Deputy Defense Secretary Paul D. Wolfowitz recently told Congress that, among the measures being considered to counter terrorism, he strongly supported reviewing the legal doctrine that has restricted the U.S. military from engaging in domestic law-enforcement activities since 1878. Days later, the respected Center for Strategic and International Studies issued a study saying that the Constitution, as well as several laws, gives the president the authority to use the armed forces in internal security for homeland defense as long as it is done on a short-term basis.
But is such use wise?
The debate comes at a critical time. The Bush administration has announced plans to create military courts where noncitizens suspected of terrorist sympathies can be tried without constitutional protections. "A president of the United States has just assumed what amounts to dictatorial powers to jail or execute aliens," fumed New York Times columnist and former Richard Nixon speechwriter William Satire, adding: "We are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts." Meanwhile, the government says it plans to monitor some defendants' communications with their lawyers.
Proponents of military involvement in roles long associated with the police say that, in these extraordinary times, the armed forces may be needed to help restore public order and protect public health and safety, given the vast resources at the Pentagon's command.
The Posse Comitatus Act (Section 1385 of Title 10 of the U.S. Code), first adopted in 1878, prohibited the use of military rule and federal troops for law-enforcement purposes in the post-Civil War South. By reinstating regular civilian authority, the military was prohibited from exercising explicit police powers. Over time this good law born out of bad circumstances contributed to the long-term professionalization of both law enforcement and the armed forces.
Keeping the military out of police functions has helped our armed forces become the biggest and strongest in the history of mankind, while at the same time keeping them at bay from exercising overtly political or partisan roles. Posse Comitatus and related laws and court decisions have given strength to enduring principles of military subordination to civilian authority.
Thus, when the wildly popular Gen. of the Army Douglas MacArthur challenged unpopular President Harry S Truman over wartime strategy, the elected civilian won. When the venerable army chief of staff Gen. Matthew Ridgway came to believe Dwight Eisenhower's nuclear strategy was hopelessly flawed, he sent Ike a stinging letter of dissent and, with it, his resignation. …