8934 NATIONAL SECURITY COUNCIL WASHINGTON D C D C 20506 November 6 6 1989 H t1$«cAdvtaoc NettSecAdvitlOf hasseen t useen INFORMATION INFORMATION MEMORANDUM FOR BRENT SCOWCROFT d THROUGH THROUGH NICHOLAS ROSTOW ROSTOW • FROM DANIEL LEVIN1 LEVINl t- SUBJECT Extraterritorial Effect of the Posse Comitatus Act At our request the Justice Department has looked into whether u s c 1385 which bars use of the the Posse Cornitatus Comitatus Act 18 U S C military for law enforcement purposes applies outside of the United States Although the issue has come up frequently a definitive opinion has never been given by either Justice or Defense with the result that potential posse comitatus problems have often surfaced when discussing possible use of the military in law enforcement activities abroad We thought it useful to resolve the question Justice has now completed its work and concludes Tab I I that the Posse Comitatus Act does not have extraterritorial effect Thus there is no statutory bar to the use of the military for U S law enforcement purposes abroad Justice also concludes that Defense regulations should not be interpreted to impose any prohibitions on overseas law enforcement authority for the military but notes that some clarifications of the Defense regulations might be helpful in this regard regard Attachment Tab II Justice Department Opinion cc David Miller Arnold Kanter U S Department of o f Justice Office ooff Legal Counsel Offi e Office of the Assistant Attorney General Assmant Attomey Washington D C 20530 105 0 November 3 1989 MEMORANDUM FOR GENERAL BRENT SCOWCROFT Assistant to the President for National Security Affairs National Security Council Re Extraterritorial Effect of th$ Posse comitatus Act__ the You have have asked for our advice whether the Posse Comitatus Act 18 U S C u s c §§ 1385 applies outside the territory of the United States We we conclude that it does not Neither the United language history history nor legislative history of the Act suggests that Congress intended for the Act to apply extraterritorially Under these circumstances established rules of statutory construction impose a presumption presUlllption that the Act is to be construed as having only domestic effect Such a construction is necessary to enable criminal laws with extraterritorial effect to be to executed and to to avoid unwarranted restraints on the President's constitutional powers Additional legislation and accompanying Department of Defense regulations authorizing certain types of Department military assistance to civilian authorities contain some suggestion that restrictions on military assistance enumerated therein apply outside the land area of the United therein States We united states believe however that the better view is that these rules must be read consistently with other provisions in the same legislation providing that no limitations beyond those imposed by legislation the Posse Posse Comitatus Act were intended to be enacted The scope of the the regulations will be subject to some uncertainty however of until they are amended to expressly state these limits on their scope I r A Comitatus Act The Posse comitatus The Text Text of of the the Posse Comitatus Act suggests Suggests the the Act Act The Posse comitatus Applies Only oomestica11y Domestically Applies only The Posse Comitatus Act provides that w hoever w hoever except in cases and under circumstances expressly authorized by the Constitution or Acts of Congress willfully uses any part of 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 U S C §§ 1385 1385 The The statute statute prohibits prohibits both both the the use use of of the the Army or Air Force as aa posse comitatus and to otherwise execute -otherwise the laws w laws The first prohibition on the use of the military as aa posse comitatus by definition should apply only domestically A posse comitatus is defined as The -The power or force of the A county a county above the age of county the entire population of a fifteen which aa sheriff may summon to his assistance in certain cases as to aid him in keeping the peace in pursuing and arresting felons etc etc Black's Law Dictionary 1046 5th ed 1979 This power of the local sheriff was well established in the United States in the 19th century 2li see §L 9 e g Coyles v Hurtin Hurtin 10 Johns 85 N Y 1813 Sutton v Allison Allison 47 N C N c 339 1855 and had long been held to be available to United States Marshals within their districts The power had been construed to include the right to call upon military personnel within the jurisdiction to aid civil enforcement efforts See e g 16 Op LS Atty Gen 162 163 1878 c-rt It has been the practice of the Government since its organization so far as known to me to permit the military forces of the United States to be used in subordination to the marshal of the United States when it was deemed necessary that he should have their aid in order to the enforcement of his process - process Thus the portion of the Act prohibiting use of the military as a posse comitatus is a a P2 S li a limita­ limitation on the power of civil enforcement authorities to include the military within the forces available for domestic law enforceenforce­ ment As such this portion of the Act logically has no relevance to law enforcement efforts conducted outside the territory of the United states States The statute also prohibits the use of the Army or Air Force to -otherwise otherwise execute the laws laws The structure of the Act suggests that this prohibition should be read in conjunction with the specific prohibition on use of the military as a a posse comitatus SQffiitatUS -under Under the rule of elusdem generis where general ejusdem generis words follow an enumeration of specific items the general words are read as applying only to other items akin to those enumerated Harrison v PPG Industries specifically enumerated Industries Inc Inc • 446 u s U S 578 5 7 8 588 5 8 8 1980 1980 eiusdem In this context the doctrine of ejusdem generis would direct that the words or wor otherwise to execute the lawslaws should be read to refer to actions similar to those of a posse comitatus Under this including the military within a comitatus rationale the wor or otherwiseotherwise phrase like the specific prohibition should be read to have only domestic effect See Huguley Mfg Huquley Mtqt co t v Galeton cotton Cotton Mills 1 8 4 uu s s 2290 9 0 2295 95 Mills 184 1902 wby certiorari or otherwise 1 9 0 2 reading phrase by otherwise# in Supreme Court jurisdictional statute to add add nothing to our power for if some other order or writ might be resorted to it would be ejusdem ejusdeni generis with certiorari • ™ certiorari see gl s Q also J J Sutherland Statutes and statutory Statutory construction§ Construction § 2213 7 3 1891 1 8 9 1 footnote statutes - 2 2 omitted The words 'other persons' following in aa statute the words 'warehousemen' and 'wharfinger ' must be understood to refer to other persons eiusdem generis generis Y i L viz those who are engaged in aa like business Thus although the text does not expressly address whether the Act is to apply extraterritorially extraterritorially the definition of the Act's key concept together with the structure of the text indicates that the Act has aa strongly domestic orientation This interpretation of the text is confirmed by an examination of the history surrounding the passage of the Posse Comitatus Act and well settled canons of construction concerning the extraterritorial application of federal legislation B B The Jiistorv History and Purposes of the Posse Comitatus comitatus Act Indicate Act was Intended only Only to Address the Relationship That the Act Civil Authority Authority Between the Military and Domestic civil The immediate impetus for the passage of the Posse Comitatus Act as aa rider to the Army Appropriations Act of 1878 was the deep resentment of Southern Democrats toward the use of the federal military in the reconstruction period After their surrender the Southern States were divided into military districts under the command of Army generals who oversaw voter registration and supervised the election of delegates who organized the new state governments that would ratify the See generally Furman Restrictions on the Fourteenth Amendment s n Ua _of Comitatus Act hereinafter Use of the Army Imposed bv by the Posse comitatus Restrictions 7 Mil L L Rev 85 93-94 1960 The United Restrictionsl States Army was also used extensively between 1866 and 1872 to suppress violent encounters between ex-Confederate soldiers and freedman and to deter and punish the activities of the Ku Klux Klan and other secret societies S ll See Office of the Judge Advocate General Federal Federal Aid in Domestic Disturbances S Doc Disturbances s No 19 67th Cong 2d Sess 90-155 1922 Southern resentment of federal military interference reached a high water mark during the presidential election of 1876 when over 7000 deputy marshals were used to supervise the election and President Grant ordered federal troops to the polling places in Louisiana Florida and South Carolina to prevent fraud and voter intimidation See Restricti ng r supra 90-91 Lorence The constitutionality Constitutionality of Restrictions n at 90-91 Cpmitatug Act hereinafter constitutionalityl Constitutionality 8 u the Posse comitatus u L Rev Rev 164 169-174 1940 Kan City L In December 1876 the House of Representatives passed a resolution requesting that the President submit a report to Congress on the use of the Army in the 1876 election The actions of the President were roundly criticized in the democratically controlled House with Members expressing concern that • t here t here has been aa constant and persistent interference in State matters by the Army • Army 5 Cong Rec 2117 1877 remarks of Congressman Banning Banning see also 1l1 id at 2112 •American American soldiers - 3 3 - Insult if true and slander if pretended to cover up policemen the tyrannical and unconstitutional use of the Army by protecting and keeping in power tyrants whom the people have not elected Remarks of Congressman Atkins In response to these concerns a rider was added to the Army appropriations bill prohibiting the use of the Army in support of the claims or pretended claim or claims of any State government or officer thereof in any state State until such government shall have been duly recognized by congress Congress Id at 2152 The Senate deleted the rider and when the House refused to recede from its position on the issue the forty-fourth Congress adjourned without passing an Army appropriations provision provision See generally Siemer Effron Military Participation in united United states States Law Enforcement Activities g£jy i£lgg overseas over$3a$ The Extraterritorial Extrat rritprial Effect of Qf the the_EQssq Posse comitatus Cflffiitafcus Act hereinafter Extraterritorial Extrat3SXitQriai Effect 54 st St Johns L L Rev 1 1 18-20 1979 1 1979 1 In the forty-fifth Congress Congressman Kimmel proposed an amendment to the Army appropriations bill providing that it shall not be lawful to use any part of the land or naval forces of the United States to execute the laws a posse either as a comitatus or otherwise except in such cases as may be expressly authorized by act of Congress 7 Cong Rec 3586 1878 Kimmel's statement introducing the amendment identified two major concerns First quoting extensively from the writings of the Framers he noted the danger to liberty of maintaining aa large standing army at home in time of peace Kimmel argued that under the Constitution t he t he a substitute for aa standing army The militia is is to be a militia# — -- not the Army -wwas to be called out to execute the militia — was laws to suppress smugglers and insurrection to quell riot and repel invasion • invasion I a Id at 3579 He contrasted the war powers in Art I I sec 8 cl 11-14 with the powers of the militia in Art I Sec 8 #These two powers are as distinct as I 8 cl 15 and 16 These are the means to be employed for the exercise of them the Army for the defense against external foes the militia for the suppression of internal resistance w resistance I a Id at 3581 By way this cautious adjustment of these balances did the fathers provide against intervention by the standing army if such should 11 Further debatedebate continued duringduring Further continued a special session of a special session of Congress to reconsider the appropriations bill 6 Cong Rec 50 1877 Although no amendment was passed aa number of democratic Congressmen indicated that they hoped that some limitation on the use of the military in civilian law enforcement would be forthcoming from the next regular session of Congress I d Id at at 338 Congressman Atkins Atkins 1 g_ _ id at 294 Congressman Singleton Singleton l 5L idat 298 Congressman Pridemore Pridemore - 44 -- exist in the Internal country internal government government of the country added added id emphasis li Next Kimmel criticized the use of the Army in calls to posse cornitatus He argued that this power had never in fact existed comitatus rejecting an opinion of Attorney General Cushing that he attempt to clothe the marshals the lowest characterized as an attempt officers of the United States courts with authority to use aa comitatus Id at 3582 He referred standing army as aa posse comitatus to the use of the army in suppressing labor strikes in the execution of revenue laws and in the execution execution of the local laws people lJi laws at the behest of all all sorts of people Id at 3181 Kimmel also described the use of the Army in the election of 1876 and argued that shielded shielded by the power of standing armies tyrants have reconstructed the governments of States imposed constitutions on unwilling people obstructed the ballot by soldiers at the polls and placed soldiers in the capitols of the the States and excluded the representatives of the people w lJi people Id at 3586 He offered the amendment wto to restrain the a posse Army so that it may not be used as a comitatus without even the color of law w law i L_ id and expressed the hope that at future sessions the militia could be improved and expanded thus obviat ing a very small standing Army Army obviat ing the need for any but a lJi Id These remarks indicate that Congressman's Kimmel's amendment was intended to address concerns that were wholly domestic in In specifically distinguishing between internal nature operations which were the province of the local police and the state militia and external operations which were the province of the federal military Kimmel highlighted the domestic nature 2 of the proposed prohibition on use of the federal forces forces 2 The version of the army appropriations bill that ultimately was passed by the House contained the following substitute offered by Congressman Knott for the Kimmel amendment From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States as a a posse states comitatus or otherwise under the pretext or for the purpose of executing the laws except in such cases and under such circumstances as 22 Indeed KimmelKimmel specifically alluded to the problem Indeed specifically alluded to Indian the Indian problem indicating that Spain and England had incited the Indians to •depredations depredations arson and murder w murder against American citizens and assumed the Army had aa role to play in their suppression lg_ _ Id at Effect s rn s HBXa at 28 T he 3584-3585 £££ Extraterritorial Effect c-cTJhe strong preference for the role of the states in law enforcement underscores the absence of an express intention--at intention— at least on the part of the sponsor of this amendment--that amendment— that the Act have extraterritorial application • application - 55 such employment of said force may be expressly authorized by act of Congress Congress and no money appro­ appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of of this this section section and any person violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a imprison a fine not exceeding $10 000 or imprison­ ment not exceeding two years or by both such fine and imprisonment Id Knott echoed the concerns that had been expressed Id at 3845 by Congressman Kimmel I a Id at 3846 3849 He stated that this wthis amendment is designed to put a stop to the practice which has become fearfully common of military officers of every grade answering the call of every marshal and deputy marshal to aid in the enforcement of the laws • laws I a Id at 3849 He stated that he did not not object object to the the use of federal troops when acting under constitutional authority to suppress insurrection or rebellion presumably a reference to Art IV sec 4 but simply believed that w t he that t he subordination of the military to the civil power ought to be sedulously maintained • ought maintained I a Id There was essentially no debate concerning extraterritorial application of the Knott 3 and it was passed by the House as introduced I a amendment amendment 3 Id at 3852 In the Senate the same concerns about use of the military a posse comitatus were expressed along with some other as a comitatus 3 The only 3 The discussion only discussion that arguably touched foreign that arguably touched upon upon foreign affairs was raised by an amendment proposed by Congressman Schleicher of Texas which read Provided -Provided That this section the Knott amendment amendment shall not apply on the Mexican border or in the execution of the neutrality law elsewhere on the national boundary line • line 7 Cong Rec 3848 1878 Schleicher was concerned with the robbery of cattle and that the Knott amendment would end the practice of having civilian authorities accompany military scouts on border patrol to arrest Mexican rustlers He also expressed concern that civil and military cooperation might be necessary at the Canadian border to enforce the neutrality laws if for instance Russia were to go to war with England The Schleicher amendment was defeated by voice vote Id I s l at 3849 3849 The intent of the amendment is not entirely clear but at least one commentator has concluded that the proposal assumed the Knott amendment amendment would not apply outside outside the borders of the United States and that it sought to establish a further exempted zone just inside the border See Extraterritorial Extraterritorial Effect Effect at 32 w T he T he language of the Schleicher Schleicher proviso— 'on the national proviso--'on boundary line'--suggests line'— suggests aa domestic orientation to the proviso and an implicit understanding that the Posse Comitatus comitatus amendment had no application across the border border • - 6 - concerns Senator Kernan offered an amendment for Senator Bayard that proposed to retain the Knott amendment with one important change He suggested that the exceptions clause be amended to reach cases where the use of military force was expressly authorized by the Constitution or by act of Congress Kernan made clear that this change was to encompass the President's power under art IV sec 4 to use the federal military when called upon to do so by the legislature or aa State governor Kernan reiterated that the amendment was designed to address the problem of posse comitatus comitatus It would be an entire overthrow it seems to me of aa fundamental principle of the laws of this country of all our traditions· traditions- to say that the Army at the instance of the law officer through aa marshal or a deputy special or general of election may call a body of the Army as a a posse comitatus and order it about the polls of an election We all know that might be used for an entire overthrow of the rights of citizens at the polls polls I think Congress Hence I should say that there shall be no right to use the Army posse comitatus by the peace officers of the State as aa l2 2™ or the General Government unless there is some statutory or constitutional provision that authorizes it I Ii Id at 4240 Senator Beck agreed and indicated that the whole object of this section as amended is to limit the use by the marshals of the Army to cases where by law they are authorized to call for them and not to assume that they are in any sense aa posse comitatus to be called upon when there is no authority l2 Q i ll the comitatus IsL Id given them to call upon anything but t h posse e comitatus • at 4241 Thus discussion of the Act in both houses makes clear a posse that the restriction on the use of the military as a comitatus was directed solely at problems of local civil law enforcement Debates in the Senate on other portions of the amendment likewise reveal no intent for the prohibition on use of the military other thAn than as a a posse military comitatus to bar extraterritorial military operations to execute the laws Nowhere was such an intent expressed in the legislative history Moreover the discussions on this portion of the provision demonstrate that no limitation on the President's constitutional powers was intended Senator Windom noted that the discussion thus far has proceeded on the assumption that it was only when the Army was used as a a posse comitatus that it was forbidden l2 9 S ll But the section says a posse 'when used as a comitatus or otherwise ' otherwise ' whether used in that way or as aa portion of the Army it is forbidden • l g at forbidden Id 4241 Senator Sargent replied that i t ought to be forbidden forbidden Constitution and the laws • laws Id unless it is according to the constitution IsL emphasis added added Eventually the Senate narrowly defeated an 7 amendment to delete the words 6 or 0r otherwise otherwise 6 from the Act id at 4304 Several senators expressed the view however that the amendment's restriction on the use of the military to situations where 6 express expressw constitutional constitutional or statutory authority existed was where an unconstitutional limitation on the President's powers as chief executive and Commander in Chief See isL_ id at 4241 remarks of Sen Edmunds Edmunds id at 4242 remarks of Sen Hoar Hoar Senator Bayard the original sponsor of the Senate version of the amend­ amendment defused this debate by stating he would agree to a clarifyclarify­ 6 expressly 6 since in his view ing amendment striking the word expressly 6 the provision provision as proposed did not entail a a diminution of any the power under the law or the Constitution Constitution 6 After additional debates on other portions of the language the Act was passed by both Houses with the exception for consticonsti­ tutional authority suggested by Senator Kernan There was little debate on the conference reports and the Act became law on June debate 18 1878 §£ Act of June 18 1878 20 Stat 152 1878 As this summary indicates none of the Act's extensive legislative history suggests any intent to constrain the use of the military outside the territorial jurisdiction of the United States Rather the history makes clear that the prohibition on use of the military as a 1122 § li posse comitatus comitatus was aimed at preventing the use of the military f olocal r civilian law enforcement The for governing principles were the traditional American aversion to maintaining a standing army at home the longstanding principle maintaining that civilians should control domestic governance and a concern that the extensive use of federal military power in domestic affairs violated the sovereignty and independence of the several affairs States None of these concerns is implicated by the use of the military to enforce the laws of the United States abroad Military enforcement activities on the high seas or in the jurisdiction of foreign powers cannot by definition clash with or jurisdiction derogate from the authority of State and local police authorities or the National Guard 4 Guard 4 Moreover both the structure of the Act and its legislative history indicate that the phrase •or or otherwise to execute the laws• laws was also aimed at other domestic law enforcement activiactivi­ ties such as the suppression of labor strikes in the East and the enforcement of the revenue laws and destruction of untaxed 4 The National Guard Guard is theismodern day form 4 The National the modern day of form the State theofState See Maryland States 381 U S militia Maryland v United united states u s 41 46 1965 •The The National Guard is the modern Militia reserved to the States by Art I I §§ a 8 cl 15 16 of the Constitution Constitution -- 88 - 5 The Act in essence is a statement of stills in the West West 5 principle concerning the relationship of domestic civil authority to the military power any suggestion that its restrictions were intended to apply abroad is negated by this central purpose consistent Consistent with this conclusion is the absence in the Act's legislative history of any evidence of an intent to limit the Executive's freedom to act in the area of foreign affairs To Executive's the contrary in introducing the amendment that was to become the the Posse Comitatus Act Congressman Kimmel drew a clear distinction between the domestic and foreign powers of the federal government between and indicated that the amendment dealt only with the former 7 Cong Rec 3581 pp 4-5 Construing construing the Act to apply see supra pp to extraterritorial law enforcement activities would raise serious questions about infringements on the President's inherent constitutional powers See in fJ g infra p 13 Yet there was no discussion in the legislative history concerning the effect the Act might have on the power of the President to enter into bilateral or international agreements concerning law enforcement or to to use the military in executing those agreements See Extraterritorial n at 45 with With respect to ExtEaterritQrifll Effect Effect r suaca extraterritoriality Congress in this debate did not exhibit concern about the use of troops in terms of the President's war powers or otherwise in furtherance of American foreign policy policy - Under these circumstances it would be absurd to conclude that the drafters of the Act wished to prohibit use of the military to execute the laws abroad when as will often be the case overseas the military is the only effective force available to the Executive Branch to •take take care that the laws be faithfully 6 In a number of instances extraterritorial applicaexecuted executed 5 55 All the references in the debate to military law posse comitatus comitatus were enforcement outside of the context of l22lill domestic in nature These included the use of federal troops in the election process and electoral politics See e q 7 Cong Rec 3585 1878 Rep Kimmel isL id at 3676 Rep Hewitt J g_ _ id at 3677 Rep Mills Mills Concern was also voiced about the use of the military to deal with labor unrest See isL id at 3676 Rep Bridges Bridges isL id at 3683-3684 Rep Cox Cox Finally supporters of the Posse Comitatus Act decried the use of the military to enforce the revenue laws particularly as they applied to untaxed liquor QB liquor See J g_ _ id at 3581 Rep Kimmel Kimmel None of these examples suggests anything but a domestic orientation to the phrase or otherwise to execute the laws laws 66 Numerous supporters of the Posse Comitatus Act expressed the view that it did not restrict the President's power to employ the military for domestic law enforcement when federal or state civil authorities were incapable of maintaining order continued continued - 99 - tion of the Posse Comitatus Act would require the assumption that Congress wished certain criminal laws to be practically 7 Indeed if the Act were automatically and unenforceable unenforceable 7 unthinkingly applied to extraterritorial law enforcement situations it could impose criminal penalties on foreign civil situations authorities who requested or assisted American military forces in the execution of the laws See Restrictions supra Restrictions r n at 98 indicating that the criminal sanction would apply to civilian officials who request and receive military aid in violation of Act such the Act Such an absurd result should not be inferred 66 continued continued _g_ _g_ _ e g 7 Cong Rec 3645 1878 Rep Calkins •Now Now it is admitted on all hands that there ought to be some reserved power or force to suppress these insurrections when they take place or which are likely to take place and which may pass beyond the control of a sheriff's 12 Qlle posse comitatus id at 4247 Sen Hill comitatus • i L_ •The The military puts down opposition to the execution of the law when that opposition is too great for the civil arm to when suppress • suppress i L_ id at 4243 Sen Merrimon indicating that use of the military was not proper •until the until the civil power was exhausted • Thus even in the domestic sphere the legislators exhausted did not not intend the Act to extend to situations where only the did discipline and armed strength of the military could assure See Extraterritorial Effect supra at 44 execution of the laws Effect li 1 mll 44 • I f I f the Federal government has authority to act and necessity requires the application of military force then it could be used • used 7 RecentRecent legislation 7 legislation reflects Congress's that the reflects Congress's intentintent that the United States States be able to exercise its law enforcement powers United abroad when necessary to counter international terrorism For example in introducing legislation now codified at 18 u s c U S C § 2331 2331 to to criminalize murder and other acts committed against U S nationals abroad Senator Specter noted that In many cases the terrorist murderer will be extradited or seized with the cooperation of the government in whose jurisdiction he or she is found Yet if the terrorist is hiding in a country like Lebanon where the government such as it is is powerless to aid in his removal or in Libya where the government is unwilling we must be willing to apprehend these criminals ourselves and bring them back for trial 131 Cong Rec 18870 1985 In the hypothetical situations posed by Senator Specter enforcement of 18 U S C posed u s c § 2331 likely would be a practical impossibility without extensive military involvement in the arrest and return of the offenders to the United States - 10 - C c Ths General general--Presumption AraH Hnn The Presumption Against Extraterritorial Application of criminal Criminal statutes Statutes Further Supports Supports solely Solely Domestic Donieai-irApplication of the Posse comitatus Comitatus Act Act our Our conclusion that the Posse Comitatus Act should not be applied extraterritorially is confirmed by the general rule of statutory construction concerning the extraterritorial application of domestic legislation In sum that rule states that r ules r ules of United States statutory law whether prescribed by federal or state authority apply only to conduct occurring within or having effect within the territory of the United States unless the contrary is clearly indicated by the statute Second of Foreign Relations Law of the united United Restatement csecondl states§ Stetea § 38 1965 Acggrfl 1 1 Restatement Third Third of 9f the IForeign p reign United states§ States § 403 comment g 1987 Relations Law of the united The Supreme Court has consistently applied this principle in construing both civil and penal statutes of the United States States In Banana co in American lean Banana CQt v united Ecuit- tex 2213 1 3 u s 347 347 1 9 0 9 united Fruit co 1909 the Supreme Court upheld the dismissal of a complaint under the Sherman Act that alleged actions in restraint of trade wholly within the jurisdiction of Costa Rica Despite the broad language of the Sherman Act prohibiting • e very e very contract in restraint of trade• trade and applying to • e very e very person who shall monopolize • the Court rejected extraterritorial application monopolize based on considerations of international sovereignty and comity Justice Holmes• Holmes' opinion for for the Court indicated that these considerations •would would lead in case of doubt to aa construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power All legislation i is s orima facie fi c i e territorial • I d territorial Id at 357 citation and internal quotation marks omitted omitted The Court elaborated on the presumption that federal law applies only territorially in the context of aa penal statute in United states v BmAD States V Bowman 260 u s U S 94 1922 At issue i in n Bowman was the extraterritorial application of aa criminal statute that was •directed directed generally against whoever presents aa false claim against the United States knowing it to be such to any officer of the civil military or naval service or to any department thereof or any corporation in which the United States is aa stockholder • stockholder I d Id at 101 The Supreme Court viewed the question of extraterritorial application as one of •statutory statutory construction construction• and indicated that • t he t he necessary l 2 la locus when not specifically defined depends - 11 - upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of aa government to punish crimes under the law of nations n nations 1 s L_ Id at 97-98 As to purely private crimes nwhich affect the peace and good order of the community community n which exclusively territorial application is the rule and i f n i f punishment of them is to be extended to include those committed outside the strict territorial jurisdiction it is natural for Congress to say so in the statute and failure to do so will negative the purpose of Congress in this regard regard n l sL_ Id at 98 But the Court indicated that a different rule would apply as to statutes that nare are enacted because of the right of the Government to defend itself against obstruction or fraud wherever perpetrated especially· if committed by its own citizens especially'if officers or agents n ncan only agents l sL Id As to these offenses some can be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them • •to limit their t h e ilocus r to the strictly them while in other cases to territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity immunity n l sL HSLl As to the statute before it the Court noted that it applied to false claims against any civil military or naval officer of the United States Moreover the statute had been amended in 1918 to include fraudulent claims against corporations in which the United States owned stock Because the amendment was in the Court's view intended to protect the United States as sole stockholder in the Emergency Fleet Corporation and because t hat corporation was expected to engage in and did engage in •tt hat a most extensive ocean transportation business and its ships were seen in every great port of the world open during the war war J g_ _ id at 101-102 congressional intent to provide for extraterritorial application could be inferred both from the nature of the crime and from the fact that aa refusal to give such effect to the statute would have significantly undermined its purpose Foley Bros Bros Inc In contrast in Foley Inc v Filardo Filardo 336 U S u s 281 1949 the court Court invoked the presumption against extraterriextraterri­ torial scope in holding that the so-called •Eight Law had Eight Hour Law only domestic application on On its face that law broadly applied to • e very e very contract made to which the United States is a party• party and •every_ every laborer and mechanic employed by any contractor • contractor The Court concluded however that it did not apply to a contract between the United States and a private contractor for construction work undertaken in Iraq and Iran because it - 12 ll found that •concern congress concern with domestic labor conditions led Congress to limit the hours of work • added 8 work l5L Id at 286 emphasis added 8 We think it clear that in the case of the Posse Comitatus comitatus Act there is insufficient evidence to rebut the presumption against extraterritorial application The text of the statute itself suggests aa wholly domestic orientation and the legislative history strongly supports that view In the words of the supreme Supreme Court in Bowman Bowman mmn supra the Posse Comitatus Act proscribes conduct •which which affect s affect s the peace and good order of the community 260 U S at 98 There is no indication that declining to give the Act extraterritorial effect would frustrate the purposes of the Act or •greatly greatly curtail the scope and usefulness of the statute and leave open a large immunity lg_ _ Id D o Broadly construing Construing the Posse Comitatus comitatus Act to Include Actions of Military Personnel Abroad would Would Raise Serious serious Constitutional concerns Concerns constitutional Reading the Posse Comitatus Act to apply extraterritorially also would infringe on the President's inherent constitutional powers as Chief Executive and Commander in Chief of the armed forces both to execute the laws and to conduct foreign policy policy s g See U S Const Const art II sec 1 executive power vested in the President President art II sec 2 President is the Commander in Chief of the armed forces forces art II sec 3 President must •take take Care that the Laws be faithfully executed executed• In The Federalist Federalist Alexander Hamilton explained why the President's executive power would include the conduct of the Nation's foreign policy The essence of the legislative authority is to enact laws or in other words to prescribe rules for the regulation of the society while the execution of the laws and the employment of the common strength either for this purpose or for the common defense seem to comprise all the functions of the executive magistrate magistrate • The A Hamilton Thomas Jefferson Federalist No 75 at 450 A expressed aa similar view •The The transaction of business with foreign nations is executive altogether altogether it belongs then to the head of that department except as to such portions of it as are specifically submitted to the senate Exceptions are to be strictly 55 Writings of Thomas Jefferson 161 Ford construed strictly • ed 1895 88 The Court The Court recently reaffirmed the Folev approach to recently reaffirmed the Foley Bros Bros approach to extraterritoriality in Argentine Republic v Amerada Hess Corp 109 s S ct Ct 683 1989 There the Court invoked Shipping Corp the presumption against extraterritorial application in holding hold ng that the word •waters• waters in an exception to the Foreign Sovereign U S C §§ 1602-1611 should be strictly Immunities Act 28 u s c construed to mean the territorial waters of the United States States at 691 - 13 - While the domestic powers of the National Government were specifically enumerated to protect the independence and domestic legislative prerogatives of the States the individual states States never possessed the foreign powers of an independent nation These inherent powers which are an aspect of national sovereignty were always contained in the National Government United states States v Curtis-Wright Export Coro Corp 299 U S u s 304 318 1936 Echoing the remarks of Hamilton and Jefferson quoted above the Court in Curtis-Wright concluded that most of these implied powers are lodged within the Executive Branch The Court wthe very delicate plenary and exclusive power of referred to the the President as the sole organ of the federal government in the the — aa power which does not field of international relations -require as aa basis for its exercise an act of Congress Congress w lg_ _ Id at 320 emphasis added added The convergence of the President's inherent powers under the Constitution in the area of foreign forelgn affairs and his power as Commander in Chief of the armed forces produce the constitutional right and duty in some instances to enforce American law outside 9 Absent valid the territorial jurisdiction of the United States States 9 statutory constraints the Constitution also provides the President with the means necessary to execute the laws includ­ including where necessary the use of United States military forces See e g Little v Barreme Barreme 6 U S 2 Cranch L 9 u s 2 cranch 169 177 1804 Marshall C J •It It is by no means clear that the President of the United States whose high duty it is to 'take care that the laws be faithfully executed ' executed ' and who is commander in chief of the armies and navies of the United States might not without any special authority for that purpose have empowered the officers commanding the armed vessels of the United States to seize and send into port for adjudication American vessels which were forfeited by being engaged in this illicit commerce commerce w In re Cooper Cooper 143 U S u s 472 499-500 1892 seizure by U S u s Navy of British vessel on the high seas for violation of U S law law ll§ see alafl J j story 3 Commentaries Constitution § 1485 1833 commentaries on the constitution§ The command and application of the public force to execute the laws to maintain peace and to resist foreign invasion are powers so obviously of an executive nature and require the exercise of qualities so peculiarly adapted to this department that aa well-organized government can scarcely exist when they are taken away from it • it 99 The President's duty duty to protect The President's to protect American citizens American citizens and and property can arise even in the absence of aa specific statute that must be executed $££ In In re Neaole Neagle 135 U S u s 1 63-67 1890 recognizing the President's power to protect the Nation or citizens or property of the United states States even where there is no specific statute to •execute execute - 14 - Throughout our history Presidents have exercised the power to to call upon the military to execute and enforce the law when the civilian officers under their control have proved inadequate to task § ll Debs 158 U S the task See In In re Debs u s 564 582 599 1895 affirming executive power to use the military to prevent violent obstruction of interstate commerce 41 Op op Att'y Gen 313 326 1957 discussing President's constitutional authority to enforce a judicial desegregation decree with military power in Little Rock Arkansas Arkansas see generally G N Lieber The Use of the Army in Aid of the Civil Power 1898 Moreover the Executive Branch has often employed the military forces abroad to protect citizens of the United States and to punish violations of American law generally M Offutt The Protection of Citizens-Abroad bv the Armed forces Forces of the United citizens Abroad by united States states 1928 As one commentator puts it Congress alone of course has the right to declare war under the Constitution but interposition for the protection of citizens is not essentially war So long as the use of the army and navy of the United States for the protection of citizens resident in foreign countries does not amount to a recognized act of war it seems to be an established fact that the President does constitutionally possess the power to make such use of those forces and that Congress except indirectly as by disbanding the army and navy may not prevent or render illegal his action action Id at 4-5 Id _ Under these principles construing the Posse Comitatus Act to limit the authority of the President and his designates to employ the military for law enforcement purposes outside the territorial jurisdiction of the United States would impermissibly territorial infringe on the core constitutional responsibilities of the Executive On foreign soil or the high seas — -- unlike in the domestic situation -— military personnel may constitute the 2Jll i only means at the Executive Branch's command to execute the laws Giving extraterritorial effect to the Posse Comitatus Act thus could in many circumstances deprive the Executive Branch of any effective means to fulfill this constitutional duty Such a deep intrusion into the functions of the Executive Branch would see Morrison v present serious questions of constitutionality constitutionality ™ 108 s Qlson S ct Ct 2597 2619 1988 and it is likely that the federal courts would be •loath loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils perils • Public Citizen v V united United states States Department of Justice citizen Justice 109 s ct 2558 2558 2572 1989 Youngstown See also Youngstown sheet Sheet Sawyer 343 343 Tube Co co v v sawyer u s J U S 579 645 1952 Jackson J concurring I c•r should indulge the widest latitude of interpretation to sustain the President's President's exclusive function to command the instruments of - 15 - national force at least when turned against the outside world for the security of our society w society E The Decisions of the Federal Courts Courts Administrative an Practice and the Views of Commentators commentators in the Field all Support the conclusion Conclusion that the Posse comitatus Comitatus Act Applies support Only Within the Territorial Jurisdiction of the united only States States Courts and commentators generally agree that the Posse Comitatus Act does not apply extraterritorially Several cases have addressed the issue none has concluded that the Act so applies In Chandler v United states States 171 F 2d 921 1st Cir 1948 denied cert denied 336 U S u s 918 1949 the court squarely held that the Posse Comitatus Act does not apply extraterritorially There an American citizen was prosecuted for treason committed in Nazi Germany during World War II Chandler was indicted in the United States in 1943 and in 1946 he was arrested by the Army in Bavaria at the request of the Department of Justice He was taken into military custody and flew with an Army guard to the United states States where he was tried and convicted convicted I d Id at 927-28 On appeal Chandler argued that the district court had no jurisdiction because his arrest and return to the United States Act I d by Army personnel violated the Posse Comitatus Act Id at 934 The Court of Appeals disagreed The court noted that the immediate objective of the Posse Comitatus Act Act was to put an end to the use of federal troops to police state elections in the ex-Confederate States where the civil power had been reestablished • I d reestablished Id at 936 936 Invoking the presumption against the extraterritorial application of congressional legislation and citing Bowman Bowman the court stated that i n contrast to the criminal statute denouncing the crime of treason this is the type of criminal statute which is properly presumed to have no extraterritorial application in the absence of statutory language indicating aa contrary intent Particularly it would be unwarranted to assume that such aa statute was intended to be applicable to occupied enemy territory where the military power is in control and Congress congress has not set up aa civil regime 10 regime lo lO As theAs above 10 the above quotation indicates the Court of Appeals quotation indicates the Court of Appeals had earlier rejected Chandler's claim that the treason statute did not reach extraterritorial acts The court noted that in defining the crime of treason in the Constitution the Framers had discussed extraterritorial application and specifically rejected language that would have restricted treason to domestic continued continued - 16 - Id Id citations omitted omitted The court also noted the practical impossibility of apprehending a fugitive like Chandler absent military assistance and observed that it found wholly wthat there was no way in which a unacceptable the conclusion that a court of the United States could obtain lawful jurisdiction over Chandler unless he should choose to relinquish his asylum in Germany and voluntarily return to the United States id States w IsL Chandler the Court of Appeals for the Two years after Chandler District of Columbia Circuit was presented with an almost States 182 F 2d identical factual scenario in Gillars v United States 982 D C Cir 1950 The court followed Chandler and rejected the argument that the defendant's arrest in occupied Germany by U S military forces violated the Posse Comitatus Act However it based its decision only on the narrower ground suggested by Chandler Chandler that the U S Army was the only civil authority in Germany lg 1 at 972-73 The Gillars court expressly declined to reach the general question whether the Act was extraterritorial Id at 973 Accord D'Acruino States 192 in scope lg D'Aauino v United states F 2d F 2d 338 351 9th cir Cir 1951 based on Chandler and Gillars Gillars court summarily rejected American citizen's claim that her arrest by military authorities and transportation to the United States for trial violated the Posse Comitatus Act Act More recently decisions have raised but not expressly decided the question of the Act's extraterritorial application States v Cotten Cgttsn 471 F 2d 744 9th c Cir cert In United states ir denied denied 411 U S 936 1973 two American civilians were indicted for defrauding the United States by passing checks in Viet Nam drawn on a nonexistent account with the United States Military Exchanges After being arrested in Viet Nam by agents of the United States Naval Investigative Service and forcibly returned to the United States for trial by Air Force personnel id at personnel 745 the defendants challenged the court's jurisdiction on the grounds that the Posse Comitatus Act had been violated and that the arresting officials' conduct was so shocking to the conscience as to violate the Due Process Clause Relying on the so-called Ker-Frisbie doctrine which provides that an illegal arrest does not divest aa court of jurisdiction over the person see Frisbie v Collins Collins 342 U S defendant's person ™ u s 519 1952 Ke r Ker v Illinois Illinois 119 U S 436 1886 the court rejected their claims without addressing whether the Posse Comitatus Act had been violated 1 0 • 10 continued 10 continued acts 171 F 2d at 929-931 The Court also noted that the treason statute itself proscribed aid to government enemies within the United states States or elsewhere Id at 930 quoting 18 elsewhere w u s c U S C §§ 2381 emphasis added - 17 - VTU£gg_flutes v XY ni§ Yynis 681 F 1988 is United States v F Supp 891 D D C 1988 extrate rithe only decision that is somewhat ambiguous on the extraterri­ torial reach of the Act and related Department of Defense regulations That case involved a a hijacker who was arrested abroad and returned to the United States by the U S Navy for trial After describing other cases dealing with challenges based upon the Posse Comitatus Act including Chandler and its progeny the court rested its decision that the Act had not been violated on the ground that Navy personnel had played •a a passive role in the operation and did not engage in the the exercise of regulatory proscriptive or compulsory military power power• of the kind that the Department of Defense regulations were meant to prohibit I X£ at 895-96 Although it could be argued from this basis for decision that the court assumed the regulations applied extraterritorially in fact the court never directly addressed the issue Moreover it noted that Chandler had held that the Posse Comitatus Act 'is 'is properly presumed to have no extraterriextraterri­ torial application in the absence of statutory language indicat­ indicating aa contrary intent •• n at intent ' l d Id at 893 quoting Chandler Chandler r supra 936 936 In addition the court observed that in the case before it the military was •aiding aiding law enforcement efforts of FBI agents in international waters where no civil governmental authority existed existed i d _ id at 891 and indicated concern that b y b y its very nature the operation required the aid of military located in the area • area l d Id at 895 Under these circumstances we do not believe that lY nll Yunis properly can be understood to hold that the Posse Comitatus Act applies extraterritorially The administrative practice of the Army further supports the view that the Posse Comitatus Act is without extraterritorial effect On numerous occasions the Office of the Judge Advocate General has concluded that the Posse Comitatus Act has no extraterritorial application and that office has approved law enforcement activities overseas that likely would violate the Act if performed by military personnel in the United States See LS e q JAGA 1957 2176 March 6 6 1957 approving the taking of aa statement from aa suspect in Germany by military personnel and indicating that • t he t he so-called Posse Comitatus Act need not be considered as it is without extraterritorial application • application Accord JAGA 1954 5140 June 10 1954 approving use of military personnel to aid New Jersey State Police in identifying a a suspect in Korea Korea JAGA 1954 6516 July 29 1954 approving use of military personnel to administer lie detector test on suspect in Europe • Europe Commentators in the area generally agree L SL See e g Restrictions r supra I t seems reasonably wellRestrictions n at 108 I t established that the Posse Comitatus Act imposes no restriction on employing the military services to enforce the law in foreign nations The most thorough scholarly review of this topic nations Effect r supra Extraterritorial Effect n one of whose authors is aa former for the Department of Defense describes the General Counsel for - 18 - primary purpose of the Posse Comitatus Act as prevent ing prevent ing the military from exercising those law enforcement responsibilities otherwise within the existing or potential capabilities of state forces and federal civilian offices lg_ _ Id at 34 The article concludes that neither the legislative history of the Act nor relevant principles of statutory construction require that the Act be given extraterritorial effect I g_ _ Id at 54 Thus we think it clear that the Posse Comitatus Act does not restrict the use of military personnel to enforce the laws outside the territorial jurisdiction of the United States The text and history of the Act as well as judicial administrative and scholarly interpretation of its provisions all indicate that the Act was intended to deal with solely domestic concerns II Legislation Subsequent to II Legislation subsequent to the the Posse Comitatus comitatus Act Act A A Itei m Act A t The 1981 In 1981 Congress enacted into law a series of statutory provisions relating to military cooperation with civilian law enforcement officials Pub L L No 97-86 Title IX IX§§ 905 a l i 905 a 1 95 stat u s c 371-378 the •1981 Act 1 Stat 1114 codified at 10 U S C 1981 Act 11 The purpose of the 1981 Act was to enact provisions including 10 u s c U S C §§ 371 372 and 373 to give clear authority for certain types of military assistance to civilian authorities These provisions codified well established exceptions to the Posse Comitatus Act for the sharing of information collected by military personnel the sharing of military equipment and facilities and the training of civilian law enforcement agents by military personnel S il See H R Rep No 71 Part II 97th sections clarify existing Cong 1st Sess 7 1981 These •sections practices of cooperation between the military and civilian law enforcement authorities current Current interpretation of the Posse Comitatus Act already permits all of this activity • activity One provision of the 1981 Act bears particular relevance to the question of extraterritorial law enforcement by the military Section 374 as enacted in the 1981 Act generally permits use of Department of Defense personnel to operate and maintain equipment in connection with the enforcement of certain laws including narcotics tariff and immigration laws 10 U S C u s c § 374 a 11 11 The provisions The provisions the Act 1981were Act substantially were substantially of theof1981 modified in 1988 For convenience we cite the United States Code sections where the 1981 Act was codified as they existed prior to the 1988 amendments We discuss any effect the 1988 amendments may have on the extraterritoriality of the Posse Comitatus Act in f 13 infra at p p 23 - 19 - 1982 Section 374 b provides that generally such military equipment may be operated by military personnel only to the extent that 6 the the equipment is used for monitoring and communicatcommunicat­ ing the the movement movement of air and sea traffic traffic w l s h § 374 b ing Id § Section section 374 c then then provides for special circumstances in which military equipment may be used outside the land area of the United 12 States States 12 Under ordinary principles principles of statutory construction it Under might be be argued that that the express grant in section 374 c of some authority to deploy equipment outside the United States authority implicitly denies authority for the military to engage in other implicitly more extensive activities However such an interpretation is more expressly foreclosed by section 378 as enacted by the 1981 Act which provides that the 1981 Act shall not be construed to limit the Executive's authority to use the military for civilian law enforcement efforts efforts beyond beyond the limitations previously imposed by the Posse Comitatus Act lg_ _§ Id § 378 Accord Accord H Conf conf Rep No 311 97th Cong #clarifies the Cong 1st Sess 122 1981 section 378 clarifies intent of the conferees that n othing n othing in this chapter should be be construed to expand or amend the Posse Comitatus Act 6 Act see li§ 0 also H R Rep No 71 Part III 97th Cong 1st 6 Sess 12 n 3 n 3 1981 1981 n othing n othing in section 374 374 in any way affects the extraterritorial application if any of the Posse Comitatus Act Act • Thus while the 1981 Act functions as aa grant of authority as well as a kind of •safe safe harbor• harbor of permissible activities under the Posse Comitatus Act it does not operate to restrict military enforcement activity beyond the limitations 12 12 Section 374 c provides in pertinent part as follows In an emergency circumstance equipment operated by or with the assistance of personnel assigned under subsection a may be used outside the the land land area area of of the the United states States for any or possession of the united cor any territory territory or possession of the United states States as a base of operations by Federal law United enforcement officials to facilitate the enforcement of aa law listed in subsection a a and to transport such law enforcement officials in connection with such if— operations if- A equipment used by of personnel assigned not used to interdict passage of vessels or or with the assistance under subsection a a is or to interrupt the aircraft aircraft and B the Secretary of Defense and the Attorney B General jointly determine that an emergency circumstance exists 10 U S C u s c § § 374 c 1 A B 374 c 1 A B 1982 emphasis added - 20 - imposed by by the Posse Comitatus Act itself This interpretation accords with the general purpose of the 1981 Act to clarify wclarify and reaffirm the authority of the Secretary of Defense to provide indirect assistance to civilian law enforcement officials s S Rep No 58 97th Cong 1st Sess 148 1981 13 This same analysis applies with respect to 10 U S c u s c § 375 This as enacted by the 1981 Act which provides that t he Secretary of Defense shall issue such regulations as may be necessary to insure that the provision of any assistance including the provision of any equipment or facility or the assignment of any personnel to any civilian law enforcement official under this chapter does not include or permit direct participation by a member of the Army Navy Air Force or Marine Corps in member an interdiction interdiction of a vessel or aircraft a search and seizure arrest or other similar activity unless participation in such activity by such member is otherwise authorized by law Given the explicit directive in section 378 that nothing in the 1981 Act is to be construed as creating additional restrictions on the Executive's authority to use the military to enforce the laws we believe believe this section also should be interpreted to require the promulgation of regulations that do no more than enforce the Posse Comitatus Act The House Report on the provision that became section 375 supports this view It indicates that the section was intended to wreaffirm J reaffirm the 13 section 378 of378 theof1981 13 Although Although section the Act 1981quite Act quite clearly clearly indicates that wrn othing Tnlothing in this chapter shall be construed to limit the authority of the executive branch in the use of military personnel personnel w at least one court seems to have been confused as to the effect of the 1981 Act In United States states v Roberts Roberts 779 F 2d 565 9th Cir 1986 the Ninth circuit Circuit addressed whether Navy assistance to Coast Guard interdiction of a vessel carrying marijuana on the high seas violate d wviolate d the proscriptions of 10 u s c U S C §§ 371-378 371-378 w Id lg at 567 The Roberts court took the position that section 378 had the effect of codifying Navy regulations as of December 1 1981 and then asked whether these regulations had been violated Id lg There is whether absolutely nothing in the text or legislative history surrounding section 378 which would suggest that it was intended to codify past executive branch regulations Moreover such an interpreta­ interpretation of section 378 would seem to construe that section itself wto limit the authority of the executive branch to branch • in direct conflict with its plain language Finally such an interpreta­ interpretation would have the effect of expanding the restrictions of the Posse Comitatus Act a result expressly disclaimed by the legislative history surrounding the 1981 Act - 21 - traditionally strong American antipathy towards the use of the military in the execution of civil law law• as contained in the Posse Comitatus Act H R Rep No 71 Part II at 10-11 quoting 7 Cong Rec 4245-4247 1878 remarks of Sen Hill concerning the Posse Comitatus Act The Conference Report on section 375 is even more explicit stating that n othing n othing in this chapter adversely affects the authority of the Attorney General to request assistance from the Department of Defense under the provisions of 2 1 u s c u s c § 873 b 21 The limitation posed bv by this section is only with respect to assistance authorized under any part of this chapter unAer 9f this chapter H R Conf added As with section Conf Rep No 311 at 121 emphasis added 374 therefore we conclude that nothing in section 375 was meant to constrain preexisting Executive branch authority to use the military in the enforcement of the laws In our view this authority flows directly from the Constitution itself As discussed above the Constitution charges the President with the duty to execute the laws and absent valid statutory constraints it provides him with the means to see to their execution including where necessary the use of military forces See s YRn supra pp 13-15 As we have concluded above the President's constitutional power to employ the military in the execution of the laws outside the territorial jurisdiction of the United States is in no way affected by the jurisdiction Posse Comitatus Act l 1Id Thus within the terms of section 375 military enforcement of the laws outside the United States is •otherwise law • otherwise authorized by law Congress' intent that section 375 not disturb existing Executive Branch authority to employ the military in law enforceenforce­ ment activities is particularly explicit with respect to the enforcement of narcotics laws The House Conference Report states explicitly that •tn othing n othing in this chapter adversely affects the authority of the Attorney General to request assistance from the Department of Defense under the provisions of 21 u s c U S C §§ 873 b • 873 b which was enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 Pub L L No 91-513 Title II 84 Stat 1236 1272 1970 •Controlled Controlled Substances Act• Act Section 873 b is presently codified in Part E Subchapter I Chapter 13 of title 21 which empowers the Attorney General to call upon the military among other federal instrumentalities as necessary to assist him in executing the provisions of the controlled Controlled Substances Act 14 See United Act 14 united States states 14 to 21 to u s c 14 Pursuant Pursuant 21 U S C 965 subchapter the subchapter of title 21 § 965 § the of title 21 that includes section 873 b also applies to the subchapter that continued continued - 22 - 6 T he v Harrington n 1 9th cir flar rington 681 F 2d 612 613 n l Cir 1982 Tlhe Attorney General may request the assistance of other agencies to 6 help enforce federal drug laws Memorandum for Daniel Silver laws General Counsel National Security Agency NSA NSA from Assistant' 9 Attorney General Harmon Office of Legal Counsel of January 9 1979 at 2 Section 873 b is 6 an an affirmative authorization fo for all federal agencies including NSA and the Naval Security Command Group to assist the Attorney General or his designee 6 15 upon receipt of a legitimate and legal request for aid aid 5 Read together these provisions in our view provide authority in the Attorney General to call upon the military to assist him in the enforcement of the drug laws outside the territorial jurisdiction of the United States Because the provisions of the 1981 Act do not extend extraterritorially such aid could include direct military participation in law enforce­ enforcement activities such as the apprehension of persons under indictment who are outside the territorial jurisdiction of the United states States or assistance in interdiction efforts on the high seas B b Tbs 1988 1933 Amendments The Amendments In 1988 Congress substantially modified the provisions of the 1981 Act applicable to the use of military personnel to assist in the enforcement of the narcotics immigration and tariff laws Pub L No 100-456 title XI §§ 1104 102 Stat 2042 1988 codified at 10 U S C u s c §§ §§ 371-380 1988 amendments amendments The legislative history surrounding the 19881 5 4 14 continued 1 4 continued generally proscribes the import and export of controlled substances Thus the Attorney General's power to request assistance from other federal agencies extends to the enforcement of all the significant drug laws of the United States 1155 Consistent with with this authority is Executive Order Order No No Consistent this authority is Executive 11727 3 C F R 785 1971-1975 l of which provides that 1971-1975 section 1 t he Attorney General to the extent permitted by law is authorized to coordinate all activities of executive branch departments and agencies which are directly related to the enforcement of the laws respecting narcotics and dangerous drugs Each department and agency of the Federal Government shall upon request and to the extent permitted by law assist the Attorney General in the performance of functions assigned to him pursuant to this order and the Attorney General may in carrying out those functions utilize the services of any other agencies Federal and State as may be available and appropriate - 23 - amendments indicates that they were designed to expand the opportunities for military assistance in aa manner that is consistent with the requirements of military readiness and the historic relationship between the armed forces and civilian law enforcement activities activities House Conf Rep No 989 100th Cong 2d Sess 450 reprinted reprinted in in 1988 U S Code Cong Admin News 2578 The amendments reaffirmed and broadened the military's authority to share data obtained during military missions to lend equipment and facilities and to train civilian law enforcement personnel personnel s_ee u s c §§ 371-373 See 10 U S C Section 374 was substantially revised to include authorization for aerial reconnaissance by military personnel and the interception of vessels or aircraft detected outside the land area of the United States for the purposes of communicating with such vessels and aircraft to direct such vessels and aircraft to go to aa location designated by appropriate civilian 374 b 2 B C C 1988 Subsection officials I J lJL §§ 374 b 2 B 374 c added by the 1988 Act provides that t he Secretary of Defense may in accordance with other applicable law make Department of Defense personnel available to any Federal State or local civilian law enforcement agency to operate equipment for purposes other than described in paragraph 2 2 only to the extent that such support does not involve direct participation by such personnel in aa civilian law enforcement operation unless such participation is otherwise authorized by law Id § 374 c 374 c I£ § As with the version of section 374 enacted by the 1981 Act section 374 c must be read in conjunction with the entire statutory scheme In reenacting section 378 the 1988 amendments reiterated that no additional restrictions on Executive Branch authority to use the military in enforcement of the laws beyond those contained in the Posse Comitatus Act were intended since Since the Posse Comitatus Act does not apply extraterritorially we conclude that there are no statutory limits on the Executive Branch's authority to employ the military in law enforcement missions outside the territorial jurisdiction of the United 16 States States 16 16 in this that the Mansfield 16 We note We note in regard this regard thatso-called the so-called Mansfield Amendment 22 U S C u s c § 2291 c 229l c which prohibits any officer or employee of the United States from directly effect ing effect ing any arrest in any foreign country as part of anv any foreign police action emphasis added in connection with narcotics action emphasis enforcement is inapplicable to the use of the military to enforce continued continued - 24 - III 111 •Department P3Mrtffient of of Defense Defense Regulations Regulations The Department Department of Defense has promulgated a series of The regulations codified at 32 C F R Part 213 and based on the 1981 regulations Act to establish establish uniform DoD policies and procedures with Act respect to support provided provided to Federal State and local civilian respect to law enforcement efforts 32 C F R § 213 1 These regulations are somewhat ambiguous as to the restraints they place on the use of the military military for overseas law enforcement operations As a general matter the Department's policy is to to cooperate with civilian law enforcement officials to the maximum extent practicable Ig I£ § 213 4 Section 213 10 enumerates specific restrictions on the use of DoD personnel in civilian law enforcement activities as well as various types of permissible direct assistance that are statutory and other well settled exceptions to the Posse Comitatus Act Among these approved activities are actions actions that are undertaken primarily for a military or or foreign affairs purpose purpose islmilitary id § 213 10 a 2 F 213 10 a 2 F and a ctions a ctions taken under express statutory authority to assist officials in the execution of the laws subject to applicable limitations therein 213 lO a 2 B iv In addition therein islid § 213 10 a 2 B iv section 213 10 a 6 213 lO a 6 of the regulations provides rules complecomple­ menting the requirements of section 374 of the 1981 Act which permits the use of military equipment in certain circumstances outside the land area of the United States l 1• Id § 213 lO a pp 19-20 n 12 213 10 a 6 6 iii C C S fifi SiiBJZa PP n l2 These two provisions expressly permit certain extraterritorial use of military resources for civilian law enforcement As noted above with respect to section 374 ill see i l Ull' A supra p 20 the limited nature of the authorization of extraterritorial law enforcement activities in section 213 10 6 iii C could be construed to exclude other more1 213 10 6 iii C 6 6 continued 116 continued the laws of the United states States As its language suggests the Mansfield Amendment addresses only the participation of United states States employees in the internal enforcement activities of See United States v Green foreign countries 671 F 2d 46 53 i r cert n 9 1st C Cir denied denied 457 U S u s 1135 1982 T he T he legislative history of the provision makes it clear that was only intended to 'insure that U S personnel do not become involved in sensitive internal law enforcement operations which could adversely affect U S relations with that country ' country ' quoting s S Rep No 94-954 at 55 The Mansfield Amendment thus has no bearing on the use of United States military personnel to enforce the laws of the United States on the high seas or in foreign territory - 25 - extensive extraterritorial activities This argument might be bolstered 3 which indicates that elxcept w e xcept bolstered by section 213 lO a 213 10 a 3 as otherwise provided in this enclosure enclosure• the Posse Comitatus comitatus Act generally prohibits direct military assistance to law enforcement personnel Moreover the regulations contain no provision comparable to section 378 which provides that no additional restrictions beyond those imposed by the Posse Comitatus Act were intended We conclude however that these regulations should not be read to prohibit military aid in extraterritorial law enforcement activity First section 213 10 6 iii C was intended to implement 213 10 6 iii C the 1981 Act which quite clearly g i gnot did extend the prohibitions of the Posse Comitatus Act extraterritorially extraterritorially While an agency may bind itself by regulation beyond specific statutory mandates Accardi V v Shaughnessy Accarfli Shauohnessv 347 U S u s 260 266-67 1954 it would be somewhat anomalous to conclude that the Department of Defense had done so here here particularly in light of the general policy statement in section 213 4 of the regulations to cooperate •cooperate with civilian law enforcement officials to the maximum extent practicable • the position of the Judge Advocate General's practicable and the Office on extraterritorial law enforcement activity See 6lm ll supra activity S U p 18 Second the substance of section 213 10 6 iii C 213 10 6 iii C has been substantially undermined by the expansion of statutory authority in the 1988 amendments to section 374 Among other things those amendments eliminated the requirement that the Attorney General and the Secretary of Defense determine that an emergency circum­ circumstance exists before military assistance may be granted See 10 granted S U 17 We see little merit to an argument that u s c § 374 b 2 E U S C 374 b 2 E 17 restrictions on military assistance contained in outdated regulations must be assumed to apply extraterritorially In any event we do not believe the regulations could operate to constrain the Attorney General's authority under 21 u s c U S C § 873 b to enlist the military's assistance in the 18 S U enforcement of the drug laws laws 18 See s J ll21 A supra pp 22-23 In 17 17 Present section 374 provides that Department of Defense personnel may operate equipment for the •the transportation of civilian law enforcement personnel personnel• and for •the the operation of a base of operations for civilian law enforcement personnel personnel • outside the United States subject to joint •joint approval by the Secretary of Defense the Attorney General and the Secretary of State • 2 E No requirement of a finding State 10 u s c U S C § 374 b 374 b 2 E of the existence of •an circumstance• is required an emergency circumstance § § 18 18 Indeed the Attorney General's authority under 21 U S C u s c 873 b would seem to fit squarely within the exception in continued continued - 26 - raised be raised addition a significant constitutional question would be from if the regulations were read to prevent the President from powers issuing direct instructions based on his constitutional powers of as Chief Executive and Commander-in-Chief to the Secretary of Defense to assist civilian authorities in law enforcement See activities outside the jurisdiction of the United States the supra pp 13-15 In the respects noted above however the extraterriregulations can be read as imposing restrictions on extraterri­ treated have treated torial use of military forces and numerous courts have the Department of Defense regulations as law binding the agency See United States v in its conduct of law enforcement activity denied Cir cert denied 469 ir Prado-Montero 740 F 2d 113 1st c Del Prado-Montero united states Unltsd- feflts g Roberts m U S 1984 United states States v Roberts sacra u s 1021 1984 • v 1 Yll ll v Yanis m supra♦ In sum the Department of Defense regulations contained in C are ambiguous at best as to the 213 10 6 a iii C the section 213 10 6 a iii restraints they place on the use of Department of Defense jurisdicpersonnel to enforce the laws outside the territorial jurisdic­ intertion of the United states States Although we think the better inter­ pretation of the regulations is to construe them consistently with the statutory provisions until they are amended some regula­ ambiguity will remain concerning the legality under the regulathe laws tions of the use of military personnel to enforce the overseas IV Conclusion conclusion apply We conclude that the Posse Comitatus Act does not apply Neither the outside the territory of the United States Neither language history nor legislative history of the Act suggests that Congress intended the restrictions on use of the military in in Under extraterritorially Under civilian law enforcement to apply extraterritorially these circumstances established rules of statutory construction only having only impose a a presumption that the Act be construed as having enable a construction also is necessary to enable domestic effect Such a certain criminal laws to be executed and to avoid unwarranted restraints on the President's constitutional powers Although some language in the Department of Defense regulations suggests that certain restrictions on the use of military assistance apply better outside the land area of the United States we believe the better in view is to read those regulations consistently with provisions in those the underlying statute stating that no limitations beyond those 8 imposed by the Posse Comitatus Act were intended to be enacted 1 18 continued 18 continued section 213 10 a 2 B iv 213 l0 a 2 B iv to the general prohibition on direct •ta ctions taken under express enforcement activities for ajctions statutory authority to assist officials in the execution of the therein laws subject to applicable limitations therein • - 27 - Until the regulations are revised to so provide however some until uncertainty about the scope of the regulations will remain William P Barr Barr Assistant Attorney General Office of Legal Counsel l i •l i - -r· -·ifb r t- ’ - 28 28