Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau

• Court: Department of Justice Office of Legal Counsel
• Decided: July 3, 1989
• Status: Published

Opinion

Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau

The assistance to the United States National Central Bureau by military agencies that is per­ mitted by the Posse Comitatus Act is not limited to investigations into violations of the Uniform Code of Military Justice. Additional situations under which assistance is per­ mitted is discussed in the memorandum.

July 3, 1989

M e m o r a n d u m O p in io n f o r t h e C h ie f I n t e r p o l - U n it e d S t a t e s N a t io n a l C e n t r a l B u r e a u

This responds to your request that we reconsider our June 5, 1986 opin­ ion to you advising that the Posse Comitatus Act, 18 U.S.C. § 1385, per­ mits U.S. military agencies to cooperate with the United States National Central Bureau ( “USNCB”) only with respect to investigations into viola­ tions o f the Uniform Code o f Military Justice ( “UCMJ”) by a member o f the armed services. We agree for the reasons described below that recon­ sideration o f our 1986 opinion is warranted. The USNCB is a component o f the Department o f Justice created to assist the Attorney General in fulfilling his responsibility to “accept and maintain, on behalf o f the United States, membership in the International Criminal Police Organization.” 22 U.S.C. § 263a. Generally, the USNCB acts as the representative o f the United States in coordinating the inter­ national law enforcement work o f INTERPOL. See 28 C.ER. § 0.34 (describing the functions o f the USNCB). Other federal agencies with law enforcement responsibilities aid the USNCB by detailing personnel to assist with its international law enforcement work. In 1986, you asked this Office whether the USNCB is barred from accepting assistance from the military intelligence agencies o f the United States by Article 3 o f the INTERPOL constitution, which prohibits USNCB involvement in matters o f a “military ... character.”1 We advised that the INTERPOL constitution permits military intelligence agencies to cooperate with the USNCB in the investigation o f common law crimes

1 Interpol Const., reprinted, in Michael Fooner, Interpol: Issues in World Crime and International Crim inal Justice app B (1989).

195 even if they also constitute violations o f the UCMJ.2 We acknowledged, however, that this Office does not have the authority to interpret the INTERPOL constitution in a manner that is binding on other members of INTERPOL. We then observed that cooperation between the USNCB and United States military intelligence agencies raises a question under the Posse Comitatus Act, which imposes additional restrictions on the military assistance that may be received by the USNCB. The Posse Comitatus Act provides:

Whoever, except in cases and under circumstances express­ ly authorized by the Constitution or Act o f Congress, will­ fully uses any part o f the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

18 U.S.C. § 1385. Our brief discussion o f this issue concluded that because federal law expressly authorizes the military to enforce the UCMJ, see 10 U.S.C. §§ 801-940, the Posse Comitatus Act does not pro­ hibit military personnel from engaging in law enforcement activities nec­ essary to enforce the UCMJ. 1986 Opinion at 8. We went on to suggest that military agencies may assist the USNCB only with respect to investi­ gations into violations of the UCMJ by a member o f the armed services. Id. at 9. You have requested that w e reconsider our opinion to the extent that it said that military assistance may only be used in investigations into UCMJ violations. You have provided us with a memorandum prepared by the Office o f Special Investigations o f the Department o f the Air Force which identifies several situations in addition to investigations into alleged violations o f the UCMJ in which the Act assertedly does not apply.3 We have examined each o f the situations described in the Air Force Memorandum. Furthermore, we have examined the regulations promul­ gated by the Department o f Defense implementing the restrictions imposed by the Posse Comitatus Act on the participation o f Department personnel in civilian law enforcement. See 32 C.F.R. § 213.10. With one exception, which we consider separately below, the situations described in the Air Force Memorandum are discussed in the Department o f

2 Memorandum fo r Richard C Stiener, Chief, INTERPOL-Umted States National Central Bureau, from Charles J. Cooper, Assistant Attorney General, O ffice o f Legal Counsel, Re • Coopemtion by the United States Central Bureau with United States M ilitary Agencies (June 5, 1986) ( “1986 Opinion") 3 Memorandum from Donald A. Cox, J r, M^jor, USAF, Staff Judge Advocate, Re: Cooperation by the United States National Central Bureau with United States M ilitary Agencies (Aug. 27, 1987) ( “Air F orce Memorandum”)

196 Defense regulations. We believe that each o f the regulatory authoriza­ tions o f military assistance is permitted by the Posse Comitatus Act. First, the regulations provide that actions taken for the primary pur­ pose o f furthering a military or foreign affairs function o f the United States are permitted. 32 C.F.R. § 213.10(a)(2)(i). We agree that the Posse Comitatus Act does not prohibit military involvement in actions that are primarily military or foreign affairs related, even if they have an inciden­ tal effect on law enforcement, provided that such actions are not under­ taken for the purpose o f executing the laws. Second, the regulations per­ mit actions taken pursuant to express statutory authority to assist officials in the execution o f the laws. 32 C.F.R. § 213.10(a)(2)(iv).4 The plain language o f the Posse Comitatus Act itself provides that it does not apply “in cases and under circumstances expressly authorized by the Constitution or Act o f Congress.” Finally, the regulations provide that actions taken by civilian employees o f the Department o f Defense are not subject to the Posse Comitatus Act. 32 C.F.R. § 213.10(b)(3). This is con­ sistent with the understanding o f this Office that Congress did not intend civilian employees to be considered “part o f the Army or the Air Force” within the meaning o f the Posse Comitatus Act. Therefore, we believe that these Department o f Defense regulations are consistent with the Posse Comitatus Act. Of course, if you have further questions regarding the permissibility of certain activities under the Act or regulations, we would be pleased to assist you in such matters. The remaining issue raised by the Air Force Memorandum that is not addressed by the regulations concerns the extraterritorial application o f the Posse Comitatus Act. There is no dispute that the Act does not apply extraterritorially at least where the U.S. military is acting as the govern­ ment within an occupied territory. See, e.g., Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert, denied, 336 U.S. 918 (1949). It is not settled, however, whether the Act restricts extraterritorial use o f the mil­ itary to execute the law in other contexts.5 As observed in a report pre­

4 The regulations identify several statutes that allow military assistance in law enforcement, notwith­ standing the Posse Comitatus Act We do not know if this list is exhaustive, nor have w e reviewed the statutes listed to determine the scope o f their exceptions to the Posse Comitatus Act Thus, you should examine the underlying statute, not just the description in the regulations, before relying on one o f these statutes 5The A ir Force Memorandum cited Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948), cert denied, 336 U S. 918 (1949), for the proposition that the Posse Comitatus A ct has no extraterritorial appli­ cation. Chandler was the first o f three post-World War II cases in which American citizens suspected o f treason w ere arrested in Germany o r Japan and brought to the United States for tnal. In each instance, the defendant challenged the jurisdiction o f the court, contending that the use o f the military in the arrest and transportation to the Uruted States violated the Posse Comitatus A ct and thus deprived the court o f jurisdiction. Each defendant lost. In Chandler, the court held: {TJhis is the type o f criminal statute which is properly presumed to have no extraterritorial application in the absence o f statutory language indicating a contrary intent Particularly, it would be unwarranted to assume that such a statute was intended to be applicable to occu- Continued

197 pared by a House committee considering amendments to the Act in 1982, “it is not possible to definitely conclude whether the Act has extraterri­ torial application.” H.R. Rep. No. 71, 97th Cong., 1st Sess., pt. 2, at 7 (1981), reprinted in 1981 U.S.C.C.A.N. 1785, 1789. Because your request to this Office does not directly raise the full range o f issues concerning the extraterritorial effect o f the Act, and because resolution o f those issues is unnecessary given our conclusion that military assistance to the USNCB is permissible in the instances described by the Department o f Defense regulations, we have not con­ sidered these issues. We would be glad to do so if the USNCB ever con­ templates receiving military assistance for an extraterritorial investiga­ tion that is not permitted by any o f the exceptions to the restrictions of the Posse Comitatus Act outlined in the regulations.

WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel

6( .continued) pied enem y territory, where the m ilitary power is in control and Congress has not set up a civil regim e 171 F.2d at 936 (citations omitted). Then, in GiUars v. United States, 182 F2d 962, 973 (D.C. Cir. 1950), the court held that there was no Posse Comitatus A ct violation because the military was the only author­ ity in Germany at the time: “The nght to arrest being a part o f the nght to govern, it cannot be doubted that our Arm y o f Occupation was authorized to arrest notwithstanding [the Posse Comitatus A ct]." The court expressly declined to consider w hether the A ct w as generally extraterritorial in its scope. Id. Finally, the court in Iva Ikuko Toguri D ’A guino v United States, 192 F.2d 338, 351 (9th Cir 1951), cert denied, 343 U.S. 935 (1952), cited Chandler and GiUars and rejected Tokyo Rose’s argument that her transport from Japan to San Francisco by the military violated the Posse Comitatus Act. Thus, although none o f these courts found a violation o f the Posse Comitatus A ct despite military involvem ent in law enforcem ent overseas, the special conditions o f the post-war occupation may limit the precedential authonty o f these decisions regarding the extraterritorial application o f the A ct gener­ ally. In avoiding a decision regarding the extraterritonal application o f the Posse Comitatus Act, for exam ple, the court in United States v. Yunis, 681 F. Supp. 891, 893 (D DC. 1988), noted that “ [b]oth Toguri D ’A guino and Chandler involved situations where the United States military has a substantial presence in post-war enem y territory.”