State/Federal Disaster Relief - use of US troops

Ronald Nelson rnelson at usouthal.edu
Fri Sep 9 04:17:07 PDT 2005


One source of this red tape stems from the Hayes-Tilden/End of Reconstruction days and the Posse Comitatus Act - prohibiting federal troops from engaging in law enforcement activities.   The current understanding of the law, from the DOD, perspective is set out on the U.S. Nortern Command's website:

http://www.northcom.mil/index.cfm?fuseaction=news.factsheets&factsheet=5#pca 


Posse Comitatus Act

Section 1385 of Title 18, United States Code (USC), states:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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."

The PCA does not apply to the U.S. Coast Guard in peacetime or to the National Guard in Title 32 or State Active Duty status. The substantive prohibitions of the Posse Comitatus Act (PCA) were extended to all the services with the enactment of Title 10 USC, Section 375. As required by Title 10 USC, Section 375 the secretary of defense issued Department of Defense Directive 5525.5, which precludes members of the Army, Navy, Air Force, or Marine Corps from direct participation in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

The PCA generally prohibits U.S. military personnel from direct participation in law enforcement activities. Some of those law enforcement activities would include interdicting vehicles, vessels, and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities. Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military's role in domestic affairs.

The United States Congress has enacted a number of exceptions to the PCA that allow the military, in certain situations, to assist civilian law enforcement agencies in enforcing the laws of the U.S. The most common example is counterdrug assistance (Title 10 USC, Sections 371-381). Other examples include:

The Insurrection Act (Title 10 USC, Sections 331-335). This act allows the president to use U.S. military personnel at the request of a state legislature or governor to suppress insurrections. It also allows the president to use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. 
Assistance in the case of crimes involving nuclear materials (Title 18 USC, Section 831). This statute permits DoD personnel to assist the Justice Department in enforcing prohibitions regarding nuclear materials, when the attorney general and the secretary of defense jointly determine that an "emergency situation" exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. 
Emergency situations involving chemical or biological weapons of mass destruction (Title 10 USC, Section 382). When the attorney general and the secretary of defense jointly determine that an "emergency situation" exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. DoD personnel may assist the Justice Department in enforcing prohibitions regarding biological or chemical weapons of mass destruction. 
Military support to civilian law enforcement is carried out in strict compliance with the Constitution and U.S. laws and under the direction of the president and secretary of defense. 

Ron Nelson, Asst. Professor
Univ of South Alabama


Ronald L. Nelson, J.D., Ph.D.
Assistant Professor and Pre-Law Advisor
Department of Political Science &
Criminal Justice
HUMB 226
University of South Alabama
Mobile, Alabama 36688-0002
251 460 6725 rnelson at usouthal.edu
>>> "Eric Freedman" <Eric.M.Freedman at hofstra.edu> 09/09/05 3:22 AM >>>
http://www.nytimes.com/2005/09/09/national/nationalspecial/09military.html?pagewanted=2&ei=5094&en=905e7a862e1c0023&hp&ex=1126324800&partner=homepage

-Could someone on list explain the legal situation.
On the one hand, I certainly don't want the U.S. military conducting domestic law enforcement in any expansive way.
On the other hand, I also don't want available and needed military assets to be sitting useless at Fort Bragg because they are ensnarled in red tape.
Best. -E.





             ***********
      Eric M. Freedman
Maurice A. Deane Distinguished Professor
 of Constitutional Law
      Hofstra Law School
      Hempstead, NY  11550
      LAWEMF at Hofstra.edu
      Tel. 516-463-5167
      Fax 516-463-5129
  Home Office:
   Tel. 212-665-2713
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            ***********





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