The Military’s Role in Civilian Investigations

The Ninth Circuit recently published an interesting opinion highlighting the increasing role military investigators play in some civilian prosecutions. In United States v. Dreyer, the appellate court held that military investigators violated Posse Comitatus by providing direct assistance to civilian law enforcement.

The Posse Comitatus Act, 18 U.S.C. § 1385, prohibits Army and Air Force military personnel from participating in civilian law enforcement activities unless authorized by law.  Department of Defense regulations and case law extend the prohibition to the Navy and Marine Corps.

While Posse Comitatus is often discussed whenever the military provides assistance to civilian law enforcement, it is rarely invoked as strongly as in Dreyer, where the court suppressed evidence that was discovered by military investigators and overturned the defendant’s conviction. The court here held that the military’s “broad investigation into sharing of child pornography by anyone within the state of Washington, not just those on a military base or with a reasonable likelihood of a Navy affiliation, violated the regulations and policies proscribing direct military enforcement of civilian laws.”

It is important to note that the court’s rationale does not apply to civilians on military installations. Nor does it necessarily apply to a civilian who is inadvertently discovered through a more narrowly tailored military investigation.  Under these circumstances, however, the court rejected the government’s argument that this investigation complied with Posse Comitatus: “[s]uch an expansive reading of the military’s role in the enforcement of the civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society.”  

Although this holding is a split with other circuits–where limited investigative assistance to civilian law enforcement has been upheld in certain contexts–it may take on a heightened importance because it comes at a time of increasing unease regarding electronic privacy and government surveillance. It also comes at a time of increased cooperation between the military and civilian authorities, thereby increasing the possibility that this level of overreach will reoccur, even if unintentionally. This issue is therefore likely to appear again in the near future.

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