of the laws and the rules governing such operations. Current policies follow this pattern. They are based on past experience, which is unlikely to be the best for future incidents.
A major source of confusion is the Posse Comitatus Act, which many people believe-incorrectly-prohibits the use of federal troops to enforce the law in the United States.
What was originally no more than a way to prevent US attorneys and local sheriffs to require federal troops to enforce the law has become, in popular myth, a general proscription of any use of federal troops to enforce the law. This general belief is belied by the fact that despite the Posse Comitatus Act, Presidents after 1878 have used federal troops to enforce the laws when they saw fit to do so. Presidents have used the Posse Comitatus Act as an excuse to reject or avoid actions they did not want to do, but have not hesitated to work around the act to do what they wanted to do. During the labor riots of the late 19th Century, Presidents used federal troops to intervene in labor disputes under the pretext of protecting federal property. During World War I, President Woodrow Wilson breached the actual terms of the Posse Comitatus Act by allowing his subordinates to use troops without first obtaining his authorization. During World War II and for three decades thereafter, federal troops were frequently involved in law enforcement actions, such as surveillance, search, detention, and arrest in the course of authorized domestic operations. Federal troops not only enforced the law of the land, including making arrests and detaining lawbreakers, but they were expected to do so by a generally grateful public. The real intent of the original Posse Comitatus Act was to restore to the President sole authority to authorize the use of federal military forces to enforce the law in the United States.
The real effect of the Posse Comitatus Act has been to slow down the response time for the use of federal troops. In the West, after the Civil War but prior to the passage of the Posse Comitatus Act, local U.S. marshals and sheriffs could get the Army troops to help them enforce the law quickly and reliably, which was important in that place and time. After the passage of the Posse Comitatus Act, local lawmen had to ask through channels to the territorial governor, who had to ask the President, who, if he approved, would have to send the authority back down through the military chain of command - all resulting in so much delay that the bad guys usually got away. That reactive and laborious procedure remains in effect today.
Current reluctance to use federal troops to enforce the laws of the United States is a relatively new phenomenon. In the 1960s, some elements of the leadership elites began to regard the use of federal troops to enforce the laws as not only unnecessary but wrong. Starting in the 1970s and continuing thereafter, court decisions have had the effect of restricting the role of federal troops in domestic law enforcement by reinterpreting the meaning of the Posse Comitatus Act. The modern revised version of the Posse Comitatus Act is widely accepted today as the law of the land. It is the basis for the myth that federal troops may not enforce the laws at all. This situation is widely accepted by all parties and supported by civil libertarians, liberals, and conservatives who for varying reasons do not want federal troops to enforce the law.
In response to the restrictions imposed by these judicial revisions of the Posse Comitatus Act, Congress has passed and Presidents have signed into law several statutes that delegate to the President and the Secretary of Defense authority to use federal troops and civilian employees of DOD to enforce the law. The presidential authority granted by Congress in the so-called Insurrection Act (10 USC 331-334) is sufficient to safeguard the Nation, but once the courts began to impinge on that presidential authority, Congress acted to make additional delegations. After 1976, when laws were passed to authorize military support for law enforcement agencies involved in counter-drug operations, immigration and tariff enforcement, and dealing with weapons of mass destruction, a provision was included precluding military personnel from active participation in law enforcement. This meant that DOD could give advice and loan equipment but could not come into contact with suspects, make arrests, operate equipment, or gather intelligence. Even for incidents in which chemical or biological weapons are suspected, under 10 USC 382 military personnel may not search for them, seize them, or otherwise actively assist unless such action is "considered necessary for the immediate protection of human life, and civilian law enforcement officials are not capable of taking the action." Court decisions have had the effect of substantially limiting what federal troops can do even against terrorists armed with weapons of mass destruction.
The nature of civil disorders has changed a lot since George Washington called forth the militia to quell the Whiskey Rebellion. Conflicts between labor and management and among the races are no longer major problems. The need for federal troops to enforce the law has diminished as state and local law enforcement agencies increased in strength and capability. However, the new threat to the United States posed by terrorism ushers in a new and unprecedented situation. The new threat to civil order is not only the terrorists themselves, but also criminal elements that will take advantage of panic and confusion among the populace to riot and loot. In these cases, federal military troops will be called on yet again to enforce the law and protect the people, property, and institutions of the United States.
Law Enforcement Tasks for Federal Troops. In a catastrophic terrorist attack, federal troops will be needed to accomplish the following tasks:
Protect the People from Violence. The direct violence of the attacks and disasters is likely to be compounded by violence provoked by them. Some elements will seek to take advantage of the situation to loot, and others will engage in violence to pursue their own agendas. Law enforcement agencies have the duty to protect the people from the effects of this violence. The role of the federal troops in situations requiring their use to enforce the laws is to assist police and National Guard forces to quell riots, prevent looting, and provide security. These actions are intended to restore stability and security enough to allow police to go about their normal law enforcement business unhampered and other emergency responders to do their work in a secure environment. To protect the people, federal troops will have to stop, search, apprehend, and detain looters and rioters, sometimes in direct support of police officers but sometimes not.
Protect Key Facilities. Federal troops and civilian and contractor police officers are responsible for protecting DOD facilities and civil facilities deemed essential for the accomplishment of DOD's expeditionary missions, or to the well-being of the nation. DOD may have a role in protecting non-DOD critical assets that are part of the National Critical Infrastructure Protection Program. Force and infrastructure protection requires troops to enforce the law by detecting, apprehending, detaining, and repelling by force groups or individuals that attack key facilities.
Control Mass Movement of People. Emergencies often involve planned or spontaneous movement of people as they seek to avoid danger. In catastrophic emergencies, these movements will be very large and will be beyond the capability of law enforcement agencies to control. In these events, federal military forces will assist in the planning, preparation, conduct, and enforcement of evacuations, quarantines, and stay in place policies. In doing this, federal troops will be enforcing the laws.
Provide Essential Supplies and Services to the People. Victims of emergencies need food and water, medical care, and other essential supplies and services to mitigate the consequences of the emergency. When an emergency is of such a large size, scope, or duration as to exceed the capabilities of the normal providers, federal troops can provide emergency supplies, services, transportation, and logistical management capabilities to meet the urgent needs of the people. Delivery of emergency support and services may involve enforcing the law to assure equitable distribution of goods and services.
Augment the Capabilities of Civil Organizations. Because of its readiness to wage war overseas, DOD has greater capabilities in some technical aspects of homeland security than most civil organizations, particularly local and state agencies. These capabilities are in chemical weapons, biological warfare agents, and (along with the Department of Energy (DOE)) nuclear weapons and radiation. DOD also has highly developed abilities with respect to command and control, intelligence, and communications. DOD can enhance management of terrorist attacks by making its technical capabilities available to local agencies.
Legal Authority to Use Federal Troops to Enforce the Law
The Insurrection Act is the most important legal authority for the President to authorize the use of federal troops to enforce the law. The Insurrection Act (there is really no single 'Insurrection Act' per se but this name has been applied collectively to the four statutes noted below) consists of four statutes enacted at different times for different reasons that, when considered as a whole, provide the power that Presidents have used many times as the legal basis for using troops to enforce the law. The four sections of the act are as follows:
The Insurrection Act is the most sweeping authority for the President to authorize and order the use of the federal troops for domestic operations. The President may not act on warning or even at the start of an incident, but must wait until the governor or a state legislature asks for federal assistance. This tends to discourage advance preparations and movements of troops-although Presidents have authorized such actions. This tiered approach in which the federal government acts only after local and state governments have failed, was workable when the cost of delayed response was acceptable, but it is inappropriate for the current situation.
In addition to the Insurrection Act, Congress has enacted numerous laws that authorize the use of federal troops to enforce the law and/or assist local law enforcement agencies for specific purposes. The laws are presented in the order in which they were originally enacted, show the year originally enacted, and identify the official to whom the authority was delegated. (See DODD 5525.5, Enclosure E) Congress has enacted laws to allow the use of federal troops to do the following: execute quarantine and health laws (42 USC 97), 1799; remove persons unlawfully present on Indian lands (25 USC 180), 1834; protect rights of a discoverer of a guano island (48 USC 1418), 1856; support certain customs laws (50 USC 220), 1861; execute certain warrants relating to enforcement of specified civil rights laws (42 USC 1989), 1866; protect national parks and certain other federal lands, 1883; remove unlawful enclosures from public lands (43 USC 1065), 1885; support neutrality laws (22 USC 508 and 461-462), 1915; crimes against foreign officials, official guests of the US, and other internationally protected persons crimes (18 USC 112 and 1116), 1948; support of territorial governors if a civil disorder occurs (48 USC 1422 and 1591), 1950; protection of the President, Vice President, and other Designated dignitaries (18 USC 1751), 1965, and Presidential Protection Act of 1976; crimes against Members of Congress (18 USC 351), 1971; and enforce Fishery Conservation and Management (16 USC 1861), 1976, which authorizes DOD to support Coast Guard law enforcement efforts upon request.
The three most important and recent laws in this regard are the following:
In addition to these laws, DOD asserts the inherent right for military troops and civilian employees to enforce the law under stated conditions for the following purposes (DODD 5525.5, 15 January 1986): to use military forces under the Insurrection Act with respect to insurgency, domestic violence, or conspiracy that hinders the execution of State or Federal law; furthering a military or foreign function of the United States, regardless of incidental benefits to civilian authorities or for the conduct of military or foreign affairs; enforce the Uniform Code of Military Justice (UCMJ), in response to a request by the DOD Inspector General, likely to result in administrative proceedings by DOD, or relating to the commander's inherent authority to maintain law and order on a military installation or facility; protect classified military information or equipment, DOD personnel, equipment and official guests, and federal property and functions, including the use of troops when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection; when detailed or under the operational control of another government agency that is authorized to enforce the law; protect federal property or functions when state or local authorities are unable or decline to provide adequate protection (DODD 2035.12); and when prompt and vigorous federal action is necessary to prevent loss of life or wanton destruction of property, and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal government functions to such an extent that duly constituted local authorities are unable to control the situation (DODD 5525.5, 15 January 1986), and circumstances preclude obtaining prior authorization by the President (DODD 2035.12).
The laws governing the use of federal military forces to enforce the law are a hodge-podge of legislation enacted piecemeal to suit particular needs believed to be of great importance at the time of passage, and recent judicial opinions designed to fit current sensitivities. Recent laws ratify the restrictions imposed by judicial intervention on the Posse Comitatus Act. As noted above, confusion engendered by the various laws is compounded by a widespread belief within DOD and elsewhere that federal troops may not enforce the law at all. This confusing and unsatisfactory situation appears to call for codification and reassertion of the power of Congress to authorize the use of federal troops to enforce the law as provided for in the Constitution. However, given the prevailing climate of conversation on public policy, the opposition of many to any increase in federal powers, and aversion of many others to any use of troops in law enforcement, it is unreasonable to expect concerted Congressional action on this matter. If this issue is to be resolved, it will have to be done by transforming DOD policy.
DOD Policy on the Use of Federal Military Forces to Enforce the Law
DOD policy recognizes that the primary responsibility for protecting life and property, and maintaining law and order in the civilian community, is vested in the State and local governments. Supplementary responsibility is vested by statute in specific Agencies of the Federal Government other than the Department of Defense. DOD policy also recognizes the responsibility of the Federal Government, including DOD, to assist the states to maintain order. It recognizes that military forces can and will be used to support law enforcement agencies. It makes it very clear that the President may authorize the use of military forces to enforce the law, and it even allows local commanders under certain circumstances to use their assigned military forces to do so even before Presidential authority is obtained. This part of the official policy provides a satisfactory basis for DOD to carry out its homeland defense missions, but it is complicated by the conditions attached by DOD to such use. DOD uses six criteria for evaluating all requests for civil support (see OSD, "The DOD Role in Homeland Security", July 2003, and DODD 3025.15, 18 February 1997, p. 3).
These rules are reasonable if applied to minor incidents in which DOD assistance is requested but may not be urgent or critical. Without such criteria, DOD could be involved in minor incidents that states or other agencies ought to manage themselves. These incidents might include fighting wildfires, a flood, tornadoes, and similar small natural disasters. However, these criteria are inappropriate to serve as the decision framework for whether DOD should provide support for a catastrophic terrorist attack. They assume that DOD has the luxury of considering and rejecting domestic missions found inconvenient or dangerous, but ignore the reality that a President can and will override this process when DOD assistance is needed urgently to protect the people.
In addition to the criteria discussed above, there are five basic conditions for the use of federal troops.
Despite all the foregoing discussion of restrictive laws and conditions for use, DOD knows very well that it will have to provide federal troops to deal with future civil disturbances as it has done repeatedly in the past. There is a tacit understanding to this effect among those DOD officials involved in homeland defense, but these officials prefer not to publicize preparations for this kind of operation because they don't want to encourage a lot of unnecessary requests from civil authorities for federal troops to help out in every disorder that occurs. For major disorders, DOD is prepared and has plans to employ federal military forces to enforce the law. The way that DOD will respond is presented in some detail in the GARDEN PLOT plan. The DOD Civil
Disturbance Plan (GARDEN PLOT) is the implementing document for Military Support of Civil Disturbances (MACDIS). This is the most recent approved plan, and it contains organizational arrangements and assignments that have changed significantly with the creation in 2003 of the Assistant Secretary of Defense for Homeland Defense, the Northern Command (NORTHCOM), and the transfer of the Directorate of Military Support to the Joint Staff. (See Department of Defense Civil Disturbance Plan, 15 February 1991; a new version is under preparation.)
While recognizing that the primary responsibility for "protection of life and property and the maintenance of law and order" within the United States rests with local and state governments, this plan sets forth the conditions and procedures for the "employment of federal military forces to control civil disturbances..." GARDEN PLOT sets forth four instances in which federal forces may be used:
The basic concept of operations is spelled out in the civil disturbance plan in Annex C. The President may direct the employment of federal military forces for domestic civil disturbance operations for a major disturbance or for multiple civil disturbances. The plan envisions a probable order of employment of forces as follows: local and state police, National Guard on state active duty, federal civil law enforcement officers, and finally federal military forces.
GARDEN PLOT makes it clear that the limitations that courts have ordered on federal military troops are superfluous and irrelevant when the President orders the DOD to use military troops in civil disturbances. It appears that DOD has promulgated two sets of policies: one using the modern revised version of the Posse Comitatus Act as a shield against using troops to enforce the laws actively, and another using presidential authority to use troops to enforce the laws when it really becomes necessary to do so. This bifurcated policy may have been acceptable in earlier times when the United States was a secure base from which to wage expeditionary warfare abroad, but is does not make sense when the United States is itself a theater of war.
Summary of DOD Policy
DOD policy is out of date. The relevant DOD directives are dated from the mid-1990s before the Global War on Terrorism, and its policy content is still based on Cold War thinking and earlier experience. This policy ought to be based on the current and future situation. It also needs to be revised to take into account the existence of the DHS and new organizational arrangements in DOD for homeland defense, including the establishment of NORTHCOM.
DOD policy is deceptive. While focusing on and extending the restrictions in law on the use of federal troops to enforce the law, DOD fails to emphasize presidential authority under the Insurrection Act that carries with it no restrictions on the ability of federal troops to enforce the law. This duality needs to be ended, and a single, integrated policy on the use of federal military forces under current circumstances put into place.
It is unlikely that DOD can itself conduct an objective review of its policies on this issue. The present dual policy approach is ingrained; the posse comitatus myth has many believers; and many officials and military officers consider it inappropriate to use federal military forces to enforce the law. However, this issue is too important to be allowed to languish unheeded. DOD should conduct an independent review of this issue to assure that policies on the use of federal military forces are appropriate for the current situation.
Note: This article was originally published in the December 2004 edition of Joint Center for Operational Analysis Journal. References and endnotes were removed from this article for reprinting and are available upon request from the original publisher of this article.