The opinion of the court was delivered by: PARKER
(Denying Defendant's Motion to Dismiss for Violation of the Posse Comitatus Act)
Barrington D. Parker, United States District Judge
The Posse Comitatus Act ("the Act"), 18 U.S.C. § 1385, prohibits the use of the nation's military forces as a posse comitatus
or otherwise to execute the laws of the United States. Counsel for Fawaz Yunis has moved to dismiss the indictment claiming that the involvement of the United States Navy in the apprehension and arrest of the defendant in the Mediterranean Sea and later, his transportation to the United States, violated the Act.
This Court concludes that the motion should be denied. The Navy's participation and involvement did not embrace nor did it extend to such regulatory, proscriptive, or compulsory military powers as contemplated under the Act. The facts in this case show that the Navy played at most, a passive role which indirectly aided the execution of United States laws. By providing military materials, supplies and equipment to the Federal Bureau of Investigation ("FBI"), the Navy did not violate the Posse Comitatus Act. Moreover, that service branch was merely aiding law enforcement efforts of FBI agents in international waters, where no civil governmental authority existed.
18 U.S.C. § 1385 (1979). It was originally enacted in response to the use of military personnel to enforce laws in the South during the reconstruction period following the Civil War. Legislative history indicates that the immediate objective of the Act was to end the use of federal troops in former confederate states where civil power had been reestablished. Many southerners believed the troops altered the outcome of state elections by actively supporting reconstruction candidates in disputed elections. See, Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948); 7 Cong. Rec. 4245 (1878) (remarks of Sen. Merriman); id. at 3847 (remarks of Sen. Hale). Nearly 40 years ago, our Circuit Court noted that Congress intended to preclude the military from assisting local law enforcement officers in carrying out their duties. Gillars v. United States, 87 U.S. App. D.C. 16, 182 F.2d 962, 972 (D.C. Cir. 1950). As noted in a recent appellate ruling, the Act was designed to limit "the direct active use of federal troops by civil law enforcement officers" to enforce the laws of the nation. United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986) (quoting United States v. Red Feather, 392 F. Supp. 916, 922 (D.S.D. 1975)). Limiting military involvement in civilian affairs is basic to our system of government and the protection of individual constitutional rights.
Because the proscriptions of the Act have been relied upon in various situations, several tests have been articulated to determine whether an individual's rights have been infringed upon through violations of the statute. In the litigation which arose out of the standoff between Native American Indians and federal law enforcement authorities at Wounded Knee, South Dakota, in 1973, United States Marshals, FBI agents, the National Guard, as well as Army and Air Force personnel were both visible and involved. The first test was whether civilian law enforcement agents made "direct active use" of military personnel to execute the laws. Red Feather, 392 F. Supp. at 921. (The statute prohibits the "direct active use of Army or Air Force personnel and does not mean the use of Army or Air Force equipment or materiel." Id.). The second, whether "use of any part of the Army or Air Force pervaded the activities" of the civilian law enforcement agents. United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975) (No one questioned that substantial amounts of Army material and equipment were used. But "it is the use of military personnel, not materiel, which is proscribed by 18 U.S.C. § 1385." Id. at 1379. Since there was reasonable doubt whether military personnel were involved enough to render their actions unlawful, the defendants were acquitted. Id. at 1381). The third test is whether the military personnel subjected citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature. United States v. McArthur, 419 F. Supp. 186 (D.N.D. 1975), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654 (1977). (In McArthur, military personnel were used, but it was "not material enough to taint the presumption that the law enforcement officers were acting in performance of their duties." Id. at 195. "The borrowing of highly skilled personnel, like pilots and highly technical equipment like aircraft and cameras, for a specific, limited, temporary purpose is far preferable to the maintenance of such personnel and equipment by the United States Marshals' Service." Id. at 194).
It is not surprising that arguments similar to those relied upon by Yunis' counsel have been regularly advanced by a number of defendants charged with federal crimes, who resided abroad when the military was utilized to effect their arrest. In the late 1940's the First Circuit held when United States military forces arrested a defendant overseas in an area where no civil regime exists, that there was no violation of the Act. Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918, 93 L. Ed. 1081, 69 S. Ct. 640 (1949) ("This is the type of criminal statute which is properly presumed to have no extraterritorial application in the absence of statutory language indicating a contrary intent," particularly in an enemy territory occupied by the United States military. Id. at 936). In another situation, when military authorities in an allegedly illegal and unlawful manner brought from Japan to San Francisco, a notorious American citizen -- Tokyo Rose -- suspected of treason, her counsel's claim that the Posse Comitatus Act had been violated, and that the federal court lacked jurisdiction, was of no avail. Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 351 (9th Cir. 1951). Relying upon Chandler and Gillars, supra p. 892, the Ninth Circuit held that the defendant's claim was without merit. Both Toguri D'Aquino and Chandler involved situations where the United States military had a substantial presence in post-war enemy territory. More than two decades later, the Ninth Circuit in United States v. Cotten, 471 F.2d 744 (9th Cir. 1973), again rejected the posse comitatus argument as applied to persons abducted overseas. Two Americans living in Viet Nam were forcibly returned to the United States and later charged with federal law violations. They claimed that the use of military personnel and equipment to remove them from Viet Nam and bring them to the United ...