The war on terrorism has made the U.S. armed forces active participants
in homeland defense and, in the process, has prompted changes in
the responsibilities and mission scope of the Defense Department.
The most transparent of these changes has been the establishment
of the U.S. Northern Command (NORTHCOM), a new unified combatant
command that became operational on October 1.
NORTHCOM covers the geographic scope of the United States, Canada,
Mexico, portions of the Caribbean and the U.S. coastal waters out
to 500 nautical miles. Its stated goal is to provide support to
civilian authorities in the event of a catastrophe and to deter,
prevent and defeat any external threats against the United States.
In the process of standing up NORTHCOM, the Defense Department
has had to address several operational issues involved with coordinating
a new unified combatant command within the United States. How NORTHCOM
will work with local and state first responders in the event of
a domestic terrorist attack is perhaps chief among them.
The Department of Defense, now consumed by a potential war with
Iraq and its commitments around the globe, has provided many details
in this regard. However, the question of the scope of the military’s
legal authority when acting within the United States raises significant
concerns. The concept of an active standing army, whatever its contours,
is unique—both as a matter of practice and law—in American
Posse Comitatus means “power of the county.” Its origins
can be traced to the election of 1876, when U.S. troops were ordered
to police polling places in the South during Reconstruction.
Determined to prevent a recurrence, Congress passed the Posse Comitatus
Act in 1878. It restricts the armed forces from acting “as
a posse comitatus or otherwise to execute the laws,” except
“in cases and under circumstances expressly authorized by
the Constitution or Act of Congress.”
Lawmakers considered the act a success on two fronts: removing
military enforcement of civilian law—precisely at times when
it may be most threatened—helps guarantee individual rights
and liberties while quelling long-standing citizen fears of standing
This is not to suggest that the act is absolute. Constitutional
authority gives the president and Congress the right to suspend
Posse Comitatus during emergencies. Similarly, statutory exemptions,
such as those encompassed by the Stafford Act 42 U.S.C §5122
and the Insurrection Act 10 U.S.C. § 331-333, permit active
military law enforcement in situations that include, but are not
limited to, threats of domestic insurrection and weapons of mass
A broad interpretation of these and other statutes authorized the
use of military assets in anti-narcotic and border control operations
beginning in the 1980s.
Assuming that the military forces serve a supporting and supplementary
role, working in conjunction with law enforcement authorities, prohibitions
against military involvement in anti-terror operations are generally
moot—or even irrelevant.
The military services can freely participate in domestic operations
with no legal consequences. In fact, following progressively sophisticated
terrorism—highlighted by the 1993 World Trade Center bombing
and the 1995 Oklahoma City bombing—the armed forces increasingly
supplement and assist local and federal law enforcement agencies
in the operational, logistical, and technical aspects of anti-terrorism.
The military’s anti-terror responsibilities during so-called
“special security events” provide the best example of
this role. It has become commonplace for the armed forces to help
secure high-profile targets from terrorist attacks, such as the
Super Bowl and presidential inaugurals.
Arguably, few question the military services’ unique abilities
or importance at these venues, especially when considering the range
of threats that terrorists pose when targets are not only high-value,
but also geographically concentrated. Because military troops (including
the National Guard) always serve a “secondary” role
in these limited deployments, neither replacing local police nor
enforcing civil laws, such activities are within the limits of Posse
Even the secretary of defense himself reminded the public of this
ideal when he told Pentagon reporters that the presence of troops
at the 2002 Olympics in Utah “... was done in coordination
[with state and local authorities], in a supporting role.”
What had been an infrequent use of the armed forces in anti-terror
activities before September 11 yielded to an expanded and obligatory
role after the attacks.
No federal, state, or local law enforcement entities possessed
the resources or capabilities to respond to the three massive crime
scenes—let alone provide the required nationwide security
in the days and weeks following the attacks. Their scope and sophistication
was simply too much for any entity except the Defense Department.
Almost immediately, the Air Force deployed combat air patrols to
secure domestic airspace, troops took positions at passenger airports
and Navy vessels patrolled ports and harbors.
It is in this context that the military’s post-September
11 homeland security initiatives must be analyzed vis-á-vis
First, the military supplemented, and never replaced, civilian
authorities. The Department of Defense provided assets, personnel
and expertise to first responders—under an operational and
collective rubric of cooperation. The fact that the military services
did not assume unilateral control of security, rescue and recovery
operations showed the continued relevance of the Posse Comitatus
Act, even after 123 years.
Second, and perhaps ironically, even if the military were in violation
of Posse Comitatus, the unprecedented crisis created by September
11 invoked de facto the handful of statutory exemptions that authorize
military involvement during emergencies.
Further, the likelihood of future terrorist acts comparable to
those of September 11 suggests that military participation in national
domestic security is here to stay. It would not be unreasonable
to assume that there might be limited situations, such as an attack
with weapons of mass destruction, when the military would need to
expand its role from mere support to active deployment.
Indeed, public statements about NORTHCOM—that it would “deter,
prevent and defeat” any external threats—are sufficiently
broad to suggest that the Defense Department likely envisions such
a role. This reality necessitates a reexamination of legislation
that precludes, prohibits or complicates the military’s ability
to defend the homeland, prosecute those responsible and restore
The need to deal with growing domestic terrorist threats, therefore,
raise some tough questions. For the armed forces to contribute effectively
to homeland defense, their acute reflexes and readiness must be
Yet, even in wartime, the United States has always remained under
civilian governance. The Constitution and the American culture will
not—and must not permit—the militarization of our government
How then to respond? In order for the military to address its new
homeland security responsibilities and prepare for major contingencies,
it would be reasonable to modify Posse Comitatus.
Doing so will give the armed forces the authority and legitimacy
they need, when they need it most, and establish mechanisms by which
civilian officials can continue to control the forces needed for
the national defense. It makes no sense to rely on statutory exemptions
to Posse Comitatus when it is possible and perhaps necessary to
modify the act itself.
Trying to work around the exceptions will provide no guidance to
the military, nor will it satisfy public and congressional concerns—namely
that the Defense Department has considered its procedures, responsibilities
and limitations during domestic deployments.
Any modifications to Posse Comitatus, and therefore to the increased
use of the armed forces in civilian affairs, would need to proscribe
three distinct issues.
First, legal modifications would need to ensure that any deployment
of military force would be the exception, and not the norm. Because
NORTHCOM’s mission is so vague, a relatively high legal threshold
should be in place before deployment.
Second, once deployed, the nature of its activities (with required
training and exercises) need to be delineated. The military services,
unlike the police, are not trained in arrest or limited use of force.
Finally, and most significantly, the law should ensure that there
is a mechanism to get the genie back in the bottle. The burden should
be on the Executive Branch that after a certain number of days,
or only after congressional approval, could a mission continue.
In this way, deployment would also be legally curtailed.
Through these mechanisms, the law would be consistent with what
we might envision as an operational worst-case scenario. Instead
of finding loopholes to legal parameters, or ignoring them altogether,
decision-makers need to begin to talk honestly, and publicly, about
what might be in store, and ensure that the law both assists and
limits military activity.
Juliette N. Kayyem, a former member of the National Commission
on Terrorism, runs the Executive Session on Domestic Preparedness
at the John F. Kennedy School of Government at Harvard University.
Steven E. Roberts writes frequently about terrorism and security
and is a critical infrastructure protection consultant in Boca Raton,