The Posse Comitatus Act has eroneously been viewed as a major barrier to the use of U.S. military forces in planning for homeland defense. In fact, many in uniform believe that the act precludes the use of U.S. military assets in domestic security operations in any but the most extraordinary situations. Unfortunately, as is often the case, reality bears little resemblance to the myth for homeland defense planners. Through a gradual erosion of the act's prohibitions over the past 20 years, posse comitatus today is more of a procedural formality than an actual impediment to the use of U.S. military forces in homeland defense.But, But, what about the Posse Comitatus Act? :bullit: :dunno:
The statutory language of the act does not apply to all U.S. military forces. While the act applies to the Army, Air Force, Navy, and Marines(Navy), including their Reserve components, it does not apply to the Coast Guard or to the huge military manpower resources of the National Guard. The National Guard, when it is operating in its state status pursuant to Title 32 of the U.S. Code, is not subject to the prohibitions on civilian law enforcement. (Federal military forces operate pursuant to Title 10 of the U.S. Code.) In fact, one of the express missions of the Guard is to preserve the laws of the state during times of emergency when regular law enforcement assets prove inadequate. It is only when federalized pursuant to an exercise of presidential authority that the Guard becomes subject to the limitations of the Posse Comitatus Act.
The federal courts have had several opportunities to define what behavior by military personnel in support of civilian law enforcement is permissible under the act. The test applied by the courts has been to determine whether the role of military personnel in the law enforcement operation was "passive" or "active." Active participation in civilian law enforcement, such as making arrests, is deemed a violation of the act, while taking a passive supporting role is not. Passive support has often taken the form of logistical support to civilian police agencies. Recognizing that the military possesses unique equipment and uniquely trained personnel, the courts have held that providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act. Military personnel may also be involved in planning law enforcement operations, as long as the actual arrest of suspects and seizure of evidence is carried out by civilian law enforcement personnel.
The weakness of the analysis of passive versus direct involvement in law enforcement was most graphically demonstrated in the tragic 1999 shooting of a teenaged shepherd by marines who had been assigned a mission to interdict smuggling and illegal immigration in the remote Southwest. An investigation revealed that for some inexplicable reason the 16-year-old shepherd fired his weapon merely in the presence of the marines. Return fire killed the boy. Demonstrates that when armed troops are placed in a position where they are being asked to counter potential criminal activity, it is a mere exercise in semantics (IMHO the lowest form of dedbate) to argue that the military is being used in a passive support role. The mere fact that armed military troops were placed in a position with the slightest possibility that they would have to use force to subdue civilian criminal activity reflects a significant policy shift by the executive branch away from the posse comitatus doctrine.
Congress has also approved the use of the military in civilian law enforcement through the Civil Disturbance Statutes: 10 U.S.C., sections 331 thru 334. These provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property. In case of civil disturbance, the president must first go through the motions of giving an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles "race riots" of the early 1990s.
Federal military personnel may also be used pursuant to the Stafford Act, 42 U.S.C., section 5121, in times of natural disaster upon request from a state governor. At such a time, the Stafford Act permits the president to declare a major disaster and send in military forces on an emergency basis for up to ten days to preserve life and property. While the Stafford Act authority is still subject to the criteria of active versus passive, it represents a significant specific exception to the Posse Comitatus Act's underlying principle that the military is not a domestic police force auxiliary.