EFFECT OF POSSE COMITATUS ACT ON PROPOSED DETAIL OF CIVILIAN EMPLOYEE TO THE NATIONAL INFRASTRUCTURE PROTECTION CENTER
EFFECT OF POSSE COMITATUS ACT ON PROPOSED DETAIL OFCIVILIAN EMPLOYEE TO THE NATIONAL INFRASTRUCTURE
PROTECTION CENTER
The proposed detail of a civilian employee of Department of Defense to the National Infrastructure Protection Center, a component of the Federal Bureau of Investigation, is permissible under the Posse Comitatus Act.
May 26, 1998
MEMORANDUM FOR THE GENERAL COUNSEL
FEDERAL BUREAU OF INVESTIGATION
This memorandum responds to your request that the Office of Legal Counsel consider the effect of the Posse Comitatus Act ("PCA"), 18 U.S.C. § 1385 (1994), on a proposed staffing and organizational arrangement whereby a civilian employee of the Department of Defense will be detailed to the National Infrastructure Protection Center ("NIPC") to serve in that office as a deputy chief. We conclude that the proposed arrangement is permissible under the PCA.
We draw our understanding of the proposed staffing and organizational arrangement of the NIPC from several discussions that we have had with your office and the Department of Defense and two memoranda that you have sent to us on this matter. (1) The NIPC is a component within the Federal Bureau of Investigation ("FBI") that, we understand, will coordinate and integrate the policy and planning of the United States government in connection with the security of the Nation's computer and information technology infrastructure. In addition, the NIPC will exercise supervision over certain FBI criminal investigations relating to matters of infrastructure security.
Under the organizational plan that you have described to us, the NIPC will be headed by a chief, who will be an official of the FBI. In addition, there will be two deputy chiefs. One deputy chief will be an FBI employee, and this FBI deputy will have supervisory authority over all criminal investigatory matters involving the NIPC. The second deputy chief will be detailed to the FBI from the Department of Defense pursuant to a memorandum of understanding ("MOU") between the two agencies. (2) The MOU will provide that the Defense deputy will have no supervisory authority over criminal investigatory matters. The Defense deputy will supervise other NIPC matters relating, for example, to policy and coordination. We further understand that your staffing arrangements call for the detailee from Defense to be a civilian employee of that department. Finally, we understand that in the event of a vacancy for any reason in the position of chief of NIPC, the FBI deputy chief will be first in the order of succession and that under no circumstances will the Defense deputy fill such a vacancy.
Our review of this proposal begins with the text of the PCA. The PCA prohibits the use of "any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws." (3) 18 U.S.C. § 1385. The PCA does not, by its terms, apply to Navy or Marine Corps personnel. Hayes v. Hawes, 921 F.2d 100, 102-03 (7th Cir. 1990); Electronic Surveillance Opinion at 2 n.1.
The Department of Defense has implemented the restrictions of the PCA and related statutes through departmental Directive 5525.5, "DoD Cooperation with Civilian Law Enforcement Officials" (Jan. 15, 1986). The Directive applies the restrictions of the PCA to the Navy and Marine Corps, as well as the Army and Air Force. Directive 5525.5(B). Unless we indicate otherwise by use of a more specific reference or citation, we use the term "PCA" to refer to the original statute itself, the related statutes, and the implementing Directive of the Department of Defense.
Relevant caselaw and opinions of this Office reflect the view that the PCA is intended to prohibit military personnel from directly coercing, threatening to coerce, or otherwise regulating civilians in the execution of criminal or civil laws. See, e.g., Allred, 867 F.2d at 871; Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir. 1985); Electronic Surveillance Opinion at 7; Letter for Deanne Siemer, General Counsel, Department of Defense, from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 2 (Mar. 24, 1978) (regarding use of military personnel to assist Department of Justice in fraud investigations against contractors for Department of Defense) ("Fraud Investigations Opinion").
In applying this general prohibition, courts and this Office have generally focused on three factors. First, the PCA is violated where civilian law enforcement authorities make "direct active use" of military personnel to execute the laws. United States v. Red Feather, 392 F. Supp. 916, 921 (D.S.D. 1975); see Yunis, 681 F. Supp. at 892; Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies, 15 Op. O.L.C. 36, 45-46 (1991); Fraud Investigations Opinion at 11, 15.
Second, the PCA may be violated when the use of military personnel pervades the activities of civilian law enforcement. Hayes, 921 F.2d at 104; United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988); United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986); United States v. Hartley, 678 F.2d 961, 978 (11th Cir. 1982); Yunis, 681 F. Supp. at 892; United States v. Jaramillo, 380 F. Supp. 1375 (D. Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); Electronic Surveillance Opinion at 9 (citing Yunis).
Third, the PCA prohibits military authorities from subjecting civilians to military regulations, proscriptions, or compulsions. United States v. McArthur, 419 F. Supp. 186 (D.N.D.1975), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976); Yunis, 681 F. Supp. at 892; Infrared Radars, 15 Op. O.L.C. at 45-46; see also Bacon, 851 F.2d at 1313 (citizenry may not be subjected to the "regulatory exercise of military power"); Bissonette, 776 F.2d at 1390 (military may not actually regulate, forbid or compel some conduct by civilians).
Military personnel may assist in civilian law enforcement where the participation does not run afoul of the factors identified above. See, e.g., United States v. Stouder, 724 F. Supp. 951, 953 (M.D. Ga. 1989) (Air Force personnel may assist in conduct of FBI investigation); Electronic Surveillance Opinion at 9 (military personnel may monitor electronic surveillance transmissions for use in civilian law enforcement); Fraud Investigations Opinion at 13-15 (military personnel may provide advice to FBI investigation and share relevant information). Thus, this Office has previously concluded that the PCA, although prohibiting direct interaction between the military and civilian personnel in most circumstances, permits a broad degree of cooperation between the military and civilian law enforcement. Infrared Radars, 15 Op. O.L.C. at 46 (citing legislative history of 10 U.S.C. §§ 371-382). More specifically, the PCA does not bar "military expert advice or technical assistance to civilian authorities." Fraud Investigations Opinion at 11. Such expert advice and technical assistance does not "create the danger of military compulsion of civilians," which Congress sought to prohibit through the PCA. Id.; see also Bissonette, 776 F.2d at 1390 (distinguishing between military assistance and support for civilian law enforcement from active participation that would constitute military compulsion of civilians).
In addition, where the military has "a legitimate interest" for its own proceedings or matters involving the "internal administration [of the military] or the performance of its proper functions," the military may participate, to the extent of its interest, in civil law enforcement. (4) Fraud Investigations Opinion at 12, 14; see, e.g., Bacon, 851 F.2d at 1313 (military may aid civilian law enforcement investigation into illegal drug sales to "both civilians and army personnel"); Fraud Investigations Opinion at 13-15 (military may assist and participate in investigation into fraud by military contractors). Nothing in the PCA suggests that Congress intended to circumscribe military participation in legitimately military matters. Id. at 12-13.
II.
The staffing and organizational arrangements that you have proposed are permissible under the PCA because a civilian employee of the Department of Defense would not fall within the statutory or regulatory scope of the PCA. (5) By its plain terms, the PCA applies only to personnel who are "part" of the Army or Air Force. 18 U.S.C. § 1385 (unlawful to use "any part of the Army or Air Force as a posse comitatus to execute the law"); see also Bacon, 851 F.2d at 1313 (applying PCA to "military personnel"); Hartley, 796 F.2d at 114 (same); Bissonette, 776 F.2d at 1389 (applying PCA to "Army or Air Force personnel"); Yunis, 681 F. Supp. at 892 (applying PCA to "military personnel"); see also Transportation Opinion at 2 (military personnel detailed to civilian agency are not "part" of the military and not subject to PCA); Assignment of Army Lawyers, 10 Op. O.L.C. at 121 (PCA does not apply to military personnel functioning in civilian capacity under civilian command); cf. Memorandum for Jamie Gorelick, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military to Enforce Immigration Laws at 9-10 (May 10, 1994) (distinguishing between "employees of the United States" and "members of the Armed Forces"). Similarly, the Defense Directive, extending the statutory restrictions to the Navy and Marine Corps, excludes from its scope civilian employees of the Department. Directive 5525-5(B)(3) ("restrictions do not apply to a "civilian employee of the Department of Defense"). (6) This Office has distinguished between civilian and military personnel by applying the PCA to "persons subject to military discipline." Fraud Investigations Opinion at 11.
In addition, the bifurcated structure of the NIPC and the particular duties to be assigned under the proposed arrangement appear to make it unlikely that the Defense deputy will "execute the laws" as that term is understood in the context of the PCA. Because the status of the Defense deputy as a civilian employee provides an independent basis for concluding that the proposed arrangement is permissible under the PCA, we do not resolve whether the structure of the NIPC and the duties of the Defense deputy provide an alternative basis for concluding that the proposed arrangement satisfies the PCA. Nonetheless, several considerations suggest that the proposed Defense deputy position, as you have described it, would be consistent with the PCA, independent of the civilian status of the occupant. (7)
The NIPC is structured so that the duties of the Defense deputy are separated from the oversight, control and conduct of NIPC criminal investigations. Thus, the actions that the Defense deputy will take appear unlikely to fall within the prohibitions of the PCA. The Defense deputy will have no direct or active involvement in criminal investigations. Moreover, the separation of the Defense deputy from criminal investigations diminishes the possibility that part of the military would "pervade" the civilian investigations effort. Finally, given the bifurcated structure, it seems unlikely that the Defense deputy would be in a position to engage in civilian law enforcement activities that would subject the citizenry to military power. (8)
The duties of the Defense deputy appear to correspond with those responsibilities that this Office previously has found to be consistent with the requirements of the PCA. As we understand it from your descriptions, the role of the Defense deputy in connection with the development of policy and planning in the NIPC appears consistent with the provision of expert advice to civilian law enforcement authorities. See Fraud Investigations Opinion at 12. Moreover, the planning and coordination function of the Defense deputy appears to fit squarely with the earlier observation of this Office that the PCA permits extensive cooperation between military and civilian officials without direct military participation in law enforcement. Infrared Radars, 15 Op. O.L.C. at 46.
In addition, we understand that the military has a significant interest in the maintenance of infrastructure security in connection with the operation of the Nation's defense systems and the prevention of hostile acts against the United States. Thus, the Defense deputy's involvement in the NIPC will advance legitimate military ends, thus satisfying one of the considerations that we have looked to in determining the applicability of the PCA. See, e.g., Fraud Investigations Opinion at 16 (concluding that the PCA permits military assistance to civilian law enforcement regarding matters related to the Department of Defense).
III.
Because the proposed deputy chief of the NIPC to be detailed to the FBI from the Department of Defense will be a civilian employee, the proposed arrangement is permissible under the PCA. In addition, the separation of the Defense deputy from the oversight and conduct of criminal investigations, although not a basis for our conclusion in this opinion, also appears to be consistent with the requirements of the PCA.
WILLIAM MICHAEL TREANOR
Deputy Assistant Attorney General
Office of Legal Counsel
1. Memorandum for Beth Nolan, Deputy Assistant Attorney General, Office of Legal Counsel, from Larry R. Parkinson, General Counsel, Federal Bureau of Investigation, Re: Request for Opinion on Certain Posse Comitatus Act Issues (Mar. 25, 1998), and Memorandum for Beth Nolan, Deputy Assistant Attorney General, Office of Legal Counsel, from Larry R. Parkinson, General Counsel, Federal Bureau of Investigation, Re: Supplement to Posse Comitatus Act Opinion Request (Apr. 23, 1998).
2. By virtue of being a detailee to the FBI, the deputy chief from the Department of Defense will be, at least in some regards, an employee of the FBI. See, infra, note 5. For clarity, we refer to him here as the "Defense deputy."
3. The phrase "posse comitatus" translates from Latin as the "power of the county" and was used at common law to refer to local citizens over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder. United States v. Yunis, 681 F. Supp. 891 n. 1 (D.D.C. 1988) (citations omitted), aff'd, 924 F.2d 1086 (D.C. Cir. 1991). The PCA was adopted in 1878 in response to objections from southern States to the participation of the United States Army in civilian law enforcement during the Reconstruction period. United States v. Allred, 867 F.2d 856, 870 (5th Cir. 1989); Memorandum for Jo Ann Harris, Assistant Attorney General, Criminal Division, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Use of Military Personnel for Monitoring Electronic Surveillance at 7 (Apr. 5, 1994) ("Electronic Surveillance Opinion").
The PCA has been supplemented by other statutes, 10 U.S.C. §§ 371-382, which authorize military assistance to civilian law enforcement agencies in specific types of matters. Section 375 of title 10 requires the Secretary of Defense to prescribe "such regulations as may be necessary" to ensure that such assistance does not include certain direct participation by military personnel in civilian law enforcement matters, such as conducting searches and seizures or making arrests, id. at § 375, as would be prohibited by the PCA itself. See id. at § 378.
4. Conversely, the PCA prohibits military personnel in law enforcement matters "that were of concern only to the civil authorities." Fraud Investigations Opinion at 14. Military participation in such matters is impermissible because it would run afoul of the first factor in the PCA analysis, the direct active use of the military in civilian law enforcement. See id.
5. Earlier opinions of this Office concluded that military personnel who are detailed to a civilian agency are not covered by the PCA because they are employees of the civilian agency for the duration of their detail, "subject to the exclusive orders" of the head of the civilian agency, and therefore "are not 'any part'" of the military for purposes of the PCA. Memorandum for Benjamin Forman, Assistant General Counsel, Department of Defense, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Legality of deputizing military personnel assigned to the Department of Transportation (Sept. 30, 1970) ("Transportation Opinion") (military personnel detailed to the Department of Transportation to serve as security guards on civilian aircraft); see Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 121 (1986) (PCA "would not be implicated if [Army] lawyers were detailed on a full-time basis in an entirely civilian capacity under the supervision of civilian personnel").
The proposed duties of the Defense deputy, unlike those addressed in the opinions cited above, will involve supervisory authority and the formulation of policy. As a result, it is not settled whether the rule reflected in these earlier opinions - that military personnel detailed to a civilian agency are not covered by the PCA -- would apply to a military officer detailed to the NIPC as a deputy chief. We do not rely, however, upon the status of the Defense deputy as a detailee for our conclusion in this opinion because we find that the fact that the Defense deputy will be a civilian employee of the Department of Defense makes the proposed arrangement permissible under the PCA. Thus, we have not resolved -- and we do not address here -- whether or not the PCA would permit a detailed military officer to serve as an NIPC deputy chief.
6. The exception for civilian employees does not extend to civilian employees who are "under the direct command and control of a military officer." Directive 5525-5(B)(3). We understand that the civilian employee to be detailed in connection with the NIPC deputy chief position will not be an individual from a component within the Department of Defense that is headed by a military officer. Thus, the Defense deputy will be a civilian employee within the meaning of the Directive.
7. Because our assessment in this regard is not determinative, in the event that the Defense deputy position were filled by a member of the military, and thus someone potentially subject to the prohibitions of the PCA while at the NIPC, see, supra, note 5, we would require a detailed examination of the relevant structure and duties to determine whether they fully satisfy the requirements of the PCA.
8. Because the proposed bifurcated structure appears to remove the Defense deputy from criminal investigative matters so completely, we have no occasion here to address the extent to which the PCA might permit the participation of the Defense deputy in the law enforcement duties of the NIPC.
I've been seeking discussion of the PCA 18 USC 1385 and its ramifications. Here's a dribble for review and comment.
One of the ways the military has been getting around PCA is by recruiting New Zealander nationals to do their in-country dirty work for them. They can easily pass for Americans, but they are not restricted by the PCA.
Civil Disturbance Operations
THE POSSE COMITATUS ACT | DOD COUNTERDRUG SUPPORT
CIVIL DISTURBANCE OPERATIONS | COMBATTING TERRORISM
Return to Freedom Papers
CIVIL DISTURBANCE OPERATIONS
(MILITARY ASSISTANCE FOR CIVIL DISTURBANCES-MACDIS)
REFERENCES:
A. 10 USC '1385. (Posse Comitatus Act).
B. 10 USC '331-334. (Civil Disturbance Statutes).
C. DOD Directive 3025.12, Military Assistance for Civil Disturbances (MACDIS), 4 February 1994.
D. AR 500-50, Civil Disturbances, 21 April 1972
E. FM 19-15, Civil Disturbances, 25 November 1985.
F. FM 100-19, Domestic Support Operations, July 1993.
G. DOD Civil Disturbance Plan ("Garden Plot"), February 1991.
H. MCO 3000.8B, Employment of Marine Corps Resources in Civil Disturbances, 30 Jul 79.
I. OPNAVINST 3440.16B, DON Civil Emergency Ass't Program, 4 Sep 91.
J. DOD Directive 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, 21 February 1986.
K. AR 500-51, Support to Civilian Law Enforcement, 1 August 1983.
L. MCO 3440.7, Marine Corps Ass't to Civil Authorities, 1 Jan 92.
M. SECNAVINST 5820.7B, Cooperation with Civilian Law Enforcement Officials, 28 March 1988.
N. AFI 10-801, Air Force Assistance to Civilian Law Enforcement Agencies, 15 April 1994.
BACKGROUND.
Definition.
A. CIVIL DISTURBANCES.
Group acts of violence and disorders prejudicial to public law and order in the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, U.S. possessions and territories, or any political subdivision thereof. The term "civil disturbance" includes all domestic conditions requiring the use of Federal Armed Forces under this Directive (DOD Dir 3025.12).
B. POLICY. Although the President has constitutional (Art. II, '2, Art. IV, '4) and statutory authority (10 USC ''331-334) to use the Armed Forces to suppress insurrections and domestic violence, the primary responsibility for protecting life and property and maintaining law and order in the civilian community is vested in the State and local governments. Military resources may be employed in support of civilian law enforcement operations in the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. territories and possessions. Any employment of military forces in support of law enforcement operations shall maintain the primacy of civilian authority (DOD Directive 3025.12).
C. RESTRICTIONS ON THE USE OF THE ARMED FORCES.
1. The Posse Comitatus Act. 10 USC '1385.
2. Of the PCA exceptions previously mentioned, the Civil Disturbance Statutes (10 USC '331 -334) obviously are critical in the area of MACDIS. They are as follows:
a. Request from a state--10 USC '331.
b. Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
c. Enforcement of Federal law--10 USC '332.
d. Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
e. Protection of civil rights--10 USC '333.
f. The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it--
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
g. Prerequisites for Use of Federal Troops Under 10 USC ''331-333.
h. Personal decision by President. AR 500-50, par. 2-3. See Executive Order 12804 (1 May 1992) in connection with Los Angeles riots.
i. Proclamation to disperse. 10 USC '334. See Proclamation 6427 (1 May 1992) in connection with Los Angeles riots.
3. Outside this statutory framework military forces may not be used for civil disturbances except in emergency circumstances which may arise in the following two situations (DOD Directive 3025.12): a. When the use of military forces is necessary to prevent loss of life or wanton destruction of property, or to restore governmental functioning and public order. That "emergency authority" applies when sudden and unexpected civil disturbances (including civil disturbances incident to earthquake, fire, flood, or other such calamity endangering life) occur, if duly constituted local authorities are unable to control the situation and circumstances preclude obtaining prior authorization by the President.
b. When duly constituted State or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions, Federal action (including the use of military forces) is authorized, as necessary, to protect the Federal property or functions.
Note: Even in these circumstances, responsible DOD officials and commander will use all available means to seek Presidential authorizations through the chain of command while applying their emergency authority under this directive (DOD Directive 3025.12). See also AR 500-50, par. 2-4, which highlights the fact that, given ready access to rapid communications, it is unlikely that such action would be justified without prior approval of DA.
D. CHAIN OF COMMAND/RESPONSIBILITIES (DOD Directive 3025.12).
1. Department of Justice - lead federal agency. Attorney General (AG) is responsible for managing federal response. His on-scene representative is called the SCRAG (senior civilian representative of the AG).
2. Department of Defense - coordinates Federal military response.
3. Department of the Army - executive agent of DOD via Secretary of the Army (SA). Director of Military Support (DOMS), an Army general officer whose office is located in the Pentagon, is SA's action agent for MACDIS. Serves as the DOD point of contact for MACDIS.
4. Combatant Commanders (USACOM, USPACOM, USSOCOM) - support role. Responsible for planning and executing MACDIS in their AOR under guidance issued by DOMS, following coordination with Chairman, Joint Chiefs of Staff (CJCS). Will designate JTF Commander who exercises operational control of all federal forces assigned. AORs are as follows: USACOM: 48 states, District of Columbia, Puerto Rico, Virgin Islands; USPACOM: Alaska, Hawaii, and US possessions and territories in the Pacific; USSOCOM: terrorist incidents.
5. COMFORSCOM - CINCUSACOM has delegated lead operational authority (LOA) to COMFORSCOM to conduct MACDIS in the ACOM AOR. This permits COMFORSCOM to have operational control (OPCON) of USACOM forces (Army, Air Force, and Navy) assigned to a MACDIS mission. COMFORSCOM will actually nominate a commander to CINCUSACOM as a candidate for JTF Commander. USACOM Instruction 3440.2 (3 November 1993).
6. Command Authority over Troops - (DOD Directive 3025.12). All military forces employed in MACDIS operations shall remain under military control at all times. See also AR 500-50, par. 2-6.
E. ROLE OF THE NATIONAL GUARD (DOD Directive 3025.12).
1. Army and Air National Guard Forces have primary responsibility for providing military assistance to state and local governments. They will normally serve in a state active duty status (title 32) under state command.
2. To ensure unified command and control, National Guard Forces may be federalized (title 10 status), if the President deems it necessary in extreme circumstances. The California National Guard (40th ID) was federalized during the 1992 Los Angeles civil disturbance.
Note: Domestic Terrorist Incidents are a form of civil disturbance. DOD Directive 3025.12.
F. OPERATIONAL ISSUES.
1. Use of Force.
Seminal Rules of Engagement (ROE) reference is DOD Civil Disturbance Plan ("Garden Plot"). MACDIS operations can involve various forces, e.g. National Guard, Army, and Marines, not to mention local, state, and federal civilian law enforcement agencies. JTF Los Angeles highlighted the need to have military forces employ a unified and consistent set of ROE. Garden Plot ROE, subject to CJCS/CINC modification, provide such consistency. Some of the fundamental concepts in those ROE follow:
a. Minimum force must be used at all times when responding to civil disturbances.
b. Warning shots are not permitted because of the danger to innocent persons and the potential to create the impression on the part of citizens and/or fellow law enforcement personnel that sniping is widespread.
c. Deadly force may be used only if:
(1) Lesser means have been exhausted or are unavailable; and
(2) Risk of harm to innocent persons is not significantly increased; and
(3) Purpose of use is one of the following:
--In self-defense to avoid death or serious bodily harm. --To prevent crime involving serious risk of death or serious bodily harm.
--To prevent destruction of vital public health/safety/ property. --To prevent escape of person who is serious threat to person or property.
d. ROE should also address "arming orders." These are discussed in Annex C, appendix 8 of Garden Plot. It is important to ensure the consistent application of these orders by all troops in the JTF, both National Guard and active duty forces. See JTF LA ROE below for an example of arming orders.
e. Judge advocates deployed to JTF Los Angeles stressed the need to disseminate ROE early (although this may be difficult given the time constraints) and to provide realistic training to soldiers, e.g. using vignettes to illustrate Garden Plot guidance.
f. For Civil Disturbance ROE see Appendix C, appendices 1 and 8 of the Garden Plot, which contain detailed guidance on ROE and various tactics and techniques for civil disturbances, e.g. use of riot control formations, pressurized water, sniper-fire, shotguns, etc. See also JTF LA ROE below.
2. Restrictions on Activities.
Recognize that the Civil Disturbance Statutes (10 USC ''331-334) are an exception to the normal restrictions of the Posse Comitatus Act. Consequently, during MACDIS operations forces may provide direct law enforcement support, such as security to civilian facilities and conduct roving patrols. However, the overarching policy of providing support to civilian officials should always be kept in mind. Annex C, appendix 8 to the DOD Civil Disturbance Plan (Garden Plot) states this point clearly:
The commitment of federal troops must be viewed as a drastic last resort. Their role, therefore, should never be greater than is absolutely necessary under the circumstances. This does not mean, however, that the number of troops employed should be minimized. To the contrary, the degree of force required to control a disturbance is frequently inversely proportionate to the number of available troops. ... Every effort should be made to avoid appearing as an alien, invading force. The JTF should project the image of a restrained and well-disciplined force whose sole purpose is to assist the populace by helping to restore law and order with minimal harm to people and property and with due respect for law abiding citizens.
<Consequently, supporting civilian law enforcement, rather than taking an aggressive law enforcement posture is encouraged. This policy is born out in the guidance in Garden Plot, discussed below, regarding detention of civilian personnel and searches of private property. Consistent with this policy the JTF Los Angeles commander generally avoided deploying forces with civilian law enforcement personnel, preferring the use of all military roving patrols, which is consistent with prudent command and control tactics and with the overall support policy.
3. Loan/Lease of Military Equipment to Civilian Law Enforcement.
Civilian law enforcement officials often request the loan of military equipment during MACDIS operations. In light of the DOD goal to minimize the military presence in MACDIS operations, this practice is viewed as an effective means of accomplishing that goal. The details of providing this support to civilian authorities is found in Annex K, Garden Plot and in AR 700-131. Some general principles, derived from these publications follows:
Military equipment is loaned to other federal agencies (pursuant to The Economy Act, 31 USC '1535), but is leased to non-federal agencies (pursuant to The Leasing Statute, 10 USC '2667). The distinction is important because while both transactions require a written agreement (forms are located in the above cited publications), the lease transaction also requires the requester to post a surety bond and to agree to pay rent for the equipment.
Approval authority is the other key issue regarding the loan/lease of military equipment. Equipment is broken down into three groups, the approval authority varies with each group.
Group One: Personnel, arms. ammunition, combat/tactical vehicles, vessels, and aircraft. Approval authority is SA (DOMS). Group Two: Riot control agents, concertina wire, and other like military equipment to be employed in MACDIS operations not included in group one. Approval authority is SA (DOMS), CINC, or JTF Commander.
Group Three: Firefighting resources, protective equipment (masks, helmets, body armor), and other equipment not included in group one or two. Approval authority is down to the installation commander level.
Limited authority exists, in emergency circumstances where normal communications are not possible, to permit local approval of loans or leases. AR 700-131, par. 2-1(h). In the vast majority of cases, however, questions which may arise regarding these transactions, e.g. what group does a requested item fall into?, should be referred to DOMS for resolution. DOMS telephone number is 703-697-4331.
4. Exercise of Authority over Civilians.
Custody and Detention: Annex C, appendices 1 and 8 of Garden Plot states the general policy that civilian authorities should take civilians into custody. However, military personnel do have the authority to detain or take into custody rioters, looters, or others committing offenses, when necessary or in the absence of civilian police.
Searches: Annex C, Appendices 1 and 8 of Garden Plot permit searches of individuals and private property, without a warrant, in limited circumstances, e.g. a reasonable belief that an individual is armed or presents an immediate risk of harm to JTF personnel or others. Generally, however, searches should be conducted by civilian law enforcement because of their greater familiarity with search and warrant procedures.
LOS ANGELES CIVIL DISTURBANCE RULES OF ENGAGEMENT (ROE) (1992)
JOINT TASK FORCE, L.A.
(AS OF 020100 MAY 1992)
A. EVERY SERVICEMAN HAS THE RIGHT UNDER LAW TO USE REASONABLE AND NECESSARY FORCE TO DEFEND HIMSELF AGAINST VIOLENT AND DANGEROUS PERSONAL ATTACK. THE LIMITATIONS DESCRIBED BELOW ARE NOT INTENDED TO INFRINGE THIS RIGHT, BUT TO PREVENT THE INDISCRIMINATE USE OF FORCE.
B. FORCE WILL NEVER BE USED UNLESS NECESSARY, AND THEN ONLY THE MINIMUM FORCE NECESSARY WILL BE USED.
(1) USE NON-DEADLY FORCE TO:
(A) CONTROL THE DISTURBANCE.
(B) PREVENT CRIMES.
(C) APPREHEND OR DETAIN PERSONS WHO HAVE COMMITTED CRIMES.
(2) USE DEADLY FORCE ONLY WHEN:
(A) LESSER MEANS OF FORCE EXHAUSTED OR UNAVAILABLE; AND
(B)RISK OF DEATH OR SERIOUS BODILY HARM TO INNOCENT PERSONS IS NOT SIGNIFICANTLY INCREASED BY THE USE; AND
(C) PURPOSE OF USE
1 -SELF-DEFENSE TO AVOID DEATH OR SERIOUS BODILY HARM; 2 -PREVENTION OF CRIME INVOLVING DEATH OR SERIOUS BODILY HARM;
3 -PREVENTION OF DESTRUCTION OF PUBLIC UTILITIES WHICH HAVE BEEN DETERMINED VITAL BY THE TF COMMANDER.
4 -DETENTION OR PREVENTION OF ESCAPE OF PERSONS WHO PRESENT A CLEAR THREAT OF LOSS OF LIFE.
(3) WHEN POSSIBLE, THE USE OF DEADLY FORCE SHOULD BE PRECEDED BY A CLEAR WARNING THAT SUCH FORCE IS CONTEMPLATED OR IMMINENT.
(4) WARNING SHOTS WILL NOT BE USED.
(5) WHEN FIRING, SHOTS WILL BE AIMED TO WOUND, IF POSSIBLE, RATHER THAN KILL.
(6) WEAPONS WILL NOT BE FIRED ON AUTOMATIC.
(7) WHEN POSSIBLE, LET CIVILIAN POLICE ARREST LAWBREAKERS.
(8) ALLOW PROPERLY IDENTIFIED NEWS REPORTERS FREEDOM OF MOVEMENT, SO LONG AS THEY DO NOT INTERFERE WITH YOUR MISSION.
(9) DO NOT TALK ABOUT THIS OPERATION OR PASS ON INFORMATION OR RUMORS ABOUT IT TO UNAUTHORIZED PERSONS; REFER THEM TO YOUR COMMANDER.
(10) JTF COMMANDER WITHHOLDS AUTHORITY FOR USE OF RIOT CONTROL AGENTS AND SNIPER TEAMS.
C. ARMING ORDERS
| ORDER |
RIFLE |
SCABBARD |
BAYONET |
PISTOL |
BATON |
MAG/CHAMBER |
CONTROL |
| AO-1 |
SLING |
ON BELT |
SCABBARD |
HOLSTER |
BELT |
IN POUCH/EMPTY |
OIC/NCOIC |
| AO-2 |
PORT |
ON BELT |
SCABBARD |
HOLSTER |
BELT |
IN POUCH/EMPTY |
OIC/NCOIC |
| AO-3 |
SLING |
ON BELT |
FIXED |
HOLSTER |
HAND |
IN POUCH/EMPTY |
OIC/NCOIC |
| AO-4 |
PORT |
ON BELT |
FIXED |
HOLSTER |
HAND |
IN POUCH/EMPTY |
OIC/NCOIC |
| AO-5 |
PORT |
ON BELT |
FIXED |
HOLSTER |
HAND |
IN WEAPON/EMPTY |
OIC/NCOIC |
| AO-6 |
PORT |
ON BELT |
FIXED |
IN HAND |
BELT |
IN WEAPON/LOCKED/LOADED |
OIC |
[NOTE: the above ROE utilized by JTF LA were adapted from the generic ROE contained in the Army's GARDEN PLOT CIVIL DISTURBANCE PLAN, and modified slightly based upon input from Dep't of the Army (7th ID), FORSCOM, and the JCS Staff. See pg. 30, September 1992,
The Army Lawyer]
THE POSSE COMITATUS ACT | DOD COUNTERDRUG SUPPORT
CIVIL DISTURBANCE OPERATIONS | COMBATTING TERRORISM
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Check the date. This was written by DoJ lawyers under Clinton/Reno. The same DoJ that argued in federal court that the Second Amendment did not guarantee an individual right to keep and bear arms.