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5. Protection of the President, Vice President and other designated dignitaries. 18 U.S.C. § 1751 (reference (v)); The Presidential Protection Assistance Act of 1976, (reference (w)).

6. Actions taken in support of the neutrality laws. 22 U.S.C. §§ 408, 461-62 (reference (x)).

7. Removal of persons unlawfully present on Indian Lands. 25 U.S.C. § 180 (reference (y)).

8. Execution of quarantine and certain health laws. 42 U.S.C. § 97 (reference (z)). 9. Execution of certain warrants relating to enforcement of specified civil rights laws. 42 U.S.C. § 1989 (reference (z)).

10. Loan of services, equipment, personnel, equipment, and facilities to the Law Enforcement Assistance Administration. 42 U.S.Č. § 3756 (reference (z)).

11. Removal of unlawful enclosures from public lands. 43 U.S.C. § 1065 (reference (aa)).

12. Protection of the rights of a discoverer of a guano island. 48 U.S.C. § 1418 (reference (bb)).

13. Support of territorial governors in the event of civil disorders. 48 U.S.C. §§ 1422, 1591 (reference (bb)).

14. Actions in support of certain customs laws. 50 U.S.C. § 220 (reference (cc)).

3. Restrictions on direct assistance.-Except as otherwise provided in this enclosure, the prohibition on use of military personnel "as a posse comitatus or otherwise to execute the laws" prohibits the following forms of direct assistance:

(a) Interdiction of a vehicle, vessel, aircraft or other similar activity.

(b) A search or seizure.

(c) An arrest, stop and frisk, or similar activity.

(d) Use of military personnel for surveillance or pursuit of individuals, or as informants, undercover agents, investigators, or interrogators.

4. Training.—DoD Components may provide training to federal, state, and local civilian law enforcement officials in the operation and maintenance of equipment made available under section A. of enclosure 3. This does not permit large scale or elaborate training, nor does it permit regular or direct involvement of military personnel in activities that are fundamentally civilian law enforcement operations except as otherwise authorized in this enclosure.

5. Expert advice.-DoD Components may provide expert advice to federal, state, or local law enforcement officials in accordance with 10 U.S.C. §§ 371-378 (reference (b)). This does not permit regular or direct involvement of military personnel in activities that are fundamentally civilian law enforcement operations except as otherwise authorized in this enclosure.

6. Use of DoD personnel to operate or maintain equipment.-A request for DoD personnel to operate or maintain or to assist in operating or maintaining equipment made available under section A. of enclosure 3 shall be considered under the following guidance:

(a) A request for assistance under this subsection may be made by the head of a civilian agency empowered to enforce the following laws:

1. The Controlled Substances Act (reference (dd)) or the Controlled Substances Import and Export Act (reference (ee));

2. Any of sections 274 through 278 of the Immigration and Nationality Act (reference (ff)); or

3. A law relating to the arrival or departure of merchandise (as defined in section 401 of the Tariff Act of 1930 (reference (gg)) into or out of the customs territory of the United States (as defined in general headnote 2 of the Tariff Schedules of the United States (reference (gg)) or any other territory or possession of the United States.

4. Any other law which establishes authority for DoD personnel to provide direct assistance to civilian law enforcement officials.

(b) Assistance under this section shall be limited to situations where the training of non-DoD personnel would be unfeasible or impractical from a cost or time perspective and would not otherwise compromise national security or military preparedness concerns.

(c) The following types of assistance may be provided under this section:

1. DoD personnel may be assigned to maintain or assist in maintaining equipment with respect to any criminal violation of the laws specified in paragraph A.6.a., above.

2. DoD personnel may be assigned to operate or assist in operating equipment to the extent the equipment is used for monitoring and communicating the movement of air and sea traffic with respect to any criminal violation of the laws specified in paragraph A.6.a., above.

3. In an emergency circumstance, equipment operated by or with the assistance of DoD personnel may be used outside the land area of the United States (or any territory or possession of the United States) as a base of operations by federal law enforcement officials to facilitate the enforcement of a law listed in paragraph A.6.a., above, and to transport such law enforcement officials in connection with such operations, subject the following limitations:

(a) Equipment operated by or with the assistance of DoD) personnel may not be used to interdict or interrupt the passage of vessels or aircraft except when DoD personnel are otherwise authorized to take such action with respect to a civilian law enforcement operation.

(b) There must be a joint determination by the Secretary of Defense and the Attorney General that an emergency circumstance exists under 10 U.S.C. § 374(c)(2) (reference (b)). An emergency circumstance may be determined to exist for purposes of this subparagraph only when:

1. The size and scope of the suspected criminal activity in a given situation poses a serious threat to the interests of the United States; and

2. Enforcement of a law listed in paragraph A.6.a. would be seriously impaired if the assistance described in this subsection were not provided.

(c) The emergency authority in this subparagraph may be used only with respect to large scale criminal activity at a particular point in time or over a fixed period. It does not permit use of this authority on a routine or extended basis.

(d) Nothing in this subparagraph restricts the authority of military personnel to take immediate action to save life or property or to protect a federal function as provided in paragraph A.1.b., above.

4. When DoD personnel are otherwise assigned to provide assistance with respect to the laws specified in paragraph A.6.a., above, the participation of such personnel shall be consistent with the limitations in such laws, if any, and such restrictions as may be established by the Secretary of Defense, the ASD (MRA&L), or the head of the DoD Component concerned.

7. Other permissible assistance.-The following forms of indirect assistance activities are not restricted by the Posse Comitatus Act (subsection A.1., above):

(a) Transfer of information acquired in the normal course of military operations. See enclosure 2.

(b) Such other actions, approved in accordance with procedures established by the head of the DoD Component concerned, that do not subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.

B. Exceptions based on status

The restrictions in section A. are not applicable to the following persons:

1. A member of a reserve component when not on active duty or inactive duty for training.

2. A member of the National Guard when not in the federal service.

3. A civilian employee of the Department of Defense. If the civilian employee is under the direct command and control of a military officer, assistance will not be provided unless it would be permitted under section A., above, or C., below.

4. A member of a Military Service when off-duty, and in a private capacity. A member is not acting in a private capacity when assistance to law enforcement officials is rendered under the direction, control, or suggestion of DoD authorities. C. Exceptions based on military service

DoD guidance on the Posse Comitatus Act, as set forth in sections A. and B., above, is applicable to the Navy and the Marine Corps as a matter of DoD policy, with such exceptions as may be provided by the Secretary of the Navy on a case-bycase basis.

1. Such exceptions shall include requests from the Attorney General for assistance under 21 U.S.C. 873(b) (reference (hh)):

2. Prior approval from the Secretary of Defense shall be obtained for exceptions that are likely to involve participation by members of the Navy or Marine Corps in an interdiction of a vessel or aircraft, a search or seizure, an arrest, or other activity that is likely to subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature. Such approval may be granted only when the head of the civilian agency concerned verifies that:

(a) The size or scope of the suspected criminal activity poses a serious threat to the interests of the United States, and enforcement of a law within the jurisdiction of the civilian agency would be seriously impaired if the assistance were not provided because civilian assets are not available to perform the mission; or

(b) Civilian law enforcement assets are not available to perform the mission and temporary assistance is required on an emergency basis to prevent loss of life or wanton destruction of property.

D. Military preparedness

Assistance may not be provided under this enclosure if provision of such assistance could affect adversely national security or military preparedness. The implementing documents issued by the heads of DoD Components shall ensure that approval for the disposition of equipment is vested in officials who can assess the impact of such disposition on national security military preparedness.

E. Approval authority

Requests by civilian law enforcement officials for use of DoD personnel in civilian law enforcement functions shall be forwarded to the appropriate approval authority under the guidance in this section.

1. Use of DoD personnel in civil disturbances and related matters is governed by DoD Directive 3025.12 (reference (i)), with the approval authorities specified therein. 2. Approval authority for assistance to the government of the District of Columbia is governed by DoD Directive 5030.46 (reference (r)).

3. The following governs approval for assistance to civilian law enforcement officials in other circumstances:

(a) The Secretary of Defense is the approval authority for requests that involve assignment of 50 or more DoD personnel or a period of assignment of more than 30 days.

(b) The ASD (MRA&L) is the approval authority for other requests for assignment of personnel.

(c) The approval authority in paragraphs E.3.a. and E.3.b., above, may be delegated to the head of a DoD Component with respect to specified types of assistance by personnel for a period of six months or less in the following categories:

1. Use of DoD personnel to provide training or expert advice in accordance with subsections A.4. and A.5., above.

2. Use of DoD personnel for equipment maintenance in accordance with subparagraph A.6.c.(1), above.

3. Use of DoD personnel for monitoring and communicating the movement of air and sea traffic in accordance with subparagraph A.6.c.(2), above.

4. Use of Navy or Marine Corps personnel under section C., above, except when prior approval of the Secretary of Defense is required under subsection C.2., above. (d) Requests that involve DoD intelligence components are subject to the limitations in DoD Directive 5240.1 and DoD 5240.1-R (reference (a)), and are subject to approval by the Secretary of Defense.

(e) The views of the Joint Chiefs of Staff shall be obtained on all requests that are considered by the Secretary of Defense or the ASD (MRA&L), or that otherwise involve personnel assigned to a Unified or Specified Command.

(f) All requests, including those in which subordinate authorities recommend denial, shall be submitted promptly to the approving authority using the format and channels established by the ASD (MRA&L). Requests will be forwarded and processed in keeping with the degree of urgency dictated by the situation.

F. Funding

Funding requirements for assistance under this enclosure shall be established by the ASD (MRA&L) under the guidance in enclosure 5.

A. Establishment of guidance

FUNDING

Funding requirements and related reporting procedures shall be established by the ASD (MRA&L), after consultation with the ASD (C) subject to the guidance of this enclosure.

B. Procedural requirements

1. As a general matter, reimbursement is required when equipment or services are provided to agencies outside the Department of Defense. The primary source of law for reimbursement requirements is the Economy Act (reference (f)). Other statutes may be applicable to particular types of assistance. See section A. of enclosure

3.

2. Insofar as reimbursement is not required by law for a particular form of assistance, the authority to waive reimbursement is delegated to the ASD (MRA&L). See

10 U.S.C. § 377 (reference (c)). A request for waiver may be granted in the following circumstances.

(a) When assistance under this Directive is provided as an incidental aspect of an activity that is conducted for a military purpose.

(b) When assistance under this Directive involves use of DoD personnel in an activity that provides DoD with training or operational benefits that are substantially equivalent to the benefit of DoD training or operations.

(c) When reimbursement is not otherwise required by law and it is determined that waiver of reimbursement will not have an adverse impact on military preparedness.

3. The views of the Joint Chiefs of Staff as to the impact on military preparedness of a waiver of reimbursement will be considered by the ASD (MRA&L).

4. In evaluating requests for waiver of reimbursement, the ASD (MRA&L) will take into consideration the budgetary resources available to civilian law enforcement agencies and past practices with respect to similar types of assistance.

C. Military preparedness

Reimbursement shall not be waived if deletion of such funds from a DoD account could adversely affect the national security or military preparedness of the United States.

CIVIL COURTS BUILDING, Houston, Tex., September 25, 1981.

PETER W. RODINO, Jr., M.C.,

Rayburn Building,

Washington, D.C

DEAR MR. CHAIRMAN: Can the United States Navy, which is understaffed, short of aircraft, ships, slated for budgetary reductions and riddled with drug abuse in its ranks, be of any help in slowing down the ever increasing flow of narcotics into the United States?

I am speaking not as a senior trial judge in Texas, when I say "Of course it cannot!", but as a former federal prosecutor, former marine flyer, present voter and present tax payer. I ask you, as one of the country's leaders, to admit the obvious in this matter. Those members of the House or the Senate, who are attempting to scrap or amend the Posse Comitatus Act, 18 U.S.C., 1835, and draft the Navy or the other armed forces into the fight against drugs, are:

1. Misinformed,

2. Uninformed,

3. Engaged in a merely cosmetic effort to stem the flow of drugs into this country, 4. "Showboating" for the voters back home, or

5. None of the above, and they are sincere, but need to be re-educated so that they will change their minds.

Every school child knows that our once mighty Navy is short of surface ships, aircraft, offensive weapons, sophisticated equipment and the trained officers and petty officers to operate them.

The Wall Street Journal recently stated that the Navy is short 22,000 petty officers, and must juggle crews in order to send ships and aircraft to sea. It also goes on to say that the Air Force suffers from lack of trained technicians and repair parts; and, that the Army Chief of Staff has characterized the U.S. Army as "hollow".

Recent national news sources have quoted surveys from the House Select Committee on Narcotics Abuse and Control, that stated that 49 percent of the Navy, 42.3 percent of the Army, 34.7 percent of the Marines and 17 percent of the Air Force personnel use drugs or alcohol while on duty. The same news sources say that Navy personnel use more “uppers" than the other service men, and that 60 percent of the Sailors on the Carrier Forrestal, operating in the Mediterranean, have used drugs and/or alcohol on duty.

Only one Congressman, (that this writer has heard about) Representative Jacobs, has made an intelligent remark about this. He stated: "The public is entitled to an arresting officer who is trained in the preservation and presentation of evidence. Those who are trained in the military sphere are simply not trained that way, with the possible exception of the military police."

Another Congressman, who, because he once served in the Judge Advocate General's office in the Navy, thinks that the Navy officers could do the job, because "They have strong backgrounds in obeying the Constitutional principles involved in enforcing laws of this nature." Bull.

It is statements, such as the last one, that will make it possible for most any criminal defense lawyer, just a year or two out of law school, to get acquittals or reversals in drug cases where untrained personnel might have been used to make arrests and/or gather and preserve evidence.

Is that what the Congressman wants?

The only Armed Force that is capable, of rendering proper assistance, is the one which has been doing it all along, the United States Coast Guard. The Coast Guard was arresting rum-runners before most members of the Congress was born. Texas has a very long coast line and a very long border with Mexico. As United State Attorney for the Southern District of Texas for six years, I can assure you that the Coast Guard is the only military force with the training and background for the fight against drugs.

Think of what would happen if you took away Heavy Cruisers or Light Carriers and their supply ships away from our Navy's Mediterranean force, the force assigned to patrol near the Persian Gulf, or the portion of the Pacific Fleet assigned to the China Sea or the Sea of Japan. Consider the cost and the time of building several Heavy Cruisers and/or several Light Carriers as against building ten times that many more Coast Guard Cutters.

The obvious answer is to throw out all possible proposals to bury the Posse Comitatus Act to drag the Navy into the drug fight, to give arrest power to the Navy, Army, Air Force or Marine Corps; and, instead, go to the primary area of domestic law enforcement in this instance. Transfer more surplus military equipment, including search aircraft (including helicopters), to both the Bureau of Customs and to the Coast Guard, hire recently discharged military technicians, with backgrounds in ground and air radar, and put them to work doing the same thing in the Customs Service; install radar interception units all along our coast and all along both the Mexican and Canadian borders and provide the Coast Guard with more aircraft, more sophisticated communications systems, more personnel, and obviously many, many more Cutters.

The cost of all that would be considerably less than the use of Air Force personnel and aircraft or Navy surface ships, aircraft and personnel. It would be a far better answer, considering our many upcoming budgetary cuts and it sure as hell would be the answer for the fight against the smuggling of drugs into our country.

Of course, these proposals would be good only if the Congress is really sincere in the much needed and long overdue fight against the importation of drugs.

Yours very truly,

ANTHONY J. P. FARRIS, Judge.

P.S. Furthermore, I already have a job and am not interested in any other.

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL,
Washington, D.C., August 27, 1981.

Hon. JOHN TOWER,
Chairman, Senate Armed Services Committee, Russell Senate Office Building, Wash-
ington, D.C.

DEAR SENATOR TOWER: I am writing to reaffirm the Association's support for Section 915 of S. 815, the Department of Defense Authorization bill, which is under consideration by a House-Senate Conference Committee. As you know, that section would amend the Posse Comitatus Act, 18 U.S.C. 1385, to allow the United States Armed Forces to transmit information from surveillance or other intelligence activities about potential violations of state or local law to appropriate law enforcement authorities.

Amendment of this statute is necessary in order to assist law enforcement agencies in obtaining essential information that would otherwise be unavailable. The Association does not endorse changes in the law that would allow the Armed Forces to participate in domestic enforcement activity in a substantive manner, as does Section 908 of H.R. 3519 which the Conference Committee is also considering, but rather only seeks changes that would authorize sharing of information with the military.

In our view, enactment of Section 908 in H.R. 3519 would pose several serious problems. First, untrained military personnel that make searches or seizures might jeopardize the resulting arrests by conducting the search or seizure improperly. Since it is not possible to train all existing military personnel in lawful enforcement techniques, we believe that law enforcement should be left to authorized law enforcement agencies.

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