b'(Slip Opinion)\n\nMilitary Support for Customs and Border Protection Along\nthe Southern Border Under the Posse Comitatus Act\nThe Department of Defense\xe2\x80\x99s proposed use of military personnel to provide limited\nassistance with respect to certain Customs and Border Protection inspection and\nobservation functions along the southern border of the United States is permissible\nunder the Posse Comitatus Act and applicable regulations.\nJanuary 19, 2021\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nThe Posse Comitatus Act, 18 U.S.C. \xc2\xa7 1385, restricts the use of \xe2\x80\x9cany\npart of the Army or the Air Force\xe2\x80\x9d in civilian law enforcement, unless\nexpressly authorized by law. Consistent with these restrictions, for many\nyears, the Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) has provided assistance to the\nefforts by the Department of Homeland Security (\xe2\x80\x9cDHS\xe2\x80\x9d) to stem the\nillegal flow of persons and contraband across the southern land border\nbetween the United States and Mexico. This assistance is principally\nauthorized by chapter 15 of title 10 of the United States Code, 10 U.S.C.\n\xc2\xa7\xc2\xa7 271\xe2\x80\x93284, which allows DoD to provide a number of different forms of\nsupport to civilian law enforcement. Congress endorsed DoD\xe2\x80\x99s ongoing\nefforts in 2015 by providing that \xe2\x80\x9c[t]he Secretary of Defense may provide\nassistance to United States Customs and Border Protection for purposes of\nincreasing ongoing efforts to secure the southern land border of the United\nStates.\xe2\x80\x9d National Defense Authorization Act for Fiscal Year 2016, Pub. L.\nNo. 114-92, \xc2\xa7 1059, 129 Stat. 986\xe2\x80\x9287 (2015) (\xe2\x80\x9cFY 2016 NDAA\xe2\x80\x9d).\nIn February 2020, DHS requested that DoD perform 26 specific duties\nin support of U.S. Customs and Border Protection (\xe2\x80\x9cCBP\xe2\x80\x9d) operations at\nthe southern border for fiscal year 2021. See Memorandum for Oliver\nLewis, Captain, USN, Executive Secretary, Department of Defense, from\nJuliana Blackwell, Acting Executive Secretary, Department of Homeland\nSecurity, Re: Request for Extension of Department of Defense (DoD)\nAssistance in Support of U.S. Customs and Border Protection\xe2\x80\x99s (CBP)\nSouthwest Border (SWB) Security Mission Through Fiscal Year (FY) 2021\n(Feb. 3, 2020). DoD approved support for 22 of these 26 duties, most of\nwhich involved the kind of support that DoD already had been providing\n1\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nto DHS, such as motor-transport operations support and a crisis-response\nforce for certain urgent needs. See Memorandum for the Executive Secretary, Department of Homeland Security, from David S. Soldow, Captain,\nUSN, Executive Secretary, Department of Defense, Re: Request for Extension of Department of Defense Assistance in Support of U.S. Customs\nand Border Protection\xe2\x80\x99s Southern Border Security Mission Through\nFiscal Year 2021 (June 23, 2020).\nDoD, however, held off on approving support for four duties pending\nfurther consideration as to whether they would be consistent with the\nPosse Comitatus Act and DoD regulations implementing chapter 15.\nThose four duties concern rail-support, seal-check, port-of-entry-observer,\nand checkpoint-observer functions. We understand that the rail-support\nduty would have military personnel assist CBP personnel responsible\nfor inspecting unoccupied, unlocked vehicles being transported across\nthe southern border in bulk on rail cars. The seal-check duty would involve visually verifying whether commercial cargo trucks and containers\nhave intact and unbroken seal tags, which CBP requires for trucks and\ncontainers passing through ports of entry. The port-of-entry and checkpoint observers would monitor the output of CBP\xe2\x80\x99s electronic systems\nthat automatically collect and process data, such as license-plate information, about individuals and vehicles passing through a port of entry or\nU.S. Border Patrol checkpoint, and display an alert message if the system\nidentifies a concern.\nWe conclude that neither the Posse Comitatus Act nor DoD\xe2\x80\x99s regulations prohibit the requested assistance. The rail-support and seal-check\nduties would not violate the Posse Comitatus Act because they would not\ninvolve military personnel subjecting civilians to military regulation,\ndirectly or actively participating in civilian law enforcement activities, or\npervading the activities of civilian law enforcement. The port-of-entry and\ncheckpoint-observer duties would not violate the Posse Comitatus Act\nbecause they would involve operating equipment and would not involve\ndirect participation in civilian law enforcement activities, as expressly\nauthorized by 10 U.S.C. \xc2\xa7 274(c). All four duties would be similar to the\ntypes of support that the courts and this Office\xe2\x80\x99s precedents have held to\nbe consistent with the Posse Comitatus Act and DoD regulations, and that\nthe military is authorized to provide under chapter 15.\n2\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nI.\n\nThe Posse Comitatus Act generally prohibits the use of the military to\nengage in civilian law enforcement activities. At English common law,\nthe sheriff had the right to summon a body of available adults, the posse\ncomitatus, to assist in executing the laws or restoring civil order. See\nExtraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. 321, 322\n(1989). This practice continued in the United States, and in the Judiciary\nAct of 1789, Congress vested the first federal law enforcement officers,\nthe U.S. Marshals, with the \xe2\x80\x9cpower to command all necessary assistance\nin the execution of [their] duty.\xe2\x80\x9d Act of Sept. 24, 1789, ch. 20, \xc2\xa7 27,\n1 Stat. 73, 87. That power remains with the U.S. Marshals Service, now\ncodified at 28 U.S.C. \xc2\xa7 566(c).\nIn enacting the Posse Comitatus Act in 1878, Congress sought to prevent civilian law enforcement officials from generally relying upon the\nU.S. Army to assist with the enforcement of the civilian laws. The statute\narose out of the objections of southern States to the use of the U.S. Army\nin civilian law enforcement during the Reconstruction era. See Military\nUse of Infrared Radars Technology to Assist Civilian Law Enforcement\nAgencies, 15 Op. O.L.C. 36, 42 (1991) (\xe2\x80\x9cMilitary Use of Infrared Radars\xe2\x80\x9d); see Act of June 18, 1878, ch. 263, \xc2\xa7 15, 20 Stat. 145, 152; 7 Cong.\nRec. 3845\xe2\x80\x923852 (May 27, 1878); 7 Cong. Rec. 4239\xe2\x80\x924248 (June 7, 1878).\nBut the statute\xe2\x80\x99s restrictions are not limited to that historical episode and\ninstead reflect an American tradition of limiting direct military involvement in civilian law enforcement. See, e.g., Laird v. Tatum, 408 U.S. 1, 15\n(1972).\nIn its current form, the statute provides that, except where \xe2\x80\x9cexpressly\nauthorized by the Constitution or Act of Congress,\xe2\x80\x9d public officials may\nnot use \xe2\x80\x9cany part of the Army or the Air Force as a posse comitatus or\notherwise to execute the law.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1385. 1 The prohibition thus\nprecludes \xe2\x80\x9cmilitary personnel [from] applying force to the civilian community in the normal course of civil government\xe2\x80\x9d and prevents \xe2\x80\x9cactual or\nAlthough the Posse Comitatus Act applies only to the Army and the Air Force, DoD\nregulations implementing similar restrictions apply to the Navy and the Marines. See DoD\nInstruction 3025.21, \xc2\xb6 4.b, Defense Support of Civilian Law Enforcement Agencies (Feb.\n27, 2013). The Secretary of Defense, however, is authorized to make exceptions on a\ncase-by-case basis. See id. encl. 3, \xc2\xb6 3.\n1\n\n3\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nthreatened coercion by persons subject to military discipline on behalf of\ncivil law enforcement officers.\xe2\x80\x9d Letter for Deanne Siemer, General Counsel, Department of Defense, from Mary Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 5 (Mar. 24, 1978) (\xe2\x80\x9cLawton\nLetter\xe2\x80\x9d).\nAs relevant here, Congress has expressly authorized the military to\nsupport civilian law enforcement under chapter 15. Among other things,\nchapter 15 authorizes the military to provide to civilian law enforcement\ninformation acquired in the normal course of military training or operations; equipment, training, and advice; and military personnel to maintain\nand operate equipment. See 10 U.S.C. \xc2\xa7\xc2\xa7 271\xe2\x80\x9374. Chapter 15 also authorizes military personnel to perform additional tasks in support of counterdrug activities. See 10 U.S.C. \xc2\xa7 284. But while granting DoD authority\nto assist civilian law enforcement, Congress retained the core prohibition\nof the Posse Comitatus Act by requiring that the Secretary of Defense\nissue regulations \xe2\x80\x9cas may be necessary to ensure that any activity . . .\nunder this chapter does not include or permit the direct participation\xe2\x80\x9d of\na member of the military \xe2\x80\x9cin a search, seizure, arrest, or other similar\nactivity.\xe2\x80\x9d Id. \xc2\xa7 275. The Secretary has implemented section 275 in DoD\nInstruction 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013).\nThe somewhat oblique prohibition under the Posse Comitatus Act\nagainst using the military as \xe2\x80\x9ca posse comitatus or otherwise to execute\nthe law,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1385, has led courts and this Office to employ\ndifferent tests against which to measure whether the activities in question\ncomply with this prohibition. See Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal Division, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military\nPersonnel for Monitoring Electronic Surveillance at 11 (Apr. 5, 1994)\n(\xe2\x80\x9cElectronic Surveillance\xe2\x80\x9d) (\xe2\x80\x9c[T]he courts have employed three slightly\nvarying formulations of the test for determining whether military involvement in civilian law enforcement has crossed the line separating\nproper activity from violations of the PCA\xe2\x80\x9d); Riley v. Newton, 94 F.3d\n632, 636 (11th Cir. 1996) (describing \xe2\x80\x9cthree different tests\xe2\x80\x9d); United\nStates v. Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991) (recognizing that\ncourts have employed \xe2\x80\x9cone of three tests\xe2\x80\x9d). We have recognized that an\naction \xe2\x80\x9cdoes not violate the Posse Comitatus Act unless it actually regu4\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nlates, forbids, or compels some conduct on the part of those claiming\nrelief.\xe2\x80\x9d Electronic Surveillance at 10 (quoting Bissonette v. Haig, 776\nF.2d 1384, 1390 (8th Cir. 1985), aff\xe2\x80\x99d en banc, 800 F.2d 812 (8th Cir.\n1986), aff\xe2\x80\x99d, 485 U.S. 264 (1988)); see also Lawton Letter at 15\xe2\x80\x9216.\nUnder this test, courts consider whether a military activity \xe2\x80\x9cis that which\nis regulatory, proscriptive, or compulsory in nature and causes the citizens\nto be presently or prospectively subject to regulations, proscriptions, or\ncompulsions imposed by military authority.\xe2\x80\x9d United States v. McArthur,\n419 F. Supp. 186, 194 (D.N.D. 1974), aff\xe2\x80\x99d sub nom. United States v.\nCasper, 541 F.2d 1275 (8th Cir. 1976) (per curiam).\nCourts have also employed a slightly different formulation: whether the\nmilitary is conducting law enforcement activities, rather than merely\nsupporting them, which is determined by whether the activities involve\n\xe2\x80\x9cthe direct active participation of federal military troops in law enforcement activities.\xe2\x80\x9d United States v. Red Feather, 392 F. Supp. 916, 924\n(D.S.D. 1975). As noted, this is the test that Congress directed the Secretary of Defense to impose as a restriction on DoD\xe2\x80\x99s support for civilian\nlaw enforcement under chapter 15. See 10 U.S.C. \xc2\xa7 275.\nFinally, in some cases, courts have employed a third test to ensure that\nthe military is not indirectly taking the lead in law enforcement activities,\neven when it is not operating directly on civilians. These courts ask\nwhether the military activity in question \xe2\x80\x9cpervade[d] the activities of\ncivilian officials.\xe2\x80\x9d Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990)\n(quoting United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988)\n(per curiam)). In a recent case, the Ninth Circuit, sitting en banc, concluded that a Naval Criminal Investigative Service (\xe2\x80\x9cNCIS\xe2\x80\x9d) investigation into\nchild pornography on the Internet violated DoD regulations restricting law\nenforcement activity by the Navy, because the NCIS investigation \xe2\x80\x9cpervaded the actions of civilian law enforcement.\xe2\x80\x9d United States v. Dreyer,\n804 F.3d 1266, 1275 (9th Cir. 2015) (en banc). 2\n2 One issue in Dreyer was whether NCIS was targeting offenses by military personnel.\nSee 804 F.3d at 1276. It is well established that the Posse Comitatus Act does not restrict\nthe actions of military personnel \xe2\x80\x9cwhere the military has a legitimate interest for its own\nproceedings or matters involving the internal administration of the military or the performance of its proper functions.\xe2\x80\x9d Permissibility Under Posse Comitatus Act of Detail of\nDefense Civilian Employee to the National Infrastructure Protection Center, 22 Op.\nO.L.C. 103, 105\xe2\x80\x9206 (1998) (alteration and quotation marks omitted); see id. at 106\n\n5\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nIn our prior opinions, we have often applied the \xe2\x80\x9cdirect active participation\xe2\x80\x9d test in considering whether the activities were consistent with the\nrestriction applicable to support provided under chapter 15. See, e.g.,\nMemorandum for the Attorney General from Patrick F. Philbin, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Department of\nDefense Assistance in an Federal Bureau of Investigation Domestic\nTerrorism Investigation at 4 (Nov. 5, 2002) (\xe2\x80\x9cDomestic Terrorism\xe2\x80\x9d);\nMilitary Use of Infrared Radars, 15 Op. O.L.C. at 38\xe2\x80\x9339; Use of Department of Defense Drug-Detecting Dogs to Aid in Civilian Law Enforcement, 13 Op. O.L.C. 185, 186 (1989) (\xe2\x80\x9cDoD Drug-Detecting Dogs\xe2\x80\x9d). But\nin opinions not involving chapter 15 support, we have generally followed\nthe lead of the courts of appeals by asking whether the military support\nwould be consistent with all three of the court-applied tests, without\nworrying about whether they are all equally correct, or mutually exclusive. See Permissibility Under Posse Comitatus Act of Detail of Defense\nCivilian Employee to the National Infrastructure Protection Center, 22\nOp. O.L.C. 103, 104 (1998) (\xe2\x80\x9cNIPC Detail \xe2\x80\x9d) (asking whether the military\nsupport violated any of these tests); Electronic Surveillance at 11 (same);\ncf. Lawton Letter at 13 (concluding that the assistance in question did not\nviolate the Posse Comitatus Act because, under any of the formulations\nthe courts have employed, the assistance was \xe2\x80\x9cindirect and nonauthoritarian\xe2\x80\x9d).\nWe understand from your request that DoD would assist DHS by using\nNational Guard members operating under federal command and control,\nwho would be considered as either part of the Army or Air Force while\noperating in that status. See Use of the National Guard to Support Drug\nInterdiction Efforts in the District of Columbia, 13 Op. O.L.C. 91, 92\n(1989); Mueller v. City of Joliet, 943 F.3d 834, 837 (7th Cir. 2019). 3\nBecause those members would be subject to the Posse Comitatus Act, we\nmust first consider whether Congress has expressly authorized the mili(explaining that \xe2\x80\x9c[n]othing in the [Posse Comitatus Act] suggests that Congress intended\nto circumscribe military participation in legitimately military matters\xe2\x80\x9d). Separately, the\nPosse Comitatus Act does not apply outside United States territory. See Extraterritorial\nEffect of the Posse Comitatus Act, 13 Op. O.L.C. at 344.\n3 By contrast, National Guard troops operating in militia status\xe2\x80\x94that is, under state\ncommand and control\xe2\x80\x94are not subject to the Posse Comitatus Act. See Mueller, 943 F.3d\nat 837; Clark v. United States, 322 F.3d 1358, 1367\xe2\x80\x9368 (Fed. Cir. 2003).\n\n6\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\ntary to perform the four duties at issue. 4 Where Congress has not, we then\nconsider whether those tasks nevertheless would be consistent with the\nPosse Comitatus Act.\nII.\nWe begin with the rail-support and seal-check duties. Both tasks would\ninvolve military personnel providing support to CBP in inspecting articles\ncoming across the border. Neither would involve the military engaging or\ninteracting directly with any civilians or assuming primary responsibility\nfor searching the vehicles, cargo trucks, or containers in question. Military personnel would be under the direct supervision of CBP personnel,\nwould not be expected to have any contact with civilians, and would not\nbe expected to take custody of any evidence that might be used in any\nsubsequent legal proceeding, such as a criminal prosecution. Both military\nand CBP personnel would receive training to ensure that they clearly\nunderstand the scope of the approved activities of the military personnel.\nWe understand that military personnel performing the rail-support duty\nwould assist CBP personnel in inspecting unoccupied, unlocked vehicles\nbeing transported across the southern border in bulk on rail cars. This\ninspection would occur in a secured and private rail yard, and vehicle\nowners would have signed waivers authorizing the inspection. Military\npersonnel would open the doors, trunks, and hoods of unoccupied vehicles\nto prepare them for CBP personnel\xe2\x80\x99s subsequent inspection of the spaces\nwithin the vehicles. Military personnel would not participate in that inspection. Military personnel would not be expected to make any observations as they open the vehicle doors, trunks, and hoods, but if they did\nnotice something suspicious, they would immediately notify CBP personnel. Military personnel would have no involvement in any subsequent\naction.\nWe do not believe that, under the facts presented, DoD\xe2\x80\x99s assistance to DHS would be\nexpressly authorized by the Constitution. We have previously described the constitutional\nexception to the PCA as applying to \xe2\x80\x9cany use of the military for constitutional purposes,\xe2\x80\x9d\nincluding the deployment of \xe2\x80\x9ctroops pursuant to a plenary constitutional authority.\xe2\x80\x9d\nMemorandum for the Attorney General from Jay S. Bybee, Assistant Attorney General,\nOffice of Legal Counsel, Re: Determination of Enemy Belligerency and Military Detention at 9 (June 8, 2002). DoD\xe2\x80\x99s assistance here to support DHS\xe2\x80\x99s mission would not\ninvolve the plenary constitutional authority of the President.\n4\n\n7\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nWe understand that the seal-check duty would involve similar support\nto CBP personnel. Military personnel would visually verify whether\ncommercial cargo trucks and containers have intact and unbroken seal\ntags, which are required for the trucks and containers as they pass through\nports of entry. This activity would take place at locations secured and\ncontrolled by CBP. Seal tags are located in plain view on the outside of\nthe trucks and containers. In some cases, the cargo truck driver may be in\nthe cabin of the truck while military personnel check whether the truck\xe2\x80\x99s\nseal tag is intact, but the seal tag is located at the rear of the truck and\nmilitary personnel are not expected to have any contact with the driver. If\nmilitary personnel notice a discrepancy in a seal tag, then they would\nimmediately notify CBP personnel and would not participate in any\nsubsequent inspection performed by CBP personnel.\nA.\nWe first consider whether these tasks are expressly authorized under\nchapter 15 or under the FY 2016 NDAA. We think that the chapter 15\nquestion is straightforward, because neither the rail-support or seal-check\nduties fit within the tasks authorized under chapter 15. Sections 271 to\n274 authorize DoD to support civilian law enforcement agencies by\nproviding information, military equipment and facilities, training and\nadvising, or the maintenance and operation of equipment. See 10 U.S.C.\n\xc2\xa7 271\xe2\x80\x9374. None applies here. Section 284(b)(6) likewise authorizes DoD\nto assist through the \xe2\x80\x9cdetection, monitoring, and communication\xe2\x80\x9d of air,\nsea, and surface traffic within designated parameters of the U.S. borders,\nbut those provisions do not speak to the inspection of goods. Likewise,\nwe do not believe that any of the other activities authorized by section\n284(b) would readily apply to these tasks.\nWhether section 1059 expressly authorizes the rail-support or sealcheck duties for purposes of the Posse Comitatus Act, however, is a closer\nquestion. As relevant here, section 1059(a) states that \xe2\x80\x9c[t]he Secretary of\nDefense may provide assistance to United States Customs and Border\nProtection for purposes of increasing ongoing efforts to secure the southern land border of the United States.\xe2\x80\x9d FY 2016 NDAA \xc2\xa7 1059(a). 5 The\nsection continues:\n5 Section 1059 was enacted as part of the FY 2016 NDAA, but the section has no expiration date and remains in effect. See, e.g., United States v. Hernandez-Garcia, No. 19-\n\n8\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nThe assistance provided under subsection (a) may include the following:\n(1) Deployment of members and units of the regular and reserve components of the Armed Forces to the southern land border of the United States.\n(2) Deployment of manned aircraft, unmanned aerial surveillance systems, and ground-based surveillance systems to support\ncontinuous surveillance of the southern land border of the United\nStates.\n(3) Intelligence analysis support.\n\nId. \xc2\xa7 1059(c). The rail-support and seal-check duties do not fall into any\nof the categories of activities specifically mentioned in section 1059(c)(2)\nand (c)(3): They involve neither the \xe2\x80\x9c[d]eployment\xe2\x80\x9d of the aircraft and\nsurveillance equipment nor \xe2\x80\x9c[i]ntelligence analysis support.\xe2\x80\x9d The duties\ncould perhaps be viewed as falling within section 1059(c)(1), which\npermits the general \xe2\x80\x9c[d]eployment\xe2\x80\x9d of military personnel \xe2\x80\x9cto the southern\nland border\xe2\x80\x9d without specifying what missions such personnel would\nperform.\nIn addition, the categories in subsection (c) are not exclusive. The statute makes clear that the assistance \xe2\x80\x9cmay include the following.\xe2\x80\x9d See\nBurgess v. United States, 553 U.S. 124, 131 n.3 (2008) (\xe2\x80\x9c[T]he word\n\xe2\x80\x98includes\xe2\x80\x99 is usually a term of enlargement, and not of limitation.\xe2\x80\x9d (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland on Statutory\nConstruction \xc2\xa7 47:7, at 305 (7th ed. 2007)). So we must also consider\nwhether the rail-support and seal-check duties fall within the statute\xe2\x80\x99s\nauthorization for general \xe2\x80\x9cassistance\xe2\x80\x9d to CBP for \xe2\x80\x9cpurposes of increasing\nongoing efforts to secure the southern land border\xe2\x80\x9d under section 1059(a).\n\nCR-4373-GPC, 2020 WL 1083427, at *2 (S.D. Cal. Mar. 6, 2020) (\xe2\x80\x9c[T]he provision lacks\nany language expressly limiting its operative terms to fiscal year 2016.\xe2\x80\x9d); United States v.\nRios-Montano, 438 F. Supp. 3d 1149, 1151\xe2\x80\x9352 (S.D. Cal. 2020) (rejecting the argument\nthat section 1059\xe2\x80\x99s \xe2\x80\x9clegal effect lapsed with fiscal year 2016\xe2\x80\x9d because the section \xe2\x80\x9cprovides an unrestrained grant of authority\xe2\x80\x9d and \xe2\x80\x9ccontains no sunset provision\xe2\x80\x9d); see generally Memorandum for Mary De Rosa, Legal Adviser, National Security Council, from\nDavid J. Barron, Acting Assistant Attorney General, Re: Engagement with the International Criminal Court at 3 (Jan. 15, 2010) (noting that the \xe2\x80\x9cpresumption against permanency\xe2\x80\x9d does not \xe2\x80\x9cautomatically apply\xe2\x80\x9d to authorization acts (quotation marks omitted)).\n\n9\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nThe question then is whether either of these sections constitute express\nauthorization for purposes of the Posse Comitatus Act. Both section\n1059(a) and section 1059(c)(1) no doubt generally authorize deploying\nmilitary personnel to the southern border to provide \xe2\x80\x9cassistance\xe2\x80\x9d to CBP\nin support of \xe2\x80\x9congoing efforts to secure the southern land border.\xe2\x80\x9d But it\ndoes not follow that this authorization necessarily \xe2\x80\x9cexpressly\xe2\x80\x9d authorizes\nactions that would otherwise violate the Posse Comitatus Act. 18 U.S.C.\n\xc2\xa7 1385. In 1878, as now, \xe2\x80\x9cexpressly\xe2\x80\x9d means \xe2\x80\x9c[i]n an express manner,\xe2\x80\x9d \xe2\x80\x9cin\ndirect terms,\xe2\x80\x9d or \xe2\x80\x9cplainly.\xe2\x80\x9d Noah Webster, A Dictionary of the English\nLanguage 156 (1878 ed.); Henry Campbell Black, Dictionary of Law\nContaining Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern 462 (1891) (defining \xe2\x80\x9cexpress\xe2\x80\x9d\nto mean \xe2\x80\x9c[m]ade known distinctly and explicitly, and not left to inference\nor implication\xe2\x80\x9d); Webster\xe2\x80\x99s (Third) New International Dictionary of the\nEnglish Language 803 (1993) (defining \xe2\x80\x9cexpressly\xe2\x80\x9d to mean \xe2\x80\x9cin direct or\nunmistakable terms.\xe2\x80\x9d).\nThus, for a statute to authorize a military activity expressly for purposes of the Posse Comitatus Act, we think that it must be clear that\nCongress has approved that activity without regard to the restrictions on\nusing the military \xe2\x80\x9cas a posse comitatus or otherwise to execute the\nlaws.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1385; see Dorsey v. United States, 567 U.S. 260, 273\xe2\x80\x93\n75 (2012) (holding that statutory requirement that the \xe2\x80\x9crepeal of any\nstatute shall not have the effect to release or extinguish any penalty,\nforfeiture, or liability incurred under such statute, unless the repealing Act\nshall so expressly provide,\xe2\x80\x9d 1 U.S.C. \xc2\xa7 109, is satisfied where the \xe2\x80\x9cplain\nimport\xe2\x80\x9d or \xe2\x80\x9cfair implication\xe2\x80\x9d of the repealing Act is that it should apply to\npre-Act offenders). We do not think that a general authorization of \xe2\x80\x9cassistance\xe2\x80\x9d necessarily means that the restrictions of the Posse Comitatus Act\nfall away.\nThe generic authorization in section 1059(a) and (c)(1) to \xe2\x80\x9c[d]eploy\xe2\x80\x9d\nmilitary personnel \xe2\x80\x9cto the southern land border of the United States\xe2\x80\x9d for\n\xe2\x80\x9cassistance\xe2\x80\x9d to CBP in \xe2\x80\x9congoing efforts\xe2\x80\x9d does not reflect that kind of\nclear approval. To the contrary, we think that section 1059 points not to\nnew forms of support DoD may provide, but rather toward the types of\nassistance that DoD had already been providing to CBP as part of \xe2\x80\x9congoing efforts,\xe2\x80\x9d which include the types of activities specifically mentioned\nin section 1059(c)(2) and (c)(3). A contrary reading would dramatically\nchange DoD\xe2\x80\x99s assistance to these \xe2\x80\x9congoing efforts,\xe2\x80\x9d authorizing DoD to\n10\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nperform functions not traditionally done at the southern border, including\nthrough \xe2\x80\x9cdirect participation\xe2\x80\x9d by the military \xe2\x80\x9cin a search, seizure, arrest,\nor other similar activity.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 275; see also Memorandum for\nJamie Gorelick, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military to\nEnforce Immigration Laws at 2 (May 10, 1994) (\xe2\x80\x9cImmigration Laws\xe2\x80\x9d)\n(recognizing that the \xe2\x80\x9cdirect use of the military to detain or arrest suspect\naliens would violate\xe2\x80\x9d the Posse Comitatus Act \xe2\x80\x9cunless otherwise authorized by law\xe2\x80\x9d). We think it quite unlikely that Congress would have so\nsignificantly changed DoD\xe2\x80\x99s mission at the border by generally authorizing the \xe2\x80\x9cdeployment\xe2\x80\x9d of military personnel to provide \xe2\x80\x9cassistance.\xe2\x80\x9d\nWhere Congress has affirmatively authorized DoD to provide assistance to law enforcement in other contexts, it has often included restrictions on the military\xe2\x80\x99s \xe2\x80\x9cdirect participation\xe2\x80\x9d in encounters with\ncivilians. In fact, in another provision of the FY 2016 NDAA, Congress\nauthorized the military to provide \xe2\x80\x9cassistance\xe2\x80\x9d to the Department of\nJustice in its efforts to investigate domestic bombings of places of public\nuse or of Government facilities. FY 2016 NDAA \xc2\xa7 1082(a), 129 Stat. at\n1003\xe2\x80\x9304 (codifying 10 U.S.C. \xc2\xa7 383, now 10 U.S.C. \xc2\xa7 283). In so doing,\nCongress took care to specify that military personnel were not authorized\nto engage in \xe2\x80\x9carrest[s]\xe2\x80\x9d; any \xe2\x80\x9cdirect participation in conducting a search\nfor or seizure of evidence\xe2\x80\x9d; or any \xe2\x80\x9cdirect participation in the collection\nof intelligence for law enforcement purposes,\xe2\x80\x9d save in narrowly delineated circumstances. Id. (codifying 10 U.S.C. \xc2\xa7 383(c)(2), now 10 U.S.C.\n\xc2\xa7 283(c)(2)); see also 10 U.S.C. \xc2\xa7 282(c)(2)(B) (providing similar limited\nauthority for military personnel to engage in searches and seizures in\ninvestigating emergency situations involving weapons of mass destructions).\nCongress provided no such limitation in authorizing \xe2\x80\x9cassistance\xe2\x80\x9d under\nsection 1059. One could perhaps infer from the absence of such language\nthat Congress intended to authorize DoD to provide assistance to CBP in a\nmanner that did not restrict \xe2\x80\x9cdirect participation\xe2\x80\x9d in arrests, searches, and\nseizures. See Russello v. United States, 464 U.S. 16, 23 (1983) (\xe2\x80\x9cWhere\nCongress includes particular language in one section of a statute, but\nomits it in another section of the same Act, it is generally presumed that\nCongress acts intentionally and purposely in the disparate inclusion or\nexclusion.\xe2\x80\x9d (quotation marks and brackets omitted)). But we think that the\n11\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nmore likely inference is that Congress sought to authorize the kinds of\n\xe2\x80\x9congoing\xe2\x80\x9d assistance that DoD had been providing under chapter 15,\nconsistent with the existing statutory restriction on \xe2\x80\x9cdirect participation\xe2\x80\x9d\nrequired by 10 U.S.C. \xc2\xa7 275. 6 At a minimum, with two plausible interpretations available, we cannot say that Congress expressly authorized\nthe support to proceed without regard to the restrictions of the Posse\nComitatus Act.\nElsewhere, when Congress has authorized the military to engage in civilian law enforcement activities, it has explicitly stated that the Posse\nComitatus Act is inapplicable to those activities, see, e.g., 5 U.S.C. app. 3,\n\xc2\xa7 8(g) (\xe2\x80\x9cThe provisions of section 1385 of title 18, United States Code,\nshall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Department of\nDefense to carry out the purposes of this Act.\xe2\x80\x9d); 18 U.S.C. \xc2\xa7 831(f )(1)\n(stating that DoD may provide specified assistance to the Attorney General \xe2\x80\x9c[n]otwithstanding section 1385 of this title\xe2\x80\x9d if certain conditions are\nmet), or authorized the military to engage in activities that plainly involve\ncoercive action against civilians, see, e.g., 10 U.S.C. \xc2\xa7 251 (authorizing\nthe military, under certain circumstances, to \xe2\x80\x9csuppress . . . insurrection[s]\xe2\x80\x9d); id. \xc2\xa7 252 (authorizing the military to \xe2\x80\x9cenforce the laws of the\nUnited States\xe2\x80\x9d and to \xe2\x80\x9csuppress . . . rebellion[s]\xe2\x80\x9d); id. \xc2\xa7 253 (authorizing\nthe military to take needed \xe2\x80\x9cmeasures . . . to suppress . . . any insurrection, domestic violence, unlawful combination, or conspiracy\xe2\x80\x9d); 18 U.S.C.\n\xc2\xa7 112(f ) (authorizing the Attorney General to seek the assistance of,\n6 This interpretation is consistent with the section 1059\xe2\x80\x99s legislative history, which\nreflects an intent to authorize \xe2\x80\x9cthe ongoing efforts by [DoD] to provide additional assistance to secure the southern land border of the United States\xe2\x80\x9d\xe2\x80\x94assistance that DoD\nprovided consistent with the Posse Comitatus Act\xe2\x80\x94and desire that DoD \xe2\x80\x9ccontinue these\nefforts and coordinate with the Secretary of Homeland Security to identify opportunities\nto provide additional support.\xe2\x80\x9d Sen. Rep. No. 114-49, at 206 (2015) (emphases added);\nsee also National Defense Authorization Act for Fiscal Year 2016: Legislative Text and\nJoint Explanatory Statement 740 (Comm. Print Nov. 2015) (noting that section 1059\n\xe2\x80\x9cwould authorize the Secretary of Defense . . . to provide assistance to [CBP] for the\npurpose of increasing the ongoing efforts to secure the southern land border of the United\nStates\xe2\x80\x9d (emphasis added)). We have not located any legislative history suggesting that\nCongress intended that military personnel deployed to the border to provide \xe2\x80\x9cassistance\xe2\x80\x9d\nto CBP under section 1059 could depart from the sort of assistance the military had\npreviously provided to civilian law enforcement consistent with the Posse Comitatus Act\nand DoD\xe2\x80\x99s regulations.\n\n12\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\namong other agencies \xe2\x80\x9cthe Army, Navy, and Air Force\xe2\x80\x9d in enforcing the\ncriminal prohibition on harming foreign dignitaries); id. \xc2\xa7 1751(i) (authorizing the Attorney General to seek the assistance of, among other agencies\n\xe2\x80\x9cthe Army, Navy, and Air Force\xe2\x80\x9d in investigating the criminal prohibition\non murdering or assaulting the President or presidential staff ). See generally Extraterritorial Effect of the Posse Comitatus Act, 13 Op. O.L.C. at\n340 (discussing 21 U.S.C. \xc2\xa7 873(b), which authorizes the Attorney General to request military assistance to enforce the Controlled Substances\nAct).\nWe think that these specific authorizations in the U.S. Code for the military to provide particular support reinforce that the more general authorization of assistance in section 1059 should not be read to authorize actions without regard to the limitations of the Posse Comitatus Act. As the\nCourt has recognized, \xe2\x80\x9cthe meaning of one statute may be affected by\nother Acts, particularly where Congress has spoken subsequently and\nmore specifically to the topic at hand.\xe2\x80\x9d Food & Drug Admin. v. Brown &\nWilliamson Tobacco Corp., 529 U.S. 120, 133 (2000). In addition, specific statutory provisions inform the meaning of more general ones, and this\ncanon \xe2\x80\x9chas full application . . . to statutes . . . in which a general authorization and a more limited, specific authorization exist side-by-side.\xe2\x80\x9d\nRadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645\n(2012). The contrast between the generality of section 1059 and the specificity of these other provisions suggest that Congress did not intend section 1059(a) and (c)(1) to authorize the \xe2\x80\x9cdeployment\xe2\x80\x9d of military personnel to provide \xe2\x80\x9cassistance\xe2\x80\x9d to CBP without regard to whether such assistance would otherwise violate the Posse Comitatus Act.\nThis interpretation is consistent with the Office\xe2\x80\x99s prior caution in reading generally worded statutes to authorize the military to engage in coercive civilian law enforcement activities. In 1994, this Office concluded\nthat the Attorney General\xe2\x80\x99s authority to delegate immigration law enforcement functions to \xe2\x80\x9cany employee of the United States\xe2\x80\x9d did not clearly authorize the Attorney General to delegate such authority to military\npersonnel to engage in immigration-enforcement activities that would\notherwise violate the Posse Comitatus Act. 7 See Immigration Laws at 9\xe2\x80\x93\n7 The authority was then vested in the Attorney General. See 8 U.S.C. \xc2\xa7 1103(a)\n(1994). The Homeland Security Act of 2002 transferred most immigration-enforcement\nfunctions to the Secretary of Homeland Security. See Homeland Security Act of 2002,\n\n13\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\n12. We explained that where a determination that a statute constitutes\nexpress authority for purposes of the Posse Comitatus Act \xe2\x80\x9cwould represent a sharp departure from the traditional restrictions embodied\xe2\x80\x9d in the\nstatute, the determination \xe2\x80\x9cshould rest on a well-founded conviction that\nCongress intended such a result\xe2\x80\x9d because \xe2\x80\x9cit cannot be assumed that\nCongress would approve such a major change in the military\xe2\x80\x99s permissible law enforcement role without providing some specific indication that\nit was doing so.\xe2\x80\x9d Id. at 12. The same year, we concluded that general\nlanguage in the Electronic Communications Privacy Act of 1986 authorizing \xe2\x80\x9cgovernment personnel\xe2\x80\x9d to assist in electronic surveillance, see 18\nU.S.C. \xc2\xa7 2518(5), was insufficiently clear to authorize expressly military\npersonnel to engage in surveillance that would otherwise violate the Posse\nComitatus Act. See Electronic Surveillance at 4\xe2\x80\x926. These precedents\nsuggest that the similarly general authorization in section 1059 does not\nauthorize coercive military participation in civilian law enforcement\nactivities with the requisite clarity.\nThis conclusion also accords with judicial opinions addressing whether\nan activity is expressly authorized for purposes of the Posse Comitatus\nAct. Courts have found such express authority when the statute specifically refers to the Posse Comitatus Act. See, e.g., United States v. Stouder,\n724 F. Supp. 951, 954 (M.D. Ga. 1989) (\xe2\x80\x9cCongress specified in \xc2\xa7 8(g) of\nthe Inspector General Act of 1978 that . . . \xe2\x80\x98[t]he provisions of section\n1385 of title 18, United States Code . . . shall not apply to audits and\ninvestigations conducted by . . . the Inspector General of the Department\nof Defense.\xe2\x80\x99\xe2\x80\x9d). They have reached the same conclusion when the statute\nauthorizes the military to engage in a particular activity with such specificity that Congress clearly approved the particular use of the military. 8\n\nPub. L. No. 107-296, \xc2\xa7 1102(2)(A), 116 Stat. 2135, 2273 (2002), as amended by Consolidated Appropriations Resolution, Pub. L. No. 108-7, div. L, \xc2\xa7 105(a)(1), 107 Stat. 11, 531\n(2003).\n8 See, e.g., Gilbert v. United States, 165 F.3d 470, 473\xe2\x80\x9274 (6th Cir. 1999) (noting that\n32 U.S.C. \xc2\xa7 112(b) authorizes the National Guard, while not in federal service, to be used\nfor the \xe2\x80\x9cpurpose of carrying out drug interdiction and counter-drug activities\xe2\x80\x9d); United\nStates v. Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995) (\xe2\x80\x9cThis DEA airlift was specifically\nauthorized by \xc2\xa7 1004 of the National Defense Authorization Act for Fiscal Year 1991\n(\xe2\x80\x98NDAA\xe2\x80\x99), which allows military \xe2\x80\x98transportation of supplies and equipment for the\npurpose of facilitating counter-drug activities.\xe2\x80\x99\xe2\x80\x9d); United States v. Allred, 867 F.2d 856,\n\n14\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nAt the same time, we have identified several decisions that have read\nsomewhat general statutes as constituting express authorization under the\nPosse Comitatus Act. Of note, two district court judges have suggested,\nalbeit with little analysis, that section 1059 does constitute express authorization under the Posse Comitatus Act. See United States v. HernandezGarcia, No. 19-CR-4373-GPC, 2020 WL 1083427, at *3 (S.D. Cal.\nMar. 6, 2020) (Curiel, J.) (\xe2\x80\x9c[T[he Court finds that the 2016 NDAA unambiguously authorized the participation of DoD personnel at issue here,\nnamely, their observation of someone alleged to be Mr. Hernandez-Garcia\nthrough a scope, and their subsequent communication with BPA AllenLimon as to that person\xe2\x80\x99s location.\xe2\x80\x9d); United States v. Cardenas-Tovar,\nNo. 19-CR-04370-BTM, 2020 WL 905634, at *3 (Feb. 25, 2020) (Moskowitz, J.) (\xe2\x80\x9cEven assuming arguendo that the Marines\xe2\x80\x99 involvement rose\nto the level of direct involvement, however, such involvement appears to\nhave been \xe2\x80\x98otherwise authorized by law\xe2\x80\x99 pursuant to Section 1059 of the\nNational Defense Authorization Act for Fiscal Year 2016.\xe2\x80\x9d); United\nStates v. Rios-Montano, 438 F. Supp. 3d 1149, 1151, 1054\xe2\x80\x9255 (S.D. Cal.\n2020) (Curiel, J.) (agreeing that section 1059 \xe2\x80\x9c\xe2\x80\x98authorize[s] by law\xe2\x80\x99 the\nMarine Corps\xe2\x80\x99 conduct on the United States\xe2\x80\x99 southern border with Mexico\xe2\x80\x9d (alteration in original)). We believe that these decisions are correct\ninsofar as these cases involved military surveillance activities that were\nspecifically and expressly authorized by section 1059(c)(2). But we would\nnot read these decisions as suggesting that section 1059(a) and (c)(1)\nexpressly authorize the deployment of military personnel to provide\nassistance to CBP without regard whether to such assistance would otherwise conflict with the Posse Comitatus Act.\nTwo other courts have similarly read general statutes to constitute express authorization of certain activities for purposes of the Posse Comitatus Act. See United States v. Allred, 867 F.2d 856, 871 (5th Cir. 1989)\n(suggesting, in dictum, that the Attorney General\xe2\x80\x99s authority to appoint\nSpecial Assistant United States Attorneys constitutes an express authorization for purposes of the Posse Comitatus Act); Red Feather, 392\nF. Supp. at 923 (\xe2\x80\x9cThe Economy Act, 31 U.S.C. \xc2\xa7 686, expressly authorizes any executive department or independent establishment of the government, or any bureau or office thereof, to place orders with any other such\n871 (5th Cir. 1989) (relying on 10 U.S.C. \xc2\xa7 806(d)(1) in holding that military lawyers are\nstatutorily authorized to represent the United States in criminal cases).\n\n15\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\ndepartment, establishment, bureau, or office, for materials, supplies, or\nequipment.\xe2\x80\x9d (quotation marks omitted)). We think that the better reading\nof the decisions in these cases, if not their reasoning, is that the pertinent\nactivities, such as furnishing materials or supplies or the use of a commissioned officer of the Judge Advocate General\xe2\x80\x99s Corps (\xe2\x80\x9cJAGC\xe2\x80\x9d) as a\nspecial assistant to a United States Attorney, would generally not have\nviolated the Posse Comitatus Act even without express authorization.\nSee Bissonette, 776 F.2d at 1390 (\xe2\x80\x9c[T]he mere furnishing of materials and\nsupplies cannot violate the [Posse Comitatus Act].\xe2\x80\x9d); Assignment of Army\nLawyers to the Department of Justice, 10 Op. O.L.C. 115, 116 (1986)\n(\xe2\x80\x9cThe Department may use JAGC lawyers to assist in preparing cases and\nin performing a number of other duties in connection with civil and criminal litigation under our responsibility, without raising issues under the\nPosse Comitatus Act.\xe2\x80\x9d). 9 Neither Allred nor Red Feather considered\nsection 1059 or, of course, whether it constitutes express authorization\nunder the Posse Comitatus Act.\nFinally, our conclusion that section 1059(a) and (c)(1) does not expressly authorize the military to engage in activities without regard to the\nrestrictions of the Posse Comitatus Act is consistent with DoD\xe2\x80\x99s practices\nsince 2016. For many years now, DoD has deployed military personnel to\nthe southern border to assist DHS, but has not used such personnel to\nconduct coercive immigration-enforcement activities. This Office, too,\nhas regularly provided advice to DoD concerning the legal restrictions on\nthe use of military in its ongoing support for DHS at the southern border,\nincluding with respect to the national emergency declared by the President\non February 15, 2019, see Declaring a National Emergency Concerning\nthe Southern Border of the United States, Proclamation No. 9844, 84 Fed.\nReg. 4949 (Feb. 15, 2019). We have advised, for example, regarding\nwhether certain military support provided to DHS is authorized by chapter\n15, whether military personnel could engage in coercive civilian law\nenforcement activities in protecting ports of entry and other federal prop9 The JAGC opinion also stated that \xe2\x80\x9cquestions under the Posse Comitatus Act may be\nraised if military lawyers perform prosecutorial functions involving direct contact with\ncivilians, unless such military lawyers are detailed to the Department on a full-time basis\nand operate under the supervision of departmental personnel.\xe2\x80\x9d Assignment of Army\nLawyers to the Department of Justice, 10 Op. O.L.C. at 116. The extent to which these\n\xe2\x80\x9cquestions\xe2\x80\x9d might have been implicated by the facts in Allred is unclear, and in any event\nwe need not address them here.\n\n16\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nerty near the southern border, and whether the Insurrection Act could be\ninvoked to stem the flow of illegal aliens across the southern border. At\nno point during these discussions has DoD or this Office treated section\n1059(a) and (c)(1) as providing express authorization that would effectively moot any further consideration concerning the restrictions imposed\nby the Posse Comitatus Act.\nB.\nBecause DoD\xe2\x80\x99s activities at the border remain subject to the Posse\nComitatus Act, we must consider whether the rail-support and seal-check\nduties are consistent with the statute\xe2\x80\x99s restrictions. In accordance with the\napproach taken in our prior opinions, we review these activities based\nupon each of the three tests that courts have used in evaluating military\nactivities for compliance with the Posse Comitatus Act. We conclude that\nDoD\xe2\x80\x99s limited support for CBP inspections does not involve military\npersonnel in the kind of coercive regulatory activity, direct participation\nin civilian law enforcement, or pervasive conduct that is prohibited by the\nPosse Comitatus Act absent express authorization.\n1.\nTo start, we do not think that the rail-support and seal-check duties\nwould subject any civilians to military regulation, proscription, or compulsion. NIPC Detail, 22 Op. O.L.C. at 105. Courts have explained that\n\xe2\x80\x9c[a] power regulatory in nature is one which controls or directs,\xe2\x80\x9d \xe2\x80\x9c[a]\npower proscriptive in nature is one that prohibits or condemns,\xe2\x80\x9d and \xe2\x80\x9c[a]\npower compulsory in nature is one that exerts some coercive force.\xe2\x80\x9d\nUnited States v. Yunis, 681 F. Supp. 891, 895\xe2\x80\x9296 (D.D.C. 1988), aff\xe2\x80\x99d 924\nF.2d 1086 (D.C. Cir. 1991); United States v. Gerena, 649 F. Supp. 1179,\n1182\xe2\x80\x9283 (D. Conn. 1986) (same).\nThe Eighth Circuit considered when military activities subject civilians\nto military regulation, proscription, or compulsion in Bissonette v. Haig.\nThat case was one of several to arise from the U.S. military\xe2\x80\x99s involvement\nin a 1973 occupation by protesters of the town of Wounded Knee, South\nDakota. The plaintiffs alleged that military personnel \xe2\x80\x9cmaintained or\ncaused to be maintained roadblocks and armed patrols constituting an\narmed perimeter around the village of Wounded Knee,\xe2\x80\x9d which \xe2\x80\x9cseized,\n17\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nconfined, and made prisoners [of plaintiffs] against their will,\xe2\x80\x9d and they\nalso alleged that \xe2\x80\x9cthey were searched and subjected to surveillance against\ntheir will by aerial photographic and visual search and surveillance.\xe2\x80\x9d 776\nF.2d at 1390\xe2\x80\x9391. As to the allegations that troops had engaged in aerial\nsurveillance, the court held that \xe2\x80\x9cthat this sort of activity does not violate\nthe Posse Comitatus Act.\xe2\x80\x9d Id. at 1391. But the court held that the military\xe2\x80\x99s alleged activities in seizing individuals while setting up a roadblock\nsufficiently stated a claim that the troops had \xe2\x80\x9cin violation of the Posse\nComitatus Act\xe2\x80\x9d engaged in activities that \xe2\x80\x9cwere \xe2\x80\x98regulatory, proscriptive,\nor compulsory\xe2\x80\x99\xe2\x80\x9d because they involved a claim that military personnel\n\xe2\x80\x9cdirectly restrained plaintiffs\xe2\x80\x99 freedom of movement.\xe2\x80\x9d Id.\nHere, military personnel performing the rail-support and seal-check duties are not expected to have any contact with civilians\xe2\x80\x94much less to\ncontrol, direct, coerce, or otherwise regulate them. See United States v.\nBacon, 851 F.2d 1312, 1313 \xe2\x80\x9214 (11th Cir. 1988) (per curiam) (Army\nagent\xe2\x80\x99s undercover role in state drug investigation did not subject citizenry to regulatory exercise of military power, and therefore did not violate\nthe Posse Comitatus Act); United States v. Moraga, No. 01-964, 2002 WL\n35649965, at *10 (D.N.M. 2002) (use of air force dog and handler did not\n\xe2\x80\x9ccompel the Defendant to do anything or forbid the Defendant from doing\nanything\xe2\x80\x9d); Electronic Surveillance at 11 (\xe2\x80\x9cMere assistance by military\npersonnel in the monitoring of court-authorized electronic surveillance by\ncivilian authorities . . . is neither regulatory nor proscriptive, nor is it a\ncompulsory application of military power\xe2\x80\x9d). Military personnel would\nprovide support to CBP personnel by engaging in plain-view inspections\nof property and the fairly ministerial tasks of opening unoccupied vehicles. There is no sense in which such actions would subject civilians to\nmilitary regulation, proscription, or compulsion.\n2.\nWe next consider the \xe2\x80\x9cdirect active participation\xe2\x80\x9d test, which asks\nwhether military personnel have \xe2\x80\x9cdirect active\xe2\x80\x9d involvement in law enforcement activities, or instead are playing a \xe2\x80\x9cpassive role in civilian law\nenforcement activities.\xe2\x80\x9d Red Feather, 392 F. Supp. at 924; see NIPC\nDetail, 22 Op. O.L.C. at 105; Domestic Terrorism at 4; Electronic Surveillance at 8. This test \xe2\x80\x9cpermits a broad degree of cooperation between\nthe military and civilian law enforcement.\xe2\x80\x9d NIPC Detail, 22 Op. O.L.C. at\n18\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\n105. \xe2\x80\x9cActivities which constitute an active role in direct law enforcement\nare: arrest; seizure of evidence; search of a person; search of a building;\ninvestigation of crime; interviewing witnesses; pursuit of an escaped\ncivilian prisoner; search of an area for a suspect and other like activities.\xe2\x80\x9d\nRed Feather, 392 F. Supp. at 925; see also Immigration Laws at 2. By\ncontrast,\n[a]ctivities which constitute a passive role which might indirectly aid\nlaw enforcement are: mere presence of military personnel under orders to report on the necessity for military intervention; preparation\nof contingency plans to be used if military intervention is ordered;\nadvice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics; presence of military\npersonnel to deliver military materiel, equipment or supplies, to train\nlocal law enforcement officials on the proper use and care of such\nmaterial or equipment, and to maintain such materiel or equipment;\naerial photographic reconnaissance flights and other like activities.\nRed Feather, 392 F. Supp. at 925 (emphasis omitted); see also Yunis, 924\nF.2d at 1094.\nWe believe that the military\xe2\x80\x99s provision of personnel to perform the\nrail-support and seal-check duties is permissible indirect, passive assistance under this framework. These duties would not require military\npersonnel to perform any traditional law enforcement task, such as the\narrest, seizure, or search of a person. There is a sense in which these\nduties may involve military personnel \xe2\x80\x9csearching\xe2\x80\x9d commercial cargo\ntrucks and containers and vehicle compartments, at least to a small degree. 10 But our precedents make clear that not every activity that could be\ndescribed as a \xe2\x80\x9csearch,\xe2\x80\x9d even if it is a \xe2\x80\x9csearch\xe2\x80\x9d for purposes of the Fourth\nAmendment, constitutes direct participation in civilian law enforcement.\n\nThe opening of a closed vehicle would likely constitute a search under the Fourth\nAmendment. See United States v. Jones, 565 U.S. 400, 406 n.3 (2012) (\xe2\x80\x9cWhere, as here,\nthe Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.\xe2\x80\x9d). A plain-view search, however, of the\nseals on a cargo container would not. See id. at 412 (\xe2\x80\x9cThis Court has to date not deviated\nfrom the understanding that mere visual observation does not constitute a search.\xe2\x80\x9d); New\nYork v. Class, 475 U.S. 106, 114 (1986) (\xe2\x80\x9cThe exterior of a car, of course, is thrust into\nthe public eye, and thus to examine it does not constitute a \xe2\x80\x98search.\xe2\x80\x99\xe2\x80\x9d).\n10\n\n19\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nIn Military Use of Infrared Radars, for instance, we advised that military personnel do not directly participate in civilian law enforcement\nmerely by providing aerial reconnaissance using Forward Looking Infrared Radars (\xe2\x80\x9cFLIR\xe2\x80\x9d) technology to assist in identifying structures suspected of illegal drug production. See 15 Op. O.L.C. at 36\xe2\x80\x9338. We assumed without deciding that FLIR surveillance might be a \xe2\x80\x9csearch\xe2\x80\x9d for\npurposes of the Fourth Amendment but did not find that fact dispositive. 11\nInstead, we concluded that \xe2\x80\x9csearches\xe2\x80\x9d constitute direct participation \xe2\x80\x9cat\nmost\xe2\x80\x9d when they involve \xe2\x80\x9cphysical contact with civilians or their property,\xe2\x80\x9d and even then \xe2\x80\x9cperhaps only\xe2\x80\x9d when the searches involve \xe2\x80\x9cphysical\ncontact that [is] likely to result in a direct confrontation between military\npersonnel and civilians.\xe2\x80\x9d Id. at 39\xe2\x80\x9340; see also Domestic Terrorism at 4\n(same); Military Use of Infrared Radars, 15 Op. O.L.C. at 44 (reading\nthe direct-participation restriction \xe2\x80\x9cto prohibit only activity that entailed\ndirect, physical confrontation between military personnel and civilians\xe2\x80\x9d).\nAnd the courts too agree that surveillance operations, such as aerial reconnaissance, in support of civilian law enforcement constitute permissible indirect assistance. See United States v. Hartley, 796 F.2d 112, 114\n(5th Cir. 1986) (\xe2\x80\x9c[I]n examining allegations that military involvement in\ncivilian law enforcement violated the Posse Comitatus Act, courts have\nnoted that \xe2\x80\x98aerial photographic reconnaissance flights and other like\nactivities\xe2\x80\x99 do not reflect direct military involvement violative of the Posse\nComitatus Act.\xe2\x80\x9d (quoting Red Feather, 392 F. Supp. at 925, and collecting\ncases)); Bissonette, 776 F.2d at 1391 (\xe2\x80\x9c[P]laintiffs charge that they were\nsearched and subjected to surveillance against their will by aerial photographic and visual search and surveillance. As we have already noted . . .\nthis sort of activity does not violate the Posse Comitatus Act.\xe2\x80\x9d). 12\n\nSee Military Use of Infrared Radars, 15 Op. O.L.C. at 48; see generally Kyllo v.\nUnited States, 533 U.S. 27, 34 (2001) (\xe2\x80\x9cWe think that obtaining by sense-enhancing\ntechnology any information regarding the interior of the home that could not otherwise\nhave been obtained without physical intrusion into a constitutionally protected area\nconstitutes a search\xe2\x80\x94at least where (as here) the technology in question is not in general\npublic use.\xe2\x80\x9d (citation and quotation marks omitted)).\n12 In United States v. Johnson, 410 F.3d 137, 147 (4th Cir. 2005), the Fourth Circuit\nstated that \xe2\x80\x9c[a] blood test constitutes a search under the Fourth Amendment . . . and thus\nfalls under the rubric of law enforcement activities\xe2\x80\x9d requiring express congressional\nauthorization. Unlike the rail-support and seal-check duties, the conduct of a blood test is\nan investigative activity and puts military officers within the chain of custody of evi11\n\n20\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nWe reached similar conclusions in opinions approving DoD support for\ncivilian law enforcement by supplying drug-detecting dogs with military\nhandlers. We agreed that DoD may provide this support \xe2\x80\x9cto identify\npackages containing illegal narcotics\xe2\x80\x9d because \xe2\x80\x9cthe proposed use of the\ndogs and their handlers will not involve confrontation with civilians.\xe2\x80\x9d Use\nof Navy Drug-Detecting Dogs by Civilian Postal Inspectors, 13 Op.\nO.L.C. 312, 316 (1989); see also DoD Drug-Detecting Dogs, 13 Op.\nO.L.C. at 186 (\xe2\x80\x9c[W]e believe that drug-detecting dogs may be used in\nsearches of packages and places in the absence of persons with whom a\nconfrontation may arise, as long as the actual seizure is made by civilian\nlaw enforcement personnel.\xe2\x80\x9d). This was true notwithstanding the likelihood of physical contact with civilian property. See generally United\nStates v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007) (\xe2\x80\x9cAjax\njumped and placed his front paws on the body of the car in several places\nduring a walk-around sniff that took less than one minute.\xe2\x80\x9d).\nCourts have also held that military activities constituted permissible\nindirect support even where those activities involved some degree of\nphysical contact with civilian property. In United States v. Khan, 35 F.3d\n426 (9th Cir. 1994), the court held that Navy \xe2\x80\x9clogistical support and\nbackup security\xe2\x80\x9d for a Coast Guard operation to interdict a suspected\ndrug-smuggling ship constituted permissible indirect assistance notwithstanding the fact that Navy personnel actually boarded the ship. Id. at\n431\xe2\x80\x9232. The court explained that \xe2\x80\x9cNavy personnel on board the [ship] had\nacted under the command of the Coast Guard, and that only the Coast\nGuard had searched the ship and arrested the crew.\xe2\x80\x9d Id. at 432. Similarly,\nthe court in United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir.\n1998), concluded that similar Navy assistance was permissible indirect\nassistance to civilian law enforcement, even though, in addition to boarding the ship, \xe2\x80\x9cNavy engineers in the present case moved the fluids among\nthe fifteen tanks\xe2\x80\x9d in order to facilitate a search of the tanks. Id. at 1259. 13\ndence. We do not read Johnson as holding that every military activity that might constitute a \xe2\x80\x9csearch\xe2\x80\x9d for purposes of the Fourth Amendment necessarily constitutes the direct\nactive use of military personnel in civilian law enforcement for purposes of the Posse\nComitatus Act.\n13 In Johnson, military personnel performed a blood test that \xe2\x80\x9cwould yield the primary\nevidence of guilt of a DUI offense and, should the driver not plead guilty and go to trial,\nthe serviceman who performed the test likely would be called to testify.\xe2\x80\x9d 410 F.3d at 148.\nBy contrast, military personnel performing the rail-support and seal-check duties would\n\n21\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nWe think that both the rail-support and seal-check duties are plainly\npermissible under these precedents. The seal-check duty neither \xe2\x80\x9cinvolv[es] physical contact with civilians or their property\xe2\x80\x9d nor is \xe2\x80\x9clikely to\nresult in a direct confrontation between military personnel and civilians.\xe2\x80\x9d\nMilitary Use of Infrared Radars, 15 Op. O.L.C. at 39\xe2\x80\x9340. Military personnel would merely observe the exteriors of cargo trucks and containers,\nand would have no physical contact with that property. With respect to the\nrail-support duty, military personnel would prepare the vehicles for inspection by CBP by opening vehicle doors, trunks, and hoods, but such\ncursory and incidental physical contact does not amount to direct participation. The military personnel\xe2\x80\x99s assistance to CBP is not likely to result in\nany interactions with civilians, since the vehicles would be unmanned and\nin a restricted rail yard. And if military personnel notice anything suspicious, they would immediately notify CBP personnel and not participate\nin any resulting law enforcement activities.\nBecause the rail-support and seal-check duties would not require military personnel to directly participate in traditional law enforcement activities, such as a search, seizure, or arrest, as those terms are understood in\ncommon parlance, and would not risk a confrontation with civilians, we\ndo not believe that either duty would involve the direct active participation of military personnel in civilian law enforcement.\n3.\nFinally, the rail-support and seal-check duties in no way involve the\nactivities of military personnel \xe2\x80\x9cpervad[ing] the activities of civilian law\nenforcement.\xe2\x80\x9d NIPC Detail, 22 Op. O.L.C. at 105. The purpose of these\nduties is to allow military personnel to provide support for ongoing civilian law enforcement activities in which CBP personnel take the lead role.\nThere is no sense in which DoD\xe2\x80\x99s support would pervade CBP\xe2\x80\x99s activities.\nThe federal courts have recognized that DoD\xe2\x80\x99s actions will not be pervasive where they merely provide support to civilian law enforcement. In\nYunis, 681 F. Supp. at 895, the district court held that the Navy\xe2\x80\x99s inperform no investigative activities and would not be within the chain of custody of\nevidence.\n\n22\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nvolvement in the apprehension, arrest, and transportation of the defendant\ndid not \xe2\x80\x9cpervade the activities of civilian authorities\xe2\x80\x9d because \xe2\x80\x9cit was a\ncivilian operation originating from within the FBI.\xe2\x80\x9d Further, \xe2\x80\x9c[u]nder the\ndirection of the FBI,\xe2\x80\x9d Navy personnel never participated in the arrest or\ninterrogation of the defendant, and the Navy merely \xe2\x80\x9cgave the necessary\nsupport in the form of equipment, supplies, and services.\xe2\x80\x9d Id. at 895; see\nalso Yunis, 924 F.2d at 1094 (same). More recently, in United States v.\nHolloway, 531 F. App\xe2\x80\x99x 582 (6th Cir. 2013) (per curiam), the court held\nthat the actions of a Naval officer in discovering and notifying civilian\nlaw enforcement of the defendant\xe2\x80\x99s possession of child sexual abuse\nmaterial did not \xe2\x80\x9cpermeate\xe2\x80\x9d civilian law enforcement because, \xe2\x80\x9cafter the\nNavy agent turned over the information she had on Holloway to the civil\nauthorities, the military was not involved in the subsequent search of his\nhome, the seizure of evidence, or his arrest.\xe2\x80\x9d Id. at 583; see also Hayes,\n921 F.2d at 103 (actions of military personnel did not pervade civilian law\nenforcement because, despite sharing information with the police and\noffering other aid, they \xe2\x80\x9cdid not become involved in any of the activities\ntypically performed by the police, namely the arrest, the search of the\npremises where the transaction occurred, the seizure of the evidence, or\nthe transportation of that evidence to the station for testing\xe2\x80\x9d). 14\nAs in these cases, the role of military personnel performing the railsupport and seal-check duties would be strictly limited and peripheral to\nthe CBP activities that the duties would support\xe2\x80\x94investigative activities\nthat would be undertaken by CBP personnel and not military personnel.\nMilitary personnel also would operate under the direct supervision of CBP\npersonnel. The activities of military personnel would not come close to\npervading CBP\xe2\x80\x99s law enforcement activities.\n\n14 In United States v. Dreyer, 804 F.3d 1266, 1275 (9th Cir. 2015), the court held that\nthe military \xe2\x80\x9cinvestigation in this case pervaded the actions of civilian law enforcement\xe2\x80\x9d\nwhere the personnel \xe2\x80\x9cinitiated an operation to search for individuals sharing child pornography online,\xe2\x80\x9d and themselves testified that they conducted an \xe2\x80\x9cactive\xe2\x80\x9d investigation. Id.\nat 1275. Unlike in Dreyer, military personnel performing the rail-support and seal-check\nduties would not be leading an investigation, but merely assisting CBP in its activities.\n\n23\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nIII.\nWe turn next to the port-of-entry and checkpoint-observer duties. We\nbelieve that these duties fall within the types of activities expressly authorized under chapter 15, see 10 U.S.C. \xc2\xa7 274, and, therefore, DoD is\nexpressly authorized to perform those duties without the need for further\nevaluation under the Posse Comitatus Act.\nWe understand that military personnel performing these duties would\nmonitor the output of CBP electronic systems that automatically collect\nand process data, such as license-plate information, regarding individuals\nand vehicles passing through a port of entry or U.S. Border Patrol checkpoint and display an alert message if the system identifies a concern.\nMilitary personnel would perform this duty in an enclosed location, either\nin close proximity to the port of entry or checkpoint or from a remote\nlocation. If military personnel see an alert message from the CBP electronic display, then they would notify CBP personnel who would take\naction in response. Military personnel would have no involvement in any\nresulting inspection or investigation. 15\nSection 274 is one of several provisions of chapter 15 that authorize the\nmilitary to provide certain assistance to civilian law enforcement. Congress originally enacted section 274 in 1981, when it added a new subchapter to title 10, specifically concerning DoD support for civilian law\nenforcement, in order to provide a legislative clarification of congressional intent with respect to the Posse Comitatus Act so as to \xe2\x80\x9cmaximize[] the\ndegree of cooperation between the military and civilian law enforcement.\xe2\x80\x9d\nMilitary Use of Infrared Radars, 15 Op. O.L.C. at 45 (quoting H.R. Rep.\nNo. 97-71, pt. 2, at 3 (1981)); Department of Defense Authorization Act,\n1982, Pub. L. No. 97-86, \xc2\xa7 905(a)(1), 95 Stat. 1099, 1115 (1981). Any\nMilitary personnel additionally would be expected to visually observe and maintain\nsituational awareness of their port-of-entry or checkpoint environments and to notify CBP\npersonnel of anything suspicious. We understand that, to fulfill this expectation, military\npersonnel would merely report any suspicious activity observed while doing their job.\nThis additional aspect of the duty is expressly authorized by 10 U.S.C. \xc2\xa7 271(a), which\nallows military personnel to provide \xe2\x80\x9cany information collected during the normal course\nof military training or operations that may be relevant to a violation of any Federal or\nState law within the jurisdiction of such officials.\xe2\x80\x9d We think that support provided under\nchapter 15 would itself be a military operation.\n15\n\n24\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nsupport for civilian law enforcement that is authorized by section 274 is\nexpressly authorized for purposes of the Posse Comitatus Act (although\nsuch activities must be done consistent with the regulatory restrictions\nrequired by section 275). See Domestic Terrorism at 3\xe2\x80\x925.\nSection 274 authorizes DoD to provide support in the form of operating\nequipment. Section 274(b)(1) authorizes DoD, \xe2\x80\x9cupon request from the\nhead of a Federal law enforcement agency, [to] make Department of\nDefense personnel available to operate equipment\xe2\x80\x9d for the purpose of\nenforcing, among other laws, criminal violations of immigration and\ncustoms laws. 10 U.S.C. \xc2\xa7 274(b)(1)(A), (b)(4)(A). Section 274(b)(2)\nrequires that such support may be provided only for certain specifically\nlisted purposes, but none of those purposes encompasses the full range of\nthe port-of-entry and checkpoint-observer duties. 16 Section 274(c), however, contains a catch-all provision specifying that military personnel may\n\xe2\x80\x9coperate equipment for purposes other than described in subsection\n(b)(2)\xe2\x80\x9d if \xe2\x80\x9csuch support does not involve direct participation by such\npersonnel in a civilian law enforcement operation unless such direct\nparticipation is otherwise authorized by law.\xe2\x80\x9d\nWe think that the port-of-entry and checkpoint-observer duties are authorized by section 274(c). Military personnel would perform these duties\nby operating CBP electronic equipment in an enclosed location and reporting upon alert messages that may indicate the possibility of unlawful\nconduct. We understand that CBP personnel use the information gathered\nin these operations to detect violations of the criminal immigration and\ncustoms laws. These duties thus would involve the use of military personnel \xe2\x80\x9cto operate equipment\xe2\x80\x9d with respect to criminal violations of immigration and customs laws, as authorized by 10 U.S.C. \xc2\xa7 274(b)(1)(A). See\nalso id. \xc2\xa7 274(b)(4)(A) (listing applicable criminal laws).\n\nThe closest potentially applicable purpose specified in section 274(b)(2) is the\n\xe2\x80\x9c[d]etection, monitoring, and communication of the movement of surface traffic outside\nof the geographic boundary of the United States and within the United States not to\nexceed 25 miles of the boundary if the initial detection occurred outside of the boundary.\xe2\x80\x9d\n10 U.S.C. \xc2\xa7 274(b)(2)(B). We understand, however, that some of the activity here would\nnot fit within that purpose because it would involve monitoring surface traffic moving\nwell within the boundaries of the United States, and in some instances at checkpoints that\nare more than 25 miles away from the border.\n16\n\n25\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\nThese activities, moreover, would not \xe2\x80\x9cinvolve direct participation by\nsuch personnel in a civilian law enforcement operation.\xe2\x80\x9d Id. \xc2\xa7 274(c). We\nread this language in parallel with the restriction on \xe2\x80\x9cdirect participation\xe2\x80\x9d\nrequired under 10 U.S.C. \xc2\xa7 275. See Military Use of Infrared Radars, 15\nOp. O.L.C. at 46. As discussed above, that reference codifies the \xe2\x80\x9cdirect\nactive participation\xe2\x80\x9d test for whether military activity violates the Posse\nComitatus Act. See Domestic Terrorism at 4; Electronic Surveillance at 8;\nsee also supra Part I (describing the three tests). The text of section\n274(c) is materially similar to section 275 insofar as both bar the military\nfrom engaging in \xe2\x80\x9cdirect participation,\xe2\x80\x9d either categorically \xe2\x80\x9cin a civilian\nlaw enforcement operation,\xe2\x80\x9d 10 U.S.C. \xc2\xa7 274(c), or in the slightly more\nspecific \xe2\x80\x9csearch, seizure, arrest, or other similar activity,\xe2\x80\x9d id. \xc2\xa7 275.\nWe do not think that the port-of-entry and checkpoint-observer duties\ninvolve direct participation in a civilian law enforcement operation. As\ndiscussed above, the operation of surveillance equipment by military\npersonnel, such as monitoring an infrared radar surveillance system, or\noperating airborne surveillance equipment, does not itself constitute\n\xe2\x80\x9cdirect participation\xe2\x80\x9d in civilian law enforcement. See supra Part II.B.2.\nIn 2002, for example, we concluded that military personnel may assist an\nFBI domestic terrorism investigation by piloting an airplane that carried\nsurveillance equipment, operating the surveillance equipment, and transmitting the imagery to the FBI, with FBI personnel responsible for the\noverall conduct of the investigation, including directing the aircraft to\nfocus on particular targets. See Domestic Terrorism at 2, 4. And in 1994,\nwe concluded that military personnel do not engage in direct participation\nin civilian law enforcement activities in serving \xe2\x80\x9cas contemporaneous\nmonitors of electronic surveillance transmissions.\xe2\x80\x9d Electronic Surveillance at 2. We explained that such \xe2\x80\x9cremote monitoring through various\nforms of electronic assistance\xe2\x80\x9d was \xe2\x80\x9cdistinct from such activities as\n\xe2\x80\x98planting\xe2\x80\x99 the surveillance equipment at the targeted location or carrying\na concealed recording device while acting as an undercover agent.\xe2\x80\x9d Id.\nat 2, 8. As in these instances, the port-of-entry and checkpoint-observer\nduties would not involve \xe2\x80\x9cphysical contact with civilians or their property.\xe2\x80\x9d Domestic Terrorism at 4 (quotation marks omitted); see also Electronic Surveillance at 8; Military Use of Infrared Radars, 15 Op. O.L.C.\nat 48.\n26\n\n\x0cMilitary Support for Customs and Border Protection Along the Southern Border\nUnder the Posse Comitatus Act\n\nThe port-of-entry and checkpoint-observer duties would involve the use\nof military personnel \xe2\x80\x9cto operate equipment\xe2\x80\x9d with respect to criminal\nviolations of immigration and customs laws, 10 U.S.C. \xc2\xa7 274(b)(1), and\nwould not involve \xe2\x80\x9cdirect participation\xe2\x80\x9d in civilian law enforcement, id.\n\xc2\xa7 274(c). Therefore, such assistance is expressly authorized for purposes\nof the Posse Comitatus Act by section 274. 17\nIV.\nWe conclude that neither chapter 15 of title 10 of the United States\nCode nor section 1059 of the FY 2016 NDAA expressly authorize the\nrail-support and seal-check activities for purposes of the Posse Comitatus\nAct, but that neither of those activities would involve the use of the mili17 We also think that the port-of-entry and checkpoint-observer duties are consistent\nwith DoD Instruction 3025.21, which codifies the restriction on \xe2\x80\x9cdirect participation\xe2\x80\x9d\nwith more particularized restrictions on \xe2\x80\x9cdirect civilian law enforcement assistance,\xe2\x80\x9d id.\nencl. 3, \xc2\xb6 1.c. Some of those restrictions simply track the terms contained within 10\nU.S.C. \xc2\xa7 275, such as \xe2\x80\x9csearch,\xe2\x80\x9d and should be construed in the same fashion. Enclosure 3\nof this Instruction introduces a new term by restricting DoD personnel from engaging in\n\xe2\x80\x9csurveillance or pursuit of individuals, vehicles, items, transactions, or physical locations,\nor acting as undercover agents, informants, investigators, or interrogators.\xe2\x80\x9d DoD Instruction 3025.21 encl. 3, \xc2\xb6 1.c(1)(f ). We view this reference to \xe2\x80\x9csurveillance\xe2\x80\x9d to encompass\nonly the kinds of activities that involve \xe2\x80\x9cdirect civilian law enforcement assistance,\xe2\x80\x9d such\nas the targeting and tracking of specific individuals. The regulation pairs the term \xe2\x80\x9csurveillance\xe2\x80\x9d with \xe2\x80\x9cpursuit,\xe2\x80\x9d \xe2\x80\x9cacting as undercover agents, informants, investigators, or\ninterrogators,\xe2\x80\x9d and we thus must read \xe2\x80\x9csurveillance\xe2\x80\x9d to bear a similar meaning to these\nneighboring words. See, e.g., Yates v. United States, 574 U.S. 528, 543 (2015) (stating\nthat \xe2\x80\x9cthe principle of noscitur a sociis\xe2\x80\x9d counsels that \xe2\x80\x9ca word is known by the company it\nkeeps\xe2\x80\x9d). If \xe2\x80\x9csurveillance\xe2\x80\x9d were construed more broadly, then it would prohibit DoD from\nengaging in activities that are plainly authorized under the regulation, such as the\n\xe2\x80\x9c[d]etection, monitoring, and communication of the movement\xe2\x80\x9d of sea, air, and surface\ntraffic near the border. Id. encl. 3, \xc2\xb6 1.d(5)(b)(1)\xe2\x80\x92(2). Thus, we do not think that either the\nport-of-entry or checkpoint-observer duties involve impermissible \xe2\x80\x9csurveillance\xe2\x80\x9d under\nthe regulation.\nDoD Instruction 3025.21 also prohibits military personnel from conducting a \xe2\x80\x9csearch.\xe2\x80\x9d\nId. encl. 3, \xc2\xb6 1.c(1)(b). As with the regulation\xe2\x80\x99s prohibition of \xe2\x80\x9csurveillance,\xe2\x80\x9d we read this\nportion of the regulations to apply only to a \xe2\x80\x9csearch\xe2\x80\x9d that would constitute \xe2\x80\x9cdirect civilian\nlaw enforcement assistance,\xe2\x80\x9d which, for reasons noted above, the rail-support and sealcheck duties would not involve. While the rail-support and seal-check duties could be said\nto involve a \xe2\x80\x9csearch\xe2\x80\x9d in some sense, we do not believe that they would involve a \xe2\x80\x9csearch\xe2\x80\x9d\nas that term is used in this regulation. See supra Part II.B.2.\n\n27\n\n\x0c45 Op. O.L.C. __ (Jan. 19, 2021)\n\ntary \xe2\x80\x9cas a posse comitatus or otherwise to execute the laws,\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 1385, so as to violate that Act. We further conclude that the port-ofentry and checkpoint-observer activities are expressly authorized by 10\nU.S.C. \xc2\xa7 274(c).\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n28\n\n\x0c'


b"January 22, 1979\n\n79-7\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR, FEDERAL BUREAU OF\nINVESTIGATION\nFederal Bureau of Investigation\xe2\x80\x94Disclosure of\nCriminal Record\xe2\x80\x94Admission to the Bar\n\nThis responds to your request for our opinion whether the Florida\nBoard o f Bar Examiners is authorized to receive criminal history record in\xc2\xad\nformation maintained by the Federal Bureau o f Investigation (FBI) for the\npurpose o f investigating the character o f applicants for admission to the\nbar. We understand that there is no Florida statute that authorizes\ncriminal history record exchanges between the Board and the FBI. The\nBoard is established by rule o f the Florida Supreme C ourt under that\ncourt\xe2\x80\x99s inherent judicial authority to regulate admission to the b ar.' By\nrule o f the court, the Board is authorized to investigate the character and\nfitness o f applicants for admission.2 The B oard\xe2\x80\x99s own rules require that\napplicants submit fingerprints.3 On the basis o f these facts, we concur in\nyour conclusion that neither \xc2\xa7 201 o f the Act o f October 25, 1972, 86 Stat.\n1115, 28 U.S.C. \xc2\xa7 534 note, nor 28 CFR \xc2\xa7 20.33(a)(1), authorizes the FBI\nto provide the Board the criminal history record information for the pur\xc2\xad\npose o f determining the fitness o f bar applicants.\nUnder 28 CFR \xc2\xa7 20.33(a)(1), the FBI may make criminal record history\ninformation available to \xe2\x80\x9c criminal justice agencies for criminal justice\npurposes.\xe2\x80\x9d The Commissioner o f the Florida Department o f Law En\xc2\xad\nforcement argues that the Board o f Bar Examiners is a \xe2\x80\x9c criminal justice\nagency,\xe2\x80\x9d as defined by 28 CFR \xc2\xa7 20.3(c), and is therefore authorized to\nreceive that inform ation. We need not decide this point. The \xe2\x80\x9c administra\xc2\xad\ntion o f criminal justice,\xe2\x80\x9d as defined by 28 CFR \xc2\xa7 20.3(d), includes only\n\n1 See Fla. Stat. A nn. \xc2\xa7 454.021; Rules o f the Florida Supreme C ourt Relating to Admis\xc2\xad\nsions to the Bar, A rt. 1, \xc2\xa7 2; see generally, Barr v. Watts, 70 So. 2d 347, 350 (1953).\n2 Rules o f the Florida Supreme C ourt Relating to Admissions to the Bar, A rt. 2, \xc2\xa7 12.\n\xe2\x80\x98 Rules o f the Florida Board o f Examiners, Rule II, \xc2\xa710(4).\n\n55\n\n\x0cthe detection and prosecution o f crimes, the administration o f pretrial\nrelease, and the operation o f a correctional system. It does not include the\nlicensing o f attorneys to practice law. See generally, Menard v. Mitchell,\n328 F. Supp. 718, 726-27 (D .D .C . 1971, a ff\xe2\x80\x99d in part, rev\xe2\x80\x99d in part on\nother grounds sub nom. Menard v. Saxbe, 498 F. (2d) 1017 (D.C. Cir.\n1974)). Regardless o f whether the Board is a criminal justice agency, 28\nCFR \xc2\xa7 20.33(a)(1) does not authorize it to receive criminal record history\ninformation for the purpose o f determining the character o f applicants to\nthe bar.\nUnder \xc2\xa7 201 o f the Act, as implemented by 28 CFR \xc2\xa7 20.33(a)(3), the\nFBI may provide criminal record history information to a State for\nemployment or licensing purposes only if \xe2\x80\x9c authorized by State statute.\xe2\x80\x9d\nSection 201 was enacted in response to the Menard decision. It held that\nthe FBI lacked authority under then existing law to disseminate criminal\nhistory inform ation outside the Federal Government for employment or\nlicensing purposes. It also stated that statutes governing the dissemination\no f criminal history inform ation must be strictly construed to avoid serious\nconstitutional issues. The express restrictive language o f \xc2\xa7 201, when read\nin the light o f Menard, requires a narrow interpretation o f State authority\nto receive criminal history inform ation from the FBI for employment or\nlicensing use.\nAccordingly, this Office has construed \xc2\xa7 201 to permit a State board of\nbar examiners to obtain criminal history inform ation from the FBI only\nwhen a statute expressly authorized it to fingerprint applicants or to ex\xc2\xad\nchange criminal history inform ation with other agencies. As your\nmemorandum points out, we have specifically concluded that court or ad\xc2\xad\nministrative rules based on general authority to regulate admission to the\nbar do not meet the requirements o f \xc2\xa7 201. The facts in this case are iden\xc2\xad\ntical to those in our prior opinion on the subject.\nThe State has argued that the rules o f the Florida Supreme C ourt requir\xc2\xad\ning bar applicants to be fingerprinted are the full equivalent o f a statute\nbecause that court has authority superior to the legislature in this area.\nHowever, the Florida court has held that the legislature has \xe2\x80\x9c concurrent\xe2\x80\x9d\npower to regulate bar admissions. See, Barr v. Watts, 70 So.2d 347, 350\n(1953). It is therefore questionable as a m atter o f Florida law whether the\nlegislature lacks power to enact a statute requiring fingerprinting. More\nim portantly, the language o f \xc2\xa7 201 is explicit. Had Congress wished to per\xc2\xad\nmit dissemination authorized by judicial or administrative rule, it could\neasily have done so by having the section read \xe2\x80\x9c by law\xe2\x80\x9d instead o f \xe2\x80\x9c by\nstatute.\xe2\x80\x9d In the light o f the Menard decision, this choice o f language must\nbe given effect.\nM a r y C. L a w t o n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n56\n\n\x0c"


b"July 3, 1979\n\n79-47\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR, OFFICE OF PERSONNEL\nMANAGEMENT\nGarnishment\xe2\x80\x94Remuneration Paid to Federal\nEmployees\xe2\x80\x94Tennessee Valley Authority\xe2\x80\x94\nSmithsonian Institution\xe2\x80\x9442 U.S.C. \xc2\xa7\xc2\xa7 659, 662\n\nThis responds to your request for our opinion whether your agency\xe2\x80\x99s\ndraft regulation on garnishment for alimony and child support may\nlawfully cover payments for Federal workers\xe2\x80\x99 compensation, payments\nfrom the Tennessee Valley Authority (TVA) retirement system, and the\nsalaries and benefits of \xe2\x80\x9c private roll\xe2\x80\x9d employees of the Smithsonian\nInstitution.\nWe conclude that both workers\xe2\x80\x99 compensation payments and TVA\nretirement payments are subject to garnishment. The status of the\nSmithsonian\xe2\x80\x99s \xe2\x80\x9c private roll\xe2\x80\x9d employees is a more complex matter on\nwhich we are unable to give an opinion without first obtaining its views.\nUnder \xc2\xa7 459(a) of the Social Security Act, as amended, 42 U.S.C.\n\xc2\xa7 659(a), added in 1977,' remuneration for employment by the United\nStates is subject to garnishment for alimony and child support. Section\n461(a) of the Act, 42 U.S.C. \xc2\xa7 661(a), authorizes the President to pro\xc2\xad\nmulgate regulations implementing \xc2\xa7 459 for the executive branch, in\xc2\xad\ncluding any wholly owned Federal corporation created by act of Congress.\nThis authority has been delegated to you. Under \xc2\xa7 462(0(2) of the Act, 42\nU.S.C. \xc2\xa7 662(f)(2), \xe2\x80\x9c remuneration of employment\xe2\x80\x9d is defined to include:\n(2)\nperiodic benefits (including a periodic benefit as defined in\nsection 428(h)(3) o f this title) or other payments to such in\xc2\xad\ndividual under the insurance system established by subchapter II\nof this chapter or any other system or fund established by the\n\n1 P ub. L. No. 95-30, Title V, \xc2\xa7 501(a).\n\n274\n\n\x0cUnited States (as defined in subsection (a) of this section) which\nprovides for the payment of pensions, retirement or retired pay,\nannuities, dependents or survivors\xe2\x80\x99 benefits, or similar amounts\npayable on account of personal services performed by himself or\nany other individual (not including any payment as compensa\xc2\xad\ntion for death under any Federal program, any payment under\nany Federal program established to provide \xe2\x80\x9c black lung\xe2\x80\x9d bene\xc2\xad\nfits, any payment by the Veterans\xe2\x80\x99 Administration as pension, or\nany payments by the Veterans\xe2\x80\x99 Administration as compensation\nfor a service-connected disability or death, except any compensa\xc2\xad\ntion paid by the Veterans\xe2\x80\x99 Administration to a former member of\nthe Armed Forces who is in receipt of retired or retainer pay if\nsuch former member has waived a portion of his retired pay in\norder to receive such compensation), and does not consist of\namounts paid, by way of reimbursement or otherwise, to such in\xc2\xad\ndividual by his employer to defray expenses incurred by such in\xc2\xad\ndividual in carrying out duties associated with his employment.\nYour first question is whether proposed \xc2\xa7 552.102(i)(3) of the regulation\nmay lawfully include \xe2\x80\x9c amounts received under any federal program for\ncompensation for work injuries\xe2\x80\x9d 2 as remuneration subject to garnish\xc2\xad\nment. In our opinion, it can. As you point out, Senator Nunn, the sponsor\nof title V, expressly stated on the floor of the Senate that such payments\nwould be subject to garnishment. See 123 C o n g r e s s i o n a l R e c o r d S.\n12909 (1977). This explanation, the sole relevant legislative history, is\nstrong evidence that Congress intended Federal workers compensation\npayments to be covered. See, e.g., United States v. Dickerson, 310 U.S.\n554, 557 (1940); Richbourg Motor Co. v. United States', 281 U.S. 528, 536\n(1930). In addition, the text of \xc2\xa7 462(b)(2) conforms to this expression of\nintent. By expressly excluding payments for disability arising from black\nlung, military service, or death related to employment, Congress showed\nthat it considered the statute broad enough to include the general class of\nemployment-related disability payments. Since workers\xe2\x80\x99 compensation\npayments (other than for death) were not excluded, they are covered as\n\xe2\x80\x9c remuneration\xe2\x80\x9d under \xc2\xa7 462(b)(1). See, e.g., United States v. Jones, 567\nF. (2d) 965 (10th Cir. 1977); Tom v. Sutton, 553 F. (2d) 1101 (9th Cir.\n1976).\nYour second question is whether payments from the Tennessee Valley\nAuthority retirement system are \xe2\x80\x9c remuneration\xe2\x80\x9d under \xc2\xa7 462(0(2). The\nstatute expressly provides that payments from a \xe2\x80\x9c fund established by the\nUnited States (as defined in subsection (a) of this section) which provides\nfor the payment of pensions, retirement or retired pay, [or] annuities\xe2\x80\x9d is\nsubject to garnishment. The TVA contends that its retirement system is\n\n1 We understand this to m ean payments under the Federal Employees Com pensation Act,\nS U .S.C . \xc2\xa7 8101 et seq., and any similar statute.\n\n275\n\n\x0cnot established by the United States within the meaning of the Act because\nit is a separate legal entity not under the control of either TVA or your\nagency. We have examined the arguments presented by TVA, and we con\xc2\xad\nclude that payments from its retirement system are subject to the Act.\nThe TVA argues that its retirement system is an unincorporated associa\xc2\xad\ntion directed by a separate board of directors: three appointed by the\nAuthority, three elected by members of the system, and the seventh chosen\nby the others. Section 12 of the system\xe2\x80\x99s rules provides that:\nNo transfer, assignment, pledge, seizure or other voluntary or in\xc2\xad\nvoluntary alienation or encumbrance of any pension, annuity, or\nother benefit provided [by the retirement system is] permitted or\nrecognized.\nThis \xe2\x80\x9c spendthrift\xe2\x80\x9d provision, asserts TVA, was held valid in TVA v.\nKinzer, 142 F. (2d) 833 (6th Cir. 1944). In addition, it argues, the rules of\nthe retirement system constitute a contract between TVA and its\nemployees, and 16 U.S.C. \xc2\xa7 831b forbids any statutory change that would\n\xe2\x80\x9c impair the obligation of any contract\xe2\x80\x9d made by TVA.\nA closer reading of the Act and the Kinzer case, however, leads to the\nopposite conclusion. First, \xc2\xa7 462(a) of the Act defines the \xe2\x80\x9c United States\xe2\x80\x9d\nto include \xe2\x80\x9c any wholly owned Federal corporation.\xe2\x80\x9d This includes TVA.\nSee 16 U.S.C. \xc2\xa7 831.3 Nothing in the legislative history indicates that TVA\nwas not to be included in this definition. Second, analysis of Kinzer plainly\nshows that the retirement system is \xe2\x80\x9c established\xe2\x80\x9d by TVA. The Court of\nAppeals held that TVA created the system, including rule 12, under its\nstatutory authority to employ officers and agents without regard to the\nCivil Service laws and to \xe2\x80\x9c fix their compensation * * * and provide a\nsystem of organization to fix responsibility and promote efficiency.\xe2\x80\x9d 142\nF. (2d) at 835-836. The court noted that the retirement system was funded\nhalf by employee contributions and half by funds appropriated by Con\xc2\xad\ngress. 142 F. (2d) at 834-835. In finding the plan, including rule 12, to be\nwithin TVA\xe2\x80\x99s authority under 16 U.S.C. \xc2\xa7 831b, the court pointed out that\nTVA employees were employees of the United States and that Congress\nregarded the retirement system as \xe2\x80\x9c the equivalent of the Civil Service\nRetirement System.\xe2\x80\x9d 142 F. (2d) at 837-838. For that reason, the court\nheld, rule 12 was valid despite a Tennessee law that prohibited such\n\xe2\x80\x9c spendthrift\xe2\x80\x9d provisions. Id.\nThus, Kinzer, on which TVA relies, is based on the view that the retire\xc2\xad\nment system was established by a Federal instrumentality under statutory\nauthority to further its purposes by enhancing the welfare of its\nemployees. The retirement system is funded in the same way as the civil\nservice retirement system and serves the same purpose. Despite TVA\xe2\x80\x99s\n\n' Office o f Personnel M anagem ent\xe2\x80\x99s rulem aking authority under the Act also extends to any\nwholly owned Governm ent corporation. Social Security A ct, \xc2\xa7 461(a)(1), 42 U.S.C.\n661(a)(1).\n\n276\n\n\x0casserted inability to control its trustees, the system is plainly \xe2\x80\x9c established\xe2\x80\x9d\nwithin the meaning of 459(a), 462(0(2).\nNor can it be said that the application of the Act to the retirement\nsystem invalidates any contract right. TVA provides no authority for its\nassertion that the retirement system is based on contract. Insofar as we are\naware, the system, including the restraint on alienation, was unilaterally\ncreated by the Authority. See, TVA v. Kinzer, supra, at 834-835. Where\nCongress has created a contributory retirement system by statute, it is well\nsettled that an employee has no contractual right to future payments and\nthus lacks standing to object to statutory changes affecting only unaccrued\nfuture payments. Nordstrom v. United States, 342 F. (2d) 55, 169 Ct. C l.\n632 (1965); Rafferty v. United States, 210 F. (2d) 934 (3rd Cir. 1954). The\nsame principle would apply to a unilateral change in the retirement system\nrules by TVA, and it applies a fortiori to a change required by statute.\nThus, no contract obligation is impaired by the application of the Act to\nTVA.\nYour third question is whether the salaries and benefits of the Smithso\xc2\xad\nnian Institution\xe2\x80\x99s \xe2\x80\x9c private roll\xe2\x80\x9d employees may be subjected to garnish\xc2\xad\nment under your proposed regulations. We understand that the \xe2\x80\x9c private\nroll\xe2\x80\x9d employees are paid with the Smithsonian\xe2\x80\x99s non-Federal funds, con\xc2\xad\nsisting of gifts, bequests, profits from its commercial activities, and the\nlike. Whether their salaries and benefits may be subject to garnishment\nunder your regulations has two aspects: first, whether these payments are\n\xe2\x80\x9c remuneration for employment due from or payable by the United\nStates\xe2\x80\x9d within the meaning of \xc2\xa7 459(a); second, whether the Smithsonian\nInstitution is an agency in the executive branch within your rulemaking\nauthority under \xc2\xa7 461(a)(1). These are difficult and complex questions.\nThe Smithsonian is sui generis: a fusion of a private and public body and a\njoint instrument, in a sense, of all three branches of the Government.\nBefore expressing an opinion on its legal status or that of its \xe2\x80\x9c private roll\xe2\x80\x9d\nemployees, we require more information than you have provided. Accord\xc2\xad\ningly, we have requested the views of the General Counsel of the Smithso\xc2\xad\nnian. Any further information or comment from you will also be\nwelcome, including prior Civil Service Commission rulings relating to\n\xe2\x80\x9c private roll\xe2\x80\x9d employees.\nLeo n U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n277\n\n\x0c"