CHAPTER 18-MILITARY COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100020010-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: October 24, 2008
• Sequence Number: 10
• Publication Date: June 12, 1981
• Content Type: REPORT

97TH CONGRESS 1 HOUSE OF REPRESENTATIVES J RE T. 97
18t Session j Part KA JlY u:tea ~'`wY ~w` t
~YS~~ \,V WYJ
DEPARTMENT OF DEFENSE AUTHORIZATION
ACT, 1982
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~.Ck??/ 5u..
JUNE 12, 19S1.-Ordered to be printed
Mr. HUGHES, from the Committee on the Judiciary,
submitted the following
REPORT
together with
SEPARATE AND DISSENTING VIEWS
[To accompany.H.R. 3519]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3519) to authorize appropriations for fiscal year 1982 for,the,
Armed Forces for procurement, for research, development, test, and
evaluation, and for operation and maintenance, to prescribe personnel
strengths for such fiscal year for the Armed Forces and for civilian
employees of the Department of Defense, to authorize appropriations
for such fiscal year for civil defense, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment (stated in terms of the page and line numbers of
the introduced bill) is as follows :
Page 42, strike out line 20 and all that follows through line 24 on
page 44 and insert in lieu thereof the following :
372. Use of Army, Navy, Air Force, and Marine Corps equipment and
facilities.
373. Training and advising civilian law enforcement officials.
374. Regulations.
375. Military personnel assistance.
CHAPTER 18-MILITARY COOPERATION WITH
CIVILIAN LAW ENFORCEMENT OFFICIALS
See.
371. Use of information obtained by members of the Army, Navy,
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Air
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? 371. Use of information obtained by members of the
Army, Navy, Air Force, and Marine Corps
The Secretary of Defense may, in accordance with other.:
applicable law, provide to Federal, State, or local law en-
forcement officials any information collected during the nor-
mal course of military operations that may be relevant to a
violation of any Federal or State law within the jurisdiction
of such officials.
? 372. Use of Army, Navy, Air Force, and Marine Corps
equipment and facilities
The Secretary of Defense may, in accordance with other
applicable law, make available any equipment, base facility,
or research facility of the Army, Navy, Air Force, or Marine
Corps to any Federal, State, or local civilian law enforcement
official for law enforcement purposes.
? 373. Training and advising civilian law enforcement
officials
The Secretary of Defense may assign members of the
Army, Navy, Air Force, and Marine Corps to train Federal,
State, and local civilian law enforcement officials in the
operation and maintenance of equipment made available un-
der section 372 of this title and to provide expert advice rele-
va ; to the purposes of this chapter.
? 374. Regulations
(a) The Secretary of Defense shall issue such regulations
as may be necessary to assure that the provision of any assist-
ance, or the provision of any equipment or facility, to any
law enforcement official under this chapter does not-
(1) adversely affect the military preparedness of the
United States; or
(2) include or permit direct participation by any
member of the Army, Navy, Air Force, or Marine Corps
in any search and seizure, arrest, or other similar activity
unless participation in such activity by such member is
otherwise authorized by law.
(b) The Secretary of Defense shall issue regulations pro-
viding that reimbursement may be a condition of assistance
to any law enforcement official under this chapter.
? ^75. Military personnel assistance
Che Secretary of Defense, upon request from the head of
a e'ederal agency with jurisdiction to enforce the Controlled
Substances Act or the Controlled Substances Import and Ex-
port Act, may assign members of the Army, Navy, Air Force,
or Marine Corps to operate and maintain or assist such agen-
cy's law enforcement officials in operating and maintaining
equipment made available under section 372 of this title with
respect to any violation of the Controlled Substances Act or
the Controlled Substances Import and Export Act.
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or-
thP n
fthe
corps
other
_4ant to a
fiction
Corps
Frith other
facility,
or marine
enforcement
trent
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11'crs of the
p train Federal,
... duals in the
rte, available un-
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aoclh regulations
L?iotu of any a is
facility, any
does not-
' F
nd csofthe
anticipation by any
.7m, or Marine Corps
o3her similar activity
y Q,y such member is
due regulations pro-
mdition of assistance
i6 chapter.
rest from the head of
i(o)re the Controlled
ncr.. Import and Ex-
rnv, Navy, Air Force,
it or assist such agen-
ing and maintaining
ail of this title with
-d Substances Act or
Export Act.
BACKGROUND
The rising tide of drugs being smuggled into the United States by
land, sea, and air presents a grave threat to all Americans. Law en-
forcement officials estimate that they are able to interdict only about
15 percent of the incoming illicit drugs. The menace posed to our
society by this activity is substantial. Only through the dedicated
work of all of Federal, State, and local law enforcement agencies can
we begin to stein this tide. In fighting this battle, it is important to
maximize the degree of cooperation between the military and civilian
law enforcement. At the sane time, we must recognize the need to
maintain the traditional ba']ance of authority between civilians and the
military.
This legislation will provide material assistance to law enforcement
by setting forth clear legal principles regarding effective cooperation
between the military and civilian law enforcement agencies. Currently,
the defense establishment provides information, equipment, and train-
ing to civilian authorities. This legislation will ensure that these prac-
tices continue.
More importantly, however, it takes two additional steps toward
improving present levels of cooperation.
The Posse Comitatus Act, 18 U.S.C. 1385, is sufficiently ambiguous
to cause some commanders to deny aid, even when such assistance
would in fact be legally proper. This reluctance to act should be cured
by this legislative clarification of Congressional intent. The second
improvement made by the bill is in proposed section 375 which fills a
gap in existing law by permitting military personnel to operate and
maintain equipment which has been lent to civilian drug enforcement
agencies.
The current relationship between the military forces and civilian
law enforcement authorities is controlled by the Posse Comitatus Act,
18 U.S.C. 1385. Section 908 of the Department, of Defense authoriza-
tion bill clarifies that Act. H.R. 3915, in which section 908 is con-
tained, was originally reported by the Committee on Armed Services.
The Committee on the Judiciary received a sequential referral of
section 908, and on June 3, 1981, the Subcommittee on Crime of that
Committee held hearings on the language in the section as proposed
by the Armed Services Committee. The Subcommittee received testi-
mony from (1) William H. Taft IV, General Counsel, United States
Department of Defense; (2) Edward S. G. Dennis, Jr., Section Chief,
Narcotics and Dangerous Drugs Section, Criminal Division, United
States Department of Justice; (3) George C. Corcoran, Jr., Assistant
Commissioner (Border Operations), 17nited States Customs Service,
United States Department of Treasury; (4) Rear Admiral Donald C.
Thompson, Chief of Operations, United States Coast Guard, United
States Department of Transportation, (5) Professor Christopher
Pyle, Mount Holyoke College; and (6) our distinguished Congres-
sional colleague, Charles E. Bennett, of Florida. In addition to receiv-
ing oral testimony, the Committee received extensive written state-
ments from all of the witnesses.
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The Committee benefitted immensely from the insights obtained at
the aforementioned hearings. More importantly, the Committee owes
a debt of gratitude to the work previously done in this area by our
Congressional colleagues in the Armed Services Committee and on
the IS'elect Committee on Narcotics Abuse and Control, as well as in
the Senate Permanent Subc^mmittee on Investigations of the Com-
mittee on Governmental Afl irs. Each of these bodies has held hear-
ings or discussions concerning the need to improve the level of co-
operation between the military and civilian authorities. Without the
work of colleagues like Representatives Charles Bennett of Florida,
Billy Lee Evans of Georgia, and Senator Sam Nunn of Georgia, there
would have been less impetus for responding to the tremendous prob-
lems facing law enforcement in coping with smuggling and traffick-
ing of drugs.
The Report which follows is divided into two sections. The first
section is a discussion of the current law of Posse Comitatus. The
second section is a discussion of the provisions of the bill as reported
by the Committee on the Judiciary.
Posse comitatus (literally "power of the country") was defined at
common law as all those over the age of 15 upon whom a sheriff could
call for assistance in preventing any type of civil disorder. 1 W. Black-
stone, Convmentarie8 343-44. The Poss Comitatus Act (18 U.S.C.
1385)1 makes it aelony "except in cases and under circumstances ex-
pressly authorized by the Constitution or Act of Congress [to] use
any part of the Army or Air Force as a posse comitatus or otherwise
to execute the laws."
As originally proposed, the Act would have applied to all of the
armed services. See 7 Cong. Rec. 3586 (1878) (remarks of Rep. Kim-
mel). The final versions of the Act, however, mentioned only the
Army, because the Act was a rider to any Army appropriations bill.
Furman, Restrictions Upon Use of the Army Imposed by the Posse
Comitatus Act, 7 Mu.. L. REV. 85, 98 (1960) . The reference to the Air
Force was added in 1956 to take into account the creation of a Depart-
ment of the Air Force separate from the Army. Id. at 96. See Note,
Honored in the Breech: Presidential Authority to Execute the Laws
with Military Force, 83 YALE L.J. 130, 141 (1973) ; Note, The Posse
Comitatus Act: Reconstruction Politics Reconsidered, 13 AM. CRIM.
L. REv. 703, 713 (1976) (hereinafter cited as Reconstruction Politics
Reconsidered). Even though they were not legally bound by the stric-
tures of the Act, Navy Department regulations accepted its wisdom
and directed Navy and Marine Corps personnel to comply with it.
Secretary of Navy Instruction 5820.7 (May 15, 1974). See United
States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983
(1974). The peace time Coast Guard is not covered by the Act. See
Jackson v. State, 575 P.2d 87 (Alaska, 1977). Under the provisions
19 U.S.C. 1401 and 14 U.S.C. 143, Coast Guard officers are deemed
to be officers of the United States Customs Service and thus are au-
11885. Use of Army and Air Force as posse comitatus. Whoever, except in cases and
ender circumstances expressly authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or Air Force .by a posse comitatus or otherwise to execute the
laws shall be fined not more than $10,000 or imprisoned not more than two years, or
both.
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r
n the insights obtained at
ntly, the Committee owes
done in this area by our
rvices Committee and on
Lnd Control, as well as in
vestigations of the Com-
lese bodies has held hear-
improve the level of co-
authorities. Without the
arles Bennett of Florida,
m Nunn of Georgia, there
to the tremendous prob-
h smuggling and traffick-
;o two sections. The first
of posse Comitatus. The
ons of the bill as reported
thorized to execute civilian laws. See also 16 U.S.C. 1681 (which au-
thorizes the Coast Guard to obtain the assistance of the Department
of Defense in enforcing the Fishery and Conservation Management
Act of 1976).
According to a spokesperson for the Department of Justice, no one
has been charged or prosecuted under. the Posse Comitatus Act since
its enactment. Testimony of Edward S. G. Dennis, Jr. on behalf of
the Department of Justice, Hearings on HR. 3519 before the Subcom-
mittee on Crime, House Committee on the Judiciary, 97th Cong., 1st
sess. (1981) (hereinafter cited as Hearings). See also Reconstruction
Politics Reconsidered, Supra, at 716-17. Through judicial interpreta-
tion, the Act appears to have been limited primarily to three types of
challenges in criminal cases.2 The first type involves a challenge to the
courts' jurisdiction. See Reconstruction Politics Reconsidered, supra,
at 717-18; Chandler v. United States, 171 F.2d 921 (1st Cir. 1948),
cert. denied, 336 U.S. 918 (1949) (Army's arrest of United States
national in Germany and transportation of that national to trial).
The second type of case involves an attempt to exclude evidence on
the theory that the government's evidence has been tainted by a viola-
tion of the Act and is therefore inadmissible. See Reconstruction Poli-
tics Reconsidered, supra, at 719-23, Hildebrand v. State, 507 P.2d 1323
(Okla. Crim. App..1973) ; Hubert v. State, 504 P.2d 1245 (Okla. Crim.
App. 1972). Those attempts have been unsuccessful; the courts have
avoided ruling on the question of excluding the evidence by finding no
violation of the Act. Other courts that have addressed this question
have found violations of the Act, but have declined to apply the ex-
clusionary rule without evidence of systematic violations. See United
States v. Wolffs, 594 F.2d 77, 85 (1979) ; United States v. Walden, 490
F.2d 372, 376-377 (4th Cir. 1974), cert denied, 416 U.S. 983 (1974).
(Violation of a Navy regulation adopted Posse Comitatus principles
and applying them to the Navy not sufficiently systematic.)
The third type of case involves a challenge to an indictment. The
aftermath of the occupation of Wounded Knee resulted in three sig-
nificant discussions of the Act-in United States v. Banks, 383 F.Supp.
368 (D.S.D. 1974), United States v. Jaramillo, 380 F.Supp. 1375 (D.
Neb. 1974), appeal denied, 510 F.2d 808 (8th Cir. 1975), and United
States v. Red Feather, 392 F.Supp. 916 (D.S.D. 1975), aff'd sub nom.
United States v. Caspar, 541 F.2d 1275 (8th Cir. 1976), cert. denied,
430 U.S. 970 (1977) (Where the court affirmed the lower court's factual
findings without accepting its legal theory). Although the military
activities challenged in each case were identical, the courts in Banks
and Jaramillo found those activities to be in violation of the Act,
while the lower court in Red Feather found those activities to be
permissible.
The Banks and Jaramillo courts, in finding that the civilian officials
did employ part of the Army and Air Force to enforce the law, con-
cluded that there was insufficient evidence of the lawfulness of the
Government conduct to justify submitting to the jury those counts
alleging that the defendants violated 18 U.S.C. 231 (a) (3), which pro-
hibits interfering with a law enforcement officer in the lawful perform-
ance of duties incident to a civil disorder. Despite the rebuttable pre-
country") was defined at
upon whom a sheriff could
civil disorder. 1 W. Black-
,omitatus Act (18 U.S.C.
A under circumstances ex-
Act of Congress [to] use
sse comitatus or otherwise
mnve applied to all of the
B) (remarks of Rep. Kim-
-ever, mentioned only the
Army appropriations bill.
?m.y Imposed by the Posse
). The reference to the Air
it the creation of a Depart-
Army. Id. at 96. See Note,
or ty to Execute the Laws
1 (1973) ; Note, The Posse
econ idered, 13 AM. CRIM.
as Reconstruction Politics
legally bound by the stric-
ations accepted its wisdom
acamnel to comply with it.
toy 15, 1974). See United
me?. denied, 416 U.S. 983
asetrered by the Act. See
0 D. Vnder the provisions
C et9 officers are deemed
t-'b- k and thus are au-
mow. ncept in cases and
o Aot of a willfully
a CA~+*e1.e to execute the
m tail two years, or
One reported civil case related to a Federal Tort Claims Act action. Wrynn v. United
States, 200 F. Supp. 457 (E.D.N.Y. 1961)
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sumption that law enforcement officials are lawfully engaged, the
Banks court dismissed the charges, finding that "the posse comitati s
platter was, and is, inextricably intertwined in the question of suffi-
ciency of the evidence." United States v. Banks, 383 F.Supp. 368,376
(D.S.D. 1974). It based its decision, in part, on the participation of the
military in repairing the armored personnel carriers which were lent to
the civilian authorities.
Faced with identical facts, the Jaramillo court found "that the
furnishings . . . materiels, standing alone, is [sic] not a violation of
18 U.S.C. 1385" and concluded that "it is the use of military personnel,
not materiel, which is proscribed by 18 U.S.C. 1385." United States X%
Jaramillo, 380 F.Supp. 1375, 1376 (D.Neb. 1974). The court made no
finding as to whether the military presence was essential to the success
of the civilian authorities' course of action. These two cases serve to
illustrate the confusion regarding the Act and the problems that result
when it is too mechanically applied.
The court in Red Feather partially granted the United States' in
limine to bar the.defendants from introducing evidence concerning
certain law enforcement use of military equipment or of the military's
passive role in the Wounded Knee occupation. The court stated that
the Act was designed to prevent the "direct active use of Army or
Air Force personnel and does not mean the use of Army or Air Force
equipment or materiel", 392 F.Supp. 921. It concluded that
Congress did not intend to make unlawful the involvement
of Federal troops in a passive role in civilian law enforcement
activities. [Passive roles include] ... the mere presence of
military personnel under orders to report the necessity for
military intervention, preparation of contingency plans to
be used if military intervention is ordered; advice or recom-
mendations given to civilian law enforcement officers by mili-
tary personnel on tactics or logistics; presence of military
personnel to deliver military materiel, equipment or supplies,
to train local law enforcement officials on the proper use and
care of such materiel or equipment and to maintain such ma-
teriel or equipment; aerial photographic reconnaissance
flights and other like activities. United States v. Red Feather,
392 F.Supp. 916, 921, 924, 925 (D.S.D. 1975) aff'd sub nom.
United States v. Caspar, 541 F.2d 1275 (8th Cir. cert. denied,
430 U.S. 970(197).
Certain military activities, although otherwise prohibited by the
Posse Comitatus Act, are permissible if expressly authorized by stat-
ute.' These permissible military actions are specifically defined and are
generally restricted to instances involving civil disorders (10 U.S.C.
331-36), disasters (42 U.S. 4401-84 and 1855), and threats to Federal
property (see letter from Mary C. Lawton. Office of Legal Counsel,
Department of Justice, to Deanne Siemer, General Counsel, Depart-
ment of Defense, March 24, 1978, at 3; see also United States v. Banks,
539 F.2d .14, 16 (4th Cir. 1976). The other specific and "express"
statutory exceptions to Posse Comitatus include:.(1) 16 U.S.C. 23
' The statute permits constitutional exceptions. However, there are none.
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