Posse Comitatus

The Posse Comitatus Act of 1878 / 18 USC Sec 1385:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

  • 18 USC 1385

    The Posse Comitatus Act of 1878 / 18 USC Sec 1385:
    “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

  • 18 USC 1385
  • RAND Overview of the Posse Comitatus Act
  • *** Legal Aspects of Domestic Employment of the Army, COL Thomas Lujan (USSOCOM SJA), Parameters, Autumn 1997, pp. 82-97.
  • Posse Comitatus and Nuclear Terrorism, Chris Quillen, from Parameters, Spring 2002, pp. 60-74.
  • The Posse Comitatus Act and Homeland Security, COL (Ret.) John R. Brinkerhoff, from the Journal of Homeland Security, February 2002
  • DoDD 5525.5, DoD Cooperation With Civilian Law Enforcement Officials
    — Makes Act applicable, by policy, to Navy / Marine Corps
    — Lists examples of permitted and restricted support under the Act

  • Summary of guidelines regarding Posse Comitatus

    Permissible Direct Assistance
    The following activities are not restricted by (the Posse Comitatus Act). // DoDD 5525.5, Paragraph E4.1.2.

  • Actions that are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities. This provision must be used with caution, and does not include actions taken for the primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge to avoid the restrictions of (the Act). Actions under this provision may include the following, depending on the nature of the DoD interest and the authority governing the specific action in question:
    — Investigations and other actions related to enforcement of the Uniform Code of Military Justice (UCMJ).
    — Investigations and other actions that are likely to result in administrative proceedings by the Department of Defense, regardless of whether there is a related civil or criminal proceeding. See DoD Directive 5525.7 with respect to matters in which the Departments of Defense and Justice both have an interest.
    — Investigations and other actions related to the commander’s inherent authority to maintain law and order on a military installation or facility.
    — Protection of classified military information or equipment.
    — Protection of DoD personnel, DoD equipment, and official guests of the Department of Defense.
    — Such other actions that are undertaken primarily for a military or foreign affairs purpose.
  • Audits and investigations conducted by, under the direction of, or at the request of IG, DoD, 5 U.S.C., Appendix 3, §8(g), subject to applicable limitations on direct participation in law enforcement activities.

  • Actions that are taken under the inherent right of the U.S. Government, a sovereign national entity under the U.S. Constitution, to ensure the preservation of public order and to carry out governmental operations within its territorial limits, or otherwise in accordance with applicable law, by force, if necessary. This authority is reserved for unusual circumstances, and will be used only under DoD Directive 3025.12, which permits use of this power in two circumstances:
    — The emergency authority authorizes prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situation.
    — Protection of Federal property and functions authorizes Federal action, including the use of military forces, to protect Federal property and Federal Government functions when the need for protection exists and duly constituted
    local authorities are unable or decline to provide adequate protection.

  • Actions taken pursuant to DoD responsibilities under The Insurrection Statutes / 10 U.S.C. §§331-334, relating to the use of the military forces with respect to insurgency or domestic violence or conspiracy that hinders the execution of State or Federal law in specified circumstances. Actions under this authority are governed by DoD Directive 3025.12.

  • Actions taken under express statutory authority to assist officials in executing the laws, subject to applicable limitations. The laws that permit direct military participation in civilian law enforcement, include the following:
    — Protection of national parks and certain other Federal lands. See 16 U.S.C. §§23, 78, and 593.
    — Enforcement of the Fishery Conservation and Management Act of 1976. See 16 U.S.C. §1861(a).
    — Assistance in the case of crimes against foreign officials, official guests of the United States, and other internationally protected persons (such as diplomats). See 18 U.S.C. §§112 and 1116.
    — Assistance in the case of crimes against members of Congress. See 18 U.S.C. §351.
    — Assistance in the case of crimes involving nuclear materials. See 18 U.S.C. §831.
    — Assistance in the case of emergencies involving chemical or biological weapons (upon request of the Attorney General). Authorized assistance includes monitoring, containing, disabling, and disposing of the weapon. See 10 U.S.C. §382.
    — Protection of the President, Vice President, and other designated dignitaries. See 18 U.S.C. §§1751 and the Presidential Protection Assistance Act of 1976.
    — Actions taken in support of the neutrality laws. See 22 U.S.C. §§408 and 461462.
    — Removal of persons unlawfully present on Indian lands. See 25 U.S.C. §180.
    — Execution of quarantine and certain health laws. See 42 U.S.C. §97.
    — Execution of certain warrants relating to enforcement of specified civil rights laws. See 42 U.S.C. §1989.
    — Removal of unlawful inclosures from public lands. See 43 U.S.C. §1065.
    — Protection of the rights of a discoverer of a guano island. See 48 U.S.C. §1418.
    — Support of territorial governors if a civil disorder occurs. See 48 U.S.C. §§1422 and 1591.
    — Actions in support of certain customs laws. See 50 U.S.C. §220.

  • Restrictions on
    Direct Assistance

    With some exceptions, the prohibition on the use of military personnel “as a posse comitatus or otherwise to execute the laws” prohibits the following forms of direct assistance. — DoDD 5525.5, Paragraph E4.1.3.

  • Interdiction of a vehicle, vessel, aircraft, or other similar activity.
  • A search or seizure.
  • An arrest, apprehension, stop and frisk, or similar activity.
  • Use of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators.
  • Any demonstration of Federal military authority at or near a polling place during a scheduled election. (18 USC 592)
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