Mr. FISH. Can you visualize, or have you had experience with, examples of situations where the vessel was under the jurisdiction of the U.S. Navy, and had drug enforcement personnel aboard?

Mr. DENNIS. I am not aware of any particular incident. I am not aware of any particular incident in which a naval vessel was used for that purpose of interdicting a smuggling vessel.

The DEA only has small craft at its disposal. And those would be used for working close into shore.

Mr. FISH. When it is larger craft that is needed to track or to pick up a large vessel in the Caribbean, it would be the Coast Guard that you would use.

Mr. DENNIS. That's correct.

Mr. FISH. So you don't see the need for this authority, then, particularly for the Navy?

Mr. DENNIS. We feel we have the authority under 873(b), with regard to the Navy.

These matters can be subject to different interpretations by the court, but we think that if we went to court on this, we would win since in fact posse comitatus does not cover the Navy-the only restrictions are naval regulations-and 873(b), being a congressional decision in terms of authorizing the Attorney General to make such a request, we would prevail on that.

Mr. FISH. Examining the language that I read in the statute, let me pose a hypothetical that there was no Drug Enforcement Administration vessel nearby. There was a small Navy vessel and your agents boarded this vessel. It was navigated and steered and crewed by U.S. Navy personnel, and they carried out the assignment of taking your personnel to a particular spot in the high seas. Would you consider that in that instance members of the Armed Forces had assisted in a seizure or arrest?

Mr. DENNIS. I think they would have assisted in a seizure or an arrest. I can see a court holding that that was a direct-not a passive assistance. And in doing so, in the Department, it would invoke 873(b) as the authorization to ask the Navy's assistance in that regard.

Mr. FISH. Would you agree with that, Mr. Taft?

Mr. TAFT. Yes, I would agree with all that has been said.

Mr. FISH. What about military intelligence? I understand that we don't hear about them, but the Army Intelligence is one of the foremost intelligence agencies in the country. Surely there must be cooperation there, particularly when they have reason to believe that drugs are being brought into Army bases by outside people, by civilians.

Mr. TAFT. Any information we would obtain through the operation of Army Intelligence, or any other activities that we might have, would today-and the authority would be codified and clarified under section 371 of this bill-we would forward that immediately to the Department of Justice, to any State or local law enforcement authority that might have a use for it.

And that is, as I say, done today. I think pursuant to regulations that would be issued under this unambiguous statutory authority, it would perhaps be done more effectively.

Mr. FISH. I have no trouble with the provision. I gather you have no trouble, either, with the provision that makes information available to civilian law enforcement agencies.

But what if a person in military intelligence was actually on the scene, and his endeavors to track down drugs at a base led him to an actual transaction involving a nonmilitary individual? We don't want him to go back and write a long report to someone. Can he make the arrest?

Mr. TAFT. Yes. Under those circumstances, when he is on the base, and this would be the fact with respect to a civilian who was speeding in the Navy yard, he would be arrested, and would be held, and would be handed over to civilian authority.

Mr. FISH. What if the drug transaction is taking place on the base, and is witnessed by a member of military intelligence?

Mr. TAFT. Then he would not, in that circumstance-a member of the military intelligence would not have the authority, today, to make that arrest-nor, I believe, would he have the authority under this statute, for that matter.

Mr. FISH. No matter what he was witnessing?

Mr. TAFT. Any more than I would.

Mr. DENNIS. If your question is directed at a purely civilian-tocivilian drug transaction, where we would not be involved with military personnel per se, and an MP, military police officer, were to observe a crime being committed unrelated to his military duties, I think under the posse comitatus statute he would stand in the basic shoes of a civilian.

And at that point in time, he could do no more than a civilian could do. Whether he could effect some kind of citizen's arrest, I am not sure. The military, as I understand it, and counsel can correct me, does not ignore crimes that are committed in their presence, particularly if they are life-endangering or property-endangering. Consequently, if the military were on maneuvers, and observed an assault, for instance, they would intervene. And we have worked under that understanding for many, many years. I think it goes to an overly mechanical interpretation of the posse comitatus statute, which we tried to avoid.

Mr. TAFT. The typical arrangement, that is where the military is involved and observes a violation of a civilian statute, if it is on the base or in an area where they are conducting a maneuver, something of that sort, they will attempt to, and will succeed, in arresting the individual and holding him to hand over to the civilian authority.

If they are not in the process of carrying out a military operation or exercise, or are not on their base, I think for very good reasons their authority is diminished to the same as your own, or any other citizen.

Mr. FISH. Mr. Dennis, you recommend limiting military arrests to situations outside the United States. Does the military currently perform arrests outside the United States?

Mr. DENNIS. There are cases, reported cases, in which the military has made arrests; has held individuals in custody outside the United States, transported them back into the jurisdiction of the United States to stand trial on charges related to offenses for which they can be tried here.

So that has been done. But I feel that the type of situation that we are talking about here, and that Congressman Bennett spoke of, would be more of an operational, offensive type of operational capability, that the military might have, and certain limited situations, a limited theater, primarily the Caribbean area, where there is a massive assault by smugglers on a day-to-day basis by both aircraft and by ship craft, which is a little different situation.

Mr. FISH. If I have any more time, Mr. Chairman, I would like to ask Mr. Dennis if he would please explain the Department's position that the proposed language creates no problem under the Privacy Act.

Mr. DENNIS. Under the Privacy Act, and as an exception to it, an express exception to it, information received by the military services which would relate to criminal offenses can be disseminated, can be disclosed, and should be disclosed, to the Department of Justice or the appropriate law enforcement agencies.

So we do not feel that these amendments at all restrict any Privacy Act rights that an individual would have absent the legislation.

Mr. FISH. Thank you, Mr. Chairman.

Mr. HUGHES. Do you prefer the Nunn language as opposed to the sharing of information directly with State or local law enforcement agencies, which is inherent in the Bennett language?

Mr. TAFT. I think in reviewing this it is important to distinguish that Senator Nunn's bill, which he introduced, even varied from the language in the Senate bill which was passed, and which I believe Senator Nunn now supports. But, we believe that the nexus to a Federal civilian enforcement official is not necessary.

That is, a State or local agency acquires, for example, information or advice that we can do it more efficiently. Time may be important in these matters. We should directly share it with them if we have information that would be helpful to them, and that they should also, like a Federal agency, be able to make a claim on us, for loans of equipment and such. I think it could be important to do it directly.

Mr. HUGHES. Do you agree with that, Mr. Dennis?

Mr. DENNIS. Yes; I do.

Mr. HUGHES. I would like you to clarify under what circumstances a branch of the military would make an arrest or a seizure without the presence of law enforcement officials.

Mr. TAFT. As an example?

Mr. HUGHES. Yes.

Mr. TAFT. This would be under this-on a military base, first of all, would be one instance.

Mr. HUGHES. You are talking about activities on a military base or where the military has jurisdiction. But I am talking about when posse comitatus would or would not become operational. Under what circumstances can you envision Air Force personnel, Army personnel, or Navy personnel, making an arrest or a seizure without the presence of law enforcement officers, whether they be DEA officials or Customs officials.

Mr. TAFT. I would assume it would happen most frequently where a mobile violator was identified and was, say, in a boat, headed in a certain direction, or in an airplane, and it was the mil

itary boat following him, without a civilian law enforcement official on board, but perhaps in touch with them by communications. Or, an Air Force airplane would be in a position to follow the other airplane, and would land and accomplish the arrest.

Mr. HUGHES. Has that been a problem?

Mr. TAFT. We have not done that.

Mr. HUGHES. Have there been instances where that would have been a viable option for the military, if they had the authority to pursue such a violator?

Mr. TAFT. I don't believe we have had an instance where we have been requested to do it. It is a conceivable sequence of events.

Mr. DENNIS. I agree. I would say that is probably the most typical occasion that I could imagine where this situation would arise. Mr. TAFT. As a rule, there would be a civilian law enforcement official available to make the arrest, in most cases.

Mr. HUGHES. Let me tell you what my concerns are with the way that the bill is presently drafted.

I have no difficulty with providing assistance, equipment, research, facilities, and training, including training of DEA officials in the use of equipment and training by DEA or other officials or military personnel, where they are going to be part of an operation where assistance is going to be provided.

I am at a loss to understand why there is a need at this point to give military personnel the authority to make an arrest or a seizure. Is it because we do not have sufficient personnel on the jobs during those operations? Is that the problem?

Mr. DENNIS. No; I don't think that is the problem. I think what we anticipate is that there are going to be opportunities which arise, some unexpectedly, where we could take advantage of the presence of, for example, a military vessel that is in close proximity to a smuggling vessel, and could take advantage of that to have an arrest effected.

Mr. HUGHES. There may be a blind spot in the legislation. I can conceive of situations where an emerging problem, or operation, comes to the knowledge of the DEA or some other law enforcement agency. And they do not have a vessel to put them in direct contact. And they need a vessel, or they need a plane. And there is not time to train them.

And I can understand where you might have to have military personnel, actually operate under given circumstances. I understand that. But that is a long way from giving them the authority to make an arrest or to make a seizure.

An assist, as opposed to a military person making an arrest or participating in a seizure is an important distinction.

As I see it, we do not currently make it possible, for instance, for the Secretary of Defense to assign personnel to operate or assist the law enforcement agencies. That may be a blind spot. But that is a lot different than saying that we are going to authorize military personnel to make arrests.

My question is: Are you suggesting that we should take that additional step?

Mr. DENNIS. That language was not before me. But I think the situation is this: As we view the term "arrest," we view it in the light that courts have interpreted this passive-active principle. And

some courts are very liberal in construing it, and some are very conservative in construing it.

The arrest was given as an example of a very direct involvement of the military that would violate the posse comitatus statute. I can envision a court saying that even where the military personnel did not physically take custody of the individual, if they transported the civilian official, or the military vessel was used to cause this vessel to heave to, that that in effect is a seizure or an arrest by the military.

Mr. HUGHES. We can address that by merely modifying 375.

I quickly made some changes. Let me read it to you. I made some changes in the law, which I think addresses that problem:

The Secretary of Defense, upon request from a Federal drug agency, is authorized to assign members of the Armed Forces to operate or to assist law enforcement officials in operating military equipment made available pursuant to section 372.

Doesn't that take care of that problem?

Mr. DENNIS. I would think it would take care of that problem. Mr. HUGHES. My concern is that with the way 375 is drafted, I think the Drug Enforcement Administration is going to be moving in reverse, because all the Secretary of Defense has to say is that it does not comply with the four conditions, and you will be worse off than you are right now.

If I were the Secretary of Defense, and I did not want to make military equipment available, I could just say, well, "I think that the operation could succeed without the military equipment." What are you going to do then?

Mr. DENNIS. Well, we understand that this statute is really addressed to the Department of Defense; it is a permission to the Department of Defense. It does not really authorize-▬

Mr. HUGHES. They don't want it, Mr. Dennis. They don't want it. If I hear them correctly, they have made it very clear that they do not want that authority. And I can understand why they don't want it.

I frankly have the same feelings as my comrade here to my left, the ranking minority member. I want to do whatever I can to make it easier for law enforcement agencies to make busts, and I want to use all of the resources that are at our disposal, and I realize that we are nickeling and diming the Coast Guard and we are not going to give them the resources that they need, and so there are going to be instances where they have to use military equipment.

As a matter of fact, I believe that the military is trying to cooperate. I am hard put to find instances, and there have yet been instances cited, where the military has not made equipment available. And the cooperation has improved in the last several years. But I can see the need to perhaps codify what is the informal rule. I think that when you suggest that we enable military personnel to make arrests and seizures, we tread on very dangerous ground. Aside from the arguments advanced by the military about how it is going to compromise their mission and perhaps make it even more difficult from a manpower standpoint, there is the question of how to train people in an emergency situation. This will only happen infrequently, where somebody in the Army or Navy will

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