The use of our forces overseas must be IAW the applicable SOFA with that nation.
Within the United States, the use of military forces in dealing with an
off-post terrorist incident will normally necessitate presidential approval.
Unless there is an overwhelming emergency preventing communication with higher
headquarters, the provision of military forces in such a situation will require
this approval in advance. This is IAW a Memorandum of Understanding (MOU) between
DOD and DOJ, which deals with the use of federal military force in domestic
terrorist incidents. This would not, as we shall soon see, prevent the giving of
advice, sharing intelligence information, loaning equipment, the delivery of
g. Recent amendments to Title 10, U.S. Code.
(1) General. The Posse Comitatus Act prohibits the use of military forces
to execute the civil laws of the United States.
This extends to such things as
"interdiction of a vehicle, vessel, aircraft, or other similar activity;" and the
use of military personnel "for surveillance or pursuit of individuals, or as
informants, undercover agents, investigators, or interrogators."
(DA Pam 27-21,
paragraph 3-4e.) It is, then, "a general prohibition against the use of military
personnel in the enforcement of federal, state, or local law."
(DA Pam 27-21,
It is aimed at activities which "subject civilians to the
exercise of military power that is regulatory, prescriptive, or compulsory in
nature" (AR 190-24 paragraph 3-4f).
(2) Furnishing information.
10 USC Section 371 states that the military
may "provide to federal, state, or local civilian law enforcement officials any
information collected during the normal course of military operations that might be
relevant to a violation of any federal or state law within the jurisdiction of such
officials." In other words, the military can provide information "collected in the
normal course of military operations." This does not justify, however, planned or
created missions "for the primary purpose of aiding civilian law enforcement
officials." (DA Pam 27-21, paragraph 3-5b.)
(3) Equipment and facilities. 10 USC Section 372 states
that the military
may make available equipment and facilities "to any federal,
state, or local
civilian law enforcement official for law enforcement purposes."
There are various
approval levels, depending on the type of assistance that has been
(4) Training and advice. 10 USC Section 373 states that the military "may
assign members of the Army, Navy, Air Force, and Marine Corps to train federal,
state, and local civilian law enforcement officials in the operation and
maintenance of equipment made available under Section 372...and to provide expert
advice." This would, for example, allow the military to loan a helicopter to the
state sheriff, to be used in searching for an escaped civilian prisoner. It would
not, however, justify using the military pilot