Permissibility Under Posse Comitatus Act of Detail of Defense

Department Civilian Employee to the National Infrastructure

Protection Center

The proposed detail of a civilian employee o f the Department of Defense to the National Infrastructure

Protection Center, a component o f the Federal Bureau o f Investigation, is perm issible under the

Posse Comitatus Act.

May 26, 1998

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l

F e d e r a l B u r e a u o f I n v e s t i g a t i o n

This memorandum responds to your request that the Office of Legal Counsel 

consider the effect of the Posse Comitatus Act (“ PCA” ), 18 U.S.C. § 1385 (1994), 

on a proposed staffing and organizational arrangement whereby a civilian 

employee of the Department of Defense will be detailed to the National Infrastructure Protection Center ( “ NIPC” ) to serve in that office as a deputy chief. We 

conclude that the proposed arrangement is permissible under the PCA.

We draw our understanding of the proposed staffing and organizational arrangement of the NIPC from several discussions that we have had with your office 

and the Department of Defense and two memoranda that you have sent to us 

on this matter.1 The NIPC is a component within the Federal Bureau of Investigation (“ FBI” ) that, we understand, will coordinate and integrate the policy and 

planning of the United States government in connection with the security of the 

Nation’s computer and information technology infrastructure. In addition, the 

NIPC will exercise supervision over certain FBI criminal investigations relating 

to matters of infrastructure security.

Under the organizational plan that you have described to us, the NIPC will 

be headed by a chief, who will be an official of the FBI. In addition, there will 

be two deputy chiefs. One deputy chief will be an FBI employee, and this FBI 

deputy will have supervisory authority over all criminal investigatory matters 

involving the NIPC. The second deputy chief will be detailed to the FBI from 

the Department of Defense pursuant to a memorandum of understanding 

(“ MOU” ) between the two agencies.2 The MOU will provide that the Defense 

deputy will have no supervisory authority over criminal investigatory matters. The 

Defense deputy will supervise other NIPC matters relating, for example, to policy

1 Memorandum for Beth Nolan, Deputy Assistant Attorney General, Office of Legal Counsel, from Larry R Parkinson. General Counsel, Federal Bureau of Investigation, Re Request fo r Opinion on Certain Posse Comitatus Act

Issues (Mar 25, 1998), and Memorandum for Beth Nolan, Deputy Assistant Attorney General, Office of Legal 

Counsel, from Larry R Parkinson, General Counsel, Federal Bureau of Investigation, Re Supplement to Posse Comitaliis Act Opinion Request (Apr 23, 1998)

2 By virtue of being a detailee to the FBI, the deputy chiet from the Department of Defense will be, at least 

in some regards, an employee of the FBI See infra note 5 For clanty, we refer to him here as the “ Defense 

deputy ”

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Opinions of the Office o f Legal Counsel in Volume 22

and coordination. We further understand that your staffing arrangements call for 

the detailee from Defense to be a civilian employee of that department. Finally, 

we understand that in the event o f a vacancy for any reason in the position of 

chief of NIPC, the FBI deputy chief will be first in the order of succession and 

that under no circumstances will the Defense deputy fill such a vacancy.

I.

Our review of this proposal begins with the text of the PCA. The PCA prohibits 

the use of “ any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws.” 3 18 U.S.C. § 1385. The PCA does not, by its terms, 

apply to Navy or Marine Corps personnel. Hayes v. Hawes, 921 F.2d 100, 102- 

03 (7th Cir. 1990); Electronic Surveillance Opinion at 2 n.l.

The Department of Defense has implemented the restrictions of the PCA and 

related statutes through Departmental Directive 5525.5, “ DoD Cooperation with 

Civilian Law Enforcement Officials” (Jan. 15, 1986). The Directive applies the 

restrictions of the PCA to the Navy and Marine Corps, as well as the Army and 

Air Force. Directive 5525.5(B). Unless we indicate otherwise by use of a more 

specific reference or citation, we use the term “ PCA” to refer to the original 

statute itself, the related statutes, and the implementing Directive of the Department of Defense.

Relevant caselaw and opinions of this Office reflect the view that the PCA 

is intended to prohibit military personnel from directly coercing, threatening to 

coerce, or otherwise regulating civilians in the execution of criminal or civil laws. 

See, e.g., Allred, 867 F.2d at 871; Bissonette v. Haig, 776 F.2d 1384, 1390 (8th 

Cir. 1985); Electronic Surveillance Opinion at 7; Letter for Deanne Siemer, General Counsel, Department of Defense, from Mary C. Lawton, Deputy Assistant 

Attorney General, Office of Legal Counsel at 2 (Mar. 24, 1978) (regarding use 

of military personnel to assist Department of Justice in fraud investigations against 

contractors for Department of Defense) (“ Fraud Investigations Opinion” ).

In applying this general prohibition, courts and this Office have generally 

focused on three factors. First, the PCA is violated where civilian law enforcement 

authorities make “ direct active use” of military personnel to execute the laws.

3 The phrase “ posse comitatus” translates from Latin as the “ power of the county” and was used at common 

law to refer to local citizens over the age of 15 upon whom a sheriff could call for assistance in preventing any 

type o f civil disorder United States v Yunis, 681 F Supp 891 n.l (D.D.C 1988) (citations omitted), a ffd , 924 

F.2d 1086 (D C . Cir. 1991) The PCA was adopted in 1878 in response to objections from southern States to the 

participation of the United States Army in civilian law enforcement during the Reconstruction penod. United States

v Allred, 867 F.2d 856, 870 (5th Cir. 1989), Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal 

Division, from W alter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use o f Military Personnel

fo r Monitoring Electronic Surveillance at 7 (Apr. 5, 1994) (“ Electronic Surveillance Opinion")

The PCA has been supplemented by other statutes, 10 U.S C §§ 371-382 (1994 & Supp. N 1996), which authonze 

military assistance to civilian law enforcement agencies in specific types of matters. Section 375 of title 10 requires 

the Secretary of Defense to prescribe “ such regulations as may be necessary” to ensure that such assistance does 

not include certain direct participation by military personnel in civilian law enforcement matters, such as conducting 

searches and seizures or making arrests, id. § 375, as would be prohibited by the PCA itself. See id. § 378.

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Permissibility Under Posse Comitatus Act o f D etail o f Defense Department Civilian Employee to the

N ational Infrastructure Protection Center

United States v. Red Feather, 392 F. Supp. 916, 921 (D.S.D. 1975); see Yunis,

681 F. Supp. at 892; Military Use o f Infrared Radars Technology to Assist Civilian

Law Enforcement Agencies, 15 Op. O.L.C. 36, 45—46 (1991); Fraud Investigations

Opinion at 11, 15.

Second, the PCA may be violated when the use of military personnel pervades 

the activities of civilian law enforcement. Hayes, 921 F.2d at 104; United States

v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988); United States v. Hartley, 796 

F.2d 112, 114 (5th Cir. 1986); United States v. Hartley, 678 F.2d 961, 978 (11th 

Cir. 1982); Yunis, 681 F. Supp. at 892; United States v. Jaramillo, 380 F. Supp. 

1375 (D. Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); Electronic

Surveillance Opinion at 9 (citing Yunis).

Third, the PCA prohibits military authorities from subjecting civilians to military regulations, proscriptions, or compulsions. United States v. McArthur, 419 

F. Supp. 186 (D.N.D.1975), a ffd sub nom. United States v. Casper, 541 F.2d 

1275 (8th Cir. 1976); Yunis, 681 F. Supp. at 892; 15 Op. O.L.C. at 45-46; see

also Bacon, 851 F.2d at 1313 (citizenry may not be subjected to the “ regulatory 

exercise of military power” ); Bissonette, 776 F.2d at 1390 (military may not actually regulate, forbid or compel some conduct by civilians).

Military personnel may assist in civilian law enforcement where the participation does not run afoul of the factors identified above. See, e.g.. United States

v. Stouder, 724 F. Supp. 951, 953 (M.D. Ga. 1989) (Air Force personnel may 

assist in conduct of FBI investigation); Electronic Surveillance Opinion at 9 (military personnel may monitor electronic surveillance transmissions for use in civilian 

law enforcement); Fraud Investigations Opinion at 13-15 (military personnel may 

provide advice to FBI investigation and share relevant information). Thus, this 

Office has previously concluded that the PCA, although prohibiting direct interaction between the military and civilian personnel in most circumstances, permits 

a broad degree of cooperation between the military and civilian law enforcement. 

15 Op. O.L.C. at 46 (citing legislative history of 10 U.S.C. §§371-382). More 

specifically, the PCA does not bar “ military expert advice or technical assistance 

to civilian authorities.” Fraud Investigations Opinion at 11. Such expert advice 

and technical assistance does not “ create the danger of military compulsion of 

civilians,” which Congress sought to prohibit through the PCA. Id.; see also

Bissonette, 776 F.2d at 1390 (distinguishing between military assistance and support for civilian law enforcement from active participation that would constitute 

military compulsion of civilians).

In addition, where the military has “ a legitimate interest” for its own proceedings or matters involving the “ internal administration [of the military] or the 

performance of its proper functions,” the military may participate, to the extent

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of its interest, in civil law enforcement.4 Fraud Investigations Opinion at 12, 14; 

see, e.g., Bacon, 851 F.2d at 1313 (military may aid civilian law enforcement 

investigation into illegal drug sales to “ both civilians and army personnel” ); 

Fraud Investigations Opinion at 13-15 (military may assist and participate in 

investigation into fraud by military contractors). Nothing in the PCA suggests that 

Congress intended to circumscribe military participation in legitimately military 

matters. Id. at 12-13.

n.

The staffing and organizational arrangements that you have proposed are 

permissible under the PCA because a civilian employee of the Department of 

Defense would not fall within the statutory or regulatory scope of the PCA.5 By 

its plain terms, the PCA applies only to personnel who are “ part” of the Army 

or Air Force. 18 U.S.C. § 1385 (unlawful to use “ any part of the Army or Air 

Force as a posse comitatus to execute the law” ); see also Bacon, 851 F.2d at 

1313 (applying PCA to “ military personnel” ); Hartley, 796 F.2d at 114 (same); 

Bissonette, 776 F.2d at 1389 (applying PCA to “ Army or Air Force personnel” ); 

Yunis, 681 F. Supp. at 892 (applying PCA to “ military personnel” ); see also

Transportation Opinion at 2 (military personnel detailed to civilian agency are 

not “ part” of the military and not subject to PCA); 10 Op. O.L.C. at 121 (PCA 

does not apply to military personnel functioning in civilian capacity under civilian 

command); cf. Memorandum for Jamie Gorelick, Deputy Attorney General, from 

Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use

o f Military to Enforce Immigration Laws at 9-10 (May 10, 1994) (distinguishing 

between “ employees of the United States” and “ members of the Armed 

Forces” ). Similarly, the Defense Directive, extending the statutory restrictions to

4 Conversely, the PCA prohibits military personnel in law enforcement matters “ that were of concern only to 

the civil authorities ” Fraud Investigations Opinion at 14 Military participation in such matters is impermissible 

because it would run afoul of the first factor in the PCA analysis, the direct active use of the military in civilian 

law enforcement. See id.

5 Earlier opinions of this Office concluded that military personnel who are detailed to a civilian agency are not 

covered by the PCA because they are employees of the civilian agency for the duration of their detail, “ subject 

to the exclusive orders” of the head of the civilian agency, and therefore “ are not ‘any part’ *’ of the military 

for purposes of the PCA Memorandum for Benjamin Forman, Assistant General Counsel, Department of Defense, 

from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re Legality o f deputizing military

personnel assigned to the Department of Transportation (Sept. 30, 1970) (“ Transportation Opinion” ) (military personnel detailed to the Department of Transportation to serve as security guards on civilian aircraft), see Assignment

o f Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 121 (1986) (PCA “ would not be implicated 

if [Army] lawyers were detailed on a full-time basis . in an entirely civilian capacity under the supervision 

of civilian personnel” )

The proposed duties of the Defense deputy, unlike those addressed in the opinions cited above, will involve supervisory authority and the formulation of policy As a result, it is not settled whether the rule reflected in these earlier 

opinions— that military personnel detailed to a civilian agency are not covered by the PCA— would apply to a mihtaiy 

officer detailed to the NIPC as a deputy chief. We do not rely, however, upon the status of the Defense deputy 

as a detailee for our conclusion in this opinion because we find that the fact that the Defense deputy will be a 

civilian employee o f the Department of Defense makes the proposed arrangement permissible under the PCA. Thus, 

we have not resolved— and we do not address here— whether or not the PCA would permit a detailed military 

officer to serve as an NIPC deputy chief

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Permissibility Under Posse Comitatus Act o f D etail o f Defense Department Civilian Employee to the

National Infrastructure Protection Center

the Navy and Marine Corps, excludes from its scope civilian employees of the 

Department. Directive 5525.5(B)(3) (restrictions do not apply to a “ civilian 

employee of the Department of Defense” ).6 This Office has distinguished between 

civilian and military personnel by applying the PCA to “ persons subject to military discipline.” Fraud Investigations Opinion at 11.

In addition, the bifurcated structure of the NIPC and the particular duties to 

be assigned under the proposed arrangement appear to make it unlikely that the 

Defense deputy will “ execute the laws” as that term is understood in the context 

of the PCA. Because the status of the Defense deputy as a civilian employee 

provides an independent basis for concluding that the proposed arrangement is 

permissible under the PCA, we do not resolve whether the structure of the NIPC 

and the duties of the Defense deputy provide an alternative basis for concluding 

that the proposed arrangement satisfies the PCA. Nonetheless, several considerations suggest that the proposed Defense deputy position, as you have described 

it, would be consistent with the PCA, independent of the civilian status of the 

occupant.7

The NIPC is structured so that the duties of the Defense deputy are separated 

from the oversight, control and conduct of NIPC criminal investigations. Thus, 

the actions that the Defense deputy will take appear unlikely to fall within the 

prohibitions of the PCA. The Defense deputy will have no direct or active involvement in criminal investigations. Moreover, the separation of the Defense deputy 

from criminal investigations diminishes the possibility that part of the military 

would “ pervade” the civilian investigations effort. Finally, given the bifurcated 

structure, it seems unlikely that the Defense deputy would be in a position to 

engage in civilian law enforcement activities that would subject the citizenry to 

military power.8

The duties of the Defense deputy appear to correspond with those responsibilities that this Office previously has found to be consistent with the requirements 

of the PCA. As we understand it from your descriptions, the role of the Defense 

deputy in connection with the development of policy and planning in the NIPC 

appears consistent with the provision of expert advice to civilian law enforcement 

authorities. See Fraud Investigations Opinion at 12. Moreover, the planning and 

coordination function of the Defense deputy appears to fit squarely with the earlier

6The exception for civilian employees does not extend to civilian employees who are “ under the direct command 

and control of a military officer ” Directive 5525.5(B)(3) We understand that the civilian employee to be detailed 

in connection with the NIPC deputy chief position will not be an individual from a component within the Department 

of Defense that is headed by a military officer Thus, the Defense deputy will be a civilian employee within the 

meaning of the Directive

7 Because our assessment in this regard is not determinative, in the event that the Defense deputy position were 

filled by a member of the military, and thus someone potentially subject to the prohibitions of the PCA while 

at the NIPC, see supra note 5, we would require a detailed examination of the relevant structure and duties lo 

determine whether they fully satisfy the requirements of the PCA

8 Because the proposed bifurcated structure appears to remove the Defense deputy from criminal investigative 

matters so completely, we have no occasion here to address the extent to which the PCA might permit the participation of the Defense deputy tn the law enforcement duties of the NIPC.

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observation of this Office that the PCA permits extensive cooperation between 

military and civilian officials without direct military participation in law enforcement. 15 Op. O.L.C. at 46.

In addition, we understand that the military has a significant interest.in the 

maintenance of infrastructure security in connection with the operation of the 

Nation’s defense systems and the prevention of hostile acts against the United 

States. Thus, the Defense deputy’s involvement in the NIPC will advance legitimate military ends, thus satisfying one of the considerations that we have looked 

to in determining the applicability of the PCA. See, e.g., Fraud Investigations

Opinion at 16 (concluding that the PCA permits military assistance to civilian 

law enforcement regarding matters related to the Department of Defense).

III.

Because the proposed deputy chief of the NIPC to be detailed to the FBI from 

the Department of Defense will be a civilian employee, the proposed arrangement 

is permissible under the PCA. In addition, the separation of the Defense deputy 

from the oversight and conduct o f criminal investigations, although not a basis 

for our conclusion in this opinion, also appears to be consistent with the requirements of the PCA.

WILLIAM MICHAEL TREANOR 

Deputy Assistant Attorney General

Office of Legal Counsel

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