Legal Digest

Military Support of Domestic Law Enforcement Operations
Working Within
Posse Comitatus
By David G. Bolgiano, J.D.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than 2 years, or both. 16 / FBI Law Enforcement Bulletin —Posse Comitatus Act of 18781

Military support of domestic law enforcement, especially in the counter-drug arena,2 has steadily increased over the past 20 years despite the ominous-sounding penalties of the Posse Comitatus Act of 1878 that created a general prohibition against using military personnel in civilian law enforcement. In light of the recent terrorist attacks on America, this support undoubtedly will increase. Local, state, and federal law enforcement communities should be aware of the most common types of military support available to them. They also should be familiar with some of the legal restrictions imposed on this support by, most notably, the Posse Comitatus Act (PCA).

There are specific circumstances when the military may be called upon to directly perform domestic law enforcement duties. Generally, this occurs when the military responds under any of the various civil disturbance statutes invoked by the president to support a request from a state, enforce federal authority, or protect constitutional rights.3 The PCA does not apply to the use of the military to quell disruptions to the public order during