Inside the Pentagon
Copyright Inside Washington Publishers
Reprinted with Permission
November 14, 2002

FORMER JAG: MILITARY AID IN D.C. SNIPER PURSUIT MAY HAVE BROKEN LAW

by Elaine M. Grossman

A longtime expert in military jurisprudence contends Defense Secretary Donald Rumsfeld likely violated the law last month when he directed U.S. Northern Command -- the military headquarters for homeland defense -- to help track down the Washington area snipers.

“I would say this violates the statute and regulations” as well as the spirit of the law, says Eugene Fidell, a former Coast Guard judge advocate general now in private practice. Title 10 does not allow for the kind of support the Pentagon provided to the FBI, as much as defense officials were clearly trying to help allay public fears, he told Inside the Pentagon in an interview last month.

Just one day after NORTHCOM first opened its doors on Oct. 1, the sustained string of shootings around the nation's capital began. On the night of Oct. 16, the Pentagon's Joint Staff ordered NORTHCOM to assist federal civil authorities in their sniper investigation, Air Force Maj. Ed Thomas, a command spokesman, told ITP. The mission falls under NORTHCOM's role in civil support, officials said.

Rumsfeld acknowledged at a press briefing the next day that he had agreed to provide the FBI with “assets and capabilities” civil authorities lacked as they tried to track down and arrest the perpetrators.

Bound by the 1878 Posse Comitatus Act's limitations on the use of troops in domestic search and seizure, Rumsfeld asserted, “We do know that what we're doing is fully consistent with the law, full stop.” Reporters were told the defense secretary approved military assistance to FBI investigators only after a review by Pentagon attorneys. But the Defense Department has not released the Oct. 16 military “execution order” that includes details of the assigned mission.

Government officials privately say Army RC-7 fixed-wing aircraft with mixed civilian and military crews soon began flying surveillance missions over the Washington region. The plane typically covers more ground than police helicopters by flying higher. And it is fitted with high-technology sensors that could help pinpoint the source of the random shootings, experts say.

On Oct. 24, two suspects, John Allen Muhammad, 41, and Lee Malvo, 17, were arrested in connection with the sniper shootings. The pair is now linked to 21 shootings in six states and the District of Columbia, 14 of them fatal.

Defense sources acknowledge the Army planes and military personnel appear to have played no role in the arrests, which were made after a trucker spotted their car parked at a Maryland rest stop.

FBI officials must “decide for themselves if it's worth it, and in the big scheme of things, if they're getting value for their money,” one defense official conceded as the military flights were still ongoing.

But as the military's involvement in the Washington sniper investigation fades into the realm of historical footnote, some observers wonder if it may serve as a precedent for future NORTHCOM-led operations. If so, was it legal?

“I don't think it's a violation of Posse Comitatus,” says retired Air Force Brig. Gen. Thomas Hemingway, president of the Judge Advocates Association. “Given the resources that the Defense Department has . . . that are not available to law enforcement agencies, I think it's consistent to provide that assistance.”

Fidell strongly disagrees. He notes that Title 10 of the U.S. Code carefully delineates the circumstances under which the Defense Department can make personnel available to operate equipment, at the request of a federal law enforcement agency. Under Chapter 18, Sec. 374, the defense secretary can aid federal civil authorities with “aerial reconnaissance” -- but only in cases related to immigration, customs, narcotics trafficking or terrorism.

The first three clearly do not relate to the sniper case.

On the question of whether the snipers might be linked to terrorism, U.S. government officials said during the sniper investigation that they had not ruled out a such a link. But they also pointedly noted they had no evidence of any terrorism connection.

“Speculation is not a basis for breaking the law,” Fidell said last month as the hunt for the perpetrators was still under way.

Title 10 further requires the defense secretary to issue “such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” does not involve “direct participation” of any service member “in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

Debates over the permissibility of assigning military RC-7 crews to the sniper investigation largely revolve around the concept of “direct participation.”

Some officials defended Rumsfeld's approval of the mission last month on the basis that military personnel only piloted the plane, but did not directly engage in “search and seizure.” The FBI led the missions, and the crews in back were composed of civilian FBI personnel reading the sensors and directing the pilots to potential “target” vehicles, these officials maintained.

The Posse Comitatus Act, which forms the basis for this section of Title 10, prohibits the military from conducting most kinds of domestic search and seizure. But the law does not restrict the military's “passive or indirect support to law enforcement authorities,” according to a NORTHCOM point paper on the topic. Nor does Posse Comitatus “preclude the loan of military equipment or material to civilian law enforcement,” the point paper asserts.

“We're not doing law enforcement,” one defense official told ITP. “We're providing assistance.”

The sniper investigation support was legal “as long as the target selection -- for surveillance purposes -- is made by civilian law enforcement agencies,” Hemingway said on Oct. 21. The pilot is “aiding in the surveillance” by flying the aircraft, but the support is indirect, he said.

But one defense official familiar with the mission said Army personnel were, in fact, reading and interpreting the sensors aboard the RC-7s. With public pressure mounting to catch the snipers, DOD began assisting the FBI before the military personnel could train their civilian counterparts on how to interpret the sensor data, this official said.

“Most of the [military] operators have been training for years” in how to use the surveillance equipment, said this source, noting there was nowhere near enough time to train the FBI personnel on board.

But the official hastened to add that the FBI officials on the plane were still “in charge,” and the military played only a supporting role.

“I'm not sure there's a difference” between the kind of support DOD recently provided and the role it plays driving humvees in counternarcotics missions along the U.S. border, this source said. “It's operating a machine.”

The sniper investigation support “falls in line with what we've been doing for years, the defense official said. But “there's nobody who's more sensitive to these issues than the command itself,” said the source, referring to NORTHCOM and its chief, Air Force Gen. Ed Eberhart.

That point may be debatable: Some experts say the Pentagon's assessment of legal matters related to Posse Comitatus may be clouded by a strong desire to simply help out when law enforcement officials are in a pinch.

One observer says he has his own conflicting opinions. “Let me tell you how I feel and how I think” about military aid in the sniper case, “because those aren't necessarily the same,” said Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

“How I feel is that they should do whatever they can to apprehend this guy,” he said last month, two days before the arrests were made. “There is imminent loss of life . . . that justifies extraordinary measures. If military [personnel] have a part to play, then by all means, they should make that contribution. And we can worry about legal issues after the guy is caught.”

At the same time, Aftergood recognizes that laws and regulations may not allow for it. “At a minimum, there is a question,” he said, noting it is up to Rumsfeld and his legal counsel to reconcile competing interpretations.

Fidell, who has taught military law at Yale, acknowledges he is sympathetic to the pressure felt by the FBI and local law enforcement to do everything they could to put an end to the attacks.

“It's extremely tempting to say, 'We have the resources. Let's use them,'” he said. “Especially in such an extreme case.”

But Fidell noted that “many cases have taken longer than this to crack.”

Defense Directive 5525.5 says that if the collection of information is an “incidental aspect of training for a military purpose,” data may be passed along to civil authorities. But, it states, “this does not permit the planning or creation of missions or training for the primary purpose of aiding civilian law enforcement officials.”

The document also explicitly prohibits the military from directly assisting in the “surveillance or pursuit of individuals.”

Even if military personnel were used solely to pilot the RC-7, Fidell believes that would violate the dictum against direct assistance.

“You build a fence around the law” and ensure that activities go nowhere close to that line, Fidell said. In this case, he believes Rumsfeld actually crossed over the line -- all the more clearly if military personnel were reading the sensors and suggesting potential target vehicles.

Hemingway speculated that Rumsfeld may have waived the directive in this specific case, which he has the power to do. That may be true, Fidell said, but if so, it would be a troubling use of Rumsfeld's discretion in this case. “This is a government of law,” he said.

Beyond concerns about the potentially improper use of the U.S. military in civil society, this case raises the future prospect of weakening a prosecutor's hand once trial begins, Fidell said. Although military assistance like that in the sniper case might initially contribute to apprehension and prosecution, a future defendant could offer a motion to suppress evidence military personnel have helped gather. He said some states are more apt to suppress evidence than are federal courts.

Fidell cited a 1961 court case, Wrynn vs. the United States, in which the Air Force launched a helicopter to help chase down a prisoner who escaped a Long Island, NY, jail. Facing bad weather, the helicopter was forced to land on a highway. In the process, a rotor blade nicked a tree limb, injuring a passerby on the ground. The accident victim sued the U.S. government and won on the basis that the Air Force flight was illegal under Posse Comitatus.

At the same time, another federal document appears to allow more latitude for the military, some observers noted. An executive order on U.S. intelligence activities, signed by President Reagan in 1981, states that agencies including the Defense Department can “provide specialized equipment, technical knowledge, or assistance of expert personnel for use by any department or agency, or, when lives are endangered, to support local law enforcement agencies.”

Defense Directive 5525.5 appears to set the bar higher for military involvement, noting that Posse Comitatus allows military involvement in law enforcement when responding to “emergencies.”

“The emergency authority authorizes prompt and vigorous federal action, including use of military forces, to prevent loss of life or wanton destruction of property,” states the directive. The military can also be used “to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal government functions to such an extent that duly constituted local authorities are unable to control the situation.”

Active-duty military personnel were used to help quell the 1992 Los Angeles riots under this “emergency” provision, officials say. Many observers agree that while the sniper case was troubling for a period of weeks, it stopped well short of an emergency.

Fidell says the apparent conflict between the executive order and the defense regulation on what test to use for military involvement is not worrisome to him because law always takes precedence. In this case, he says, Title 10 is the definitive document.

Earlier this year, Rumsfeld authorized the use of 5,300 military troops to help guard the Winter Olympics in Salt Lake City from potential terrorist attack. In his Oct. 17 press conference, the defense secretary cited the Olympics case to show that using the military to augment civil authorities is not unusual.

But Fidell calls for greater “nuance” in delineating the kinds of circumstances in which such assistance is appropriate.

Just as the military faces “unquantifiable risks” around the globe, “we have an unquantifiable judgment to make” regarding the limits to place on using the military for domestic law enforcement, he said.

“We could have a crime-free society. We could do it,” Fidell said. “But it would be a very different society.”

Aftergood sounded some of the same notes. Posse Comitatus was aimed at bolstering “the society we want to live in, which is not predominantly a military one,” he said.

Recognizing that most Americans want to avoid the militarization of civil society, Fidell said it is up to Rumsfeld to create sensible guidelines and stick to them. “Are there some road maps here?” asked Fidell. “Or [is it] just that we did this in the Olympics,” so there is no harm in extending the military's use to some other cases, he said.

Aftergood acknowledged what he called a “slippery slope concern.” He said the military's use in pursuit of the snipers was “predicated on the notion that this is an extraordinary situation that [demanded] an extraordinary response. It does not justify a routine [loosening of] controls.”

Fidell acknowledged that until the sniper suspects were arrested, the community around Washington was “fearful.” But calibrating an appropriate response “may take a little self-control on our part,” he said. -- Elaine M. Grossman