Militarized Law Enforcement: The Drug War's Deadly Fruit

by David B. Kopel[i]

[This is a draft chapter from the forthcoming book After Prohibition: Adult Alternatives to the Drug War (Cato Institute, 2000).]

Introduction

Esequiel Hernandez had almost nothing in common with Donald Scott. Hernandez was an 18-year-old Hispanic goatherd in south Texas. Scott was a middle-aged millionaire who lived with his wife on a large estate in southern California. Neither Hernandez and Scott committed any drug crimes. And both Hernandez and Scott are now dead, unjustifiably murdered as the "drug war" has become much more than just a metaphoric slogan.

One of the most significant trends of law enforcement in the last twenty fifteen years has been militarization. That militarization is the direct result of the drug war, and it is the direct cause of the deaths of Enrique Hernandez, Donald Scott, and other innocents--and of assaults on the persons and property of many more innocents.

This chapter begins by looking at the constitutional and statutory structure created to keep the military out of law enforcement. Next, the chapter examines how that structure was deliberately undermined by the drug war. After that, each aspect of law enforcement militarization--military personnel, equipment, and trainers, and also changes in local law enforcement--is detailed, along with the suffering caused by militarization. Finally, the chapter proposes specific changes to remedy the drug war's damage to the once-honored status of law enforcement officers as "peace officers."

The Constitution and the Posse Comitatus Act

The Founders of the American republic were familiar with the dangers of militarized law enforcement. The British Redcoats had helped cause the American Revolution through their enforcement of the customs laws and other policies of King George. The abuses of the standing army in France and other Continental monarchies were well-known to the Americans. In the 1830s, the Texan war for independence from Mexico was sparked in part by the Mexican government's use of the army to enforce the civil law in Texas.

The United States Constitution includes many provisions related to the dangers of law enforcement by the military. Articles I and II specify that the militia (not the army) should be used to suppress insurrections. In Federalist 29, Alexander Hamilton promised that even though the new Constitution allowed a standing army, there would never be use of "the military arm in support of the civil magistrate," because a strong militia would render use of the army unnecessary.

The Second Amendment guarantees the right of the people to keep and bear arms so that the nation will not be dependent on a standing army. As James Madison detailed in Federalist46, a well-armed population enjoys the ability to resist a standing army, should the army become a tool of tyranny.

The Third Amendment forbids the quartering of soldiers in the people's houses, except in time of war. Quartering had been a notorious form of "law enforcement" directed against Huguenots in France, and against political dissidents in England during the seventeenth-century reigns of James I and Charles I. Parliament's 1765 imposition of The "Quartering Act" on the American colonies became a major source of the grievances that led to Lexington and Concord.

The Fifth Amendment requirement for grand jury indictment before criminal prosecutions (except for persons in the army, navy, or militia in time of war or public danger) prevents the imposition of martial law (rule by military commanders) on civilians.

In 1878, in response to abuses from the military enforcement of laws against moonshining, and in response to the abuses arising out of military rule of the South during Reconstruction, Congress enacted the Posse Comitatus Act to outlaw the use of federal troops for civilian law enforcement. The law made it a felony to use "any part of the Army...to execute the laws" except where expressly authorized by the Constitution or by act of Congress. The Act of 1878, as amended, provides: "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 U.S.C. sect. 1385).  

(The Latin phrase "posse comitatus" means "the power to be accompanied," and refers to the sheriff's authority to call all able bodied citizens to his aid. In the old West, when the sheriff "called out the posse," he was invoking his posse comitatus authority. For the military to participate in law enforcement would be for the military to act as posse comitatus.)

As one modern court stated, the Posse Comitatus Act "is not an anachronistic relic of an historical period the experience of which is irrelevant to the present. It is not improper to regard it, as it is said to have been regarded in 1878 by the Democrats who sponsored it, as expressing ‘the inherited antipathy of the American to the use of troops for civil purposes.'"[ii]

In Laird v. Tatum, Chief Justice Warren Burger noted the "traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military."[iii]

As another court put it:

Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces.[iv]

The concerns of the Founders, of the Congress that passed the Posse Comitatus Act, and of modern courts have proven well founded. Use of the military in domestic law enforcement has repeatedly led to disastrous invasions of civil liberty. In 1899, the army was used to break up a miners strike at Couer d'Alene, Idaho. Military forces arrested all adult males in the area, imprisoned men for weeks or months without charges, and kept the area under martial law for two years. A few years earlier in 1894, the army had been used against the Pullman railroad strikers in Illinois. During and after World War I, the army broke peaceful labor strikes, spied on union organizers and peaceful critics of the war, and responded to race riots by rounding up black "Bolshevik agitators." Historian Jerry M. Cooper observes that the army's efforts "substantially slowed unionization for a decade."[v] During the Depression in 1932, the army was used to crush the Bonus Marchers who had assembled in Washington, D.C. One of the most egregious abuses of executive power in American history--President Truman's illegal seizure of the steel mills--was carried out by the military, which obeyed an unconstitutional order.[vi] As Justice Douglas wrote in the steel seizures case, "[O]ur history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs."[vii]

During the Vietnam War, military intelligence was again deployed against domestic dissidents. This was exactly the type of harm with the Founders had feared from a standing army. The 1970 killings of student protesters at Kent State University were, of course, carried out by a National Guard unit, the National Guard being a reserve entity created under Congress's war powers.

As the above examples illustrate, there are several loopholes in the Posse Comitatus Act. Even though the National Guard is overwhelmingly funded by the federal government, a National Guard unit is normally considered to be the National Guard of its state (e.g., "The Ohio National Guard") and only becomes part of the national armed forces when it is called into federal service by the President (and then becomes part of "The National Guard of the United States"). Only when in "federal status," and not when in "state status," is the Guard covered by the Posse Comitatus Act. This particular loophole has huge implications for the drug war, as we shall see below.

A variety of laws explicitly authorize use of the military for certain types of law enforcement, the Posse Comitatus Act notwithstanding.[viii] The most notable of these laws is the Insurrection Act, which allows the President to use the military to quell insurrections or civil disorder (even though the Constitution specifies that the militia, not the army, should be used for this purpose).[ix]

The Posse Comitatus Act by its terms applies only to the Army and the Air Force. The Navy and the Marines obey the Act because of regulations which they have adopted.[x] The Coast Guard, which in peacetime is part of the Department of Transportation (and part of the Navy during wartime),[xi] does not obey the Posse Comitatus Act, and has in recent years become a heavily armed element of the drug war, with authority to machine-gun "drug boats" in U.S. territorial waters. The drug war has put the Coast Guard very far from America's coast: in Ecuador, Guatemala, and even on the rivers of land-locked Bolivia. So the Coast Guard uses its peacetime status (and the consequent exemption from Posse Comitatus restrictions) in order to fight a war! This real war (with military boats, artillery, firearms, and shooting) takes place partly within American coastal waters, but also over a thousand miles from America's coast, in the interior of a coastless nation. (Likewise, the United States Border Patrol has also been sent to Bolivia.)

The Coast Guard loophole has become a Navy loophole as well: the Navy participates in drug war enforcement, but when it goes into drug war combat (e.g., firing naval guns at a ship suspected to be carrying drugs), the Navy runs up a Coast Guard flag--under the theory that the flag changes the artillery-firing ship from a Navy ship to a Coast Guard ship.[xii]

Another loophole was created in 1993 when President Clinton signed President Decision Directive No. 25 (PDD-25) which is said to exempt the Army elite attack squad Delta Force from the Posse Comitatus Act. Part of PDD-25 is classified, but sources who have knowledge of the document report that PDD-25 exempts not only Delta Force, but also the entire Joint Special Operations Command (JSOC) which supervises all of the military's special forces (Green Berets, Navy SEALs, etc.) Legally speaking, neither President Clinton nor anyone else can exempt any part of the military from obeying a law duly enacted by Congress. But because PDD-25 is classified, any sort of legal challenge is impossible. As of 1999, White House spokesmen deny that President Clinton has ever signed any waiver regarding Delta Force. (Perhaps if one splits semantic hairs, a "Presidential Decision Directive" is not a "waiver.") But during the Waco siege, the White House press office stated that President Clinton had on his desk, ready for signature, a document to allow military participation at Waco.

Finally, as the labor-busting of the 1890s and the political spying of the 1960s shows, the Posse Comitatus Act is only enforced when a federal prosecutor brings charges--and such charges have never been brought. Individuals have no legal authority to seek redress of Posse Comitatus Act violations. If the Department of Justice tacitly approves of military violations of the Posse Comitatus Act, then martial rule is implicitly allowed.

The Drug War Loopholes

The exceptions mentioned above are important, but none is as important, practically speaking, as the largest loophole in the Posse Comitatus Act: the "drug law" exception. In 1981 Congress, at the behest of President Reagan, created a broad exception to the Posse Comitatus Act, and in 1988 Congress expanded the exception even further, as part of an omnibus drug bill.[xiii]

The new exceptions allow broad military assistance for the drug war. Soldiers may assist drug law enforcement agencies in surveillance and similar activities, although soldiers are still not supposed to confront civilians directly. Military equipment may be loaned to law enforcement agencies, and the military may train law enforcement agencies. The equipment and training may be for any purpose. If the purpose is drug enforcement, then the equipment and training are free; if not for drug war purposes, the civilian agency must merely reimburse the military for the training and the equipment.

No Oversight, No Accountability

In 1986, Vice-President Bush and Attorney General Edwin Meese organized Operation Alliance, to formalize military assistance to drug law enforcement. A few years later, the military began creating Joint Task Forces, whose primary mission was drug law enforcement. The most famous of these Joint Task Forces, JTF-6, was created in 1989. Based in Fort Bliss, Texas, JTF-6 is responsible for policing the U.S. borders with Mexico and Canada.

JTF-5 is based on Coast Guard Island, in Alameda, California, and deals with the Pacific and Asia. Combined Joint Task Force 4 (CJTF-4) has its headquarters in Key West, Florida, and deals with Mexico, the Caribbean, and Latin America.

What limits there are on the JTFs' participation in law enforcement are being rapidly eroded. One edition of JTF-6's Operational Support Planning Guide enthused, accurately, that "Innovative approaches to providing new and more effective support to law enforcement agencies are constantly sought, and legal and policy barriers to the application of military capabilities are gradually being eliminated." Some JTF leaders foresee that not-far-distant day when restrictions against use of the military in domestic law enforcement will be abolished completely.[xiv] Every year in Congress, there are new proposals to use the military in law enforcement, and to abolish the Posse Comitatus Act.

Although the JTFs were created solely for the drug war, this limitation is disappearing. Early versions of JTF manuals discussed JTF cooperation with a "DLEA" ("Drug Law Enforcement Agency"), meaning that the JTFs would be working with agencies such as the Customs Bureau and the Drug Enforcement Agency whose job description includes enforcement of drug laws.

But now, the word "drug" has been dropped, and the JTF vocabulary simply refers to the "LEA." This change reflects the fact that almost every law enforcement agency, no matter how specialized, can invent some connection to the drug war. For example, the Bureau of Alcohol, Tobacco and Firearms has statutory jurisdiction over alcohol, tobacco, and firearms, as well as explosives and arson. But the BATF procures JTF assistance, under the theory that some of the people against whom BATF enforces weapons control laws are armed drug dealers.

More significant than the semantic change is the fact that the JTFs often pay no attention to their legal constraints. For example, the JTF responsible for the Canadian border area provided "counterdrug" sniper training at Camp Perry, Ohio. Among the trainees were state prison guards; while prison guards perform important jobs, the notion that training prison guards how to kill people at long distances with military-style sniper rifles has something to do with "counterdrug" activity is ludicrous.

The military's lawyers are members of the JAG Corps ("Judge Advocates General"). Like all government lawyers, their duties are to the People, and they are required to ensure that their government clients stay within legal boundaries. But in practice, when JAG lawyers object to particular JTF missions which appear to violate the law, military liaison officers for the JAG Corps usually inform the lawyers that objections are "not career enhancing."

An example of what happens to people who don't use drugs as a result of the absence of strong checks of use of the military in the drug war can be seen in the tragedy at Waco, Texas.

As part of the planning for the Waco raid, the Bureau of Alcohol, Tobacco and Firearms went to the Joint Task Force Six, which covers Texas, and asked for training, medical, communications, and other support. The JTF-6 staff explained that they could only be involved if the case were a drug case.[xv] If the case were not a drug case, BATF could obtain assistance from other parts of the military; JTF units could only be used for drug enforcement. And while military training and equipment were available from other units, BATF would have to pay for military help, if the Waco raid were not drug-related.

Immediately thereafter, BATF began asserting phony claims that the Waco case was a drug investigation; Branch Davidian prophet David Koresh was supposedly running a methamphetamine laboratory.

BATF knew that its allegations were false. In the mid-1980s, after the death of Branch Davidian prophet Lois Roden, there had been a schism in the Branch Davidians between the followers of George Roden (Lois Roden's son) and the followers of David Koresh (who thought him Lois Roden's proper successor). George Roden took over the Branch Davidian's "Mount Carmel Center" at Waco, and drove Koresh's followers away at gunpoint. Roden did in fact set up a meth lab. But in March 1988, when Roden was sent to jail on unrelated charges and Koresh's group took back the Mount Carmel Center, they found the meth lab, and promptly reported it to the sheriff. Further, Marc Breault (a disaffected ex-Davidian who was urging BATF to raid the Branch Davidians) was the sole source for BATF's information that there had once been a meth lab at Mount Carmel; and Breault also told the BATF that the building in which the meth lab was housed had burned down in the Spring of 1990.

It should have been obvious to JTF-6 that the supposed drug connection was a lie. The military prepared a memorandum for BATF on methamphetamine labs, and the precautions essential for dealing with such a lab. However, when the paper was presented to BATF agents, they openly ignored the information in front of the soldiers who prepared it. Further, agents from the civilian Drug Enforcement Agency (DEA) who were assisting BATF also expressed no concerns about how BATF was addressing the risks of a meth lab in its operational planning, which similarly should have indicated to the military that the allegation was a mere pretext.

Had BATF actually been planning to take down a methamphetamine lab, its plans would have been far different. Testimony at the 1995 congressional hearings on Waco indicated the potential dangers of an explosion if a meth lab is not taken down properly. For instance, because a stray bullet could cause a major explosion, a "dynamic entry" (a violent break-in, the BATF's method of "serving" the Waco search warrant) would be an extremely risky, disfavored approach.

In addition, the chemicals involved in methamphetamine production are toxic, capable of injuring lungs, skin, liver, kidneys, the central nervous system, and potentially causing genetic damage. Thus, DEA protocol for seizure of meth labs requires that agents wear special clothing and bring other specialized equipment. BATF not only made no such plans, but made express advance plans to use flashbang grenades--grenades which could set off a massive explosion in a real meth lab. When requesting flashbangs for use in the raid, BATF omitted mention of any possible presence of a meth lab. Had BATF really thought there were a drug lab at Mount Carmel, BATF should have taken advantage of the DEA offer of assistance by a DEA Clandestine Certified Laboratory Team. But the offer was rejected.

Although it should have been glaringly obvious that BATF's claimed drug connection at Waco was fictive, JTF-6 signed onto the mission of "training a National Level Response Team [BATF strike-force] for Counter Drug operations," in "Support of BATF Takedown of Meth Lab." According to documents received from the U.S. Special Operations Command under Freedom of Information Act requests, the Joint Training operation (JT002-93) was approved due to a request from BATF asking for U.S. and Texas National Guard assistance in serving a federal search warrant "to a dangerous extremist organization believed to be producing methamphetamine." The military assistance at Waco would supposedly be "in direct support of interdiction activities along the southwest border." (Notwithstanding the fact that Waco is approximately 300 miles from the southwest border. Moreover, the alleged drug connection was that the Branch Davidians were manufacturing methamphetamine, not that they were importing it from Mexico.)

As Waco illustrates, the drug enforcement exception to the Posse Comitatus Act has been very effective at undermining the honesty of law enforcement personnel, who are encouraged to allege a drug nexus in many investigations for the purpose of getting, gratis, federal military assistance. Similarly, the U.S. Marshals Service claimed a possible drug problem involved with the Randy Weaver family at Ruby Ridge, Idaho in order to get military reconnaissance flights over the cabin, which revealed no evidence of drugs. (The overflights did reveal a "hot spot" which was claimed to be a methamphetimine lab; actually, the hot spot came from a dog house.)

According to an anonymous JTF-6 employee, JTF is often aware that civilian agencies are fabricating a pretext for military involvement, but, "the JTF doesn't even care, because there is little or no oversight involved. There's no independent authority looking over anyone's shoulder."

Fortunately, there are still some in military (and the rest of the federal government) who understand their duties as public servants--even when the only person looking over their shoulder wants the law to be violated. When the BATF asked for the Army to participate directly in the Waco raid (rather than just providing training and equipment), a courageous army lawyer said "no," even though a superior officer called him "a toad in the road" and warned that the refusal would endanger his career. The courageous officer persisted, and thereby prevented the disastrous BATF raid from being even worse.[xvi]

But one cannot always count on genuine public servants endangering their own futures by standing up for the letter of the law. More typical is a go-along-to-get-along attitude--which allowed BATF illegally to procure helicopters from the Texas National Guard. (Texas law only allows the use of Texas National Guard helicopters for law enforcement when there is a drug nexus.)

BATF also made use of the Alabama National Guard for aerial photography. The use was authorized by a "memorandum of agreement" between the Adjutant Generals of the Texas and Alabama National Guards. Even if the drug nexus had been real, there are a number of problems with employing the Alabama National Guard in Texas. Texas law expressly requires the governor's approval for the entry of a military force that, like the Alabama National Guard, is not part of the U.S. armed forces. But Texas Governor Ann Richards never knew about the use of the Alabama or Texas National Guards until after the raid. Alabama law limits the operation of the Alabama National Guard to the state boundaries of Alabama. Thus, the deployment of the Alabama National Guard in Texas was a flagrant breach of the laws of Alabama and Texas.

In addition, the "memorandum of agreement" providing for use the Alabama National Guard in Texas violated the United States Constitution. Agreements between two or more states require congressional consent, [xvii] and Congress had not consented to the Alabama/Texas "agreement." In other words, the Adjutant Generals of the National Guards of Alabama and Texas executed a "memorandum of agreement" which purported to authorize cross-border use of the Alabama National Guard, even though the "agreement" as implemented was in defiance of the law of Alabama, the law of Texas, and the Constitution of the United States. Since the Alabama Governor has no legal authority to command the Alabama National Guard beyond the boundaries of Alabama (Ala. Code sect. 31-2-7),and since the Governor of Texas was not even aware of the Alabama Guard's presence in her state, the Alabama Guard was under the practical command of neither Governor, and was thus, in essence, a rogue military force, answerable only to itself. It is precisely such military usurpation of civil authority--the destruction of the rule of civil law--which is the ultimate, and real danger posed by use of the military in law enforcement.

Shortly after the Waco raid, Governor Richards blasted the BATF for having lied to obtain the Texas helicopters. BATF then claimed that a British surveillance airplane, recently brought onto the Waco scene, had found new thermal evidence of the methamphetamine lab. An anonymous BATF source told a reporter that the new drug allegation "was made up ... out of whole cloth ... a complete fabrication" to avoid further criticism from Governor Richards.

As the creation of the separate JTF organizations illustrates, the lack of accountability is worsened by structural changes in the chain of command, which have the effect of reducing oversight. The military's specialized attack teams are now part of the new Joint Special Operations Command (JSOC), headquartered at MacDill Air Force Base, in Tampa. The JSOC oversees the Army's Combat Applications Group (heavily involved in training civilian law enforcement agencies in military techniques for the drug war), the Army's Intelligence Support Activity (heavily involved in providing military intelligence to drug enforcement agencies), the Navy's SEAL Team 6 (also heavily involved in training, and on occasion in actual drug raids), as well as Air Force and Marine units.

Separated from their parent services (the Army, Navy, and Air Force), these special operations personnel are part of an increasingly distinct subculture within the military. It is within these units and their isolated subcultures where unquestioning obedience is most emphasized, where American citizen-soldiers are most likely to think of themselves as soldiers only. And it is these units which are often used against American citizens, as part of the drug war.

Direct Military Intervention

On any given day, more than five thousand troops conduct law enforcement operations within the United States.[xviii] This figure does not include the much larger number of National Guard troops involved in law enforcement every day.

One form of military activity is reconnaissance conducted by the Joint Task Forces. Aerial surveillance uses Forward Looking Infrared Radar (FLIR--to detect heat sources sometimes associated with drug labs or marijuana grow lights), Side-looking Radar (SLAR), photography, and Remotely Piloted Vehicles (RPVs).

On the ground, the surveillance includes sensors, listening posts, ground surveillance radar, and ground patrols. It was one of these ground patrols, conducted by Marines, which killed Esequiel Hernandez near his home in Redford, Texas. The patrol spotted Hernandez and his goats, and saw that Hernandez was carrying a rifle. (Carrying a rifle in open country is lawful in Texas, and is very appropriate for shepherd to protect his flock and himself from coyotes, rattlesnakes, and the like.) The Marines said that Hernandez fired two shots from the .22 rifle. They tracked him for twenty minutes, and when he allegedly raised his rifle again, a Marine corporal shot him, 400 yards from his home, with an M16 machine gun. A Congressional investigation found that the Marines who killed Hernandez had inadequate training.[xix]

This Congressional finding understates a fundamental problem with use of military personnel in law enforcement. As University of Zurich professor Hans Geser points out, police officers are expected to exercise a great deal of individual judgment, and to deal with a wide variety of situations. Soldiers are typically trained for much narrower roles, with less personal judgment, and a greater emphasis on immediate obedience to the command structure. Soldiers are trained to attack rapidly and ruthlessly destroy the enemy. The objective is to kill people. Persons trained for this important mission are trained for just the opposite of civil law enforcement, in which the objective is to capture suspected criminals (not kill them), to minimize the use of force, and to act with a scrupulous regard for the United States Constitution. As Lawrence Korb, an Assistant Secretary of Defense in the Reagan administration, observed, soldiers are trained to "vaporize, not 'Mirandize.'"

When police officers kill someone, there is usually a careful investigation, and the District Attorney may bring charges if the killing was illegal. When the local district attorney convened a grand jury in the Hernandez case, Defense Secretary William Cohen urged that the military be given blanket immunity for violations of state criminal laws.

Cohen's demand would have astonished even King George III. On March 5, 1770, an incident of boys throwing snowballs at British soldiers escalated into a riotous confrontation between Redcoats and Yankees; the confrontation turned into the Boston Massacre when British soldiers killed or wounded eleven Americans. After the Massacre, neither King George nor any of his ministers claimed that British soldiers should be immune from the laws of the Massachusetts Colony. To the contrary, the soldiers were put on trial (and acquitted, thanks to the brilliant work of defense attorney John Adams).

For years afterward, on every Fifth of March there was a Boston Massacre Oration, in which speakers such as John Hancock warned of the dangers of law enforcement by a standing army. Should the tradition of the March 5 oration be revived--with modern examples added?

Legally, military personnel are not supposed to participate directly in law enforcement. This prohibition often obeyed, but sometimes it is not, and military personnel (such as the 10th Special Forces Group in Texas in 1993, or the Navy SEALs in Los Angeles in 1989) are reported to have participated in drug raids.

Far larger than the number of U.S. Army personnel involved in the drug war on any given day is the number of National Guardsmen. Although the National Guard was created under the Congressional war power, and the Guard is part of the military Reserve, and the Guard receives almost all of its funding and equipment from the U.S. government, the Guard operates under the legal fiction that it is not part of the military, and therefore does not have to obey the Posse Comitatus Act.

The Guard's militaristic law enforcement can be seen not only in sensational incidents like Waco, but every fall, when Humboldt, Trinity, and Mendocino Counties in California are invaded by Army, Air Force, National Guard, and state and local forces, as part of the Campaign Against Marijuana Planting (CAMP). In a typical year, 100 harassment complaints are logged against airborne and ground activities of CAMP personnel.[xx]

In California and in many other states, use of the National Guard for marijuana eradication is sometimes preceded by a declaration from the Governor that marijuana cultivation represents an "emergency" which necessitates the use of the Guard. While most persons think of an "emergency" as a spontaneous and unexpected event (such as a flood), the Orwellian military use of "emergency" means "something that the Governor thinks is a serious problem, even if the problem has persisted at endemic levels for many years." The truth is another casualty of the war on drugs.

The National Guard also provides direct support for large raids on homes suspected of containing drugs. Typically, the Guard will secure the perimeter, while state or local police will enter the home.

The Guard's participation is not limited to raiding homes pursuant to a court-ordered search warrant. In Puerto Rico and other jurisdictions, the National Guard provides a large part of the manpower and the heavy military equipment for police/Guard assaults on public housing apartments. Backed by the National Guard, police attack public housing projects and conduct warrantless room-to-room searches, while residents are held at gunpoint.[xxi] Not even King George III had the temerity to order such raids on people's homes; Kind George's Redcoats conducted routine blanket searches only of warehouses and other commercial property. But today, in the name of the drug war, Americans allow themselves to be victimized by military abuses much worse than the abuses which sparked the Americans of 1775 to revolution.

Equipment

In 1993, Congress ordered the Department of Defense to sell military surplus to state and local law enforcement for use in counter-drug activities.[xxii] Through low-cost sales and donations, the U.S. military is transforming the equipment possessed by state and local law enforcement. Some of the new equipment is unobjectionable, such as armored vests and Kevlar helmets. Other equipment--such as military transport trucks--is likely to have only occasional practical use.

But the donation program also provides police agencies with extremely sophisticated surveillance equipment, some of which can be used to spy on people inside their homes. This equipment, such as sophisticated night vision gear and thermal detection devices, is ideally suited for conducting warrantless searches inside homes. And as long as the warrantless surveillance is not used in court (but instead is used to develop leads for evidence that can be admitted), the warrantless surveillance is unlikely to be discovered. For many years the Los Angeles Police Department got away with thousands of illegal phone taps, by always being careful not have evidence from the illegal tap itself introduced in court.

The military donation program is also putting huge numbers of M-16 and M-14 automatic rifles, and M203 and M79 grenade launchers into civilian law enforcement--quite an increase in firepower from the traditional service revolver and back-up shotgun.

The drug war has also led to the proliferation of another type of firearm in law enforcement, the German-made Heckler & Koch MP-5 machine pistols--which are usually bought by law enforcement, rather than donated by the military. These weapons are sold almost exclusively to the military and police. The advertising to civilian law enforcement conveys the message that by owning the weapon, the civilian officer will be the equivalent of a member of an elite military strike force, such as the Navy SEALs. The ad copy links civilian law enforcement to military combat, with lines like "From the Gulf War to the Drug War." As one criminologist notes, "The MP5 series is the pride and the staple of police tactical operations units, and it holds a central place in the paramilitary police subculture. Its imposing, futuristic style overshadows its utility as a superior 'urban warfare' weapon."[xxiii]

Functionally, the MP-5 is a perfectly fine weapon. But when law enforcement agencies are procuring weapons, they need to consider not only their mechanical characteristics, but also how officers in the field will use them. When a weapon's advertising and styling deliberately blur the line between warfare and law enforcement, it is not unreasonable to expect that some officers--especially when under stress--will start behaving as if they were in the military. That is precisely what happened at Waco when the BATF agents began firing indiscriminately into the building, rather than firing at particular targets.[xxiv] This indiscriminate fire apparently killed British citizen Winston Blake, who was not participating in the gun battle.

It is ironic that over many city governments, at the behest of the gun prohibition lobbies, are suing gun manufacturers for truthful advertising stating that firearms in the responsible hands of law-abiding citizens can provide important protection. At the same time, many these very same cities are equipping their police departments with machine pistols and other automatic weaponry whose advertising (like Heckler & Koch's) encourages irresponsible, military-style use of weapons in a civilian environment.

The drug war is also changing law enforcement transportation. On the ground, the Joint Task Forces convey LEA ("Law Enforcement Agency") personnel in Bradley Infantry Fighting Vehicles or in armored personnel carriers. Air transport may employ helicopters such as the MH-60 or CH-47, as well as helicopter gunships. Sometimes the transport equipment is driven or piloted by the military, and sometimes it is loaned to the LEA. In addition, the United States Army Aviation & Troop Command (ATCOM) is selling surplus OH-6A scout helicopters to state and local governments for use in drug law enforcement. Helicopters are also routinely used by the National Guard and by local sheriffs departments in marijuana eradication programs.

The helicopter proliferation has had important unintended consequences. Many "Patriot" organizations are comprised of members who are have been terrified by the appearance of unmarked black helicopters over nearby rural property. These helicopters (which are actually a very dark green) have played a major role in intensifying fear and loathing of the federal government. The helicopters are not from the United Nations, but are part of the National Guard's marijuana eradication program. They are flying over rural property as a result of the Supreme Court decision in Oliver v. United States, which allows law enforcement officials to trespass on "open fields" without probable cause or a search warrant--even when the owner has taken all possible steps to exclude trespassers.[xxv] Thus, many rural areas have been subjected to low-level overflights and landings of dark helicopters carrying men in military uniforms with automatic weapons. Who would not be frightened by the sudden appearance of a helicopter with obscured markings and camouflaged, helmeted men with machine guns on private property?

As discussed above, National Guard helicopters were also used in the BATF's raid on Waco, under the pretense that the Branch Davidians were running a methamphetamine lab. At least some of the BATF agents on board the helicopters were carrying MP-5 machine pistols, and significant evidence suggests that the BATF agents in the helicopters strafed the roof of the building. For example, Dr. Bruce Perry examined the Branch Davidian children who left the compound in the weeks following the BATF raid. One child drew a picture of a house beneath a rainbow. Perry asked, "Is there anything else?" and the child then drew bullet holes in the roof. Newsweek magazine reprinted the Davidian girl's picture of her home with a dotted roof. "Bullets," the girl explained.

Catherine Matteson, a seventy-two-year-old Branch Davidian woman not accused of any crimes, was interviewed by the Las Vegas Review-Journal. She clearly recalled seeing helicopters firing through the roof and walls of the residence, stating "I saw the yellow flashes." When machine guns fire, there is a yellow flash of muzzle blast, visible even in daylight. Attorney Jack Zimmermann, who went into the Branch Davidian house during the siege, in order to try to convince the Branch Davidians to surrender, later testified that he saw many bullet holes in the ceilings with a downward trajectory, indicating that the helicopters had been firing into the compound from above. (The holes in the roof flared downward, and therefore could not have been created by people shooting up through the roof into the sky.) There is no nearby high ground from which BATF agents not in helicopters could have shot bullets into the building with a steep downward trajectory.

As former BATF Director Stephen Higgins acknowledged, anyone who strafed the building from a helicopter ought to be charged with attempted murder; even if BATF agents on the ground had the legal right to shoot at particular targets who were shooting at them, there could be no legal justification for shooting through the roof into a building known to contain women and children.[xxvi]

Military helicopters with military pilots carrying men firing military machine pistols into a building full of women and children. None of the people in that building used drugs. But like Esequiel Hernandez, they too were attacked by the military in the name of the drug war.

Paramilitary Training

The Joint Task Forces provide federal, state, and local law enforcement with extensive training. Among the subjects taught are patrolling, helicopter attacks, sniping, intelligence, and combat techniques. The combat techniques often fall under what is called "Advanced Military Operations on Urbanized Terrain" (AMOUT). This is a euphemism for Close Quarters Combat (CQC)--house-to-house urban killing, as practiced in places such as Stalingrad in 1943. Before 1993, official Army policy forbade teaching Close Quarters Combat to civilian law-enforcement, but that restriction has been abandoned. Much of the military training is provided by the Army Rangers or the Navy SEALs--elite attack teams.

Before the JTFs were created, law enforcement agencies still trained their employees. The difference today is that much of the training is free (provided with federal funds, ostensibly as part of the drug war), and much of the training is provided by active-duty military personnel, rather than by civilians such as retired law enforcement officers.

The federal government actively works to militarize local law enforcement. For example, Mark Lonsdale, the Director of the federal government's Special Tactical Training Unit writes that there are various governmental programs, including those run by the federal Drug Enforcement Agency "available to local law enforcement" for marijuana control. "The thrust of this training is towards developing more of a military approach to tactics along with the study of the methodology of the growers."[xxvii]

The United States military has also begun conducting joint warfare exercises with state and local law enforcement. For example, one morning the residents of Cass Corridor (a poor neighborhood in Detroit) were startled by the sounds of explosives and massive gunfire. While many residents hid, the few who dared to look outside found an eighty-person Detroit Police Department practice assault in progress on a vacant four-story building in the neighborhood. The Deputy Police Chief in charge of the practice assault explained that such drills are routinely performed by police agencies in conjunction with the U.S. Army and other federal agencies.

In June 1995, the Chicago suburb of Des Plaines was the sight of another gunfire, explosive, and helicopter extravaganza. According to the Chicago Sun Times, when concerned residents called the local police, the police "said they never heard of it." Eventually, the Illinois State Patrol acknowledged that the war exercises were "some sort of SWAT thing; multijurisdictional. We can't talk about it." The Pentagon called the incidents "routine training" for "military police."

One night later, the Chicago suburb of Lemont underwent a similar invasion. The official explanation was "a navigational exercise"--as if shooting guns and setting off explosives were part of "navigation."

In June 1996, two hundred soldiers from Fort Bragg conducted urban warfare exercises in Pittsburgh and McKeesport, Pennsylvania, in conjunction with the Pittsburgh and Allegheny County SWAT teams. (Fort Bragg is the home of the Joint Special Operations Command, Special Forces, and the 82nd Airborne Division.) These domestic warfare drills, with combined military/SWAT/local police training, are increasingly common, and are another source of "black helicopter" rumors.

The absence of civilian oversight is especially acute in military training for law enforcement. We do know that at the infamous School of the Americas (where many Latin American military officers involved in human rights violations, international law violations, and murder have received U.S. training), the number of drug courses rose from zero in 1989 to ninety in 1997. But the training that takes place in foreign countries is shielded from civilian monitoring. As a first step to reform, the U.S. military should be required to produce an annual unified report to Congress on all training of Latin American forces, to enhance Congressional oversight.

Not only is U.S. military training of the Latin American military hidden from the American people, so is the training of the American military itself. Amazingly, all military special operations training (Delta Force, Green Berets, Navy SEALs, etc.) is shielded from Congressional oversight.[xxviii]

State and local militarization

A survey by criminologist Peter Kraska reports that 89% of police departments have paramilitary "SWAT" units, and forty-six percent have received training from military personnel on active duty.[xxix] Although Kraska's figure may be too high (because police departments without paramilitary units did not answer his survey), it is clear that local law enforcement paramilitarism is far more common than it was a decade or two ago.

These paramilitary units are only rarely used for hostage rescue or anti-terrorism (since hostage-taking and terrorism are rare, fortunately). Instead, the primary use of these units is to serve "dynamic entry" search warrants in drug cases.[xxx]

Serving a search warrant by violently breaking into a house (as opposed to knocking first and demanding entry) is justifiable in certain situations--such as when the occupants and are known to be armed and dangerous. But once paramilitary units are in place, they have a tendency to want to keep busy even when there is no need for their special violent skills. Former New York City Police Commissioner William Bratton explained: "In those instances where the suspect might be armed, we would call in a special tactics unit. Over time, though, it became common always use the tactical unit no matter what or who the warrant was for. They used stun grenades each time and looked at it as practice."[xxxi]

The victims of these raids are not just people who break the drug laws. For example, the Reverend Acelyne Williams was a substance abuse counselor in a poor neighborhood in Boston. One evening Rev. Williams was visited in his apartment by a substance abuser who also happened to be an undercover informant in the pay of the Boston police. Later, the informant, obviously drunk, gave the police the address of a drug dealer, except the informant mistakenly gave the police the address of the Rev. Williams. The police promptly obtained a search warrant, based only on the drunk's statement. Of course, if the police had attempted corroboration, they would have found that the apartment in question belonged to a seventy-year-old retired Methodist minister, and there were no signs of drug activity at the apartment.

Armed with the search warrant, and plenty of firearms, the Boston police executed a dynamic entry, breaking into the Rev. Williams' apartment, chasing him into his bedroom, shoving him to the floor and handcuffing him while pointing guns at his head. He promptly died of a heart attack.[xxxii]

The litany of these victims grows ever larger. In Houston in the summer of 1998, six police officers broke into the home of Pedro Oregon Navarro and shot him dead. The pattern was the same as in so many drug war deaths: the police broke into his home at night, with no warning. When the victim grabbed his gun to protect himself from the invaders, he was shot 12 times. Navarro had nothing to do with drugs; the search warrant had been based only on the word of a drunk who, arrested for public inebriation, was given a chance to give the police the address of a "drug dealer," in exchange for being released.[xxxiii]

While some drug war deaths, such as the Williams and Navarro murders, make national wire services, most do not. More typical are cases such as this one, which received no national press, other than a brief item in the National Review:

On the night of April 17 [1995], sheriff's deputies raided the trailer home of Scott W. Bryant in Beaver Dam, Wisconsin to execute a search warrant as part of a drug investigation. Moments after the deputies burst into the trailer, one of them fired a shot that fatally wounded Bryant. The 29-year-old man, who was unarmed and offered no resistance, died in front of his 7-year-old son. The police found three grams of marijuana in the trailer.[xxxiv]

Bryant was shot by a detective who had repeatedly made headline-grabbing drug busts. Although the District Attorney found the shooting "not in any way justified," no criminal charges were filed, and the detective was returned to active duty.

The Los Angeles Police Department has been a leader in militarization and aggression among major urban police departments. Then-chief Daryl Gates created the first Special Weapons and Tactics (SWAT) team in the 1970s. (Gates had originally wanted to call it a "special weapons and attack team," but had changed the name for public relations purposes.) Violent break-ins to homes under the pretext of drug law enforcement became routine in the 1980s. In 1989, for example, LAPD officers, including the Gang Task Force, broke into and destroyed four apartments on Dalton Avenue; the apartments were suspected as crack dens, but in fact were not. This did not stop LAPD officers from spray painting on an apartment wall, "Gang Task Force Rules."[xxxv] The officers who participated in the raid were promoted.[xxxvi] To many people of color in major cities, the distinction between the bad elements in a police gang task force and a non-governmental gang is increasingly blurry. Both are likely to perpetrate criminal assaults against persons and property, based on weak pretexts, and both are unlikely to be punished for their offenses.

As a result of both federal and local actions, America is moving towards the normalization of paramilitary forces in law enforcement. For example, the police in Fresno, California, have taken the next step towards militarization of local law enforcement. The Fresno SWAT team, in full battle gear, now deploys a full-time patrol unit in the city. Deeming the SWAT patrol an "unqualified success," the Fresno police department "is encouraging other police agencies to follow suit."

About twenty percent of police departments in cities over 50,000 have already put their own paramilitary units into street police work. In many cases, funding for street deployment of paramilitary units is funded by "community policing" grants from the federal government!

SWAT teams also get deployed in missions very foreign to ordinary police work: The SWAT Team in Chapel Hill, NC conducted a large-scale crack raid of an entire block in a predominantly black neighborhood. The raid, termed "Operation Redi-Rock," resulted in the detention and search of up to 100 people, all of whom were black. (Whites were allowed to leave the area.) No one was ever prosecuted for a crime.[xxxvii]

Drug war violence is often inspired by forfeiture laws, which allow the police to seize property without permission from a court, and to keep the property even if the property owner is acquitted of criminal charges--or if criminal charges are never filed.[xxxviii]

On October 12, 1992, a multitude of federal and state agencies (including the National Park Service, the Forest Service, the Drug Enforcement Administration, and the National Guard) broke into the home of southern California millionaire Donald Scott. The no-knock, late night raid was supposedly designed to serve a warrant to look for marijuana plants growing on Mr. Scott's estate, although there was no realistic possibility that Mr. Scott could have destroyed the marijuana plants (alleged to be hidden in trees far from his home) during the time it would have taken the police to knock at his door and demand entry. When Mr. Scott, awakened by the noise of people breaking into his home at night, attempted to protect his wife from the break-in by running into the living room with his legally-owned .38 revolver, he was shot dead. The search yielded no evidence of drugs or illegal activity.

An investigation by Ventura County, California, District Attorney Michael Bradbury found that the basis of the warrant--a drug agent's claim that while in a surveillance plane 1,000 feet above the ground, the agent could see individual marijuana plants concealed in leafy trees--was fabricated. The District Attorney also noted that the sheriff's department that participated in the raid had conducted an appraisal of the five-million-dollar Scott ranch before the raid, apparently with the expectation that the ranch would be forfeited to the government.

Most forfeitures do not involve violence or death. When the law enforcement officers point their guns at someone and announce they are taking away the property, most property owners do not resist. Similarly, in most robberies perpetrated by individual criminals with guns, the victim does not resist, and no one gets hurt.

In practice, forfeiture has increasingly become a form of legalized robbery. When the property of an innocent person is taken away at gunpoint, the effect on the victim is the same, whether the perpetrator was an individual criminal with a handgun, or several federal agents with machineguns. For example, two Kansas City police drug squad members, wearing ski masks to conceal their identity, handed forfeiture papers to the owner of a Corvette car, and then drove the vehicle away. The man was not charged with any crimes. Except for getting a receipt, the man experienced the functional equivalent of a carjacking.

Causes of Law Enforcement Militarization and Violence

The collapse of the Soviet Union has, unfortunately, led many military officials to seek out a new enemy to justify continued funding. Often, that new military enemy turns out to be American citizens. The North American Aerospace Defense Command (NORAD) admits that it is no longer capable of protecting Americans from incoming nuclear missiles. Yet NORAD enjoys hundreds of millions of dollars in annual funding, as part of a 1.8 billion dollar systems upgrade, having convinced Congress to assign NORAD the mission of tracking planes and ships that might be carrying drugs.[xxxix]

Many other federal military programs have hitched themselves to the anti-drug bandwagon. For example, when President Clinton in April 1996 requested 250 million dollars in extra funding for anti-drug programs, over half that money was earmarked for the military.[xl]

The incentives for lawless violence and militarization do not come entirely from law enforcement itself. As sociologist Phillip Jenkins observes, "Media images can also frame the expectation and behavior of individual agents and administrators...."[xli] Sensationalistic movies like Lethal Weapon glorify militaristic, violent police conduct in the name of the drug war. While the effects of violent television on children have received a great deal of attention, the effects of violent entertainment on adults, including adults in law enforcement, have rarely been analyzed.

Another cause of militarization is the use of military rhetoric by politicians. Political talk about a "war on drugs" or a "war on crime" confuses the objectives and methods of war (destroying a foreign military force, and not worrying about proper procedure) with law enforcement in a free society, involving suspects who are American citizens, and entitled to the full protection of the Bill of Rights. As New York University law professor Paul Chevigny explains:

Armies are organized and trained for killing an enemy, usually more or less well-defined, and not for service and law-enforcement among a civilian population to which they themselves belong, in situations for which they have to make fine-grained legal and social distinctions about what action is required....
[T]he results of ["war on crime" rhetoric] distort and poison police relations with citizens. The police think of themselves as an occupying army, and the public comes to think the same. The police lose the connection with the public which is a principal advantage to local policing, and their job becomes progressively more difficult, while they become more unpopular.[xlii]

One can be in favor of drugs being illegal, and still oppose "the war on drugs," just as one can want food stamp fraud to be illegal without wanting a "war on welfare cheaters," because to have "a war" is to make it likely that the military will become involved--and that, inevitably, innocent blood will be shed. As Police Studies professor Peter B. Kraska writes:

[T]he militaristic nature of the discourse on crime and drug control--wars on crime and wars on drugs--constitutes more than ineffectual media/political rhetoric. Filtering solutions to the complex social problems of crime and substance abuse through the "war" metaphor helps to structure our values in use, our theories, and most important, our actions.... A metaphor and associated dis-course materialized, for example, into urban police departments deploying paramilitary police groups to patrol U.S. neighborhoods.[xliii]

Regarding the First World War, historian Randolph Bourne observed that "war is the health of the state." War may not be good for children and other living things (according to a popular 1960s poster), but war is wonderful for expanding state power. The drug war has been the health of the military state, and may in the long run be the death of the Constitution.

Reform

Congress should make the following reforms to address the problem of law enforcement militarization:

• Tighten the Posse Comitatus Act so that it proscribes all use of military personnel and equipment, not just use of the Army and Air Force.

• Eliminate the loophole that exempts the National Guard from the Act when the Guard is in "state status."

• Repeal the drug exceptions and other exceptions to the Posse Comitatus Act. Retain exceptions only for law enforcement in international waters or requiring unique military expertise related to nuclear weapons. (The FBI has received massive funding in recent years to deal with chemical or biological weapons.)

• Make knowing violation of the Posse Comitatus Act into a predicate felony for felony murder, so that murder prosecutions may be brought if a death results from deliberate Posse Comitatus Act violations.

• Bar the use in federal courts of any evidence obtained in violation of the Posse Comitatus Act .

• Create a civil cause of action for persons injured by Posse Comitatus Act violations--so that the Department of Justice is not able to nullify the Posse Comitatus Act by failing to enforce it.

In addition, Congress should repeal 10 U.S.C. sect. 371 et seq., which force the Department of Defense to give or sell military equipment of law enforcement.

Of course, any person who has served honorably in the military should be allowed to apply for any civilian job, including law enforcement. But the federal government should stop subsidizing police departments hiring persons with a military background, as opposed to a civilian background. Much of the training which makes a good soldier is directly contradictory to the training necessary to be a peace officer.

In the years before the Posse Comitatus Act, any soldier who did engage in police activity was deemed to be acting as a private citizen, rather than as a soldier. Under this Mansfield Doctrine, the individual, since he was not acting as a soldier, could be personally sued or criminally prosecuted for any wrongs he committed. Courts should revive the Mansfield Doctrine at once, and allow injured victims to bring lawsuits against individual "law enforcement" soldiers who perpetrate civil torts.

Law enforcement use of masks in the service of search or arrest warrants should be prohibited, except when specifically authorized by a court when authorizing the warrant, based on compelling need. Masks not only make peace officers look inappropriately terrifying, they prevent identification of rogue officers so that they cannot be sued later for criminal acts.

As an important symbolic step, law enforcement should give up its black or near-black uniforms and replace them with a color (such as ordinary blue) more consistent with law enforcement in a democracy. John Kleining, a Rutgers University professor who studies the psychology of clothing, explains that black law enforcement uniforms tap "into associations between the color black and authority, invincibility, the power to violate laws with impunity."[xliv]

Conclusion

The militarization of law enforcement has created the equivalent of a standing army engaged against the American people--precisely what was feared by the Framers. The consequences have been just what the Framers expected from a standing army involved in domestic law enforcement (especially enforcement of laws against the possession of certain commodities): the erosion of the Bill of Rights, particularly the Fourth Amendment's protection against unreasonable searches, and the deaths of innocent people.

Soldiers are not peace officers. At all levels of policing, it is time that police officers be restored to their honored status as peace officers. Police ethicist John Kleinig notes: "Were police to see themselves primarily as social peace-keepers, they would be less inclined to 'overkill' in their dealings with both ordinary citizens and those whose disruptive activities properly require their intervention."[xlv] Cicero's advice to the Roman republic, "Let the soldier give way to the civilian,"[xlvi] must be heeded by those who are intent on preserving the American republic, and the rule of civil law.