Resolution Opposing the Proposed Title 10 U.S. Code Chapter 18 Section 374a Set Forth in Section 1035 Of The House Version Of The National Defense Authorization Act For Fiscal Year 2006, Which Would Expand The Role Of The Armed Forces Of The United States in Border Control And Antiterrorism Functions

WHEREAS, in 1878, Congress enacted the Posse Comitatus Act, 18 U.S.C. Section 1385, which makes it a crime to use the Armed Forces of the United States to enforce the law, unless authorized by the Constitution or Act of Congress; and

WHEREAS, the Posse Comitatus Act established the principle that the military is not a domestic police force auxiliary; and

WHEREAS, Congress since 1980, has enacted exceptions to the Posse Comitatus Act allowing the use of the Armed Forces of the United States to conduct anti-drug and antiterroism activities outside of the borders of the United States at 10 U.S.C. Sections 371-381; upon request of a State to enforce laws in case of civil disturbance at 10 U.S.C. Sections 331-334; and upon request of a State to act to preserve life and property in case of natural disasters at 42 U.S.C. Section 5170b(c); and

WHEREAS, heretofore, exceptions to the Posse Comitatus Act have focused on passive and indirect assistance to civilian law enforcement authorities as opposed to direct law enforcement activities by the Armed Forces of the United States; and

WHEREAS, on May 25, 2005, the House of Representatives passed its version of National Defense Authorization Act for Fiscal Year 2006 (H.R. 1815); and

WHEREAS, the House version at Section 1035 proposed to add Title 10 U.S. Code Chapter 18 Section 374a, which would provide, upon request of the Secretary of Homeland Security, for the use of the Army, Navy, Air Force and Marine Corps to assist

“(1) the Bureau of Border Security of the Department of Homeland Security in preventing the entry of terrorists, drug traffickers, and illegal aliens into the United States; and
“(2) the United States Customs Service of the Department of Homeland Security in the inspection of cargo, vehicles, and aircraft at points of entry into the United States to prevent the entry of weapons of mass destruction, components of weapons of mass destruction, prohibited narcotics or drugs, or other terrorist or drug trafficking items”; and

WHEREAS, the proposed Title 10 U.S. Code Chapter 18 Section 374a would introduce the Armed Forces of the United States into direct law enforcement operations within the borders of the United States; and


WHEREAS, the proposed Title 10 U.S. Code Chapter 18 Section 374a would be contrary to the interests of the domestic and external security of the United States by reducing:

(a) the separation of function between civilian and military authorities;
(b) the separation of function among Federal, state and local governments;
(c) military readiness of the Armed Forces of the United States by diverting personnel and equipment from their primary mission of defending the nation from foreign aggressors; and

WHEREAS, the proposed Title 10 U.S. Code Chapter 18 Section 374a presents issues of civilian control over the military and civil liberties of civilians in connection with military operations; and

WHEREAS, on November 15, 2005, the Senate passed its version of the National Defense Authorization Act for Fiscal Year 2006 (H.R. 1815) which excluded the proposed Title 10 U.S. Code Chapter 18 Section 374a; and

WHEREAS, a Conference Committee of members of the House of Representatives and the Senate will be impaneled to reconcile the two versions of the National Defense Authorization Act for Fiscal Year 2006 (H.R. 1815).

NOW THEREFORE BE IT RESOLVED that the Philadelphia Bar Association urges the Conference Committee to exclude the proposed Title 10 U.S. Code Chapter 18 Section 374a from the final version of the National Defense Authority Act for Fiscal Year 2006 (H.R. 1815).

AND BE IT FURTHER RESOLVED, that the Chancellor or his designee is authorized to communicate the position of the Philadelphia Bar Association to the members of the Conference Committee and all other members of the Senate and House of Representatives of the United States and the President.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: NOVEMBER 22, 2005