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Law Sample Paper

Title: The Law that Regulates the Use of Military Forces for Support of Civil Authorities

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History of the Posse Comitatus Law

The enactment of Posse Comitatus Law as a consequence of the 1876 election marked the end of the Reconstruction period following the civil war (Brinkerhoff2002, p.2, para 9, line 1).The Posse Comitatuscame into force to override a view by the attorney general in 1854. A lot about this law is closely linked with the conflict concerning slavery and the union in the United States.

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The doctrine of posse comitatus originates from English common law. Literally, posse comitatus means “force of the county”; a body of men, 15 years and above, whom a sheriff may call into action or raise in order to quell a riot or otherwise. During Franklin Pierce’s presidency, his attorney general Caleb Cushing embraced the posse comitatus doctrine and postulated that marshals could call up a posse comitatus whereby both militia and regulars from organized entities could join such a posse.

With Cushing doctrine, it meant that members of the armed forces could still be called into service by U.S marshals despite the fact that such servicemen were in organized military bodies with their own commanding officers. It meant that this could happen without needing any approval from the president. The doctrine came into practice albeit being a mere view of the attorney general and did not undergo any judicial or legislative review. The Cushing doctrine, thus, resulted in the use of the navy and the army alongside local officials in enforcing the law in turbulent regions.

In the time of Reconstruction, the army exercised both judicial and police functions, run local governments and used to suppress domestic unrest. Throughout the United States, prior to the civil war, the militia who were being controlled by the state was employed in curbing local disorders but there was an ineffective militia, especially in defeated states, during Reconstruction and therefore the army took up the role of protecting the people.It was the Civil Rights Act of 1866 that validated the use of the army by empowering marshals to call posse comitatus to their aid, portions of the army or navy or even the militia (Brinkerhoff2002, p.3, para 3, line 8). Therefore, after the readmission of the former Confederate States into the Union, there was a change in the army’s status but their role remained unchanged.

After 1868, one of the most pressing problems was on how to procure the assistance of the army in law enforcement. A desperate plea by a marshal in Florida led to the then-attorney general, William M. Evarts, to cite posse comitatus and thus allow military personnel alongside civilians to affect the legal processes. Numerous requests for troops by sheriffs and marshals without the president’s assent resulted. However, some resistance to this effect arose from the army. The War Department thus sought for the call up by the marshals and the sheriffs to be subordinated to the superior roles of the organized and permanent military body.

President U.S Grant, in 1871, set out to seek another basis for the use of troops other than posse comitatus. Consequently, the War Department agreed and ordered that forces may be committed and may be deployed to assist civil authorities in dispersing marauders and armed organizations among other duties such as assisting the civil authorities in arresting a villain. The disputed election of 1876 resulted in the inauguration of Hayes as the 19th president in a deal that was to end the Reconstruction in the South. As a result, federal troops ceased from being employed in law enforcement and Southerners began running their own state affairs.

The Posse Comitatus Act was passed in 1878. Congress resented the habit by U.S sheriffs and marshals to press forces into their own service without the assent of the president who is the commander in chief. This habit by far led to posse comitatus to be adopted as law. Congress was clearly opposed to that practice and therefore it sought to get involved and also to involve the president in making such a decision. It was J. Proctor Knott, representative of Kentucky, who effectively evoked an amendment to the Army Appropriations Bill which successfully became the Posse Comitatus Act. U.S marshals and sheriffs would no longer be able to conscript troops into their posses. This role was assigned to the president and Congress, who would be the only ones to authorize such a move.

Posse comitatus is a compelling law. Many of the local matters for which the military is summoned to deal with can best be done by local police forces. Police forces are well trained and specialized in matters of law enforcement and would be better suited to deal with them than the military are provided that they are well equipped with the resources that they require as their work dictates. This is in no way a move to constrain the military from participating in local policing matters.

This law, apparently, can be seen as an effective tool by which possible duplication of roles can be avoided. It cuts a remarkably clear line between the roles of the military and that of the local police units. With the law in place, the line of command in the various forces becomes even clearer. At one point, the War Department sought to secure an undivided loyalty by forces to their commanding officers. Giving powers to local sheriffs and marshals to summon the army or the navy to their own local use tends to blur the chain of command and perhaps could result in the undermining of the commanding authority of the military commanders. Therefore, the law has brought in a structured and defined manner in which the military can be summoned to enforce the law in the localities without implicitly tending to lose its identity.

References

Brinkerhoff,J. (2002) The Posse Comitatus Act and Homeland Security, Retrieved from http://www.homelandsecurity.org/journal/articles/brinkerhoffpossecomitatus.htm  October 24, 2010.

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