A Possible PCA Counter-argument

[DNall]

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. 

Just cause you have the wrong skills right? You didn't need any secial skills to be trained as an aircrew or ground team member. Lets say they have work for you that's really important for the nation. Is your hobby of flying or chasing around in the woods more important, is SaR more important, or are you here to do for the country whatever they need done?

Reason I ask this is not to attack anyone, but to respectfully check their motives. So what if we could do what we do  now in support of LE. Since the rules say no, why don't we figure out whatelse we can do inside the rules, whatever that may be, and adapt our force to that rather than complaining about a law we can't change & blaming AF for our problems.

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. 

That's not what I meant. PCA applying to CAP cannot change w/o substantially seperating CAP from AF to the extent our funding would go away. There is no loophole CAP can use w/o significantly endangering that funding & damaging that relationship. Hence I say "Can't"

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. 

[/quote]
Yeah I'm not talking about SaR or AFAMs. AF does a lot of things for the federal, state, & local govt, or rather can do those things within the limits of thier orders from Congress, but a lot of times it isn't a priority they will fund. On the other hand CAP can step into that situation within those limits & help those folks out while sharing credit with the AF... that equals more money for them in their overall budget, and more room for us inside it.

[lordmonar]

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. 

No they are defined as two very different missions.  We can sit around looking for bad guys, pot fields, suspicious vehicles, but we can't hang around and help with the take down.

Observe and report is all that we can do.....as soon as we cross the line into pursuit and arrest PCA rears its ugly head.

So the illegals crossing the borders we call it in and continue our grid search and that is all.

[DNall]

We can sit around looking for bad guys, pot fields, suspicious vehicles, but we can't hang around and help with the take down.

Observe and report is all that we can do.....as soon as we cross the line into pursuit and arrest PCA rears its ugly head.

So the illegals crossing the borders we call it in and continue our grid search and that is all.

IF that, what we've done a lot of is log & put in the report that the customer gets 10-11 days later. That's for traffic analysis - intel they call it.

OR we report suspicious activity w/ GPS location & move on. We could stay in the area to provide comm support. "Maintain contact" is tricky. We can stay in the area, but guiding them onto the target with updates is not allowed. And most of those contacts don't get checked, just the ones they're interested in.

Neighborhood watch in airplanes is what we're talking about here. It stays the same thing if you're doing it at night with a FLIR & write 'looking for terrorist' on top of the page.

[Pumbaa]

I scanned the thread very lightly and probably missed it being explained already...

On the CAPBlog was the interview with Col Russ Hodgkins, (USAF) Commander of CAP-USAF.  In it he laid out how CAP is always corporate volunteer orgainzation, in other words small 'a' auxillary. But when doing AF duties it is Auxillary with a capitial "A".

Therein lies something interesting.

AF AUX is being removed from the Command Patch, from the airplanes, off our senior name badege, etc...

Would it not make sense that if we are called out as CAP, little 'a', that the PCA will not apply to us?  Our markings will have to be cleared of the AF in order to do that. Perhaps this is the vision to expand the rold of CAP and thus avoid issues with PCA?

"As an aside, one of the things I tell new personnel assigned to CAP-USAF is they need to know the difference between Auxiliary with a capital "A" and auxiliary with a small "a".  It is very important for all to understand where Auxiliary (with a capital "A") starts and stops, because this has critical implications with respect to mission assignment, legal authority, federal tort protection, and so forth.  On the other hand, Civil Air Patrol is always our auxiliary (with a small "a").  We greatly value our partnership with CAP, the long history and association between CAP and the Air Force, and tremendous efforts made by CAP volunteers supporting the Air Force."

a reread of that interview may bring more insight:
http://capblog.typepad.com/capblog/2006/04/col_russ_hodgki.html

[DNall]

markings don't have anything to do with PCA applying to CAP. It does apply no matter what status we are in because we operate as an organization on federal military funds. The reason for the extra item in the reg about AF markings is if we break PCA w/ those markings on the plane it may make AF guilty of a crime & it gives a perception of impropriety.

[RiverAux]

Is your hobby of flying or chasing around in the woods more important, is SaR more important, or are you here to do for the country whatever they need done?

I came into CAP because I already had skills that would be of use to the organization and its current mission.  Since I joined, yes I have learned additional ones, but if want they need is a gee-whiz bang computer genius, I'm not their man.  Exactly how does that make me a selfish, horrible person?  Am I disrespecting Doctors Without Borders because I haven't joined them since I'm not a doctor?

By the way, I'm not a pilot and though I'm Observer and Scanner qualified and also GT qualified, I've mostly been doing mission staff work for the last few years.  So, I don't have a major personal interest in getting more flying time. 

[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.

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.   

This law, which has not yet passed by the way, would empower us to participate under DHS in certain LE missions, notably illegal border crossings.

But since we are still an Air Force asset, and still subject to PCA in that status, we cannot engage in civil law enforcement beyond the scope of the statutory authorization.

Now, whether or not continued aerial monitoring of fleeing suspect who fired on Border Patrolmen is "Civil Law Enforcement" is an issue.  I could argue that apprehension for the original crime of illegal border crossing was still my goal, so I was operating within the statute, in spite of the fact that the persons to be apprehended engaged in violent resistance to that apprehension.

But there happens to be a totally out-of-control US Attorney down in the Southwest who is trying to put as many cops in jail as possible.  Giving that nitwit an opportunity to charge you under the PCA is probably not a good idea.

[Psicorp]

This law, which has not yet passed by the way, would empower us to participate under DHS in certain LE missions, notably illegal border crossings.

But since we are still an Air Force asset, and still subject to PCA in that status, we cannot engage in civil law enforcement beyond the scope of the statutory authorization.

Now, whether or not continued aerial monitoring of fleeing suspect who fired on Border Patrolmen is "Civil Law Enforcement" is an issue.  I could argue that apprehension for the original crime of illegal border crossing was still my goal, so I was operating within the statute, in spite of the fact that the persons to be apprehended engaged in violent resistance to that apprehension.

But there happens to be a totally out-of-control US Attorney down in the Southwest who is trying to put as many cops in jail as possible.  Giving that nitwit an opportunity to charge you under the PCA is probably not a good idea.

Good point, sir.

This is where it really should be clearly defined by the requesting agency what it is they want us to do.  Reporting in that a crossing occurred to only have it reach an actionable agency ten days later would only serve to assist the U.S. Census Dept. in adding another few people to the U.S. population.   

[JohnKachenmeister]

This law, which has not yet passed by the way, would empower us to participate under DHS in certain LE missions, notably illegal border crossings.

But since we are still an Air Force asset, and still subject to PCA in that status, we cannot engage in civil law enforcement beyond the scope of the statutory authorization.

Now, whether or not continued aerial monitoring of fleeing suspect who fired on Border Patrolmen is "Civil Law Enforcement" is an issue.  I could argue that apprehension for the original crime of illegal border crossing was still my goal, so I was operating within the statute, in spite of the fact that the persons to be apprehended engaged in violent resistance to that apprehension.

But there happens to be a totally out-of-control US Attorney down in the Southwest who is trying to put as many cops in jail as possible.  Giving that nitwit an opportunity to charge you under the PCA is probably not a good idea.

Good point, sir.

This is where it really should be clearly defined by the requesting agency what it is they want us to do.  Reporting in that a crossing occurred to only have it reach an actionable agency ten days later would only serve to assist the U.S. Census Dept. in adding another few people to the U.S. population.   

But, don't forget...

"Orders of a superior are not a defense."

If your orders, from your next higher OR from the Secretary of DHS violate the PCA, you (and everyone else in the decision-chain) can be charged.

Your only defense is that an attorney advised you on how to proceed, which means the next uniform thread will be to award wings for the "Flying Staff Judge Advocate" that will have to be a part of every aircrew.

Which brings us back to my original points.  There are only a few things we can do to avoid the legal minefield of the PCA:

1.  Repeal, or substantially modify it.  Recognize that enemy forces are taking advantage of the gap in our defenses represented by the current state of our "Internal Defense Forces," and allow the military a freer hand in defending us from covert attacks.

2.  Place CAP under the National Guard.  We're halfway there now.  52 CAP wings?  52 National Guard organizations?  Coincidence?  I think NOT!  The NG is NOT subject to the restrictions of PCA when activated for state service on the states' dimes, even if that dime is later paid back by the feds.

3.  Exercise the "Nuclear Option" of pulling CAP out of the USAF, and placing us under DHS like the Coast Guard.  We are also halfway there, too, what with a new non-AF military uniform and "U.S. Civil Air Patrol" BDU tapes.

[lordmonar]

Would it not make sense that if we are called out as CAP, little 'a', that the PCA will not apply to us?  Our markings will have to be cleared of the AF in order to do that. Perhaps this is the vision to expand the rold of CAP and thus avoid issues with PCA?

Any time we are called out by a federal agency we MUST be called out as the USAF-AUX with a big "A".  Title 10 would have to be changed before we could be called out with a little "a".

As a secondary note....getting called out with a big "A" gives us better insurance coverage.

[DeputyDog]

52 CAP wings?  52 National Guard organizations?  Coincidence?  I think NOT!

There are 54 National Guard organizations. The 50 states plus Washington, D.C., Puerto Rico, Guam and the Virgin Islands.

[lordmonar]

1.  Repeal, or substantially modify it.  Recognize that enemy forces are taking advantage of the gap in our defenses represented by the current state of our "Internal Defense Forces," and allow the military a freer hand in defending us from covert attacks.

2.  Place CAP under the National Guard.  We're halfway there now.  52 CAP wings?  52 National Guard organizations?  Coincidence?  I think NOT!  The NG is NOT subject to the restrictions of PCA when activated for state service on the states' dimes, even if that dime is later paid back by the feds.

3.  Exercise the "Nuclear Option" of pulling CAP out of the USAF, and placing us under DHS like the Coast Guard.  We are also halfway there, too, what with a new non-AF military uniform and "U.S. Civil Air Patrol" BDU tapes.

1) Won't and should not happen....we don't want the military being used to main laws.....but as we keep saying CAP is not the military.

2) Won't happen and should not happen.  Placing us under the national guard destroys us as a national organisation.  Funding, command and control, and support will be even worse than it is right now.

3) This is the option that makes the most sense to me.  With a little tweeking and coordination we can develope a system that allows us to be both the USAF-AUX and DHS-AUX....and maybe even the CG-AUX, DEA-AUX and a host of other -AUX's based on who is paying for us.

[JohnKachenmeister]

52 CAP wings?  52 National Guard organizations?  Coincidence?  I think NOT!

There are 54 National Guard organizations. The 50 states plus Washington, D.C., Puerto Rico, Guam and the Virgin Islands.

I didn't know Guam and the V.I. had National Guard forces.

[DNall]

Is your hobby of flying or chasing around in the woods more important, is SaR more important, or are you here to do for the country whatever they need done?

I came into CAP because I already had skills that would be of use to the organization and its current mission.  Since I joined, yes I have learned additional ones, but if want they need is a gee-whiz bang computer genius, I'm not their man.  Exactly how does that make me a selfish, horrible person?  Am I disrespecting Doctors Without Borders because I haven't joined them since I'm not a doctor?

By the way, I'm not a pilot and though I'm Observer and Scanner qualified and also GT qualified, I've mostly been doing mission staff work for the last few years.  So, I don't have a major personal interest in getting more flying time. 

I understand some people would like more volume & more important action, cause they're bored. A few other people want more action cause this is how they save a buck supporting their aviation hobby, and they don't really care who/what/when/why just so the bills get paid.

In those vast groups of people many are willing to compromise our purpose & priorities to get what they want. It's easy to lose sight of the fact that we do what we have been doig because it helps the AF help the country, but if priorities change we have to change with them. As our traditional missions have declined, and the country has developped other needs we're not suited to address... some people refuse to change & instead want to work every angle & find every dodge around the rules so they can do the same kind of thing they've always done for whomever else. They've gotten caught up in the work rather than why it was given to CAP in the first place & the ramifications of that. On the other hand you can follow that assignment back to the source, our purpose, and figure out how we need to adapt & change to serve whatever new needs they have there.

The truth is there's quite a lot of flying avail within PCA, but we aren't good enough for it, or don't have the right gear & no one thinks we're good enough for the gear. Fix CAP & you're in business, or take the lazy way out & keep blaming AF & PCA, niether of which is changing to suit you. I'm all for taking DHS grant money, but they got little to no work for us.

[JohnKachenmeister]

1.  Repeal, or substantially modify it.  Recognize that enemy forces are taking advantage of the gap in our defenses represented by the current state of our "Internal Defense Forces," and allow the military a freer hand in defending us from covert attacks.

2.  Place CAP under the National Guard.  We're halfway there now.  52 CAP wings?  52 National Guard organizations?  Coincidence?  I think NOT!  The NG is NOT subject to the restrictions of PCA when activated for state service on the states' dimes, even if that dime is later paid back by the feds.

3.  Exercise the "Nuclear Option" of pulling CAP out of the USAF, and placing us under DHS like the Coast Guard.  We are also halfway there, too, what with a new non-AF military uniform and "U.S. Civil Air Patrol" BDU tapes.

1) Won't and should not happen....we don't want the military being used to main laws.....but as we keep saying CAP is not the military.

2) Won't happen and should not happen.  Placing us under the national guard destroys us as a national organisation.  Funding, command and control, and support will be even worse than it is right now.

3) This is the option that makes the most sense to me.  With a little tweeking and coordination we can develope a system that allows us to be both the USAF-AUX and DHS-AUX....and maybe even the CG-AUX, DEA-AUX and a host of other -AUX's based on who is paying for us.

Any of the three would work.  Insead of repealing the PCA, there could be a "Military Interdiction Zone of say 3-5 miles along all borders.  There's a lot of things that can be done.

IF CAP were made a subordinate HQ of the National Guard Bureau, then there can still be national coordination of regulations.  At least, I don't see things getting any worse.

I could see the DHS option working, but so many of us identify ourselves as a part of the USAF, this would be devastating to our organization in the short term.

[fyrfitrmedic]

52 CAP wings?  52 National Guard organizations?  Coincidence?  I think NOT!

There are 54 National Guard organizations. The 50 states plus Washington, D.C., Puerto Rico, Guam and the Virgin Islands.

I didn't know Guam and the V.I. had National Guard forces.

I didn't either, until I saw some Guam NG forces on Your Children's Children's War on the Discovery Channel last night.

[lordmonar]

IF CAP were made a subordinate HQ of the National Guard Bureau, then there can still be national coordination of regulations.  At least, I don't see things getting any worse.

The only problem I have with the NG Bureau is that it is not an operational command....that is it's main job is to do the overhead work for the various State NGs as opposed to active operational planning and execution...also by moving us to the NGB we would be moving out from under the SECAF and under DoD...which may not be a bad thing...but if we are going to move to a different department....DHS is just a good....the cool thing is that we can still move under DHS and still keep our USAF ties (that is uniforms and cadet program).

[JohnKachenmeister]

There are advantages and disadvantages to all three courses of action.  Perhaps that is why we have seen NO action!

My biggest beef with the PCA is that what can start out as a valid SAR mission can become a LE mission.  Also, what can start out as a HD mission can very quickly turn into an LE mission.

We do NOT have clear guidance, because even the lawyers cannot agree on where the line is for sure.

I cited this example in another thread:

You are called up to search a large wilderness area for an 8 year old girl reported missing from a family campsite.  While you are on the mission, a ransom note is received.  CAP now must discontinue support for the mission, since it is no longer SAR, but rather LE support.

Now, Colonel, your job is to explain to the parents why the largest single-engine fleet in the world can search for marijuana fields but not their kidnapped daughter. 

IF we were an asset of either DHS or the NG, we would not have to abandon this mission.  Only as an asset of the USAF are we prohibited from flying this mission.

[Psicorp]

I cited this example in another thread:

You are called up to search a large wilderness area for an 8 year old girl reported missing from a family campsite.  While you are on the mission, a ransom note is received.  CAP now must discontinue support for the mission, since it is no longer SAR, but rather LE support.

Now, Colonel, your job is to explain to the parents why the largest single-engine fleet in the world can search for marijuana fields but not their kidnapped daughter. 

IF we were an asset of either DHS or the NG, we would not have to abandon this mission.  Only as an asset of the USAF are we prohibited from flying this mission.

I honestly can't say how i would react personally in that situation.  A very large part of me would want to say "to hell with our orders" and face the consequences with a clear conscious.   Good thing i'm not an IC.