Matthew Carlton Hammond
Matthew Carlton Hammond, The Posse Comitatus Act: a Principle in Need of Renewal , 75 Washington
University Law Quarterly 953-984 (Summer 1997)
In the nearly 120 years that the PCA has been in effect, there have been no criminal prosecutions under the Act,
although it is a criminal statute(1) This lack of criminal prosecutions has deprived courts of the opportunity to
interpret the PCA directly.(2) Courts have had a few opportunities to interpret the statute indirectly, howeve(3)
Defendants have unsuccessfully raised the PCA as a shield, contending that a violation of the Act divests the trial
court of jurisdiction(4) and that evidence gathered through a violation of the PCA should be suppresse(5) The PCA
has been successfully used where (1) the involvement of the military drew into question whether federal law
enforcement officers were lawfully performing their duty(6) and (2) a PCA violation enabled the federal government
to avoid liability under the Federal Tort Claims A(7) because the tortious act in question "could not have been
authorized on behalf of the United States by any action short of a Congressional enactment."(8)
This dearth of judicial interpretation has left "the parameters of the [[PCA] . . . substantially untested(9) Due to the
resulting lack of clarity, the PCA does not actually prohibit all so-called "exceptions" to its application, and such
exceptions-in-name have been enacted to clarify--or, depending upon your view, alter--its boundaries(10) and to
provide guidance to military commander(11) The greatest uncertainties regarding the PCA concern what constitutes
"any part of the Army or Air Force" (12) and what actions "execute the laws(13)
A. Elements of the Armed Forces Covered by the PCA
The PCA expressly applies only to the Army and Air Force.(14) Congress did not mention the Navy, Marine Corps,
Coast Guard, or National Guard in the PCA; accordingly, the PCA does not limit the(15) However, the Department
of Defense has extended by regulation the PCA's prohibitions to the Navy and Marine Corps.(16) Although, the
Coast Guard is part of the armed forces, in peacetime it falls under the authority of the Department of
Transportati(17) and has an express law enforcement function. (18) Additionally, the PCA only applies to forces in
federal service, and therefore, the National Guard is not limited by the PCA in its normal status of state servic(19)
Because the National Guard is the modern militia, this distinction actually follows the intent of the PCA, which
was not meant to limit militias.(20) The courts have also implicitly limited army to the official military establishment
rather than its broader plain meaning(21)
The breadth of the PCA in its application to "any part of the Army or Air Force" is uncertain and can be a factual
question.(22) The PCA applies to on-duty service members, but not to off-duty service members acting in a private
capacit(23) Conversely, when an off-duty service member acts under the direction of military authorities, the PCA
applies.(24) Whether the PCA applies to civilian employees of the armed forces remains undecided. On the basis of
general agency principles, the PCA should arguably apply to civilian employees during the performance of their
dutie(25) but Department of Defense regulations do not apply PCA restrictions to them. (26) Furthermore, according to
the Judge Advocate General, civilian employees of the Army are technically not part of the militar(27)
B. What Action Constitutes a Violation of the PCA
The PCA proscribes the use of the military(28) "as a posse comitatus or otherwise to execute the laws(29) Courts have
used three formulations of an active versus passive test to determine a PCA violation. All three formulations result
from litigation that ensued following the 1973 standoff between federal authorities and the American Indian
Movement at Wounded Knee, South Dakota. (30) The formulations allow passive assistance in support of law
enforcement without causing a PCA violatio(31)
In United States v. Red Feather,(32) the court defined a PCA violation as "direct active use of Army or Air Force
personnel(33) thus creating the passive versus active dichotomy. The court found that a provision of military
equipment and supplies was not an active use of the military. (34) The court found support for this position in
Congress's passage of the Economy Act of 193(35) which provides for the transfer of resources between executive
In United States v. Jaramill(37) the court focussed on whether use of the military "pervaded the activities" of the
civilian law enforcement agencies to determine a PCA violation.(38) The court found that the provision of supplies
and equipment alone did not constitute a violatio(39) and it concerned itself with whether the military observers
involved had too much influence over civilian law enforcement decisions regarding negotiations, use of equipment,
and the policy on the use of force.(40) Although the court did not necessarily find a violation of the PCA, the
evidence cast doubt on whether the federal authorities were "lawfully engaged in the lawful performance of their
offici(41) Therefore, the court dismissed the indictment for obstructing law enforcement officers.(42)
United States v. McArthu(43) approved by the Eighth Circuit in United States v. Casper,(44) promulgated the third
formulation of the active versus passive test and focussed on the individual subjected to the PCA violatio(45) The
McArthur formulation asked whether "military personnel subjected . . . citizens to the exercise of military power
which was regulatory, proscriptive, or compulsory in nature."(46) On basically the same facts as Jaramillo, the
McArthur court found no PCA implication(47) United States v. Yunis(48) further clarified the elements of the
McArthur formulation: regulatory power "controls or directs"(49) proscriptive power "prohibits or condemns";(50) and
compulsory power "exerts some coercive force(51)
It should be noted that the PCA's effect is limited to the United States and does not bar the military's support of
law enforcement agencies abroad. In Chandler v. United States,(52) the court held that the PCA has no
extraterritorial effec(53) However, some restrictions do exist on the military's activities outside the United States.
These restrictions arise out of military regulations (54) and congressional acts that have limited military support to
foreign civilian law enforcement authoritie(55)
C. Exceptions to the PCA
The PCA explicitly recognizes constitutional and legislative exceptions to its application.(56) The existence of any
constitutional exceptions was contested at the time of the PCA's enactmen(57) Some proponents of the PCA saw the
exceptions as inherent in the executive powers of the President and in his position as Commander-in-Chief of the
armed forces,(58) thus making them beyond the reach of Congress to limi(59) Others who supported the PCA's passage
recognized no such exceptions.(60) The existence of constitutional exceptions to the PCA may only actually lie in the
"twilight zone" where the President may act where Congress has not, as described by Justice Jackson's concurrence
in Youngstown Sheet & Tube Co. v. Sawye(61)
Another "constitutional" exception to the PCA is described by the Department of Defense regulations based upon
the "inherent right of the U.S. Government . . . to ensure the preservation of public order and to carry out
governmental operations . . . by force, if necessary."(62) The Office of Legal Counsel of the Department of Justice
has promulgated a similar view in recognition of the U.S. government's power to protect federal functions(63) The
power to protect federal functions has been so broadly interpreted, however, that if accepted it would become the
exception that swallows the rule. Now-Chief Justice William Rehnquist interpreted this power to extend to any
"uniquely federal responsibility" while he was an attorney in the Office of Legal Counsel.(64) However, this
exception has yet to be tested in the courts and would likely be interpreted as narrowly as the other exceptions to
Congress itself has recognized several exceptions to the PC(65) which this Note categorizes as exceptions-in-fact
and exceptions-in-name. (66) The exceptions-in-fact are true exceptions that exempt otherwise criminal actions
under the PCA and alter its boundaries. Exceptions-in-name include exceptions that are described or perceived as
exceptions to the PCA, but which authorize allowable acts under any of the court-created tests(67)
Exceptions-in-name do not alter the accepted boundaries of the PCA and do not make previously criminal acts
legal. They are sometimes simply termed "clarifications."(68)
Exceptions-in-name allow the military to provide equipment and supplies,(69) technical assistance,(70) informatio(71)
and training to law enforcement agencies.(72) Such provisions constitute passive assistance to civilian law
enforcement, which does not subject any civilian to the regulatory, proscriptive, or coercive power of the military(73)
Exceptions-in-fact include protection of the rights of a discoverer of a guano island,(74) removal of persons illegally
occupying Indian lands(75) protection of national parks,(76) investigation of crimes against the President or others in
the line of successio(77) and protection of civil rights where local authorities do not or cannot protect them.(78)
Exceptions-in-fact also include the quelling of civil disturbances and labor strife that rises to the level of civil
disorder. For example, Troops were used to put down the Whiskey Rebelli(79) long before the PCA was passed and
to maintain order during school desegregation in the South after the Act's passage. Troops have also been used to
quell riots in Detroit and other cities.(80) More recently, they were deployed on the streets of Los Angeles in 1992
after the Rodney King verdic(81)
The courts have recognized another type of exception through the military purpose doctrine, which is not
explicitly mentioned in the PCA.(82) The doctrine allows the military to enforce civilian laws on military
installations, to police themselves, and to perform their military functions even if there is an incidental benefit to
civilian law enforcemen(83) However, the doctrine is interpreted by the McArthur formulation--whether a person is
subjected to military power that is regulatory, proscriptive, or coercive(84) --when the activities occur off-bas(85)
D. Allowable Domestic Uses of the Military
There are many other uses of the military which seem to implicate the PCA, but are not within its scope because
law is not being enforced. Since the passage of the PCA, the military has been used several times for domestic
purposes that do not conform to its traditional role. The PCA proscribes use of the army in civilian law
enforcement, but it has not prevented military assistance in what have been deemed national emergencies, such as
strike replacements and disaster relief. However, these emergencies differ in character from other exceptions to the
PCA by their very nature as emergencies and by the duration of the military involvement.
Presidents Richard Nixon and Ronald Reagan both used the military to replace striking federal employees. In
1970, President Nixon sent 30,000 federal troops to replace striking postal workers in New York,(86) and in 1981,
President Reagan replaced striking air traffic controller(87) The military has also been used to replace striking coal
Disaster relief, another common use of the military, does not seem to violate the PCA because it is not a mission
executing the laws. In the 1906 San Francisco earthquake, the Army led the effort to put out fires and restore order.
More recently, Hurricane Hugo in Florida resulted in a large military presence during the relief effor(89) However,
the military also found itself providing election facilities in Florida--a situation too similar to that which
precipitated the passage of the PCA in 1876.(90)'
Read the following links:
Passage of the PCA: Reaffirmation of a Long-Standing American Tradition
The Scope of the PCA
Exceptions to the PCA Endanger the Military and the United States
Renewal of the Policy Embodied by the PCA
1. . Charles Doyle, Cong. Res. Serv., No. 88-583A, Use of the Military to Enforce Civilian
Law: Posse Comitatus Act and Other Considerations 2 (1988); Furman, supra note 42, at
86; Interview with Brig. Gen. Walter B. Huffman, Asst. Judge Advocate Gen. for Military
Law and Operations, U.S. Army, in Burke, Va. (Dec. 31, 1995) [hereinafter Huffman
Interview]. In 1879, two Army officers were indicted in Texas for violating the PCA after
providing a U.S. marshall with troops to enforce the revenue laws. Lieber, supra note 48,
at 28 n.1. Other than this one mention, there is no record that the officers were ever
2. . See PCA Hearing, supra note 13, at 10 (statement of Edward S.G. Dennis, Jr., Chief,
Narcotics and Dangerous Drug Sec., Crim. Div., U.S. Dep't of Justice); Sanchez, supra
note 38, at 120. The lack of opportunity for judicial interpretation will continue because
military enforcement of the PCA is seldom challenged in the courts. Id.
3. . See infra Part III.
4. . See, e.g., Chandler v. United States, 171 F.2d 921, 935-36 (1st Cir. 1948), cert. denied,
336 U.S. 918 (1949) (finding jurisdiction where the Army arrested the defendant in
Germany and returned him to the United States); Ex parte Mason, 256 F. 384, 385-87
(C.C.S.D.N.Y. 1882) (finding jurisdiction for military court in a court martial proceeding
against a soldier for an attempted murder while on guard duty at a civilian jail despite
finding a PCA violation).
5. . See United States v. McArthur, 419 F. Supp. 186 (D.N.D. 1975), aff'd sub. nom.,
United States v. Red Feather, 541 F.2d 1275 (8th Cir. 1976), cert. denied sub nom.,
Casper v. United States, 430 U.S. 970 (1977); United States v. Red Feather, 392 F. Supp.
916 (D.S.D. 1975), aff'd, 541 F.2d 1275 (8th Cir. 1976); United States v. Jaramillo, 380
F. Supp. 1375 (D. Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975). But see
People v. Burden, 288 N.W.2d 392 (Mich. Ct. App. 1979) (applying exclusionary rule to
drug investigation in which a member of the U.S. Air Force participated with the approval
of his commander), rev'd, 303 N.W.2d 444 (Mich. 1981); Taylor v. State, 645 P.2d 522
(Okla. Crim. App. 1982) (applying the exclusionary rule for a PCA violation as a result of
a military police officer's active participation in a search and arrest
6. . See Jaramillo, 380 F. Supp. 1375 (D. Neb. 1974) (directed verdict on charge of
obstruction of law enforcement officers for defendants because the military's involvement
in response to civil disorder raised reasonable doubt whether the officers were in lawful
performance of their duty), appeal dismissed, 510 F.2d 808 (8th Cir. 1975).
7. . Ch. 646, 62 Stat. 983 (1948) (codified as amended at 28 U.S.C. § 2674 (1994)
8. . Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961) (finding a PCA
violation where Air Force helicopter and pilots were used to search for civilian prison
escapees and plaintiff was injured when the helicopter landed).
9. . PCA Hearing, supra note 13, at 10 (statement of Edward S.G. Dennis, Jr., Chief,
Narcotics and Dangerous Drug Sec., Crim. Div., U.S. Dep't of Justice) (citing Report of
the Task Force on Evaluation of Audit, Inspection and Investigative Components of the
Dep't of Defense 197 (1980)
10. . See infra notes 117-20 and accompanying text.
11. . See PCA Hearing, supra note 13, at 12; H. Rep. No. 97-71, pt. 2, at 3 (1981); see also
International & Operational Law Dep't, The Judge Advocate General's School, U.S.
Army, Doc. No. JA422, Operational Law Handbook 22-2 (1995) [hereinafter Army Law
12. . 18 U.S.C. § 1385 (1994).
13. . Id.; see Doyle, supra note 53, at 12 (stating that "case law does not definitively answer
the question of what constitutes use to 'execute the laws"'
14. . 18 U.S.C. § 1385. The Air Force was expressly included under the PCA when Congress
codified Title 10 of the U.S. Code in 1956. United States v. Walden, 490 F.2d 372, 375
n.5 (4th Cir. 1974); see also supra note 52. The inclusion was natural because the Air
Force was originally part of the Army as the Army Air Corps. Walden, 490 F.2d at
374-75, 375 n.5. Even prior to 1956, Congress included the Air Force under the PCA. See
National Security Act of 1947, ch. 343, §§ 207(a), 208(a), 305(a), 61 Stat. 495, 502-04,
15. . See United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) (failing to extend PCA
prohibitions to the Navy where defendant was transported to the U.S. on a Navy vessel);
Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987) (same), cert.
denied, 503 U.S. 951 (1992). But see Walden, 490 F.2d at 375 (noting that failure to
include the Navy in the text of the PCA does not evince congressional approval of the
Navy's use to enforce civilian laws), cert. denied, 416 U.S. 983 (1979); People v. Caviano,
560 N.Y.S.2d 932, 936 & n.1 (N.Y. Sup. Ct. 1990) (finding the PCA applicable to the
Navy); People v. Blend, 175 Cal. Rptr. 263, 267 (Cal. Ct. App. 1981) (stating that the
PCA "applies to all branches of the federal military"). The first version of the Act would
have included "any part of the land or naval forces." 7 Cong. Rec. 3586 (1878). The Navy
was possibly dropped to avoid a challenge under House rules for germaneness because the
law was in an army appropriations bill. Walden, 490 F.2d at 374; Doyle, supra note 53, at
15; see 7 Cong. Rec. 3845 (1878) (chronicling a the debate under the House rule for
germaneness). Although it is unlikely, another suggestion is that the failure to include the
Navy was a drafting error. PCA Hearing, supra note 13, at 22 (comments of Rep. William
16. . U.S. Dep't of Defense, Directive No. 5525.5, DoD Cooperation with Civilian Law
Enforcement Officials encl. 4, at 4-6 (Jan. 15, 1986) (extending the PCA's application to
the Navy and Marine Corps "as a matter of DoD policy") [hereinafter DoD Dir. 5525.5],
available at <http:// www.dtic.mil/adm/> (visited Jan. 1, 1996); Secretary of the Navy,
Dep't of the Navy, Instruction No. 5820.7B, Cooperation with Civilian Law Enforcement
Officials, Office of the Secretary 4 (Mar. 28, 1988) (same) [hereinafter SECNAVINST
5820.7B]. Interestingly, the Code of Federal Regulations included a section applying the
PCA to the Navy and Marines which substantially followed the DoD Directive, compare
DoD Cooperation with Civilian Law Enforcement Officials, 32 C.F.R. pt. 213 (1992) with
DoD Dir. 5525.5, supra, but the Defense Department repealed the section in 1993 because
it had "served the purpose for which [it was] intended and [is] no longer valid." 58 Fed.
Reg. 25,776 (Apr. 28, 1993) (repealing 32 C.F.R. pt. 213).
17. . 14 U.S.C. § 1 (1994); Doyle, supra note 53, at 1
18. . 14 U.S.C. § 2 (1994). As part of the drug interdiction effort, Coast Guard personnel are
detailed to Navy ships to perform their law enforcement function because the Navy cannot
exercise the powers of arrest or search and seizure. See 10 U.S.C. § 379 (1994). The
Department of Justice has taken the position that members from theother military branches
are also not limited by the PCA when detailed to the Department of Transportation,
because they are not subject to military command or charged to the military force
structure. See Memorandum from William H. Rehnquist, Asst. Att'y Gen., Office of Legal
Counsel, U.S. Dep't of Justice, to Benjamin Forman, Asst. Gen. Counsel (Int'l Affairs),
U.S. Dep't of Defense 3 (Sept. 30, 1970) (Legality of Deputizing Military Personnel
Assigned to the Department of Transportation), in PCA Hearing, supra note 13, at 562,
19. . Furman, supra note 42, at 101; Sanchez, supra note 38, at 119. However, the National
Guard is still limited by applicable state law when in state service. I
20. . Doyle, supra note 53, at 17.
21. . United States v. Jaramillo, 380 F. Supp. 1375, 1382 (1974) (excluding the Special
Operations Group of the United States Marshall Service from the definition of army under
the PCA), appeal dismissed 510 F.2d 808 (8th Cir. 1975). For a full discussion of the PCA
and its application to all the different elements of the military, see Furman, supra note 42,
at 98-103 & 99 fi
22. . See, e.g., cases cited supra note 67. The "any part" language applies the PCA to any unit
of troops, regardless of "its size or designation." Jaramillo, 380 F. Supp. at 1379.
23. . Congress acknowledged this fact during the debates regarding the enactment of the
PCA, admitting that the Act was not meant to limit a soldier as a citizen. See 7 Cong. Rec.
4245 (1878) (comments of Sen. Merrimon in response to a question of whether a soldier
could come to the defense of a fellow citizen being assaulted). Senator Merrimon stated in
If a soldier sees a man assaulting me with a view to take my life, he is not going to stand by and
see him to do it; he comes to my relief not as a soldier, but as a human being, a man with a soul in
his body, and as a citizen.
24. . See DoD Dir. 5525.5, supra note 68, encl. 4, at 4-6; SECNAVINST 5820.7B, supra
note 68, §9.b(4), at 7. The test has also been described as based upon the service
member's conduct and upon whether civilians were subjected to military power. See
Doyle, supra note 53, at 19.
25. . See Clarence I. Meeks III, Illegal Law Enforcement: Aiding Civil Authorities in
Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83, 100 (1975). It would not suffice
to allow the principal to achieve a goal through an agent that the principal is proscribed
from achieving herself. See i
26. . DoD Dir. 5525.5, supra note 68, encl. 4, at 406; SECNAVINST 5820.7B, supra note
68, § 9.b(3), at 7.
27. . Furman, supra note 42, at 102-03 & n.109 (citing a 1956 opinion of the Judge Advocate
General of the U.S. Army). But see SECNAVINST 5820.78, supra note 68, at § 9.c(2)
(extending the PCA prohibitions to the Navy's civilian employees
28. . Because the PCA has been extended to the Navy and Marine Corps by regulation, see
supra note 68 and accompanying text, the term "military" is used in this Note to refer to
the Army, Navy, Air Force, and Marines Corps.
29. . 18 U.S.C. § 1385 (1994); supra note 12 (text of the Act). The PCA also is limited to
"willful" use, see text accompanying supra note 12, but courts have not used the term to
limit the PCA's scope. Doyle, supra note 53, at 11 n.1
30. . See infra notes 84-103 and accompanying text.
31. . See Doyle, supra 53, at 11-13. Courts and commentators have read the legislative
history of the PCA to allow "incidental" benefits to civilian law enforcement. Id. at 1
32. . 392 F. Supp. 916 (D.S.D. 1975) (granting a motion in limine to exclude evidence of
activities of military personnel in a criminal prosecution for interfering with law
enforcement officers at Wounded Knee).
33. . Id. at 921-2
34. . Id. at 923. The defendant was charged with interfering with law enforcement officers in
lawful execution of their duties. Id. at 918-19. The government filed a motion in limine to
bar evidence of the loan of military equipment, of the military's presence, and of any other
military involvement at Wounded Knee. Id. at 918. The judge found that evidence of a
PCA violation would be admissible because it would relate to whether the federal officers
acted in lawful execution of their duties, but granted the motion to bar evidence of passive
involvement. Id. at 925.
35. . Ch. 314, § 601, 47 Stat. 382, 417-18 (1932) (codified as amended at 31 U.S.C. § 1535
36. . Red Feather, 392 F. Supp. at 923.
37. . 380 F. Supp. 1375, 1381 (D. Neb. 1974) (directing verdict for defendant charged with
obstructing law enforcement officers at Wounded Knee because a possible violation of the
PCA raised a reasonable doubt as to whether the officers acted in lawful performance of
their duty), appeal dismissed, 510 F.2d 808 (8th Cir. 1975
38. . Id. at 1379.
39. . Id. The list of material provided by the military included star parachute flares, M-16
ammunition, protective vests, sniper rifles, and unarmed armored personnel carriers. I
40. . See id. at 1380-81. Military observers counseled the federal authorities to substitute a
shoot-to-wound policy for their shoot-to-kill policy, encouraged negotiations, and
approved the request for armored personnel carriers with strict conditions on their use. Id.
41. . Id. at 138
42. . Id.
43. . 419 F. Supp. 186 (D.N.D. 1975) (finding that the approach of the court in Jaramillo, see
supra notes 89-94 and accompanying text, would not establish a PCA violation on the part
of federal authorities), aff'd sub nom., United States v. Red Feather, 541 F.2d 1275 (8th
Cir. 1976), cert. denied sub nom., Casper v. United States, 430 U.S. 970 (1977
44. . 541 F.2d 1275, 1278 (8th Cir. 1976) (referring with approval to the McArthur test
formulated in the district court), cert. denied sub nom., Casper v. United States, 430 U.S.
45. . See McArthur, 419 F. Supp. at 19
46. . Id.
47. . See id. at 194-9
48. . 681 F. Supp. 891 (D.D.C. 1988) (denying motion to dismiss indictment of airplane
hijacker who was transported to the United States on Naval vessels).
49. . Id. at 895. A prisoner under the exclusive control and authority of civilian law
enforcement while being transported by the military is not subjected to military regulatory
power. See i
50. . Id. at 896. A prisoner aboard a military vessel and confined by military personnel, but in
the custody of civilian law enforcement at all times, is not subjected to military
proscriptive power. See id.
51. . Id. Involvement of the military which is "indifferent, passive, and subservient" to civilian
law enforcement is not a PCA violation. See i
52. . 171 F.2d 921 (1st Cir. 1948).
53. . Id. at 936. The Army arrested the defendant in Germany after World War II and then
transported him to the United States to face charges of treason. Id. at 927. The defendant,
a U.S. citizen, was convicted of treason for his propaganda radio broadcasts on behalf of
the German government during World War II. Id. at 928-29. The Ninth Circuit followed
Chandler in dealing with the arrest of Tokyo Rose and her return to the United States by
military authorities. See Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 351
(9th Cir. 1951), cert. denied, 343 U.S. 935 (1952). The Yunis court could have also found
no PCA violation by following Chandler and D'Aquino. See Yunis, 681 F. Supp. 891
(D.D.C. 1988) (finding no violation of the PCA under the McArthur test, see supra notes
95-98 and accompanying text, where the allegedly unlawful military involvement occurred
outside the United States
54. . Huffman Interview, supra note 53.
55. . See Foreign Assistance Act of 1974, Pub. L. No. 93-559, § 30(a), 88 Stat. 1795, 1803
(codified as amended at 22 U.S.C. § 2420(a) (1994)). Under the Foreign Assistance Act,
Congress prohibited military foreign assistance monies from being spent to "provide
training or advice ... for police, prisons, or other law enforcement forces for any foreign
government or any program of internal intelligence or surveillance on behalf of any foreign
government within the United States or abroad." Id.; see also International Security
Assistance Act of 1978, Pub. L. No. 95-384, § 3, 92 Stat. 730, 730 (codified as amended
at 22 U.S.C. § 2291(c) (1994)) (barring officers and employees of the United States from
making arrests in foreign countries as part of drug control efforts); Doyle, supra note 53,
56. . 18 U.S.C. § 1385 (1994) ("except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress").
57. . The statutory language recognizing constitutional exceptions in the PCA was a
58. . 7 Cong. Rec. 4686 (1878); see U.S. Const. art. 2, §§ 2, 3.
59. . Furman, supra note 42, at 91-92; Lorence, supra note 11, at 185-9
60. . Doyle, supra note 53, at 20.
61. . See 343 U.S. 579, 644-45 (1952) (Jackson, J., concurring); PCA Hearing, supra note
13, at 41 n.39 (statement of Christopher H. Pyle, Professor, Mount Holyoke College
62. . DoD Dir. 5525.5, supra note 68, encl. 4, § A(2)(c), at 4-2. The exception permits
military action to protect federal property and functions, to prevent loss of life, and to
restore public order when local authorities cannot control a situation. Id. These exceptions
have yet to be tested. Doyle, supra note 53, at 21 n.29. The Office of Legal Counsel at the
Department of Justice bases the exception explicitly on the President's duty to faithfully
execute the laws. Memorandum from William H. Rehnquist, Asst. Att'y Gen., Office of
Legal Counsel, U.S. Dep't of Justice, to Robert E. Jordan III, Gen. Counsel, U.S. Dep't of
the Army 1-2 (May 11, 1970) (Authority to Use Troops to Protect Federal Functions,
Including the Safeguarding of Foreign Embassies in the United States) [hereinafter Federal
Functions Memorandum], in PCA Hearing, supra note 13, at 558, 559.
63. . Federal Functions Memorandum, supra note 114, at 1-
64. . Id.
65. . See Army Law Handbook, supra note 63, at 22-
66. . Others have implicitly recognized this distinction. See PCA Hearing, supra note 13, at
35-37 (comments by Christopher H. Pyle, Professor, Mount Holyoke College); Paul
Jackson Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104 Mil. L. Rev.
109 (1984). This Note makes the distinction explicit here to illustrate that both types of
exceptions have deleterious effects and should be avoided.
67. . See PCA Hearing, supra note 13, at 35-37 (comments of Christopher H. Pyle,
Professor, Mount Holyoke College
68. . See, e.g., PCA Hearing, supra note 13, at 11 (statement of Edward S.G. Dennis, Chief,
Narcotics and Dangerous Drug Sec., Crim. Div., U.S. Dep't of Justice). Congress intended
to clarify the boundaries of the PCA. Army Law Handbook, supra note 63, at 22-2.
69. . 10 U.S.C. §§ 372, 381 (1994
70. . Id. § 373(2).
71. . Id. § 37
72. . Id. § 373(1).
73. . See supra notes 95-103 and accompanying tex
74. . See 48 U.S.C. § 1418 (1994). This exception existed before the passage of the PCA.
Act of Aug. 18, 1856, ch. 164, § 5 11 Stat. 119, 120. Guano islands are islands rich in
guano deposits. See 48 U.S.C. § 1411 (1994). Guano is "a substance that is found on
some coasts or islands frequented by sea fowl, is composed chiefly of their partially
decomposed excrement, is rich in phosphates, nitrogenous matter, and other material for
plant growth, and has been used extensively as a fertilizer." Webster's Third New
International Dictionary 1007 (1986).
A great rush of claims made on guano islands occurred from 1856 to 1903: 94 claims were made
during that period, and 66 islands were recognized by the State Department. Jimmy M. Skaggs,
The Great Guano Rush: Entrepreneurs and American Overseas Expansion 200 (1994). The law
continues to have relevance because the United States still maintains possession of nine of the
recognized islands. Id. For an in-depth discussion of the rush to claim guano-rich islands, see
generally Skaggs, supra.
75. . See 25 U.S.C. § 180 (1994). This exception may have also provided authority for the
military presence at Wounded Kne
76. . See 16 U.S.C. §§ 23 (detail of troops for protection of park), 78 (detail of troops to
Sequoia and Yosemite Parks), 593 (protection of timber in Florida) (1994).
77. . See 18 U.S.C. § 1751(i) (1994
78. . See 10 U.S.C. §§ 331-333 (1994).
Other exceptions to the PCA, as listed in DoD Dir. 5525.5, supra note 68, encl. 4, § A.2(e), at
4-2 to 4-3, include:
(i) 16 U.S.C. § 1861(a) (1994) (enforcement of the Fishery Conservation and Management Act
(ii) 18 U.S.C. §§ 112, 1116 (1994) (assistance to law enforcement officers in crimes against
foreign officials, official guests of the United States, and other internationally protected persons);
(iii) 18 U.S.C. § 351 (1994) (assistance to law enforcement officers in crimes against members
(iv) 22 U.S.C. §§ 408, 461-462 (1994) (actions in support of the neutrality laws);
(v) 18 U.S.C. § 831 (1994) (assistance to law enforcement officers in crimes involving nuclear
(vi) 42 U.S.C. § 97 (1994) (execution of quarantine and certain health laws);
(vii) 43 U.S.C. § 1065 (1994) (removal of unlawful inclosures from public lands);
(viii) 48 U.S.C. §§ 1422, 1591 (1994) (support for territorial governors if civil disorder occurs);
(ix) 50 U.S.C. § 220 (1994) (actions in support of certain customs laws); and
(x) 42 U.S.C. § 1989 (1994) (execution of certain warrants relating to enforcement of specified
civil rights laws).
79. . Sanchez, supra note 38, 120 & n.1
80. . See Jerry M. Cooper, Federal Military Intervention in Domestic Disorders, in U.S.
Military Under the Constitution, supra note 48, at 120.
81. . See generally Kurt Andrew Schlichter, Comment, Locked and Loaded: Taking Aim at
the Growing Use of the American Military in Civilian Law Enforcement Operations, 26
Loy. L.A. L. Rev. 1291 (1993) (the author served as an Army National Guardsman
deployed to Los Angeles during the riots); Eric Schmitt, Elite U.S. Forces Sent in to
Perform a Rare Role, N.Y. Times, May 2, 1992, § 1, at 8. For a discussion of the
military's use in relation to civil disorder, see Cooper, supra note 13
82. . See Doyle, supra note 53, at 13-14.
83. . I
84. . See supra notes 95-103 and accompanying text.
85. . Doyle, supra note 53, at 1
86. . James B. Jacobs, Socio-Legal Foundations of Civil-Military Relations 54 (1986).
87. . Id. at 5
88. . For a thorough discussion of the use of the military in labor disputes, see Joan M.
Jensen, Army Surveillance in America, 1775-1980, at 44- 45, 139-40 (1991) and Jacobs,
supra note 138, at 51-76.
89. . See, e.g., Edmund L. Andrews, Army Has Trouble Building Beachhead in Disaster
Zone, N.Y. Times, Aug. 31, 1992, at A10; Edmund L. Andrews, Urgency Is Growing: 4
Days After Hurricane, Thousands Still Need Food and Shelter, N.Y. Times, Aug. 28,
1992, at A1; see also Stephanie Nano, Flood Area Hails Tardy Old Friend: The Sun, S.F.
Examiner, July 19, 1993, at A1 (mentioning President Clinton's offer of federal troops to
help with cleanup after floods in the Midwest); Jeffrey Schmalz, Troops Find Looting and
Devastation on St. Croix, N.Y. Times, Sept. 22, 1989, at A22 (reporting the use of federal
troops on St. Croix after Hurricane Hugo
90. . Huffman Interview, supra note 53.