Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. Title 18, U.S. Code, Section 1385
This is the Posse Comitatus Act.
Things have changed since 1878, the year this law was enacted by Congress. Given what just happened in Ferguson, MO where street battles erupted after the police shooting of an unarmed teenager -- we should be asking ourselves, how does this law apply to our nation today? Even more, our president and Congress need to come up with a modern version of this legislation, perhaps replace it altogether. The headlines and photos from Ferguson demonstrate this urgent challenge. The Ferguson police are not military troops, but they have the same equipment as the Army did in Iraq and Afghanistan. The Defense Department and the Department of Homeland Security (DHS) have transferred billions of dollars worth of military equipment to local US law enforcement in recent years with inadequate oversight or discussion. This should make every American step back and take notice. Our democratic principles are at stake.
Posse Comitatus was passed during America's westward expansion in order to prevent military forces from being conscripted into local law enforcement without explicit presidential or congressional permission. The National Guard and the Coast Guard are excepted.
For decades, we've needed new thinking about the division of labor between civilians and the military in our policies, both domestic and international. These conversations have happened for American military activities overseas. Since the end of the Cold War in 1991, the military services have created rules of engagement for warzones inside cities, among civilian populations and for disaster response in places like Somalia, Bosnia, Kosovo, Haiti, Afghanistan, Pakistan and Iraq. The acronym to describe this change started out as "military missions other than war" (MMOTW) and is now called some hybrid of peacekeeping (PK) Stability and Support Operations (SASO) or Counter insurgency (COIN). Prevention and de-escalation of violence is included in these new rules.
We need a similar pattern of creative thinking about the use of force here at home. Posse Comitatus itself has been amended over the past decade -- mostly to allow active duty troops to respond in case of chemical, biological or radiological emergency. The biggest problem we face is the lack of oversight and deliberation by elected leaders in Congress. We need specifics. We need dialogue about different scenarios. Maybe Ferguson will change the current lackadaisical approach on Capitol Hill. If you feel like doing something, check out these maps to see if you live in a powerful district. Look at the Armed Services, Judiciary and Homeland Security committees. Members are home in their districts until September 8th. Go see them.
Tell your reps that you support a comprehensive re-authorization or replacement of Posse Comitatus. The Ferguson circumstances don't fit into an 1870's framework, but neither do they exactly match the 1960s (civil rights) or even the 1990's for that matter (Los Angeles riots). From DC, the street fight in Ferguson looks like an angry overreaction that got retaliatory and out of control. We definitely need to look at how it happened and redress it. (Hat tip to Georgia Congressman Hank Johnson's new military surplus regulation effort)
But we also need to pay attention to shifting threats and appropriate responses. The world is getting more volatile, after all. From climate disruption to terrorism, threats don't respect boundaries anymore. The people with the power to make laws should take a fresh look at strategies for keeping domestic peace in a world of distributed access to lethal means. If we ever want to have a truly inclusive society, non-violence must be the priority.
The larger context is also important, DHS recently issued a policy brief that addresses live shooters and IEDs. Every policy shop in DC is rushing to define the word "resilience" now that the Defense Department is touting it. These wonkathons are usually about crisis response. But the resulting policy needs to be about decision-making capacity. In Congress, this capacity is the leadership skill and institutional expertise to write a law to replace Posse Comitatus. In Ferguson, this capacity is the ability for police to de-escalate in the face of provocation. "Reslience" is ultimately a declaration about first principles -- how we invest in ourselves and the strengths we demonstrate to the world. In today's world, strength is less about force and more about the ability to influence positive change.
It's pretty basic. Belief in the supremacy of civilian control over the armed forces is the cornerstone of American democracy. The institutional failure evident in Ferguson, MO is a sign of civilian dereliction. For an issue so important, Congress and the Executive Branch must initiate a process to modernize or scrap Posse Comitatus. The military itself knows that force is often counter-productive. The civilians need to step up. If we keep going down this path, the trade-offs will fundamentally change our democracy. We've come up against this problem in the past and we got through it okay. We can do it again.