Recent amendments to Title 10, U.S. Code

The use of our forces overseas must be IAW the applicable SOFA with that nation.

Within the United States, the use of military forces in dealing with an

off-post terrorist incident will normally necessitate presidential approval.

Unless there is an overwhelming emergency preventing communication with higher

headquarters, the provision of military forces in such a situation will require

this approval in advance. This is IAW a Memorandum of Understanding (MOU) between

DOD and DOJ, which deals with the use of federal military force in domestic

terrorist incidents. This would not, as we shall soon see, prevent the giving of

advice, sharing intelligence information, loaning equipment, the delivery of

equipment, or the training of civilian personnel in its use.

g. Recent amendments to Title 10, U.S. Code.

(1) General. The Posse Comitatus Act prohibits the use of military forces

to execute the civil laws of the United States.

This extends to such things as

conducting

searches

and

seizures, arrests,

stop

and

frisk

actions; the

"interdiction of a vehicle, vessel, aircraft, or other similar activity;" and the

use of military personnel "for surveillance or pursuit of individuals, or as

informants, undercover agents, investigators, or interrogators."

(DA Pam 27-21,

paragraph 3-4e.) It is, then, "a general prohibition against the use of military

personnel in the enforcement of federal, state, or local law."

(DA Pam 27-21,

paragraph 3-5a.)

It is aimed at activities which "subject civilians to the

exercise of military power that is regulatory, prescriptive, or compulsory in

nature" (AR 190-24 paragraph 3-4f).

(2) Furnishing information.

10 USC Section 371 states that the military

may "provide to federal, state, or local civilian law enforcement officials any

information collected during the normal course of military operations that might be

relevant to a violation of any federal or state law within the jurisdiction of such

officials." In other words, the military can provide information "collected in the

normal course of military operations." This does not justify, however, planned or

created missions "for the primary purpose of aiding civilian law enforcement

officials." (DA Pam 27-21, paragraph 3-5b.)

(3) Equipment and facilities. 10 USC Section 372 states

that the military

may make available equipment and facilities "to any federal,

state, or local

civilian law enforcement official for law enforcement purposes."

There are various

approval levels, depending on the type of assistance that has been

requested.

(4) Training and advice. 10 USC Section 373 states that the military "may

assign members of the Army, Navy, Air Force, and Marine Corps to train federal,

state, and local civilian law enforcement officials in the operation and

maintenance of equipment made available under Section 372...and to provide expert

advice." This would, for example, allow the military to loan a helicopter to the

state sheriff, to be used in searching for an escaped civilian prisoner. It would

not, however, justify using the military pilot

MP1018

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