such civil disturbances. Additionally, the military will be called upon to provide personnel and equipment for certain special support activities, 4 such as domestic terrorist events involving weapons of mass destruction. This article does not address the laws implicated under such limited and special circumstances, but reviews potential legal issues arising out of law enforcement’s interface with the military in more common day-to-day missions.

Law enforcement agencies most likely will encounter military support in counterdrug operations, training, disaster assistance, or search and rescue missions. Some activities, such as counterdrug operations, are planned. Others arise out of some exigency. If time and circumstances permit, however, it is highly recommended that the law enforcement agencies involved develop a memorandum of understanding (MOU) between themselves and the supporting military department. At a minimum, this document should state what support is being provided, who pays for the support, and the nature and duration of the support.5

The MOU, as well as the operational deployments themselves, should be guided by the legal parameters surrounding such activi-ties. The first step in defining such parameters is to review the scope and nature of the PCA.

UNDERSTANDING THE POSSE COMITATUS ACT

To Whom the PCA Applies

By enacting the PCA, Congress sought to terminate the prevalent use of federal soldiers in civilian law enforcement roles in the South during the Reconstruction Period following the American Civil War. Today, the PCA is viewed as a prophylaxis against direct military involvement with civilian law enforcement activities. In other words, police officers protect the public safety by investigating criminal activity while the military fights the U.S. battles against hostile enemies.

The PCA, however, does not prohibit all military participation with civilian law enforcement. The key to understanding the PCA is to recognize to whom it applies and what military missions it impacts. Law enforcement authorities seeking assistance from the military should understand the PCA and applicable case law, as well as the implementing regulations published by the secretary of defense and the secretaries of the military departments.

Often times, for instance, when the military support comes from National Guard units acting in their Title 32 (state) capacity,6 the PCA does not apply, and there is no need to perform a PCA analysis. This is why the National Command Authority (NCA) directed National Guard assets in their Title 32 status, rather than active forces, to provide supplemental security at civilian airports in response to the recent terrorist attacks. Reservists, on the other hand, are always subject to PCA restrictions when performing their military duty. The first hurdle, therefore, is determining whether or not the PCA applies to the type or category of military force lending support. If the military support an agency receives comes from military units to which the PCA applies, the agency should take steps to ensure that the MOU acknowledges this fact and contains provisions to preclude potential PCA violations. In weighing the application

Mr. Bolgiano, the senior attorney in the Office of Chief Counsel of the DEA, also serves as a deputy staff judge advocate of the 175th Wing, Maryland Air National Guard.