Posse Comitatus Act

MAY 21, 1981.

Hon. CASPAR W. WEINBERGER,

Secretary of Defense, Washington, D.C.

DEAR MR. SECRETARY: The Subcommittee on Crime of the House Committee on the Judiciary has scheduled a public hearing for June 3, 1981, on Section 908 of H.R. 3519 (Department of Defense Authorization bill). You or your General Counsel, William Howard Taft IV, are invited to testify at this hearing, which will begin at 9:30 a.m. in Room 2141 Rayburn House Office Building. A copy of the pertinent portion of the authorization bill, H.R. 3519, is enclosed.

Your prepared statement should address the following questions:

(1) Please indicate each of the significant activities involving cooperation between the Department of Defense and civilian law enforcement authorities, including loans of equipment, the provision of intelligence information, and the training of civilian personnel. This specification should be categorized according to the branch of the armed services involved.

(2) How would you reconcile the provisions of the Privacy Act with the provisions of proposed section 371 of title 10?

(3) Please indicate the nature of any requests for military assistance by civilian law enforcement authorities which have been rejected in the past five years. Please separate the requests according to level of government unit making the request (i.e., State/local vs. Federal).

(4) Please indicate what operational problems would be caused by proposed section 375 of title 10.

(5) Please provide the Committee with copies of all current operative policy statements or administrative directives on Posse Comitatus by the Department of Defense and all of the branches of the Armed Forces.

Your prepared statement and a one-page summary thereof should be submitted for entry into the record of the hearing, and you will be invited to make an oral presentation and answer any questions the Subcommittee members might have. It is requested that you comply with the enclosed "Notice to Witnesses" and submit the copies of your prepared statement to the Subcommittee, 207 Cannon House Office Building, Washington, D.C. 20515.

If you have any questions regarding this invitation, please contact Subcommittee Counsel David Beier at (202) 225-1695.

Sincerely,

PETER W. RODINO, Jr.,

Chairman.

MAY 21, 1981.

Hon. WILLIAM FRENCH SMITH,

The Attorney General, Washington, D.C.

DEAR MR. ATTORNEY GENERAL: The Subcommittee on Crime of the House Committee on the Judiciary has scheduled a public hearing for June 3, 1981, on Section 908 of H.R. 3519 (Department of Defense Authorization bill). You are invited to testify at this hearing, which will begin at 9:30 a.m. in Room 2141 Rayburn House Office Building. A copy of the pertinent portion of the authorization bill, H.R. 3591, is enclosed.

Your prepared statement should address the following points:

(1) Please assess the constitutionality of the provisions of H.R. 3591. How do you reconcile the provisions of section 908 of the bill with the concerns about the separation of military from civilian law enforcement as articulated by the Supreme Court in Laird v. Tatum, 408 U.S. 1 (1972) and by the Fourth Circuit in Walden v. United States, 490 F.2d 372 (1973).

(2) Please indicate what interpretation you would give to the term "federal drug agency" as used in proposed section 375 of title 10.

(3) Please provide a copy of the memorandum of May 24, 1978 and June 24, 1978, interpreting the provisions of the Posse Comitatus Act.

(4) What conflict, if any, exists between the provisions of the proposed amendments to title 10 and the requirements of the Privacy Act?

(5) Please list the current statutory and constitutional exceptions to the proscriptions of 18 U.S.C. 1385 and the circumstances in which they apply.

(6) Please indicate the impact of the provisions of 21 U.S.C. 873(b) on 18 U.S.C. 1385 and on any regulations issued by the Navy or the Department of Defense.

(7) Please indicate the following information about any pending cases which raise the issue of Posse Comitatus:

(a) name of the parties (b) docket number

(d) current status

(e) nature of the Posse Comitatus issue

(f) summary of the position of the government

(g) summary of any judicial interpretations of the Act.

(8) Please provide copies of any official interpretations of the Posse Comitatus Act given to any other officials of the executive branch, including the Department of Defense, the Drug Enforcement Administration and the United States Attorneys. (9) Please provide the Committee with a copy of the Attorney General's procedures or guidelines to implement Executive Order 12036.

If you have any questions regarding this invitation, please contact Subcommittee Counsel David Beier at (202) 225-1695. Sincerely,

PETER W. RODINO, Jr.,

Chairman.

Hon. JOHN TOWER,

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., April 24, 1981.

Chairman, Committee on Armed Services, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: The Department of Defense has been informed that your Committee will consider legislation regarding military assistance to law enforcement officials at a mark-up session on Monday, April 27, 1981. The legislation, a copy of whcih is attached, would specify the procedures for assistance to such agencies in terms of information, training, equipment, and facilities.

The position of the Department of Defense on the proposed legislation is circumscribed by two overriding considerations. First, the mission of the Department of Defense is military preparedness. Assistance to law enforcement agencies may be provided only when incidental to the performance of the Department's mission. Second, providing such assistance is limited by the Posse Comitatus Act, 18 U.S.C. § 1385 (1976), which reflects the traditional separation between military and civilian spheres of activity. The preservation of this distinction is one of the most fundamental precepts of our form of government. The Department of Defense scrupulously avoids direct involvement in law enforcement activities except as expressly authorized by law.

Subject to these considerations, the types of military assistance discussed in the legislation historically have been provided to civilian law enforcement officials, nomally on a reimbursable basis. It is our understanding that the sponsors of the proposed legislation are concerned, however, about uncertainty as to the degree of permissible assistance. In view of this concern, the Department does not object to legislation that would clarify the procedures for the provision of assistance in matters not involving direct military participation in law enforcement.

There are three aspects of the proposed amendment that are of crucial importance to the Department of Defense. First, it recognizes that the mission of the Department of the Defense is military preparedness. The Secretary of Defense intends to issue guidance that will insure that any indirect assistance to law enforcement by the military does not interfere with the mission. Second, it recognizes that direct participation in law enforcement is inappropriate unless otherwise authorized by law. This is another area in which the Secretary will issue guidance to preserve the fundamental separation between military and civilian activities. Finally, it recognizes the importance of reimbursement. The funding of nonmilitary law enforcement activities is the responsibility of those agencies charged with the investigation and prosecution of crimes against the United States. The Department of Defense is willing to provide assistance, consistent with the limitations set forth in this amendment and other laws, but we cannot use scarce defense resources to fund the activities of other agencies of the federal government. We have required reimbursement

in the past when significant costs have been incurred in the provision of such assistance, and we shall do so under the provisions of this amendment.

Sincerely,

WILLIAM H. TAFT IV.

OFFICE OF THE GENERAL COUNSEL,

March 19, 1981.

MEMORANDUM FOR MR. BEIER: Enclosed is the package on posse comitatus that I promised. I would be happy to meet with you to discuss particulars after you have had an opportunity to review the enclosure.

Enclosure.

Hon. LESTER WOLFF,

U.S. House of Representatives,
Washington, D.C.

LEON J. SCHACHTER,

Deputy Associate General Counsel.

THE WHITE HOUSE, Washington, D.C., April 30, 1980.

DEAR MR. CHAIRMAN: This letter is in response to your request for assistance in collecting information on military support of our efforts against drug smuggling. I share your interest and concern regarding the continued high level of drugs being smuggled into the United States. As you know, we have mounted a major effort to combat drug smuggling into the Southeastern United States and continue to emphasize stopping drugs as close to their foreign sources as possible. While drug interdiction can never, in itself, solve our Nation's problems with illegal drugs, interdiction is an important function within the entire range of drug supply reduction efforts. It is incumbent upon all of us to seek to achieve the highest levels of effectiveness with all of the resources which are available.

We have met with your staff to discuss our views in some detail. Because of the complexity and varied opinions regarding the merits and nature of military involvement in drug interdiction activities, my staff is now reviewing both military and Federal law enforcement interests as well as the legal basis for military involvement. There is information, such as sightings by military vessels and aircraft, collected during routine military missions which is being made available to Federal law enforcement agencies. I have found that a considerable amount of cooperation currently exists between the military services and the Federal law enforcement agencies. There has been improvement in this area during the past two years and this trend should continue.

Over the past decade, the Defense Department has furnished available equipment to the drug law enforcement agencies and reasonable process exists for handling such requests. Further, there has been excellent coordination and cooperation by the U.S. Air Force and Navy in assisting both the Coast Guard and the Customs Service with their informational needs. The illegal penetration of U.S. borders by sea and air is an area of mutual concern to national defense interests and to the drug law enforcement interests and this is the area on which we should focus in attempting to improve our effectiveness against drug smuggling.

It seems clear that one way to expand the eyes and ears of our drug interdiction activities is to encourage the military, within existing law, to provide all available information regarding illegal penetrations of the United States borders which may be of interest for anti-drug smuggling purposes. I do not believe that this requires any new or additional military mission directed at drug interdiction. The exchange of information which is routinely collected during normal military operational and training missions should be the focus of our attention. This exchange of information, along with the continued technical assistance and equipment support by the military services, provides a significant benefit to the Federal drug interdiction effort. It also has the potential for providing some additional benefit to the Department of Defense.

I believe that this type of assistance can continue without change to the Posse Comitatus statute and without specific exemption for drug law enforcement activities. It is possible that seeking a change in Posse Comitatus for the purposes of drug interdiction could work to the detriment of drug interdiction because of the broader questions which are raised regarding the use of uniformed military personnel. I have attached a summary of the responses to this issue received from the U.S. Coast Guard, the U.S. Customs Service, and the Drug Enforcement Administration (Enclo sure 1). A recent opinion by the Office of Legal Counsel in the Department of Jus

tice is reflected in the enclosed letter to Congressman Bafalis, dated August 6, 1979 (Enclosure 2).

The information furnished by the involved agencies regarding types of equipment and services and other support provided by the military is at Enclosure 3.

A summary of the views of each Federal agency regarding the military equipment, services or other support it could effectively use is at Enclosure 4. It is unlikely that any agency will ever be totally satisfied with the amount of resources available, particularly in an area as difficult as drug interdiction. The responses suggest additional ways in which the U.S. military could assist in drug enforcement missions. We are continuing to address this subject and I will furnish a more comprehensive answer when we complete our review.

Thank you for your continued interest. I look forward to working with you in the coming months on this question.

Sincerely,

Enclosures.

LEE I. DOGOLOFF,

Associate Director for Drug Policy, Domestic Policy Staff.

ENCLOSURE 1

1. Summary of agency responses regarding military assistance to Federal enforcement agencies in efforts to reduce drug smuggling and considerations involving the Posse Comitatus statute.

CUSTOMS

The phrase "posse comitatus" literally means power of the county or community and refers to a peace officer (sheriff) calling out citizens of the community to assist him in enforcing the law (the "posse" of the old west). However, today the phrase is usually used in reference to the prohibition set forth in 18 U.S.C. 1385. This is a criminal statute which is intended to prevent the unauthorized use of military forces to enforce civilian laws. The posse comitatus law was originally passed at the end of the Civil War to prevent the use of the military to enforce civilian laws in southern towns.

Under 18 U.S.C. 1385, it is a crime for any person "except in cases and under circumstances expressly authorized by the Constitution or act of Congress" to use any part of the Army or the Air Force as a posse comitatus or otherwise wo execute the laws of the United States. The United States Department of Defense has by regulation extended the provisions of the statute (which only covers Army and Air Force personnel) to include Navy and Marine Corps personnel as well.

We are unaware of any court cases tried under 18 U.S.C. 1385 itself. However, there have been several recent cases involving violations of other criminal laws where defendants sought to have the evidence excluded because it was allegedly gathered by military employees in violation of 18 U.S.C. 1385. The Fourth Circuit Court of Appeals in United States v. Walden, 490 F.2d 372 (4th Cir. 1974), cert. den., 416 U.S. 983 reh. den. 417 U.S. 977, held that the use of undercover Marine investigative personnel at the request of ATF was improper and violated the posse comitatus statute. The court did not suppress the evidence gathered by the military in the criminal case (which involved the sale of arms on a military reservation); however, it indicated it would consider suppressing evidence obtained by the military in the future. More recently, the United States Circuit Court of Appeals for the Eighth Circuit affirmed a District Court opinion which held that the use of the military in a "passive" role was not precluded by the statute, United States v. Red Feather, 392 f. Supp. 916 (D.S.D. 1975) affirmed sub nom, United States v. Casper, 541 F2d 1275 (8th Circ. 1976). "Passive" would include the furnishing of military material, training, facilities, behind the scenes support reconnaissance flights, or passing on information otherwise lawfully obtained during military operations to civilian authorities. The court indicated that the use of the military in an "active" capacity such as actually making an arrest, a search, a seizure, investigation of a crime, interviewing witnesses, or pursuit of an escaped civilian prisoner would be a violation of the statute (unless another law of Congress specifically permitted it).

The statute has sometimes been invoked in the past by some military units as a reason why they could not participate in joint Customs-military operations. Other military units, however, have allowed "passive" use of their facility and equipment such as the Norad installation (in which radar otherwise utilized by the military is used by Customs officers to track airplanes suspected of smuggling). In addition, the Air Force has recently taken the position that routine reconnaissance missions

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could include Customs officers for observation purposes as long as the plane was directed by military officials and on primarily a military mission.

The military have been more cooperative with civilian authorities since the Red Feather case, especially with regard to the anti-smuggling efforts. Part of this change is due to congressional and presidential expressions of concern over the inability of law enforcement agencies to keep up with the smuggler's technical advances. It should be noted that the Coast Guard is not covered by the posse comitatus prohibition since under 19 U.S.C. 1401 and 14 U.S.C. 143, its officers are deemed to be Customs officers.

With respect to possible exceptions from the Act, we offer the following possibilities:

a. 19 U.S.C. 507 authorizes a Customs officer "to demand of any person within the distance of three miles" to assist him in making arrests, searches, and seizures.

b. 19 U.S.C. 1401(I) permits the Secretary of the Treasury to designate any "person" to act as a Customs officer.

c. 22 U.S.C. 2291(a) authorizes the President to "furnish assistance" to any country or international organization, "on such terms and conditions as he may determine" for the control of narcotics trafficking.

d. 16 U.S.C. 1861(a) authorizes "all elements of the Department of Defense" to assist in the enforcement of the Fishery Conservation and (200 mile fishery zone) Management Act of 1976. Among the powers which may be exercised include the authority to board, search, or impound fishing vessels subject to the Act.

USCG

The Act covers only the Army and Air Force. The Navy is not included but has adopted the restrictions of the Act as a statement of public policy by SECNAVINST 5820.7 of 15 May 1974. The Coast Guard is not included in the Act nor has the agency made any attempt to seek inclusion since a basic function of the Coast Guard is to enforce Federal laws on the high seas and since the Coast Guard may provide assistance to civil law enforcement agencies under 14 U.S.C. 141(a) where our facilities or personnel are especially qualified (State of Alaska v. Jackson, Alaska 1977, 572 P.2d 87).

The Act has been successful in its purpose of restricting the application of military force to assist in the enforcement of civil law. The Act has been alive for more than 100 years yet there are only a dozen or so reported cases concerning its application. The Act has never been reported to have been applied directly against the military for a criminal violation of its prohibition. Instead, the Act has been used as a defense weapon to attack the government's case in criminal prosecutions.

The interpretations of the Act have fallen over a broad spectrum of analysis which has frustrated administrative application. The principal area open to interpretation is what is meant by the term "to execute the laws." On 24 May 1978 the Department of Justice, Office of Legal Counsel responded to a request from Department of Defense (DoD) concerning the constraint the Posse Comitatus Act places on the use of military personnel to assist the Department of Justice in the investigation of frauds committed by DoD contractors. That response was an in-depth analysis of the Act and the court interpretations to date. The response concluded upon review that:

Several general principles emerge from these sources.

The first is that the Act was intended to prohibit the employment of persons subject to military discipline to coerce or threaten to coerce civilians in the ordinary course of criminal or civil proceedings. The use of the term "execute" and the practices complained of by the Act's proponents show that Congress intended to remove the threat of actual or potential military force from the ordinary occasions of compulsion by the civil authorities. This intent is consistent with the traditional AngloAmerican subordination of the military to civil authority.

The second, which is the converse of the first, is that the Act does not prohibit military assistance to civilian law enforcement that does not involve the military in the exercise of authority over civilians. Congress did not condemn military expert advice or technical assistance to civilian authorities, and these do not create the danger of military compulsion of civilians which it did fear.

Thirdly, while Congress intended to keep military force out of civilian government, there is no indication that it meant to affect the Army's internal administration or the performance of its proper functions.

Thus, persons subject to military discipline may not aid law enforcement in the civilian community by participating without constitutional or statutory authority in an arrest, pursuit, search, seizure, service of process, or custodial interrogation or by

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