October 3, 2005 | Executive Memorandum on Department of Homeland Security
The government response to Hurricane Katrina renewed debate over the efficacy of the Posse Comitatus Act, which prohibits the Pentagon from conducting domestic law enforcement. Amending the law to grant federal troops greater authority in restoring order in the wake of a domestic emergency is a bad idea. Establishing ways to ensure that the military is better prepared to respond to disasters makes sense, but changing Posse Comitatus would be a mistake. Altering the law in this way would undermine the principles of federalism, expanding the federal government's authority at the states' expense. Rather, Congress should restructure the military so that it is better prepared to respond quickly.
The Military and the Law. Under the Posse Comitatus Act, the armed services are generally prohibited from engaging in law enforcement activities inside the United States, such as investigating, arresting, or incarcerating individuals, except as authorized by federal law. The National Guard, however, enjoys a unique legal status. Guard troops are frequently referred to as citizen soldiers, part of the military's substantial Reserve components. Reserve forces are called to active service only for limited periods, such as for annual training or overseas deployments. When not on active duty, National Guard units remain on call to support the governors of their respective states. Posse Comitatus does not apply to National Guard forces unless they are mobilized as federal troops. As a result, the Guard plays the primary role in augmenting state and local law enforcement under state control, while the Defense Department plays a supporting role, providing resources and logistical support.
Furthermore, the Posse Comitatus Act has never been a serious obstacle to using federal forces to support domestic operations. For example, federal forces helped to quell riots by miners in Idaho in 1899; protected James Meredith, the University of Mississippi's first black student, in 1961; assisted in controlling the 1992 Los Angeles riots; and helped to reestablish order in the aftermath of Hurricane Katrina. In fact, federal forces have been used to enforce laws over 175 times in the past 200 years under the authority of laws such as the Insurrection Act.
The Military and Hurricane Katrina. In most disasters, local resources handle things in the first hours and days until national resources can be requested, marshaled, and rushed to the scene. Deploying national resources, including the military, usually takes days. In catastrophic disasters like Katrina, however, state and local resources may be exhausted from the onset. The challenge is then to deploy federal resources to the scene immediately. The greatest obstacle to overcome is not the legal barriers, but the tyranny of time and distance and the destroyed infrastructure, such as downed bridges and flooded roads, which might limit access.
Deploying the military faster-making it a more agile and flexible instrument to respond to all kinds of domestic security needs-is a question of force structure and policy. It does not require tampering with the sovereign responsibilities outlined in the Constitution. There are better solutions. Specifically, Congress could:
A Better Way. Congress can do better than changing a law that safeguards the liberties of U.S. citizens, the principles of federalism, and the balance of civil-military relations. Rather, Congress and the Administration should improve integration of the Guard Reserve, create a Navy Guard, and reorganize part of the National Guard for new missions. These steps will make the nation better prepared for the next Katrina.
James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation. David Gentilli, a Research Assistant in the Davis Institute, contributed to this report.