CIAO DATE: 04/01

The U.S. Military and Civil Infrastructure Protection: Restrictions and Discretion under the Posse Comitatus Act

This article sets out the constraints of the Posse Comitatus Act of 1878 (the “Act”), which generally prohibits active enforcement of civilian laws by the military, and describes the discretion of the military commander to assist civilian law enforcement in protecting America’s information infrastructure against computer—assisted attack. A primary purpose of this article is to help legal advisors to commanders and DoD civilian officials better understand the boundaries of command discretion so that commanders and officials can feel free to exercise proper command discretion to assist law enforcement according to military interests and their professional and personal ethics and ideals. Another primary purpose of the article is to appraise Congress of the Act, its prohibitions, and its application to assist in framing the policy debate about how to constrain or expand the discretion of commanders and other officials to most productively serve the American public.