Pentagon press secretary, Rear Admiral John Kirby, on Monday dismissed constitutional concerns over the decision to deploy the military in response to the Ebola virus in the United States.
“We actually do have the legal authority to do this,” Kirby told Morning Joe. “This is nothing more than potential support, and I stress, potential support to civilian medical authorities if and only if they ask for that.”
“This isn’t going to violate Posse Comitatus,” he added.
On Sunday Obama’s Defense Secretary, Chuck Hagel, announced the formation of a “quick strike team” to “provide short-notice assistance to civilian medical professionals in the United States.”
Despite Kirby’s remarks, the move in fact represents a serious violation of Posse Comitatus.
The Posse Comitatus Act became law in 1878 at the end of Reconstruction. It is intended to prevent the federal government from using troops to enforce state laws.
Civil and military separation has a pronounced history in Anglo-American law. It is mentioned in the Magna Carta of 1215. In 1327 Thomas, Earl of Lancaster, argued that so long as civil government is able to enforce the law, military involvement in civil law enforcement is unlawful. In seventeenth century England, Oliver Cromwell experienced resistance to the military enforcing laws. In the American colonies, British soldiers enforcing laws provided a major cause for the Revolution.
Since September 11, 2001, the federal government and the Pentagon have argued that Posse Comitatus is no longer relevant.
“It is time to rescind the existing Posse Comitatus Act and replace it with a new law,” retired Col. John R. Brinkerhoff argued in the December, 2009 issue of the Journal of Homeland Security.
“Things have changed a lot since 1878, and the Posse Comitatus Act is not only irrelevant but also downright dangerous to the proper and effective use of military forces for domestic duties.”