The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law
Released: 2000-06-01T00:00:00

Introduction

Americans have a tradition, born in England and developed in the early years of our nation, thatrebels against military involvement in civilian affairs. It finds its most tangible expression in thenineteenth century Posse Comitatus Act, 18 U.S.C. 1385. The Act forbids use of the Army and AirForce 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 balancebetween 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 toogenerously 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 moregenerous exceptions to the rule. Some of those calls have been answered, others have not. This isan effort to sketch the current state of the law.

Background

The Magna Carta gives us the first recorded acknowledgment of the origins of theAnglo-American tradition against military involvement in civilian affairs with its declaration that"no free man shall be . . . imprisoned . . . or in any other way destroyed . . . except by the legaljudgment of his peers or by the law of the land." (1) Subsequent legislation in the reign of Edward IIIexplained that this precluded punishment by the King except "in due Manner . . . or by Process madeby Writ. . . [or] by Course of the Law," (2) or as latermore simply stated, except "by due Process of theLaw." (3) Three hundred years after the passage of theEdwardian statutes, Lord Coke and othermembers of Parliament read these due process and law of the land requirements to include a broadprohibition against the use of martial law in peacetime, an interpretation they compelled KingCharles I to acknowledge. (4)

King Charles I, preparing for a military expedition in France, had quartered his troops in homes along the southern English coastline. (5) Riotingresulted, and the participants, both military andcivilian, 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 soughtand was granted the Petition of Right of 1628 which outlawed both quartering and martial lawcommissions. (6)

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. Theircircumstances, 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 themagainst 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 ratherthan military justice, and soldiers who employed more force than civilian law permitted werethemselves subject to civilian justice as the trials of the soldiers involved in the Boston Massacredemonstrates.

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, notto accomplish the transition between civil governments within a conquered territory as they had beenafter the French lost Canada to the British as a consequence of those conflicts, but as an independentmilitary force quartered among a disgruntled civilian population to police it. (7)

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 Militaryindependent of and superior to the civil power," and had "quarter[ed] large bodies of armed troopsamong us . . . protecting them, by a mock trial, from punishment for any murders which they shouldcommit 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 absolutelynecessary for the common defense, by entrusting control to civil authorities within the states, andby a preference for the farmer in arms as a member of the militia over the standing professionalarmy. (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 theArmy and Navy of the United States and that civilian authorities, the Congress, should be solelyempowered to raise and support Armies, provide and maintain a Navy, and make rules for theirgovernment and regulation. (10) The Bill of Rightslimited the quartering of troops in private homes,U.S.Const. Amend. III, and noted that "a well regulated Militia, being necessary to the security ofa 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 forcalling out the militia to execute the laws, suppress insurrection, and repel invasion, U.S.Const. Art.I,ï¿½8, 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," andsubsequently in cases of invasion, insurrection, or obstruction of the laws. (11)

Washington used this authority to put down the Whiskey Rebellion in Western Pennsylvania (12) and subsequent Presidents have relied upon it with some frequency for riot control or when inextreme cases they felt it necessary to ensure the execution of federal law. (13)

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 thePresident to call out the militia to overcome obstructions to law enforcement, it continued to vest thefederal equivalent of the sheriff, the federal marshal, with the power to call forth the posse comitatusin 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 whoseslaves had escaped to another state were entitled to an arrest warrant for the slaves and to have thewarrant executed by the federal marshals. The marshals in turn might "summon and call to their aidthe 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 theirservices 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 toprevent abolitionists from rescuing the prisoner before he could be returned to his owner. Themarshal subsequently filed a claim with the Treasury of the United States for reimbursement of thefunds 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 theclaim.

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, andannounced a broader principle -- members of the military by virtue of their duties as citizens werepart 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 themilitary of all denominations, militia, soldiers, marines, all of whom are alike bound to obeythe 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 legalcharacter. They are still the posse comitatus. (xxi Parl. Hist., p.672, 688, per Lord Mansfield)."6 Op.Att'y Gen. 466, 473 (1854). (16)

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 conflictbetween pro and anti-slavery forces in Kansas. Congress reacted with a rider to an Armyappropriations bill forbidding the use of any "part of the military forces of the United States toenforce territorial law in Kansas." (17) After somediscussion 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 beenlifted. By 1877, there was evidence that Republican state governments in more than one southernstate owed their continued political existence to the presence of the military and that the activitiesof federal troops may have influenced the outcome of the Hayes-Tilden presidential election. (18)

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 stategovernments in the South, or more precisely, to shore up either side of the political dispute inLouisiana or anywhere else. (19) The Senate,controlled by a Republican majority, refused to acceptthe provision. No compromise could be reached, and the session ended without passage of an Armyappropriation 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 appropriationsnext arose, the House included a posse comitatus section. (22) The Senate accepted the House versionwith minor amendments. (23)

The Posse Comitatus Act has remained essentially unchanged ever since, (24) although Congresshas authorized a substantial number of exceptions and has buttressed the Act with an additionalproscription 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 extentdoes the Posse Comitatus Act track constitutional requirements, beyond the power of the Presidentor Congress to adjust or ignore? (2) To what extent do the powers which the Constitution vests inthe President limit the power of Congress to enact the Posse Comitatus Act or any other provisionrestricting the President's discretion to involve the armed forces in civilian affairs? (3) Whatspecifically are the military law enforcement activities "expressly authorized in the Constitution" forpurposes 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 the antecedents of ourconstitutional due process clauses a prohibition against martial law -- a proscription which in timesof 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 punishingcivilians.

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 dueprocess, the visible protrusions of a larger, submerged constitutional principle which bars the use ofthe 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 theSupreme Court seem to acknowledge possible components of a larger principle in both YoungstownSheet and Tube Co. v. Sawyer , 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 theseamendments and the spirit of the Posse Comitatus Act, it has remained remarkably dormant. Thoseregions from which it might have been expected to emerge have been characterized most byinactivity. The boundaries of the Third Amendment are virtually uncharted. (29) The outreaches of theSecond Amendment are only slightly more visible. (30) Even in the inviting context of the PosseComitatus Act, the courts have generally avoided excursions into areas of its possible constitutionalunderpinnings. (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 ofconstitutional imperative when they take a form which offends some more explicit constitutionalprohibition or guarantee such as the right to jury trial, to grand jury indictment, or to freedom fromunreasonable searches and seizures. (32) Consequently, beyond those specific constitutional provisions,Congress' constitutional authority to enact and adjust the provisions of the Posse Comitatus Act islargely 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 arefaithfully executed, and designates him as Chief Executive and Commander in Chief of the armedforces. (33) In this dual capacity, the Presidency isthe repository of both extensive responsibilities andbroad prerogatives, not the least of which flow from Article IV, section 4 of the Constitution whichguarantees the states a republican form of government and protection against invasion and domesticviolence. (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 anemergency by appointing a marshal to protect a threatened Supreme Court justice, although nostatute 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 PrizeCases , 67 U.S.(2 Black) 635, 668 (1863). And when an emergency arises threatening the freedomof interstate commerce, transportation of the mails, or some other responsibility entrusted to thefederal government, he may call upon "the army of the Nation, and all its militia . . . to brush awaythe 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 Congressionaldirection 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 executionthe President must take care to observe and which carry into execution Congress' own powers andthose of the President, U.S.Const. Art.I, ï¿½8, cl.18; it likewise vests Congress with the power toestablish, maintain and regulate the armed forces, U.S.Const. Art.I, ï¿½8, cls.12, 13, & 14; and withthe power to describe the circumstances under which the militia may be called into federal service,U.S. Const. Art.I, ï¿½8, 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 thePresident's power under the guarantee clause of Article IV, section 4, which guarantees the statesprotection 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 forcesto met a domestic emergency when Congress has previously resisted an invitation to sanction theiremployment. (36) Finally, even when Congress hasdisclaimed any intent to limit the exercise of thePresident's constitutional powers, the President's inherent and incidental powers will not alwaystrump 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 authorizesuse of part of the Army or Air Force as a posse comitatus or otherwise to execute the law; (2) whenan act of Congress expressly authorizes use of part of the Army or Air Force as a posse comitatusor otherwise to execute the law; (3) when the activity in question does not involve use of part of thearmed 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 noprovision expressly authorizing the use of the military to execute the law, (39) that it was included aspart 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 armedforces to execute the laws; those who urged its passage believed the President possessed no suchpowers. As initially passed by the House, the bill contained no constitutional exception. (41) TheSenate version contained an exception for instances authorized by the Constitution whetherexpressed or otherwise. (42) The managers of eachHouse described the compromise reached atconference and subsequently enacted as upholding the position of their respective bodies on theissue. (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 ofthe President. (44) The regulations covering the useof the armed forces during civil disturbances donot go quite that far, but they do assert two constitutionally based exceptions -- sudden emergenciesand 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 was merely a face saving deviceis 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 doneso in three ways, by giving a branch of the armedforces civilian law enforcement authority, by establishing general rules for certain types ofassistance, and by addressing individual cases and circumstances with more narrowly craftedlegislation. Thus it has vested the Coast Guard, a branch of the armed forces, with broad lawenforcement responsibilities. (47) Second, over time it has enacted a fairly extensive array ofparticularized statutes, like those authorizing the President to call out the armed forces in times ofinsurrection and domestic violence, 10 U.S.C. 331-335. (48) Finally, it has passed general legislationpermitting the armed forces to share information and equipment with civilian law enforcementagencies, 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 isrequired than that Congress authorize a thing to be done. To those so inclined, the position is furtherfortified when the statute authorizes executive branch action and the President's faithful executionresponsibility (49) and the administrativehousekeeping statute (50) can be called into play. In this rarelyespoused view if an agency has statutory authority to perform a task, the military may be asked tohelp.

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 mentionthe 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 wouldordinarily be thought to amend any conflicting earlier law. On the other hand, the use of militaryforce in civilian affairs is such an extraordinary thing that perhaps it ought not be presumed and onlyfound were Congress has so stated in hoc verba.

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 specificallyrefer 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 casesgrew out of events beginning late in February of 1973, when an armed crowd broke into and looteda trading post in the village of Wounded Knee on the Pine Ridge Reservation in South Dakota. FBIagents, U.S. marshals, and Bureau of Indian Affairs police surrounded the village and besieged thegroup almost immediately. The take-over and events which occurred during the siege led to fourcases (54) involving a series of federal criminalcharges including obstructing a law enforcement officerin the lawful performance of his duties during the course of a civil disturbance. (55) Military assistanceprovided federal authorities at Wounded Knee undermined the prospects of a conviction under 18U.S.C. 231(a)(3). (56)

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 ofinformation 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 whichmilitary authorities might share technical advice, the results of reconnaissance flights or any otherforms of information with civilian law enforcement authorities. Section 371 specifically permits thearmed forces to share information acquired during military operations and in fact encourages thearmed 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 intelligenceconcerning civilian activities only where there is a nexus to an underlying military purpose. (58)

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 originallylimited to equipment provided by the armed forces, (60) but was expanded in 1988 to include trainingon any equipment regardless of its origin. (61)

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, fighterplanes, aircraft carriers and other implements of war offends the Posse Comitatus Act even if use canbe accomplished without the direct involvement of military personnel. The arsenal of Americanmilitary weapons and equipment are "part of the Army and Air Force" even when turned over tocivilian authorities before use for civilian purposes. Even if the Posse Comitatus Act were read toapply only to the use of personnel, would the use of military personnel to maintain equipment loanedto civilian authorities violate the Act's proscription? The Wounded Knee cases provided conflictinganswers.

The 1981 provisions make it clear that the Defense Department may provide civilian police with military equipment (63) and under somecircumstances, particularly in drug cases, may also supplymilitary personnel to operate and maintain such equipment. (64) The provisions also includeextraordinary authority to use Navy ships to support Coast Guard drug interdiction on the high seas. (65)

Limitations: Military Preparedness, Reimbursement, and DirectUse. 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 civilianbeneficiaries of military aid must pay for the assistance. (67) And the Secretary of Defense must issueregulations to ensure that the authority of sections 371 to 381 does not result in use of the armedforces to make arrests or conduct searches and seizures solely for the benefit of civilian lawenforcement. (68)

For several years, the regulations called for by section 375 appeared in parallel form in the Code of Federal Regulations (69) and in a DefenseDepartment Directive. (70) The heart of theregulationsappeared in subsection 213.10(a)(3), "Except as otherwise provided in this enclosure, the prohibitionon use of military personnel `as a posse comitatus or otherwise to execute the laws' prohibits thefollowing forms of direct assistance: (i) Interdiction of a vehicle, vessel, aircraft or other similaractivity. (ii) A search or seizure. (iii) An arrest, stop and frisk, or similar activity. (iv) Use of militarypersonnel for surveillance or pursuit of individuals, or as informants, undercover agents,investigators, or interrogators," 32 CFR ï¿½213.10(a)(3)(July 1, 1992). Although the provisions havebeen 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 reachof the Posse Comitatus Act and its statutory and regulatory supplements. Analysis of constitutionalor statutory exceptions is unnecessary in such cases. The original debates make it clear that the Actwas designed to prevent use of the armed forces to execute civilian law. Congress did not intend tolimit the authority of the Army to perform its military duties. The legislative history, however, doesnot resolve the question of whether the Act prohibits the Army from performing its military dutiesin 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 anactivity is to address a military purpose, the activity need not be abandoned simply because it alsoassists civilian law enforcement efforts. Courts appear to view the location of the activity asparticular 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 amilitary base, Harker v. State , 663 P.2d 932, 936 (Alaska 1983), or drunk drivers arrested on amilitary base, (74) or firearms stolen from a militaryinstallation, United States v. Griley , 814 F.2d 967,976 (4th Cir. 1987). The courts have likewise found no violation of the Act when military personnelarrest civilians on military facilities for crimes committed there, United States v. Banks , 539 F.2d14, 16 (9th Cir. 1976), or when military authorities assist a civilian police investigation conductedon a military facility. (75) The military purposedoctrine likewise permits military law enforcementpersonnel to investigate the off-base conduct of military personnel. (76) The DoD Directive evidencesa comparable understanding. (77)

Cases called to apply the military purpose doctrine in cooperative police activities occurring off-base are the most difficult to reconcile. Some seem to require no more than a logical militarynexus, (78) others demand a very clear, specificmilitary connection before they will concede thepresence of a military purpose, (79) and still othersseem to seek a middle ground. (80)

Willfully Execute the Laws

Willful

The Act is limited to "willful" misuse of the Army or Air Force. (81) The Senate version of theoriginal 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 whichemerged from conference opted to forbid only willful violations but neither the statements of themanagers nor statements elsewhere in the debate explain what the limitation means. And thescattered statements found in the case law under the Act are somewhat conflicting and notparticularly helpful, (82) although it seems unlikelythat a court would convict for anything less thana deliberate disregard of the law's requirements.

Execute the Law

When has the Army or Air Force been used "to execute the laws"? The language of the Act by itself seems very sweeping. (83) It is comparableto the instruction of the Constitution that the President"take care that the laws are faithfully executed," U.S. Const. Art.II, ï¿½3. Without more, it would seemto prohibit the use of the Army or the Air Force to implement the command or authorization of allstate or federal law. It might apply with equal force to delivering the mail or making an arrest.

Existing case law and commentary indicate that "execution of the law" in violation of the Posse Comitatus Act occurs (a) when the armed forces perform tasks ordinarily assigned not to them butto an organ of civil government, or (b) when the armed forces perform tasks assigned to them solelyfor purposes of civilian government.

While inquiries may surface in other contexts such as the use of the armed forces to fight forest fires or to provide assistance in the case of other natural disasters, (84) Posse Comitatus Act questionsarise most often when the armed forces assist civilian police. This is perhaps not surprising sinceit is the use that stimulated passage of the Act. During the debate, Members complained of variousways in which the Army had been used, essentially as a police force, to break up labor disputes, tocollect taxes, to execute search and arrest warrants, and to maintain order at the polls and during statelegislative sessions. (85)

At least when suggested that the armed forces have been improperly used as a police force, the tests used by most contemporary courts to determine whether such military activity violates the PosseComitatus Act were developed out of disturbances at Wounded Knee on the Pine Ridge IndianReservation in South Dakota and inquiry:

(1) whether civilian law enforcement officials made a "direct active use" of military investigators to "execute the law";

(2) whether the use of the military "pervaded the activities" of the civilian officials; or

(3) whether the military was used so as to subject "citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature." Taylor v. State , 640 So.2d1127, 1136 (Fla.App. 1994). (86)

The vast majority of cases called upon to apply these tests have found that the assistance provided civilian law enforcement did not constitute "execution of the law" in violation of PosseComitatus Act requirements. (87) Those most likelyto fail the tests seem to be those where theactivities appear to have a colorable military purpose but the government fails to make a convincingshowing. (88)

Military Coverage

Navy & Marines

The Posse Comitatus Act proscribes use of the Army or the Air Force to execute the law. (89) Itsays nothing about the Navy, the Marine Corps, the Coast Guard, or the National Guard. Theamendment first offered to the Army appropriation bill in 1878 to enact the Posse Comitatusprovisions would have prohibited use of "any part of the land or naval forces of the United States"to execute the law, 7 Cong.Rec. 3586 (1878). Some commentators believe that sponsorssubsequently limited the posse comitatus amendment to the Army appropriation bill in order to avoidchallenges on grounds of germaneness. (90) Thecourts have generally held that the Posse ComitatusAct by itself does not apply to the Navy or the Marine Corps. (91) They maintain, however, that thoseforces are covered by similarly confining administrative and legislative supplements, (92) the mostcurrently applicable of which appear in the DoD Directive. (93)

Coast Guard

The Posse Comitatus Act likewise says nothing about the Coast Guard. The Coast Guard was formed by merging two civilian agencies, the revenue cutter service and the lifesaving service. Although created and used for law enforcement purposes, the cutter service had already been usedas part of the military forces of the United States by the time the Posse Comitatus Act was enacted. (94)

The Coast Guard is now a branch of the armed forces, located within the Department of Transportation, 14 U.S.C. 1, but relocated within the Navy in time of war or upon the order of thePresident, 14 U.S.C. 3. The Act does apply to the Coast Guard while it remains part of theDepartment of Transportation. (95) While part ofthe Navy, it is subject to the orders of the Secretaryof the Navy, 14 U.S.C. 3, and consequently to any generally applicable directives or instructionsissued 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 activitieswould come within the statutory exception to the posse comitatus restrictions, and the restrictionsapplicable to components of the Department of Defense would only apply to activities beyond thoseauthorized.

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 coverageof the National Guard, the Civil Air Patrol, civilian employees of the armed forces, or regularmembers 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, ï¿½8, cls.15, 16, of the Constitution"which has become "an organized force, capable of being assimilated with ease into the regularmilitary 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 purposesof the Posse Comitatus Act, when in federal service. (96) When not in federal service, historicalreflection might suggest that it is likewise covered. Recall that it was the state militia, called to theaid of the marshal enforcing the Fugitive Slave Act, which triggered Attorney General Cushing'sfamous opinion. And that the Posse Comitatus Act's reference to "posse comitatus or otherwise" isa "they-are-covered-no-matter-what-you-call-them" response to the assertion derived from Cushing'sopinion that troops could be used to execute the law as long as they were acting as citizens and notsoldiers when they did so.

On the other hand, the National Guard is creature of both state and federal law, a condition which as the militia it has enjoyed since the days of the Articles of Confederation. (97) And the courtshave said that members of the National Guard when not in federal service are not covered by thePosse Comitatus Act. (98) Similarly, the DoDdirective is only applicable to members of the NationalGuard when they are in federal service. (99)

Off Duty, Acting as Citizens & 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 citizenwould 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 theSenate, however, suggests that the Act was not intended to strip members of the military of allcivilian rights and obligations. (100)

Some of the cases, particularly the earlier ones, occasionally citing debate in the Senate, held that a soldier who does no more than any other citizen might do to assist civilian law enforcementhas not been used in violation of the Posse Comitatus Act. (101) The more recent decisions undersimilar facts, with the endorsement of the commentators, (102) have focused on the nature of theassistance provided and whether the assistance is incidental to action taken primarily for a militarypurpose. (103)

Some have questioned whether civilian employees of the armed forces should come within theproscription of the Act, (104) but most, frequentlywithout comment, seem to consider them "part" ofthe armed forces for purposes of the Posse Comitatus Act. (105) The current Defense DepartmentDirective expressly includes civilian employees "under the direct command and control of a militaryofficer" within its Posse Comitatus Act policy restrictions. (106)

Geographical Application

It seems unlikely that the Posse Comitatus Act, by itself, applies beyond the confines of theUnited States, its territories and possessions. (107) As a general rule, Acts of Congress are presumedto apply only within the United States, its territories and possessions unless Congress has providedotherwise or unless the purpose of Congress in enacting the legislation evidences an intent that thelegislation enjoy extraterritorial application. (108)

The Posse Comitatus Act contains no expression of extraterritorial application. Congress enacted it in response to problems occurring within the United States and its territories, problemsassociated with the American political process and military usurpation of civilian law enforcementresponsibilities over Americans. It seems unlikely that its extraterritorial application was eitheranticipated or intended.

The first court to consider the question agreed, but it arose in occupied territory overseas in which an American military government had temporarily displaced civil authorities, Chandler v.United States , 171 F.2d 921, 936 (1st Cir. 1948). For some time subsequent decisions eitherdeclined to resolve the issue or ignored it. (109)

Congress does appear to have intended the authority and restrictions contained in 10 U.S.C.371-381 to apply both in the United States and beyond its borders. Certainly, the provisionsdirecting the placement of members of the Coast Guard on Navy ships for drug interdiction purposes,10 U.S.C. 379, evidence an understanding that the Posse Comitatus Act's statutory shadow, 10U.S.C. 375, applies at least on the high seas. (110) In fact, in some instances it initially contemplatedthat various provisions would only apply overseas. (111)

The regulations implementing 10 U.S.C. 375 address only assistance to law enforcement officials of the several states, the United States, or its territories or possessions, DoD Dir. No.5525.5, ï¿½3, without any explicit declaration that the ban applies only within this country. In the caseof assistance provided overseas to foreign law enforcement officials, the so-called MansfieldAmendment, 22 U.S.C. 2291(c), creates something of an overseas version of the Posse ComitatusAct, at least for drug enforcement purposes. (112)

Consequences of Violation

Prosecution

The Posse Comitatus Act is a criminal statute under which there has apparently never been a prosecution. (113) It has been invoked withvarying degrees of success, however, to challenge thejurisdiction of the courts, as a defense in criminal prosecutions for other offenses, as a ground forthe suppression of evidence, as the grounds for, or a defense against, civil liability, and as animpediment to proposed actions by the armed forces.

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. The case law begins with United Statesv. Walden , 490 F.2d 372 (4th Cir. 1974), where the court found that the Treasury Department's useof three Marines as undercover agents in an investigation of firearms offenses violated Navyregulations which made the Act applicable to use of the Marines, but declined to order the exclusionof evidence obtained by the Marines.

The court found no "conscious, deliberate or willful intent on the part of the Marines or the Treasury Department's Special Investigator to violate" the regulation or the Act, 490 F.2d at 376. It also noted that the regulation contained no enforcement mechanism and the Posse Comitatus Actprovided only for criminal prosecution, and that case before lacked the elements which had lead tothe adoption of the Fourth Amendment exclusionary rule. Finally, the court felt the use of theMarines had been aberrational, that subsequent similar transgressions were unlikely, and that theregulation would be amended to provide an enforcement component. But the court warned, "shouldthere be evidence of widespread or repeated violations in any future case, or ineffectiveness ofenforcement by the military, we will consider ourselves free to consider whether adoption of anexclusionary rile is required as a future deterrent," 490 F.2d at 377.

Later defendants have focused upon the warning; later courts upon the refusal to adopt an exclusionary rule. Most cases note the absence of an exclusionary rule either to avoid unnecessaryposse comitatus act analysis or as the final step in the analysis. (114) Three states cases, two of themrecent, have required the suppression of evidence resulting from the use of military undercoveragents to target civilian drug dealing without establishing any connection to activities on a militaryinstallation or sales to military personnel other than the undercover agents. (115)

Jurisdiction & Criminal Defenses

The first criminal defendants to seek refuge in the Posse Comitatus Act claimed unsuccessfully that use of the military to transport them back to the United States for trial violated the PosseComitatus Act and vitiated the jurisdiction of American courts to try them. Ordinarily, criminaltrials are not barred simply because the defendant was unlawfully seized and carried into thejurisdiction of the trial court. (116) There areindications that the same rule applies when the defendantchallenges the court's jurisdiction on the grounds of Posse Comitatus Act violations. In the earlyposse comitatus cases, the defendants' arguments were further undermined by the fact that thecountries from which they were returned, Germany and Japan, were under American military ruleat the time. (117) In later cases some of whichbegan beyond the territorial confines of the United Statesalthough none in occupied territory, the courts noted that dismissal would not be an appropriateremedy for a posse comitatus violation. (118)

Defendants have found the Act more helpful in prosecutions where the government must establish the lawfulness of its conduct as one of the elements of the offense charged. Thus, severaldefendants at Wounded Knee were able to persuade the court that evidence of possible PosseComitatus Act violations precluded their convictions for obstructing law enforcement officials"lawfully engaged" in the performance of their duties. (119)

Civil Liability

Almost a decade ago, the Eighth Circuit found that a violation of the Act might constitute an unreasonable search and seizure for purposes of the Fourth Amendment thereby giving rise to a Bivens cause of action against offending federal officers or employees. (120) A Posse Comitatus Actviolation, however, also provides the government with a defense to a claim under the Federal TortClaims Act since the government is not liable under that Act for injuries inflicted by federal officersor employees acting outside the scope of their authority. (121) On balance, however, the PosseComitatus Act is only rarely placed in issue in civil cases.

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, themilitary has a long standing practice of avoiding involvement in civilian affairs which it believes arecontrary to the Act. (122)

Selected Bibliography

Books & Articles

Bell, The Third Amendment, Forgotten But Not Gone , 2 William & Mary Bill of Rights Journal 117 (1993)

Blackstone, I Commentaries on the Laws of England (1765 ed.)

Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 (1966)

Boyd, The Whiskey Rebellion: Past and Present Perspectives (1985)

Coke, I The Second Part of the Institutes of the Laws of England (1797 ed.)

Collier & Collier, Decision in Philadelphia: The Constitutional Convention of 1787 (1986)

Corwin, The President: Office and Powers, 1787-1984 (5th ed. 1984)

Davis, Swords Into Plowshares the Dangerous Politicization of the Military in the Post-Cold War Era , 33 Valparaiso University Law Review 61 (1998)

Dowell, Military Aid to the Civil Power (1925)

Engdahl, Foundations for Military Intervention in the United States , 7 University of Puget Sound Law Review 1 (1983)

, The Legal Background and Aftermath of the Kent State Tragedy , 22 Cleveland State LawReview 3 (1973)

, Soldiers, Riots and Revolution: The Law and History of Military Troops in Civil Disorders , 57Iowa Law Journal 1 (1971)

Faust, The President's Use of Troops to Enforce Federal Law , 7 Cleveland-Marshall Law Review 362 (1958)

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 (Spring, 1989)

Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act , 7 Military Law Review 85 (January, 1960)

Gilligan, Opening the Gate? An Analysis of Military Law Enforcement Authority Over Civilian Lawbreakers On and Off the Federal Installation , 161 Military Law Review 1 (September, 1999)

Hale, The History of the Common Law of England (1716 ed.)

Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility , 75 Boston University Law Review 57 (1995)

Kopel & Blackman, Can Soldiers Be Peace Officers" The Waco Disaster and the Militarization of American Law Enforcement , 30 Akron Law review 619 (1997)

Lieber, The Use of the Army in Aid of the Civil Power (1898)

Lorence, The Constitutionality of the Posse Comitatus Act , 8 University of Kansas City Law Review 164 (1940)

Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act , 70 Military Law Review 83 (Fall, 1975)

Moore, Posse Comitatus Revisited: The Use of the Military in Civil Law Enforcement 15 Journal of Criminal Justice 375 (1987)

Morison, Commager, & Leuchtenburg, I The Growth of the American Republic (7th ed. 1980)

Pollitt, Presidential Use of Troops to Execute the Laws: A Brief History , 36 North Carolina Law Review 117 (1958)

Porto, Construction and Application of the Posse Comitatus Act (18 USCS ï¿½1385), and Similar Predecessor Provisions, Restricting Use of United States Army and Air Force to Execute Laws , 141ALR Fed. 271 (1997 & 1999 Supp.)

Rice, New Laws and Insights Encircle the Posse Comitatus Act , 104 Military Law Review 109 (Spring, 1984)

Rich, The National Guard, Drug Interdiction and Counterdrug Activities, and Posse Comitatus: The Meaning and Implications of "In Federal Service" , Army Lawyer 35 (June, 1994)

Rich, Presidents and Civil Disorder (1941)

Sanchez, The "Drug War": The U.S. Miliary and National Security , 34 Air Force Law Review 109 (1991)

Siemer & Effron, Military Participation in United States Law Enforcement Activities Overseas: The Extraterritorial Effect of the Posse Comitatus Act , 54 St.John's Law Review 1 (1979)

Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution (1986)

Stubbs, Select Charters and Other Illustrations of English Constitutional History From the Earliest Times to the Reign of Edward the First (8th ed. 1895)

Swindler, Magna Carta: Legend and Legacy (1965)

Thompson, Magna Carta: Its Role in the Making of the English Constitution 1300-1629 (1948)

United States Congress, Activities of Federal Law Enforcement Agencies Toward the Branch Davidians: Joint Hearings Before the Subcomm. on Crime of the House Comm. on the Judiciaryand the Subcomm. on National Security, International Affairs and Criminal Justice of the HouseComm. on Government Reform and Oversight , 104th Cong., 1st Sess. (1995)

, Federal Aid in Domestic Disturbances: 1787-1903 , S.Doc.No. 209, 57th Cong., 2d Sess. (1903)

, Materials Related to the Investigation Into the Activities of Federal Law Enforcement AgenciesToward the Branch Davidians: Comm.Print by the House Comm. On the Judiciary in Conjunctionwith the House Comm. On Government Reform and Oversight , 104th Cong., 2d Sess. (1996)

, Military Role in Drug Interdiction: Hearing Before the House Comm. on Armed Services,Investigations Subcomm. , 101st Cong., 1st Sess. (1989)

, Military Cooperation with Civilian Law Enforcement: Hearings Before the House Comm. on theJudiciary, Subcomm. on Crime , 99th Cong., 1st Sess.(1986)

, Military Cooperation with Civilian Law Enforcement: Hearings Before the House Comm. on theJudiciary, Subcomm. on Crime , 98th Cong., 1st Sess.(1985)

, Posse Comitatus Act: Hearings Before the House Comm. on the Judiciary, Subcomm. on Crime ,97th Cong., 1st Sess.(1983)

Van Alstyne, The Second Amendment and the Personal Right to Bear Arms , 43 Duke Law Journal 1236 (1994)

Zobel, The Boston Massacre (1987)

Notes & Comments

Airborne Drug Trafficking Deterrence: Can A Shootdown Policy Fly? 38 UCLA Law Review 1258 (1991)

A Comprehensive Study of the Use of Military Troops in Civil Disorders with Proposals for Legislative Reform , 43 University of Colorado Law Review 399 (1972)

Don't Call Out the Marines: An Assessment of the Posse Comitatus Act , 13 Texas Tech Law Review 1467 (1982)

Fourth Amendment and the Posse Comitatus Act Restrictions on Military Involvement in Civil Law Enforcement , 54 George Washington Law Review 404 (1986)

Honored in the Breach: Presidential Authority to Execute the Laws With Military Force , 83 Yale Law Journal 130 (1973)

The Legality of United States Military Operations Along the United States-Mexico Border , 5 Southwestern Journal of Law and Trade in the Americas 453 (1998)

Locked and Loaded: Taking Aim at the Growing Use of The American Military in Civilian Law Enforcement Operations , 26 Loyola of Los Angeles Law Review 1291 (1993)

The Navy's Role in Interdicting Narcotics Traffic: War on Drugs or Ambush of the Constitution? ,75 Georgetown Law Journal 1947 (1987)

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)

The Posse Comitatus Act: A Principle in Need of Renewal , 75 Washington University Law Quarterly 953 (1997)

The Posse Comitatus Act: Reconstruction Politics Reconsidered , 13 American Criminal Law Review 703 (1976)

The Posse Comitatus Act as an Exclusionary Rule: Is the Criminal to Go Free Because the Soldier Has Blundered? , 61 North Dakota Law Review 107 (1985)

The Third Amendment's Protection Against Unwanted Military Intrusion: Engblom v. Carey , 49 Brooklyn Law Review 857 (1983)

The United States Coast Guard's Law Enforcement Authority Under 14 U.S.C. ï¿½89: Smugglers' Blues or Boaters' Nightmare? , 34 William & Mary Law Review 933 (1993)

United States v. Juda: Fifth Amendment Due Process and Stateless Vessels on the High Seas , 73 Boston University Law Review 477 (1993)

United States v. Yunis: The D.C.Circuit's Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes , 87 Northwestern University Law Review 697 (1993)

Use of Troops to Enforce Federal Laws , 56 Michigan Law Review 249 (1957)