Editor’s Note: The following article by Eapen Thampy on his personal blog. It deals specifically with a Missouri law, but almost every state has similar provisions on the books. This piece vividly illustrates the interconnectedness of the surveillance state, the military and the “war on drugs.”
It’s Time To Demilitarize Missouri’s War on Drugs and Repeal RSMO 41.475
Under Missouri law (RsMO 45.475):
1. The governor is hereby authorized to request volunteers of the organized militia to assist federal law enforcement authorities within or outside the state, or to assist federal, state or local law enforcement authorities within this state, and order such volunteers to duty for the purpose of providing assistance in drug interdiction and counter-drug activities and operation and maintenance of equipment and facilities for such purposes pursuant to plans adopted and funding assistance received under the provisions of 32 U.S.C. 112.
2. The governor may delegate the authority conferred by this section to the adjutant general, but the governor shall retain sole authority to approve any and all plans submitted to the Secretary of Defense under 32 U.S.C. 112. The adjutant general shall ensure that all directives and policies of the Department of Defense and National Guard Bureau are followed. Personnel assisting in such activities shall obey and execute the instructions of the civil authorities charged by law with responsibility for law enforcement.
Under this law, the Missouri National Guard participates in domestic counterdrug law enforcement (Page 22, Missouri National Guard Annual Report 2013):
The Counterdrug Task Force leverages its unique assets on four fronts: providing analytical support to law enforcement to reduce the supply of illicit drugs; providing prevention professionals to communities to aid in reducing the demand for illicit drugs; providing aviation support to law enforcement to find illicit drugs in the state; and providing prevention train- ing, outreach services and treatment resources to Missouri National Guard members.
Highlights for FY-13 include:
• The Task Force has 30 personnel in nine communities. In fiscal year 2013, The Missouri Counterdrug Task Force scored 98.7 percent on its Counterdrug Program Evaluation, which led the nation.
• Criminal analysts supported 17 county, state and federal law enforce- ment agencies. The team’s goal has been to provide dedicated, concise and accurate analytical assistance in cases with a drug nexus.
• The counterdrug criminal analysts develop intelligence products that ensure timely prosecution of a large number of suspects that the law enforcement agencies may not otherwise have the manpower to pursue. This has directly contributed to 1,866 arrests and the seizure of $23,973,155.16 worth of drugs, weapons, vehicles and property.
The Missouri Civil Operations program focuses its efforts on community coalitions and strengthening communities against drugs. In fiscal year 2013, four civil operators worked with more than 50 coalitions throughout Missouri. This support included assistance with strategic planning and targeting the community’s efforts in their fight against illicit substances.
• The curriculum for how to train all civil operators nationally was rede- signed in fiscal year 2013, and multiple members from Missouri were instrumental in this redesign.
• Counterdrug aviation flew more than 250 flight hours in 2013 to assist law enforcement in numerous missions. Those efforts resulted in $1.5 mil- lion in seizures of drugs, currency, and property and 39 felony arrests for distribution of a controlled substance. Beginning in FY-14, Counterdrug Aviation will transition to the new LUH-72.
This use of military force and capability in the conduct of ordinary law enforcement is immensely problematic. As Radley Balko notes:
The problem with this mingling of domestic policing with military operations is that the two institutions have starkly different missions. The military’s job is to annihilate a foreign enemy. Cops are charged with keeping the peace, and with protecting the constitutional rights of American citizens and residents. It’s dangerous to conflate the two. As former Reagan administration official Lawrence Korb once put it, “Soldiers are trained to vaporize, not Mirandize.” That distinction is why the U.S. passed the Posse Comitatus Act more than 130 years ago, a law that explicitly forbids the use of military troops in domestic policing.
The main culprit was a 1994 law authorizing the Pentagon to donate surplus military equipment to local police departments. In the 17 years since, literally millions of pieces of equipment designed for use on a foreign battlefield have been handed over for use on U.S. streets, against U.S. citizens. Another law passed in 1997 further streamlined the process. As National Journal reported in 2000, in the first three years after the 1994 law alone, the Pentagon distributed 3,800 M-16s, 2,185 M-14s, 73 grenade launchers, and 112 armored personnel carriers to civilian police agencies across America. Domestic police agencies also got bayonets, tanks, helicopters and even airplanes.
All of that equipment then facilitated a dramatic rise in the number and use of paramilitary police units, more commonly known as SWAT teams. Peter Kraska, a criminologist at the University of Eastern Kentucky, has been studying this trend since the early 1980s. Kraska found that by 1997, 90 percent of cities with populations of 50,000 or more had at least one SWAT team, twice as many as in the mid-1980s. The number of towns with populations between 25,000 and 50,000 with a SWAT team increased 157 percent between 1985 and 1996.
As the number of SWAT teams multiplied, their use expanded as well. Until the 1980s, SWAT teams were used almost exclusively to defuse immediate threats to the public safety, events like hostage takings, mass shootings, escaped fugitives, or bank robberies. The proliferation of SWAT teams that began in the 1980s, along with incentives like federal anti-drug grants and asset forfeiture policies, made it lucrative to use them for drug policing. According to Kraska, by the early 1980s there were 3,000 annual SWAT deployments, by 1996 there were 30,000 and by 2001 there were 40,000. The average police department deployed its SWAT team about once a month in the early 1980s. By 1995, it was seven times a month. Kraska found that 75 to80 percent of those deployments were to serve search warrants in drug investigations.
(Radley Balko, A Decade After 9-11, Police Departments are Increasingly Militarized, Huffington Post, 12 Sept. 2011)
Moreover, recent revelations about the scope of dragnet federal surveillance under the Patriot and FISAA Acts imply that the conduct of domestic law enforcement is becoming increasingly disconnected from the rule of law as intelligence gathered in violation of the Fourth Amendment is collected, sanitized, and passed along to local law enforcement authorities:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.
The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.
(John Shiffman and Kristina Cooke, U.S. directs agents to cover up program used to investigate Americans, Reuters, 5 Aug. 2013)
And we know that federal dragnet surveillance is widespread, collecting the private communications of millions of Americans:
Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by theNational Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.
Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.
Many of them were Americans. Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents. NSA analysts masked, or “minimized,” more than 65,000 such references to protect Americans’ privacy, but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S.residents.
If Snowden’s sample is representative, the population under scrutiny in the PRISM and Upstream programs is far larger than the government has suggested. In a June 26 “transparency report,” the Office of the Director of National Intelligence disclosed that 89,138 people were targets of last year’s collection under FISA Section 702. At the 9-to-1 ratio of incidental collection in Snowden’s sample, the office’s figure would correspond to nearly 900,000 accounts, targeted or not, under surveillance.
(Barton Gellman, Julie Tate, and Askhan Soltani, “In NSA-intercepted data, those not targeted far outnumber the foreigners who are“, Washington Post, 5 July 2014)
While Missouri can’t control the overreach of the federal government in the War on Drugs or the War on Terror, Missouri has no obligation to participate in the overt militarization of domestic law enforcement through the Missouri National Guard. Indeed, repealing RsMO 45.475 will undermine federal control of Missouri law enforcement, allowing Missouri’s state and local legislative bodies to more directly control the practices and priorities of Missouri law enforcement.