MILITARY LAW REVIEW that specific organizations, such as regiments, battalions, companies and individual members, such as individual military policemen may not so used.114 The Washington Herald Post of 7 May 1930 reported a probable violation in an account concerning 100 mounted troops and 2 officers from Fort Myer, Virginia, who aided civil authorities in a fruitless search for a murder suspect reported to be in the vicinity of Arlington and defying arrest."15 While the above mentioned incident would fall into the classical concept of the posse, and it is clear that the Army and its members may not be considered a part of the emergency power of the community in the ordinary signification of that phrase, the Act goes further. "Or otherwise" signifies that the Army and its members may not be considered a part of the ordinary law enforcement apparatus of the community either. The prohibition extends to assisting the police in investigating a crime committed by a civilian, notwithstanding the fact that any resulting arrests would be made by civilian police accompanying the military." In practice, "to execute the laws" has been construed to mean the execution of the civil laws, that is, the laws enacted by the Federal, State, or local governments for the governments of the community as a whole, without regard to the military or civilian status of the individual members thereof. This principle has been sometimes stated in terms of enforcement of the laws against civilians. This is believed to be inaccurate, however; the Act makes no mention of the persons against whom the laws are executed but merely prohibits the employment of the Army to execute the laws. Thus it is the character of the laws executed and not the person against whom they are enforced which is important."1 The Uniform Code of Military Justice "1" is a statutory exception to the Posse Comitatus Act, making possible the enforcement by military personnel of the laws required for discipline. In the event of national calamity or extreme emergency-such as an A-bomb attack, invasion, insurrection, earthquake, a fire, or flood, the interruption of the U.S. mail, or any calamity disrupting the normal process of Government-which is so imminent as to render dangerous the awaiting of instructions 114 JAGA 1956/8555, 26 Nov 1956. 115 TJAG declined to render an opinion as to the legality of such use on only the newspaper's statement of facts. JAG 370.6, 17 May 1930. 116 JAGA 1956 8555, 26 Nov 1956. 117 JAG 370.6, 8 May 1930, 2 Dig. Op. Army sec. 81.5; id. 370.6, 15 Jun 1926. RESTRICTIONS UPON THE USE OF THE ARMY from the proper military Department, an officer may take whatever action the circumstances reasonably justify. The best example of prompt action and good judgment is the universally commended activity of Federal troops in the San Francisco earthquake and fire in April, 1906.121 Soldiers moved promptly and captured President McKinley's assassin in 1901,122 and, in 1920, the commanding officer of Governor's Island rushed a battalion of infantry to the scene of the Wall Street bombing.12 On Sunday, March 18, 1928, 150 Chinese, detained by immigration authorities on Angel Island in San Francisco Bay, assaulted a matron and started a mutiny. The commanding officer of nearby Fort McDowell properly sent troops and restored order.124 While the Angel Island incident may be justified on an emer gency basis it could have been sustained as an action necessary to protect government property. The right of the United States to protect its property by intervention with Federal troops is an accepted principle of our Government. The exercise of this right is an executive function and extends to all Government property of whatever nature and wherever located, including premises possessed, though not necessarily owned, by the Federal Government. Intervention is warranted where the need for protection of Federal property exists and the local authorities cannot or will not give adequate protection.125 120 AR 500-50, 22 Mar 1956; 24 Op. Atty. Cen. 549 (1902); 33 Op. Atty. Gen. 562 (1923); par. 50609, AFM 110-3, 1 Jul 1955. The Air Force sponsored National Search and Rescue plan completed 129 rescue, relief and disaster missions between 1 Jun 1957 and 14 Aug 1957. New York Times, 15 Aug 1957, p. 21. For a partial list of Army aid in disasters see Appendix B. As a general rule, if a calamity is designated as a "national disaster" the Army will have tendered aid. Although AR 500-50 permits emergency use of troops when th "circumstances reasonably justify", a sounder test is that of "necessity." C rently the doctrine taught at the Judge Advocate General's School, U. S. A▾ this concept is based on the forerunner of AR 500-50, General Order Numer 26, Headquarters, Army, 1894, as cited in Winthrop, Military Law and Precedents 868 (2 Ed, 1920 Reprint). Certainly it would be much safer to use “necessity" as criteria because there is danger of having to justify past actions in order to avoid criminal or civil liability. 121 "In a desperate situation Gen. Funston saw clearly the thing that was necessary to be done and did it." Rept. of Sec. War, 19 (1906), cited in Federal Aid, supra note 18 at 309-10. Wiener, supra note 33 at 52. 122 New York Times, Sep. 7, 1901, p. 1. 123 Dupuy, Governor's Island, Its History and Development, 1637-1937, 36 (1937), cited in Wiener, supra note 33, at 55-6. The troops were accompanied by the Staff Judge Advocate, Major Allen W. Gullian, who later became The Judge Advocate General of the Army. 124 JAG 370.6, 13 Apr. 1928; Dig. Op. JAG 1912-30, par. 13; Wiener, supra note 33 at 56; par. 506.09, AFM 110-3, 1 Jul. 1955. 125 AR 500-50, 22 Mar 1956. MILITARY LAW REVIEW Intervention must be restricted to temporary needs and should not be on a permanent basis. Thus, in 1933, there was no objection to furnishing troops to guard the United States mint as a matter of emergency but their permanent assignment for that purpose was deemed to be inadvisable and contrary to the established policy of the Government.126 This rule has now been extended to prohibit c'etailing Army personnel to answer emergency calls to various Government buildings in the District of Columbia.127 Because the need was temporary, soldiers have been properly furnished to guard the residence and office of the United States High Commissioner to the Philippine Islands; 1 to protect the last resting place of the late President Franklin D. Roosevelt ; 129 to protect funds used to pay Chanute Field soldiers while such monies were in Post Office Department hands between the train and the bank; 130 and to guard gold in transit if on an emergency basis." 181 By Executive Order 8972, 12 December 1941, the President directed the Secretary of War to maintain military guards and to take other appropriate measures to protect from injury national defense material, premises, and utilities. While this au 126 JAG 370.61, 27 Dec 1933. 127 JAGA 1955/5613, 15 Jun 1955. 128 The Commanding General of the Philippine Islands Department determined that the number of civilian guards was inadequate to protect public property due to unusual conditions and that the need was temporary. JAG 093.7, 21 May 1940. The provisions of the Posse Comitatus Act were applicable to the Philippine Islands at that time. JAG 370.6, 15 Jan 1924; id. 13 May 1931; id. 321.4, 11 Jun 1923. 129 The Hyde Park, N.Y., gravesite had been presented to the United States, and the Department of Interior had had no chance to arrange for permanent protection. SPJGA 1945/10728, 19 Oct 1945, citing opns. JAG 093.7, 21 May 1940; id. 370.61, 19 Jan 1934; id. 370.61, 27 Dec 1933; id. 370.6, 14 Sep 1925. 180 JAG 370.6, 28 Jun 1924. 181 JAG 370.61, 19 Jan 1924; but see JAG 370.6, 14 Sep 1925, where a permanent detail of three soldiers was requested to guard shipments of money, by registered mail, through uninhabited New Mexican country. There being no actual or threatened robbery, the request was denied. The Army's position was set out in 1926, in a letter to the Provost Marshal General: "The dictum of Justice Miller in the case of In re Neagle, 135 U.S. 65, declaring the power of the President to provide a sufficient guard of soldiers to insure the protection of the mail, has not been overlooked... such authority . . . does not extend to the general policing of all mail trains by United States troops, but only to the protection of the mail following advice to the Federal authorities of a particular and imminent danger .....” RESTRICTIONS UPON THE USE OF THE ARMY thority is still cited in Army Regulations, it is doubtful if its validity can be extended into periods of peace.13 The Posse Comitatus Act, it may be concluded, is normally applicable to military organizations or individuals operating as a part of the emergency power of the community or of the ordinary law enforcement facilities executing any laws against anyone (unless excepted by statute or the Constitution). Nevertheless, emergency circumstances may justify the employment of troops even though not normally permitted. E. Act Limited To Certain Geographical Locations So far as territoriality is concerned, the Posse Comitatus Act applies in the continental United States, its territories and its possessions (subject to express exceptions discussed below). It does not apply in foreign countries, where military forces of the United States are frequently stationed. Until a Federal court decided to the contrary in Chandler v. United States, 133 The Judge Advocate General of the Army was of the opinion that the Act did restrict Army activities in foreign countries. Accordingly, he disapproved requests that the Army hold a civilian prisoner pending trial before the United States Court in China at Tientsin 135 and to transport to the United States, in Army vessels, those Americans whom the court convicted.13 134 Troops were not permitted to execute the laws in the JAG 370.6, 1B Oct 1926; 6 Comp Gen. 741 (1927). 182 AR 500–50, 22 Mar 1956. President Roosevelt promulgated his Executive Order 5 days after the bombing of Pearl Harbor and under the authority of the Act of 20 Apr 1918, 40 Stat. 533, (now 18 U.S.C. 2155), the World War I anti-sabotage act. The President relied on this Act to permit him to post guards on private property, during war time, when civilians were unable to guard the property themselves. In the author's opinion, the normal peacetime situation would not justify such intervention, but the authority is tacitly still there. A more thorough discussion of this point is beyond the scope of this thesis. 133 171 F.2d 921 (1948), cert. denied 336 U. S. 918 (1949), reh. denied 336 U.S. 947 (1949). 184 Some of these earlier opinions were cited to sustain an opinion that the Posse Comitatus Act forbade use of military police in regulating traffic in the Territory of Hawaii. JAGA 1956/1192, 16 Jan 1956. The same conclusion might well have been reached without resorting to authorities which have been so definitely weakened. See fn 139, infra. 135 In two cases the Consul General asked and was refused anything more than a cell in the guardhouse or some other secure room for the prisoner. Ho was told that he would have to have the marshal or such other civilian guard as the Court might designate retain custody of the prisoners. JAG 014.5, 27 Oct 1923; id. 014.5, 20 Dec 1923. 124 JAG 541.1, 5 Mar 1924. MILITARY LAW REVIEW Philippine Islands and they were restricted in the field of law enforcement in Puerto Rico.158 The Chandler case arose shortly after World War II had ended when Chandler, an American citizen, was charged with treason and arrested in Germany by Army authorities acting for the Department of Justice. Presented with the issue of applicability of the Posse Comitatus Act, the court said: "... this is the type of criminal statute which is properly presumed to have no extra-territorial application in the absence of statutory language indicating a contrary intent. Particularly, it would be unwarranted to assume such a statute was intended to be applicable to occupied enemy territory, where the military power is in control and Congress has not set up a civil regime." 189 Accordingly, it seems reasonably well-established that the Posse Comitatus Act imposes no restriction on employing the military services to enforce the law in foreign nations. In recent years the Army has been requested to (and The Judge Advocate General of the Army has approved) take such actions in overseas areas as making identification of persons suspected of committing, in the United States, certain civil offenses, giving lie detector examinations and interviewing suspects.100 137 Despite the provisions of Sec. 5 of the Act of Aug 29, 1916, Philippine Organic Act, (39 Stat. 545) that the statutory laws of the United States should not apply to the Philippine Islands except when they specifically so provide. The Governor General was denied 500 Philippine Scouts (a part of the United States Army) needed to enforce quarantine regulations. The opinion differentiated between land and ship quarantine (the latter is expressly provided for by Congress). JAG 370.6, 16 Jan 1924. 138 The Army considered borrowing convict labor, to be guarded by soldiers, in Puerto Rico to fill holes on the rifle range. The Posse Comitatus Act problem was never fully resolved (although it was recognized), because the land was to be soon transferred and the opinion suggested waiting on the transfer. JAG 684, 1 Apr 1925. 139 Chandler v. United States, supra note 133 at 936. In similar cases, convictions of "Axis Sally" and "Tokyo Rose" were sustained. See Gillars v. United States, 182 F. 2d 962 at 972, 973 (D.C. Cir., 1950), and Iva Ikuko Toguri D'Aquino v. United States, 192 F. 2d 338 at 350 (9th Cir., 1951), cert. denied 343 U.S. 935 (1952), reh. denied 343 U.S. 958 (1952). Using the Chandler case as authority, Army guards and military transportation were approved for deporting an undesirable alien, provided that agents of the Naturalization and Immigration Service retained custody until the ship left the territorial limits of the United States. JAGA 1952/9649, 5 Feb 1953. Land or naval forces may be employed for the safekeeping and protection of an accused extradicted from a foreign country to the United States. 18 U.S.C. 3192. 140 JAG 014.13, 1 Apr 1919 (comparison of photo of forgery suspect with a soldier in France); JAGA 1954/5140, 10 Jun 1954 (identification of soldier stationed in Korea); id. 1954/6516, 29 Jul 1954 (performing lie detector test on soldier stationed in Europe and accused of violation of a State law); id. 1957 2176, 6 Mar 1957 (taking statement of soldier stationed in Germany for State police). |