Is Posse Comitatus passe?

Posse Comitatus Act, 18 U.S.C. 1385

The United States of America is the mightiest country on Earth. Yet, the country's strength is born of a profound paradox. Under the U.S. Constitution, most of the important governmental powers affecting individual lives lie not at the federal level, but with the states.

Indeed, almost all of the laws defining criminal acts and their punishments are state laws. Almost all of the country's criminal enforcement professionals work for the states and their constituent local governments. For this reason, the United States does not have, and has never had, a national police force — unlike most other countries.

Although the United States has a strong national military, members of the uniformed military forces are forbidden by both law and tradition from active participation in domestic law enforcement.

The strongest statement on this point is found in the Posse Comitatus Act, which makes it a federal crime to employ "any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws." Congress passed the act in 1878 in reaction to the use of military forces to police and control polling places in Southern states.

Since then, Congress has authorized several closely defined exceptions to the general prohibition. There are also fewer limits on the Coast Guard, an arm of the Transportation Department, and on the National Guard, which operates under the direction of state governors. This is why the troops in airports are from the National Guard, not military reserves.

Until very recently, most citizens agreed on the basic propriety of this arrangement. However, after the Sept. 11 attacks, some have called these principles into question. Most notably, Sen. John Warner (R-Va.), ranking member of the Senate Armed Services Committee, has questioned the value of the Posse Comitatus Act.

Warner convened a hearing in October on the role of the Defense Department in homeland security. The testimony included advocacy of a "DOD-led task force involving protection of the United States in every dimension — land, sea, aerospace and protection from computer network attack."

Clearly, the U.S. military has, and ought to have, the lead role in protecting Americans from outside threats. The military should also have a role, along with appropriate civil authorities, in the development of coordinated responses to internal threats of a quasi-military nature, as might be presented by foreign terrorists operating within the United States.

However, most people would stop short of giving the military an active role in policing the country's criminal laws, whether those involve the use of computers, telephones or any other objects of normal domestic life. If the situation involves large ordnance, bombs, submarines or the like, it's a job for the military. But, if it is an appropriate job for the police, it is an inappropriate job for the military.

Warner promises to hold more hearings on this subject. Let's hope they spur a mature understanding of the issue.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.