Soldiers Aren’t Cops

The idea of expanding the military role has been gaining momentum. In testimony before the Senate Armed Services Committee not long after 9/11, Deputy Secretary of Defense Paul Wolfowitz replied favorably to a suggestion by Senator John Warner that the role of the military be expanded in the terror war to include domestic responsibilities. More recently, as reported in the New York Times of July 21, Air Force General Ralph Eberhart, President Bush’s choice to head the new unified command responsible for defense of the United States, said he favors changes in existing law to expand the military’s domestic powers in the war against terrorism. On Fox News Sunday (July 21), Senator Joe Biden, a member of the Judiciary Committee, endorsed the idea of granting soldiers the power to arrest American civilians. Meanwhile, the Bush administration has directed the Departments of Justice and Defense to review the Posse Comitatus Act (PCA) of 1878, the law that limits the use of the military in domestic law enforcement.

The fact is there are already too many exceptions to the PCA, most notably the use of the military in the "war on drugs." There are abundant reasons for rejecting the further expansion of the military’s domestic role.

The PCA embodies the Anglo-American idea that the citizenry is the best enforcer of the law. From its origins in Britain, the posse comitatus, literally "the power of the county," was understood to be the people at large who constituted the constabulary of the shire. When order was threatened, the "shire-reeve" or sheriff would raise the "hue and cry" and all citizens who heard it were bound to render assistance in apprehending a criminal or maintaining order. In this tradition, the sheriff in the American west would "raise a posse" to capture a lawbreaker.

The idea of a citizen constabulary is consistent with the general distrust on the part of the Founders of a standing army. They had before them the examples of Julius Caesar and Cromwell. They also had the example of George III, whose "long train of abuses" according to the Declaration of Independence, included maintaining a standing army, independent of civilian control, in the colonies in times of peace, and forcing the Americans to quarter the troops among the civilian population.

Despite this strong antimilitarist sentiment among the Founding generation, the drafters of the Constitution provided for a small standing army, although they required a biennial appropriation. But contrary to what many Americans believe, the Constitution itself does not prohibit the use of the military in domestic affairs. Indeed, the first use of the United States Army under the Constitution was the suppression of the Whiskey Rebellion in 1794. In 1807, apparently having come to believe that a small army, widely dispersed along the frontier, was no real threat to republican government, Congress declared the Army to be an enforcer of federal laws.

Accordingly, troops were often used in the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner, and Attorney General Caleb Cushing issued an opinion that included the Army in the posse comitatus.

Thus in April 1851, federal marshals in Boston arrested Thomas Sims, a 17-year-old slave who had escaped from Georgia. He was held in a courthouse guarded by police and soldiers for nine days while his case was argued before a federal commissioner. When the commissioner found for Sims’s owner, 300 armed deputies and soldiers took him from the courthouse before dawn and marched him to the Boston Navy yard where another 250 soldiers waited to place him aboard a ship that would carry him back into bondage.

In May of 1854, a deputy marshal arrested Anthony Burns, an escaped Virginia slave, also in Boston. While a federal commissioner decided Burns’s fate, abolitionists tried to rescue him. President Franklin Piece sent federal troops to Boston to keep the peace, admonishing the district attorney to "incur any expense to insure the execution of the law." Troops were also used to suppress domestic violence between pro- and anti-slavery factions in "Bloody Kansas." Soldiers and Marines participated in the capture of John Brown at Harpers Ferry in 1859.

The PCA, prohibiting the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances unless expressly ordered to do so by the president, was passed by Congress in 1878. After the Civil War, the U.S. Army was involved in supporting the Reconstruction governments in the southern states. The legislation was introduced by southern Democrats in the House of Representatives who resented the employment of federal troops for this purpose. Some northern congressmen supported it because of the Army’s role in suppressing the railroad strike of 1877.

But it was the Army’s role in preventing the intimidation of black voters and Republicans at southern polling places that led to the passage of the PCA. In the election of 1876, President Ulysses S. Grant deployed Army units as a posse comitatus in support of federal marshals maintaining order at the polls. In that election, Rutherford B. Hayes defeated Samuel Tilden with the disputed electoral votes of South Carolina, Louisiana, and Florida. This perceived misuse of the Army to "rig" an election was the catalyst for congressional passage of the PCA.

While the PCA is usually portrayed as the triumph of the Democratic party in ending Reconstruction, the Army welcomed the legislation. The use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. For instance, during the railroad strikes, soldiers took orders from state governors and even municipal officers. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution. In addition, there was a cultural change afoot in the Army. This cultural change was epitomized by Emory Upton.

Upton was an innovative officer with an outstanding Civil War record who later became a protégé of William Tecumseh Sherman. As General in Chief of the Army, Sherman sent Upton around the world as a military observer. Upton was especially impressed by Prussian military policy and its emphasis on professionalism. Upon his return to the United States, Upton proposed a number of radical reforms, including abandoning the citizen soldier model, relying on a professional soldiery, reducing civilian interference in military affairs, all of which naturally were rejected. In ill health, Upton resigned from the Army and in 1881, committed suicide.

But the triumph in the United States of progressivism, a political program that placed a great deal of reliance on scientific expertise and professionalism, the end of the Army’s constabulary duties on the Western frontier, and the problems associated with mobilizing for and fighting the Spanish American War made Upton’s proposed reforms more attractive, especially within the Army’s officer corps. In 1904, Secretary of War Elihu Root published Upton’s Military Policy of the United States. While many of Upton’s more radical proposals remained unacceptable to Republican America, the idea of reorienting the Army away from constabulary duties to a mission focused on defeating the conventional forces of other states caught on. This view has shaped U.S. military culture since at least World War II.

That’s why it is a surprise to hear officers like Gen. Eberhart sanction a possible expansion of the military’s domestic role. Officers traditionally fear that domestic tasks will undermine the war fighting capabilities of their units, that their "fighting spirit" will decline. In a 1991 commentary on the relationship between pre-World War II Canadian military policy and the subsequent battlefield disasters the Canadians suffered at the beginning of the war, the late Harry Summers warned that when militaries lose sight of their purpose, the results can be catastrophic.

The United States has avoided extreme manifestations of "bad" civil-military relations as coups and military dictatorship. But while conceding the absence of such examples, some influential individuals have argued that the state of American civil-military relations has deteriorated seriously since the end of the Cold War. This is the contention of what might be called a "crisis school" of civil-military relations, a heterogeneous group of scholars and policymakers who fear that current trends will result in a large, semi-autonomous military so different and estranged from society that it will become unaccountable to those whom it serves.

Those who advance this view worry about the expansion of the military’s influence and are concerned that the result will be a military contemptuous of American society and unresponsive to civilian authorities. They acknowledge that the crisis is not acute; it is not revealed by tanks rumbling through the streets. Instead, they say, it is subtle and subversive—like a lymphoma or termite infestation—destroying silently from within and appearing as mutual mistrust and misunderstanding, institutional failure, and strategic incapacitation. If the problem has not yet reached the danger point, that time is not too far off if something is not done. All of this will be exacerbated if the military becomes involved in a major way with domestic policing.

A decade ago, an Air Force staff judge advocate officer painted a disturbing picture of future civil-military relations if the military became involved in domestic affairs. Charles Dunlap described his article, "The Origins of the Military Coup of 2012" published in the Winter 1992-93 issue of Parameters, the professional journal of the U.S. Army, as a "darkly imagined excursion into the future." The article takes the form of a letter from an officer awaiting execution for opposing the military coup that has taken place in the United States. The letter argues that the coup was the result of trends identifiable as early as 1992, including the massive diversion of military forces to civilian uses.

Advocates of weakening the PCA should read this article. It provides a cautionary tale. Col. Dunlap’s doomed officer opines that in the 1990s, Americans became disillusioned with the apparent inability of elected government to solve the nation’s dilemmas. We were looking for someone or something that could produce workable answers. The one institution of government in which the people retained faith was the military. Buoyed by the military’s obvious competence in the First Gulf War, the public increasingly turned to it for solutions to the country’s problems. Americans called for an acceleration of trends begun in the 1980s: tasking the military with a variety of new, non-traditional missions, and vastly escalating its commitment to formerly ancillary duties.

Though not obvious at the time, the cumulative effect of these new responsibilities was to incorporate the military into the political process to an unprecedented degree. These additional assignments also had the perverse effect of diverting focus and resources from the military’s central mission of combat training and warfighting.

What Col. Dunlap describes in this article is the "salami slice" method of overthrowing democratic government: instead of a coup d’etat that seizes the salami of government all at once, power is taken one slice at a time. The military is asked to do more and more in the domestic arena and in concludes that it might as well run the government as a whole. This coup is the result of an accretion of power by the military. But in the end, the result is the same: a military good at maintaining itself in power, but unable to defeat a foreign enemy.

The idea of weakening the PCA and extending the military’s power to the domestic arena represents the culmination of trends that Col. Dunlap identifies in his piece. Take the "war on drugs." Concluding that "the rising tide of drugs being smuggled into the United States…present[ed] a grave threat to all Americans" and that civilian law enforcement was not effectively dealing with this threat, Congress passed the Military Cooperation with Civilian Law Enforcement Agencies Act of 1981." The PCA was amended in 1986 in order to permit the military more leeway in fighting the drug war.

One result of this weakening of the PCA is that the military has to fend off attempts by domestic law-enforcement agencies to rope them into ever more extensive "cooperation." For example, an Army officer has observed that "had legal advisers to Joint Task Force 6 [the military’s counter-drug task force] which supported the BATF during the siege at the Branch Davidian Compound in Waco Texas, not questioned that agency’s request for support, the Armed Forces would have been inappropriately and illegally involved in an operations that ultimately led to the deaths of US citizens."

Employing the U.S. military as a domestic police force is a recipe for disaster. The U.S. military is structured to play "away games." It is good at protecting the United States by threatening the sanctuary of our adversaries abroad. There are, of course, things the military can do to enhance the security of the American homeland, but we should not be blurring further the distinction between military activities and domestic law enforcement. To paraphrase what Casper Weinberger said in opposition to the use of the military in the drug war, further weakening the PCA in response to terrorism makes for terrible national security policy, poor politics, and guaranteed failure in the terror war.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.