Did Army troops patrol the streets of Samson, Alabama?

March 17, 11:47 AMCivil Liberties ExaminerJ.D. Tuccille

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An exception to the Posse Comitatus Act allowed
troops to patrol New Orleans after Hurricane Katrina

Update: The Army acknowledges that regular troops were dispatched to Samson, and says an inquiry is under way.

Rightfully so, attention after the recent mass shooting in Alabama focused on the trail of blood left by Michael McLendon, a former police officer on a rampage. But several Reuters photos taken after the incident, showing Army troops from nearby Fort Rucker patrolling the streets of Samson, Alabama, are starting to draw attention. The use of military personnel in a police role often raises concerns given their different missions and training. The practice is also, despite loosening of statutes in recent years, almost certainly illegal under federal law.

Passed in the wake of Reconstruction, when formerly rebellious regions of the country chafed under military occupation, the Posse Comitatus Act reads:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The motivation for the law is clear. Military personnel are trained and equipped to wage war against an enemy. Police are trained to maintain order and keep the peace among their neighbors. The two roles don't interchange very well -- as has been amply demonstrated by the carnage resulting in recent years from increased police use of military tactics.

The Posse Comitatus law was specifically crafted to prevent the federal government from exercising direct, armed control over states and localities. As such, it doesn't apply to the National Guard, unless those state troops are federalized and placed under the command of the Army.

The Posse Comitatus Act "remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter."
-- Major Craig Trebilcock, a member of the Judge Advocate General’s Corps in the U.S. Army Reserve

The federal government has also moved in recent years to erode restrictions on the use of the military's vast assets for law enforcement operations. The military is now explicitly authorized to participate in drug enforcement efforts, as well as to help control immigration and collect tariffs. States can also call on federal troops to put down insurrections or help with natural disasters. The federal government can send troops of its own accord  to suppress rebellions or when "major public emergencies" render state and local authorities incapable of protecting people's constitutionally guaranteed rights.

That's a lot of exceptions, but the Posse Comitatus Act remains in force. Even Major Craig Trebilcock, a member of the Judge Advocate General’s Corps in the U.S. Army Reserve, in an article otherwise dedicated to defending the domestic use of the military in anti-terrorism operations, conceded the law "remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter."

And the mass murder of ten people, horrible as it is, is a civilian law enforcement matter that simply doesn't rise to the level of a natural disaster or a regional insurrection.

Of course, it's possible the photos got it wrong. Fort Rucker is an Army aviation center and, as such, an unlikely source for combat troops. Reuters, too, is a European news agency whose employees may be less aware of the difference between the regular Army and the National Guard.

As of press time, the Fort Rucker media office had not yet responded to inquiries regarding the use of troops in a police role or their status under the Posse Comitatus Act.

The fact remains that there is a law restricting the use of military personnel in a law-enforcement capacity, and that law is based in sound reasoning. Troops trained and equipped for combat are a less than ideal choice for filling the roles of civilian police. If it turns out that the Army did, indeed, patrol the streets of Samson, Alabama, we should be concerned about the government's willingness to stretch or exceed the law to put troops where they don't belong.

Update: The Army acknowledges that regular troops were dispatched to Samson, and says an inquiry is under way.

email J.D.: civilliberties (at) tuccille.com