New Laws and Insights Encircle the Passe Comitatus Act

• Author: by Colonel Paul Jackson Rice
• Pages: 02

In 1.581. Congress passed (in act entttled, '',Witary Cooperatimi tciltii Cisilian Lax, Eitforeement OffCongress attempted to elariju and moifzed the lazo ;a the areas of pritary equipment ondfecilities, niilitaryprrsoitnel to tram em,ihon edarcement personnel. and ezperf military odcisars to the C I C - in assisting civilian law enforcement personnel. This assistance 1s

affected by the 2981 legislation Th~yremainspasitiL.eorrasin thedny

to day ?ntrrfoce befurrnmilttaryand ewilion polzee. Reimbursement to the Department of Defense for srrrices prooided remains a kryzssve in implemrriting the 1981 Act.

1. INTRODUCTIOK

   Dear Congressman:

   I'm sure somebody has already thought of this, but it sounds so good to me that I think it should be mentioned again. I'm talking about how to keep the Mexicans from sneaking into the United States.

   Why don't ne use the Army:The)-aren'tdoinganythingelseand it would be good practice for them. All we need to do 1s put them along the border. They already have the necessary equipment.

   'Staff Judge Adwcate. V Carps. Frankfurt Federal Republie ai Germany LL 11

   satisfaction of C U Y ~ ~ S

   requirementi atthe K S Army Wac College CarlialeBarrack~. Pe""si~lva",a

   Recould alsousethe NavytahelpfightthedopesmugglersI keep hearingabout. If ne sankacoupieoftheirbaats.itmightmakethemthink twice!

   Your faithful constituent I

   The view expressed in the above letter recently were supported inpart in a congressional hearing. A Florida congresman addressed the concept of using military support to counter drug smugg1,ng He stated that. in peacetime. baredam and lack of mission have been historical problems for the military. and involvement in the drug iiar would be extremelr beneficial!

   These statements reflect the frustration. misunderstanding, and confusion abaut the role af the armed forces of the United States in this society. This fact is not difficult to understand. the historical relationship between the military and those in authority has naer been well understood by a Qast majority of the populace When that lack of understanding is coupled with serious currentproblems, such as unrestrained drug traffic and an illegal immigration flood. then a loud cry should be expected

   The burden of answering the faithful ConsKituent most likely ii ill be gnen to the Army.3 The response will cite the Posse Comitatus Act'and explain how the Act prohibits the Army from enforcingthe law

   !Thoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Cangress. willfully uses an)- part of the Army or the Air Force as a posse comitatus or otherwrire to execute the l a w shall be fined not more than S10.000 or imprisoned not more than 10 years or b0th.j

   After the constituent receives the response. he or she will be wser but no less frustrated. Congress recently reexamined the Posse

   The letter 13 similar io msiii fmiarded IO the Pentagor for an appropriate response

   Tammentr bi Cangrairmsn Charles E Benneit on 26 Februari 1983 dur ng B hearing of the Government Information Juitlee ard Apr;eu'ture Subcommittee 01the Committee on Goiernment Operationsfremendaui amount ai correspondence from ~on~fituenfiisforuarded !o federal agencies for direct mpl) wth sn information cap) proiided to the oangressman Draft letters ere dso prepared for the cangressmsn 5 rignature The Office 01 the Chief. Legiilarire Lisiian Department of the .Arm) acts as the point ai contact for Arm> arslrfance

   .1P US C $ 1385 119761 'Id

   Tammentr bi Cangrairmsn Charles E Benneit on 26 Februari 1983 dur ng B hearing of the Government Information Juitlee ard Apr;eu'ture Subcommittee 01the Committee on Goiernment Operationsfremendaui amount ai correspondence from ~on~fituenfiisforuarded !o federal agencies for direct mpl) wth sn information cap) proiided to the oangressman Draft letters ere dso prepared for the cangressmsn 5 rignature The Office 01 the Chief. Legiilarire Lisiian Department of the .Arm) acts as the point ai contact for Arm> arslrfance

   .1P US C $ 1385 119761 'Id110

   Comitatus Act and the issue of miiitarr sumort to civilian lax

   Cooperation with Civilian Law Enforcement Officials."e The neu Act clarifies and ever-so-mildly expands the authority of the military.

   This seemi to be an excellent time to examine the new Act authorizing military cooperation and to reexamine the Posse Comitatus ActInriewofrhenew Act. Thereisaneedtounderstandthisareaof the law to determine in which direction it is headingand toconclude

   \i

   hether the direction is beneficial.

   11. BACKGROUND

   The Posse Comitatus Act was originally enacted ~n 1878.' It ISgenerally accepted that the catalyst for the passage of the Act was the excessive useofand resultingabuses bythe Army in thesouthern states while enforcing the reconstruction l a w ? The legislative h13-tatus Act has been fully developed in previous I1 not be restated here. This article wiil only address legislative history as It pertains to and illuminates specific issues.

   When afederal criminal law such as thePosseCamitatua Act. has exisred for over a century and there has never been a prosecution under it, one might ask whether the iau is viable. In fact. in 1948. when a defense counsel attempted to use the Posse Comitatus .kt to challenge the jurisdiction of the court over hii client, the judge complimented the counsel far"turningup of this obscure and all-bur-forgotten statute . ."La

   While the Act was never a vision af clarity. its reputation for obscurity was probably due to the fact that, in broad terms, it had accomplished Its mission. After the passage of the Act, it was understood that federal troops were not available to supplement civilian law enforcement officials.?' Hence, the issue seldom arose.

   '10 U S C $8 371-378 lSuPP V 19811-Act af June 18 1678. 6 15 20 Stat 152 lcodified I" 18 L'S C 8 1381)

   [hereinafter elfed 8s Meeiil Chandler > Lnifed Staler 171 F.2d 921 936 (1st Cir 19481 I16 Op AtQ Gen 162 118781

   On occasion. the Posse Comitatus Act has beenmembers of the Army to avoid providing awstance tomunities. 4s most CiwlianS are unfamiliar with the Acfor the Army to sa? that the Act prohibits the reguesteFor example. a church in a neighboring community would like an engineer battalion from the post to enlarge and grade their parking lot. There are a numerous goad reasons why the Arm! should not be constrwtinga church parking lot I? In thepast. however, postrepresentatives have told the church officials that prmiding assistance would violate the Posse Comitatus Act. ThepaEtofficiaisiierejaying that they would reallyiiketaheip, butifthe: did.ituouidbeacrime. Such misuseof the Actaniycontributed to the confusion surrounding It.

   Notoriety for the Act came ~n 1973-75. During that period ~n Quantiea. Virginia. marines. acting a3 undercover agents, were instrumental as witnesses ~n convicting eiriiians of the illegal sale of firearms.l$ The possibility of using the exciusionar! rule to deter Posse Comitatus Act \mlatmns was addressed." Also. a 1973 incident ~n the Village of Wounded Knee on the Pine Ridge Indian Resenation in South Dakota caused reierberations. Individuals who had caused civil disorder at Wounded Knee were prosecuted.

   . niia. far interfering with 18% enforcement offmrs lawfully engaged in their duties. Two court decisions held that pasriblerioiations of the Passe Comitatus Act precluded the federal officers from being lawfully engaged ~n their duties.15 The rationale of these deci-smm made clear that the misunderstanding of the Act ,\ai not limited to church parking lots."

   ognized the Posse Comitatus Act to be that some commanders were denrlng even whenruch assisraneewould infact be legally proper."18 Their concern %as magnified because of the

   19841 POSSE COMITATUS ACT

   drug smuggling problem and their desire to use every means available tôombatit.'~Theirsolution. "Military Cooperation with Civilian Law Enforcement Officials." which is codified in Titie 10, United States Code. sections 371 through 378. will be carefullyevaluated in the pages to follow.

   111. PURPOSE

   Prior LO the new Act.Zo the Passe Comitatus Act was vague and ambiguous. NOW, after the new Act, certain portions of the Posse Carnitatus Act have been clarified; however, other portions arestill confusing The new Act has also raised issues which did not pre-viously exist. The purpose of this article is to provide a working understanding of the new Act. While the areas clarified will be addressed, effort will ais0 be made to identlfy areas still in doubt in order to provide guidance.

   There are also areas of the Posse Comitatus Act which were untouched by the new Act and need to be examined. This examination may provide some insight as to the direction the law is mwing and whether the distinct lines between the military and civilian authority are becoming blurred.

4. CLARIFICATIONS SECTION 371

   The first three sections of the new Act were an attempt to codify existing iaiv and practice,Z1 The "Wounded Knee" cases had been so unsettling that there was a need for Congress to clarify existing law.

   In section 3i1,2z entitled "Use of information collected during military operations." the military is authorized to provide to federal, state, and local law enforcement officials information collected during routine military operations when the information is relevant toa violation of federal or state law This is a classic case of Stating the ~hrious.~~

   At Fort Riiey. Kansas in 1978,*' conclusive evidence

   . .. . ._

   .jurisdiction of such affleiali"This i b i w was neiei ~n doubt*#The authorRile$ at the time of the Ineldentthe Staff Jndge Advocate, lstlnfanfry Dlrmon LMach land Fort

   existed that an Army service member and his uife were selling marijuana out of the vegetable bin in their refrigerator. At the time the military police apprehended the soldier. they notified the Fed-eral Bureau of Investigation as to the actnities of the wife. She was subsequently prosecuted by rhe U.S. Attorney This...