04/07/2011 01:19 pm ET | Updated Jun 04, 2011

Putting the Posse Comitatus, or Not, in PMC

In the aftermath of Hurricane Katrina there was criticism of private security contractors for being used as guards for various communities and facilities, as well as performing some law enforcement functions.

As far as I can tell just about all that criticism was much ado about nothing. The security contractors who were used fulfilled the terms of their contracts and performed professionally.

However it did serve to highlight raise the question of whether there are sufficient political or legal obstacles to the Federal government outsourcing civil law enforcement to private entities during national emergencies.

Fortunately for us this happens to be the very question of a law journal article published last year. Jerald Sharum wrote the article, "The Politics of Fear and Outsourcing Emergency Powers: The Death and Rebirth of the Posse Comitatus Act," published in the Lincoln Law Review.

To answer the question he examined the history of the Posse Comitatus Act's prohibition on the use of military troops to aid in civil law enforcement, and the 2007 expansions to the limited exception to Posse Comitatus Act provided under the Insurrection Act that were enacted following the arguably disastrous federal response to Hurricane Katrina in 2005.

He concludes that, "the same political concerns that compelled Congress to repeal those expansions in 2008 are likely the only limits to future efforts to outsource domestic law enforcement to private entities because existing laws do not prohibit such efforts."

He further concludes that neither the Posse Comitatus Act nor the Insurrection Act would
directly apply to prevent such outsourcing, leaving the Obama administration free to outsource unless opposing political pressures are sufficient to prevent it.

Considering how much the entire U.S. government has been outsourcing and privatizing both in recent years, as well as the recent pushback against earlier administration efforts to insource back into government functions that has previously been outsourced, the chances of opposing political pressure changing anything seems very dim.

As Sharum puts it, "This leaves the very politicians who have shown a tendency to authorize easily-abused emergency powers in response to national tragedies as perhaps the only forces that could limit those abuses." I believe this is what the dictionary classifies as irony.

Some background is necessary to fully understand why the use of contractors in national emergencies will increase.

Following Hurricane Katrina and the September 11th, 2001 attacks, the inherent weaknesses of the U.S. federal system in responding to wide-scale emergencies on American soil were obvious. Among the most glaring were the limitations on the ability of the federal government to send federal military troops into a state to respond to emergencies and natural disasters. This is mainly due to limitations imposed by the Posse Comitatus Act, which lays out a broad prohibition on the use of military troops to aid civilian law enforcement, and the Insurrection Act, which creates several of the statutory exceptions to the Posse Comitatus prohibition.

Following Katrina, however, the Posse Comitatus framework began to change under a variety of political pressures. There was, briefly, a substantial revision to the Insurrection Act piece of the Posse Comitatus framework made later in 2006 that would "tailor the application" of these bedrock principles of federalism by radically reducing the limitations originally imposed by the Posse Comitatus and Insurrection acts.

But the revisions were fleeting and were repealed on January 28th, 2008. However the pressures for the U.S. government to act in the event of a national emergency still remain. For Sharum, the paramount question is whether "the protections provided by the Posse Comitatus and Insurrection Acts would likely be sacrificed again in the face of these pressures."

If these pressures, such as presidential authority; state and local sovereignty; politics and political in-fighting; and congressional oversight do not, then "outsourcing civil law enforcement to private entities by the federal government would likely survive legal challenges and effectively eviscerate the Posse Comitatus protections that American citizens have long enjoyed."

Sharum believes that the same political pressures that led to the 2006 and 2008 revisions to the Posse Comitatus framework would likely act against any future efforts to outsource domestic law enforcement to private entities.

Indeed, he argues:

Because these political concerns galvanized politicians at all levels of government to reign in the reach of presidential authority that has, by all accounts, been expanding since the terrorist attacks of September 11, 2001 and Hurricane Katrina in 2005, I believe that they would do so again in the face of any large-scale attempts to use private entities to effectively expand federal authority to engage in civil law enforcement and circumvent Posse Comitatus protections.

I think the assumption that members of Congress have been galvanized to rein in presidential authority -- the unilateral executive theory of presidential power as Dick Cheney used to call it, is to put it politely, arguable. Anybody notice the Obama administration asking Congress for approval before attacking Libya?

Still, Sharum makes some points worth considering. The same concerns that opposed the 2006 revision to the Insurrection Act also weight against using private contractors for similar reasons.

First, presidential authority, is clearly implicated by a president using private contractors as an arm of federal law enforcement, even if the use was not intended to circumvent the Posse Comitatus Act. Just as with the use of federal troops, the use of private contractors under orders of the President is likely to be seen as presidential action and would therefore constitute the same sort of aggrandizement of presidential authority that Senator Leahy and others pointed to as critical flaws in the 2006 Revision. Moreover, although the use of private contractors for civil law enforcement does not create a power in the presidency to declare martial law, it would give the president the ability to impose martial law in similar fashion. Such an imposition of martial law by private contractors would likely be seen as less legitimate than even a controversial official power of the President to direct federal troops to conduct civil law enforcement.

Second, state and local sovereignty, is implicated because a president that outsourced would impose, whether with authorization or not, on state sovereignty and the authority of the Governor and other local officials. Without appropriate authorization, many would see such an imposition to be improper at best and unconstitutional at worst. Either way, sending private contractors into a state to conduct civil law enforcement would undermine the authority of the state's governor and local officials, all of whom are primarily charged with policing within their state.

Third, in Katrina's aftermath politics and political in-fighting occurred over who would command National Guard forces. This conflict centered on which organization and command structure would control a given National Guard unit when that unit was not federalized (and thereby under direct federal military control). Similar political maneuvering and conflicts, however, could easily surface between federal and state officials if private contractors were brought in to do what the federal government believed state or local law enforcement was unable to do, "restore order."

Finally, the need for congressional oversight, would also be implicated by outsourcing. Even assuming that private contractors would constitute federal troops, it is unclear whether federal troops would be prohibited from participating in civil law enforcement while merely acting as off-duty civilians "in a manner which [sic] any other citizen would be permitted to provide assistance." Second, there is the issue of accountability (and indeed liability) of private contractors acting as civil law enforcement officers. This is clearly related to the command and control issues described above, but goes beyond who is in charge of the private contractors to who ensures that the private contractors are acting lawfully and who is ultimately responsible if the private contractors do not.

Of course, the above assumes that members of Congress will acts in a sober, rational, intelligent manner. As Sharum concludes, "although politicians remain likely to authorize easily-abused emergency powers in response to national tragedies, they also may be one of the only forces that could limit those abuses."

In other words your Congressman or Senator might be a hero or a heel, depending on their mood swing.