The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law Page: 27 of 59
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CRS-23
The final and more commonly accepted proposition is that the phrase "in cases
and under circumstances expressly authorized by . . . Act of Congress" demands
statutory exception specifically refer to some form of military assistance.52
Information and Equipment
In 1981, Congress enacted general law enforcement exceptions to the Posse
Comitatus Act prohibitions in order to resolve questions raised by the so-called
Wounded Knee cases.53 The cases grew out of events beginning late in February of
1973, when an armed crowd broke into and looted a trading post in the village of
Wounded Knee on the Pine Ridge Reservation in South Dakota. FBI agents, U.S.
marshals, and Bureau of Indian Affairs police surrounded the village and besieged the
group almost immediately. The take-over and events which occurred during the siege
led to four cases54 involving a series of federal criminal charges including obstructing
a law enforcement officer in the lawful performance of his duties during the course
of a civil disturbance." Military assistance provided federal authorities at Wounded
Knee undermined the prospects of a conviction under 18 U.S.C. 231(a)(3).56
52 The Department of Defense Directive, for example, lists only the military-aid-specific
statutes in its inventory of statutory exceptions, DoD Dir.No. 5525.5 (Encl.4) A.2.e.
53 H.R.Rep.No. 97-71, pt.2, 5-6, reprinted in 1981 UNITED STATES CODE, CONGRESSIONAL
AND ADMINISTRATIVE NEWS 1785, 1788 ("Although the military activities challenged in each
case were identical, the courts in Banks and Jaramillo found those activities to be in violation
of the [Posse Comitatus] Act, while the lower court in Red Feather found those activities to
be permissible").
54 United States v. Jaramillo, 380 F.Supp. 1375 (D.Neb. 1974), app.dism'd, 510 F.2d 808
(8th Cir. 1975); United States v. Banks, 383 F.Supp. 368 (D.S.D. 1974); United States v.
Red Feather, 381 F.Supp. 916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186
(D.N.D. 1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir. 1976).
55 18 U.S.C. 231(a)(3)(1970 ed.)("Whoever commits or attempts to commit any act to
obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged
in the lawful performance of his official duties incident to and during the commission of a civil
disorder which in any way or degree obstructs, delays, or adversely affects commerce or the
movement of any article or commodity in commerce or the conduct or performance of any
federally protected function -- shall be fined not more than $10,000 or imprisoned not more
than five years, or both").
56 "The evidence of military involvement contained in the transcripts [of the Wounded Knee
trial cases], in essence, falls into the following categories: use by federal civil law enforcement
officers of material and equipment furnished by the United States Army and the South Dakota
National Guard; the presence of United States Army personnel who were ordered to Wounded
Knee to observe and report to the President through the Department of Defense the necessity
of calling in federal troops; the drafting by military personnel of contingency plans to be used
by the United States Army in the event that federal military intervention was ordered by the
President; aerial photographic reconnaissance service provided by the United States Air Force
and the Nebraska National Guard; the advice, urging and counsel given by the United States
Army personnel to Department of Justice personnel on the subjects of negotiations, logistics
and rules of engagement; and the maintenance of military vehicles performed by members of
the Nebraska National Guard," United States v. McArthur, 419 F.Supp. at 193 n.3.
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The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law, report, June 1, 2000; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc810022/m1/27/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.