Bird Flu and the Posse Comitatus Act

Jill S. Farrell
November 05, 2005

excerpts:

On June 18, 1878, during the Reconstruction, recognizing the inherent danger to liberty posed by using soldiers for civilian law enforcement, Congress passed the Posse Comitatus Act (PCA). Title 18 US Code, Part I, Chapter 67, § 1385, reads: Use of Army and Air Force as posse comitatus. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

Exceptions to the PCA already exist: In 1981, Congress created an exception to allow passive military assistance to civilian law enforcement, such as the provision of equipment, information training, and advice. Eight years later, the Department of Defense became the “single lead agency” in drug interdiction efforts, requiring the secretary of defense to conduct annual briefings regarding the availability of military equipment and expertise to civilian law enforcement. In 1993, the PCA was amended to provide procedures for civilian agencies to purchase “law enforcement equipment suitable for counter-drug activities” through the Department of Defense, such as flash-bang grenades, assault rifles, and armored personnel carriers. The PCA could easily become completely undermined if we do not put a halt to the growing perception of our military as a panacea for all domestic problems. While modifications of the PCA do not necessarily make Americans safer, they do open us up to old abuses--and possibly a few new ones.