DoD Issues Instructions on Military Support of Civilian Law EnforcementSubmitted by cooper11 on Sat, 04/13/2013 - 17:53
April 11, 2013
Though the Posse Comitatus Act is the primary restriction on direct DoD involvement in law enforcement functions, it does not prevent military personnel from participating in circumstances “authorized by the Constitution or Act of Congress.” This includes circumstances involving “insurrection, domestic violence, or conspiracy that hinders the execution of State or Federal law” as well as actions “taken under express statutory authority.” The DoD’s instruction includes a list of more than a dozen “laws that permit direct DoD participation in civilian law enforcement” including many obscure statutes that are more than a hundred years old. For example, a law passed in 1882 and codified under 16 USC § 593 allows for the President to use land and naval forces to “prevent the felling, cutting down, or other destruction of the timber of the United States in Florida.” Likewise, the Guano Islands Act of 1856 enables the President to use land and naval forces to protect the rights of a discoverer of an island covered by the Act.
Military commanders also have “emergency authority” to use military forces in civilian law enforcement functions “in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances”. This authority is limited to actions “necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order” and “provide adequate protection for Federal property or Federal governmental functions.” In fact, an enclosure to the DoD instruction describing requirements for support of civil disturbance operations states that military commanders “shall not take charge of any function of civil government unless absolutely necessary under conditions of extreme emergency.” According to the instruction, any “commander who is directed, or undertakes, to control such functions shall strictly limit DoD actions to emergency needs and shall facilitate the reestablishment of civil responsibility at the earliest time possible.”