But all that may be about to change. After repeatedly denying they plan to undermine or alter the Posse Comitatus Act, of 1878, which makes it a criminal offense to use U.S. military forces “to execute the laws,” Bush administration officials are starting to change their tune. The National Strategy for Homeland Security the administration released on July 16 suggests the time may have come to weaken the protections provided by the Act. As it’s phrased in the National Strategy, “The threat of catastrophic terrorism requires a thorough review of the laws permitting the military to act within the United States.”
But does it? Current law hardly hamstrings the military with regard to helping fight terrorism on the home front. The Posse Comitatus Act is riddled with exceptions. Federal law already provides that in the event of an emergency situation involving possible terrorist attack with a weapon of mass destruction, the Defense Department can assist civilian authorities with materials, expertise, and personnel.
Unsatisfied with the broad authority federal statutes already provide it, the Bush administration seems to be looking at something closer to the normalization of military law enforcement. That is a dangerous idea, and one that’s unlikely to make us any safer from terrorist attacks. The Army is a blunt instrument: effective for destroying enemy troops en masse, but ill‐suited to the fight on the home front, which requires subtler investigative and preventative skills.
Many of the uses of troops for domestic security after September 11 appear ill‐adapted to the threats we actually face. For instance, authorities in Florida stationed a tank outside of Miami International Airport last Thanksgiving, as if the next terror attack would come in the form of an al Qaeda mechanized column, rather than a shoe‐bomb or a smuggled box cutter.
And the bluntness of the military instrument makes its use all the more dangerous within our borders. More widespread use of military personnel to do police work would do little to protect us from al Qaeda; but it would increase the chances of collateral damage: innocent American citizens harmed by those who are supposed to protect them. From suppression of strikers in the 19th century, to the deaths at Kent State, to the 1997 Marine Corps killing of an American high school student at the Mexican border, deviation from our tradition of civilian law enforcement has had grave consequences throughout American history.
The problem is not, despite what the administration seems to think, that the legal barriers to the militarization of law enforcement are too high, but that they’re far too low. In 1981, Congress weakened the Posse Comitatus Act substantially to allow military involvement in the war on drugs. Misuse of the “drug exceptions” to the act helped lead to the worst disaster in U.S. law enforcement history: the 1993 tragedy in Waco, Texas. Federal law enforcement authorities used false allegations of methamphetamine trafficking by the Branch Davidians to obtain military hardware and personnel. Indeed, it was U.S. Army Delta Force commanders who advised federal agents to launch a tank assault against the Branch Davidians’ dwellings. The result was more than 80 dead, including 27 children. If anything needs review and revision, it’s the ill‐considered exceptions to the Posse Comitatus Act.
Instead, in its new National Strategy for Homeland Security, the administration threatens to weaken the act. It’s a threat that Congress ought to resist. Normalization of military law enforcement would have grave consequences for our political culture. We do not want to become a society where armed soldiers patrolling the streets are part of everyday life. The America we’re fighting to preserve is a free, democratic republic — not a banana republic.