|ACLU examines Pentagon role in sniper probe
Military law experts warn of 'slippery slope'
CNN 10/17/02: Kevin Drew
Original Link: http://www.cnn.com/2002/LAW/10/16/sniper.military.libertarians/
WASHINGTON (CNN) -- The American Civil Liberties Union said Wednesday it was examining legal questions raised by the Pentagon's decision to deploy military personnel and equipment in the Washington area sniper shootings.
Defense Secretary Donald Rumsfeld signed an order Tuesday allowing Army RC7 and U21 surveillance and reconnaissance aircraft to be used in the sniper hunt.
The all-weather aircraft -- spy planes, essentially -- are small fixed-wing airplanes packed with advanced technology, including sensors.
Troops will operate the planes and equipment and point out potential targets to local law enforcement authorities, which will request their use as needed.
The ACLU said it was examining whether the order might violate parts of the Posse Comitatus Act, an 1878 law prohibiting the military from direct involvement in civilian law enforcement.
"We are monitoring what the Defense Department may do in terms of providing surveillance information to domestic law enforcement," said Laura Murphy, director of the ACLU Washington office.
"They are asserting that they are complying with the spirit of the law in the Posse Comitatus Act, and we are analyzing that to determine whether or not they are.
"We are not prepared to say, to assert, that they are or are not," Murphy said. "We are looking at what they are saying, what they are doing and looking at how it compares to the law."
Murphy's comments were in response to a question at an ACLU news conference announcing a campaign to "defend the Constitution" against the Justice Department's search for terrorist cells and al Qaeda supporters.
The $3.5 million campaign includes $1 million in TV advertising in 10 markets. Although the ads -- sharply critical of Attorney General John Ashcroft -- will begin running before Election Day, November 5, the ACLU said the campaign is not aimed directly at specific candidates in the congressional elections.
Military sources said the participation in the sniper probe would avoid any potential conflict with the Posse Comitatus Act.
Civil libertarian groups such as the ACLU have been concerned about the Bush administration possibly casting a critical eye on the Posse Comitatus Act, particularly as the United States carries out its war against terrorists and implements its homeland defense strategy.
Such groups have expressed concern the federal government might be granted authority to deploy the National Guard in emergencies, a power reserved for state governors, or to use the military for civilian defense.
Bush administration officials, however, have downplayed the implications of reviewing the Posse Comitatus Act.
Military leaders have generally supported the restrictions because their troops were not specifically trained in those roles. As recently as May, Rumsfeld said the Pentagon would not seek any changes in the law.
David Sheldon, a Washington, D.C. military law attorney who used to be a Navy lawyer, said even the appearance by the Bush administration of softening the law is dangerous.
"It really opens up a slippery slope," Sheldon said. "It opens them (the Bush administration) up for attack where they don't need to be attacked."
In recent years Congress has passed several laws relaxing the strictures of the Posse Comitatus Act in order to deal with potential attacks on U.S. soil.
In 1997, for example, Congress gave the Pentagon authority to cooperate with the Justice Department in responding to biological or chemical attacks.
Another law allows military personnel to assist the Justice Department in collecting intelligence or conducting searches and seizures if authorities deemed the move necessary to protect human life.
Section 104 of the USA Patriot Act -- passed last year in the wake of the September 11 attacks -- further allows the emergency use of the military in "case of attack with a weapon of mass destruction."
Over the years, the Posse Comitatus law has been amended to
Allow the military to lend equipment to federal, state and local authorities;
Assist federal agencies in drug interdiction work;
Protect national parks;
Execute medical quarantines and certain health laws.
Eugene Fidell, a former Coast Guard lawyer who has practiced military law for 30 years and is affiliated with the Washington-based National Institute for Military Justice, said the provisions of the Posse Comitatus Act do not support the military involvement in the sniper shootings.
"How do you get there from here? They haven't persuaded me that this is valid," Fidell said. "You have to have a disruption of civil authority before the military can perform activities such as surveillance."