![]() Courts examine whether: (1) civilian law enforcement officials made a direct active use of military investigators to execute the law (2) the use of the military pervaded the activities of the civilian officials or (3) the military was used so as to subject citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature. Three tests have developed to determine when the Posse Comitatus Act is violated. However, a number of statutes, including the Insurrection Act, permit the military directly to execute federal law or provide assistance to states in the throes of insurrection where state officials are unable to execute the law. Congress, however, has approved a number of instances where extraordinary circumstances warrant a departure from the general rule, particularly in cases where the armed forces provide civilian assistance without becoming directly involved in civilian law enforcement. It reflects an American tradition that bridles at military involvement in civilian affairs. The Posse Comitatus Act states that "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act 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 under this title or imprisoned not more than two years, or both." 18 U.S.C. This is an abridged version of CRS Report R42659, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, in which the authorities for the statements made here may be found. As administrative adoption of the act for the Navy and Marines demonstrates, the military has a long-standing practice of avoiding involvement in civilian affairs which it believes are contrary to the Act. The most significant impact of the Posse Comitatus Act is attributable to compliance by the armed forces. The National Guard is covered by the act only when acting in federal service. Although the Constitution does not seem to provide such an express exception, military doctrine permits military commanders to exercise emergency authority and to take action to protect federal property.Īlthough the Posse Comitatus Act applies on its terms only to the Army and Air Force, Department of Defense regulations governing military assistance to civil authorities limit the roles of all of the armed services, including civilian personnel, to prevent their direct involvement in law enforcement activities. The Posse Comitatus Act does not apply where the Constitution expressly authorizes the use of the armed forces to execute the laws in such a role. Less frequently, plaintiffs have sought relief in the form of civil damages for an alleged violation. The Act has apparently been used for only a couple of prosecutions, and it is more frequently invoked collaterally as a usually unsuccessful means to avoid jurisdiction or exclude evidence acquired with the assistance of the military. The Posse Comitatus Act states that “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act 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 under this title or imprisoned not more than two years, or both.” 18 U.S.C.
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