Rodino, Hon. Peter W., Jr., chairman, House Committee on the Judiciary, Adm. John S. Hayes, dated May 21, 1981. Hon. Peter W. Rodino, Jr., July 6, 1981.. Sherman, Edward F., professor of law, University of Texas Law School, letter Page 123 92 72 80 83 91 187 81 Department of the 71 89 Taft, William H., IV, General Counsel, Department of Defense, letters to: Walker, John M., Jr., Assistant Secretary-Designate, POSSE COMITATUS ACT WEDNESDAY, JUNE 3, 1981 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, The subcommittee met, at 1:05 p.m., in room 2141, Rayburn House Office Building, Hon. Willliam J. Hughes (chairman of the subcommittee) presiding. Present: Representatives Hughes, Fish, and Sawyer. Staff present: Hayden Gregory, counsel; David Beier, assistant counsel; Deborah Owen, associate counsel; and Phyllis Henderson and Demitra Delaney, secretaries. Mr. HUGHES. The meeting of the Subcommittee on Crime of the House Judiciary Committee will come to order. This afternoon the Subcommittee on Crime will conduct a hearing on section 908 of H.R. 3519, the Defense Department authorization bill. The provisions of section 908 were offered by my distinguished colleague from Florida, Charles Bennett. The Bennett amendment was designed to enhance the capacity of Federal law enforcement authorities to combat the growing drug problem in the United States. Section 908 of the DOD authorization bill contains five separate proposed amendments to title 10. The net effect of the Bennett amendment is to amend the Posse Comitatus Act. The Posse Comitatus Act, which is codified in section 1385 of title 18, provides that the Army and Air Force may not be used as a posse to enforce or execute the civilian laws. The proposed sections of title 10 would have the following effect: One, the military would be authorized to share intelligence information with State, local, or Federal law enforcement authorities. Two, the military would be authorized to make available equipment or facilities to State, local, or Federal law enforcement officials. Three, the military would be authorized to provide training assistance to State, local, or Federal law enforcement authorities. Four, the Secretary of Defense would be authorized to promulgate regulations to provide for reimbursement for the aforementioned assistance. And finally, the military would be authorized to use its personnel to assist in the seizure of violators of the drug laws under certain circumstances. The purpose of the hearing this morning is to assess the proposed amendments. I share the deep concern of my congressional col leagues about the growing problem of drugs in our country. There is no question about the fact that our enforcement agencies are undermanned and frequently lack the resources to cope with the menace posed by drug smuggling and drug distribution. My hope is that through these hearings we can begin to obtain a greater understanding of the current level of cooperation between the military and civilian law enforcement agencies. Second, we hope to develop ways in which we can enhance the commitment of the Federal Government in the fight against drugs without unnecessarily interfering with the mission of the military or imposing military assistance upon civilian law enforcement agencies. The Chair has received a request to cover these hearings in whole or in part by radio broadcast, television broadcast, still photography, or any other method. If there is no objection, such coverage is permitted under rule 5(a). Mr. SAWYER. Mr. Chairman, I confess that when I first became a member of this subcommittee, I thought I had heard every legal term going, but I had never heard of posse comitatus. I had to interrupt one of the earlier hearings to make an inquiry of the speaker. Since then, I have read law review articles and about all of the annotated cases on it, and I now know more about posse comitatus than I ever cared to know. I think the court decisions have to some degree been unfortunate in their application of the act. In one, they even denied a claimant's cause of action under the Federal Tort Claims Act because an Army or Marine helicopter crew, while helping local authorities to scour a woods for some escaped convicts, hit a tree and caused some injuries. The court held they were operating illegally and beyond their authorized duty. I think Congressman Bennett's bill is timely and well called for, because when you say that one branch of the U.S. Government is unable-in reasonable ways, at least-to assist another branch of the U.S. Government that is also trying to protect the public, it is getting a little far out. I think it is time we took a good look at it. Thank you, Mr. Chairman. Mr. HUGHES. Thank you, Mr. Sawyer. Our first witness today is Hon. Charles E. Bennett, Member of Congress from Florida. Mr. Bennett has been in Congress for some 33 years, making him the third senior Member of the House. Congressman Bennett was the distinguished chairman of the Committee on Standards of Conduct in the last Congress, the 96th Congress, and is currently a member of the Armed Services Committee and distinguished chairman of its Sea Power Subcommittee. He represents the Third District of Florida. On behalf of the subcommittee, we welcome you before this committee and appreciate your taking the time to discuss with us the amendment that you offered in committee. It is good to see you. We do have your statement, Mr. Bennett, and without objection it will be received in full in the record, and you may proceed. [The complete statement follows:] STATEMENT OF Congressman CHARLES E. BENNETT Mr. Chairman, I am grateful to have this opportunity to testify before your Committee on a matter of such critical importance to our country. My amendment to the Defense Authorization bill, which was approved by the Armed Services Commit tee last month, will significantly enhance our nation's ability to overcome its most elusive and most dangerous domestic enemy: the smuggler of narcotics. These purveyors of the drug culture today roam freely in a sanctuary of enormous profits and few risks. It is time for Congress to even the odds. They are presently bringing in about 85 percent of what they attempt to smuggle in. Today, our ability to combat these massive smuggling operations is severely hampered by an 1878 statute known as Posse Comitatus which restricts military involvement in civilian law enforcement. Its net result a century later has been to prevent the military from passing on information, such as obviously clandestine air and sea movements, to drug enforcement agencies. As a result I, along with 32 other members of the House, have joined in co-sponsoring a bill introduced by Mr. EVANS of Georgia which addresses this problem. Specifically, this legislation would: Provide federal law enforcement officers with any information collected during the course of normal military operations which may be relevant. Make military equipment and facilities available to federal drug agents provided it does not interfere with military preparedness. Assign members of the military to train and give advice to drug agents. I was delighted to offer this proposal as an amendment to the Defense Authorization bill but with a strengthening amendment added. I, and other members of the Armed Services Committee, were convinced that it would be helpful to have the use of military personnel and equipment in actual drug seizures and arrests provided that safeguards were established. The Posse Comitatus Act was passed near the end of Reconstruction as an outgrowth of Southern resentment over the use of federal troops to support carpetbagger governments. Clearly, those circumstances of 1878 are no longer applicable today. Yet the principle that the military should always be subservient to civilian officials is itself sound and this principle is preserved in what the Armed Services Committee has approved. This section of my amendment carefully provides that the military personnel would operate under the direction of civilian drug enforcement officers. Also, the military could only be used when the drug operation might fail without their assistance and only if military preparedness is unaffected and approval by the Department of State is required. These narrowly defined parameters successfully balance the delicate separation of military and civilian law enforcement with society's overriding need to rid itself of one of its most devastating elements. Over the years, Congress has not hesitated to allow direct participation by the military in matters of even lesser magnitude and importance. On at least fourteen separate occasions, the military has been authorized to assist civilian law enforcement directly in areas such as the detention of vessels for Customs collections and the enforcement of the 200 mile limit. The infestation of drugs into our society compels us to act again and this time in a major area of concern. So the question before us is simple: Are we willing to make a commitment to stop drugs or are we going to wait until it shatters the health, the minds, and the lives of a generation of our youth? Mr. SAWYER. Mr. Bennett is particularly well qualified in that he had quite a distinguished military history of his own as a holder of the Silver Star. He should be well equipped to address this question. TESTIMONY OF HON. CHARLES E. BENNETT, REPRESENTATIVE IN CONGRESS OF THE UNITED STATES FROM THE THIRD DISTRICT OF THE STATE OF FLORIDA Mr. BENNETT. Thank you very much. I thank you for the courteous reception. I come here in the dedication of my heart to find some answer, if I can, to these problems. The phrase that has been referred to, posse comitatus, was a phrase embodying the basic idea of a sheriff or someone else calling on everybody in the area to do something; that is the origin of it. It is in the statute; that is why it keeps recurring. It probably was accidentally put in the statute. Maybe better words could be put in the statute. The statute we are referring to is a statute that grew out of the Reconstruction era. Local people were incensed by the fact that military authorities were imposing things upon them which they felt Congress would not have abided-would not have approved. So the one or two sentences in the statute merely say that these military authorities should not undertake to do things, even in the enforcement of law, if they did so without the express consent of Congress. Now that is what this is all about. It is not about some wonderful basic principle, which I think is a wonderful basic principle, of the military not to become unnecessarily involved in civilian matters. It does not come from that. People have put that upon it, but it is not in the statute. It was not the purpose of the statute. The statute was to prohibit the military from intervening in civilian matters against the will of the U.S. Congress. That is the way it reads; that's the way the statute reads. It says if Congress enacts something to make an exception to this basic idea, that is in accord with the statute, and many times that has been done in enforcing customs laws and the 200-Mile Fishery Act and an infinite number, great number of other provisions have been made. With that background, Mr. Chairman, I am grateful to have this opportunity to testify before your subcommittee on a matter of such crucial importance to our country. My amendment to the defense authorization bill, approved by the Armed Services Committee last month, will significantly enhance our Nation's ability to overcome its most elusive and most dangerous domestic enemy, the smuggler of narcotics. These purveyors of the drug culture today roam freely in a sanctuary of enormous profits and few risks. It is time for Congress to even the odds. They are presently bringing in about 85 percent of what they are attempting to smuggle in. Today our ability to combat these massive smuggling operations is severely hampered by an 1878 statute known as posse comitatus which restricts military involvement in civilian law enforcement. Its net result, a century later, has been to prevent the military from passing on information, such as obviously clandestine air and sea movements, to drug enforcement agencies. As a result, I, along with 32 other Members of the House, have joined in cosponsoring a bill introduced by Mr. Evans of Georgia, the original drafter of the legislation in this field, which addresses this problem. Specifically this legislation would provide Federal law enforcement officers with any information collected during the course of normal military operations which may be relevant; make military equipment and facilities available to Federal drug agents, provided it does not interfere with military preparedness; assign members of the military to train and give advice to drug agents. I was delighted to offer this proposal as an amendment to the defense authorization bill but with a strengthening amendment added. I and other members of the Armed Services Committee were convinced that it would be helpful to have the use of military personnel and equipment in actual drug seizures and arrests, provided that safeguards were established. The Posse Comitatus Act was passed near the end of Reconstruction as an outgrowth of Southern resentment over the use of Feder |