A Possible PCA Counter-argument

[RiverAux]

As we all know there are a variety of theories floating around out there regarding the status of CAP under PCA, most of which we have discussed quite a bit.  I'd like to throw idea out there.  I'm no lawyer so could be way off base here.

Okay, the PCA prohibits the use of the Air Force in law enforcement.  CAP is acting as the Air Force Auxiliary when on an AFAM. 

§ 9442. Status as volunteer civilian auxiliary of the Air Force

(a) Volunteer Civilian Auxiliary.— The Civil Air Patrol is a volunteer civilian auxiliary of the Air Force when the services of the Civil Air Patrol are used by any department or agency in any branch of the Federal Government.
(b) Use by Air Force.—
(1) The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfill the noncombat programs and missions of the Department of the Air Force.
(2) The Civil Air Patrol shall be deemed to be an instrumentality of the United States with respect to any act or omission of the Civil Air Patrol, including any member of the Civil Air Patrol, in carrying out a mission assigned by the Secretary of the Air Force.

The sentence in bold is usually interpreted to apply to liability associated with CAP missions.  But, could it be read more broadly that CAP is an instrument of the US government and NOT specifically of the Air Force when on an AFAM?  In other words, when on an AFAM and acting as the AF Auxiliary we are actually serving the US government in general but not the AF in particular?

If that interpretation were accurate, then we could be used for law enforcement (as approved in CAP regs, of course) since we are actually acting for the US government and not just for the AF, and of course the US government in general is not limited by PCA. 

Yes, this is obviously an attempt to find a technical loophole past PCA, but then again all the law is is a series of technical loopholes. 

Now, if there is an actual lawyer on this board, could this argument hold water? 

[lordmonar]

No because the USAF is an an istrumentality of the federal government too.

[DNall]

No because the USAF is an an istrumentality of the federal government too.

And you don't sue the AF, you sue the United States, cause that's where the money is.

Why do you even want to get around or out of PCA. I think it's a good thing that spells out boundries rather than having to insult people, and best we just accept it and move on. My position is even if Congress passed a law saying CAP is specifically not covered by PCA ever, that we still would not be able to aid in LE, for the same reasons CGAux is restricted from those tasks.  There's very little to nothing outside PCA that is appropriate for us as civilian volunteers to do, and that's why they don't have us doing it now under the already in place system to request our help. It would be better if everyone just accepted that PCA applies to CAP all the time, and move on to figuring out what we  can adapt & do within those limits, which is still quite a lot.

[lordmonar]

Getting out of/around PCA opens up more missions for us.

It is simple as that.  The local cops want to get some observation on a drug house prior to SWAT busting down the door...CAP has to say sorry we can't.  State Police is going to raid a Pot Farm and they need some surveillance or a high bird with a repeater....CAP has to say sorry we can't.

No one is saying we want to be toting guns and doing assault landings into remote air fields only that we want to more useful to our communities.

[RiverAux]

No because the USAF is an an istrumentality of the federal government too.

Yes, but so is DHS and its associated law enforcement agencies.

Why do you even want to get around or out of PCA.

Well, it really is more the principle of the thing more than anything else.  

There's very little to nothing outside PCA that is appropriate for us as civilian volunteers to do, and that's why they don't have us doing it now under the already in place system to request our help.

Well, I know your general position is that we shouldn't be doing anything other than work for the AF, but there are certain things that we and our planes could be doing if this weren't an issue.  Would it revolutionize CAP?  No, not really...but I am of the mind that we should be doing anything within our capabilities if it aids local, state, or the federal government.  

It would be better if everyone just accepted that PCA applies to CAP all the time, and move on to figuring out what we  can adapt & do within those limits, which is still quite a lot.

As you well know, this is not something that everyone just accepts, especially when there are very good arguments against it (I admit the one proposed in this thread, may not actually be one, but there are other good ones).  

[Eclipse]

Getting out of/around PCA opens up more missions for us.

It is simple as that.  The local cops want to get some observation on a drug house prior to SWAT busting down the door...CAP has to say sorry we can't.  State Police is going to raid a Pot Farm and they need some surveillance or a high bird with a repeater....CAP has to say sorry we can't.into remote air fields only that we want to more useful to our communities.

And they should and will (hopefully) continue to say "No we can't".

Unlike a lot of the Cop/Fire groupies who joined CAP and now want us in the law business, I am squarely in the military groupie department and
want to stay that way.

If I want to work in an LEA, I will join my local PD aux and direct traffic and write parking tickets, without the NHQ nonsense.

Ending around / loopholing, or finding a legit way around PCA is a >BAD< idea, is a slippery slope for our society as a whole, and we should table it permanently.

[RiverAux]

I really don't understand how this sort of mischaracterization comes up everytime PCA is discussed. 

Having a CAP pilot fly around a game warden looking for poachers will not end society as we know it and it doesn't mean that to do so you are a cop groupie.  It is another way of helping your local, state, or federal government. 

[DNall]

The only reason PCA gets brought up is people want more missions, want to accomplish more, etc, and those opportunities are not coming from AF. Okay, that's understandable.

Now should you react by:
1) asking WHY they aren't coming from AF, and if there are other things we can expand to be more & better service to the AF & thru them to the country; OR,
2) do you get pissed off at AF, assume it's a problem with them & not you that is limiting the missions, and go looking for other customers, even if that means fighting tooth & nail to find a loophole in federal law so you can do something no one wants CAP doing in the first place & the law is just cover for.

To me & a lot of other people, which I'd go so far as to include AF in, that first soul searching option is the most efficient & beneficial to CAP, least abbrasive & dangerous to CAP's long-term health. The other is just wrong.

Now, you'll find that I do support missions beyond the AF, but not to pile up flying hours, that's an insult, get a job & pay for your own flying, don't corrupt an organization so you can con some scmoe into paying it for you. AF is tasked by congress to support the general public in many ways, CAP is one tool used to accomplish all of that broad mission area. It is okay for CAP to do corporate missions for other customers, but those taskings should be within the areas AF is assigned to aid the public. When you go outside that you are not helping those that feed us, but stepping on the toes of others who want to preserve their budget & will fight for their territory, including hurting AF in other ways. What I believe is here's the lnes, do all you can inside them, cause everything outside does more harm than good.

[lordmonar]

No because the USAF is an an istrumentality of the federal government too.

Yes, but so is DHS and its associated law enforcement agencies.

But is this this line

(a) Volunteer Civilian Auxiliary.— The Civil Air Patrol is a volunteer civilian auxiliary of the Air Force when the services of the Civil Air Patrol are used by any department or agency in any branch of the Federal Government.

That is causing us problems.  We cannot support any fedeal agency except at the USAF-AUX.  For us to avoid PCA we have to find a way to support other federal agencies with out being the USAF-AUX.

[JohnKachenmeister]

Dennis, Bob, Pat, Greetings!

Please follow me for just a moment.

The nature of war and tactics is really simple.

1.  Find the enemy's weakest defensive point.

2.  Figure out a way to bring your strongest asset against that weak point.

The enemy has our weak point figured out.  We have the weakest criminal justice system in the civilized world.  Our pre-occupation with the rights of accused persons, public trials, legal counsel, etc. has been incorporated into our founding documents.

Recognizing the weakness of the forces of government to control behavior, the founding documents also gaurantee the rights of citizens to arm themselves.

OJ Simpson is free, child-rapists in Vermont are released with a stern warning, and in some places you can't get a cab or a pizza for fear of robberies.

So the enemy has applied its strong point, the suicidal fanaticism of its youth, against our domestic society, whose first line of government-sponsored defense are policemen trained to be restrained in their use of force.

The beauty of their tactic is that our own laws prevent us from responding to their attack with our strongest defensive assets.  In order to defend our country, our military forces must consult lawyers to find loopholes in law.  We even have people in Congress so committed to undermining the defense of the United States that they demand lawyers for battlefield captives from overseas war zones.  Such is unheard of in war.

This is a new way to fight a war.  We, meaning the US, has to be creative in finding ways to counter these attacks.  If that means transfering CAP and other para-military forces to DHS, then I'm for it.  

After all, we were only transfered to the Army Air Corps to comply with the Geneva Convention in World War II. Transfering us back in recognition of a changed tactical environment seems logical.  

[DNall]

Moving CAP would destroy CAP, not just change it, but you could get some temp life out of a portion of it, then it'd go away forever. That's the nature of the beast & it was designed to be that way (intentionally or not), It just can't live out of the water.

By your logic though, it's PCA that needs some work so more military force can be applied to LE. I don't know if that's the case, though a stronger definition of what is & is not LE would be nice, but then a lot of money & ops live in those gray areas. Fact is you can bring every CAP member onto full-time paid active duty service & fly the wings & wheels off our stuff & it wouldn't make the smallest dent. Where there's things not getting done, it's cause they are not considered important enough to fund.

[RiverAux]

To my mind the whole PCA-CAP thing is very simple --- PCA applies to the AF.  Under no circumstances and at no time is CAP or CAP members part of the AF.  Therefore, it doesn't apply to us.  The various technical arguments that I and others have presented are actually irrelevant because of the fact state above.  If someone wants to say we are part of the AF, I want to know where the heck my military id card, pay, and benefits are?   

What we do with our non-PCA covered status is an entirely different story.  I think CAP has proved in over 2 decades of the counternarcotics program that we can function in a law enforcement environment and be a major help to certain agencies without corrupting the essential nature of CAP. 

I am very sick of how when PCA comes up some people accuse others of being cop wannabes and then others start saying that we want to prostitute ourselves to get more flying hours. 

It is all about being of service to the country. 

[Psicorp]

Can someone explain how a DHS mission would be different from a Counter Drug mission?

We've been doing Counter Drug operations for quite a while and I have never heard PCA arguements about it and Counter Drug operations, I believe, would fall more into the "law enforcement" catagory than DHS missions would.   If PCA isn't a problem for Counter Drug, why would it be for DHS?

Just a thought.

[RiverAux]

Well, there was a law passed that specifically let the military participate in some counterdrug operations, so PCA didn't apply anymore to those situations.  That is similar to what I argued back in the main PA-rep thread -- his bill would specifically authorize such actions by CAP and since Congressional approval is all that is needed for PCA not to apply, then this would suffice to ok it. 

[Psicorp]

Well, there was a law passed that specifically let the military participate in some counterdrug operations, so PCA didn't apply anymore to those situations.  That is similar to what I argued back in the main PA-rep thread -- his bill would specifically authorize such actions by CAP and since Congressional approval is all that is needed for PCA not to apply, then this would suffice to ok it. 

So...if we do what we're authorized and requested to do, then PCA doesn't apply.  If there is something we would like to do or that an agency would like us to do, we get Congressional approval, then it's authorized, which means PCA doesn't apply and we're good to go.   So there's really no need for a "PCA Loophole" or PCA arguement or counter-arguement, right?

[JohnKachenmeister]

Well, there was a law passed that specifically let the military participate in some counterdrug operations, so PCA didn't apply anymore to those situations.  That is similar to what I argued back in the main PA-rep thread -- his bill would specifically authorize such actions by CAP and since Congressional approval is all that is needed for PCA not to apply, then this would suffice to ok it. 

So...if we do what we're authorized and requested to do, then PCA doesn't apply.  If there is something we would like to do or that an agency would like us to do, we get Congressional approval, then it's authorized, which means PCA doesn't apply and we're good to go.   So there's really no need for a "PCA Loophole" or PCA arguement or counter-arguement, right?

Yes, and no.

OK, you are the mission pilot flying a border protection mission.  You have spotted several persons crossing the Rio Grande into the Land of Milk and Honey.  You radio the position of these persons, and indicate that their backs are still quite damp from their recent dip in the river.  You maintain contact with them until our Border Patrol agents make contact.

But upon contact, they fire at the BP Agents, and run back toward Mexico. 

So, being a good, brave pilot, you radio the situation to your base, and maintain surveillance of the Mexicans, directly coordinating the responding Agents and Deputies, so that they are able to effect a safe apprehension before they can flee back into Mexico.

But...

This law empowers CAP to observe and report smugglers and traffickers, not to engage in pursuit of criminals.  Once they committed a criminal offense in the United States (Shooting at a BP Agent) the mission changed to one of law enforcement.

In fact, they were trying to get OUT of the United States, not in, so you were without authority to take any action at all, under this law.

Oops.

[DNall]

I am very sick of how when PCA comes up some people accuse others of being cop wannabes and then others start saying that we want to prostitute ourselves to get more flying hours. 

It is all about being of service to the country. 

Really.... So, AF says, "We need your help with 8AF's gigantic cyber-security & intelligence operations. This is critical to national security. You won't be flying SaR or anything else anymore, you'll be recruiting IT & similiar type folks & telecommuting over this computer network we'll buy you." If they came out & said that tmrw, how long would you hang around for? Other people are honest about it... I won't mention names out of respect...

If USAF there is a PCA issue the lawyers will work it out....in the mean time I'm going to fly missions.  I don't care where the money comes from, it all come from the wing at my level anyway.

I don't care what department I work for.

I have always been in the "it's nice being in the USAF AUX but I want to fly" crowd.  I don't care who for....so long as they are real missions for our country, state, city.

There's lots of people that feel that way. Fact is CAP exists to serve the AF, within the AF's tasked areas of support to the nation. Sometimes those missions are assigned by the AF, sometimes they are requested by other parties, and at times they may be for other agencies but still within those basic lines (which is extremely broad).

The issue now has nothing to do with PCA. There are vast spanses of terrain covered by non-combat missions of the Air Force. There is more to do than we are capable of if we triple in size. The reason people want out from under PCA is cause it seems like there are LE missions we could do w/o any hard work, but they aren't for the most part there, and you have to live in teh rules if you like it or not. I'd like to drive around town at hundred miles an hour when I feel like it, but I'm not allowed to & I have to live with that & adjust myself to those boundries. That's all PCA is, and it cannot be changed. What you have to do is figure out what kind of things can be done inside PCA (you'd be suprised) and fix CAP to be able to do more & more of that.

[RiverAux]

Really.... So, AF says, "We need your help with 8AF's gigantic cyber-security & intelligence operations. This is critical to national security. You won't be flying SaR or anything else anymore, you'll be recruiting IT & similiar type folks & telecommuting over this computer network we'll buy you." If they came out & said that tmrw, how long would you hang around for? Other people are honest about it... I won't mention names out of respect...

Well, if thats what they wanted out of CAP, I would go since I don't have the right skills to be of any use. 

That's all PCA is, and it cannot be changed

It can and has been changed before.  Its not part of the Constitution, just one little federal law no different and no more special than any other. 

Fact is CAP exists to serve the AF, within the AF's tasked areas of support to the nation.

No, that is only one of our missions and to tell the truth it seems to be the one the AF is least interested in using us for. 

[Psicorp]

Well, there was a law passed that specifically let the military participate in some counterdrug operations, so PCA didn't apply anymore to those situations.  That is similar to what I argued back in the main PA-rep thread -- his bill would specifically authorize such actions by CAP and since Congressional approval is all that is needed for PCA not to apply, then this would suffice to ok it. 

So...if we do what we're authorized and requested to do, then PCA doesn't apply.  If there is something we would like to do or that an agency would like us to do, we get Congressional approval, then it's authorized, which means PCA doesn't apply and we're good to go.   So there's really no need for a "PCA Loophole" or PCA arguement or counter-arguement, right?

Yes, and no.

OK, you are the mission pilot flying a border protection mission.  You have spotted several persons crossing the Rio Grande into the Land of Milk and Honey.  You radio the position of these persons, and indicate that their backs are still quite damp from their recent dip in the river.  You maintain contact with them until our Border Patrol agents make contact.

But upon contact, they fire at the BP Agents, and run back toward Mexico. 

So, being a good, brave pilot, you radio the situation to your base, and maintain surveillance of the Mexicans, directly coordinating the responding Agents and Deputies, so that they are able to effect a safe apprehension before they can flee back into Mexico.

But...

This law empowers CAP to observe and report smugglers and traffickers, not to engage in pursuit of criminals.  Once they committed a criminal offense in the United States (Shooting at a BP Agent) the mission changed to one of law enforcement.

In fact, they were trying to get OUT of the United States, not in, so you were without authority to take any action at all, under this law.

Oops.

I would argue that the "smugglers and traffickers" we are empowered to observe and report on are already committing a crime otherwise they wouldn't be "smugglers and traffickers", they would be "suspicious persons".   

Ergo with people attempting to cross our border illegally...illegally being the operative word...they are committing a crime.  The fact that they fired upon BP Agents only ups the ante from one crime to two. 

As far as "engaging in pursuit" of the persons after a firearm discharge has occurred, nothing has changed from the original task. We would still just be "maintaining contact" since there is no way we can stop, apprehend, or otherwise prevent the fleeing of the individuals from our position in the air.   

[ZigZag911]

Can someone explain how a DHS mission would be different from a Counter Drug mission?

We've been doing Counter Drug operations for quite a while and I have never heard PCA arguements about it and Counter Drug operations, I believe, would fall more into the "law enforcement" catagory than DHS missions would.   If PCA isn't a problem for Counter Drug, why would it be for DHS?

Just a thought.

CD missions are either transport of LE personnel, or else reconnaissance (looking for anomalies in a geographic area), decidedly not surveillance.

We could do that now for DHS or local/county/state LE, e.g., keeping an eye on 'critical infrastructure sites'...but there has not been very much tasking of us, nor,a s far as I know, of any other agency or organization in this regard.

This could turn out to be a national vulnerability.