The Posse Comitatus Act and Related Matters: A Sketch

Order Code RS20590

Updated June 6, 2005

CRS Report for Congress

Received through the CRS Web

The Posse Comitatus Act and Related

Matters: A Sketch

Jennifer Elsea

Legislative Attorney

American Law Division

Summary

The Posse Comitatus Act states that: 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. It reflects an American tradition that bridles at military involvement

in civilian affairs. Congress, however, has approved a number of instances where

extraordinary circumstances warrant a departure from the general rule, particularly in

cases where the armed forces provide civilian assistance without becoming directly

involved in civilian law enforcement. This is an abridged version of The Posse

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

CRS Report 95-964 in which the authorities for the statements made here may be found.

This report summarizes proposed bills that could result in increased interaction between

military and civil authorities. (H.R. 1986, H.R. 1815, S. 1042, S. 1043).

The Posse Comitatus Act, 18 U.S.C. § 1385, is perhaps the most tangible expression

of an American tradition , born in England and developed in the early years of our nation,

that rebels against military involvement in civilian affairs. 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.” 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, and by entrusting control to civil authorities

within the states. The Constitution continued the theme. 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. The Bill of Rights limited the quartering of troops in private homes, U.S.

Const. 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.

Congressional Research Service ˜ The Library of Congress

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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. 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. 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.

Congress in some cases specifically authorized recourse to the posse comitatus for

the enforcement of particular statutes. 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 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). Attorney General Caleb Cushing declared that the

“bystanders” contemplated by the Fugitive Slave Act might include members of a state

militia even when not in federal service, and in fact encompassed members of the armed

forces by virtue of their duties as citizens as part of the posse comitatus.

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. The Posse Comitatus Act was passed as part of an Army

appropriations bill in response. With exception of a reference to the Air Force, it has

remained essentially unchanged ever since, 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. While the war against terrorism has led some to call for a reexamination of the

role of the military in domestic law enforcement, Congress, in establishing the

Department of Homeland Security, expressed its sense reaffirming the continued

importance and applicability of the Posse Comitatus Act. 6 U.S.C. § 466.

When the Act Does Not Apply

Constitutional Exceptions: The Posse Comitatus Act does not apply “in cases and

under circumstances expressly authorized by the Constitution,” 18 U.S.C. § 1385. It has

been observed that the Constitution contains no provision expressly authorizing the use

of the military to execute the law, that the exception was included as part of a face-saving

compromise, and that consequently it should be ignored. 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. The regulations covering the use of the 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. The question of whether the constitutional

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exception includes instances where the President is acting under implied or inherent

constitutional powers is one 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. 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. Second, over the years it has passed a fairly extensive array

of particularized statutes, like those permitting the President to call out the armed forces

in times of insurrection and domestic violence, 10 U.S.C. §§ 331-335. Finally, it has

enacted general legislation authorizing the armed forces to share information and

equipment with civilian law enforcement agencies, 10 U.S.C. §§ 371-382.

These last general statutes were crafted to resolve questions raised by the so-called

Wounded Knee cases (see below). The 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. §§ 371-382. Section 371 specifically authorizes 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. 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. Under sections 372 through 374, military equipment and facilities may be made

available to civilian authorities; members of the armed forces may train civilian police

on the operation and maintenance of equipment and may provide them with expert advice;

and military personnel may be employed to maintain and operate the equipment supplied.

The authority granted in sections 371-382 is subject to three general caveats. It may

not be used in any way that could undermine the military capability of the United States;

the civilian beneficiaries of military aid must pay for the assistance; and the Secretary of

Defense must issue regulations to ensure that the authority of sections 371 to 382 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.

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. Neither the Act nor its legislative history resolves 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. 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.

Willfully Execute the Laws. The Act is limited to “willful” misuse of the Army

or Air Force. The Senate version of the original Act would have limited proscription to

“willful and knowing” violations, 7 Cong. Rec. 4302 (1878); the House version had no

limitation, 7 Cong. Rec. 4181 (1878). The compromise which emerged from conference

opted to forbid only willful violations, but nothing in the legislative history explains what

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the limitation means. It seems unlikely that a court would convict for anything less than

a deliberate disregard of the law’s requirements.

When has the Army or Air Force been used “to execute the laws”? Existing case law

and commentary indicate that “execution of the law” in violation of the Posse Comitatus

Act occurs (a) when the armed forces perform tasks ordinarily assigned not to them but

to an organ of civil government, or (b) when the armed forces perform tasks assigned to

them solely for purposes of civilian government. While inquiries may surface in other

contexts, such as the use of the armed forces to fight forest fires or to provide assistance

in the case of other natural disasters, Posse Comitatus Act questions arise most often

when the armed forces assist civilian police.

The tests used by most contemporary courts to determine whether military forces

have been used improperly as police forces in violation of the Posse Comitatus Act were

developed out of disturbances in 1973 at Wounded Knee on the Pine Ridge Indian

Reservation in South Dakota and inquire: (1) whether civilian law enforcement officials

made a direct active use of military investigators to execute the law; (2) whether the use

of the military pervaded the activities of the civilian officials; or (3) whether the military

was used so as to subject citizens to the exercise of military power which was regulatory,

prescriptive, or compulsory in nature.

Military Coverage

Navy and Marines. The Posse Comitatus Act proscribes use of the Army or the

Air Force to execute the law. It says nothing about the Navy, the Marine Corps, the Coast

Guard, or the National Guard. The courts have generally held that the Posse Comitatus

Act by itself does not apply to the Navy or the Marine Corps. They maintain, however,

that those forces are covered by similarly confining administrative and legislative

supplements, which appear in the Department of Defense (DoD) Directive.

Coast Guard. The Posse Comitatus Act likewise says nothing about the Coast

Guard. The Coast Guard is a branch of the armed forces, located within the Department

of Homeland Security, 14 U.S.C. § 1 (as amended), but relocated within the Navy in time

of war or upon the order of the President, 14 U.S.C. § 3. The Act will apply to the Coast

Guard while it remains part of the Department of Homeland Security. While part of the

Navy, it is subject to the orders of the Secretary of the Navy, 14 U.S.C. § 3, and

consequently to any generally applicable directives or instructions issued under the

Department of Defense or the Navy. As a practical matter, however, the Coast Guard is

statutorily authorized to perform law enforcement functions, 14 U.S.C. § 2. Even while

part of the Navy its law enforcement activities would come within the statutory exception

to the posse comitatus restrictions, and the restrictions applicable to components of the

Department of Defense would only apply to activities beyond those authorized.

National Guard. The Act is silent as to what constitutes “part” of the Army or Air

Force for purposes of proscription. There is little commentary or case law to resolve

questions concerning the coverage of the National Guard, the Civil Air Patrol, civilian

employees of the armed forces, or regular members of the armed forces while off duty.

Strictly speaking, the Posse Comitatus Act predates the National Guard only in name

for the Guard “is the modern Militia reserved to the States by Art. I, § 8, cls.15, 16, of the

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Constitution” which has become “an organized force, capable of being assimilated with

ease into the regular military establishment of the United States,” Maryland v. United

States, 381 U.S. 41, 46 (1965). There seems every reason to consider the National Guard

part of the Army or Air Force, for purposes of the Posse Comitatus Act, when in federal

service. When not in federal service, historical reflection might suggest that it is likewise

covered. Recall that it was the state militia, called to the aid of the marshal enforcing the

Fugitive Slave Act, which triggered Attorney General Cushing’s famous opinion. The

Posse Comitatus Act’s reference to “posse comitatus or otherwise” is meant to abrogate

the assertion derived from Cushing’s opinion that troops could be used to execute the law

as long as they were acting as citizens and not soldiers when they did so.

On the other hand, the National Guard is creature of both state and federal law, a

condition which as the militia it has enjoyed since the days of the Articles of

Confederation. Courts have held that members of the National Guard when not in federal

service are not covered by the Posse Comitatus Act. Similarly, the DoD directive is only

applicable to members of the National Guard when they are in federal service.

Off Duty, Acting as Citizens and Civilian Employees. The historical

perspective fares little better on the question of whether the Posse Comitatus Act extends

to soldiers who assist civilian law enforcement officials in a manner which any other

citizen would be permitted to provide assistance, particularly if they do so while off duty.

Congress passed the Act in response to cases where members of the military had been

used based on their civic obligations to respond to the call as the posse comitatus. The

debate in the Senate, however, suggests that the Act was not intended to strip service

members of all civilian rights and obligations. The more recent decisions have focused

on the nature of the assistance provided and whether it is incidental to action taken

primarily for a military purpose.

Some have questioned whether civilian employees of the armed forces should come

within the proscription of the Act, but most, frequently without comment, seem to

consider them “part” of the armed forces for purposes of the Posse Comitatus Act. The

current DoD directive expressly includes civilian employees “under the direct command

and control of a military officer” within its Posse Comitatus Act policy restrictions.

Geographical Application

The Posse Comitatus Act contains no expression of extraterritorial application, but

it seems unlikely that it was meant to apply beyond the confines of the United States, its

territories and possessions. Congress enacted it in response to problems occurring within

the United States and its territories, problems associated with the American political

process and policies and actions that promoted military usurpation of civilian law

enforcement responsibilities over Americans. Congress does appear to have intended the

authority and restrictions contained in 10 U.S.C. §§ 371-382 to apply both in the United

States and beyond its borders.

Consequences of Violation

Prosecution. The Posse Comitatus Act is a criminal statute under which there has

apparently never been a prosecution. It has been invoked with varying degrees of success,

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however, to challenge the jurisdiction of the courts, as a defense in criminal prosecutions

for other offenses, as a ground for the suppression of evidence, as the grounds for, or a

defense against, civil liability, and as a means to enjoin proposed actions by the military.

Exclusion of Evidence. Allegations that the Posse Comitatus Act has been

violated are made most often by defendants seeking to exclude related testimony or

physical evidence, but most cases note the absence of an exclusionary rule, often avoiding

unnecessary analysis of the scope of the Act and whether a violation has occurred.

Jurisdiction and Criminal Defenses. Defendants have found the Act helpful

in prosecutions where the government must establish the lawfulness of its conduct as one

of the elements of the offense. Several defendants at Wounded Knee persuaded the court

that evidence of possible violations precluded their convictions for obstructing law

enforcement officials “lawfully engaged” in the performance of their duties.

Civil Liability. The Eighth Circuit has declared that a violation of the Act might

constitute an unreasonable search and seizure for purposes of the Fourth Amendment,

giving rise to a Bivens cause of action against offending federal officers or employees.

Compliance. The most significant impact of the Posse Comitatus Act is

attributable to compliance by the armed forces. As administrative adoption of the Act for

the Navy and Marines demonstrates, the military has a long standing practice of avoiding

involvement in civilian affairs which it believes are contrary to the Act, and which date

back to military acceptance of civilian authority since the founding of the Republic.

Proposed New Exceptions

H.R. 1986 would amend title 10 to allow the Secretary of Defense to provide

military personnel to assist the Department of Homeland Security when necessary to

respond to “a threat to national security posed by the entry into the United States of

terrorists, drug traffickers, or illegal aliens.” Specially trained service members could be

assigned to assist the Bureau of Border Security and the U.S. Customs Service, but would

not be authorized to carry out searches, seizures, or other similar law enforcement

activities. The Secretary would be empowered to establish ongoing joint task forces to

carry out these activities. Military members would first have to undergo training in issues

related to law enforcement in border areas and would have to be accompanied by civilian

law enforcement officers. H.R. 1986 passed the House as section 1035 of the National

Defense Authorization Act for FY2006 (H.R. 1815), but without a limitation that would

have ended the authority after September 30, 2007.

S. 1042 and S. 1043, the Senate Defense authorization bills, would add a new

section 383 to title 10, which would authorize the Secretary of Defense to use unmanned

aerial vehicles and DoD personnel to conduct aerial reconnaissance within U.S. Northern

Command’s area of responsibility, in order to monitor air and sea traffic along the border

and coastline, and to communicate resulting information to the appropriate federal, state,

and local law enforcement officials. The activity would be funded from counterdrug

appropriations. The prohibitions against military personnel participating in searches,

seizures, or arrests would apply.