                                                                Septem ber 22, 1977


77-51       MEMORANDUM OPINION FOR THE
            ASSOCIATE DEPUTY ATTORNEY GENERAL
            Law Enforcement at San Onofre Nuclear Generation
            Plant


  This memorandum is in response to your request that we examine the
legal aspects of the U.S. Marine Corps (USMC) providing police pro­
tection for the San Onofre nuclear power plant located on the Camp
Pendleton Marine Corps Reservation, San Diego County, Calif. The
m atter has arisen because under Nuclear Regulatory Commission
(NRC) regulations, Southern California Edison (SCE), the owner of the
plant, must establish documented liaison with the local law enforcement
authority to insure police response as part of its plan to protect the
power plant against assault.1 The Commander of Camp Pendleton has
declined to enter such an agreement with SCE on the ground that the
Marine Corps’ law enforcement activity is restricted to military person­
nel by the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.,
and the Posse Comitatus A ct, 18 U.S.C. § 1385. Civilian law enforce­
ment, he suggested, is the responsibility of the United States Marshals
Service. SCE has requested that the Attorney General clarify the
respective law enforcement responsibilities of the Marine Corps and the
Marshals Service.

     1.   Background
  Camp Pendleton was acquired by the United States in 1942 through
condemnation. Jurisdiction over the land was ceded by the State of
California and accepted by the Secretary of the Navy on behalf of the
   1 On August 6, 1977, the Special Operations Group of the U.S. Marshals Service
provided security support to SCE’s guard force during a demonstration at San Onofre by
an antinuclear pow er organization. However, it had 4 days’ advance notice of the
demonstration, which was completely without incident. We understand that the Marshals
Service requires at least 24-hour notice to assemble a Special Operations Group. We also
understand that it has neither the manpower nor facilities to provide protection against a
m ajor armed assault on the plant. As NRC regulations call for such protection, see 10
C FR § 73.50(a)(1), the Marine C orps would be the only practical Federal alternative to a
local law enforcement agency.

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United States. Thus, Camp Pendleton is within the exclusive territorial
jurisdiction of the United States, and the State has no power to punish
crimes committed on it. See, Johnson v. Yellow Cab Co., 321 U.S. 383,
386 (1944); Collins v. Yosemite Park Co., 304 U.S. 518, 528-30 (1938).
   The San Onofre power plant is located within the reservation on a
60-year easement granted by the Navy Department in 1964 pursuant to
Pub. L. 88-82, 77 Stat. 115. The plant is located on the coast, and the
site is bounded on the inland side by U.S. Highway 101. Immediately
across the highway is part of Camp Pendleton. The coastline on both
sides of the plant was reconveyed to the State of California for park
purposes in 1972, and the United States retroceded jurisdiction over
those parcels.
   In 1967, when the first unit of the San Onofre plant began function­
ing, SCE received a letter from the Assistant Chief o f Staff, G -4 of
Camp Pendleton, which stated in pertinent part:
        Since civil jurisdiction at Camp Pendleton is vested in the
      United States Government, the matter of police protection is some­
      what different here from that in civilian communities. General
     security within the Station is of course initially the responsibility of
      the Grantees who have the right to protect their personnel and
      property by any lawful means. Any emergency situation requiring
     outside police assistance should be reported to the Camp Pendleton
     Military Police, who will respond as soon as possible. Any criminal
     act committed by a member of the United States Armed Forces is
     under the jurisdiction of the Camp Pendleton Military Police. Most
     criminal acts committed by civilians would be under the jurisdic­
     tion of the Federal Bureau of Investigation. However, in most
     cases, and especially in emergency situations, it is advisable to
     contact the Military Police, who can, in turn notify the Federal
     Bureau of Investigation, if required, and resolve the matter of
     jurisdiction when the time is propitious.
In February 1977, NRC published the present version of 10 C FR 73.50,
which requires, inter alia, documented liaison with local law enforce­
ment authorities as a precondition to obtaining a nuclear operating
license. On April 27, 1977, SCE requested from the Marine Corps a
reaffirmation of its letter and a description o f its response capabilities.
The Staff Judge Advocate of the base responded on May 11 that the
Marine Corps lacked jurisdiction over unlawful civilian activity on the
reservation.

    2.   Enforcement Authority of the Base Commander
   There is no question that the San Onofre plant is within the exclusive
jurisdiction of the United States, because it is within the boundaries of
Camp Pendleton. The only legal issue presented is whether the military
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 police may apprehend civilians w ho violate Federal la w 2 on Camp
 Pendleton in order to turn them over the Federal civilian law enforce­
 ment authorities for prosecution and trial.
   For practical purposes, the military police constitutes the only force
 that provides police patrol and emergency services on a large military
reservation. Arrests of civilian violators on military reservations by the
military police are not uncommon.3 While the power of military au­
thorities to make searches that could not be made by civilian police has
been often litigated,4 civilian defendants have usually not contended
that the military police lacked powers to search or arrest that civilian
police would have in the same circumstances.5
   Only United States v. Banks, 539 F. 2d 14 (9th Cir. 1976), directly
addresses the question w hether military authorities may arrest, on a
military reservation, a civilian who has committed an offense on the
reservation. In that case, the defendant was arrested by the Air Force
police on an air base for possession o f drugs in violation of 21 U.S.C.
§ 841(a). Although there w as probable cause for the arrest, he contend­
ed that the Posse Comitatus Act, 18 U.S.C. § 1385,® completely prohib­
its military authorities from apprehending civilians. The Ninth Circuit
rejected this argument on two grounds. First, it held that the Posse
Comitatus A ct “does not prohibit military personnel from acting upon
base violations committed by civilians.” Id. at 16. Second, it held that
18 U.S.C. § 1382 7 and 10 U.S.C. § 809(a) 8 empower military authorities

   2 N RC regulations define “industrial sabotage” to include an armed attack on a nuclear
pow er plant, 10 C FR § 73.2(g), § 73.50(a)(1), or sabotage by an insider. See 18 U.S.C.
§§2151, 2155. In addition, various California statutes could be violated, and 18 U.S.C.
§ 13 makes such action a Federal offense. Finally, as stated, it is a separate offense to
enter a military reservation with intent to violate any law o r lawful regulation, 18 U.S.C.
§ 1382.
   ’ See, e.g.. United States v. Colclough, 549 F. 2d 937 (4th Cir. 1977) (armed robbery);
 United States v. Ellis, 547 F. 2d 863 (5th Cir. 1977) (drugs); United States v. Banks, 539 F.
2d 14 (9th Cir. 1976) (drugs); United States v. Matthews, 431 F. Supp. 70 (D. Okl. 1976)
(drugs); United States v. Holmes, 414 F. Supp. 831 (D. Md. 1976) (unlawfully entering
reservation).
   4 See, e.g.. United States v. Ellis, 547 F. 2d 863 (5th Cir. 1977); United States v. Vaughan,
475 F. 2d 1262 (10th Cir. 1973). Those cases turn on the question o f whether upon
entering the base there is an implied consent to search in the absence of probable cause.
   5 See, e.g., United States v. Colclough, supra.
   6 “W hoever, except in cases and under circumstances expressly authorized by the
Constitution or A ct o f Congress, willfully uses any part of the Army or the A ir Force as
a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000
or imprisoned not more than two years, or both.”
   7 “W hoever, within the jurisdiction of the United States, goes upon any military, naval,
or Coast G uard reservation, post, fort, arsenal, yard, station, or installation, for any
purpose prohibited by law or lawful regulation; or
   “ W hoever reenters or is found within any such reservation, post, fort, arsenal, yard,
station, or installation, after having been removed therefrom or ordered not to reenter by
any officer or any person in command or charge thereof—
   “Shall be fined not more than $500 or imprisoned not more than six months, o r both.”
   “ “N othing in this article limits the authority of persons authorized to apprehend
offenders to secure the custody o f an alleged offender until proper authority may be
notified.”

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to make such apprehensions in order to deliver the violator to the
civilian authorities. We believe that these conclusions are correct.
   It is well settled that the commanding officer o f a military base has
the power to admit or exclude civilians “as he may prescribe in the
interest of good order and military discipline.” Cafeteria Workers Union
v. McElroy, 367 U.S. 886, 892-93 (1961).9 The Court characterized this
power as “unquestioned . . . throughout our history,” citing with ap­
proval a line of opinions of the Attorney General going back to 1837.
   Because the commander has the power to exclude for the purpose of
maintaining order, he has the implicit power to condition entry on
lawful behavior. Thus, the Attorney General, in the earliest of the
opinions cited by the Court in Cafeteria Workers, stated the authority of
the Superintendent of West Point to be as follows:
     . . . I am o f the opinion that the superintendent o f the academy, as
     commandant of this military post, has a general authority to pre­
     vent any person within its limits from interrupting its discipline, or
     obstructing in any way the performance o f the duties assigned by
     law to the officers and cadets. All such persons are allowed to come
    within the bounds o f the post, under an implied engagement on their
    parts to respect the military authority legally established there, and to
    abstain from any act which may interfere with the purposes and
    regulations o f the post. I f this engagement be violated, they must be
    considered as wrongdoers; and the commandant will have a right to
    take such measures as may be necessary to protect the interests o f the
    establishment. It is obvious that, when persons in civil life, who
     may be allowed to reside at or to resort to the post, obstruct the
     professors or their officers in the performance o f their appropriate
     duties; or interfere with the studies or discipline of the academy; or
     encourage the cadets in acts o f insubordination; or enter into corre­
     spondence with them, contrary to the regulation, their further
     presence at the post will become, according to the nature of the
     circumstances and the degree of aggravation, more or less injurious
     to the institution; and that in flagrant cases of this sort, the prompt
     removal of the offenders may be indispensable. As they will not be
     amenable to a court martial, there is no other way in which the ill
     consequences which might otherwise result from such misconduct
     can be prevented. In the exercise o f a sound discretion, the comman­
     dant o f the post may, therefore, order from it any person not attached
     to it by law, whose presence is, in his judgment, injurious to the
     interests o f the academy. And, in case any person so ordered shall
     refuse to depart, after reasonable notice, and within a reasonable time,
     having regard to the circumstances o f the case, I think the superin­
  • This power o f exclusion is limited to some extent by the First Amendment. Compare,
Greer v. Spock, 424 U.S. 828 (1976), with, Flower v. United States, 407 U.S. 197 (1972).
That limitation is not relevant here, for the law enforcement assistance that the Marine
Corps is asked to furnish deals with violent, and hence unprotected, conduct.

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      tendent may lawfully remove him by force. 3 Op. Atty. Gen., at 272
      (1837). [Emphasis added.]
   Any violation o f the civilian criminal laws on the post would appear
to endanger its good order and thus justify the military authorities in
apprehending the violator and excluding him.
   This authority is reinforced by 18 U.S.C. § 1382, which, in part,
makes it an offense to enter a military reservation “for any purpose
prohibited by law or lawful regulation.” Its legislative history recog­
nized the commander’s pow er of expulsion, but found it to be an
insufficient deterrent to illegal behavior by civilians on military reserva­
tions.10 Because the military already had the power to expel, Congress
evidently anticipated that the military authorities would augment the
power by apprehending civilian violators for delivery to the civil au­
thorities. As the cases in note 3, supra, show, this is the normal practice.
   In sum, the commander o f a military reservation has a historically
recognized authority to maintain order and discipline on the reservation
and physically to expel disorderly civilians. In aid of that authority,
Congress has made it a crim e for a civilian to enter a military reserva­
tion with intent to violate the law. If the commander can expel, for the
benefit o f the installation, civilians who violate the law, it follows that
he may turn them over to civilian law enforcement authorities and that
they may be apprehended for that purpose.
   Emergency response by the military police to actual or attempted
sabotage of the nuclear pow er plant would, we believe, be for the
purpose of maintaining order on the reservation. In the light of the
SCE security forces and physical safeguards required by NRC, any
industrial sabotage would probably require violent action. Protection of
civilian property lawfully within the bounds o f the reservation from
attack and suppression of violent crime serve to maintain order within
the whole o f Camp Pendleton. Moreover, any act of industrial sabotage
at the plant would create a risk of nuclear accident and release of
radiation threatening the safety and well-being of the entire base. It is
plainly within the commander’s authority to maintain order to provide
the emergency military police assistance on the reservation necessary to
prevent such an incident.11
   The Posse Comitatus A ct is not to the contrary.12 It is well known
that the Posse Comitatus A c t was enacted during the Reconstruction
era to prohibit use of Federal troops to support the enforcement of

   10 See A ct of M arch 4, 1909, § 45, 35 Stat. 1097; S. Rep. 10, 60th Cong., 1st Sess., at 16.
   u This is particularly true because there is no other police patrol agency with Federal
jurisdiction on Camp Pendleton.
   “ On its face, the Posse Comitatus Act applies only to the Army and A ir Force, not to
the Navy or Marine Corps. However, the Secretary o f the Navy has provided by
regulation that the Navy and M arine Corps shall be bound by the Posse Comitatus Act
unless specifically instructed to th e contrary by the Secretary. Sec. Nav. Inst. 5820.7
(May 15, 1974). This regulation has force of law. See 5 U.S.C. § 5031; E x parte Reed, 100
U.S. 13 (1873). F or practical purposes, therefore, the Marine Corps is subject to the Posse
Comitatus A ct unless the Secretary makes an exception.

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State or Federal laws in the civilian community. See, generally, Chan­
dler v. United States, 171 F. 2d 921, 936 (1st Cir. 1948); Gillars v. United
States, 182 F. 2d 962 (D.C. Cir. 1950); United States v. Red Feather, 392
F. Supp. 916, 920-26 (D.S.D. 1975); 16 Op. Atty. Gen. 162-164 (1878);
7 Cong. Rec. 3579-86, 3846-49, 45th Cong., 2d Sess. (1878). The Act,
accordingly, has been held not to forbid the use of the military to
enforce the law against civilians in territories under military control
where the Armed Forces are lawfully responsible for the maintenance
of order. Gillars v. United States, supra, at 973. This principle should
apply equally to a military reservation. Moreover, limiting the effect of
the Posse Comitatus A ct to the civilian community avoids any inconsis­
tency between it and the subsequently enacted 18 U.S.C. § 1382. We
therefore conclude that the Posse Comitatus Act does not restrict the
use of military police on a military reservation to maintain order by
apprehending civilians who commit crimes on the reservation.
                                           M a r y C. L a w t o n
                                 Deputy Assistant Attorney General
                                                Office o f Legal Counsel




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