Subj: Fwd: Getting Around The POSSE COMITATUS ACT?: Congress likely to back 'homeland security agency' [Neo Fascism]
Date: 9/24/01 5:18:24 AM Pacific Daylight Time

A clever way to get around the restrictions of Posse Comitatus?

<The administration has not lobbied Congress for the statutory authority to create a
permanent new agency. Instead, the White House appears to be modelling the agency after
the National Security Council, the cabinet-level White House group created by
President Harry Truman in 1947>

<But some in Congress envision an even wider mandate. Mr Lieberman said he
favoured placing all border patrol agencies, including the customs service, the
coast guard and border police, under the authority of the new agency. In addition,
the federal emergency management agency, which usually responds to natural
disasters rather than wartime emergencies, could be brought under the same umbrella.>

What this article fails to tell you is mentioned in another post from last Friday. They are talking about including the National Guard now as part of this new NATIONAL POLICE FORCE.

Here we go, people.

Congress likely to back 'homeland security agency'
By Edward Alden in Washington
Published: September 23 2001 21:49 | Last Updated: September 23 2001 21:56

The US Congress, taking the lead from President
George W. Bush, is likely to back the establishment of a
permanent cabinet-level "homeland security agency" to
co-ordinate US efforts to prevent terrorist attacks.

The creation of such an agency, which would have broad
powers to oversee domestic anti-terrorism measures,
would mark one of the most significant restructurings of
US defence priorities since the early days of the cold war.

In the wake of the September 11 attacks in New York and Washington, the
administration and Congress have focused intensively on how to muster
intelligence, law enforcement, border patrol and disaster relief measures to
prevent and, if necessary, respond to future attacks.

While US defence planning has concentrated on fighting wars far from US
territory, the new agency would be charged with defeating the terrorist threat at or
inside US borders.

Senator Joseph Lieberman, the former Democratic vice-presidential candidate,
said the US must recognise that defending its own territory against attack has
become the highest priority in the country.

"For the future, as far as we can see, we're going to have to be prepared to protect
the American people as they live and work in the 50 states," he said.

Senator Bob Graham, who heads the Senate intelligence committee, introduced
legislation on Friday that would create a permanent agency to carry out that task.

The congressional moves come following Mr Bush's announcement in his
speech to Congress last Thursday that he would immediately create a
cabinet-level homeland security agency to be headed by his close political ally,
Tom Ridge, the Pennsylvania governor.

Mr Ridge, who had been among the top contenders as Mr Bush's running mate in
the 2000 election, will be given broad but as yet unspecified powers to lead US
efforts to prevent further attacks.

The administration has not lobbied Congress for the statutory authority to create a
permanent new agency. Instead, the White House appears to be modelling the
agency after the National Security Council, the cabinet-level White House group
created by President Harry Truman in 1947 to lead the cold war struggle against
the Soviet Union. The NSC, which has its own director and a modest but powerful
White House staff, is charged with co-ordinating important US diplomatic, military
and intelligence policies.

Ari Fleischer, the White House spokesman, said Mr Ridge's agency would not
replace any existing agency but would be responsible for co-ordinating efforts to
"combat domestic terrorism [and] strengthen our homeland preparedness and
security at all levels of government".

While Mr Ridge will not have direct authority over intelligence-gathering or over law
enforcement agencies such as the Federal Bureau of Investigation, he will have
the ability to shape their actions in fighting terrorism.

But some in Congress envision an even wider mandate. Mr Lieberman said he
favoured placing all border patrol agencies, including the customs service, the
coast guard and border police, under the authority of the new agency. In addition,
the federal emergency management agency, which usually responds to natural
disasters rather than wartime emergencies, could be brought under the same umbrella.

==================== THE POSSE COMITATUS ACT-ACT And Background Info =====================


The authority and restrictions contained in these statutes are of overarching concern in this area.

a. The Posse Comitatus Act (18 USC '1385) prohibits use of Army and Air Force personnel to execute the civil laws of the US, "except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress." Violation of the Act carries with it criminal liability (felony) and the possibility of a fine and imprisonment. This prohibition is applicable to Navy and Marine Corps
personnel as a matter of DOD policy [see DOD Directive 5525.5]. The primary prohibition of the Posse Comitatus Act is against direct military involvement in law enforcement activities. Generally,
court interpretations have held that military support short of actual search, seizure, arrest, or similar confrontation with civilians, e.g. traffic direction (i.e., traditional law enforcement functions) is not
a violation of the act. Examples of such permitted support include the provision of information, equipment, and facilities. Note the categories of personnel to whom the PCA does not apply: 1) a
member of the Reserve component when not on active duty, active duty for training, or inactive duty for training; 2) a member of the National Guard when not in the Federal Service; 3) A civilian
employee of the DOD, unless they are under the direct command and control of a military officer; 4) a member of a Military Service when off duty, and in a private capacity (but a member is not acting
in a private capacity when the assistance is rendered under the direction or control of DOD authorities. DOD Directive 5525.5, enclosure 4.

b. In 1981, and in subsequent years, in an effort to clearly stake out the boundaries of the Posse Comitatus Act, Congress codified these court interpretations in 10 USC ''371-381, Military Support For
Civilian Law Enforcement Agencies. In so doing, commanders could feel confident that the support they provided to civilian law enforcement, particularly in the counterdrug area, would be legal.
While these statutes are frequently called "exceptions" to the PCA, in fact, only one, 10 USC '374, expanded the court-set boundaries of the PCA. That statute permitted military forces to operate and
maintain equipment.

c. A brief description of the key statutes follows:

     (1) Information, Equipment, Facilities may be provided per 10 USC '371/2. But always check approval authorities (AR 500-51, SECNAVINST 5820.7B, AFI 10-801).

     (2) Personnel may be used to provide training, expert advice, and to operate/maintain equipment. 10 USC '373/4. Again see approval authorities mentioned above. Note that the training
authorized by 10 USC '373 and AR 500-51 are limited to training in connection with equipment. DOD Directive 5525.5 (the 1982 version having contained the same limitation), which postdates AR
500-51, does not contain this limitation, "The Military Departments may provide training to Federal, state, and local civilian law enforcement officials ... and may include training in the operation and
maintenance of equipment made available ..." While the DOD Directive does contain some other limitations, discussed in the counterdrug section below, this broader authority most likely stems from
an interpretation of 10 USC '378, which states that nothing in these statutes "shall be construed to limit the authority of the executive branch in the use of military personnel or equipment for civilian
law enforcement purposes beyond that provided by law before December 1, 1981." Because military training provided to civilian law enforcement went beyond training in equipment prior to 1981,
'373, read with '378, does not limit current authority to provide training. See Paul J. Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104 Mil. L. Rev. 109 (1984). In any case, service
regulations require such requests to be approved by higher authority. Additionally, in the counterdrug arena, additional legislative authority also permits training of law enforcement personnel
engaged in counterdrug activities. '1004, FY 1991 National Defense Authorization Act, Pub. L. No. 101-510 (authority extended until 1999 by '1011, FY 1995 National Defense Authorization Act, Pub. L.
No. 103-337). Counterdrug training support also requires the approval of higher authority. See Chairman, Joint Chiefs of Staff Instruction 3710.01.

     (3) Nonetheless, judge advocates and their commanders should proceed cautiously with requests for training support. For prudent reasons, and based on SOF experiences in connection with
the Bureau of Alcohol, Tobacco, and Firearms raid on the Branch Davidian Complex in Waco, TX in February of 1993, the Special Operations Command (USSOCOM) has limited the training it provides
to basic military training, e.g. basic marksmanship, rappelling, fast rope, patrolling, mission planning, survival skills, land navigation, medical/combat lifesaver, and detection and avoidance of
improvise/explosive devices. Advanced training such as sniper training, Military Operations in Urban Terrain (MOUT), Advanced MOUT, Close Quarters Battle/Close Quarters Combat (CQB/CQC) are
not permitted. Training in connection with specific scenarios or operations is similarly prohibited, unless specifically excepted by USSOCOM. See Special Operations Command Policy Memorandum
of 10 January 1996. As of April 1996, DOD is considering adopting similar standards for all of DOD. Furthermore, the Secretary of Defense recently published a memo regarding military assistance to
civilian authorities. The new guidance does not significantly affect the treatment of such issues at the installation level. Approval authorities as mentioned above remain the same. The memo does
state, however, that a legal review should be given to all law enforcement requests for support and that they must be approved under the oversight of a general officer. More importantly, the memo
states that "any requests to assist law enforcement agencies that will result in a planned event with the potential for confrontation with named individuals/groups or use of lethal force must be
forwarded to the SECDEF office. quot; See SECDEF Memorandum, Military Assistance to Civil Authorities, 12 December 1995.

     (4) 10 USC '375 emphasizes the outer limit of DOD support by requiring SECDEF to prescribe regulations prohibiting the direct participation of any service member (Army, Navy, Air Force, or
Marine Corps) in a search, seizure, arrest, or similar activity, unless otherwise authorized by law. DOD Directive 5525.5 is the implementing regulation and lists these "similar activities," e.g.
interrogation, surveillance, undercover work, informant work, and investigation. Note that enclosure 4 of DOD Directive 5525.5 maintains the traditional interpretation that the PCA does not apply to
the Navy and Marine Corps, i.e. that it applies to those services only as a matter or policy, which may, in certain limited circumstances, be waived by either the Secretary of the Navy or the Secretary
of Defense to permit such personnel to take on a direct law enforcement role.

     (5) A more detailed discussion of these statutes follows in the counterdrug section. While these statutes were designed to address the drug problem, their scope is not limited to counterdrug
related activities.

d. The traditional exceptions to the PCA include the following:

     (1) Constitutional exception: Limited presidential authority in cases of emergency and to protect federal property. See Immediate Response Authority discussed in Civil Disturbance (MACDIS)
section that follows and Disaster Relief (MSCA) in chapter 21.

     (2) Civil Disturbance Statutes (10 USC '331-334): Permit use of federal troops to restore order. See following section.

     (3) Military Support for Civilian Law Enforcement Agencies Statutes (10 USC ''371-381): Technically, not an exception to PCA; instead they clarify its limits. See above.

     (4) Military Purpose Doctrine: Permits use of military personnel in a law enforcement role when primary purpose is a military one. Most often used in joint criminal investigations by military
criminal investigative personnel and civilian law enforcement agencies, e.g. DOD Inspector General Memorandum #5 (October 1987) sanctioned drug investigations.

e. Keep in mind that the CLEA Statutes (10 USC ''371-381), although closely linked, are separate authority from the Posse Comitatus Act (PCA). The primary distinction is that they are not criminal
statutes. Additionally, however, actions of military personnel which do not run afoul of 10 USC '375, may still be violations of the PCA. For example, directing traffic in a civilian setting or conducting
security patrols in a city are actions not ostensibly inconsistent with 10 USC '375, but are most likely still violations of the PCA, given the tests courts have formulated to determine whether a PCA
violation has occurred. These tests are discussed below.

f. The key phrase in the Posse Comitatus Act is "to execute the laws". Three different court interpretations have emerged from federal courts regarding what this language means. In United States v.
Jaramillo, 380 F.Supp 1375 (1974), the court looked to whether the conduct of the military "pervaded the activities" of civilian law enforcement. In United States v. Red Feather, 392 F.Supp 916 (1975),
the court held that executing the laws meant "direct active use" of military personnel. In United States v. MacArthur, 419 F. Supp 186 (1976), the court decided that execution of the laws meant
subjecting citizens to military authority which was "regulatory, proscriptive, or compulsory" in nature. In United States v. Yunis, 681 F.Supp 891 (1988), the court applied the analysis from United
States v. MacArthur and reaffirmed the "regulatory, proscriptive, or compulsory" test. All three tests may be applied to a single situation, and if the activity in question meets any of the tests, the court
may determine that the Act itself has been violated. Note, however, that no one has ever been convicted of a Posse Comitatus Act violation. Of greater likelihood, although also rare, is that the court
may invoke the exclusionary rule in the case of a PCA violation, see State v. Pattioay, 896 P. 2d 911 (1995), or that military personnel may be held civilly liable, see Applewhite v. United States Air
Force, 995 F.2d 997 (1993). See International and Operational Law Department Note, Army Law., Jul. 1995, at 61.

g. OCONUS applicability of these statutes: Neither the Posse Comitatus Act nor similar prohibitions contained in 10 USC '375 are applicable outside the territorial jurisdiction of the US. (See opinion of
the Office of Legal Counsel, U.S. Dept. of Justice, Extraterritorial Effect of the Posse Comitatus Act, Nov 3, 1989; see also The Posse Comitatus Act and Drug Interdiction: Just How Far Can We Go?,
the Army Lawyer, Dec. 1990). Note, however, the impact of DOD Directive 5525.5, DOD Cooperation With Civilian Law Enforcement Officials. This directive, which applies worldwide to all US forces,
implements the direct participation proscription of 10 USC '375 (search, seizure, arrest, etc.). Thus, absent the SECDEF waiver provided in DOD Directive 5525.5, US forces operating OCONUS are
still subject to significant restrictions on their activities. Further OCONUS restrictions are mentioned in later in this text.