The Military and Civilians
Posse Comitatus can be "misunderstandus"
In table top exercises for disaster preparation, local government, state government, churches, federal government, the military and various federal agencies all played roles. Inevitably, as the disaster grew out of control, someone would suggest calling in the military and declaring “martial law”. The answer was always — no, we have the protection of posse comitatus, so the military never has direct interface with civilians (with only a few exceptions). However, there is also a lot that the military can do to support state and local law enforcement, federal law enforcement and federal property. Here is a brief discussion of what this means.
Civilian Contact: Posse Comitatus
Posse comitatus is defined by Black's Law Dictionary (4th ed. rev., 1968) to be "the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace in pursuing and arresting felons, etc." The use of this power was derived from the Judiciary Act of 1789 (1 Stat. 73), wherein the U.S. Marshals called upon the militia as a posse comitatus. In 1867, the U.S. Congress passed The Reconstruction Act, which established martial law in the southern states, which had seceded in the U.S. Civil War, 1860–1864. The Posse Comitatus Act was signed into law on June 18, 1878, in response to abuses of military control over the south after the U.S. Civil War during Reconstruction. Thereafter, the United States declared that the military should never have enforcement powers against civilians, except in a declared state of emergency.
Over its 124-year history, the Posse Comitatus Act has been amended by Congress to address changing needs for resources. In 1968, a separate statutory exception was created to provide assistance to the Secret Service in carrying out its protective duties. [H.J.R. 1292, P.L. No. 90-331, 82 Stat. 170 (1968)]. In 1969, the federal governmental departments developed an interdepartmental plan for civil disturbances in order to address overlapping jurisdictions and the use of the military ("Interdepartmental Action Plan for Civil Disturbances” (Apr. 1, 1969). The Department of Defense articulated a policy directive to address terrorist incidents as either a civil disturbance or a criminal act, and how the incident was defined would give rise to the legal framework within which it was analyzed.[i]
In 1973, members of the Lakota Sioux Indian Nation occupied a building within the jurisdiction of the tribal reservation. The National Guard and the U.S. Army, among other local law enforcement agencies, participated in ending the occupation. The involvement of the military in evidence gathering was challenged in a criminal case against members of the Indian nation, who were charged with obstructing law enforcement officials. In this case, the court specifically excluded evidence that might have been collected during any illegal activity on the part of the military and law enforcement officials. (See United States v. Red Feather, 392 F. Supp. 916 (D.C.S.D 1975)). This use of the military in Wounded Knee, South Dakota, received nationwide attention in part because of its use against Native Americans, and its reminder to the Nation of the last incident at Wounded Knee in 1891, which utilized the military in a slaughter of women, children and elders, in what is considered the last battle in the United States' war against the Indians. This further raised the public concern of any use of the military in a civilian law enforcement role.
Following the public concern and litigation from the Wounded Knee incident in 1981, an amendment was made to the Act, which did little more than codify the existing relationship between the military and civilian law enforcement agencies. This led to increased cooperation through specific provision of intelligence (10 U.S.C. § 371) facilities, including materials not reasonably available from another source that is "any material or expertise of the Department of Defense appropriate for use in preparing for or responding to an emergency involving chemical or biological agents," such as biosensors, protective clothing, antidotes (10 U.S.C. § 372), training and advice (10 U.S.C. §373), and assistance in the operating and maintaining of military equipment to monitor air and sea traffic (10 U.S.C. § 374(b)). The Act provides that the military may "monitor, contain, disable, or dispose of the weapon involved or elements of the weapon" (10 U.S.C. § 382(c)). In the case of biological weapons, the military may not directly participate in arrest, search, or seizure of evidence or intelligence gathering for law enforcement purposes, unless it is necessary to save human life and civilian authorities are unable to do so (10 U.S.C. § 382(d)). The involvement is also limited in time and scope to addressing only the specific biological incident (10 USC §382(d)).
But the 1981 Amendment added additional prohibitions for the use of the military, including any use that would adversely affect military preparedness for national defense (10 USC §376), as well as the proviso that the use of military resources may be contingent upon reimbursement by the local or state governments or other federal agency (10 USC §377).
Following the 1981 Amendment, the interdepartmental plan was formalized with a Memorandum of Understanding between the Department of Justice, the Federal Bureau of Investigation, and the Department of Defense in 1983, which provided for responsibilities in the event of a domestic terrorist attack (Memorandum of Understanding, 5 Aug. 1983). The agreement gives guidance for permitted uses of the military:
Although the Posse Comitatus Act does not permit military personnel to actively engage in the law enforcement mission unless expressly authorized, the Act does not prohibit military observers from reporting to the Department of Defense; nor does it generally prohibit the preparation of contingency plans for lawful military intervention; advice to civilian officials, sharing intelligence information collected during the normal course of military operations, including operations relating to the incident; the loan of specialized equipment or weaponry; the use of military personnel to deliver and maintain equipment for civilian use, provided those personnel do not operate that equipment; or the use of military personnel to train civilian law enforcement officials in the operation and maintenance of military equipment (See 10 USC §371–378).
In 1988, another amendment was made once again, codifying further clarifications, but also adding the allowance of the use of the military for drug interdictions, and formally giving the Department of Defense lead authority for advising civilian law enforcement agencies concerning the types of equipment and assistance available (10 USC §380).
Under the Posse Comitatus Act, the military cannot be used to enforce laws against civilians in the United States. There are constitutional exceptions to this act, as well as exceptions statutorily provided. The constitutional exceptions are Presidential powers in emergency authority and the protection of federal property and operations. The act provides for exceptions for when it is "impracticable to enforce the laws of the U.S....by the ordinary course of judicial proceedings," (18 USC §1385) and for the use of the military by the President to control an insurrection (10 USC §331–333). Otherwise, the use of the military requires that a state's governor make such a request, and the President must issue an order to activate the military for that purpose. The failure to have the President formally issue an order can raise questions with use of the military under the Posse Comitatus Act, as in the Wounded Knee incident.[ii] However, specific passive activities have been held to be compliant with the Act, which include, for example, reconnaissance missions.[iii]
In summary, there are six exceptions to the Posse Comitatus Act: two constitutional exceptions and four statutory and regulatory exceptions. The President's emergency powers to respond to insurrection and the protection of federal property and governmental functions are the constitutional exceptions. The Congressionally granted powers to the President include a national emergency involving civil disturbances (10 USC §331–334 (2000) and DOD Dir. No. 3025.12), rebellions that make it impracticable to enforce federal laws (10 USC §332 (2000) and DOD Dir. No. 3025.12), and any insurrection or violence that impedes the state's ability to protect citizens and/or when the state is unable or unwilling to protect those rights (10 USC §333 (2000) and DOD Dir. No. 5525.5).
[This is an excerpt from Sutton, Biosecurity Law and Policy (2014).]
Prof. Sutton is Director of the Center for Biodefense, Law & Public Policy and an Associated Faculty Member of The Military Law Center of Texas Tech University School of Law.
[i] Dept. of Defense, Directive No. 3025.12 Employment of Military Resources in the Event of Civil Disturbances (Aug. 19, 1971).
[ii] United States v. Jaramillo, 380 F. Supp. 1375, 1379 (1974).
[iii] United States v. Red Feather, 392 F. Supp. 916 (D.C.S.D., 1975).