PART 3 OF 3
In the aftermath of the Civil War, the Supreme Court upheld legislation enacted by Congress and enforced by the President that confiscated the property of "rebels," designated as such. Miller v. United States, 78 U.S. 268 (1870). The plaintiff had argued that the relevant provisions of the legislation were "municipal regulations only," i.e., "merely statutes against crimes," id. at 304, and therefore that the Fifth and Sixth Amendments should have applied. The Court rejected that contention, holding that the provisions "were not enacted under the municipal power of Congress to legislate for the punishment of crimes ... [but were] an exercise of the war powers of the government." Id. at 304-05. "Because "the power to declare war involves the power to prosecute it by all means and in any manner in which war may legitimately be prosecuted... [i]t therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor." Id. at 305. Further, the Court upheld the confiscations despite the United States citizenship of the property owners. "[T]hose must be considered [enemies] who, though subjects or citizens of the lawful government, are residents of the territory under the power or control of the party resisting that government... . Have they not voluntary subjected themselves to that party? And is it not as important to take from them the sinews of war, their property, as it is to confiscate the property of rebel enemies resident within the rebel territory?" Id. at 311-12. Indeed, the Court even suggested that the property of disloyal residents within the Union could also have been confiscated in the same manner. Referring to the experience of the Framing generation during the Revolution, the Court found that the practice of the period showed "the general understanding that aiders and abettors of the public enemy were themselves enemies, and hence that their property might lawfully be confiscated." Id. at 312; see also id. at 311 (those who, though "subjects of a state in amity with the United States, are in the service of a state at war with them" are "public enemies"). Miller establishes that certain basic constitutional rights do not apply to the enemy, and that even United States citizenship may not negate the possibility that one may have the legal status of an enemy. Accord Ex pane Quirin, 317 U.S. 1 (1942). Other Supreme Court decisions from the Civil War are consistent with this outcome. [39]
The doctrine that a commander, acting in circumstances of compelling military necessity, may destroy a citizen's private property without causing the United States to incur an obligation of compensation has deep roots in the law. "In 1776 during the Revolution when private property was destroyed at Charleston in furthering military operations, during the War of 1812 when a plantation near New Orleans was damaged by inundation caused by the cutting of a levee to impede the advance of Packenham, during the Civil War, when a house was destroyed at Paducah, Ky., because its location on the outskirts of town made it a favorable point for an enemy sharpshooter, -- in all these cases the government refused to indemnify the owners... [D]uring the Civil War property vested in cotton was not protected and persons within the limits of the insurrection, whoever they might be, were unable to secure satisfaction because cotton was considered a military article, 'potentially an auxiliary of the enemy' by which he would be able to secure warlike material abroad." Elbridge Colby, War Crimes, 23 Mich. L. Rev. 606, 622-23 (1925) (footnote omitted).
These cases show the Court's consistent recognition that the protections of the Bill of Rights are tempered by the circumstances of war. The lessons of the Court's approach to the wartime application of the Fifth Amendment should apply to the Fourth Amendment, which also involves constitutional rights with respect to property. If the Court has found that wartime destruction of property does not involve a "taking" under the Fifth Amendment, it seems safe to conclude that the Court would not apply the Fourth Amendment to domestic military operations against foreign terrorists. The former involves a great intrusion into an individual's rights -- the complete destruction of property -- than does a temporary search and seizure of property. In any event, both rights would give way before the Government's compelling interest in responding to a direct, devastating attack on the United States, and in prosecuting a war successfully against international terrorists -- whether they are operating abroad or within the United States.
This is not, of course, to say that war suspends constitutional civil liberties. See, e.g., Ex pane Milligan, 71 U.S. (4 Wall.) 2, 124 (1866). But the Court has also found it "'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (citation omitted), and has interpreted and applied constitutional protections to accommodate that overriding need. Here, we believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment.
We emphasize that nothing in this advice precludes the use of information obtained by military actions for criminal investigations or prosecutions, if obtaining it for such use is not a significant purpose of the action. As a general matter, the Fourth Amendment law does not require that a search or seizure have only a single purpose so long as it is otherwise legitimate. Thus, the police may engage in (objectively justified) traffic stops even if their underlying motive may be to investigate other violations as to which no probable cause or even articulable suspicion exists. See Whren v. United States, 517 U.S. 806 (1996); see also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (otherwise valid warrantless boarding of vessel by customs officials not invalidated by facts that State police officer accompanied customs officials and officers were following tip that vessel might be carrying marijuana). In the FISA context, the courts have said that an "otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by [50 U.S.C.] § 1806(b), as evidence in a criminal trial." Duggan, 743 F.2d at 78. Thus, while the Government's military and law enforcement purposes may overlap, the Government should not be denied the benefits to its law enforcement functions so long as securing such benefits is not the predominant purpose of its military actions.
VI.
We have argued that the Fourth Amendment would not apply to military operations the President ordered within the United States to deter and prevent acts of terrorism. We recognize, however, that courts could decide otherwise, although we believe this would be at odds with the best reading of the constitutional text and history, practice, and the case law. Nonetheless, we analyze the standards that would govern if courts were to subject domestic military operations to the Fourth Amendment.
The Fourth Amendment's "'central requirement' is one of reasonableness." Illinois v. McArthur, 121 S. Ct. 946, 949 (2001) (quoting Texas v. Brown, 460 U.S. 730, 739 (1983)); see also Vernonia School Dist. 47J, 515 U.S. at 652 ("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness."'). Even in the context of ordinary law enforcement by the police, the Court has "made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." McArthur, 121 S. Ct. at 949. "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). In light of the extraordinary emergency created by the September 11, and taking account also of the compelling need military commanders would no doubt have to act swiftly in particular exigent circumstances, we think that the courts -- if they applied the Fourth Amendment at all - -would find that the challenged military conduct was "reasonable."
It is, of course, not possible to preview the reasonableness analysis for all possible uses of force within the United States. Our Office has, however, previously examined a somewhat similar situation, and the advice we gave at that time is relevant here. In 1996, we were asked whether law enforcement or the armed forces could use deadly force to defend against an aerial attack on the Summer Olympics in Atlanta, Georgia, consistent with the Fourth Amendment. Memorandum to File from Robert Delahunty, Special Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games at 1 (Aug. 19, 1996). We began by noting the destruction of an aircraft would be a "seizure" within the meaning of the Fourth Amendment, and we assumed that the use of deadly force by the law enforcement or military personnel to prevent or repel an imminent aerial attack on the Olympic Games would be subject to the Fourth Amendment. See Garner, 471 U.S. at 7, 11; Graham v. Connor, 490 U.S. 386, 394-95 & n.10 (1989); Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993). Our Office assumed that the Fourth Amendment applied both because we were asked to as part of the hypothetical question, and because the possible use of the aircraft was not considered to be part of a larger military attack upon the United States.
In judging the constitutionality of the use of deadly force, we applied the Supreme Court's balancing test for determining "reasonableness" for Fourth Amendment purposes. Because "[t]he intrusiveness of a seizure by means of deadly force is unmatched," Garner, 471 U.S. at 9, the governmental interests in using such force must be powerful. We concluded that deadly force would be justified if the danger to an officer's life, or to the life or safety of an innocent third party were sufficiently great. Further, we noted:
The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight ... With respect to a claim of excessive force, the same standard of reasonableness at the moment applies .... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. Graham, 490 U.S. at 396-97.
We think those conclusions are still valid, and would support a broader use of military force -- consistent with the Fourth Amendment, to combat terrorism within the continental United States. The law has traditionally recognized that force (including deadly force) may be legitimately used in self-defense. "[S]elf defense is ... embodied in our jurisprudence as a consideration totally eliminating any criminal taint ... It is difficult to the point of impossibility to imagine a right in any state to abolish self defense altogether . . . ." Griffin v. Martin, 785 F.2d 1172, 1186-87 & n.37 (4th Cir. 1986), aff'd by an equally divided court, 795 F.2d 22 (4th Cir. 1986) (en banc), cert. denied, 480 U.S. 919 (1987). "More than two centuries ago, Blackstone, best known of the expositors of the English common law, taught that 'all homicide is malicious, and of course, amounts to murder, unless ... excused on the account of accident or self-preservation . . . .' Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone's time ...." United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir.) (footnote omitted), cert denied, 414 U.S. 1007 (1973). See also United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) (application of criminal statute prohibiting destruction of civil aircraft to acts of United States military personnel in a state of hostilities could "readily lead to absurdities" because they "would not be able to engage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution").
Moreover, the court in Romero v. Board of County Comm'rs, County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995), cert. denied, 516 U.S. 1073 (1996), held that a law enforcement officer's "use of deadly force in self-defense is not constitutionally unreasonable. See Garner, 471 U.S. at 11 (deadly force may be used if 'officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others') ... [See also] O'Neal v. DeKalb County, 850 F.2d 653, 655, 657-58 (11th Cir. 1988) (holding officers did not act unreasonably in shooting suspect who charged toward one of them with a knife)." Furthermore, deadly force may legitimately be used by governmental actors, not only in their own defense, but in defense of innocent third parties. See Cummingham v. Neagle, 135 U.S. 1, 58-59, 63-64 (1890); Garner, 471 U.S. at 11; Cole v. Bone, 993 F.2d at 1333; Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir. 1988); United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. at 164 ("[A] USG officer or employee may use deadly force against civil aircraft without violating [a criminal statute] if he or she reasonably believes that the aircraft poses a threat of serious physical harm to another person.").
These precedents show that the use of force in the current circumstances would be reasonable, within the terms of the Fourth Amendment. Here, military force would be used against terrorists to prevent them from carrying out further attacks upon American citizens and facilities. This would amount to the exercise of the right of self-defense on a larger, but no less compelling, scale. A justification of self-defense therefore would justify the use of force, even deadly force, in counter-terrorism operations domestically. We stress that any calculus of reasonableness must also take into account that the September 11 attacks and the threat of further attacks pose a far graver threat to national security than the risk of terrorist attack in 1996. As we were aware at that time, any attack would have been discrete and localized. Here, however, attacks have fallen within an unfolding pattern of terrorism directed at the United States by a coordinated international network of terrorists. Nor would an attack on the Atlanta Games have had the same sweeping consequences for our nation's defense capabilities and financial stability as the attacks on the Pentagon and on the World Trade Center. Thus, in any judicial examination of the reasonableness of a particular military operation or class of operations, we think that the Government's interests must be given extraordinary weight; [40]
Conclusion We conclude that the President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States. We believe that these operations generally would not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function. Even if the Fourth Amendment were to apply, however, we believe that most military operations would satisfy the Constitution's reasonableness requirement and continue to be lawful.
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Notes:1. Lewis Libby, Legal Authority for a Domestic Military Role in Homeland Defense, in Sidney D. Drell, Abraham D. Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305 (1999).
2. See generally Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 Am. J. Int'l L. 161 (1999); Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559 (1999).
3. On September 12, 2001, the North Atlantic Council of the North Atlantic Treaty Organization ("NATO") agreed that the September 11 attack was directed from abroad against the United States, and decided that it would be regarded as an action covered by article 5 of the 1949 NATO Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. Press Release, NATO, Statement by the North Atlantic Council, available at
http://www.nato.int/docu/update/2001/1001/e1002a.htm Article 5 of the NATO Treaty provides that if an armed attack against a NATO member occurs, each of them will assist the Party attacked "by taking forthwith, individually or in concert with the other Parties, such action as it deems necessary, including the use of armed force." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.
4. It is true, however, that a condition of "war" has been found to exist for various legal purposes in armed conflicts between the United States and entities that lacked essential attributes of statehood, such as Indian bands, see Montoya v. United States, 180 U.S. 261, 265, 267 (1901) and insurrections threatening Western legations, see Hamilton v. McClaughry, 136 F. 445, 449 (C.C.D. Kan. 1905) (Boxer Rebellion).
5. We note that Washington's use of the militia to suppress the "Whiskey Rebellion" in western Pennsylvania was authorized by statute. See Edward S. Corwin, The President: Office and Powers 166 (1940).
6. See generally Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 66 (1993). Among the Presidents who have used troops domestically to protect federal functions or to enforce federal law are President Hayes in the railroad strike of 1877; President Cleveland in the Pullman strike of 1895; President Hoover in response to the "Bonus Army" in 1932; and President Eisenhower against Governor Faubus' resistance to school desegregation in 1957. President Theodore Roosevelt intended to use federal troops to take over mines and work them in the coal strike of 1902, had he not been able to settle the strike by other means. Theodore Roosevelt, Theodore Roosevelt: An Autobiography 489 (1985 reprint) (1913).
7. The breakdown of public order in Massachusetts during Shay's Rebellion of 1786-1787 -- which Alexander Hamilton described as a "civil war" in that State, The Federalist No. 6, at 24 (Alexander Hamilton) (Clinton Rossiter ed., 1999) -- and the obvious ineffectiveness of the Continental Congress in mustering troops to meet the crisis, were among the immediate causes leading to the call for the Constitution. See The Federalist No. 25, at 134- 35 (Alexander Hamilton) (illustrating need for new Constitution by discussing Shay's Rebellion); see also Andrew C. McLaughlin, The Confederation and the Constitution 1783-1789, at 114-17 (1971 reprint) (1962). Clearly, responding to events such as Shay's Rebellion would involve the use of military force domestically.
8. See also The Federalist No. 41, at 224 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society. The powers requisite for attaining it must be effectually confided to the federal councils."). Supreme Court opinions echo Hamilton's argument that the Constitution presupposes the indefinite and unpredictable nature of the "the circumstances which may affect the public safety," and that the federal government's powers are correspondingly broad. Id. No. 23, at 122. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) (noting that the President "exercis[es] the executive authority in a world that presents each day some new challenge with which he must deal").
9. See 1 William Blackstone, Commentaries *257, *258 (1765) (attributing to the King "the sole prerogative of making war and peace," including the authority to "publicly declare[] and duly proclaim[]" war and to "begin[], conduct[], or conclud[e]" it); The Federalist No. 69, at 386 (Alexander Hamilton) (noting that "while [the power] of the British king extends to the declaring of war and to the raising and regulating of fleets and armies," those authorities "by the Constitution under consideration, would appertain to the legislature").
10. Article II's enumeration of the Treaty and Appointments Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) ("Nothing in the text of the Constitution or the deliberations of the Framers suggests that the Senate's advice and consent role in the treaty-making process was intended to alter the fundamental constitutional balance between legislative authority and executive authority.").
11. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
12. Benjamin Franklin had asserted in 1770 that maintaining a standing army without the consent of the colonial legislatures was "not agreeable to the Constitution." Quoted in Richard B. Morris, The Forging of the Union 1781-1789 at 32 (19S7). "Samuel Adams warned that 'the Sins of America may be punished by a standing Army,' and Richard Henry Lee agreed with James Monroe that it led to 'the destruction of liberty.' . . . One of the principal causes of the rejection of the famous Albany Plan in 1754 was that the Grand Council would have the right to raise troops and levy taxes as well as other critical powers." Jackson Turner Main, The Anti-Federalists: Critics of the Constitution 1781-1788, at 14-15 (1961).
13. 2 Farrand, supra at 329 (alteration in original).
14. Brutus X (Jan. 24, 1788), in 15 Documentary History of the Ratification of the Constitution 463 (John P. Kaminski et al. eds., 1984).
15. Washington assumed this interpretation of presidential power, and Madison defended it. Washington used force against the Wabash Indians pursuant to a statute that provided forces and authorized the call-up of militia to protect frontier inhabitants from hostile incursions of Indians. See Abraham D. Sofaer, The Power Over War, 50 U. Miami L. Rev. 33, 41 (1995). Furthermore, during President John Adams' administration, the United States and France were engaged in armed conflict, and Congress provided the President with frigates without any restriction on their use. Again, the bare statutory provision for a navy was thought sufficient by many congressmen to authorize the President to order such deployments. Finally, when President Thomas Jefferson deployed a naval squadron against the Barbary pirates, he relied on no specific delegation of authority to use force. Id. at 43.
16. Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures.); Hiroto v. MacArthur, 338 U.S. 197, 208 (1949) (Douglas, J., concurring) (The President has "full power to repel and defeat the enemy."); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) ("there are some types of war which without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack"). The court further observed that "in a grave emergency [the President] may, without Congressional approval, take the initiative to wage war... In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive." Id. at 613-14; Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir.) (Silberman, J., concurring) ("[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization."), cert. denied, 531 U.S. 815 (2000); 203 F.3d at 40 (Tate], J., concurring) ("[T]he President, as commander in chief, possesses emergency authority to use military force to defend the Nation from attack without obtaining prior congressional approval."); Cox v. McNutt, 12 F. Supp. 355, 358-59 (S.D. Ind. 1935) (three-judge court) ("It cannot be controverted that the [Executive] has wide discretion in determining whether or not an exigency requires the use of military forces. If the [Executive] determines that an exigency requires the use of the military forces, then, in his discretion, be has authority to call out such forces, and the courts will not interfere therewith... . The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for, without such liberty to make immediate decisions, the power itself would be useless.").
17. See also Powers Mercantile Co. v. Olson, 7 F. Supp. 865, 867-68 ("[T]he Governor, as the chief executive officer of the state... is authorized... when in his judgment the exigencies of the situation require, to use the military forces of the state... [and] the means which are employed to restore law and order must necessarily be left largely to the discretion of the Governor and the commanding officer of the troops."); Hafeld v. Graham, 81 S.E. 533, 535 (W.Va. 1914) (upholding the Governor's seizure of a newspaper during the course of a domestic military campaign and noting that the Governor "is vested with the discretion to determine whether the conditions existing are such as to make it necessary to put into operation and effect the military power of the state and, having once exercised his judgment in the premises, in good faith, the courts have no power to review it and to declare his official act void").
18. See also Memorandum for John M. Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Deployment of United States Armed Forces in Bosnia and Herzegovina, at 9 (Nov. 30, 1995); Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 176 (1994).
19. See also Hamilton v. Regents, 293 U.S. 245, 264 (1934) (federal government's war powers are "well-nigh limitless" in extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870) ("The measures to be taken in carrying on war ... are not defined (in the Constitution]. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.").
20. The analysis and conclusion with respect to 10 U.S.C. § 375 (2000) would not materially differ.
21. The PCA originated as the Act of June 18, 1878, ch. 263, § 15, 20 Stat 145, 152. It was amended in 1956 to cover the Air Force. Act of Aug. 10, 1956, § 18(a), 70A Stat 626; see United States v. Walden, 490 F.2d 372, 375 n.5 (4th Cir.), cert. denied, 416 U.S. 983 (1974). The contemporary version of the PCA differs only slightly from the original.
22. The PCA originated in the House of Representatives of the 45th Congress. The House was then controlled by a Democratic majority sympathetic to the wishes of political majorities in the former Confederate States, and in vigorous opposition to a Republican-controlled Senate and a narrowly-elected Republican President, Rutherford B. Hayes. The House supporters of the measure intended it to "apply[] to everyone, from the Commander in Chief to the lowest officer, who presumed to take upon himself to decide when he would use the military force in violation of the law of the land." Wrynn v. United States, 200 F. Supp. 457, 464 (E.D.N.Y. 1961). However, the statute was amended by the Senate "by adding the reference to express Constitutional authorization and by deleting so much of the House Bill's language as referred to use of the military 'under the pretext' of executing the laws (7 Cong. Rec. 4240)." Id.; see also James P. O'Shaugbnessy, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. Crim. L. Rev. 703, 704-13 (1976); Note, Honored in the Breech: Presidential Authority to Execute the Laws With Military Force, 83 Yale L.J. 130, 141-44 (1973).
23. Accord United States v. Thompson, 30 M.J. 570. 573 (A.F.C.M.R.) ("[T]he prohibitions contained in the Posse Comitatus Act ... do not now, nor were they ever intended to, limit military activities whose primary purpose is the furtherance of a military (or foreign affairs) function, regardless of benefits which may incidentally accrue to civilian law enforcement), aff'd, 32 M.J. 5 (C.M.A. 1990), cert. denied, 502 U.S. 1074 (1992).
Department of Defense ("DoD") regulations promulgated pursuant to a congressional directive in 10 U.S.C. § 375 also recognize that the PCA does not apply to or restrict "[a]ctions that are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities." DoD Directive 5525.5, Enclosure 4, E4.1.2.1 (Jan. 15, 1986) (as amended Dec. 20, 1989). See generally United States v. Hitchcock, No. 00-10251 (D. Haw. 2001) at '4-•5 (reviewing and applying DoD Directive 5525.5). Several courts (including the court of appeals in Hitchcock) have accepted and applied the DoD Directive in a variety of circumstances to find that the use of the military was not in violation of the PCA or 10 U.S.C. § 375. See, e.g., United States v. Chon, 210 F.3d 990, 993 (9th Cir.) (activities of Navy Criminal Investigative Service "were permissible because there was an independent military purpose for their investigation - the protection of military equipment"), cert. denied, 531 U.S. 910 (2000); Applewhite v. United States Air Force, 995 F.2d 997, 1001 (10th Cir. 1993) (military may investigate illegal drug transactions by active duty military personnel), cert. denied, 510 U.S. 1190 (1994).
24. See, e.g., United States v. Kavanaugh, 807 F.2d 787, 790-91 (9t° Cir. 1987) (Kennedy, J.); United States v. Johnson, 952 F.2d 565, 572 (1" Cir. 1991), cert. denied, 506 U.S. 816 (1992); United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984).
25. For a review of some of the main statutory exceptions to the PCA, including several fairly recent enactments, see Doyle, supra, at 20-29; Major Kirk L. Davies, The Imposition of Martial Law in the United States, 49 A.F. L. Rev. 67, 80-82 (2000); see also Commander Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority, and Other Military Assistance to Civil Authority (MACA), 1997-JLTL Army Law. 3, 13-14.
26. Section 333 originated as § 3 of the Ku Klux Klan Act of April 20, 1871, Ch. 22, § 3, 17 Stat. 13, 14.
27. The Attorney General noted that in order to invoke his authority under § 333, "it is required that the President first issue a proclamation, as set forth in section 334 of title 10." The proclamation requirement remains in the law. See 10 U.S.C. § 334.
28. See, e.g., Kyllo v. United States, 121 S. Ct. 2038, 2042 (2001); Illinois v. McArthur, 121 S. Ct. 946, 949 (2001); Flippo v. West Virginia, 528 U.S. 11, 13 (1999); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). "The requirement that a warrant be obtained is a requirement that the inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."' Schmerber v. California, 384 U.S. 757, 770 (1966) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).
29. See Boyd v. United States, 116 U.S. 616,630(1986); Akhil Reed Amar, The Constitution and Criminal Procedure ch. 1 (1997); Telford Taylor, Two Studies in Constitutional Interpretation 35-44 (1969).
30. In time of insurrection, territory belonging to the United States has been held to be "hostile," and ordinary civil law was inapplicable to military actions there. See 24 Op. Att'y Gen. 570, 574 (1903) (armies of the United States were "in hostile territory" or "enemy's country" in Philippine Islands during insurrection, although United States was sovereign over territory).
31. Soon after the War of 1812, the scope of the President's authority to arrest and detain enemy aliens was litigated before Justice Bushrod Washington in Lockington v. Smith, 15 F. Cas. 758 (Case No. 8,448) (Cir. Ct. D. Pa. 1817) (Washington, Circuit Justice). The Act of July 6, 1798 had authorized the President to detain enemy aliens with a view of removing them from the United States. The plaintiff, a British alien, had been arrested and confined by a federal marshal in 1813 pursuant to a general order of President Madison. The plaintiff argued, in part, that the 1798 statute authorized the President to detain enemy aliens only for the purpose of removal, and that he had not been confined for that purpose. Justice Washington disagreed, holding that the legislation "appears to me to be as unlimited as the legislature could make it. ... There is not, I think, the slightest ground for the argument, that every restraint or confinement of an alien enemy is unauthorized by this law, unless it be made with a view to his removal from the United States. If this be the true construction of the act, it would follow that, however dangerous it might be, under any supposed circumstances, for alien enemies to quit the United States, possessed of information useful to the enemy, and detrimental to this Nation, they must nevertheless be either sent away, or be suffered to go at large, protected spies in the service of the enemy, and possibly in the vicinity of their armies and navy... It seems perfectly clear, that the power to remove was vested in the president, because, under certain circumstances, he might deem that measure most effectual to guard the public safety. But he might also cause the alien to be restrained or confined, if in his opinion the public good should forbid his removal." Id. at 760. Justice Washington also rejected the plaintiffs argument that the executive was required to resort to the courts to enforce the applicable regulations, once the President had issued them. The "great object" of the legislation, he said, "was to provide for the public safety, by imposing such restraints upon alien enemies, as the chief executive magistrate of the United States might think necessary, and of which his particular situation enabled him best to judge,." Id. at 761. Hence no judicial hearing was necessary before the alien could be seized. Nor could the Constitution be invoked to imply a right to a pre-seizure hearing: "I do not feel myself authorized to impose limits to the authority of the executive magistrate which congress, in the exercise of its constitutional powers, has not seen fit to impose." Id. In short, Justice Washington read the statute to vest broad emergency powers in the President to restrict the liberties of enemy aliens in time of war, and found it unproblematic that the President should summarily arrest and detain such persons in the interest of national security and without prior authorization by a magistrate.
The other War of 1812 precedents that might be read the other way appear only to stand for the proposition that military cannot use courts-martial or military commissions to try citizens who did not take part in military operations. In Smith v. Shaw, 12 Johns. 257 (N.Y. Sup. Ct. 1815), 1815 WI. 1065, the court sustained an action in trespass and false arrest brought by a naturalized citizen who had been arrested by two U.S. military officers on charges of spying, breach of parole, exciting mutiny, and illicit trading with the enemy and who had thereafter been detained in military custody. The court held that none of the offenses charged against the plaintiff was cognizable by court-martial, except that relating to the charge of spying; and by statute, see Act of April 10, 1806, citizens could not be "spies. The defendant had no right to detain the plaintiff to stand trial before a court-martial, because such a court would lack subject-matter jurisdiction. 1815 WL 1065 at *6.
Somewhat more instructive is M'Connell v. Hampton, 12 Johns. 234 (N.Y. Sup. Ct. 1815), 1815 WL 1058, a case from the same period and before the same court. There the court set aside a jury verdict against the defendant as excessive and ordered a new trial. The defendant, a U.S. army commander, had confined the plaintiff and had brought him to trial before a court-martial on a charge of treason. There was some evidence that the defendant was ''wantonly exercising his military power, for the purpose of gratifying an private resentment." 1815 WL 1058, at 11 (opinion of Thompson, C.J.). On the other hand, the evidence also showed that the defendant "had strong grounds for believing the plaintiff to be a suspicious character," id. at *12 (opinion of Spencer, J.), because of his dealings with the enemy. The majority of the judges held that the jury had been prejudiced and had awarded excessive damages. Judge Spencer stated that "[t]he defendant, as Commander in Chief of a division of the army, being near the enemy's territory [in Canada], and at no great distance from their forces, was bound, by every consideration of duty as a soldier ... to avoid surprise, and to guard himself against machinations of any kind... It seems to me that the jury have wholly overlooked the critical and delicate situation of the defendant, as a commander of an army upon the frontiers, as also the very suspicious light in which he must have viewed the plaintiff." Id. Again, the case only involved the question whether a citizen could be subject to the jurisdiction of a military court
32. Although the post-Civil War Supreme Court did allow tort actions to go forward against Union military officers who had arrested and imprisoned citizens at places remote from the scene of battle, it did not preclude the availability of the defense that such actions were authorized by Presidential order. See Beckwith v. Bean, 98 U.S. 266, 282-83 (1878) (leaving question undecided). It is true that several lower courts rejected such a defense. For example, in Griffin v. Wilcox, 21 Ind. 370 (1863), 1863 WL 2075, the court refused on constitutional grounds to give effect to an Act of Congress that established the defense of compliance with Presidential orders in suits in false arrest and imprisonment The court said that the President may not authorize "a military officer to seize and execute a private citizen of the United States, who was quietly pursuing his lawful business, in a State not in rebellion." 1863 WL 2075 at *9. But it seems to have been essential to these decisions that the challenged arrests and detentions took place far from the front. See id. at *10 ("the rebellion ... is not general, but local. It is confined to the Southern States. It is a sectional rebellion. The theatre of force. Where the civil tribunals are closed, is sectional, bounded by geographical lines."); see also Milligan v. Hovey, 17 F. Cas. 380, 381 (C.C.D. Ind. 1871) (Case No. 9,605); Johnson v. Jones, 44 Ill. 142 (1867), 1867 WL 5117 at *7. Moreover, one lower court decision in a post-Civil War false arrest case accepted that the defense based on congressional ratification of the executive's acts was available, but found that the defendants had failed to show that any order or authorization of the President's underlay their imprisonment of the plaintiff. McCall v. McDowell, 15 F. Cas. at 1245. Thus, the scope of the President's power to order the military to arrest and detain citizens in places where armed conflict was occurring or was likely to occur was not decided in these cases.
33. The claim that the Fourth Amendment does not apply to military actions inside the United States whose object is to combat an enemy operating here is not altogether novel: it was made, with respect to the Bill of Rights as a whole, during the Civil War. The legal adviser to the War Department during the War observed, however, that those rights "were intended as declarations of the rights of peaceful and loyal citizens, and safeguards in the administration of justice by the civil tribunals; but it was necessary, in order to give the government the means of defending itself against domestic or foreign enemies, to maintain its authority and dignity, and to enforce obedience to its laws, that it should have unlimited war powers; and it must not be forgotten that the same authority which provides those safeguards, and guarantees those rights, also imposes upon the President and Congress the duty of so carrying on war as of necessity to supersede and hold in temporary suspense such civil rights as may prove inconsistent with the complete and effectual exercise of such war powers, and of the belligerent rights resulting from them. The rights of war and the rights of peace cannot coexist. One must yield to the other. Martial law and civil law cannot operate at the same time and place upon the same subject matter. Hence the constitution is framed with full recognition of that fact; it protects the citizen in peace and in war; but his rights enjoyed under the constitution, in time of peace are different from those to which he is entitled in time of war." William Whiting, War Powers under the Constitution of the United States 50-51 (1864).
34. In a case decided not long after the end of the Civil War, the Supreme Court of Illinois reached similar conclusions. See Johnson v. Jones, 44 Ill. 142 (1867), 1867 WL 5117. This was an action in trespass brought by an alleged Confederate sympathizer in Illinois who had been arrested and imprisoned in a military fortress, purportedly on the authority of President Lincoln's orders. The court rejected the defense that the plaintiff had been arrested as a belligerent and held as a prisoner of war. It did, however, state that had the plaintiff been a belligerent, the order of the President was wholly unnecessary to authorize the arrest. Any soldier has the right, in time of war, to arrest a belligerent engaged in acts of hostility toward the government, and lodge him in the nearest military prison, and to use such force as may be necessary for that purpose -- even unto death.' 1867 WL at *5. Further, although the court also rejected the defense that the arrest was justified as an exercise of martial law, it also stated that '[i]f a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army. He can do this under the same necessity which will justify him, when an emergency requires it, in seizing or destroying the private property of a citizen.' Id. at *7. In terrorist wars, unlike conventional warfare, there are of course no battle lines, and the theater of operations may well be in heavily populated urban settings. We think, however, that the same principle applies, and that a military commander operating in such a theater has the same emergency powers of arrest and detention.
35. See also Powers Mercantile Co., 7 F. Supp. at 868 (upholding the seizure of a factory to prevent a violent attack by a mob and noting that "[u]nder military rule, constitutional rights of individuals must give way to the necessities of the situation; and the deprivation of such rights, made necessary in order to restore the community to order under the law, cannot be made the basis for injunction or redress"); Swope, 28 P.2d at 7 (upholding the seizure and detention of a suspected fomenter of domestic insurrection by the "military arm of the government," noting that "there is no limit [to the executive's power to safeguard public order] but the necessities and exigency of the situation" and that "in this respect there is no difference between a public war and domestic insurrection") (emphasis added) (quotations and citation omitted); In re Moyer, 85 P. 190, 193 (Colo. 1904) ("The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting other to commit such acts, violates none of his constitutional rights."); In re Boyle, 57 P. 706, 707 (Idaho 1899) (upholding the seizure and detention of a suspected rebel during time of domestic disorder).
36. See also Heflebower v. United States, 21 Ct. Cl. 228, 237-38 (1886) ("['There is a distinction to be drawn between property used for Government purposes and property destroyed for the public safety... [I]f the taking, using, or occupying was in the nature of destruction for the general welfare or incident to the inevitable ravages of war, such as the march of troops, the conflict of armies, the destruction of supplies, and whether brought about by casualty or authority, and whether on hostile or national territory, the loss, in the absence of positive legislation, must be borne by him on whom it falls, and no obligation to pay can be imputed to the Government.").
37. The defense of military necessity to a claim for compensation for the destruction of property has been held to apply in the circumstances of insurrection (and not only those of war) in the Philippines during the period in which those islands were territory of the United States. In an international arbitration case arising out of injuries to a British-owned plant during the insurrection in the Philippines after the Spanish-American War, the tribunal rejected the claimant's demand for arbitration, stating that the damage had been an incident of United States military operations against the insurgents, and that foreign residents whose property happened to be in the field of operations had no right to recover. See Luzon Suger Refining Co., Ltd. (Great Britain v. United States), Nielsen's Report (1926) 586, discussed in 6 Green Hay wood Hackworth. Digest of International Law 178-79 (1943).
38. Even in a case involving the destruction of a Confederate citizen's property by Confederate Army officers, the Supreme Court held military necessity to be a defense. In Ford v. Surges, 97 U.S. 594 (1878), the Court declared:
[T]he destruction of the [plaintiffs] cotton, under the orders of the Confederate military authorities, for the purpose of preventing it from falling into the hands of the Federal army, was ... an act of war upon the part of the military forces of the rebellion, for which the person executing such orders was relieved of civil responsibility. [The Confederate commanders] had the right, as an act of war, to destroy private property within the lines of the insurrection, belonging to those who were co-operating, directly or indirectly, in the insurrection against the government of the United States, if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or crippling the military operations of the Federal forces.
Id. at 605-06. Moreover, the Court has also upheld, and construed liberally, statutes exempting persons from liability for acts of destroying or impressing property during wartime on the basis of the military authority vested in them. See, e.g., Beard v. Burls, 95 U.S. 434 (1877).
39. Thus, in Mrs. Alexander's Cotton, 69 U.S. 404 (1864), the Court upheld the Union navy's seizure of privately owned cotton from a Louisiana plantation as the capture and confiscation of enemy property, even though the area was for a brief time under occupation by the Union forces and even though the plaintiff claimed loyalty to the United States. See also Haycraft v. United States, 89 U.S. 81, 94 (1874); Beard v. Burrs, 95 U.S. at 438; cf. Price v. Poynter, 64 Ky. 387 (1867), 1867 WL 3918; Bell v. Louisville & Nashville R.R. Co., 64 Ky. 404 (1867), 1867 WL 3920.
40. Cf. Best v. United States, 184 F.2d 131, 139-41 (1st 1950) (Magruder, J.), cert. denied, 340 U.S. 939 (1951) (taking account of unsettled conditions in occupied Austria in immediate aftermath of Second World War in holding that warrantless search of Vienna apartment of U.S. national charged with treason pursuant to military orders was reasonable under Fourth Amendment).