Supergirl posed an interesting question: The President ordered General Lane and the Army to take over the Department of Extranormal Operations (DEO) after Hank Henshaw was captured by Kryptonians. Would this violate the Posse Comitatus Act?

The answer is….maybe? The legal analysis gets funky fast with secret government agencies fighting aliens.

The Army is expressly forbidden from conducting law enforcement pursuant to the Posse Comitatus Act:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

The Department of Extranormal Operations is a secret Federal government agency whose mission is to safeguard the country from aliens. DEO Agents pose as FBI Agents when interacting with the public. The issue is whether the DEO is a secret law enforcement agency or secret military organization in answering whether the President’s order for the Army to take over the DEO violated Posse Comitatus.

The evidence for the DEO being a law enforcement agency is the fact the DEO actively conducts surveillance for alien activity in the United States and captures aliens unlawfully in the country. The Constitution deems the immigration of aliens as exclusively Federal issues. People v. Salazar-Merino (2001) 89 Cal.App.4th 590, 598; U.S. Const. art. I, § 8. While the Founding Fathers did not envision this provision applying to beings from other worlds, technically the DEO is very similar to the U.S. Customs and Border Protection agency in its mission to protect the country from “alien” aliens in the United States.

The DEO certainly has weapons similar to what the Army uses, operates out of bunkers, and does not arrest aliens, but captures them for imprisonment. There is no due process, very similar to the Army capturing soldiers of an invading army as prisoners of war.

If the DEO were a law enforcement agency task with protecting the borders from aliens from other worlds, the Army taking over the DEO would be illegal, because the Army would be engaging in direct law enforcement. These prohibited activities generally include: arrest, seizure of evidence, search of person, search of building, investigation of crime, interviewing witnesses, pursuit of escaped civilian prisoners, search of area for suspects and other like activities, and any such use of federal military troops. United States v Red Feather (1975, DC SD) 392 F Supp 916.

Passive military assistance that does not violate Posse Comitatus include the following:

Mere presence of military personnel under orders to report on necessity for military intervention;

Preparation of contingency plans to be used if military intervention is ordered;

Advice or recommendations given to civilian law enforcement officers by military personnel on tactics or logistics;

Presence of military personnel to deliver military material, equipment or supplies to train local law enforcement officials on proper use and care of such material or equipment and to maintain such material or equipment; and

Aerial photographic reconnaissance flights.

United States v Red Feather (1975, DC SD) 392 F Supp 916.

General Lane took command of the DEO from its acting director, used torture to gain information, and had his troops conduct a raid with the DEO. All of these actions look like direct law enforcement activities (and civil rights violations of an extraterrestrial alien).

If the DEO was a branch of the military authorized to conduct law enforcement, similar to the Coast Guard, then the President’s order for General Lane to take command of the DEO and engage in military action on US soil would have been lawful.