POSSE COMITATUS REVISITED: THE USE OF THE MILITARY IN CIVIL LAW ENFORCEMENT

RICHTER H. MOORE, JR.,

Department of Political Science/Criminal Justice Appalachian State University Boone, North Carolina 28608

ABSTRACT

The Posse Comitcrtus Act of 1878, which removed the military from regular civil law enforcement.

was in response to the abuses resulting from the extensive use of the army in civil law enforcement during

the Civil War and the Reconstruction. The Act allows legislated exceptions. Congress, by legislation, has

allowed the use of the military in cases of domestic violence, protection of federal property, and

enforcement of some federul laws and court orders.

The growing drug problem in the United States and the inability of federal and local law enforcement

officials to meet the challenge of massive drug inflow led Congress in 1981 to enact legislation providing

for military cooperation with civilian law enforcement oficials. Although recognizing the Posse

Comitatus restrictions, the law opens the door for extensive use of the military in civilian law enforce-

ment. The military has been slow to respond because it does not wish to become embroiled in civilian

law enforcement, and there are questions concerning funding. Further, the military does not want to

have its readiness capability impaired by diverting resources toward civilian law enforcement.

The Department of Defense has developed directives to provide types of direct and indirect assistance

to civilian law enforcement agencies. Currently, the military collects information and uses military

equipment in tracking violators of the drug laws. Demands for greater military involvement in the war

on drugs are being made. Military cooperation with civil law enforcement agencies can be expected to

increase.

INTRODUCTION

Under the common law the county sheriff had the authority to call any male member of the population above the age of fifteen to aid him in keeping the peace and to pursue and arrest felons.’ A sheriff so acting was exercising his authority under “Posse CO- mitatus”, which literally means the power of force of the county.

The first federal “Posse Comitatus” legis-

lation was contained in the Judiciary Act of 1789. The act authorized federal marshalls to command all necessary assistance in the exe- cution of their duty, but it did not state explic- itly that marshalls could call on military forces to act as a part of the posse. In 1792, in an act concerning the use of the militia, Con- gress authorized federal marshalls to use the militia in assisting the marshall’s posse. The act intentionally omitted mention of the use of regulars. Soon the distinction made in the

375

act was forgotten. As a result. the practice of using both the militia and regular military per- sonnel as part of a mar-shall’s posse became commonplace (Mceks. 1975:88).

When miiitar!, personnel wcrc called to scrvc as part of a posse. they wcrc conaid-

ercd to bc performing the dut}, of adult citi- zcns in response to the call of the marshal1 and not to bc serving in their military capac- ity. An 1860 Opinion of the United States Attorney General declared that when the military was used to enforce the civil law. it

could be used only as if it were a part of a civilian posse. When so acting, it had to be kept in strict subordination to civil authority since its only power to act to enforce the civil law was as an aid to the civil authority (Opinion 1X60:522).

The Civil War brought a much more indul- gent attitude toward the use of military per- sonnel in aiding civil authorities. In 1861 Con- gress enacted legislation that authorized the president to call out the militia or use regular military forces when in his judgment a law could not be enforced by ordinary measures. In 1867, with the passage of the Reconstruc- tion Act, rule by military districts was estab- lished with military commanders serving as the governors. Military rule had been estab- lished prior to passage of the Reconstruction Act. and with the support of the Act it lasted through 1877. During this period federal troops were used throughout the South to squelch disorders and generally to serve as the law enforcement agency until civil author- ity returned and the states were restored to the Union. Even after civilian governments wcrc established and the states were restored to the Union. military personnel were used to aid in all manner of enforcement activities- from supporting revenue officers in curbing moonshining, to suppressing the activities of the Klu Klux Klan, to guarding polling places during elections. In fact, such activities were not confined to the South. Sheriffs through- out the country were using military personnel in posses to enforce the law. In the North during this period the military was used par- ticularly to suppress labor disturbances.

The excesses of the military in the en- forcement of the civil law led to major dis-

satisfaction. The loss of the presidential

election of 1876 by Samuel Tilden, a Demo- crat from New York. to Rutherford B. Hayes, a Republican from Ohio. in an elcc- tion that involved questionable practices of the military at the polls in a number of

states. Icd mcmbcrs of Congress to decide that it was time to place restrictions on the military. In 1878 the “Posse Comitatus Act” was enacted to prohibit the use of the Army as the posse comitatus except where expressly authorized by law. The Act cur- rently reads

Whoever, except in cases and under circum-

stances expressly authorized by the Constitu-

tion or Act of Congress. willfully uses an)

part of the Army or the Air Force as a posse

comitatus or otherwise to execute the laws

shall be fined not more than $10.000 dollars

or imprisoned not more than two years. or

both. (18 USC 1385)

The statute only prohibits the use of the Army and the Air Force in aiding civilian law enforcement; however, the Defense De- partment by directive has included the Navy and the Marine Corps (Department, 1982:l). The Coast Guard, which is consid- ered a law enforcement agency, is not in- cluded.

USE OF THE MILITARY TO ENFORCE THE CIVIL LAW: LONG-

STANDING EXCEPTIONS

The Posse Comitatus Act says that mili- tary forces may be used to enforce the civil law when the Constitution or acts of Con- gress expressly authorize that. The federal government under the Constitution has the legal right and obligation to ensure that pub- lic order is preserved and that governmental operations are carried out, by force if neces- sary. When sudden and unexpected civil dis- turbances, disorders, or calamities seriously endanger life and property and disrupt or threaten to disrupt normal government func- tions, the president may take prompt action to meet the danger or disorder; such action includes the use of military force. Only four

months after he signed the Posse Comitatus Act, President Hayes ordered the Army into New Mexico to enforce judicial decisions (Furman, 1960:97). Military Corccs may bc used to prevent loss of life, looting, or wan- ton destruction of property; to restore gov- ernmental services; and to reestablish public order when the duly constituted local au- thorities are unable to manage the situation.

Military personnel may be used whenever a need arises to protect federal property and functions. This is an authorized federal ac- tion. Normally, local authorities are ex- pected to provide this type of protection. However, if they are unable or unwilling to do so, the federal government may protect itself, its property, and its functions in what- ever manner it deems necessary.

During the century or so that has followed passage of the Posse Comitatus Act, Con- gress, under its constitutional authority, has enacted a broad range of legislation that au- thorizes the president to use regular and fed- eralized militia forces to perform what amounts to law enforcement functions.

The president is empowered to use mili- tary forces to respond to requests for aid from state governments (10 USC 331). Main- tenance of law and order is primarily the rc- sponsibility of the states and their local gov- ernments, through their law enforcement agencies. If state and local governments have fully utilized their own resources and are still unable to control a civil disturbance, they may request military assistance from the fed- eral government. Article IV of the Constitu- tion guarantees that every state will be pro-

tected against invasion or domestic violence.

Congress enacted 10 USC 331 to enable the president to fulfill this responsibility. During the inner city riots of the mid-1960s. federal troops were employed to maintain public or- der. In 1967 in Detroit. regular Army person- nel from the Eighty-second Airborne Divi- sion assumed responsibility for half of the city while federalized Michigan National Guard troops took the other haif. In 1968 in Washington, DC, over 11,000 regular troops were used to reinforce police (Blumenson, 197655).

Section 332 of Title 10 of the United States

Code specifically authorizes the USC of the militia and the armed forces to enforce fed-

eral authority. The statute provides that whcncvcr the prcsidcnt considers that any

unlawful obstructions. combinations, or as- semblages. or rebellion against the authori- ties of the United States, make it impractica- ble to enforce the laws of the United States in any state or Territory by the ordinary course of judicial proceedings.

he may federalize the militia and use the

armed forces in whatever manner he deems necessary to enforce the laws and/or sup- press rebellion (10 USC 332).

By executive order in 1957, President Ei- senhower federalized the Arkansas National Guard and authorized the use of regular Army paratroopers in support of the order of the United States District Court in Arkansas for the desegregation of the Little Rock schools (22 F. R. 7628). In 1962, President Kennedy federalized the National Guard in Mississippi and ordered 20,000 regular mili- tary forces to the University of Mississippi to enforce the integration order for the univer- sity handed down by the United States Dis- trict Court and the Fifth Circuit Court of Ap- peals (27 F. R. 9681). In 1963 Kennedy fcder- alized the Alabama National Guard on two occasions and ordered the use of military forces to support Federal District Court or- ders integrating the University of Alabama and the public schools in Alabama (28 F. R. 5709; 9863).

The Fourteenth Amendment of the United States Constitution forbids any state to deny any person within its jurisdiction equal protection of the laws. This provision has been implemented by statute. Whenever insurrection, civil violence, unlawful combi- nations, or conspiracies in any state oppose, obstruct, or hinder the execution of the laws of that state and of the United States, in a manner that deprives any of the people of the state a right, privilege, immunity, or protec- tion set forth in the Constitution and secured by law, and the authorities of the state are unable, fail, or refuse to provide constitution- ally guaranteed protection, there will be deemed a denial by that state of equal protec-

378 RICHTER H. MOORE. JR.

tion of the laws. At that time it becomes the duty of the president to take such measures as he considers necessary to suppress such situations, including use of the militia and the Armed Forces (10 USC 333). In 1965 Presi- dent Johnson used federalized Alabama Na- tional Guards and regular troops to protect the Selma-Montgomery marchers.

When a prcsidcnt considers it ncccssary to use the National Guard or federal military personnel, he must first issue a proclamation ordering those who are obstructing the law to disperse (10 USC 334). If they do not, then military forces may be deployed immedi- ately. Such proclamations were issued before Eisenhower and Kennedy federalized the Guard and sent forces into Arkansas, Ala- bama, and Mississippi in the school desegre- gation cases. President Johnson used this pro- vision in 1965 before sending federal troops into Alabama to protect the Selma-Mont- gomery marchers and into Detroit, Washing- ton, Chicago, and Baltimore in 1967 and 1968 to stop riots in those cities.

Part of the mission of the secret service is protecting the president, vice president, former presidents, presidential candidates, their families, visiting foreign dignitaries. and government officials (18 USC 1354). In 1968 William H. Rehnquist, then assistant attorney general, by memorandum opinion advised the Army General Counsel that this provision was an express exception to the Posse Comitatus Act (Meeks, 1975: 105). Un- der this statute, when requested by the direc- tor of the Secret Service, any other federal department, including the military, must as- sist the Secret Service in performing these protective duties. Military forces were uti- lized under this provision for security pur- poses at the 1968 presidential nominating conventions in both Chicago and Miami. Spe- cial military units are placed on alert for spe- cial presidential activity and visits of foreign dignitaries. In 1985 special elite military units were a part of the protective force for the inauguration of Ronald Reagan.

Title 18 of the United States Code sets forth the criminal statutes in regard to kidnap- ping, assaulting, and assassinating the presi- dent or vice president, members of Congress,

foreign officials, official guests, and interna- tionally protected persons (18 USC 112, 116, 3251, 1751). All of these statutes specifically authorize the use of military forces to aid the attorney general or the Federal Bureau of Investigation in investigating such actions.

Other areas in which Congress has specifi- cally authorized the use of federal military pcrsonncl in a law cnforccmcnt capacity arc: protection of the national parks from tres- passers and intruders (16 USC 23,78); pre- vention of offenses against neutrality (22 USC 456); removal of any unlawful inclo- sures from any public lands (43 USC 1064); enforcement of customs and quarantine laws (42 USC 97;50 USC 220); providing aid to the territorial governors of Puerto Rico, Guam, and the Virgin Islands in the event of civil disorders (48 USC 1405, 1422, 15910); removal of unauthorized persons from In- dian lands (25 USC 180); assisting federal magistrates in carrying out magisterial or- ders relating to civil rights violations (42 USC 1989); assisting the administrator, the Environmental Protection Agency, in the water pollution control function (33 USC 1361); and preventing unauthorized cutting of federal timber (43 USC 1065). In addition to these specified statutory exceptions to the use of military personnel for civil law en- forcement, statutes authorize the use of fed- eral military personnel to provide aid to civil- ians in time of national disaster (42 USC 4401-84) and to render humanitarian and emergency assistance in cases of national di- saster (42 USC 1855).

MILITARY COOPERATION WITH CIVILIAN LAW ENFORCEMENT

OFFICIALS

In 1981 Congress enacted legislation, now Title 10, Chapter 18 of the United States Code, “Military Cooperation With Civilian Law Enforcement Officials”. In large mea- sure this legislation was in response to the growing drug problem in the United States and the inability of federal and local law en- forcement officials to meet the challenge of

Posse Comitatus Rcvisitsd: The Military in Lau Enforccmcnt 379

the massive drug inflow. Some basis for co- operation in this area had already been pro- vided under Title 21 of the United States Code, which authorizes use of the military to assist the attorney general to control traffic in and suppress abuse of controlled substances (21 USC 873). Under this statute the attor- ney general may request assistance from any federal agency to provide information, train- ing, and aid in eradicating illicit plants.

The 1981 statute is specifically geared to authorize a broader range of military activi- ties to aid in civil law enforcement. In general it authorizes the military to make available to civilian law enforcement officials informa- tion collected during military operations, the use of military equipment and facilities, the training and advising of civilian law enforce- ment personnel, and the use of some Defense Department personnel. However, the stat- ute places limitations on direct participation by military personnel in interdiction, search, seizure, and arrest. It also provides that any assistance to civilian authorities will not ad- versely affect military preparedness and that reimbursement to the Department of De- fense may be required from the law enforce- ment agency.

Department of Defense (DOD) Direc- tive 5525.5, dated March 22, 1982, set forth in some detail the policies and procedures of the Department of Defense for imple- mentation of the statute. The Department of Defense policy is to cooperate with civil- ian law enforcement officials to the maxi- mum extent possible under the provisions of United States Code Title 10, Chapter 18. The cooperation must be consistent with the historic tradition of limiting direct mili- tary involvement in what are considered purely civilian law enforcement activities, such as arrest, search and seizure, and crimi- nal investigation.

The responsibilities for implementing Chapter 18 belong to the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics. He is to coordinate long range policies with civilian agencies to further De- partment of Defense cooperation with civil- ian law enforcement officials. This includes providing information to the civilian agen-

cies that will facilitate access to Defense De- partment resources, including surplus equip- ment. The Assistant Secretary is responsible for coordinating with the Department of Jus- tice, the Coast Guard, and the Customs Ser- vice specifically on matters related to inter- diction of the flow of illegal drugs into the United States. While the Assistant Secretary is responsible for overall policy, the Service Secretaries have the responsibility for re- viewing training and operational programs to determine how assistance can best be pro- vided to the civilian law enforcement com- munity. They further have the responsibility for implementing procedures for the prompt transfer of information useful to law enforce- ment officials and for establishing local con- tact points in subordinate commands for the purposes of local coordination with civilian law enforcement.

Title 10, Section 371, entitled “Use of in- formation collected during military opera- tions,” authorizes the military to provide ci- vilian law enforcement officials with infor- mation collected during regular military op- erations that is relevant to violation of fed- eral or state law. In implementing the stat- ute, the Department of Defense Directive has encouraged all the Department’s com- ponents to provide federal, state, and local civilian law enforcement agencies any infor- mation collected during the normal course of military operations that may have any relevance to a violation of a federal or state law within the jurisdiction of the law en- forcement officials (DOD 1982: encl 2). In- formation concerning illegal drugs or drug movement that is provided to civilian law enforcement officials under the Act and the DOD Directive is also provided to the El Paso Intelligence Center, the national clear- ing house for drug information for the Drug Enforcement Administration.

Planning and execution of compatible mil- itary training and operations take into ac- count the needs of civilian law enforcement officials for information. Collection of the information must be an incidental aspect of the training performed for military pur- poses. However, the needs of civilian law enforcement officials should be considered

380 RICHTER H h1OOKt. .lK

in scheduling routine training missions. The Directive does not permit planning or con- ducting missions or training for the primary purpose of meeting the needs of civilian law enforcement officials. The Directive explic- itly prohibits training or missions for the purpose of routinely collecting information about United States citizens. The Directive also prohibits direct participation by mili- tary personnel in the interdiction of a ves- sel, aircraft, or land vehicle; a search and seizure; an arrest; or other similar activities on behalf of civil law enforcement unless there is a law specifically authorizing such. There is no law authorizing such actions in the area of drug enforcement.

Title 10, Section 372 of the United States Code is entitled “Use of military equipment and facilities.” To implement this section, Enclosure 3 of the DOD Directive provides that the service components of the Depart- ment of Defense may make available equip- ment, base facilities, and research facilities to federal, state, and local law enforcement officials for law enforcement purposes. The type of equipment includes arms, ammuni- tion, tank-automotive equipment, vessels, and aircraft.

Section 374 states that the Department of Defense may provide personnel to operate or maintain or assist in operating or main- taining the equipment. There are limita- tions on the operation and maintenance of equipment by Department of Defense pcr- sonnel. Assistance is limited under this sec- tion of the Act to situations in which train- ing of personnel who are not Department of Defense personnel would be unfeasible or impracticable from a cost or a time per- spective and in which participation by Dc- fense Department personnel would not compromise national security or military preparedness.

Enclosure 4 of the DOD Directive ad- dress implementation of 10 USC 373, 374, 375. It basically sets forth the restrictions on use of the Department of Defense personnel in civilian law enforcement activities. The enclosure specifically cites the Posse Comita- tus Act and its restrictions. The types of per- missiblc direct assistance discussed earlier in

the examination of specific exceptions to the Posse Comitatus Act are outlined.

Under Section 373, the military services arc authorized to provide training to federal, state, and local law enforcement officials in operating and maintaining equipment made available to them. However, military person- nel are not permitted any regular or direct involvement in activities that are fundamen- tally civilian law enforcement operations. Ex- pert advice by military personnel in planning and operations is available, but the advice must not entail direct involvement by mili- tary personnel in law enforcement activities. Specific authorization for the use of military personnel in operating and maintaining equipment is available by request to enforce the Controlled Substances Act or the Con- trolled Substances Import and Export Act, the Immigration and Nationality Act, and the Tariff Act, as well as any other law grant- ing authority to military personnel to assist civilian law enforcement officials directly.

In addition to the already stated prohibi- tion against military personnel providing di- rect assistance in the form of interdiction search, seizure. and arrest, this section of the DOD Directive adds prohibitions against military participation in stop and frisk and surveillance or pursuit of individuals and against use of military personnel as infor- mants, undercover agents, investigators, or interrogators.

With prior approval from the Secretary of Defense. military personnel may be involved in the interdiction of a vessel or aircraft, in a search or seizure, and arrest or other activi- ties likely to subject civilians to the exercise of military power. The Secretary’s approval will be granted only in emergency circum- stances. A joint determination by the Secre- tary of Defense and the Attorney General decides whether an emergency circumstance exists. An emergency circumstance exists only when civilian resources are not available to perform the mission, when the size and scope of the suspected criminal activity poses a serious threat to the interests of the United States, and when the enforcement of the law within the jurisdiction of the civilian agency would be seriously impaired if the assistance

Posse Comitatus Revisited: The Milltar> in Law Enforccmcnt 381

were not provided. Furthermore, approval for law enforcement activity by military per-

sonnel can be granted where civilian law en- forcement resources are not available to per- form the mission and temporary assistance is required on an emergency basis to prevent loss of life or wanton destruction of property. The emergency authority will be granted only with respect to large scale criminal activ- ity at a particular point in time or over a fixed period of time. This authority cannot be used on a routine or extended basis. To date no instance has been found in which this author- ity has been used in the United States.

As a general matter, when military person- nel are made available to civilian law en- forcement agencies, reimbursement is re- quired. There is a provision for a request of waiver of reimbursement. The request may be granted when the assistance provided is an incidental aspect of an activity that is con- ducted for military purposes. This would in- clude those types of activities that provide military personnel with training or opera- tional benefits that are substantially equiva- lent to the benefits of definitive military training or operations. If reimbursement is not specifically required by law, it may be waived if it is determined that the lack of

reimbursement does not have an adverse im- pact on military preparedness. In evaluating requests for waiver of a reimbursement, the Assistant Secretary of Defense takes into consideration the budgetary resources avail- able to civilian law enforcement agencies as well as whether a waiver of reimbursement could adversely affect national security or

military preparedness.

MILITARY AID TO CIVILIAN LAW ENFORCEMENT: THE DRUG WAR

Prior to 1981, the military occasionally pro- vided explosive detection dog teams to civil- ian authorities in an emergency (OJAGAF/ 979/31). Ordinance disposal personnel were provided to civil authorities and training by the military in ordinance disposal was made available to local police. For a number of years the Green Berets at Fort Bragg have

been used to train and advise civilian law en- forcement SWAT teams. With the passage of the Military Cooperation with Civilian Law Enforcement Officials Act in 1981. military

involvement in civilian law enforcement has increased substantially, primarily in the area of drug enforcement.

In March of 1983, President Reagan estab- lished the National Narcotics Border Inter- diction System (NNBIS). The NNBIS brings together six federal law enforcement agen- cies, local police departments, and all four branches of the military-the Army, Navy, Air Force, and Marines. These agencies are all a part of the NNBIS network, which oper- ates with task forces out of six locations- Chicago, El Paso, Miami, New Orleans, New York, and Long Beach, California. The NNBIS uses military equipment, intelli- gence, and personnel to the extent that is legally possible. The military cooperates in a number of ways-for example, AWACS ra- dar aircraft are used extensively along the southeast, Gulf, and southwest border areas (Korb, 1985:60). Customs agents fly with the Air Force in E3A (AWACS) aircraft on scheduled missions.

The Customs Service has been granted ac- cess to the Air Force/FAA Joint Surveillance System radar and the nationwide system of ground based radars for use in interdiction activities (JACM, 1985:s). This radar is avail- able to the Bureau of Customs Command, Control and Communication Center in Mi- ami. The Air Force Aerostat System-Seek

Skyhook-has balloon-borne radar at Cud- joe Key and Patrick Air Force Base, Florida. The balloons, nicknamed “Fat Albert,” are tied into the Customs Service Command Cen- ter and provide support for Coast Guard and Customs operations (Korb, 1985:60). Other “Fat Alberts” are being procured by the Air Force for stationing on Florida’s east coast and in the panhandle (Meyer, 1983:89).

If an AWACS or “Fat Albert” spots an unknown aircraft that has penetrated the United States air space, F-15 fighter aircraft are scrambled out of Homestead Air Force Base, Florida for reconnaissance. In one re- cent instance, smugglers faced with the F- 15s dumped their load in mid-air.

Navy E-2C Hawkeyc radar jets and Ma- rine Corps jets on intelligence gathering missions over the Gulf of Mexico, now as a routine matter, relay information on any sus- picious aircraft or ships to the nearest federal law enforcement agency. Navy P-3 anti-sub- marine-warfare aircraft aid the Coast Guard in detecting drug traffickers coming through the Yucatan Straits (Korb, 198557).

The Army has loaned Cobra helicopters to the Customs Service. When Customs deter- mints that an air shipment of drugs is immi- nent, one of the Army Cobras can be avail- able to follow the suspect. If the occupants of the suspect aircraft realize they are being fol- lowed, the plane usually lands quickly and the occupants try to reach the woods before the tailing Customs aircraft can land. Using the Cobra, Customs officials can land at the same time as the bandits, generally right in front, and can usually catch the smugglers before they have an opportunity to get away. The Army has also loaned six Blackhawk helicopters, which can hover longer and carry larger crews than the Cobra. The Army helicopters can keep up with many of the fixed-wing aircraft used by drug smugglers and, as a result, according to Jim Dingfelder, a spokesman for the Vice President’s South Florida Task Force, “Those guys don’t even have a chance to get out and run” (Thomp- son, 1984:27).

The Marine Corps has been operating OV- 10D aircraft in conjunction with the Customs Service. These aircraft, relatively slow and low flying, are equipped with FLIR (Forward Looking Infra Red sensors), which provide aerial observers with exceptionally good nighttime vision. This has added a long needed technological advantage to the Cus- toms Service (Korb, 1985:59).

Although the Navy is not specified in the Posse Comitatus Act, it has followed the spirit of the statute (OJAGN 1965/5194) and has complied with its restrictions (OJAGN 1973/1508). Now the DOD Directive clearly places the Navy and Marine Corps under the Act’s restrictions. Even so, the Navy has op- erated within a somewhat broader lattitude in drug enforcement activities, and all Navy ships operating in coastal waters are con-

stantly on alert for suspect vessels. Nor- mally, however. it does not handle the law enforcement aspect with naval personnel. Generally, Navy ships operating in the Ca- ribbean carry a Tactical Law Enforcement Team (TACTLET) from the Coast Guard. The Coast Guard is not considered one of the military services; instead, it is a law en- forccment agency under the Department of Transportation and. therefore, is not subject to the Posse Comitatus Act.

What usually occurs when a TACLET team is on board and a suspect ship or a suspected smuggler is spotted is that the Navy flag is brought down and the Coast Guard flag is raised. This action transforms the Navy ship into a Coast Guard vessel for purposes of making lawful arrest. The legal- ity of this action is currently being chal- lenged in a case involving the crew of the freighter, Ranger. In July of 1983 the Navy destroyer, the USS Isaac Kidd, spotted a sus- pect vessel, the Ranger, and ordered it to stop. The Navy ship had a TACLET team on board. When the Ranger refused to stop, the Navy gunners opened fire and drilled a hole in its stern. The ship was loaded with marijuana (Thompson, 1984:l). The crew members were arrested and convicted on drug charges in the United States District Court in Puerto Rico. Currently, the case is on appeal, with the defendants charging that the use of Navy ships under the subterfuge of being Coast Guard enforcement vessels violates the Posse Comitatus Act.

In 1984 a Navy task force operating in the Caribbean spotted a suspect freighter called the Recife. The guided missile cruiser USS Mississippi, with a TACLET on board, stopped the Recife. The TACLET boarded the Recife and discovered thirty tons of mari- juana. The freighter was brought into San Juan, and the crew members were arrested and tried. At trial the defense argued that the naval assistance was unlawful. The trial judge dismissed the argument, finding that the military assistance was well within the bounds of the law. There appears to be no reason for the appellate courts to do other than uphold the position taken by the trial courts in those cases.

Joint activities by the Air Force, Navy, and Coast Guard have been used to stop smug- glers. One example involved a freighter be- ing tailed by two Coast Guard cutters; it rc- fused to stop when hailed. A Navy destroyer came into the action, but the ship still rcfuscd to stop. The Air Force happened to have two A-7 bombers on reconnaissance patrol out of Dobbins Air Force Base, Georgia, and when they buzzed the freighter, the Captain finally decided to stop. The Coast Guard boarded and discovered large quantities of marijuana on board.

The ability to place Coast Guard TACLET teams on Navy ships has been especially help- ful, according to Dr. Carlton Turner, Special Assistant to the President for Drug Abuse Policy. He said that although no statistics have been gathered to measure the teams’ effectiveness, most law enforcement authori- ties agree that they have been extremely help- ful. Turner observed:

The mere fact that smugglers know that any grey-hulled vessel out there might turn into a Coast Guard cutter puts a certain amount of fear in the smugglers. It has a deterrent effect that is hard to really evaluate. (Thompson, 1984:29)

Training activities of various military units have been extremely helpful in drug interdic- tion, and at the same time they have made the service training more realistic by providing scenarios commensurate with actual opera- tional missions. A Navy hydrofoil squadron in the Florida Keys has a wartime mission almost identical to drug interdiction. The Army Intelligence School at Fort Huachuch has been able to change the path of its Mo- hawk aircraft training flights for surveillance radar and sensor operators to a path near the United States/Mexico border, which has as- sisted Customs in drug interdiction, and at the same time has created realistic training. There are many other examples of nominal changes in military training activities that

have made the training more realistic and beneficial while at the same time providing major assistance to law enforcement agen- cies in drug interdiction.

These are but a few types of activities in

which the military assists civilian law cnforce- mcnt authorities to control the drug traffic. One of the reasons the military is not more deeply involved is cost. The reimbursement requirement often means that a civilian law enforcement agency cannot afford to pay for the use of military equipment. For example, the cost to the Coast Guard of renting an AWACS plant is approximately $SOO,OOO.OO for about two months. Further, there is the concern by the military itself that it not get involved in civilian law enforcement situa- tions. Air Force General Dean Tice. Direc- tor of the Department of Defense Task Force on Drug Enforcement, said, “We lend our eyes, ears, and maybe some hardware, but there is just no way that we will allow our troops to be involved in any civil arrest situa- tion” (Thompson 1984:29). The services themselves have been very careful over the years to avoid using their personnel to sup- port civilian law enforcement authority ex- cept when very specifically authorized by law or the Constitution.

Restrictions recognized by the military in regard to aiding civilian law enforcement even include the prohibition against use of military personnel in off-base traffic law en- forcement, even when it is just outside the base (OJAGAF 1975/105). Air Force person- nel are required to defer to civilian law en- forcement authorities even on their own in- stallation in the case of a hijacked aircraft landing on an Air Force base. Only when there is great danger to the base itself or the emergency is such that it requires immediate protection of lives or federal property, can Air Force personnel act (OJAGAF 1971/30).

Prior to the passage of the 1981 Act, a re- quest for aerial photography by civilian law enforcement authorities was denied. In one case, the Judge Advocate General of the Air Force said Air Force aerial photography could not even be used to photograph an area in which police believed the disposition of a woman’s body had occurred (OJAGAF 1977/18). However, circumstances change; in 1982 a request was made for photographs of certain south Florida areas to be used in making a presentation to a grand jury con- cerning smuggling on the southwest Florida

384 RICHTER H. MC)ORL:. JR

coast. The request was made to help close illicit narcotics smuggling channels. In this instance, the Judge Advocate General found that the request should be granted so long as the military mission that took the photo- graphs complied with the DOD regulations (OJAGAF 1982131).

The new statute, Title 10, Chapter 18, will undoubtedly create new situations in which the use of military personnel will be sought. In March of 1984, the Judge Advocate Gen- eral of the Air Force was called upon to make a decision concerning use of Air Force person- nel assigned to the National Border Interdic- tion System as “case agents”or “record track- ing officers.” He found the type of work a case agent would be doing was vital to the center’s planning of their law enforcement activities. Such activities and duties were es- sentially law enforcement in nature, and un- der the restrictions of the Posse Comitatus Act they would be illegal if performed by Air Force personnel. The opinion noted that hav- ing military personnel gather information at NNBIS centers regarding criminal activity for planning law enforcement operations was an action to execute the law and, therefore. prohibited. No statutes specifically autho- rized such activity. The general prohibition in the Posse Comitatus Act was reaffirmed in 10 USC 375, which directed the Secretary of De- fense to ensure that any assistance provided to civilian law enforcement officials did not include direct participation by military per- sonnel in any type of activities not specifically authorized (OJAGAF 1984/17). No doubt, before the war on drugs is over, many ques- tions will be raised as to the extent military personnel can be used in the fray.

CONCLUSION

The Posse Comitatus Act, designed to prohibit use of the military in civilian law enforcement, has of necessity been nar- rowed somewhat by the recent legislation authorizing military cooperation with civil- ian law enforcement officials. The federal government has recognized that civilian law enforcement agencies do not have the neces-

sary’ rcsourccs to fight the multi-billion dol- lar drug trade. To aid civil authorities, the military has been made available in a lim- ited capacity for service in the war on drugs. Since drugs are a growing problem for the military, its willingness to aid civil- ian law enforcement agencies serves its own needs as well as those of the civilian commu- nity. The type assistance currently provided by the military primarily includes informa- tion, equipment, facilities, and training for civilian law enforcement personnel. The military has been directed to conduct mis- sions that can aid civil law enforcement au- thorities and at the same time accomplish military objectives. This is being done will- ingly and often at no cost to the civil au- thorities, but the missions must come with- in the military’s role. The military, in plan- ning its exercises, currently considers the value the exercise can have for civilian law enforcement. A major limitation on more substantial use of the military to aid civil law enforcement is the reimbursement re- quirement. The military faces budgetary problems like all other governmental agen- cies and cannot afford to divert personnel and equipment to law enforcement activi- ties without compensation.

There are increasing demands for greater military involvement in the war on illegal drug traffic. Without question, over the next few years military support for civil law en- forcement agencies will continue to expand in the war on drugs. Assistance by military personnel will be used with caution.

Military leaders consistently have said they oppose military personnel becoming in- volved in civil law enforcement, particularly in the search, seizure, and arrest process. The Posse Comitatus Act still stands solidly against active military participation in regu- lar and routine civil law enforcement activi- ties. Direct military involvement in such civil law enforcement, in the eyes of the na- tion’s military leaders, would not be in the best interest of national security and military preparedness. However, if the problem of illicit drugs continues to increase, the mili- tary may be required to become more active in this new kind of war.

Posse Comitatus Revisited: The Miliiary in Law Enforcement 385

NOTES

f This article is concerned primarily with the statutory exceptions to the Posse Comitatus ACI. particularly the 1981 Act Militarv Cooperation with Civilian Law Enforcement Officials. The case law involving Posse Comitatus is not examined. Excellent examinations of the case law are provided by Furman (1960). Meeks (1975). and Gates (1982). .

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Meeks. C. I. (1975). illegal law enforcement: Aiding civilian authorities in violation of Posse Comitatus Act. Mil L Rev 70:83-136.

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386 RICHTER H. MOORL. JR

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United States Code 10 U.S.C. Chapter 18. Military coopcratton wtth CI- vilian law enforcement officials

10 U.S.C. 371

372

373

374

37s

376

377 378 IO U.S.C. 2576

Use of information collected during military operations. Use of military cquipmcnt and facili- ties. Training and advising civilian law en- forcement officials. Assistance by Department of Defense personnel. Restriction on direct participation by military personnel. Assistance not to affect adversely mili- tary preparedness. Reimbursement. Nonpreemption of other law. Surplus military equipment: Sale to state and local law enforcement and fire fighting agencies.

16 U.S.C. 23, 78. and 593 Use of troops to protect and preserve national parks, lands, and iimbcr.

16 U.S.C. 1861 Use of armed forces in fisheries con- servation.

18 U.S.C. 112 Protection of foreign officials, official guests. and internationally protected persons.

351 Congressional assassinations, kidnap- pings. and assault.

1116 Murder or manslaughter of foreign of- ficials, foreign guests, or internation- ally protected persons.

1385 Use of Army and Air Force as Posse Comitatus.

1751 Presidential assassination, kidnapping and assault.

3ost3 21 U SC. 87.7

21 U.S.C. 401 408

461

462 2.5 U.S.C. 180 40 U.S.C. 318

42 U.S.C. 97

1855

1989

3756

43 U.S.C. 1065

48 U.S.C. 771.

1418

Secret Service powers. Coopcrativc arrangements (controlled sub5tancca) Illegal exportation of war materiala. Use of land and naval forces to pre- vent exportation. Enforcement by courts: Employment of land or naval forces. Compelling foreign vessels to depart. Protect Indian lands. Establish regulations governing con- duct on federal enclaves. State health laws observed by United States officers (Enforce quarantine laws). Render humanitarian and emergency assistance in cases of national disaster. Magistrates: Appointment of person5 to execute warrants. Use of services. equipment. personnel and facilities of other federal agencies; Central Intelligence Agency exclu- sion; reimbursement; reciprocal use by such other agencies; availability of stateagcncycooperation,service5.rec- ords, and facilities; use of donated or transferred property for testing pur- poses. Summary removal of inclosures (of any federal land). 1405, and 1422 Assist territorial gover- nors of Puerto Rico, Virgin Islands and Guam. Employment of land and naval forces in protection of rights (discoverers of Guano Islands).

50 U.S.C. 220 Enforcement of customs laws.

Von Rabb, W. (1985). The role of the Customs Ser- vice in drug law enforcement. Police Cliief. October 49-50.