1979] POSSE COMITATUS 5 on the old indictment. Later in the month, a new indictment was returned, and the defendant was tried and convicted on that indictment." On appeal, Chandler contended that his arrest was improper because, inter alia, the use of Army personnel to make the arrest violated the Act." The Court of Appeals for the First Circuit rejected this claim," citing the presumption against extraterritoriality normally attributed to criminal statutes." In the course of its discussion, the court determined that it would be “unwarranted" to assume that Congress intended the Act "to be applicable to occupied enemy territory, where the military power is in control and Congress has not set up a civil regime."" The court's view that the Act is not applicable to the Army in its capacity as an occupying power rests on solid ground. The Chandler arrest was made by Army personnel under circumstances in which the armed forces of the United States invaded and occupied Germany, supplanted the German Reich, and assumed certain powers of sovereignty. The use of the armed forces for law enforcement purposes was in furtherance of an authorized military purpose in connection with the war in Europe." Moreover, the military was acting in accordance with the unquestioned authority of an occupant under international law to exercise the powers of the sovereign necessary to maintain law and order." The treaties that embody relevant doctrines of international law constitute the supreme law of the land." In view of these treaties and the military purposes "171 F.2d at 927-28. "Id. at 933-36. Chandler also contested the extraterritorial effect of the treason statute, but the court concluded that the treason statute should be applied outside the United States after considering the language of the statute (proscribing actions "within the United States or elsewhere"), the development of the constitutional provision on treason, the legislative history of earlier versions of the treason statute, and Supreme Court cases on extraterritoriality. Id. at 929-31. 171 F.2d at 936. "See section V infra. " Id. (citing Hirabayashi v. United States, 320 U.S. 81, 93 (1943); MacCloed v. United States, 229 U.S. 416 (1913); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 141, 142 (1866)). "See 171 F.2d at 935. The type of military occupation in effect in Germany after World War II has been termed "hostile occupation." G. VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 27 (1967). It is defined as "the military occupation of the territory of a country which surrendered completely and no longer maintains armed forces in the field." Id. The use of the armed forces to further an authorized military function is not prohibited by the Act even if there is an incidental benefit to civilian law enforcement. See note 43 infra. "See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, pt. III, § 3, 6 U.S.T. 3516, 3548-68, T.I.A.S. No. 3365. U.S. CONST. art. VI, cl. 2. ST. JOHN'S LAW REVIEW [Vol. 54:1 served by maintaining law and order in occupied territories, there was express authorization for the use of armed forces for law enforce ment purposes in occupied territories, thereby removing such activities from the prohibitions of the Act. There also is strong evidence in the legislative history that Congress did not intend the Act to impair the exercise of Presidential powers necessarily related to the application of military force in time of war." Therefore, even in the absence of such treaties, the Act would not apply to actions taken in accordance with the law of war where application of military force is otherwise authorized. Although the Act does not apply to acts by an occupant performed in accordance with the law of war, it does not necessarily follow that the Chandler opinion is correct in asserting that the Act has no extraterritorial application whatsoever. Resolution of this issue requires consideration of the legislative history of the Act under the principles of statutory construction, which are set forth in the leading case on extraterritorial application of criminal statutes, United States v. Bowman." As Section VI of this Article dem. onstrates, the Chandler court's characterization of the Act as a mere "backwash" of Reconstruction Era electoral politics fails to portray accurately the purposes of Congress in enacting this statute." Ac "See section VI infra. 260 U.S. 94 (1922). During the course of its discussion, the court summarized the legislative history of the Act as follows: The [Posse Comitatus Act) was originally a section inserted into an Army Appropriation Act as a backwash of the Reconstruction period following the Civil War Its legislative history as set forth in Lieber, The Use of the Army in Aid of the Civil Power, indicates that the immediate objective of the legislation was to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished. 171 F.2d at 936 (citing Lieber, The Use of the Army in Aid of the Civil Power, OFFICE OF THE JUDGE ADVOCATE GENERAL, U.S. Department of War, Doc. No. 64 (1898)). The court's discussion of the legislative history, however, is incomplete. Although the use of federal troops in the electoral process was a significant factor in the early stages of debate on the Act, the legislative history demonstrates Congressional opposition to the use of troops in nonelectoral law enforcement activities outside the former Confederate States. See section VI in/rs. Moreover, had the Chandler court read Lieber's pamphlet more carefully, it would have noticed that he expressly declined to provide a comprehensive legislative history. See Lieber, supra at 14. Lieber was concerned primarily with demonstrating that the Act did not limit the constitutional power of the President to use whatever force might be necessary to overcome resistance to the execution of the laws. Id. at 55-56. He did not state that the Act was otherwise invalid, nor did he limit the effect of the Act to electoral matters: The object of the legislation of 1878 was to place restrictions on the use of the Army in 'executing the laws,' but this had reference only to the ordinary civil and criminal 1979] POSSE COMITATUS 7 cordingly, Chandler does not provide a reliable basis for applying the presumption against extraterritoriality to the Act. Two years after the Chandler case, similar issues were raised in Gillars v. United States." Gillars was convicted of treason for participating in psychological warfare against the United States from 1941 to 1945 by making certain radio broadcasts and phonograph recordings within Germany. Although the circumstances of her arrest were not spelled out in the opinion, it appears that "she was brought against her will into the District of Columbia from Ger."" The court of appeals concluded that the district court "was many.' "25 not required to refuse to try her when she was brought here unlawfully." In support of this conclusion, the court cited the Chandler case and legislative history of the Act as discussed in Chandler." The Gillars court then endorsed the narrow holding of the first circuit in Chandler denying the applicability of the statute to acts performed by an occupant pursuant to the law of war. The court expressly declined, however, to endorse the broader dicta providing law of the land. It was not intended to place restrictions on its use for ordinary military purposes. Id. at 34 n.1. Also problematical is the court's failure to consider construction of the Act by relevent agencies of the Executive Branch. See section IV infra. A further problem in applying. Chandler today results from the court's characterization of the Posse Comitatus Act: The turning up of this obscure and all-but-forgotten statute is a credit to the industry of counsel; but we know perfectly well that if members of the Armed Forces who took Chandler into custody were prosecuted for a criminal offense under [the Act, such prosecution would surely fail. 171 F.2d at 936. This characterization is no longer accurate in light of recent cases concerning the Act and renewed attention from commentators. E.g., United States v. Wolffs, 594 F.2d 77, 84-85 (5th Cir. 1979); Lamont v. Haig, 590 F.2d 1124, 1126 (D.C. Cir. 1978); United States v. Banks, 539 F.2d 14, 15-16 (9th Cir.), cert. denied, 429 U.S. 1024 (1976); United States v. Walden, 490 F 2d 372. 373-76 (4th Cir.), cert. denied, 416 U.S. 983 (1974); United States v. McArthur, 419 F. Supp. 186, 193-94 (D.N.D.), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S. 970 (1977); United States v. Red Feather, 392 F. Supp. 916, 920-25 (D.S.D. 1975); United States v. Banks, 383 F. Supp. 368, 374-78 (D.S.D. 1974); United States v. Jaramillo, 380 F. Supp. 1375, 1378-82 (D. Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); Wrynn v. United States, 200 F. Supp. 457 (E.D.N.Y. 1961); Horbaly & Mullin, Extraterritorial Jurisdiction and Its Effect on the Administration of Military Criminal Justice Overseas, 71 MIL. L. Rev. 1, 82-92 (1976). See generally Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 MIL. L. Rev. 83 (1975); Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. CRIM. L. Rev. 703 (1976) (hereinafter cited as 1976 Note); Note, Honored in the Breech: Presidential Authority to Execute the Laws with Military Force, 83 YALE L. REV. 130 (1973) (hereinafter cited as 1973 Note]. 24 182 F. 2d 962 (D.C. Cir. 1950). "Id at 972. 20 Id. 8 ST. JOHN'S LAW REVIEW a total exemption for acts performed extraterritorially." [Vol. 54:1 In another treason case based upon participation in enemy radio broadcasts, D'Aquino v. United States," the defendant used the Act to challenge the court's jurisdiction. The defendant had been arrested in Tokyo in 1948 pursuant to a warrant issued by the Supreme Command for the Allied Power upon complaint of the Department of Justice." The court simply cited Chandler and Gillars, concluding: "For the reasons stated in those cases, we hold this argument without merit."" Given the citation of Gillars and the circumstances of the case-an arrest ordered by a military authority in an occupied territory-the case does not provide authoritative guidance as to whether there is a blanket extraterritorial exemption in the Act. B. The Vietnam Era The extraterritorial application of the Act was raised but not decided in United States v. Cotten." In 1970, Cotten and a codefendant were convicted of conspiring to defraud the United States by knowingly converting money and other property of the United States Military Exchanges in Japan to their own use and the use of others. When the indictment was brought against them in the Northern District of California in 1970, both men, civilians, were in Vietnam." Immediately after the indictment, the State Department instituted action to revoke their passports and arrange for their return to the United States. Cotten, in handcuffs and leg-irons belonging to the United States, was taken by the Vietnamese to Tan Son Nhut Airport in Saigon where an agent of the Naval Investigative Service (NIS) took his passport and made certain that he entered an American military aircraft. On the aircraft, still in irons, he was seated by two other NIS agents. When he protested that he was being kidnapped, he was struck in the back of the head, subdued, and secured to the deck with cargo chains. Upon arrival in Honolulu, he was turned over to the federal marshal. The co Id at 973. The court reasoned that since the Act was "inapplicable in this case, it is unnecessary to determine whether the statute is extraterritorial in its scope." Id. 192 F.2d 338 (9th Cir. 1951). Id. at 349. "Id at 351. 471 F.2d 744 (9th Cir.), cert. denied, 411 U.S. 936 (1973). 97-621 0-82-38 conspirator was returned to the United States under similar circumstances. On appeal, the defendants contended that their involuntary removal from Vietnam and the use of military personnel to transport them to the United States to face charges for civilian crimes constituted criminal acts on the part of the government, thereby requiring either a dismissal of charges or a finding of lack of jurisdiction. The court of appeals rejected this contention. Applying the principle enunciated by the Supreme Court in Ker v. Illinois," the court concluded that, even if the defendants "were in fact kidnapped or forcibly removed without their consent to the territorial limits of the United States. . . under the order of government 119 U.S. 436 (1886) (state court jurisdiction not defeated by forcible abduction and return of the defendant to the United States. The Ninth Circuit also cited Frisbie v. Collins, 342 U.S. 519 (1952), a case in which the Supreme Court held that a state court's jurisdiction was not defeated by bringing a defendant within the court's jurisdiction by means of forcible abduction even though a federal kidnapping law might have been violated in the process. Id. at 522-23. The Supreme Court has cited the Ker-Frisbie doctrine with approval in a case subsequent to Cotten not involving a forcible abduction. See Gerstein v. Pugh, 420 U.S. 103. 119 (1975) (illegal arrest or detention does not void subsequent convic tion). In United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), the second circuit specifically criticized this aspect of the decision in Cotton, stating that in certain circumstances, any remedy other than an exclusionary rule (precluding jurisdiction) would be inadequate under the then-current Supreme Court doctrine. Id. at 276 & n.6. The Toscanino court ruled that participation by United States agents in the torture and forcible abduction of the defendant from Uruguay to the United States would, if proved, defeat jurisdiction. See id. at 275. On remand, the district court held a hearing and denied the jurisdictional motion on the grounds that there was no credible evidence of participation by officials of the United States. 398 F. Supp. 916 (E.D.N.Y. 1975) (mem.). The second circuit subsequently limited the sweep of the Toscanino holding: [Recognizing that Ker and Frisbie no longer provide a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality, and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court. In holding that Ker and Frisbie must yield to the extent they were inconsistent with the Supreme Court's more recent pronouncements, we scarcely could have meant to eviscerate the Ker-Frisbie rule, which the Supreme Court has never felt impelled to disavow... Lacking from Lujan's petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process. Lujan v. Gengler, 510 F.2d 62, 65, 66 (2d Cir.), cert. denied, 421 U.S. 1001 (1975); accord, United States v. Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847 (1975). The cet courts of appeals encountering similar questions have either declined to apply Toscanino or have found distinguishing factors. See, e.g.. United States v. Lopez, 542 F.2d 283 (5th Cir. 1976) (per curiam); United States v. Marzano, 537 F.2d 257 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1977); United States v. Lovato, 520 F.2d 1270 (9th Cir.) (per curiam), cert. denied, 423 U.S. 985 (1977). |