Illegal Law Enforcement Aiding Civil Authorities in Violation of the Posse Comitatus Act

• Author: Major Clarence I Meeks III, USMC
• Pages: 02

Here, then IS one of theparamountprincrples for whrch the Revolutionary War was fought; soldrers, needed and honored in war for the d o r and strength that txrns back the nation's enemies, are nmei to be used against their eiuilian countrymen, no matter how expedient their utrliration might seem.'

1. INTRODUCTION

   The Posse Comitatus Act provides ample reason for military commanders to prohibit their subordinates from performing civil law enforcement missions:

   Whoever. except m cases and under circumstances expre8dy authorized by the CanstitutianarActaiCongresr. rillfull) vaesanyparlafthe Amyar the An Fareeasapasaecomitaruaorotheru-isotoeaecuterhelawsshallbefined not more than 810,000 OT imprisoned not more than two years OTboth

   At the same time the press has been questioning whether cam. rnanders diligently comply with the dictates of the Act,$ the courts have been issuing warnings to the military establishment. In 1972

   *Tha article 1s an adaptation ofsThea~rpreienredroThe Judge Ad\ acate GeneraYs

   School C S Arm),, Charlattesi~ll~, Vlrgmla, n,hIle the sufhar was B member of the

   Twenr)-third Judge Advocate Officer Advanced Class The oplnmna end c o n clusion~ expressed herein are those of the author and do nut mcessanl) reprerent the wen's aiThe Judge Adracate General'e School many other governmental apen- **Judge Adioeste United States Marine Carpe Staff Judge Adiacate, Marine Carps Air Stanon Beaufan, S C B 4 1960. Auburn Umveraif) .J D ,1970, Cnwer nf) of South Carohna hlernber ai the Bars of South Carolma. the u S Court of Milirari Appeals and the U S Supreme Court

   'Engdahl. Soldiers. Riots ond Reoalutron The Loii of.Miliiary Troops zn Ciid Disardris, 57 IOIAL REV 1, 28 119;11 [hereinafter cited ab Engdahl]

   ?1S U S C 5 1385 (1970)]See, ea, Rashmgton Past, Feb 4 1972, at C1, cd 3 Dally Progress tCharlatreeillle. Va.). Oct 10 1974 et A9 c d 1

   e

   MILITARY LA9 REVIEW I\ 01. i o

   the United States Supreme Court, In dicta, clearly indicated its aversion to "any military intrusion into cinlian affairs 'I. In a more recentcase, thevnited StatesCourtofAppealsfortheFaurth Circuit ruled that only a technicality precluded it from finding a violation of the Act and excluding evidence gathered for cirilian authorities by Marines.: Sotwithstanding Its holding. the court admonished the military for it6 participation in civilian law enforcement and issued the following warning.

   deterrew

   Questions of unlawful military involvement In civilian law enforcement arise in two general contexts. The firstconcerns military participation st the behest of the President, and the second cancernsmilitary aid talocalcivilianauthontiesm theperformanceof their ordinary lati enforcement functions without Presldential approval or other lawful authority The former has been the more topical in the past, and the President's authority m this area has been subject to considerable scrutiny and comment -In someareas the President clearly has authority to use military forces for c ~ 1 1 law enforcement by virtue of express Statutory authority,' which constitute express exceptions to the prohibition of the Posse

   Comitatus Act. Although it is generally agreed thatthe Act applies to the President? that opinion is not universally accepted.10

   More importantly, however, it is in the second context that questions concerning the application of the Posse Comitatus Act are surfacing with increased frequency. This article will focus on the aid given local law enforcement authorities where such assistance is provided without the approval or knowledge of the President. Among the continuing questions which this article will address are whether commanders below the departmental level have any authority to aid in civil law enforcement; what guidance the military departments have given subordinate commanders; whether commanders are properly exercising whatever authority they possess; and what the potential consequences for abuses of authority are.

   The Act, passed in 1878, was charactenzed by a federal circuit judge in 1948 as "this obscure and all.but-forgotten statute."11 In the only significant published discussion oftheAct,MajorH. W. C. Furman observed chat since its passage the Act had "seldom been construed by the courts or Attorney General.''1z The relative obscurity enjoyed by the Posse Comitatus Act during the pasthun. dred years has now been lost and the courts are now beingrequired to determine the Act's applicability. In the last five years, theU.S. Courts of Appeals for the Fourth" and Ninth" Circuits have decided cases with significant Posse Comitatus issues, and the Act has recently been used successfully by defense attorneys in at least three of the so-called "Wounded Knee Indian upnsing" prosecutions.16 Also, for the first time, the Act is being cited in reported state court decisions.16 Commanders who, unwittingly or otherwise, continue to test the patience of the federal courts are surely on a collision course with the Posse Comitatus Act.

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   \IILIT.%RY L.49 REIIEU I\ 01. 50

   11. BACKGROUKD OF THE ACT

   An historical review of the opposition to milltar). involvement ~n civil law enforcement in this country and a description of the specific incidents leading to passage of the Act help put current issues into clearer perspective.'. Strang opposition to military en-croachment into civil affairs has surfaced from time to time since colonial days. Eighteenth century colonists were distraught over the British practice of requismomng their property for use as quarters for Bntish soldiers.'? General Gage. the British military commander in North Amenca and Governor of the Province of Massachusetts, recognized this sensitivity and desired tomake the quartering of his troops in private homes as light a burden as possible .'1 To reduce militaryirdian confrontation, he also dlrected that his subordinates aroid using then troops to aid civil authorities as much as possible.

   But conflict was inemtable and It erupted In Boston m 1770 m a bloody and ugly incident known since as the"Boston~~assacre."~~ Smaller incidents in Boston had finally culminatedin this confrontation between disorderly citizens and amed soldiersin whlch five Bostonians were killed and others were wounded. The troop cam. mander and all but two ofhis men were acquitted of any wrangdaing.

   Boston continued to be the focal point far dissident and protest activities highlighted by the Boston Tea Party in 1773 2 . British soldiers were used to suppress thls and sumlar disorders, and in 1774 the so.called "Administration of Justice Act" was passed bl-Parliament. Although it prowded that the use of excessive force in suppressing disorders was punishable, it also permitted the removal of the trials aflaw enforcement officials including soldiers ta other colonies or to England. The net effect was tomake the trial of any offender very difficult.2'

   The Declaration of Independence specificaily enumerated the colonists' objections to military interference with their lives It criticized the King and English Parliament "for quartering large bodies of armed troops among us," and "for protecting them by a mock trial, from Punishment far any Murders whlch they should

   19761 POSSE COMITATUS ACT

   commit on the Inhabitants of these States."It further criticized the King for having "affected to render the Military independent of and superior to the Civil Power."

   Throughout the Constitutional Convention convened in 1787, one of the major problems confronting the delegates was how to handle theirfearofastandingarmy.Forexample,inthesessiononAugust 18, 1787, there was considerable connoversy over whether there should be B standing army at all or whether it would be preferable to be dependent solely upon thestatemi1itias.Under the latter proposal the federal government was to provide some coordination and regulation of themilitias in order to haveaunifarmly disciplined and trained forceia General Pinckney of South Carolina argued for a national armed force but proposed that the Constitution provide for very specific regulation of this farce byincluding m it prohibitions against quartering troops in pnvate homes and maintaining a peacetime force except by legislative approval. He also wanted to include a statement that the military would always be subordinate to civil authority.2' Although these specific measures were not included in the final draft of the Con. stitutian, the records of the debates indicate that the drafters were quite concerned about insuring absolute civilian control over the military. Therefore, they did include affirmative safeguards topre-vent the military from accruing too much power.2' The legislative branch was given the authority to raise a standing army26 and to control the state militias when "in the service of the United States."27 Another significant legislative control over the military was the provision for frequent review of military appropnations. This control was established hy specifying that funds could be appropriated for not longer than two years;2a and that although the President was designated Commander in Ch~ef,~Ithe power to declare war was reserved to the legislative branch.30

   The issue of the proper role for a national military force was raised in the states dunng the ratification process. Convention delegate Luther Martin, reporting to the Maryland legislature Ln Kovember 1787 commented that '' . . when a government wishes

   to deprive its cibrens of freedom, and reduce them to slavery, it generally makes use of a standing army for that purpose."*-Several states were suite concerned about the role8 a standing army might fulfill, a concern that is reflected in those portions of the Bill of Rights dealing with the necessity of a state mihtia and the nght of the people to keep armsA2 and with the restrictions on quartering soldiers In private homes.33

   The Judiciary Act of 1789 contained this country's first pome comitatus legislation. In specifying the dunes of federal...