Can the Military Be Used for Domestic Law Enforcement in the United States?

Introduction

The question of whether the military can be used for domestic law enforcement has been a topic of numerous discussions, especially during times of civil unrest. Two key pieces of legislation, the Posse Comitatus Act and 10 USC 275, are crucial in understanding the constraints and capabilities of the U.S. military in this context. This article aims to clarify these legal principles and their implications.

Understanding the Posse Comitatus Act and 10 USC 275

The Posse Comitatus Act, a federal law passed in 1878, prohibits the use of active military forces to execute the laws of any U.S. state or territorial district. Specifically, it states that:

“It shall not be lawful for any officer or soldier in the land or naval forces of the United States, when detailed, assigned, or ordered to duty within any State, Territory, District of Columbia, or any Indian reservation thereof, to take part in the enforcement of local laws, or the execution of process of the courts of such State or Territory, or to operate under any civil official or to perform any police duty, except in case of insurrection, domestic violence, invasion, or when the public safety requires it.”

This law prevents the military from performing routine law enforcement duties. However, the act does allow for the use of the military in certain circumstances, such as during a declared insurrection or when public safety is at risk.

Current Usage and Recent Examples

Despite the restrictions imposed by the Posse Comitatus Act, the military has been used in domestic law enforcement contexts. For example, the National Guard, a component of the state military forces, can be called upon to provide security during protests and civil unrest. This usage is seen as a way to free up local law enforcement for more active law enforcement duties such as interdicting looters and arsonists.

During these security operations, National Guard units often act to maintain order and ensure the safety of communities. This can include standing guard, establishing check points, and providing general security. As seen in recent events, this has been occurring in 27 states across the U.S., as reported by various news outlets.

Additional Legal Framework: The Insurrection Act

In situations where the Posse Comitatus Act may not be sufficient, there is another legal framework in place: the Insurrection Act. This act provides the President with the authority to use military forces to suppress domestic rebellions and insurrections. Under this act, the military can be used to enforce federal laws and maintain order.

Historically, the Insurrection Act has been invoked in rare cases. For example, in 1968, during the riots in Washington, D.C., military units were deployed to quell the unrest, with the 82nd Airborne Division being sent from Fort Bragg, North Carolina.

Traditional Rights and the Law

Citizens, including members of the military and National Guard, have certain legal rights that are similar to those of civilians. These include the right to make citizen's arrests and to report suspected crimes. For instance, if a guardsman or soldier witnesses a violent act, they may have the legal authority to make an arrest and turn the suspect over to the police.

However, there are limitations to these rights. For example, military personnel cannot engage in warrant service or make arrests beyond the minimum time necessary to hand over a detainee to civil authorities. This restriction applies to both federal and state troops.

Conclusion

The military's role in domestic law enforcement is limited by both the Posse Comitatus Act and the Insurrection Act. While the Posse Comitatus Act restricts the use of active military forces for domestic law enforcement, it allows for specific scenarios where military assistance is permissible. The Insurrection Act provides an additional legal basis for the use of military forces in cases of insurrection or when public safety is at risk.

The National Guard's role in maintaining order during protests and civil unrest is one such permissible use. This practice frees up local law enforcement resources, allowing them to focus on law enforcement duties such as interdicting looters and addressing arson.