The prohibition against the use of military troopsfor law enforcement purposes was finally enacted intolaw at the end of the Reconstruction era. In 1854, theattorney general at the time, Caleb Cushing, issuedan opinion that militias could be used to enforce theFugitive Slave Act, which called for apprehendingand safeguarding fugitive slaves. Two decades later,the “Cushing Doctrine” led to the Army’s widespreaduse to exercise police functions and essentially takegoverning control of the eleven states of the formerConfederacy.During the presidential election of 1876 Samuel J. Tilden, a Democrat, won the majority of the popular vote, but the Republican, Rutherford B. Hayes, won theelectoral vote. There was deep suspicion in the Souththat the military had exercised undue influence onthe election. In a compromise, Hayes was to take thepresidency in return for certain concessions, includingan agreement to withdraw the federal troops.The Posse Comitatus Act (PCA) was subsequentlyenacted in 1878, according to Lawrence (1940), to pre- vent the “excessive use of federal machinery under theFederal Election Laws [as] in the presidential electionof 1876.”
The term “posse comitatus” means the “forceof the county.” Its doctrine dates back to English com-mon law, in which a county sheriff could raise a possecomitatus to repress a civil disturbance or for otherpurposes. The Posse Comitatus Act of 1878 states (asamended):
Whoever, except in cases and under circumstancesexpressly authorized by the Constitution or Act o Congress, willully uses any part o the Army or the Air Force as a posse comitatus or otherwise to execute thelaws shall be fned under this title or imprisoned not more than two years, or both.
Over the past century and a half, the wordingof the Posse Comitatus Act has remained essentiallyunchanged, but its use has become engrained inU.S. law and culture. Though there have been severalincidents when the Act has been severely tested, thisbasic concept of civilian control – absent in too manyother countries – has helped guarantee freedom frommilitary oppression.
WHAT DISTINGUISHES MILITARY AND POLICE ROLES?
Several factors make militaries and police different. A military is meant to fight wars, and a police force ismeant to enforce laws. There are clear reasons whyneither is good at doing the other’s job. That the police
The PoliceThe Armed ForcesSource of AuthorityandMandate
Various non-ederal police agencies through-out the United States derive authority romthe local or state political structure. In otherwords, the police work or the mayor or thegovernor,
who is answerable to a local citi- zenry
. As such, the police in their law enorce-ment and crime prevention tasks are alsoanswerable to that citizenry. In most cases,the police are a part o the community theypatrol, and they reect the norms, customsand culture o those communities.With the exception o the National Guardin “State” or “Title 32” Duty (more on thatbelow), the military derives its authorityrom the very top o the government, thepresident as Commander-In-Chie, and assuch is
not directly answerable to the com-munities
where it may be sent to enorcelaws.
Use of Force
Police are trained to use the
to enorce thecommunity’s laws.Military personnel are trained to use
over-whelming lethal orce to fght and win wars.
Obtaining evidence and securing its chain o custody
is standard or police investigations.Military personnel are
not trained in the protection o vital Fourth and Fith Amend-ment rights
In act, in several instances,legal prosecutions have ailed due tomilitary actions in an operation or investi-gation, including mishandling o evidencedue to lack o training.
In ideal situations, the police are equipped,right-sized and specically trained or thetasks o enorcing laws and ensuring civilliberties. The time, eort and resources that themilitary spends on law enorcement take itaway rom its core mission: to be at a highstate o readiness in the event o war.WOLA | NOVEMBER 2010