Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law

摘要

The Posse Comitatus Act outlaws willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an Act of Congress (the law also is applicable to the Navy and Marines). History supplies the grist for an argument that the Constitution prohibits military involvement in civilian affairs subject to only limited alterations by Congress or the President, but the courts do not appear to have ever accepted the argument unless violation of more explicit constitutional command could also be shown. The provision for express constitutional authorization when in fact the Constitution contains no such express authorizations has been explained alternatively as a meaningless political face-saving device or as an unartful reference to the President's constitutional powers. The express statutory exceptions include the legislation that allows the President to use military force to suppress insurrection, 10 U.S.C. 331-335, and sections that permit the Department of Defense to provide federal, state and local police with information and equipment, 10 U.S.C. 371-381. Existing case law indicates that 'execution of the law' in violation of the Posse Comitatus Act occurs (a) when the armed forces perform tasks that are assigned not to them but to an organ of civil government, or (b) when the armed forces perform tasks assigned to them solely for purposes of civilian government. Questions arise most often in the context of assistance to civilian police. At least in this context, the courts have held that, absent a recognized exception, the Posse Comitatus Act is violated when civilian law enforcement officials make 'direct active use' of military investigators; or when the use of the military 'pervades the activities' of the civilian officials; or when the military is used so as to subject 'citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.'.