Unintended Consequences: The Posse Comitatus Act in the Modern Era

58 Pages Posted: 9 Apr 2014 Last revised: 31 Oct 2014

See all articles by Mark Nevitt

Mark Nevitt

Syracuse University College of Law; Georgetown University - Center on National Security and the Law

Date Written: October 30, 2014

Abstract

America was born in revolution. Outraged at numerous abuses by the British crown — to include the conduct of British soldiers in the colonists’ daily lives — Americans declared their independence, creating a new republic with deep suspicions of a standing army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. This did not occur until after the Civil War when Southern congressmen successfully co-opted the framers’ earlier concerns of a standing army and passed a criminal statute — the 1878 Posse Comitatus Act (PCA) — that restricted the ability of the army to be used as a “posse comitatus” to “execute the laws.” Today, the PCA’s history and scope are often misunderstood with continual unintended consequences for today’s modern military that are far removed from the law’s earlier constitutional and statutory origins.

This Article addresses a significant unintended consequence in the modern era: the PCA’s peculiar modern application to the Navy. The text of the PCA is silent on the Navy, yet the Department of Defense (DoD) has determined that the PCA applies to the Navy worldwide. The early civil libertarian concerns that originated with the birth of the republic and at the time of the PCA’s passage are based on concerns over a standing army. These are fundamentally distinguishable from the navy, the maritime-based armed force that largely operates on the high seas, far away from America’s geographic borders and removed from its citizenry. And the Navy’s modern mission includes the maintenance of freedom of the seas to include the suppression of piracy. But the DoD’s application of the PCA to the Navy limits its ability to participate in the full array of maritime missions — of continual concern with the rise of maritime terrorism that continually blurs the line between law enforcement and military activities. Building on the Navy example, this Article concludes by offering recommendations to remedy this historical incongruity while touching upon other areas — such as the rise of the National Security Agency and the complex modern military organization — where the PCA and associated civil-military relationship need further re-examination.

Keywords: National Security, Military Law, Navy, Army, Legal History, Posse Comitatus, Constitutional Law, Constitutional History, Standing Army, War on Terror, Maritime Terrorism, National Security Agency (NSA)

JEL Classification: K00, K1, K30, K33

Suggested Citation

Nevitt, Mark, Unintended Consequences: The Posse Comitatus Act in the Modern Era (October 30, 2014). 36 Cardozo L. Rev. 119 (2014), Available at SSRN: https://ssrn.com/abstract=2422161

Mark Nevitt (Contact Author)

Syracuse University College of Law ( email )

Syracuse, NY 13244-1030
United States

HOME PAGE: http://law.syr.edu/profile/mark-nevitt

Georgetown University - Center on National Security and the Law ( email )

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Washington, DC 20001
United States

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