Blurring the Lines Between Soldiers and Cops

by Joe Collins

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or other to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both."

The Posse Comitatus Act was enacted in response to the Reconstruction Acts following the Civil War. Throughout the Reconstruction period, Army units performed as posse comitatus (law enforcers) under the direct control of state governors and U.S. Marshals and outside the federal chain of command. During that time, use of troops became a common method of aiding revenue officers in suppressing illegal whiskey production, assisting local officials in quelling labor disturbances and ensuring the sanctity of the electoral process by the posting of armed guards at Southern polling places. Brutal, arbitrary and capricious abuses and excesses by the civil authorities against civil rights led to the passing of the Posse Comitatus Act by a narrow margin and ended Reconstruction.

Four criminal cases resulted from the Wounded Knee incident and each raised similar challenges to the growing use of military assistance provided to law enforcement agencies. In two of the cases, courts found certain military activities in violation of the Posse Comitatus Act. One of the cases maintained that as long as military assistance was passive or indirect, such assistance did not violate the Posse Comitatus Act. This ruling would have ironic consequences two decades later at Waco, Texas. Through the urging of the Department of Justice and the Department of Defense, and in order to resolve questions presented by the incident at Wounded Knee, the first salvo against the Posse Comitatus Act occurred in December 1981. Congress passed The Military Cooperation with Civilian Law Enforcement Statute (10 U.S.C 371-380), which allowed for military "assistance," including the use of technical and support assistance and the use of vessels, facilities, aircraft and intelligence to help outside the U.S., primarily to combat drug smuggling. This statute specifically prohibits the direct involvement of soldiers in law enforcement, such as conducting searches and seizures, arrests or detention and the use of military personnel in an undercover capacity.

The next hole occurred in 1986 when Vice President George Bush's office coordinated the involvement of the Navy and Air Force in Operation Alliance. The operation's primary function was to bring together state and local law enforcement agencies, federal agencies and active, reserve and National Guard forces in order to provide coordinated support for drug interdiction along the Southwest border of the United States, where an estimated 70 percent of drugs are smuggled into the country. In December 1986, President Reagan signed a National Security Decision Directive, which formally designated drug trafficking as a national security threat.

During 1989, President Bush named Dr. William Bennett as his "drug czar" and ordered an increased effort by the military to combat drug trafficking. Meanwhile, Congress doubled the Department of Defense's (DOD) anti-drug budget from $200 million to $438 million in 1989. Congress also passed amendments to the National Defense Authorization Acts, designating the Pentagon as the lead federal agency for anti-drug intelligence, and providing an increased role for the National Guard in the interdiction role. Interestingly enough, it also directed the armed forces to conduct training exercises in known drug- trafficking areas in the U.S., considered to be a "work-around" of the Posse Comitatus Act. This work-around stipulates that, if during the course of normal military training any member of the armed forces witnessed what could be construed as drug-related criminal activity, he was duty bound to report it to his chain of command, who would forward that information to the appropriate "authorities."

In September 1989, Secretary of Defense Richard Cheney said, "The detection and countering of the production, trafficking and use of illegal drugs is a high priority national security mission of the Department of Defense." In November, Cheney directed the establishment of Joint Task Force-6 (JTF-6) at Fort Bliss in El Paso, TX, to coordinate military and law enforcement anti-drug operations along the U.S./Mexico border under Operation Alliance. By fiscal year 1996, JTF-6 had a $24 million budget and conducted over 500 law enforcement support missions. Currently, the JTF-6 includes 700 soldiers with about 125 of them conducting border surveillance.

The 1991 Defense Authorization Act greatly broadened the military's drug enforcement powers. It allowed the Pentagon to establish anti-drug operations bases and training facilities and to train federal, state and local agencies, along with foreign governments. It also authorized the military to carry out aerial and ground anti-drug reconnaissance near and outside U.S. borders.

While there is no question the ATF received advanced training from U.S. Army Special Forces in preparation for their February 28th, 1993, raid on the Branch Davidian compound, debate continues as to the extent of that training. According to the thirteenth report of the "Investigation into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians," conducted by the U.S. House of Representatives after the raid, the ATF received two days of training from troops assigned from Operation Alliance and JTF-6. The report also indicates that the ATF did request to receive training in Close Quarters Battle training, which involved learning to assault with "specially trained units against static or halted man- made targets to defeat a hostile force with a minimum of collateral damage." It has been suggested that the ATF did receive such training, but this has yet to be independently verified.

A work-around the ATF used to not run afoul of the Posse Comitatus Act was to utilize Texas National Guard troops, who don't fall under the Posse Comitatus Act because at Waco, they were operating under Title 32 or 'state active duty.' Prior to the raid, the Texas National Guard provided at least four reconnaissance flights. During the raid, they provided three helicopters, which sustained damage from weapons fire, though none of the National Guard crews or ATF personnel aboard were injured. Ten counter-drug personnel were also provided. The Texas National Guard also furnished two 2-1/2 ton cargo trucks with transport trailers, five 5 ton tractor trucks with trailers and twelve high-mobility wheeled vehicles

Another exemption to the Posse Comitatus Act is the Joint Special Operations Command under which the Army's elite Special Forces Operations Detachment-DELTA (SOF-D) operates. This exemption is important because SOF-D and the FBI's Hostage Rescue Team (HRT) train together at the $80 million upgraded Range 19 at Ft. Bragg, NC. The Standard Operational Procedure of SOF-D is "take no survivors" once forces are committed. The same operational policy, weapons, and uniforms are used by HRT and both organizations can be considered one in the same. Consequently, recent revelations on the tactics and equipment used by HRT to end the Branch Davidian siege should come as no surprise.

In an ironic coincidence with Wounded Knee that at least ten active duty Special Forces soldiers were present at Waco as 'observers' during various stages of the post-raid siege, including the day HRT stormed the compound. Additionally, two senior Army Special Forces officers were present when Attorney General Reno was briefed on the FBI's plan to end the standoff. Prior to that meeting, one of the officers had visited the site by helicopter and was accompanied by the HRT commander.

J.R.A. Davidson, the pen name of an active duty United States Army Special Forces solider and editor of "The Resister," said, "Waco was not an aberration. It was a 'trial balloon' sent up by those who perceive a 'coalition' of military and law enforcement to be a good thing. It was, therefore, a portent of the future. And the military's involvement in that unspeakable outrage, along with its subsequent cover-up of the magnitude of its involvement, bodes ill for America's future."

Another exemption of the Posse Comitatus Act lies in the statutory authority of the President to use federal troops to quell domestic violence. Upon receipt of a proper request for assistance from a state governor, the President would then issue a proclamation that a breakdown in public order has occurred and order the individuals involved to disperse. After it's clear that the dispersal order is not being followed, the President then can order the Secretary of Defense, in consultation with the Attorney General, to quell the insurrection and restore public order. This presidential authority is absolute and not subject to judicial review. An example of this exemption being used occurred in April of 1992, when 3,500 Marines and soldiers from Camp Pendleton, CA, and Fort Ord, CA, were deployed in Los Angeles to restore order after the riots following the Rodney King verdict.

Asked about the continuing trend of the military being involved with civil authorities, U.S. Marine Corps Commandant General Charles Krulak said, "We view the increased military support to civilian law enforcement as an inevitability. Starting with the war on drugs, forest fires, etc., [these events] will, we think, lead to more cooperation, not less. For the USMC, it's not a matter of seeking to do more as much as being prepared to do more when asked."

In a paper by Colonel Sean J. Byrne, U.S. Army, titled Defending Sovereignty: Domestic Operations and Legal Precedents, he said, "As much as military leaders may yearn to fight conventional battles against conventional enemies, the roles and missions of the U.S. Armed Forces will continue to change and reflect the needs of the American People. To actively seek to avoid these challenges would be a disservice to the nation we are sworn to protect."

Colonel Byrne adds, "The Armed Forces will often be the National Command Authority's instrument of choice to deal with emergencies and difficult situations because their involvement in operations of this nature is not only justified, but legal and necessary."

Slipped into the Defense Department budget for fiscal year 2000 was another erosion of the Posse Comitatus Act. In this case, it allowed the military to be used to assist members of the Immigration and Naturalization Service in "preventing the entry of terrorist and drug traffickers into the United States." It also allows the military to help the United States Customs Service to prevent entry of drugs, weapons of mass destruction, or other terrorist or drug trafficking items.

If present trends continue, the military could be used to police American cities, escalate the war on drugs, combat domestic terrorism and could lead to a national police force, regardless of whether or not it is actually called that. Soldiers are trained to "vaporize, not Mirandize," said Lawrence Korb, Assistant Secretary of Defense under President Reagan.