The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law

Order Code 95-964 S

CRS Report for Congress

Received through the CRS Web

The Posse Comitatus Act and Related Matters:

The Use of the Military to Execute Civilian Law

Updated June 1, 2000

-name redactedSenior Specialist

American Public Law

Congressional Research Service ˜ The Library of Congress

The Posse Comitatus Act & Related Matters: The Use

of the Military to Execute Civilian Law

Summary

The Posse Comitatus Act outlaws willful use of any part of the Army or

Air Force to execute the law unless expressly authorized by the Constitution or an

Act of Congress. History supplies the grist for an argument that the Constitution

prohibits military involvement in civilian affairs subject to only limited alterations

by Congress or the President, but the courts do not appear to have ever accepted the

argument unless violation of more explicit constitutional command could also be

shown. The provision for express constitutional authorization when in fact the

Constitution contains no such express authorizations has been explained alternatively

as a meaningless political face saving device or as an unartful reference to the

President's constitutional powers. The express statutory exceptions include the

legislation which allows the President to use military force to suppression

insurrection, 10 U.S.C. 331-335, and sections which permit the Department of

Defense to provide federal, state and local police with information and equipment,

10 U.S.C. 371-381.

Existing case law indicates that "execution of the law" in violation of the Posse

Comitatus Act occurs (a) when the armed forces perform tasks which are assigned

not to them but to an organ of civil government, or (b) when the armed forces

perform tasks assigned to them solely for purposes of civilian government.

Questions arise most often in the context of assistance to civilian police. At least in

this context, the courts have held that, absent a recognized exception, the Posse

Comitatus Act is violated, (1) when civilian law enforcement officials make "direct

active use" of military investigators; or (2) when the use of the military "pervades the

activities" of the civilian officials; or (3) when the military is used so as to subject

"citizens to the exercise of military power which was regulatory, prescriptive, or

compulsory in nature." The Act is not violated when the armed forces conduct

activities for a military purpose which have incidental benefits for civilian law

enforcement officials.

The language of the Act mentions only the Army and the Air Force, but it is

applicable to the Navy and Marines by virtue of administrative action and commands

of other laws. The law enforcement functions of the Coast Guard have been

expressly authorized by act of Congress and consequently cannot be said to be

contrary to the Act. The Act has been applied to the National Guard when it is in

federal service, to civilian employees of the armed forces, and to off-duty military

personnel.

The Act is probably only applicable within the geographical confines of the

United States, but the supplemental provisions of 10 U.S.C. 371-381 appear to apply

world-wide. Finally, the Act is a criminal statute under which there has never been

a prosecution. Although violations will on rare occasions result in the exclusion of

evidence, the dismissal of criminal charges, or a civil cause of action, as a practical

matter compliance is ordinarily the result of military self-restraint.This report appears

in abridged form as CRS Report RS20590, The Posse Comitatus Act: A Sketch.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Constitutional Origins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Presidential v. Congressional Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

When the Act Does Not Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Constitutional Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Statutory Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Information and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Information: Spies, Advisers, and Undercover Agents . . . . . . . . . . . . 24

Equipment and Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Limitations: Military Preparedness, Reimbursement, and Direct Use . 30

Military Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Willfully Execute the Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Execute the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Military Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Navy & Marines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

National Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Off Duty, Acting as Citizens & Civilian Employees . . . . . . . . . . . . . . . . . . 43

Geographical Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Consequences of Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Exclusion of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Jurisdiction & Criminal Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Civil Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

The Posse Comitatus Act and Other

Considerations: Use of the Military to

Enforce Civilian Law

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. 18

U.S.C. 1385.

Introduction

Americans have a tradition, born in England and developed in the early years

of our nation, that rebels against military involvement in civilian affairs. It finds its

most tangible expression in the nineteenth century Posse Comitatus Act, 18 U.S.C.

1385. The Act forbids use of the Army and Air Force to execute civil law except

where expressly authorized.

The exception documents a contrary component of the tradition. It accepts the

use of the armed forces in extraordinary circumstances if expressly approved by

Congress. Striking the balance between rule and exception has never been easy, but

failure to do so has often proven unfortunate. When the rule is too unforgiving, a

Shays's Rebellion may go unchecked. When exceptions are too generously granted,

a Boston Massacre or Kent State tragedy may follow.

Several times in the recent past, concerns that civil authorities may be

overwhelmed by threats of natural disasters, civil disturbances, drug trafficking, and

terrorism have produced calls for more generous exceptions to the rule. Some of

those calls have been answered, others have not. This is an effort to sketch the

current state of the law.

Background

The Magna Carta gives us the first recorded acknowledgment of the origins of

the Anglo-American tradition against military involvement in civilian affairs with its

declaration that "no free man shall be . . . imprisoned . . . or in any other way

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destroyed . . . except by the legal judgment of his peers or by the law of the land."1

Subsequent legislation in the reign of Edward III explained that this precluded

punishment by the King except "in due Manner . . . or by Process made by Writ. . .

[or] by Course of the Law,"2 or as later more simply stated, except "by due Process

of the Law."3 Three hundred years after the passage of the Edwardian statutes, Lord

Coke and other members of Parliament read these due process and law of the land

requirements to include a broad prohibition against the use of martial law in

peacetime, an interpretation they compelled King Charles I to acknowledge.4

1

Magna Carta, ch. 39 (1225)[ch.29 in the Charter of King John (1215)], reprinted in

SWINDLER, MAGNA CARTA: LEGEND AND LEGACY 315-16 (1965)("No freeman shall be

taken, or imprisoned, or be disseised of any freehold, or liberties, or free customs, or

outlawed, or banished, or in any other way destroyed, nor will we go or send against him,

except by the lawful judgment of his peers or by the law of the land" (language added to

ch.29 of the Charter of King John in the reissuance by King Henry III appears in italics).

Although the Magna Carta in the modified version of King Henry remains in effect, the

language quoted above is generally cited as "chapter 29," see e.g., THOMPSON, MAGNA

CARTA: ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION 1300-1629 68 (1948);

HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 49 (1716 ed.); I COKE, THE

SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 45 (1797 ed.); I BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 400 (1765 ed.).

2

25 Ed.III. Stat.5, ch.4 (1352), reprinted in, 1 STATUTES OF THE REALM, 1231-1377 321

(1993)("Whereas it is contained in the Great Charter of the Franchises of England, that none

shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom,

unless it be by the Law of the Land; It is accorded assented, and established, That from

henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to

his Council, unless it be by Indictment or Presentment of good and lawful People of the

same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ

original at the Common Law; nor that none be out of his Franchises, nor of his freeholds,

unless he be duly brought into answer, and forejudged of the same by the Course of the Law;

and if any thing be done against the same, it shall be redressed and holden for none").

3

28 Ed.III. chs. 1, 3 (1354), reprinted in 1 STATUTES OF THE REALM, 1231-1377 345

(1993)("the Great Charter . . . [shall] be kept and maintained in all Points. . . . No Man of

what[ever] Estate or Condition that he be, shall be put out of land or Tenement, nor taken,

nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due

Process of the Law").

4

See, THOMPSON, MAGNA CARTA: ITS ROLE IN THE MAKING OF THE ENGLISH

CONSTITUTION, 1300-1629, 347-50 (1948); Engdahl, Soldiers, Riots, and Revolution: The

Law and History of Military Troops in Civil Disorders 51 IOWA LAW REVIEW 1 (1971).

Coke's Institutes make the same point; proceedings under martial law are not

proceedings under the "law of the land" (lex terrae), I COKE, THE SECOND PART OF THE

INSTITUTES OF THE LAWS OF ENGLAND 50 ("And so if two English men doe goe into a

foreine kingdome, and fight there, and the one murder the other, lex terrae extendeth not

hereunto, but this offense shall be heard, and determined before the constable, and marshall

[i.e. at martial law], and such proceedings shall be there, by attaching of the body, and

otherwise, as the law, and custom of that court have been allowed by the lawes of the

realme, [13 H.IV. ch.5 (1412)]").

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King Charles I, preparing for a military expedition in France, had quartered his

troops in homes along the southern English coastline.5 Rioting resulted, and the

participants, both military and civilian, were tried and punished by commissioners

operating under the authority of martial law. Offended by this peacetime exercise of

military judicial authority over civilians, Parliament sought and was granted the

Petition of Right of 1628 which outlawed both quartering and martial law

commissions.6

5

For a more expansive examination, see Engdahl, Soldiers, Riots, and Revolution: The Law

and History of Military Troops in Civil Disorders 51 IOWA LAW REVIEW 1 (1971).

6

"And whereas also by the statute called `The Greater Charter of the liberties of

England,'[the Magna Carta] it is declared and enacted, that no freeman may be taken or

imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed

or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law

of the land. And in the eight-and-twentieth year of the reign of King Edward III, it was

declared and enacted by authority of parliament, that no man, of what estate or condition

that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor

disinherited, nor put to death without being brought to answer by due process of law. . . .

[N]everthess of late time divers commissions under your Majesty's great seal have issued

forth, by which certain persons have been assigned and appointed commissioners with

power and authority to proceed within the land, according to the justice of martial law,

against such soldiers or mariners, or other dissolute persons joining with them, as should

commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever,

and by such summary course and order as is agreeable to martial law, and as is used in

armies in time of war, to proceed to the trial and condemnation of such offenders, and them

to cause to be executed and put to death according to the law martial . . . . They do therefore

humbly pray your most excellent Majesty . . . that your Majesty would be pleased to remove

the said soldiers and mariners, and that your people may not be so burdened in time to come;

and that the aforesaid commissions, for proceeding by martial law, may be revoked and

annulled; and that hereafter no commissions of like nature may issue forth to any person or

persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's

subjects be destroyed or put to death contrary to the laws and franchise of the land. Petition

of Right, 3 Car.I, c.1, §§3, 4, 7, 10, reprinted in STUBBS, SELECT CHARTERS AND OTHER

ILLUSTRATIONS OF ENGLISH CONSTITUTIONAL HISTORY FROM THE EARLIEST TIMES TO THE

REIGN OF EDWARD THE FIRST 515-17 (8th ed. 1895); and in 5 STATUTES OF THE REALM 23,

24 (1993).

See also, HALE, HISTORY OF THE COMMON LAW OF ENGLAND 39-40 (2d ed.

1716)("But touching the business of martial law, these things are to be observed, First, That

in truth and reality it is not a law, but something indulged rather than allowed as a law; the

necessity of government, order and discipline in an army, is that only which can give those

laws a countenance. Secondly, This indulged law was only to extend to members of the

army, or to those of the opposite army, and never was so much indulged as intended to be

(executed or) exercised upon others; for others were not listed under the army, had no colour

of reason to be bound by military constitutions, applicable only to the army; whereof they

were not parts, but they were to be ordered and governed according to the laws to which

they were subject, though it were a time of war. Thirdly, That the exercise of martial law,

whereby any person should lose his life or member, or liberty, may not be permitted in time

of peace, when the King's courts are open for all persons to receive justice, according to the

laws of the land. This is the substance declared by Petition of Right, 3 Car. I. whereby such

commissions and martial law were repealed and declared to be contrary to law"); I

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 400 (1765)("For martial law,

which is build upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir

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When, in the following century, the British responded to colonial unrest by

quartering troops in Boston, the colonists saw it as a breach of this fundamental

promise of English law. Their circumstances, however, were not exactly identical

to those surrounding the Petition of Right. First, the question arose in the colonies.

England had stationed troops in the colonies to protect them against the French and

Indians and had opted for military governorships in other territories. Second, there

was no military usurpation of judicial functions. The colonists remained subject to

civil rather than military justice, and soldiers who employed more force than civilian

law permitted were themselves subject to civilian justice as the trials of the soldiers

involved in the Boston Massacre demonstrates.

On the other hand, the troops involved in the Boston Massacre were stationed

in Massachusetts not for protection against a marauding invader as they had been in

the French and Indian Wars, not to accomplish the transition between civil

governments within a conquered territory as they had been after the French lost

Canada to the British as a consequence of those conflicts, but as an independent

military force quartered among a disgruntled civilian population to police it.7

Matthew Hale observes, in truth and reality no law, but something indulged, rather than

allowed as a law; the necessity of order and discipline in an army is the only thing which can

give it countenance; and therefore it ought not to be permitted in time of peace, when the

king's courts are open for all persons to receive justice according to the laws of the land. .

. . And it is laid down, that if a lieutenant, or other, that hath commission of martial

authority, doth in time of peace hang or otherwise execute any one by colour of martial law,

this is murder; for it is against the magna carta. And the petition of right enacts, that no

soldier shall be quartered on the subject without his own consent; and that no commission

shall issue to proceed within this land according to martial law. And whereas, after the

restoration, king Charles the second kept up about five thousand regular troops, by his own

authority, for guards and garrisons; which king James the second by degrees increased to

no less than thirty thousand, all paid from his own civil list; it was made one of the articles

of the bill of rights, that the raising or keeping of a standing army within the kingdom in

time of peace, unless it be with the consent of the parliament, is against the law").

7

ZOBEL, THE BOSTON MASSACRE 135 (1987) ("The soldiers, one ought always to

remember, went into Boston not as an occupying army but rather as a force of uniformed

peace-keepers, or policemen. Their role as even the radicals conceived it was to assist the

executive and if necessary the courts to maintain order"); Engdahl, Soldiers, Riots, and

Revolution: The Law and History of Military Troops in Civil Disorders, 57 IOWA LAW

REVIEW 1,24-5 (1971) ("The last die was cast when two regiments of troops were quartered

in Boston at the end of the decade. Boston was a hotbed of colonial discontent. The

assemblage of military troops for control of possible disorders aggravated the discontent,

not only because it affronted the English tradition against domestic use of military troops,

but also because it was without warrant in the charter of Massachusetts Bay. The

unwelcome troops were frequently taunted and vilified, and the ultimate and inevitable

outrage soon occurred. A crowd of angry Bostonians . . . blocked the path of a detachment

of soldiers marching to their post. The soldiers made ready to force their passage, but were

ordered back to the main guard. . . . The crowd approached the main guard with angry and

opprobrious taunts. A sentinel struck one particularly bothersome boy with the butt of his

musket, and quickly a crowd converged on that spot throwing snowballs and rocks at the

sentinel along with verbal threats on his life. The sentinel loaded his musket and waved it

at the mob, a squad of soldiers were sent to his aid. The soldiers, soon joined by a colonel,

loaded their muskets as the crowd hooted and jeered and berated them and dared them to

shoot. They kept the crowd back a time with bayonets, but then suddenly fired. It was never

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In any event, the experience was sufficiently vexing that the Declaration of

Independence listed among our grievances against Great Britain that the King had

"kept among us, in times of peace, Standing Armies without the consent of our

legislatures," had "affected to render the Military independent of and superior to the

civil power," and had "quarter[ed] large bodies of armed troops among us . . .

protecting them, by a mock trial, from punishment for any murders which they should

commit on the inhabitants of these States."8

The Articles of Confederation addressed the threat of military intrusion into

civilian affairs by demanding that the armed forces assembled during peacetime be

no more numerous than absolutely necessary for the common defense, by entrusting

control to civil authorities within the states, and by a preference for the farmer in

arms as a member of the militia over the standing professional army.9

The Constitution continued these themes albeit with greater authority vested in

the federal government. It provided that a civilian, the President, should be the

Commander in Chief of the Army and Navy of the United States and that civilian

authorities, the Congress, should be solely empowered to raise and support Armies,

provide and maintain a Navy, and make rules for their government and regulation.10

The Bill of Rights limited the quartering of troops in private homes, U.S.Const.

made clear -- it never is --whether they had fired on their officer's order, or upon their own

compulsion. In any event, five Americans lay dead and several others seriously wounded.

. . . Members of a distrusted standing army, whose quartering was in violation of the Petition

of Right, and whose preparation to militarily suppress possible civil disorder was

inconsistent with the oldest of England's own traditions, had slain English civilians in a time

of peace").

8

This last charge presumably refers to the results of the murder trials of the officer and

soldiers involved in the Boston Massacre. Two of the soldiers were convicted of

manslaughter, branded on the hand and released; the officer and the other soldiers were

acquitted. ZOBEL, THE BOSTON MASSACRE 241-94 (1987).

9

E.g., "No vessels of war shall be kept up in time of peace by any State, except such

number only, as shall be deemed necessary by the United States in Congress assembled, for

the defence of such State, or its trade; nor shall any body of forces be kept up by any State,

in time of peace, except such number only, as in the judgment of the United States, in

Congress assembled, shall be deemed requisite to garrison the forts necessary for the

defence of such State; but every State shall always keep a well regulated and disciplined

militia, sufficiently armed and accoutered, and shall provide and constantly have ready for

public use, in public stores, a due number of field pieces and tents, and a proper quantity of

arms, ammunition and camp equipage . . . . When land-forces are raised by any State for the

common defence, all officers of or under the rank of colonel, shall be appointed by the

Legislature of each State respectively by whom such forces shall be raised, or in such

manner as such State shall direct, and all vacancies shall be filled up by the State which first

made the appointment. . . . The United States in Congress assembled shall never . . . appoint

a commander in chief of the army or navy, unless nine States assent to the same. . . ." Arts.

of Conf. VI, VII, & IX.

10

U.S.Const. Art.II, §2; Art.I, §8, cls.12, 13, 14. The Constitution treats the militia

similarly. The President is the Commander in Chief of the militia while it is in federal

service, and Congress is empowered to approve its organization, arms and discipline,

U.S.Const. Art.II, §2; Art.I, §8, cl.15.

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Amend. III, and noted that "a well regulated Militia, being necessary to the security

of a free State, the right of the people to keep and bear Arms, shall not be infringed,"

U.S.Const. Amend. II. The Constitution, on the other hand, explicitly permitted the

Congress to provide for calling out the militia to execute the laws, suppress

insurrection, and repel invasion, U.S.Const. Art.I, §8, cl.16.

Soon after Congress was first assembled under the Constitution, it authorized

the President to call out the militia, initially to protect the frontier against "hostile

incursions of the Indians," and subsequently in cases of invasion, insurrection, or

obstruction of the laws.11

Washington used this authority to put down the Whiskey Rebellion in Western

Pennsylvania12 and subsequent Presidents have relied upon it with some frequency

for riot control or when in extreme cases they felt it necessary to ensure the execution

of federal law.13

11

1 Stat. 96 (1789); 1 Stat. 264 (1792). The Constitutional and statutory authority to use

military force in case on insurrection seems to have been in direct response to a perceived

weakness in government under the Articles of Confederation. In 1787, a group farmers in

western Massachusetts, lead by a Revolutionary War veteran named Daniel Shays and

feeling oppressed by tax and creditor protection policies within the Commonwealth, had

harassed the state courts and constabulary, and had attempted to storm the federal arsenal

at Springfield before being repulsed by the militia. Some saw in the insurrection evidence

of the need for a stronger central government and implicitly that domestic tranquility might

be more readily ensured if backed by centralized military capable. I MORISON, COMMAGER,

& LEUCHTENBURG, THE GROWTH OF THE AMERICAN REPUBLIC 242 (7th ed.

1980)("Nevertheless, Shays's Rebellion had a great influence on public opinion. . . . When

Massachusetts appealed to the Confederation for help, Congress was unable to do a thing.

That was the final argument to sway many Americans in favor of a stronger federal

government"); COLLIER & COLLIER, DECISION IN PHILADELPHIA: THE CONSTITUTIONAL

CONVENTION OF 1787 13 (1986)("To men like Madison and Washington, Shays's Rebellion

was an imperative. It hung like a shadow over the old Congress, and gave both impetus and

urgency to the Constitutional Convention. It was the final, irrefutable piece of evidence that

something had good badly wrong. For some time these men had known that the deficiencies

of the American government must be remedied. Shays' Rebellion made it clear to them that

it must be done now"). BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE

CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787 10 (1966) ("Shays's Rebellion

had been in the public mind when Congress, after debating the Annapolis report, had voted

in favor of a convention in Philadelphia").

12

See Presidential Proclamations of Aug. 7, 1794 and Sept. 25, 1794, I RICHARDSON, A

COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 158-62 (1896);

SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN

REVOLUTION (1986); BOYD, THE WHISKEY REBELLION: PAST AND PRESENT PERSPECTIVES

(1985).

13

Eighteenth and nineteenth century instances are collected, along with related

proclamations and other documentation, in Federal Aid in Domestic Disturbances: 17871903, S.DOC.NO. 209, 57th Cong., 2d Sess. (1903); for a more selective treatment but one

which extends well into this century, see, RICH, PRESIDENTS AND CIVIL DISORDER (1941).

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The President's authority to call upon the state militia to aid in putting down

insurrections is reminiscent of the authority enjoyed by the sheriff at common law to

call upon the posse comitatus.14 In the beginning the two were comparable but

unrelated. Even though Congress empowered the President to call out the militia to

overcome obstructions to law enforcement, it continued to vest the federal equivalent

of the sheriff, the federal marshal, with the power to call forth the posse comitatus

in performance of his duties.15

In some cases when it passed a particular statute Congress specifically

authorized recourse to the posse comitatus for its enforcement. Under the Fugitive

Slave Act, for instance, owners whose slaves had escaped to another state were

entitled to an arrest warrant for the slaves and to have the warrant executed by the

federal marshals. The marshals in turn might "summon and call to their aid the

bystanders, or posse comitatus of the proper county . . . [and] all good citizens [were]

commanded to aid and assist in the prompt and efficient execution of this law,

whenever their services may be required, as aforesaid, for that purpose," 9 Stat. 462,

463 (1850).

In June of 1851, a federal marshal in Chicago arrested a fugitive slave on a

warrant issued under the Act. He called for the assistance of members of the police

force and of the state militia to prevent abolitionists from rescuing the prisoner before

he could be returned to his owner. The marshal subsequently filed a claim with the

Treasury of the United States for reimbursement of the funds he had paid the

members of the police force and the militia who responded to his call. Attorney

General Caleb Cushing was asked whether the United States was obligated to honor

the claim.

14

At common law, the sheriff of every county was obligated "to defend his county against

any of the king's enemies when they come into the land; and for this purpose, as well as for

keeping the peace and pursuing felons, he may command all the people of his county to

attend him; which is call the posse comitatus, or power of the county; which summons every

person above fifteen years old, and under the degree of a peer, is bound to attend upon

warning, under pain of fine and imprisonment." I BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND, 332 (1765).

The Latin phrase literally means attendants with the capacity to act from the words

comes and posse meaning companions or attendants (comes) and to be able or capable

(posse). Among the Romans comitatus referred to one who accompanied the proconsul to

his province. Later, comes (sometimes referred to as comites or counts) meant the king's

companions or his most trusted attendants and comitatus came to refer to the districts or

counties entrusted to their care. BOUVIER'S LAW DICTIONARY AND CONCISE ENCYCLOPEDIA

529, 2635 (1914).

15

E.g., 1 Stat. 87 (1789)("a marshal shall be appointed in and for each district . . . whose

duty it shall be . . . to execute throughout the district, all lawful precepts directed to him, and

issued under the authority of the United States, and he shall have the power to command all

necessary assistance in the execution of his duty. . . ."); 1 Stat. 265 (1792)("the marshals of

the several districts and their deputies shall have the same powers in executing the laws of

the United States, as sheriffs and their deputies in the several states have by law, in

executing the laws of their respective states").

CRS-8

Cushing's response went well beyond the question of whether the "bystanders"

contemplated by the Fugitive Slave Act might included members of a state militia

when not in federal service, and announced a broader principle -- members of the

military by virtue of their duties as citizens were part of the posse comitatus. He

declared:

"The posse comitatus comprises every person in the district or county

above the age of fifteen years, whatever may be their occupation, whether

civilians or not; and including the military of all denominations, militia,

soldiers, marines, all of whom are alike bound to obey the commands of the

sheriff or marshal. The fact that they are organized as military bodies, under the

immediate command of their own officers, does not in any wise affect their

legal character. They are still the posse comitatus. (xxi Parl. Hist., p.672, 688,

per Lord Mansfield)." 6 Op.Att'y Gen. 466, 473 (1854).16

16

Cushing's citation to Lord Mansfield is apparently a reference to the remarks of the

English Chief Justice during debate in the House of Lords concerning the validity of use

troops to quell rioters in London: "The Duke of Richmond began with observing, that he

was much pleased with the speech he heard that day from the throne. . . . He hoped, before

he should agree to the Address, that ministers would give him satisfaction in another point:

he meant in the continuing on foot of a military government. . . . Lord Mansfield for some

time argued [several points]. . . after which his lordship went on: `. . . .[I]t appears most

clearly to me, that every man may legally interfere to suppress a riot, much more to prevent

acts of felony, treason, and rebellion, in his private capacity, but he is bound to do it as an

act of duty; and if called upon by a magistrate, is punishable in case of refusal. . . . A private

man, if he sees a person committing an unlawful act, more particularly an act amounting to

a violent breach of the peace, felony, or treason, may apprehend the offender, and in his

attempt to apprehend him may use force to compel him, not to submit to him, but to the law.

What a private man may do, a magistrate or peace officer may clearly undertake; and

according to the necessity of the case, arising from the danger to be apprehended, any

number of men assembled or called together for the purpose are justified to perform. This

doctrine I take to be clear and indisputable, with all the possible consequences which can

flow from it, and to be the true foundation for calling in of the military power to assist in

quelling the late riots.

"The persons who assisted in the suppression of those riots and tumults, in

contemplation of law, are to be considered as mere private individuals, acting according to

law, and upon any abuse of the legal power with which they are invested, are amendable to

the laws of their country. For instance, supposing a soldier, or any other military person,

who acted in the course of the late riots, had exceeded the powers with which he was

invested, I have not a single doubt but he is liable to be tried and punished, not by martial

law, but by the common and statute law of the realm; consequently, the false idea that we

are living under a military government or that the military have any more power or other

power, since the commencement of the riots, is the point which I rose to refute, and on that

ground to remove those idle and ill-founded apprehensions, that any part of the laws or the

constitution are either suspended or have been dispensed with. . . . On the whole, my lords,

while I deprecate and sincerely lament the cause which rendered it indispensably necessary

to call out the military to assist in the suppression of the late disturbances, I am clearly of

the opinion, that no steps have been taken which were not strictly legal, as well as fully

justifiable in point of policy. . . . The military have been called in, and very wisely called

in, not as soldiers, but as citizens: no matter whether their coats be red or brown, they have

been called in aid of the laws, not to subvert them, or overturn the constitution, but to

preserve both." XXI HANSARD, THE PARLIAMENTARY HISTORY OF ENGLAND FROM THE

CRS-9

Two years later, Cushing's opinion supplied the justification for the use of

federal troops at the call of civil law enforcement authorities in what some saw as

partisan involvement in the conflict between pro and anti-slavery forces in Kansas.

Congress reacted with a rider to an Army appropriations bill forbidding the use of

any "part of the military forces of the United States to enforce territorial law in

Kansas."17 After some discussion of whether the amendment was germane, it was

defeated.

Following the Civil War, the use of federal troops to execute the laws,

particularly in the states that had been part of the Confederacy, continued even after

all other political restrictions had been lifted. By 1877, there was evidence that

Republican state governments in more than one southern state owed their continued

political existence to the presence of the military and that the activities of federal

troops may have influenced the outcome of the Hayes-Tilden presidential election.18

EARLIEST PERIOD TO THE YEAR 1803, 690-98 (June 19, 1780).

Cushing seemed to turn Lord Mansfield's point on its head when he wrote that, "the

fact that they are organized as military bodies, under the immediate command of their own

officers, does not in any wise affect their legal character." English law prohibited martial

law, the use of military force domestically, in peacetime England. Lord Mansfield justified

an apparent breach of the martial law proscription by asserting that the soldiers had acted

as individuals called, commanded, and governed exclusively by the dictates of law

applicable to civilians. Civilians are not organized as military units and are not subject to

the command of military officers. Military law governs such matters. Lord Mansfield's

justification could only hold as long as the soldiers were not organized as military bodies

and were not acting under the command of their officers. The fact that they were organized

as military bodies, under the immediate command of their own officers, would determine

their legal character; it was in fact the critical determinant of their legal character.

17

"But Congress hereby disapproving the code of alleged laws officially communicated

to them by the President, and which are represented to have been enacted by a body claiming

to be the Territorial Legislature of Kansas; and also disapproving of the manner in which

said alleged laws have been enforced by the authorities of said Territory, expressly declare

that, until those alleged laws shall have been affirmed by the Senate and House of

Representatives as having been enacted by a legal Legislature, chosen in conformity with

the organic law, by the people of Kansas, no part of the military force of the United States

shall be employed in aid of their enforcement, nor shall any citizen of Kansas be required,

under those provisions to act as a part of the posse comitatus of any officer acting as a

marshal or sheriff in said Territory." Cong.Globe 34th Cong., 1st & 2d Sess. 1813 (1856).

18

Members of the two political parties understandably disagreed as to whether the presence

of federal troops in the South tainted or insured the integrity of the political process;

compare, "[O]ur Army, degraded from its high position of the defenders of the country from

foreign and domestic foes, has been used as a police; has taken possession of polls and

controlled elections; has been sent with fixed bayonets into the halls of State Legislatures

in time of peace and under the pretense of threatened outbreak; has been placed under the

control of subordinate State officials, and, under the instructions of the Attorney General,

has been notified to obey the orders of deputy United States marshals, `general and special,'

appointed in swarms to do dirty work in a presidential campaign," 5 Cong.Rec. 2117

(remarks of Rep. Banning), with, "Nor do I think, sir, that the use of troops in the States

recently in rebellion was uncalled for or inconsistent with the spirit of republican liberty.

If they were recalled before every man, white and black, was safe -- safe and truly free, with

all his civil rights in their fullest extent -- they were recalled too soon." 7 Cong.Rec. 3616

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The House of Representatives, controlled by a Democratic majority, passed an

Army appropriation bill which expressly prohibited use of the Army to shore up

Republican state governments in the South, or more precisely, to shore up either side

of the political dispute in Louisiana or anywhere else.19 The Senate, controlled by a

Republican majority, refused to accept the provision. No compromise could be

reached, and the session ended without passage of an Army appropriation bill.

Money to pay the Army was subsequently appropriated in a special session,20 without

reference to restrictions on use of the Army.21 But when the issue of Army

appropriations next arose, the House included a posse comitatus section.22 The

Senate accepted the House version with minor amendments.23

(remarks of Rep. Philips).

19

Section 5 of H.R. 4691, as passed by the House, provided, "That no part of the money

appropriated by this act, nor any money heretofore appropriated, shall be applied to the pay,

subsistence, or transportation of troops used, employed, or to be used or employed, in

support of the claim of Francis T. Nicholls or S.B. Packard to be governor the State of

Louisiana. Nor shall any of said money be applied in support of the claim of the two bodies

claiming to be the Legislature of said State, presided over respectively by L.A. Wiltz and

Louis Bush; nor of the two bodies claiming to be the Legislature of said State, presided over

respectively by C.C. Antonie and Michael Hahn; nor in support of the claim of Thomas C.

Manning and associates to be the supreme court of said State; nor in support of the claim

of John T. Ludeling and associates to the supreme court of said State; nor in the aid of the

execution of any process in the hands of the United States marshal in said State issued in aid

of and for the support of any such claims. Nor shall the Army, or any portion of it, be used

in support of the claims, or pretended claim or claims, of any State government, or officer

thereof, in any State, until the same shall have been duly recognized by Congress. Any

person offending against any of the provisions of this act shall be guilty of a misdemeanor,

and, upon conviction thereof, shall be imprisoned at hard labor for not less than five years

or more than ten years," 5 Cong.Rec. 2119 (1877).

20

See Presidential Proclamation of May 5, 1877, 20 Stat. 803 (1877), calling Congress into

session.

21

The bill contained no posse comitatus provisions because the President had withdrawn

federal troops from Louisiana and South Carolina and because of concern over disturbances

on the Mexican border and over Indian uprisings, 6 Cong.Rec. 287 (remarks of Rep. Atkins)

(1877).

22

"From and after the passage of this act it shall not be lawful to employ any part of the

Army of the United States as a posse comitatus or otherwise under the pretext or for the

purpose of executing the laws, except in such cases and under such circumstances as such

employment of said forces may be expressly authorized by act of Congress; and no money

appropriated by this act shall be used to pay any of the expenses incurred in the employment

of any troops in violation of this section; and any person violating the provisions of the this

section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be

punished by a fine not exceeding $10,000 or imprisonment not exceeding two years, or both

such fine and imprisonment," 7 Cong.Rec. 3845 (1878).

23

The "pretext" language was stricken because it was thought to be "in the nature of a

reflection upon the past administration of the Government," 7 Cong.Rec. 4648 (remarks of

Sen. Sargent); instances of express Constitutional authority were added to the statutory

exception, although then as now the precise effect of this change was a matter of dispute;

the penalty was applicable only to willful violations although a Senate requirement that the

penalty be restricted to willful and knowing violations was not accepted. Id.

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The Posse Comitatus Act has remained essentially unchanged ever since,24

although Congress has authorized a substantial number of exceptions and has

buttressed the Act with an additional proscription against use of the armed forces to

make arrests or conduct searches and seizures.25

Constitutional Considerations

The Posse Comitatus Act raises at least three constitutional questions. (1) To

what extent does the Posse Comitatus Act track constitutional requirements, beyond

the power of the President or Congress to adjust or ignore? (2) To what extent do the

powers which the Constitution vests in the President limit the power of Congress to

enact the Posse Comitatus Act or any other provision restricting the President's

discretion to involve the armed forces in civilian affairs? (3) What specifically are

the military law enforcement activities "expressly authorized in the Constitution" for

purposes of the Act?

Constitutional Origins

Lord Coke and his colleagues, in crafting the Petition of Right of 1628, found

within that chapter of the Magna Carta and subsequent explanatory statutes which are

24

For some time the Act was contained in title 10 of the United States Code and Alaska,

while a territory was exempted, 10 U.S.C. 15 (1940 ed.). When title 10 was recodified and

the section transferred tot title 18, the Air Force which had been covered while it was part

of the Army was expressly added to the Act, 70A Stat. 626 (1956).

Over the years, Congress has adjusted the impact of the Posse Comitatus Act by

enlarging the number of statutes which expressly authorize the use of the Army or Air Force

to execute the law. These are sometimes referred to as "amendments" to the Posse

Comitatus Act. Since they do not change language of the Act itself, it seems to more

accurate to characterize them as expansions of authority under the statutory exception to the

Posse Comitatus Act rather than as amendments or changes in the Act itself.

25

"The Secretary of Defense shall prescribe such regulations as may be necessary to ensure

that any activity (including the provision of any equipment or facility or the assignment or

detail of any personnel) under this chapter [10 U.S.C. 371-381] does not include or permit

direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search,

seizure, arrest, or other similar activity unless participation in such activity by such member

is otherwise authorized by law." 10 U.S.C. 375.

Soon after the enactment of section 375, the Secretary of Defense promulgated such

regulations which, subject to designated exceptions, prohibited: "(i) Interdiction of a vehicle,

vessel, aircraft or other similar activity. (ii) A search or seizure, (iii) An arrest, stop and

frisk, or similar activity. (iv) Use of military personnel for surveillance or pursuit of

individuals, or as informants, undercover agents, investigators, or interrogators." 32 CFR

213(10)(a)(3), 47 Fed.Reg. 14899, 14902 (April 7, 1982). Some years later the regulations

were removed, 53 Fed.Reg. 23776 (April 28, 1993) ("The Department of Defense hereby

removes 32 CFR part 213 concerning DoD Cooperation with Civil and Law Enforcement

Officials, part 372a . . . and part 390a . . . . These parts have served the purpose for which

they were intended and are no longer valid").

Department of Defense Directive 5525.5, however, which with its enclosures replicates

much of former 32 CFR part 213, remains in effect.

CRS-12

the antecedents of our constitutional due process clauses a prohibition against martial

law -- a proscription which in times of peace would not abide either the quartering

of troops among civilians or any form of martial law, be it imposed by tribunal or

more summarily dispatched by soldiers controlling or punishing civilians.

The Declaration of Independence lists the imposition of martial law upon us

among those affronts to fundamental liberties which irrevocably ruptured our

political ties to Great Britain.

Finally, it possible to see in the Second, Third, and Fifth Amendments, with

their promises of a civilian militia, of freedom from the quartering of troops among

us, and of the benefits of due process, the visible protrusions of a larger, submerged

constitutional principle which bars the use of the armed forces to solve civilian

inconveniences.

This view is not without judicial support. The courts have demonstrated a rather

long standing reluctance to recognize the authority of military tribunals over

civilians.26 And members of the Supreme Court seem to acknowledge possible

components of a larger principle in both Youngstown Sheet and Tube Co. v. Sawyer,

26

Ex parte Milligan, 71 U.S. (4 Wall.) 3, 123-25 (1866); Toth v. Quarles, 350 U.S. 11

(1955); Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Singleton, 361 U.S. 234 (1960);

Grisham v. Hagan, 361 U.S. 278 (1960); McElroy V. Guagliardo, 361 U.S. 281 (1960);

O'Callahan v. Parker, 395 U.S. 258 (1969); but see, Solorio v. United States, 483 U.S. 435

(1987), holding that the jurisdiction of military tribunals depends upon whether the accused

was a member of the armed forces at the time of alleged misconduct and contrary to

O'Callahan not whether the crime was "service connected."

CRS-13

343 U.S. 579 (1952)27 and Laird v. Tatum, 408 U.S. 1 (1972).28

But if a larger anti-martial law principle lies beneath constitutional sands, visible

only in these amendments and the spirit of the Posse Comitatus Act, it has remained

remarkably dormant. Those regions from which it might have been expected to

emerge have been characterized most by inactivity. The boundaries of the Third

Amendment are virtually uncharted.29 The outreaches of the Second Amendment are

27

"Article II, Section 2 make the Chief Executive the Commander in Chief of the Army

and Navy. But our history and tradition rebel at the thought that the grant of military power

carries with it authority over civilian affairs," 343 U.S. at 632 (Douglas, J., concurring).

"Time out of mind, and even now in many parts of the world, a military commander

can seize private housing to shelter his troops. Not so, however, in the United States, for

the Third Amendment says, `No Soldier shall, in time of peace be quartered in any house,

without the consent of the Owner, nor in time of war, but in a manner to be prescribed by

law.' Thus, even in war time, his seizure of needed military housing must be authorized by

Congress. It also was expressly left to Congress to `provide for calling forth the Militia to

execute the laws of the Union, suppress Insurrections and repel Invasions . . . ." Such a

limitation on the command power, written at a time when the militia rather than a standing

army was contemplated as the military weapon of the Republic, underscores the

Constitution's policy that Congress, not the Executive, should control utilization of the war

power as an instrument of domestic policy. Congress, fulfilling that function, has authorized

the President to use the army to enforce certain civil rights. On the other hand, Congress has

forbidden him to use the army for the purpose executing general laws except when expressly

authorized by the Constitution or Act of Congress," 343 U.S. at 644-45 (Jackson, J.,

concurring)(emphasis in the original).

In Youngstown, the Court held that, when Congress had specifically refused to grant

such authority by statute, the President's constitutional and statutory powers as President and

Commander in Chief were not sufficient to support an executive order authorizing the

Secretary of Commerce use the resources of the federal government, including its armed

forces, to seize and operate the country's steel mills which were then threaten by a nationwide strike.

28

"The concerns of the Executive and Legislative Branches in response to disclosure of the

Army surveillance activities -- and indeed the claims alleged in the complaint -- reflect a

traditional and strong resistance of Americans to any military intrusion into civilian affairs.

That tradition has deep roots in our history and found early expression, for example, in the

Third Amendment's explicit prohibition against quartering soldiers in private homes without

consent and in the constitutional provisions for civilian control of the military. Those

prohibitions are not directly presented by this case, but their philosophical underpinnings

explain our traditional insistence on limitations on military operations in peacetime," 408

U.S. at 15-6.

In Laird v. Tatum, the Court refused to order the military to stop collecting information

about civilians unless the civilians could show how they had been hurt by the what the

military was doing. (More precisely the Court held that, in the absence of any showing of

specific harm or the realistic threat of specific harm, a claim, that the data gathering

activities of the military services had been conduct so as to chill the First Amendment rights

of the targets of those intelligence collection efforts, was nonjusticiable).

29

See, Bell, The Third Amendment, Forgotten But Not Gone, 2 WILLIAM & MARY BILL OF

RIGHTS JOURNAL 117 (1993); Fields & Hardy, The Third Amendment and the Issue of the

Maintenance of Standing Armies: A Legal History, 35 AMERICAN JOURNAL OF LEGAL

HISTORY 393 (1991); Fields, The Third Amendment: Constitutional Protection From the

Involuntary Quartering of Soldiers, 124 MILITARY LAW REVIEW 195 (1989). In one of the

CRS-14

only slightly more visible.30 Even in the inviting context of the Posse Comitatus Act,

the courts have generally avoided excursions into areas of its possible constitutional

underpinnings.31

Without more judicial guidance, it would appear that traditional reservations

about military involvement in the execution of civilian law can only clearly be said

to rise to the level of constitutional imperative when they take a form which offends

some more explicit constitutional prohibition or guarantee such as the right to jury

trial, to grand jury indictment, or to freedom from unreasonable searches and

seizures.32 Consequently, beyond those specific constitutional provisions, Congress'

constitutional authority to enact and adjust the provisions of the Posse Comitatus Act

is largely a matter of the coordination of Congressional and Presidential powers.

Presidential v. Congressional Powers

The case of conflicting Congressional and Presidential powers is easily stated

if not easily resolved. On one hand, the Constitution requires the President to take

care to see that the laws are faithfully executed, and designates him as Chief

Executive and Commander in Chief of the armed forces.33 In this dual capacity, the

Presidency is the repository of both extensive responsibilities and broad prerogatives,

few reported Third Amendment cases, striking state correctional officers brought a civil

rights action against state authorities who had used the officers' prison facility resident

quarters to house replacement national guard troops. The district court dismissed, Engblom

v. Carey, 522 F.Supp. 57 (S.D.N.Y. 1981), the Court of Appeals reversed on the ground that

it could not hold as a matter of law that the officers had no Third Amendment possession

interest in the resident quarters, 677 F.2d 957 (2d Cir. 1982). On remand the district court

dismissed based on the qualified immunity of the defendant state officials in light of the

uncertainty of the light with respect to Third Amendment questions, 572 F.Supp. 44

(S.D.N.Y. 1983), aff'd, 724 F.2d 28 (2d Cir. 1983). The implications of the case prior to

remand are discussed in The Third Amendment's Protection Against Unwanted Military

Intrusion, 49 BROOKLYN LAW REVIEW 857 (1983).

30

United States v. Miller, 307 U.S. 174 (1939). The academic commentary is considerably

more extensive and reflects a considerably greater divergence of views than is the case of

the Third Amendment, see Van Alstyne, The Second Amendment and the Personal Right to

Bear Arms, 43 DUKE LAW JOURNAL 1236 (1994); Herz, Gun Crazy: Constitutional False

Consciousness and Dereliction of Dialogic Responsibility, 75 BOSTON UNIVERSITY LAW

REVIEW 57 (1995) and the sources cited therein.

31

E.g., United States v. Walden, 490 F.2d 372, 376 (4th Cir. 1974)("we do not find it

necessary to interpret relatively unexplored sections of the Constitution in order to

determine whether there might be constitutional objection to the use of the military to

enforce civilian laws").

32

See, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 AMERICAN

CRIMINAL LAW REVIEW 703, 712-13 (1976).

33

U.S. Const. Art.II, §1 ("[t]he executive Power shall be vested in a President of the

United States of America. . .), §2 ("[t]he President shall be Commander in Chief of the

Army and Navy of the United States, and of the Militia of the several States, when called

into actual Service of the United States. . .), §3 (". . . he [(the President)] shall take Care that

the Laws be faithfully executed . . . ").

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not the least of which flow from Article IV, section 4 of the Constitution which

guarantees the states a republican form of government and protection against

invasion and domestic violence.34

The Supreme Court has made it clear that the President is not dependent upon

express Constitutional or statutory authorization for the exercise of his powers.

Thus, he may meet an emergency by appointing a marshal to protect a threatened

Supreme Court justice, although no statute expressly authorized appointment for such

purposes, In re Neagle, 135 U.S. 1, 62-4 (1890). He must resist invasion by an

enemy with force though Congress has yet to declare war, The Prize Cases, 67 U.S.(2

Black) 635, 668 (1863). And when an emergency arises threatening the freedom of

interstate commerce, transportation of the mails, or some other responsibility

entrusted to the federal government, he may call upon "the army of the Nation, and

all its militia . . . to brush away the obstructions," In re Debs, 158 U.S. 364, 381

(1895).

Some commentators feel that this implied or incidental constitutional authority

to use the armed forces not only exists in the absence of Congressional direction, but

is immune from Congressional direction or limitation.35

On the other hand, Congress shares constitutional power over the laws and

armed forces with the President. The Constitution gives Congress the power to make

the laws whose faithful execution the President must take care to observe and which

carry into execution Congress' own powers and those of the President, U.S.Const.

Art.I, §8, cl.18; it likewise vests Congress with the power to establish, maintain and

regulate the armed forces, U.S.Const. Art.I, §8, cls.12, 13, & 14; and with the power

to describe the circumstances under which the militia may be called into federal

service, U.S. Const. Art.I, §8, cls.15 & 16.

The Supreme Court has shed some light on the coordination of Presidential and

Congressional powers concerning use of the military to enforce civilian law. The

Court has pointed out that the President's power under the guarantee clause of Article

IV, section 4, which guarantees the states protection against domestic violence, is

only provisionally effective until such time as Congress acts, Texas v. White, 74

U.S.(7 Wall.) 700 (1869). And the President may not always use the armed forces

to met a domestic emergency when Congress has previously resisted an invitation to

sanction their employment.36 Finally, even when Congress has disclaimed any intent

34

"The United States shall guarantee to every State in this Union, a Republican Form of

Government, and shall protect each of them against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature cannot be convened) against domestic

Violence," U.S. Const. Art.IV, §4.

35

E.g., Lorence, The Constitutionality of the Posse Comitatus Act, 8 UNIVERSITY OF

KANSAS CITY LAW REVIEW 164, 185-91 (1940); Furman, Restrictions Upon Use of the Army

Imposed by the Posse Comitatus Act, 7 MILITARY LAW REVIEW 85, 91-2 (1960); CORWIN,

THE PRESIDENT: OFFICE AND POWERS, 1787-1984, 152-61 (5th ed. 1984).

36

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown

President Truman attempted to invoke his powers as Commander in Chief and Chief

Executive to seize and operate most of the Nation's steel mills during the Korean conflict

CRS-16

to limit the exercise of the President's constitutional powers, the President's inherent

and incidental powers will not always trump conflicting, constitutionally grounded

claims.37

When the Act Does Not Apply

There is no violation of the Posse Comitatus Act when (1) the Constitution

expressly authorizes use of part of the Army or Air Force as a posse comitatus or

otherwise to execute the law; (2) when an act of Congress expressly authorizes use

of part of the Army or Air Force as a posse comitatus or otherwise to execute the law;

(3) when the activity in question does not involve use of part of the armed forces

covered by the proscription; and (4) when the activity in question is does not

constitute "execution of the law."

Constitutional Exceptions

The Posse Comitatus Act does not apply "in cases and under circumstances

expressly authorized by the Constitution," 18 U.S.C. 1385.38 It has been said that the

Constitution contains no provision expressly authorizing the use of the military to

when it appeared they might be shut down by a labor dispute. Congress had earlier

specifically refused to grant the President such power legislatively.

37

United States v. United States District Court, 407 U.S. 297 (1972). Congress had

established a warrant procedure to be used by law enforcement officials to permit

wiretapping in criminal cases. In doing so, it expressly disclaimed any intent to "limit the

constitutional power of the President to take such measures as he deems necessary to protect

the Nation against actual or potential attack or other hostile acts of a foreign power, to

obtain foreign intelligence information deemed essential to the security of the United States,

or to protect national security information against foreign intelligence activities [or] to take

such measures as he deems necessary to protect the United States against the overthrow of

the Government by force or other unlawful means, or against any clear and present danger

to the structure or existence of the Government," 18 U.S.C. 2511(3)(1970 ed.). Even in the

absence of Congressionally asserted counter authority, a unanimous Court declined to accept

the argument that President's inherent and incidental constitutional powers permitted a

failure to comply with the Fourth Amendment's warrant requirements when gathering

intelligence concerning purely domestic threats to national security.

38

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. 18 U.S.C. 1385 (emphasis added).

CRS-17

execute the law,39 that it was included as part of a face-saving compromise, and that

consequently it should be ignored.40

When the phrase was added originally those who opposed the Posse Comitatus

Act believed that the Constitution vested implied and/or inherent powers upon the

President to use the armed forces to execute the laws; those who urged its passage

believed the President possessed no such powers. As initially passed by the House,

the bill contained no constitutional exception.41 The Senate version contained an

exception for instances authorized by the Constitution whether expressed or

otherwise.42 The managers of each House described the compromise reached at

39

H.R.Rep.No.97-71, at 6 n.3, reprinted 1981 UNITED STATES CODE, CONGRESSIONAL AND

ADMINISTRATIVE NEWS at 1789 n.3 ("The statute permits Constitutional exceptions.

However, there are none"); LIEBER, THE USE OF THE ARMY IN AID OF THE CIVIL POWER 17

(1898); The Navy's Role in Interdicting Narcotics Traffic: War on Drugs or Ambush of the

Constitution? 75 GEORGETOWN LAW JOURNAL 1947, 1951 (1987); Don't Call Out the

Marines: An Assessment of the Posse Comitatus Act, 13 TEXAS TECH LAW REVIEW 1467,

1486 (1982); The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13

AMERICAN CRIMINAL LAW REVIEW 703, 712 (1976).

The Constitution does empower Congress "to provide for calling forth the Militia to

execute the laws of the Union, suppress insurrections and repel invasions," U.S.Const. Art.I,

§8, cl.16; but since this express grant of authority can only be activated by an Act of

Congress it adds nothing to the "act of Congress" exception also included within the Posse

Comitatus Act.

40

"The Act also provides that the Army and Air Force can be used on the basis of an

express constitutional authorization. This language reflects a compromise reached in the

debate over the Act. It is a meaningless proviso since the Constitution does not expressly

authorize such a use of troops.

"In any event, if the Constitution provided the President with authority over a purely

executive function, Congress could not disable the President from acting on the basis of it,

whether the authorization was express or implied. But since the Constitution provides

Congress with the power to control military intervention in domestic affairs, the President's

actions can be limited to the express terms of a statutory authorization," Honored in the

Breech: Presidential Authority to Execute the Laws with Military Force, 83 YALE LAW

JOURNAL 130, 143-44 (1973); see also, The Posse Comitatus Act: Reconstruction Politics

Reconsidered, 13 AMERICAN CRIMINAL LAW REVIEW 703, 712-13 (1976).

41

"From and after the passage of this act it shall not be lawful to employ any part of the

army of the United Sates as a posse comitatus or otherwise under the pretext or for the

purpose of executing the laws, except in such cases and under such circumstances as such

employment of said force may be expressly authorized by act of Congress; and no money

appropriated by this act shall be used to pay any of the expenses incurred in the employment

of any troops in violation of this section; and any person violating the provisions of this

section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be

punished by a fine of not exceeding $10,000 or imprisoned not exceeding two years, or by

both such fine and imprisonment," 7 Cong.Rec. 3877 (1878)(emphasis added).

42

"From and after the passage of this act it shall not be lawful to employ any part of the

army of the United Sates as a posse comitatus or otherwise for the purpose of executing the

laws, except in such cases and under such circumstances as such employment of said force

may be authorized by the Constitution or by act of Congress; and no money appropriated

by this act shall be used to pay any of the expenses incurred in the employment of any troops

in violation of this section," 7 Cong.Rec. 4303-304 (1878)(emphasis added).

CRS-18

conference and subsequently enacted as upholding the position of their respective

bodies on the issue.43

The older commentaries suggest that the word "expressly" must be ignored, for

otherwise in their view the Posse Comitatus Act is a constitutionally impermissible

effort to limit the powers of the President.44 The regulations covering the use of the

43

"But these [compromises on other differences in the Army appropriation bill] are all

minor points and insignificant questions compared with the great principle which was

incorporated by the House in the bill in reference to the use of the Army in time of peace.

The Senate had already conceded what they called and what we might accept as principle;

but they had stricken out the penalty and had stricken out the word `expressly,' so that the

Army might be used in all cases where implied authority might be inferred. The House

committee planted themselves firmly upon the doctrine that rather than yield this

fundamental principle, for which for three years this House had struggled, they would all

the bill to fail -- notwithstanding the reforms which we had secured; regarding these reforms

as of but little consequence alongside the great principle in all its length and breadth,

including the penalty which the Senate had stricken out. We bring you back, therefore, a

report with the alteration of a single word, which the lawyers assure me is proper to be

made, restoring to this bill the principle for which we have contended so long, and which

is so vital to secure the rights and liberties of the people," 7 Cong.Rec. 4686 (1878 (remarks

of Rep. Hewitt).

"With reference to the provisions of the bill inserted by the House prohibiting the use

of the Army, which is section 29, Senators will remember that it was amended in the senate

so as to strike out in lines 3 and 4 the words `under the pretext or,' in the sixth line the word

`expressly' was stricken out, and in the seventh line the words `the Constitution or by' were

inserted, so as to read `by the Constitution or by act of congress,' and the penalty was

stricken form the bill. We found considerable difficult in agreeing upon this section, but the

modification which the Senate had made in it made it possible to come to an understanding.

I should like to say here that it is my firm judgment, after the experience of the last fortyeight hours, that unless the senate had made the duty easy for the committee by the

modification which it made in that section, it would have been impossible to have come to

any agreement on the Army bill with the original House section in controversy. I am

satisfied it never would have been stricken from the bill. As it now stands, the House

yielded that the words `under the pretext of' should go out, which we contended were in the

autre of a reflection upon the past administration of the government, and we could not

consent that anything in the nature of a reflection, and which was entirely useless for any

practical purpose, should remain in the bill. We satisfied them, by our argument that ought

to be done, and it was stricken out.

"With reference to the word `expressly.' we restored it and allowed it to go in, so that

now the employment of such force must be expressly authorized by the Constitution or by

act of Congress, they assenting that the words `the Constitution or by' before the words `act

of Congress' might remain in, so that if the power arises under either the constitution or the

laws it may be exercised and the Executive would not be embarrassed by the prohibition of

Congress so to act where the Constitution requires him to act; and the embarrassments

would not have the effect of retraining the action of an upright and energetic Executive, but

still might raise a question which he would desire to avoid if possible. The penalty remains

in the section as agreed upon, except that we procured that the word `willfully' should be put

in before the word `violating;' so that it reads: `And any person willfully violating the

provisions of this section shall be deemed guilty of a misdemeanor," 7 Cong.Rec. 4648

(1878) (remarks of Sen.Sargent).

44

LIEBER, THE USE OF THE ARMY IN AID OF THE CIVIL POWER, 14-5 (1898)("The debate

[on the Posse Comitatus section] was an interesting one, but too long to follow in detail. An

CRS-19

armed forces during civil disturbances do not go quite that far, but they do assert two

constitutionally based exceptions -- sudden emergencies and protection of federal

property.45

The question of whether the constitutional exception includes instances where

the President is acting under implied or inherent constitutional powers or whether it

attempt was made to strike out the word "expressly," but that failed. But, manifestly, the

clause, as enacted, recognizes the Constitution as a direct source of authority for the

employment of the Army. This is a very important consideration in the construction of the

legislation. And another matter of great importance is also to be observed with reference

to it. The enactment prescribes that it shall be unlawful to employ any part of the Army as

a posse comitatus, or otherwise, for the purpose of executing the laws, except when it is

expressly authorized by the Constitution or by act of Congress. Now, it is evident that the

word `expressly' can not be construed as placing a restriction on any constitutional power.

If authority so to use the Army is included in a constitutional power, although it be not

expressly named, it can not, of course, be taken away by legislation"); Lorence, The

Constitutionality of the Posse Comitatus Act, 8 UNIVERSITY OF KANSAS CITY LAW REVIEW

154, 185-86 (1940)("But it is evident that the word expressly in the Posse Comitatus Act

cannot be construed as placing a restriction on the constitutional Power of the President,

because even though not expressly named, such constitutional power cannot be taken away

by legislation. . . . Thus, the Posse Comitatus Act appears to be a rather singular statute to

pass, saying that the Army of the United States shall not be used for the purpose of

executing the laws, in view of the fact that the Constitution expressly makes the President

the Commander-in-Chief of the Army and Navy, and expressly makes it his duty to take care

that the laws are faithfully executed").

45

"(b) Aside from the constitutional limitations of the power of the Federal Government

at the local level, there are additional legal limits upon the use of military forces within the

United States. The most important of these from a civil disturbance standpoint is the Posse

Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of the Army or the Air

Force to execute or enforce the laws, except as authorized by the Constitution or Act of

Congress.

"(c) The Constitution and Acts of Congress establish six exceptions generally

applicable within the entire territory of the United States, to which the Posse Comitatus Act

prohibition does not apply.

"(1) The constitutional exceptions are two in number and are based upon the inherent

legal right of the U.S. Government -- a sovereign national entity under the Federal

Constitution -- to insure the preservation of public order and the carrying out of

governmental operations within its territorial limits, by force if necessary.

"(i) The emergency authority. Authori[z]ies prompt and vigorous Federal action,

including use of military force to prevent loss of life or wanton destruction of property and

to restore governmental functioning and public order when sudden and unexpected civil

disturbances, disasters, or calamities seriously endanger life and property and disrupt normal

governmental functions to such an extent that duly constituted local authorities are unable

to control the situation.

"(ii) Protection of Federal property and functions. Authorizes Federal action,

including the use of military forces, to protect Federal property and Federal governmental

functions when the need for protection exists and duly constituted local authorities are

unable or decline to provide adequate protection." 32 CFR 215.4(b),(c)(1).

For a discussion of instances when the emergency, “immediate response authority” has

been used see, Winthorp, The Oklahoma City Bombing: Immediate Response Authority and

Other Military Assistance to Civil Authority (MAC), ARMY LAWYER 3 (July, 1997).

CRS-20

was merely a face saving device is a question that may turn on whether Congress may

constitutionally restrict the President's powers, if any, in the area -- a question the

courts have yet to answer.

Statutory Exceptions

Generally

The Posse Comitatus Act does not apply where Congress has expressly

authorized use of the military to execute the law.46 Congress has done so in three

ways, by giving a branch of the armed forces civilian law enforcement authority, by

establishing general rules for certain types of assistance, and by addressing individual

cases and circumstances with more narrowly crafted legislation. Thus it has vested

the Coast Guard, a branch of the armed forces, with broad law enforcement

responsibilities.47 Second, over time it has enacted a fairly extensive array of

particularized statutes, like those authorizing the President to call out the armed

46

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. 18 U.S.C. 1385 (emphasis added).

47

"The Coast Guard shall enforce or assist in the enforcement of all applicable Federal

laws on, under, and over the high seas and waters subject to the jurisdiction of the United

states; shall engage in maritime air surveillance or interdiction to enforce or assist in the

enforcement of the laws of the United States; shall administer laws and promulgate and

enforce regulations for the promotion of safety of life and property on and under the high

seas and waters subject to the jurisdiction of the United States covering all matters not

specifically delegated by law to some other executive department; shall develop, establish,

maintain and operate with due regard to the requirements of national defense, aids to

maritime navigation, icebreaking facilities, and rescue facilities for the promotion of safety

on, under, and over the high seas and waters subject to the jurisdiction of the United States;

shall, pursuant to international agreements, develop, establish, maintain, and operate

icebreaking facilities on, under, and over the waters other than the high seas and waters

subject to the jurisdiction of the Untied States; shall engage in oceanographic research on

the high seas and in waters subject to the jurisdiction of the United Stats; and shall maintain

a state of readiness to function as a specialized service in the Navy in time of war, including

the fulfillment of Maritime Defense Zone command responsibilities, 14 U.S.C. 2.

Coast Guard personnel are also considered customs officers for purpose of custom law

enforcement, 19 U.S.C. 1401(i)("When used in this subtitle [relating to administrative

provisions concerning customs duties] or in part I of subtitle II of this chapter [relating to

the miscellaneous provisions of the Tariff Act of 1930] . . . (i) The terms `officer of the

customs' and `customs officer' mean . . . any commissioned, warrant, or petty officer of the

Coast Guard. . .").

See generally, The United States Coast Guard's Law Enforcement Authority Under 14

U.S.C. §89: Smugglers' Blues or Boaters' Nightmare? 34 WILLIAM & MARY LAW REVIEW

933 (1993); Not Fit for Sea Duty: The Posse Comitatus Act, the United States Navy, and

Federal Law Enforcement at Sea, 31 WILLIAM & MARY LAW REVIEW 445 (1990).

CRS-21

forces in times of insurrection and domestic violence, 10 U.S.C. 331-335.48 Finally,

48

5 U.S.C. App. (Inspector General Act of 1978) 8(g) (Department of Defense Inspector

General is not limited by the Posse Comitatus Act (18 U.S.C. 1385) in carrying out audits

and investigations under the Act);

10 U.S.C. 331-335 (President may use the militia and armed forces to suppress insurrection

and enforce federal authority in the face of rebellion or other forms of domestic violence);

10 U.S.C. 374 note (§1004 of the National Defense Authorization Act for 1991, as amended)

(during fiscal years 1991 through 2002, the Secretary of Defense may provide counter-drug

activity assistance upon request of federal or state law enforcement agencies);

10 U.S.C. 382 (the Secretary of Defense may provide assistance to the Department of Justice

in emergency situations involving chemical or biological weapons of mass destruction);

10 U.S.C. 382 note (§1023 of the National Defense Authorization Act for Fiscal Year 2000)

(during fiscal years 2000 through 2004, the Secretary of Defense may provide assistance to

federal and state law enforcement agencies to respond to terrorism or threats of terrorism);

16 U.S.C. 23 (Secretary of the Army may detail troops to protect Yellowstone National Park

upon the request of the Secretary of the Interior);

16 U.S.C. 78 (Secretary of the Army may detail troops to protect Sequoia and Yosemite

National Parks upon the request of the Secretary of the Interior);

16 U.S.C. 593 (President may use the land and naval forces of the United States to prevent

destruction of federal timber in Florida);

16 U.S.C. 1861(a) (Secretary of Transportation (or the Secretary of the Navy in time of war)

may entering into agreements for the use of personnel and resources of other federal or state

agencies -- including those of the Department of Defense -- for the enforcement of the

Magnuson Fishery Conservation and Management Act);

18 U.S.C. 112, 1116 (Attorney General may request the assistance of federal or state

agencies -- including the Army, Navy and Air Force -- to protect foreign dignitaries from

assault, manslaughter and murder);

18 U.S.C. 351 (FBI may request the assistance of any federal or state agency -- including the

Army, Navy and Air Force -- in its investigations of the assassination, kidnapping or assault

of a Member of Congress);

18 U.S.C. 831 (Attorney General may request assistance from the Secretary of Defense for

enforcement of the proscriptions against criminal transactions in nuclear materials)(18

U.S.C. 175a, 229E, and 2332e cross reference to the Attorney General’s authority under 10

U.S.C. 381 to request assistance from the Secretary in an emergency involving biological

weapons, chemical weapons, and weapons of mass destruction respective);

18 U.S.C. 1751 (FBI may request the assistance of any federal or state agency -- including

the Army, Navy and Air Force -- in its investigations of the assassination, kidnapping or

assault of the President);

18 U.S.C. 3056 (Director of the Secret Service may request assistance from the Department

of Defense and other federal agencies to protect the President);

22 U.S.C. 408 (President may use the land and naval forces of the United States to enforce

Title IV of the Espionage Act of 1917 (22 U.S.C. 401-408));

22 U.S.C. 461 (President may use the land and naval forces and militia of the United States

to seize or detain ships used in violation of the Neutrality Act);

22 U.S.C. 462 (President may use the land and naval forces and militia of the United States

to detain or compel departure of foreign ships under the provisions of the Neutrality Act);

25 U.S.C. 180 (President may use military force to remove trespassers from Indian treaty

lands); 42 U.S.C. 98 (Secretary of the Navy at the request of the Public Health Service may

make vessels or hulks available to quarantine authority at various U.S. ports);

42 U.S.C. 1989 (magistrates issuing arrest warrants for civil rights violations may authorize

those serving the warrants to call for assistance from bystanders, the posse comitatus, or the

land or naval forces or militia of the United States;

42 U.S.C. 5170b (Governor of state in which a major disaster has occurred may request the

CRS-22

it has passed general legislation permitting the armed forces to share information and

equipment with civilian law enforcement agencies, 10 U.S.C. 371-381.

How explicit must a statutory exception be? If one believes the word

"expressly" should be ignored with respect to the constitutionally based exception,

consistency might suggest no more is required than that Congress authorize a thing

to be done. To those so inclined, the position is further fortified when the statute

authorizes executive branch action and the President's faithful execution

responsibility49 and the administrative housekeeping statute50 can be called into play.

In this rarely espoused view if an agency has statutory authority to perform a task, the

military may be asked to help.

Others maintain that statutes which authorize assistance from federal agencies

and departments generally in order to accomplish a particular task qualify as

exceptions even if they do not mention the Department of Defense or any part of the

military establishment by name.51 On the one hand, such legislation has ordinarily

come into being after the Posse Comitatus Act and thus would ordinarily be thought

to amend any conflicting earlier law. On the other hand, the use of military force in

civilian affairs is such an extraordinary thing that perhaps it ought not be presumed

and only found were Congress has so stated in hoc verba.

President to direct the Secretary of Defense to permit the use of DoD personnel for

emergency work necessary for the preservation of life and property);

43 U.S.C. 1065 (President may use military force to remove unlawful enclosures from the

public lands);

48 U.S.C. 1418 (President may use the land and naval forces of the United States to protect

the rights of owners in guano islands);

48 U.S.C. 1422 (Governor of Guam may request assistance of senior military or naval

commander of the armed forces of the United States in cases of disaster, invasion,

insurrection, rebellion or imminent danger thereof, or of lawless violence);

48 U.S.C. 1591 (Governor of the Virgin Islands may request assistance of senior military

or naval commander of the armed forces of the United States in the Virgin Islands or Puerto

Rico in cases of disaster, invasion, insurrection, rebellion or imminent danger thereof, or of

lawless violence); 50 U.S.C. 220 (President may use the Army, Navy or militia to prevent

the unlawful removal of vessels or cargoes from customs areas during times of insurrection).

49

U.S.Const. Art.II, §3, cl.3 ("he [the President] shall take care that the laws be faithfully

executed."

50

5 U.S.C. 301 ("The head of an Executive department or military department may

prescribe regulations for the government of his department, the conduct of its employees,

the distribution and performance of its business, and the custody, use, and preservation of

its records, papers, and property. . . .")

51

E.g., 21 U.S.C. 873(b)("[w]hen requested by the Attorney General, it shall be the duty

of any agency or instrumentality of the Federal Government to furnish assistance, including

technical advice, to him for carrying out his functions under this subchapter; except that no

such agency or instrumentality shall be required to furnish the name of, or other identifying

information about, a patient or research subject whose identity it has undertaken to keep

confidential").

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The final and more commonly accepted proposition is that the phrase "in cases

and under circumstances expressly authorized by . . . Act of Congress" demands

statutory exception specifically refer to some form of military assistance.52

Information and Equipment

In 1981, Congress enacted general law enforcement exceptions to the Posse

Comitatus Act prohibitions in order to resolve questions raised by the so-called

Wounded Knee cases.53 The cases grew out of events beginning late in February of

1973, when an armed crowd broke into and looted a trading post in the village of

Wounded Knee on the Pine Ridge Reservation in South Dakota. FBI agents, U.S.

marshals, and Bureau of Indian Affairs police surrounded the village and besieged

the group almost immediately. The take-over and events which occurred during the

siege led to four cases54 involving a series of federal criminal charges including

obstructing a law enforcement officer in the lawful performance of his duties during

the course of a civil disturbance.55 Military assistance provided federal authorities

at Wounded Knee undermined the prospects of a conviction under 18 U.S.C.

231(a)(3).56

52

The Department of Defense Directive, for example, lists only the military-aid-specific

statutes in its inventory of statutory exceptions, DoD Dir.No. 5525.5 (Encl.4) A.2.e.

53

H.R.Rep.No. 97-71, pt.2, 5-6, reprinted in 1981 UNITED STATES CODE, CONGRESSIONAL

AND ADMINISTRATIVE NEWS 1785, 1788 ("Although the military activities challenged in

each case were identical, the courts in Banks and Jaramillo found those activities to be in

violation of the [Posse Comitatus] Act, while the lower court in Red Feather found those

activities to be permissible").

54

United States v. Jaramillo, 380 F.Supp. 1375 (D.Neb. 1974), app.dism'd, 510 F.2d 808

(8th Cir. 1975); United States v. Banks, 383 F.Supp. 368 (D.S.D. 1974); United States v. Red

Feather, 381 F.Supp. 916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186

(D.N.D. 1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir. 1976).

55

18 U.S.C. 231(a)(3)(1970 ed.)("Whoever commits or attempts to commit any act to

obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged

in the lawful performance of his official duties incident to and during the commission of a

civil disorder which in any way or degree obstructs, delays, or adversely affects commerce

or the movement of any article or commodity in commerce or the conduct or performance

of any federally protected function -- shall be fined not more than $10,000 or imprisoned not

more than five years, or both").

56

"The evidence of military involvement contained in the transcripts [of the Wounded

Knee trial cases], in essence, falls into the following categories: use by federal civil law

enforcement officers of material and equipment furnished by the United States Army and

the South Dakota National Guard; the presence of United States Army personnel who were

ordered to Wounded Knee to observe and report to the President through the Department

of Defense the necessity of calling in federal troops; the drafting by military personnel of

contingency plans to be used by the United States Army in the event that federal military

intervention was ordered by the President; aerial photographic reconnaissance service

provided by the United States Air Force and the Nebraska National Guard; the advice,

urging and counsel given by the United States Army personnel to Department of Justice

personnel on the subjects of negotiations, logistics and rules of engagement; and the

maintenance of military vehicles performed by members of the Nebraska National Guard,"

United States v. McArthur, 419 F.Supp. at 193 n.3.

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The 1981 legislation contains both explicit grants of authority and restrictions

on the use of that authority for military assistance to the police -- federal, state and

local -- particularly in the form of information and equipment, 10 U.S.C. 371-381.

Information: Spies, Advisers, and Undercover Agents. The Wounded

Knee cases spawned uncertainty as to the extent to which military authorities might

share technical advice, the results of reconnaissance flights or any other forms of

information with civilian law enforcement authorities. Section 371 specifically

permits the armed forces to share information acquired during military operations and

in fact encourages the armed forces to plan their activities with an eye to the

production of incidental civilian benefits.57 The section allows the use of military

undercover agents and the collection of intelligence concerning civilian activities

only where there is a nexus to an underlying military purpose.58

57

"(a) The Secretary of Defense may in accordance with other applicable law, provide to

Federal, State or local civilian law enforcement officials any information collected during

the normal course of military training or operations that may be relevant to a violation of any

Federal or State law within the jurisdiction of such officials.

"(b) The needs of civilian law enforcement officials for information shall, to the

maximum extent practicable, be taken into account in the planning and execution of military

training or operations.

"(c) The Secretary of Defense shall ensure, to the extent consistent with national

security, that intelligence information held by the Department of Defense and relevant to

drug interdiction or other civilian law enforcement matters is provided promptly to

appropriate civilian law enforcement officials," 10 U.S.C. 371.

"The phrase `in accordance with other applicable law' as used in section 371 is meant

to continue the application of the Privacy Act to this type of intelligence sharing. . . .

[Congress did] not intend the military to engage in the routine collection of intelligence

information about United States residents. . . [and] noting in this section [was] intended to

modify in any way existing law with respect to the military's authority (or lack thereof) to

collect and disseminate intelligence information about American citizens and residents here

and abroad. See e.g., Executive Order 12036," H.R.Rep.No.97-71 pt.2, 8, reprinted in 1981

UNITED STATES CODE, CONGRESSIONAL AND ADMINISTRATIVE NEWS 1785, 1791.

58

"The Committee adopted the view of the Department of Justice that the weight of

authority on the Posse Comitatus Act `prohibits the use of miliary personnel as informants,

undercover agents, or non-custodial interrogators in a civilian criminal investigation that

does not involve potential military defendants or is not intended to lead to any official action

by the armed forces.' . . . [W]hen military personnel become aware of violations of civilian

laws as an incidental result of other military operations, such information may be voluntarily

disclosed.

"Examples of this type of information sharing include situations such as investigations

of military and non-military coconspirators and the observation by military personnel of

illegal conduct during a routine military mission or training operation.

"The Committee anticipates, however, that an increased sensitivity to the needs of

civilian law enforcement officials, particularly in drug enforcement, will permit more

compatible mission planning and execution. For example, the scheduling of routine training

missions can easily accommodate the need for improved intelligence information concerning

drug trafficking in the Caribbean. The committee does not intend the military to engage in

the routine collection of intelligence information about United States residents. Thus, the

legislation creates no risk that the military will return to the abuses exposed in previous

Congressional hearings. See Hearings on Federal Data Banks, Computers and the Bill of

Rights before the Committee on Constitutional Rights, Committee on the Judiciary, United

CRS-25

Section 373 permits military personnel to train civilian police on "the operation

and maintenance of equipment" and to provide them with "expert advice."59 The

section was originally limited to equipment provided by the armed forces,60 but was

expanded in 1988 to include training on any equipment regardless of its origin.61

States Senate, 92nd Cong., 1st sess." H.R.Rep.No. 91-71, 8 & 8 n.1.

The staff report following the Federal Data Banks hearings noted that, "the U.S. Army

had for several years maintained a close and pervasive watch over most civilian protest

activity throughout the United States. At its height during the lat 1960's, the monitoring

drew upon the part-time services of at least 1,500 plainclothes agents of the Army

Intelligence Command, and an unspecified number of agents from the Continental Army

Command. Their reports, which described the nonviolent political activities of thousands

of individuals and organizations unaffiliated with the armed forces were amassed in scores

of data centers. . . . The picture is that of a runaway intelligence bureaucracy unwatched by

its civilian superiors, eagerly grasping for information about political dissenters of all kinds

and totally oblivious to the impact its spying could have on the constitutional liberties it had

sworn to defend." Military Surveillance of Civilian Politics: A Report of the Subcommittee

on Constitutional Rights of the Senate Committee on the Judiciary, 93d Cong., 1st Sess. 10

(1973)(Comm.Print).

For a more contemporary examination of the issues associated with military

surveillance of off-base political protests see, Peterson, Civilian Demonstrations Near the

Military Installation: Restraints on Military Surveillance and Other Activities, 140

MILITARY LAW REVIEW 113 (Spring, 1993).

59

"The Secretary of Defense may, in accordance with other applicable law, make

Department of Defense personnel available -- (1) to train Federal, State, and local civilian

law enforcement officials in the operation and maintenance of equipment, including

equipment made available under section 372 of this title; and (2) to provide such law

enforcement officials with expert advice relevant to the purposes of this chapter," 10 U.S.C.

373.

60

"Nothing in this section contemplates the creation of large scale or elaborate training

programs . . . . [This section would not authorize the routine use of a Green Beret training

course for urban SWAT teams.] . . . Rather this section anticipates the continuing need for

the military to train civilians in the operation and maintenance of the equipment lent under

proposed section 372," H.R.Rep.No. 97-71, at 10, reprinted in 1981 UNITED STATES CODE,

CONGRESSIONAL AND ADMINISTRATIVE NEWS 1785, 1792-793 (footnote 2 of the report in

brackets).

61

"Paragraph (1) clarifies current law to provide that the Secretary of Defense, in

accordance with applicable law, may make Department of Defense personnel available to

train Federal, State, and local civilian law enforcement officials in the operation of

maintenance of equipment, including equipment made available under section 372,"

H.R.Rep.No. 100-989, 451, reprinted in 1988 United States Code Congressional and

Administrative News 2503, 2579. See also, DoD Dir.No. 5525.5 (Encl.4) A.4., "a. The

Military Departments and Defense Agencies may provide training to Federal, State, and

local civilian law enforcement officials, Such assistance may including training in the

operation and maintenance of equipment made available under section A. of enclosure 3.

This does not permit large scale or elaborate training, and does not permit regular or direct

involvement of military personnel in activities that are fundamentally civilian law

enforcement operations, except as other wise authorized in this enclosure.

"b. Training of Federal, State, and local civilian law enforcement officials shall be

provided under the following guidance:

"(1) This assistance shall be limited to situations when the use of non-DoD personnel

would be unfeasible or impractical form a cost or time perspective and would not otherwise

CRS-26

The explanation of what might constitute "expert advice" is limited, but

Congress clearly did not use the phrase as a euphemism for active military

participation in civilian police activity.62

Equipment and Facilities. Abstractly it might seem that even civilian use -against Americans within the United States -- of tanks, missiles, fighter planes,

aircraft carriers and other implements of war offends the Posse Comitatus Act even

if use can be accomplished without the direct involvement of military personnel. The

arsenal of American military weapons and equipment are "part of the Army and Air

Force" even when turned over to civilian authorities before use for civilian purposes.

Even if the Posse Comitatus Act were read to apply only to the use of personnel,

would the use of military personnel to maintain equipment loaned to civilian

authorities violate the Act's proscription? The Wounded Knee cases provided

conflicting answers.

The 1981 provisions make it clear that the Defense Department may provide

civilian police with military equipment63 and under some circumstances, particularly

compromise national security or military preparedness concerns.

"(2) Such assistance may not involve DoD personnel in a direct role in a law

enforcement operation, except as otherwise authorized by law.

"(3) Except as otherwise authorized by law, the performance of such assistance by

DoD personnel shall be at a location where there is not a reasonable likelihood of a law

enforcement confrontation."

62

"Neither does the authority to provide expert advice create a loophole to allow regular

or direct involvement of military personnel in what are fundamentally civilian law

enforcement operations," H.R.Rep.No. 97-71, at 10, reprinted in 1981 UNITED STATES

CODE, CONGRESSIONAL AND ADMINISTRATIVE NEWS 1785, 1792.

"Paragraph (2) restates current law permitting advice. Such training and expert advice

may extend to instruction in the operation of equipment, scientific analysis, translations, and

assistance in strategic planning, but may not extend to direct, active involvement in specific

law enforcement operations," H.R.Rep.No. 100-989, 451, reprinted in 1988 United States

Code Congressional and Administrative News 2503, 2579. See also, DoD Dir.No. 5525.5

(Encl.4) A.5., "Military Departments and Defense Agencies may provide expert advice to

Federal, State, or local law enforcement in accordance with 10 U.S.C. §§371-378 (reference

(d)). This does not permit regular or direct involvement of military personnel in activities

that are fundamentally civilian law enforcement operations, except as otherwise authorized

in this enclosure."

63

"The Secretary of Defense may, in accordance with other applicable law, make available

any equipment (including associated supplies or spare parts), base facility, or research

facility of the Department of Defense to any Federal, State, or local civilian law enforcement

official for law enforcement purposes," 10 U.S.C. 372.

See also 10 U.S.C. 381:

"(a) The Secretary of Defense, in cooperation with the Attorney General, shall conduct an

annual briefing of law enforcement personnel of each State (including law enforcement

personnel of the political subdivisions of each State) regarding information, training,

technical support, and equipment and facilities available to civilian law enforcement

personnel from the Department of Defense.

"(b) Each briefing conducted under subsection (a) shall include the following: (1) An

explanation of the procedures for civilian law enforcement officials -- (A) to obtain

information, equipment, training, expert advice, and other personnel support under this

CRS-27

in drug cases, may also supply military personnel to operate and maintain such

chapter; and (B) to obtain surplus military equipment. (2) A description of the types of

information, equipment and facilities, and training and advice available to civilian law

enforcement officials from the Department of Defense. (3) A current, comprehensive list of

military equipment which is suitable for law enforcement officials form the Department of

Defense and available as surplus property from the Administrator of General Services.

"(c) The Attorney General and the Administrator of General Services shall -- (1)

establish or designate an appropriate office or offices to maintain the list described in

subsection (b)(3) and to furnish information to civilian law enforcement officials on the

availability of surplus military equipment; and (2) make available to civilian law

enforcement personnel nationwide, tollfree telephone communication with such office or

offices."

CRS-28

equipment.64 The provisions also include extraordinary authority to use Navy ships

64

"(a) The Secretary of Defense may, in accordance with other applicable law, make

Department of Defense personnel available for the maintenance of equipment for Federal,

State, and local civilian law enforcement officials, including equipment made available

under section 372 of this title.

"(b)(1) Subject to paragraph (2) and in accordance with other applicable law, the

Secretary of Defense may, upon request from the head of a Federal law enforcement agency,

make Department of Defense personnel available to operate equipment (including

equipment made available under section 372 of this title) with respect to -- (A) a criminal

violation of a provision of law specified in paragraph (4)(A); or (B) assistance that such

agency is authorized to furnish to a State, local, or foreign government which is involved

in the enforcement of similar laws. (2) Department of Defense personnel made available to

a civilian law enforcement agency under this subsection may operate equipment for the

following purposes:

"(A) Detection, monitoring, and communication of the movement of air and sea traffic.

"(B) Detection, monitoring, an communication of the movement of surface traffic

outside the geographic boundary of the United States and within the United States not to

exceed 25 miles of the boundary if the initial detection occurred outside the boundary.

"(C) Aerial reconnaissance.

"(D) Interception of vessels or aircraft detected outside the land area of the United

States for the purposes of communicating with such vessel and aircraft to direct such vessels

and aircraft to go to a location designated by appropriate civilian officials.

"(E) Operation of equipment to facilitate communications in connection with law

enforcement programs specified in paragraph (4)(A).

"(F) Subject to joint approval by the Secretary of Defense and the Attorney General

(and the Secretary of State in the case of a law enforcement operation outside the land area

of the United States) -- (i) the transportation of civilian law enforcement personnel; and (ii)

the operation of a base of operations for civilian law enforcement personnel.

"(3) Department of Defense personnel made available to operate equipment for the

purpose stated in paragraph (2)(D) may continue to operate such equipment into the land

area of the United States in cases involving the pursuit of vessels or aircraft where the

detection began outside such land area.

"(4) In this subsection: (A) The term `Federal law enforcement agency' means an

agency with jurisdiction to enforce any of the following: (i) The Controlled Substances Act

(21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951

et seq.). (ii) Any of sections 274 through 278 of the Immigration and Nationality Act (8

U.S.C. 1324-1328). (iii) A law relating to the arrival or departure of merchandise (as defined

in section 401 of the Tariff Act of 1930 (19 U.S.C. 1401) into or out of the customs territory

of the United states (as defined in general note 2 of the Harmonized Tariff Schedules of the

United States) or any other territory or possession of the United States. (iv) The Maritime

Drug Law Enforcement Act (46 U.S.C. 1001 et seq.).

"(B) The term `land area of the United States' includes the land area of any territory,

commonwealth, or possession of the United States.

"(c) The Secretary of Defense may, in accordance with other applicable law, make

Department of Defense personnel available to any Federal, State, or local civilian law

enforcement agency to operate equipment for purposes other than described in subsection

(b)(2) only to the extent that such support does not involve direct participation by such

personnel in a civilian law enforcement operation unless such direct participation is

otherwise authorized by law," 10 U.S.C. 374.

"(a) Procedures. (1) The Secretary of Defense shall establish procedures in accordance

with this subsection under which States and units of local government may purchase law

enforcement equipment suitable for counter-drug activities through the Department of

Defense. The procedures shall require the following: (A) Each State desiring to participate

CRS-29

to support Coast Guard drug interdiction on the high seas.65

in a procurement of equipment suitable for counter-drug activities through the Department

of Defense shall submit to the Department, in such form and manner and at such times as

the Secretary prescribes, the following: (i) a request for law enforcement equipment. (ii)

Advance payment for such equipment, in an amount determined by the Secretary based on

estimated or actual costs of the equipment and administrative costs incurred by the

Department. (B) A State may include in a request submitted under subparagraph (A) only

the type of equipment listed in the catalog produced under subsection (c). (C) A request for

law enforcement equipment shall consist of an enumeration of the law enforcement

equipment that is desired by the State and units of local government within the State. The

Governor of a State may establish such procedures as the Governor considers appropriate

for administering and coordinating requests for law enforcement equipment from units of

local government within the State. (D) A State requesting law enforcement equipment shall

be responsible for arranging and paying for shipment of the equipment to the State and

localities within the State. (2) In establishing the procedures, the Secretary of Defense shall

coordinate with the General Services Administration and other Federal agencies for

purposes of avoiding duplication of effort.

"(b) Reimbursement of Administrative Costs. -- In the case of any purchase made by

a State or unit of local government under the procedures established under subsection (a),

the Secretary of Defense shall require the State or unit of local government to reimburse the

Department of Defense for the administrative costs to the Department of such purchase.

"(c) GSA Catalog. -- The Administrator of General Services, in coordination with the

Secretary of Defense shall produce and maintain a catalog of law enforcement equipment

suitable e for counter-drug activities for purchase by States and units of local government

under the procedures established by the Secretary under this section.

"(d) Definitions. -- In this section: (1) The term `State' includes the District of

Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana

Islands, and any territory or possession of the United States. (2) The term `unit of local

government' means any city, county, township, town, borough, parish, village, or other

general purpose political subdivision of a State; an Indian tribe which performs law

enforcement functions as determined by the Secretary of the Interior; or any agency of the

District of Columbia government or the United States Government performing law

enforcement functions in and for the District of Columbia or the Trust Territory of the

Pacific Islands. (3) The term `law enforcement equipment suitable for counter-drug

activities' has the meaning given such term in regulations prescribed by the Secretary of

Defense. In prescribing the meaning of the term, the Secretary may not include any

equipment that the Department of Defense does not procure for its own purposes," 10 U.S.C.

381.

65

"(a) The Secretary of Defense and the Secretary of Transportation shall provide that

there be assigned on board every appropriate surface naval vessel at sea in a druginterdiction area members of the Coast Guard who are trained in law enforcement and have

powers of the Coast Guard under title 14, including the power to make arrests and to carry

out searches and seizures.

"(b) Members of the Coast Guard assigned to duty on board naval vessels under this

section shall perform such law enforcement functions (including drug-interdiction functions)

-- (1) as may be agreed upon by the Secretary of Defense and the Secretary of

Transportation; and (2) as are otherwise within the jurisdiction of the Coast Guard.

"(c) No fewer than 500 active duty personnel of the Coast Guard shall be assigned each

fiscal year to duty under this section. However, if at any time the Secretary of

Transportation, after consultation with the Secretary of Defense, determines that there are

insufficient naval vessels available for purposes of this section, such personnel may be

assigned other duty involving enforcement of laws listed in section 374(b)(4)(A) of this title.

CRS-30

Limitations: Military Preparedness, Reimbursement, and Direct

Use. The authority granted in sections 371-381 is subject to three general caveats.

It may not be used to undermine the military capability of the United States.66 The

civilian beneficiaries of military aid must pay for the assistance.67 And the Secretary

of Defense must issue regulations to ensure that the authority of sections 371 to 381

does not result in use of the armed forces to make arrests or conduct searches and

seizures solely for the benefit of civilian law enforcement.68

For several years, the regulations called for by section 375 appeared in parallel

form in the Code of Federal Regulations69 and in a Defense Department Directive.70

The heart of the regulations appeared in subsection 213.10(a)(3), "Except as

otherwise provided in this enclosure, the prohibition on use of military personnel `as

a posse comitatus or otherwise to execute the laws' prohibits the following forms of

direct assistance: (i) Interdiction of a vehicle, vessel, aircraft or other similar activity.

(ii) A search or seizure. (iii) An arrest, stop and frisk, or similar activity. (iv) Use of

military personnel for surveillance or pursuit of individuals, or as informants,

"(d) In this section, the term `drug-interdiction area' means an area outside the land

area of the United States (as defined in section 374(b)(4)(B) of this title) in which the

Secretary of Defense (in consultation with the Attorney General) determines that activities

involving smuggling of drugs into the United States are ongoing," 10 U.S.C. 379.

66

"Support (including the provision of any equipment or facility or the assignment or detail

of any personnel) may not be provided to any civilian law enforcement official under this

chapter if the provision of such support will adversely affect the military preparedness of

the United States. The Secretary of Defense shall prescribe such regulations as may be

necessary to ensure that the provision of any such support does not adversely affect the

military preparedness of the United States," 10 U.S.C. 376.

67

"(a) To the extent otherwise required by section 1535 of title 31 (popularly known as the

`Economy Act') or other applicable law the Secretary of Defense shall require a civilian law

enforcement agency to which support is provided under this chapter to reimburse the

Department of Defense for that support.

"(b) An agency to which support is provided under this chapter is not required to

reimburse the Department of Defense for such support if such support -- (1) is provided in

the normal course of military training or operations; or (2) results in a benefit to the element

of the Department of Defense providing the support that is substantially equivalent to that

which would otherwise be obtained from military operations or training," 10 U.S.C. 377.

68

"Secretary of Defense shall prescribe such regulations as may be necessary to ensure that

any activity (including the provision of any equipment or facility or the assignment or detail

of any personnel) under this chapter does not include or permit direct participation by a

member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other

similar activity unless participation in such activity by such member is otherwise authorized

by law," 10 U.S.C. 375.

69

47 Fed.Reg. 14899 (April 7, 1982), codified at, 32 CFR pt.213, removed, 58 Fed.Reg.

25776 (April 28, 1993).

70

Department of Defense Directive No. 5525.5 (January 15, 1986), as amended December

12, 1989, hereafter referred to as DoD Dir.No. 5525.5. Prior to enactment of 10 U.S.C. 371381, the Navy had operated under a Navy Department Instruction of similar import,

SECNAVINST 5400.12 (January 17, 1969), see United States v. Walden, 490 F.2d 372, 37374 (4th Cir. 1974).

CRS-31

undercover agents, investigators, or interrogators," 32 CFR §213.10(a)(3)(July 1,

1992). Although the provisions have been removed from the CFR, the Directive

remains in effect.71

Military Purpose

The armed forces, when in performance of their military responsibilities, are

beyond the reach of the Posse Comitatus Act and its statutory and regulatory

supplements. Analysis of constitutional or statutory exceptions is unnecessary in

such cases. The original debates make it clear that the Act was designed to prevent

use of the armed forces to execute civilian law. Congress did not intend to limit the

authority of the Army to perform its military duties. The legislative history, however,

does not resolve the question of whether the Act prohibits the Army from performing

its military duties in a manner which affords incidental benefits to civilian law

enforcement officers.

The courts and commentators believe that it does not.72 As long as the primary

purpose of an activity is to address a military purpose, the activity need not be

abandoned simply because it also assists civilian law enforcement efforts. Courts

appear to view the location of the activity as particular indicative of primary purpose;

as one court noted, "the power to maintain order, security, and discipline on a

military facility is necessary for military operations."73

The courts have concluded that, consistent with this legitimate military purpose

to maintain order on military installations, military personnel may, without violating

the Posse Comitatus Act, may turn over to civilian law enforcement authorities

armed felons arrested when they flee onto a military base, Harker v. State, 663 P.2d

71

The provision in DoD Dir. No. 5525.5 (Encl.4) reads, "Except as otherwise provided in

this enclosure, the prohibition on the use of military personnel `as a posse comitatus or

otherwise to execute the laws' prohibits the following forms of direct assistance: a.

Interdiction of a vehicle, vessel, aircraft, or other similar activity. b. A search or seizure. c.

An arrest, apprehension, stop and frisk, or similar activity. d. Use of military personnel for

surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or

interrogators," DoD Dir. No. 5525.5 (Encl.4) §A.3.

72

Logic might suggest that the military purpose doctrine is simply the largest of the

statutory exceptions, that is, that the doctrine merely encompasses the military authority

vested in the armed forces under the Code of Military Justice and the other statutes which

grant them military authority. Neither the commentators nor the courts have ordinarily

clearly limit their analyses in such terms, see e.g., Meeks, Illegal Law Enforcement: Aiding

Civil Authorities in Violation of the Posse Comitatus Act, 70 MILITARY LAW REVIEW 83,

124-26 (Fall, 1975); Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104

MILITARY LAW REVIEW 109, 128-35 (Spring, 1984); Hayes v. Hawes, 921 F.2d 100, 103

(7th Cir. 1990); Taylor v. State, 640 So.2d 1127, 1136 (Fla.App. 1994); State v. Pattioay,

78 Haw. 455, 459-62, 896 P.2d 911, 915-18 (1995).

73

Eggleston v. Dept. of Revenue, 895 P.2d 1169, 1170 (Colo.App. 1995), citing Cafeteria

& Restaurant Workers Union Local v. McElroy, 367 U.S. 886 (1961).

CRS-32

932, 936 (Alaska 1983), or drunk drivers arrested on a military base,74 or firearms

stolen from a military installation, United States v. Griley, 814 F.2d 967, 976 (4th

Cir. 1987). The courts have likewise found no violation of the Act when military

personnel arrest civilians on military facilities for crimes committed there, United

States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976), or when military authorities assist

a civilian police investigation conducted on a military facility.75 The military purpose

doctrine likewise permits military law enforcement personnel to investigate the offbase conduct of military personnel.76 The DoD Directive evidences a comparable

understanding.77

74

Eggleston v. Dept. of Revenue, 895 P.2d 1169 (Colo.App. 1995)(military police also

administered breath test and provided local law enforcement officers with the results);

McNeil v. State, 787 P.2d 1036, 1037 (Alaska App. 1990); Anchorage v. King, 754 P.2d 283,

286 (Alaska App. 1988).

75

People v. Caviano, 148 Misc.2d 426, 560 N.Y.S.2d 932, 936-37 (N.Y.S.Ct. 1990)(Navy

personnel made a sailor available for questioning at naval station facilities; the interrogation

was conducted by civilian police who subsequently arrested the sailor for an out of state

robbery); United States v. Hartley, 678 F.2d 961, 978 (11th Cir. 1982)(military inspectors

who discovered evidence of fraudulent conduct by defense contractors "aided the civilian

employee in charge of the investigation only to the extent of activities normally performed

in the ordinary course of their [military] duties"); State v. Trueblood, 265 S.E.2d 662, 664

(N.C.App. 1980)(military search (with consent) of on-base quarters in connection with a

civilian investigation of off-base drug dealing by military personnel); State v. Nelson, 298

N.C. 573, 260 S.E.2d 629 (1979)(military inventory of personal effects of AWOL soldier

were conducted primarily for a military purpose pursuant to a regulation designed to

safeguard private property and protect service against claims); Commonwealth v. Shadron,

370 A.2d 697, 699 (Pa. 1977)(military police acting within the scope their authority did not

violate the Act by making a soldier available, at the Air Force base where he was stationed,

to civilian investigators for interrogation by the civilian officers and by permitted the

civilians to search the defendant's possessions with his consent).

76

United States v. Griley, 814 F.2d 967, 976 (4th Cir. 1987)(off-base military investigation

of concerning property stolen on-base by military personnel); Applewhite v. United States,

995 F.2d 997, 1001 (10th Cir. 1993)(military police off-base drug sting targeting military

personnel); State v. Hayes, 102 N.C.App. 777, 404 S.E.2d 12 (1991)(off-base purchase of

drugs by a military undercover agent from an AWOL soldier); State v. Poe, 755 S.W.2d 41

(Tenn. 1988)(military investigation of the off-base murder of a soldier by other soldiers).

77

2. Permissible direct assistance. The following activities are not restricted by reference

(v) [the Posse Comitatus Act, 18 U.S.C. 1385].

a. Actions that are taken for the primary purpose of furthering a military or

foreign affairs function of the United States, regardless of incidental benefits to

civilian authorities. This provisions must be used with caution, and does not include

actions taken for the primary purpose of aiding civilian law enforcement officials or

otherwise serving as a subterfuge to avoid the restrictions of reference (v). Actions

under this provision may include the following, depending on the nature of the DoD

interest and the authority governing the specific action in question:

(1) Investigations and other actions related to enforcement of the Uniform Code

of Military Justice (UCMJ)(reference (d)).

(2) Investigations and other actions that are likely to result in administrative

proceedings by the Department of Defense, regardless of whether there is a related

civil or criminal proceeding. See DoD Directive 5525.7 (reference (w)) with respect

to matters in which the Departments of Defense and Justice both have an interest.

CRS-33

Cases called to apply the military purpose doctrine in cooperative police

activities occurring off-base are the most difficult to reconcile. Some seem to require

no more than a logical military nexus,78 others demand a very clear, specific military

(3) Investigations and other actions related to the commander's inherent authority

to maintain law and order on a military installation or facility.

(4) Protection of classified military information or equipment.

(5) Protection of DoD personnel, DoD equipment, and official guests of the

Department of Defense.

(6) Such other actions that are undertaken primarily for a military or foreign

affairs purpose, DoD Dir.No. 5525.5 (Encl. 4) A.2.a. (32 CFR §213.10(2)(i)(July 1,

1992) was identical except for styles used to designate subsections, paragraphs and

subparagraphs and that the CFR contained no cross reference citations except to the

Code of Military Justice).

78

State v. Sanders, 303 N.C. 608, 613, 281 S.E.2d 7, 10 (1981)("military policeman

Lambert's duty [during joint patrol with civilian police off-base] was not to execute civilian

law but to assist the police department in returning apprehended military personnel to Fort

Bragg"); State v. Short, 113 Wash.2d 35, 36-7 & 39, 775 P.2d 458, 458-59 & 460

(1989)("the Naval Investigative Services (NIS) instigated a joint drug operation with local

law enforcement agencies . . . . NIS brought in Agent Jerry Kramer, a civilian Navy

employee, to work undercover. . . . Kramer became employed as a bouncer at Noodles, a

local restaurant where drug contacts were made. In this position, Kramer checked the ID

of persons entering the bar and determine that about 80 percent of those entering Noodles

were military personnel. While employed at Noodles Kramer met James Corso and, later,

the defendant Larry K. Short. . . . Corso indicated that Kramer could buy more cocaine

through Short. Kramer and Corso waited at Noodles until Short arrived. After a brief

discussion, Kramer gave Short $250 to get some cocaine. Corso and Short left Noodles

together and returned an hour later. Corso entered the bar and delivered a foil package to

Kramer. Kramer delivered the alleged cocaine along with information about Corso and

Short, to his immediate supervisor, Agent Kocina. A Washington State Patrol Crime

Laboratory analysis revealed that the substance was not cocaine. . . . Kramer still undercover

complained to Short about the counterfeit and demanded reimbursement. Short promised

to replace the fake cocaine with real cocaine [but did not]. Short was arrest later by local

authorities and convicted . . . for selling a substitute substance in lieu of a controlled

substance [to Kramer]. . . . Case law discloses that the use of equipment, personnel, and

information is generally not considered direct participation under 10 U.S.C. §371 or under

the posse comitatus act. . . . Here, Kramer did not arrest Short, and any personnel,

equipment, and information provided to local law enforcement did not constitute direct

participation"); People v. Wells,175 Cal. 876, 878, 221 Cal.Rptr. 273, 273-74 (1985)("with

the goal of taking illegal drug dealers off the streets of the City of Oceanside and thus

minimizing the flow of drugs into nearby Camp Pendleton, the Naval Investigative Service

(N.I.S.) initiated what N.I.S. calls an Initiative Criminal Investigative Operation by soliciting

the assistance of the Oceanside Police Department (O.P.D.). . . . The operational plan called

for the N.I.S. agents, all military policemen, to be used as confidential informants

immediately under the supervision and surveillance of a particular O.P.D. officer.

Solicitation for drugs was to be done by N.I.S. agents. Any detention or arrest of a suspect

was to be handled by an O.P.D. officer. The N.I.S. agent always was accompanied within

a matter of feet or yards by an O.P.D. officer. On most occasions, the N.I.S. agent was

equipped with a concealed transmitter. O.P.D. furnished prerecorded money to N.I.S. agents

to make drug purchases and, once a purchase was completed by an N.I.S. agent, the

suspected drugs were turned over to an O.P.D. officer to be impounded and analyzed.

O.P.D. paid nothing to N.I.S. for its assistance. Several operations were carried out

according to the plan. . . . In light of the language, background and apparent purposes of the

CRS-34

connection before they will concede the presence of a military purpose,79 and still

others seem to seek a middle ground.80

Posse Comitatus Act to stop state use of the federal militia, particularly in policing state

elections and to prevent the subjugation of citizens to the exercise of military power of a

regulatory, prescriptive or compulsory nature, we find no violation of the act in the facts of

this case").

79

In Walden, for example, where a Treasury agent was found to have used Marines as

undercover agents to secure evidence against civilian firearms offenders, the court found a

breach of the Posse Comitatus requirements without even acknowledging the government's

military purpose argument, United States v. Walden, 490 F.2d 372 (4th Cir. 1974); Meeks,

Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act,

70 MILITARY LAW REVIEW 83, 115 (Fall, 1975)("the Government argued [in Walden] that

the Act had not been violated because the investigation was `related directly to the

maintenance of order and security` on the base and that such undercover assistance to

civilian authorities does not constitute `execution of the law'"); Rice, New Laws and Insights

Encircle the Posse Comitatus Act, 104 MILITARY LAW REVIEW 109, 129 (Spring, 1984)("[i]f

the court considered the government's argument that the activities of the Marines were

related to the maintenance, order and security of the base, it had rejected it. However, the

sale of the weapons occurred immediately off the base in the town of Quantico. If the base

authorities were aware of this fact and that the illegally sold weapons were being purchased

by Marines and being brought on the base, then what may they do to insure order and

discipline? Clearly, they can notify local authorities. But would the purchase in question

by an undercover Marine be for the primary purpose of furthering a military function?

Order, discipline, and security of a base is a military function"); State v. Pattioay, 78 Haw.

455, 464-65, 896 P.2d 911, 920-21 (1995)("[w]here the target of a military investigation is

a civilian and there is no verified connection to military personnel, the PCA prohibits

military participation in activities designed to execute civilian laws. People v. Tyler (Tyler

I), 854 P.2d 1366 (Colo.App. 1993), rev'd on other grounds, 874 P.2d 1037 (Colo. 1994)

(Tyler II). . . . In fact, the apparent justification for the military involvement in the instant

case was to facilitate the enforcement of civilian laws. In Tyler I, the Colorado Court of

Appeals stated: `before the military may directly participate in an undercover investigation

of these civilians and their off-base activities, the state carries the burden of demonstrating

that there exists a nexus between drug sales off base by civilians to military personnel and

the military base at which the purchasers are stationed. . . . Hence, the prosecution has the

duty to present evidence to show that, when a military investigation was undertaken, the

targeted drug transactions involved military personnel or were connected to sales conducted

on a military installation.' 854 P.2d at 1369 [emphasis of the Pattioay court]; see also Moon

[v. State, 785 P.2d 45,] 46-47 [(Alaska App. 1991),]. Furthermore, we agree with the

observation in Chief Justice Rabinowitz's dissent in Kim v. State, supra [817 P.2d 467

(Alaska 1991)]; he observed that an independent military interest in the health and safety

of its personnel does not establish a `military function' or `primary [military] purpose' under

32 CFR §213.10(a)(2)(1). 817 P.2d at 471 & 471 n.10. That the military has a valid interest

in ferreting out those who supply drugs to military personnel, does not automatically qualify

its aid to civilian drug law enforcement as having the `primary purpose of furthering a

military . . . function'").

80

Moon v. State, 785 P.2d 45, 48 (Alaska App. 1990)("[I]t seems to us that the army had

a valid military purpose in preventing illicit drug transactions involving active duty

personnel even if the transaction took place off base. The investigation was not begun until

the military was satisfied that drug dealers at the Palace Hotel had targeted military

personnel as a market. It was also reasonable to infer that a substantial quantity of illicit

drugs was finding its way onto the base"); State v. Maxwell, 328 S.E.2d 507, 509 (W.Va.

CRS-35

Willfully Execute the Laws

Willful

The Act is limited to "willful" misuse of the Army or Air Force.81 The Senate

version of the original Act would have limited proscription to "willful and knowing"

violations, 7 Cong.Rec. 4302 (1878); the House version had no limitation, 7

Cong.Rec. 4181 (1878). The compromise which emerged from conference opted to

forbid only willful violations but neither the statements of the managers nor

statements elsewhere in the debate explain what the limitation means. And the

scattered statements found in the case law under the Act are somewhat conflicting

and not particularly helpful,82 although it seems unlikely that a court would convict

for anything less than a deliberate disregard of the law's requirements.

1985)(same); State v. Presgraves, 328 S.E.2d (W.Va. 1985)(same); Hayes v. Hawes, 921

F.2d 100, 103-104 (7th Cir. 1990)(no violation where Navy undercover agent, who had

"received information" a that a sailor had purchased drugs at an off-base arcade, with several

other military agents joined local police for surveillance of the arcade, made a drug buy in

cooperation with local police who made the arrest and conducted the search of civilian).

81

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. 18 U.S.C. 1385 (emphasis added).

82

United States v. Walden, 490 F.2d 372, 276 (4th Cir. 1974)("there is totally lacking any

evidence that there was a conscious, deliberate or willful intent on the part of the Marines

or the . . . Special Investigator to violate the Instruction or the spirit of the Posse Comitatus

Act. From all that appears, the Special Investigator acted innocently albeit ill-advisedly");

State v. Danko, 219 Kan. 490, 548 P.2d 819, 822 (1976)("the statute is limited to deliberate

use of armed force for the primary purpose of executing civilian laws")(quoting Furman,

Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 MILITARY LAW

REVIEW 85, 128 (1960)); Kim v. State, 817 P.2d 467, 469 n.2 (Alaska, 1991)(Rabinowitz,

J. dissenting)("A will to violate the Act is not required, but only the wilful use of military

personnel").

In other instances, Congress has used the term "willful" in a number of different ways

and the term "has been construed by the courts in a variety of ways, often inconsistent and

contradictory. The courts have defined a `willful' act as an act done voluntarily as

distinguished from accidentally, an act doe with specific intent to violate the law, an act

done with bad purpose, an act done without justifiable excuse, an act done stubbornly, an

act done without grounds for believing it is lawful, and an act done with careless disregard

whether or not one has the right so to act," S.Rep.No. 307, 97th Cong., 1st Sess. 64 (1981).

Recent Supreme Court cases seem to caution against a broad interpretation of the term

"willful" or any of the other state-of-mind elements in federal criminal statute, Bryan v.

United States, 524 U.S. 184, 191-92 (1998)(“The word willfully is sometimes said to be a

word of many meanings whose construction is often dependent on the context in which it

appears. . . . As a general matter, when used in the criminal context, a willful act is one

undertaken with a bad purpose. In other words, in order to establish a willful violation of

a statute, the Government must prove that the defendant acted with knowledge that his

conduct was unlawful”)(citing Ratzlaf v. United States, 510 U.S. 135, 137 (1994)).

CRS-36

Execute the Law

When has the Army or Air Force been used "to execute the laws"? The

language of the Act by itself seems very sweeping.83 It is comparable to the

instruction of the Constitution that the President "take care that the laws are faithfully

executed," U.S. Const. Art.II, §3. Without more, it would seem to prohibit the use

of the Army or the Air Force to implement the command or authorization of all state

or federal law. It might apply with equal force to delivering the mail or making an

arrest.

Existing case law and commentary indicate that "execution of the law" in

violation of the Posse Comitatus Act occurs (a) when the armed forces perform tasks

ordinarily assigned not to them but to an organ of civil government, or (b) when the

armed forces perform tasks assigned to them solely for purposes of civilian

government.

While inquiries may surface in other contexts such as the use of the armed

forces to fight forest fires or to provide assistance in the case of other natural

disasters,84 Posse Comitatus Act questions arise most often when the armed forces

assist civilian police. This is perhaps not surprising since it is the use that stimulated

83

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. 18 U.S.C. 1385 (emphasis added).

84

See e.g., Copeland & Lamb, Disaster Law and Hurricane Andrew: Government Lawyers

Leading the Way to Recovery, 27 URBAN LAWYER 1 (1995); Delzompo, Warriors on the

Fire Line: The Deployment of Service Members to Fight Fire in the United States, 1995

ARMY LAWYER 51 (April, 1995); Federal Disaster Assistance: Report of the Senate Task

Force on Funding Disaster Relief, SEN. DOC.104-4 (1995).

Congress has recently established provisions which at first glance might appear to be

a blanket statutory exception of military assistance to civil authorities for any purpose other

than police activities ("[t]he Secretary of Defense shall establish a program to be known as

the `Civil-Military Cooperative Action Program.' Under the program, the Secretary may,

in accordance with other applicable law, use the skills, capabilities, and resources of the

armed forces to assist civilian efforts to meet the domestic needs of the United States," 10

U.S.C. 410(a)). Upon closer examination, however, it becomes clear that legislation seeks

to encourage activity that would not previously have violated the Posse Comitatus Act or

its supplementary statutory and regulatory provisions ("The programs shall have the

following objectives: (1) To enhance individual and unit training and morale in the armed

forces through meaningful community involvement of the armed forces. (2) To encourage

cooperation between civilian and military sectors of society in addressing domestic needs.

(3) To advance equal opportunity. (4) To enrich the civilian economy of the United states

through education, training, and transfer of technological advances. (5) To improve the

environment and economic and social conditions. (6) To provide opportunities for

disadvantaged citizens of the United States. . . . Nothing in this section shall be construed

as authorizing -- (1) the use of the armed forces for civilian law enforcement purposes; or

(2) the use of Department of Defense personnel or resources for any program, project, or

activity that is prohibited by law," 10 U.S.C. 410(b),(e)); S.Rep.No. 102-352, 278-82 (1992);

H.R.Rep.No. 102-966, 762, reprinted in 1992 UNITED STATES CODE, CONGRESSIONAL AND

ADMINISTRATIVE NEWS 1769, 1853.

CRS-37

passage of the Act. During the debate, Members complained of various ways in

which the Army had been used, essentially as a police force, to break up labor

disputes, to collect taxes, to execute search and arrest warrants, and to maintain order

at the polls and during state legislative sessions.85

At least when suggested that the armed forces have been improperly used as a

police force, the tests used by most contemporary courts to determine whether such

military activity violates the Posse Comitatus Act were developed out of disturbances

at Wounded Knee on the Pine Ridge Indian Reservation in South Dakota and inquiry:

(1) whether civilian law enforcement officials made a "direct active use"

of military investigators to "execute the law";

(2) whether the use of the military "pervaded the activities" of the civilian

officials; or

(3) whether the military was used so as to subject "citizens to the exercise

of military power which was regulatory, prescriptive, or compulsory in nature."

Taylor v. State, 640 So.2d 1127, 1136 (Fla.App. 1994).86

The vast majority of cases called upon to apply these tests have found that the

assistance provided civilian law enforcement did not constitute "execution of the

law" in violation of Posse Comitatus Act requirements.87 Those most likely to fail

85

5 Cong.Rec. 2113 (1877); 6 Cong.Rec. 294-307, 322; 7 Cong.Rec. 3538, 3581-582, 3850,

4245 (1878).

86

See also, United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994); United States v. Yunis,

924 F.2d 1086, 1094 (D.C.Cir. 1991); Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990);

United States v. Gerena, 649 F.Supp. 1179, 1182 (D.Conn. 1986); United States v. Hartley,

678 F.2d 961, 978 n.24 (8th Cir. 1982); note the similarity to the tests used in the Wounded

Knee Cases, United States v. Jaramillo, 380 F.Supp. 1375, 1379-380 (D.Neb. 1974), appeal

dismissed, 510 F.2d 808 (8th Cir. 1975)(whether the use of military personnel affected or

materially contributed to the activities of civilian law enforcement officials); United States

v. Banks, 383 F.Supp. 368, 375 (D.S.D. 1974)(whether there was active participation of

military personnel in civilian law enforcement activities); United States v. Red Feather, 392

F.Supp. 916, 921 (D.S.D. 1975)(whether there was direct active use of military personnel

by civilian law enforcement officers); United States v. McArthur, 419 F.Supp. 186 (D.N.D.

1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976)(whether

"Army or Air Force personnel [were] used by the civilian law enforcement officers in such

manner that the military personnel subjected the citizens to the exercise of military power

which was regulatory, prescriptive, or compulsory in nature, either presently or

prospectively").

87

United States v. Yunis, 924 F.2d 1086, 1094 (D.C.Cir. 1991)(Navy transportation of

prisoner in the custody the FBI); Hall v. State, 557 N.E.2d 3, 4-5 (Ind.App. 1990)(the [Air

Force] Office of Special Investigations (OSI) asked Arthur Biles and Darryl Ivery, Air Force

personnel, if they would be undercover agents to assist the Kokomo Police Department in

drug investigations. . . . Biles and Ivery met with an OSI agent and Kokomo police officers

to prepare for a controlled buy of cocaine. The police placed a body transmitter on Biles .

. .. Hall met Biles and told him he could get him anything he wanted. . . . Biles gave [Hall

sixty dollars ($60.00) to purchase one-half gram of cocaine. Hall walked to his sister's car

CRS-38

the tests seem to be those where the activities appear to have a colorable military

purpose but the government fails to make a convincing showing.88

. . . and returned with the cocaine. Biles negotiated to buy two more bags of cocaine for

one-hundred ten dollars. [Biles and Ivery testified at Hall's subsequent trial for dealing

cocaine.] . . . Adopting the standard in [United States v.] McArthur, [419 F.Supp. 186

(D.N.D. 1975), aff'd, 541 F.2d 1275 (8th Cir. 1976)], we do not find that the acts of Biles

and Ivery display the unauthorized exercise of military power that is `regulatory,

prescriptive, or compulsory in nature); United States v. Bacon, 851 F.2d 1312 (11th Cir.

1988)("an active-duty army investigator assumed an undercover role in working jointly with

the . . . Sheriff's Department to ferret out a source of some of the cocaine being supplied to

[the area for] both civilians and army personnel. . . . Army funds were used for some of the

undercover drug `buys.' State and local funds were used for others. All drugs and other

evidence gathered by Army Investigator Perkins were turned over to the state and local

investigators for evidence in the prosecution of drug distributor Joe Bacon. . . . There was

no `military permeation of civilian law enforcement.' In this case the limited military

participation was nothing more than a case of assistance to civilian law enforcement efforts

by military personnel and resources. This does not violate the statutory prohibition of the

Posse Comitatus Act")[note that the courts do not seem to have accepted the proposition that

military undercover participation without a primary military purpose is a per se violation of

the Posse Comitatus Act or at least of DoD Dir. No. 5525.5 (Encl.4) A.3. ("except as

otherwise provided in this enclosure, [e.g., when done primarily for a military purpose], the

prohibition on the use of military personnel `as a posse comitatus or otherwise to execute

the laws prohibits . . . d. Use of military personnel for surveillance. . . or as undercover

agents. . . ."]);United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986)(Air Force

assistance to a customs agent tracking an aircraft suspected of smuggling marijuana into the

United States);United States v. Gerena, 649 F.Supp. 1179, 1182 (D.Conn. 1986)(military

transport of prisoner in the custody of the Marshals Service);Airway Heights v. Dilley, 45

Wash.App. 87, 92, 724 P.2d 407, 410 (1986)(use of Air Force technician and equipment to

administer breathalyzer test).

88

E.g., Accord, Taylor v. State, 645 P.2d 522, 525 (Okla.Crim.[App.] 1982). See also,

United States v. Walden, 490 F.2d 372 (4th Cir. 1974); Taylor v. State, 640 So.2d 1127,

1136 (Fla.App. 1994)("[m]ilitary participation in civilian law enforcement activities is

restricted by the Federal Posse Comitatus Act, 18 U.S.C. 1385, and by 10 U.S.C. §375.

Cases addressing this issue have ruled that where military involvement is limited and there

is an independent military purpose, `the coordination of military police efforts with those

of civilian law enforcement officials does not violate either [section 1385 or section 375].'

Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 1990). . . . In this case, the activities of the NIS

[Naval Investigative Service] agents permeated the initial stages of the homicide

investigation. Upon ascertaining that appellant [a sailor subsequently convicted in state

court on two counts of first degree murder] purchased a one-way ticket to Virginia, the NIS

agents obtained authorization form his commanding officer enabling them to arrest appellant

on grounds of desertion for unauthorized absence. They agents traveled to Virginia, where

they interviewed appellant's family members and kept them under surveillance. When

appellant was found and taken into custody, the NIS agents questioned him about the

homicides, obtained oral and written statements from him, and seized his clothing and other

personal effects. The NIS agents then transported appellant to Jacksonville, where they

turned him over to the civilian authorities. . . . [T]he NIS agent stated candidly that his

primary purpose in traveling to Virginia was to question appellant about the homicides. We

conclude the nature of the military involvement in the investigation may have constituted

a violation of the federal Act. . .").

CRS-39

Military Coverage

Navy & Marines

The Posse Comitatus Act proscribes use of the Army or the Air Force to execute

the law.89 It says nothing about the Navy, the Marine Corps, the Coast Guard, or the

National Guard. The amendment first offered to the Army appropriation bill in 1878

to enact the Posse Comitatus provisions would have prohibited use of "any part of

the land or naval forces of the United States" to execute the law, 7 Cong.Rec. 3586

(1878). Some commentators believe that sponsors subsequently limited the posse

comitatus amendment to the Army appropriation bill in order to avoid challenges on

grounds of germaneness.90 The courts have generally held that the Posse Comitatus

Act by itself does not apply to the Navy or the Marine Corps.91 They maintain,

however, that those forces are covered by similarly confining administrative and

89

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. 18 U.S.C. 1385 (emphasis added).

90

The Navy's Role in Interdicting Narcotics Traffic: War on Drugs or Ambush of the

Constitution? 75 GEORGETOWN LAW JOURNAL 1947, 1955 (1987); Meeks, Illegal Law

Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 MILITARY

LAW REVIEW 83, 101 (Fall, 1975). Under long standing rules of the House, an amendment

that deals with a subject different from those contained in the bill which it seeks to amend

is nongermane and subject to challenge. If the posse comitatus amendment sponsors

adjusted their amendment solely for reasons of germaneness, one would expect to find a

comparable amendment in the Navy appropriation bill before the Congress at the same time.

So such amendment was offered to the Navy bill, 46 Stat. 48 (1878).

91

United States v. Mendoza-Cecelia, 963 F.2d 1467, 1477 (11th Cir. 1992); United States

v. Yunis, 924 F.2d 1086, 1093 (D.C.Cir. 1991); State v. Short, 113 Wash.2d 35, 38, 775 P.2d

458, 459 (1989); United States v. Ahumedo-Avendano, 872 F.2d 367, 372 n.6 (11th Cir.

1989); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1339-340 (9th Cir. 1987);

United States v. Roberts, 779 F.2d 565, 567 (9th Cir. 1986); United States v. Walden, 490

F.2d 372, 374 (4th Cir. 1974).

CRS-40

legislative supplements,92 the most currently applicable of which appear in the DoD

Directive.93

92

United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994)("[t]hus the Posse Comitatus Act

applies to the Navy through section 375 [of title 10 of the United States Code] and 32 C.F.R.

§213.10"); Taylor v. State, 640 So.2d 1127, 1136 (Fla.App. 1994)("[m]ilitary participation

in civilian law enforcement activities is restricted by the federal Posse Comitatus Act, 18

U.S.C. §1385, and by 10 U.S.C. §375"); United States v. Yunis, 924 F.2d 1086, 1094

(D.C.Cir. 1991)) ("[r]egulations issued under 10 U.S.C. §375 require Navy compliance with

the restrictions of the Posse Comitatus Act. . ."); Hayes v. Hawes, 921 F.2d 100, 102-103

(7th Cir. 1990)(". . .10 U.S.C. §375 and the regulations promulgated thereunder at 32 C.F.R.

§§213.1-213.11 make the proscriptions of [18 U.S.C.] §1385 applicable to the Navy and

serve to limit its involvement with civilian law enforcement officials"); State v. Short, 113

Wash.2d 35, 39, 775 P.2d 458, 460 (1989)("[b]ecause the limitations on the use of the armed

services contained in 10 U.S.C. §375 correspond closely with those in the posse comitatus

act, the same analysis should apply"); United States v. Ahumedo-Avendano, 872 F.2d 367,

372 n.6 (11th Cir. 1989)("[t]he Posse Comitatus Act does not expressly regulate the use of

naval forces as a posse comitatus; the courts of appeal that have considered this question,

however, have concluded that the prohibition embodied in the Act applies to naval forces,

either by implication or by virtue of executive act"); United States v. Roberts, 779 F.2d 565,

568 (9th Cir. 1986)(" . . .the Posse Comitatus Act and sections 371-378 of Title 10 embody

similar proscriptions against military involvement in civil law enforcement. . . "); United

States v. Del Prado-Montero, 740 F.2d 113, 116 (1st Cir. 1984)("18 U.S.C. 1385 prohibits

the use of the Army and the Air Force to enforce the laws of the United States, a

proscription that has been extended by executive act to the Navy"); United States v.

Chaparro-Almeida, 679 F.2d 423, 425 (5th Cir. 1982)(dicta in case involving the Coast

Guard); United States v. Walden, 490 F.2d 372, 373-74 (4th Cir. 1974)("[t]he use of Marines

as undercover investigators by the Treasury Department is counter to a Navy military

regulation proscribing the use of military personnel to enforce civilian laws. . . . Thus,

though by its terms the Posse Comitatus Act does not make criminal the use of Marines to

enforce federal laws, the Navy has adopted the restriction by self-imposed administrative

regulation").

As an examination of the cases listed above and in the previous footnote demonstrate,

although in basic agreement subsequent courts have sometime described their views as in

conflict. In fact, one camp will cite Walden for the proposition that the Posse Comitatus Act

does not apply to the Navy or Marines although its requirements have been adopted by

administrative and/or legislative supplements, while the other camp will cite Walden for the

assertedly contrary proposition that the Posse Comitatus Act requirements apply to the Navy

and Marines by way of regulation and/or legislative supplement. A third group takes an

abbreviate route to the same destination by simply citing Walden for the principle that the

Posse Comitatus Act applies to Navy and the Marines, see e.g., People v. Caviano, 148

Misc.2d 426, 560 N.Y.S.2d 932, 936 n.1 (1990); State v. Presgraves, 328 S.E.2d 699, 701

n.3 (W.,Va. 1985); State v. Maxwell, 328 S.E.2d 506, 509 n.4 (W.Va. 1985); People v.

Wells, 175 Cal.App.3d 876, 879, 221 Cal.Rprt. 273, 275 (1985); People v. Blend, 121

Cal.App.3d 215, 222, 175 Cal.Rprt. 263, 267 (1981).

93

"A. REISSUANCE AND PURPOSE

This Directive reissues reference (a) [DoD Directive No. 5525.5 (March 22, 1982)] to

update uniform DoD policies and procedures to be followed with respect to support

provided to Federal, State, and local civilian law enforcement efforts. . . .

"APPLICABILITY AND SCOPE

1. This Directive applies to the Office of the Secretary of Defense (OSD), the Military

Departments, the Organization of the Joint Chiefs of Staff (OJS), the Unified and Specified

CRS-41

Coast Guard

The Posse Comitatus Act likewise says nothing about the Coast Guard. The

Coast Guard was formed by merging two civilian agencies, the revenue cutter service

and the lifesaving service. Although created and used for law enforcement purposes,

the cutter service had already been used as part of the military forces of the United

States by the time the Posse Comitatus Act was enacted.94

The Coast Guard is now a branch of the armed forces, located within the

Department of Transportation, 14 U.S.C. 1, but relocated within the Navy in time of

war or upon the order of the President, 14 U.S.C. 3. The Act does apply to the Coast

Guard while it remains part of the Department of Transportation.95 While part of the

Navy, it is subject to the orders of the Secretary of the Navy, 14 U.S.C. 3, and

consequently to any generally applicable directives or instructions issued under the

Department of Defense or the Navy.

As a practical matter, however, the Coast Guard is statutorily authorized to

perform law enforcement functions, 14 U.S.C. 2. Even while part of the Navy its law

enforcement activities would come within the statutory exception to the posse

comitatus restrictions, and the restrictions applicable to components of the

Department of Defense would only apply to activities beyond those authorized.

National Guard

The Act is silent as to what constitutes "part" of the Army or Air Force for

purposes of proscription. There is little commentary or case law to resolve questions

concerning the coverage of the National Guard, the Civil Air Patrol, civilian

employees of the armed forces, or regular members of the armed forces while off

duty.

Strictly speaking, the Posse Comitatus Act predates the National Guard only in

name for the Guard "is the modern Militia reserved to the States by Art.I, §8, cls.15,

16, of the Constitution" which has become "an organized force, capable of being

assimilated with ease into the regular military establishment of the United States,"

Maryland v. United States, 381 U.S. 41, 46 (1965). There seems every reason to

consider the National Guard part of the Army or Air Force, for purposes of the Posse

Comitatus Act, when in federal service.96 When not in federal service, historical

Commands, and the Defense Agencies (hereafter referred to collectively as DoD

Components). The term `Military Service,' as used herein, refers to the Army, Navy, Air

Force, and Marine Corps."

94

See 46 Stat. 316 (1878), directing the Secretary of the Treasury to issue three months

extra pay to those who had engaged in the military service of the United States during the

war with Mexico and listing the cutter service as one source of possibly qualifying service.

95

United States v. Chaparro-Almedia, 679 F.2d 423, 425 (5th Cir. 1982); Jackson v. State,

572 P.2d 87, 93 (Alaska, 1977).

96

Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse

Comitatus Act, 70 MILITARY LAW REVIEW 83, 96-9 (Fall, 1975); Furman, Restrictions Upon

CRS-42

reflection might suggest that it is likewise covered. Recall that it was the state

militia, called to the aid of the marshal enforcing the Fugitive Slave Act, which

triggered Attorney General Cushing's famous opinion. And that the Posse Comitatus

Act's reference to "posse comitatus or otherwise" is a "they-are-covered-no-matterwhat-you-call-them" response to the assertion derived from Cushing's opinion that

troops could be used to execute the law as long as they were acting as citizens and

not soldiers when they did so.

On the other hand, the National Guard is creature of both state and federal law,

a condition which as the militia it has enjoyed since the days of the Articles of

Confederation.97 And the courts have said that members of the National Guard when

not in federal service are not covered by the Posse Comitatus Act.98 Similarly, the

Use of the Army Imposed by the Posse Comitatus Act, 7 MILITARY LAW REVIEW 85, 101

(January, 1960).

97

The status of the District of Columbia National Guard is somewhat different since it is

a creature entirely of federal creation. This being the case it might be thought that the D.C.

National Guard should be considered perpetually "in federal service" or that the Posse

Comitatus Act would apply to it at all times even though the treatment of the National Guard

in the various states might be different. This, however, is not the view of the Department

of Justice which has concluded the Posse Comitatus Act applies to the D.C. National Guard

only when it is called into federal service as a state National Guard might be. The

Department has also determined that even if this were not the case the Posse Comitatus Act

permits the D.C. National Guard to "to support the drug law enforcement efforts" of the

D.C. police because of the authority granted by Congress in D.C. Code 39-104 (declaring

that the D.C. National Guard shall not be subject to any duty except when called into federal

service or to "aid civil authorities in the execution of the laws or suppression of

riots"[D.C.Code §39-603 authorizes D.C. officials, in times of tumult, riot, or mob violence,

to request the President to call out the D.C. National Guard to aid "in suppressing such

violence and enforcing the laws"]) and D.C.Code §39-602 (authorizing the Commanding

General of the D.C.National Guard to order "such drills, inspections, parades, escort, or

other duties, as he may deem proper")(emphasis added), Use of the National Guard to

Support Drug Interdiction Efforts in the District of Columbia, 13 OP.OFF. LEGAL COUNSEL

110 (1989).

98

Gilbert v. United States, 165 F.3d 470, 473 (6th Cir. 1999); United States v. Hu

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