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

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** June 1, 2000
- **Citation:** 95-964

## Text

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

CRS-10
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.

CRS-11
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 . . . ").

CRS-15
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").

CRS-23
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.

CRS-24
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

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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."

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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.

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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 inve

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A95-964. Public record. Not legal advice.