2009 CAP Homeland Security study bill

[Cecil DP]

Or they could study the issue and agree with me that PC never applies to CAP since we are not members of the military at any time no matter who is paying for our gas or bought our airplanes.  Or, they could put an exemption in for CAP to do LE-type missions for DHS just like they did to allow the military to do counterdrug missions. 

The point is that CAP acts as an instrumentality (Agent) of the United States Air Force. So when CAP is used for Law Enforcement in any case, we may be civilians, but are acting for the Air Force and may be violating the Posse commitatus laws. 

[RiverAux]

The point is that CAP acts as an instrumentality (Agent) of the United States Air Force.

Actually no.  We act as an instrumentality of the federal government.  Title 10 Sect. 9441 and Sect. 9442. 

And we are civilians, not members of the military, which is who PC applies. 

By the way, I'm just agreeing with an official legal opinion presented to one of the CAP higher level committees a few years ago by a non-CAP source (Either DoD or AF lawyers). 

[JohnKachenmeister]

Or they could study the issue and agree with me that PC never applies to CAP since we are not members of the military at any time no matter who is paying for our gas or bought our airplanes.  Or, they could put an exemption in for CAP to do LE-type missions for DHS just like they did to allow the military to do counterdrug missions. 

The point is that CAP acts as an instrumentality (Agent) of the United States Air Force. So when CAP is used for Law Enforcement in any case, we may be civilians, but are acting for the Air Force and may be violating the Posse commitatus laws. 

Cecil, you are correct.  When we are acting as an auxiliary of the AF, we are, for purposes pf PossComm, an integral part of the AF and under AF command.  The PossComm specifically INcludes military auxiliaries.

However, River is correct in that there are more ways around the PossComm than simply placing CAP under DHS for missions.  One is to specifically EXclude CAP from PossComm.  Or, place CAP under the Air Guard as a state asset, but that would not work for Federal missions without the same level of financial trickery that allowed NG troops to guard civilian airports right after 9-11.

[RiverAux]

My mistake it was a US Attorney opinion.  Obviously not binding, but pretty serious firepower nevertheless.  From the March 2006 National Board minutes:

COL PALERMO/NLO reported that in the last few weeks he was given a copy of a U. S. Attorney opinion dealing with the Posse Comitatus applicability to DoD civilians. It was a very significant opinion. It didn't come from the DoD, but from a U. S. Attorney's office, which makes it very persuasive. The Attorney General's office opined that Posse Comitatus did not apply to DoD civilians, and generally believed that this opinion would extend to Civil Air Patrol and perhaps even as auxiliarists since CAP members are civilians. Importantly, it might allow CAP to perform missions that had previously been restricted as "A" missions—not "C" missions. CAP would have to be concerned about the insurer. He added that there are still many issues that need to be ferreted out but the attorney general's opinion should be seen as a welcome and a positive step forward
on this issue. He further added that they would continue to work with them, the
restrictions of AFI 10-2701, specifically Sections 2.2.3 on support to law enforcement agencies and Section 2.8 on the other restrictions of Civil Air Patrol flying. He added the following: "Col Karton and his committee have been working on what the parameters would look like as corporate missions. Hopefully, he can give it a broader scope on how we can fit in the new framework of possibly allowing this as an "A" mission and having some sensible rules of engagement so that we don't damage any aircraft or hurt personnel in the process. That is our plan ahead and we will continue to update you."

[RiverAux]

The PossComm specifically INcludes military auxiliaries.

It absolutely does not specifically mention military auxiliaries and if you can find a citation in federal law to that effect I'll eat my hat. 

[JohnKachenmeister]

The point is that CAP acts as an instrumentality (Agent) of the United States Air Force.

Actually no.  We act as an instrumentality of the federal government.  Title 10 Sect. 9441 and Sect. 9442. 

And we are civilians, not members of the military, which is who PC applies. 

By the way, I'm just agreeing with an official legal opinion presented to one of the CAP higher level committees a few years ago by a non-CAP source (Either DoD or AF lawyers). 

You read the opinion wrong, and it was an opinion written by Alberto Gonzales, then Attorney General.  Gonzales opinion was that UNLESS CAP is activated in its Federal role, the law specifically stated that CAP did NOT act as an aux. of the AF.  Gonzales ruled that use of CAP would be legal under the PossComm if CAP were called into service by state authorities, even if those states were later reimbursed by the Federal govt.

[RiverAux]

To my knowledge this opinion has not been circulated beyond what was mentioned in the NB notes.  Can you either post a copy or provide a link? 

You quoted my statement about CAP being an instrumentality of the federal government, not the AF in your reply.  That had nothing to do with that other legal opinion.  It is a statement of clear fact. 

[es_g0d]

There is still need of clarification.  Exactly when, and in what roles, we act as a local, state, or Federal entity needs to be clearly spelled out not just for ourselves, but for our customers.

I can't tell you the number of times CAP has not been called in my previous wings due to us being a "Federal Resource."

[RiverAux]

There is still need of clarification.  Exactly when, and in what roles, we act as a local, state, or Federal entity needs to be clearly spelled out not just for ourselves, but for our customers.

I'm with you there.  Keep in mind that in some states CAP members can get covered for medical costs and perhaps other things while working for the state. 

[RRLE]

This could mean that we would have to take a more active role in DHS missions, and could mean that we would actually engage threat forces.

Rest easy - that will never happen. Under DHS is the USCG. The USCG has the USCG Auxiliary, which does flying and boating for the USCG and therefore DHS. And the USCG Auxiliary is barred from military and direct law enforcement activity by federal law not just USCG regulation. So if the already serving Auxiliary is barred from such things, it is improbable that CAP would be allowed to do them.

[RiverAux]

I'm not so sure about that.  I think that the CG Aux Air rules have a little more latitude towards some LE issues than CAP's rules do. 

[Tubacap]

In regards to the fact that Posse Comitatus Act 18 USC 1385, generally abbreviated PCA, does not apply to us, I offer you this.

http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00001385----000-.html

The reference links to this, which is all PCA says:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."

Any part of the Air Force would definitely pertain to us as the official auxiliary of the USAF as outlined in 10 USC 9442: Status as volunteer civilian auxiliary of the Air Force

http://www.law.cornell.edu/uscode/search/display.html?terms=civil%20air%20patrol&url=/uscode/html/uscode10/usc_sec_10_00009442----000-.html[/url]

The two laws combined leave little leeway for us operating in support of a federal agency to be exempt from PCA.  Our internal regulations require us to abide by the same rules when not requested by a federal agency so that we don't get in the habit.

I would contest that anything that the USAF wants us to do, or for that matter anything that another federal agency wants us to do can be done legally, it just needs to be vetted.  There are restrictions on the use of military personnel (see above to include us) on our own population, and those restrictions have been put in place to protect our civil liberties, lessons learned from past kings etc. etc.

True the equipment that we have could be very useful, and if requested correctly can be used for most intelligence gathering things with the exception of Law Enforcement.  When we talk about LE work, I guess it comes down to whether or not you are willing to put yourself and your crews at risk due to the nature of the work as to whether you would want an exemption made for CAP.  I for one am not.

PCA also has a counterpart, the Insurrection Act.  This act is designed so that in egregious emergencies, the military can be used as necessary at the direction of the President.  This law has gone through some changes over the course of the last decade, but has returned to it's original form from the late 1800's.

The Insurrection Act is 10 USC 331-335

http://www4.law.cornell.edu/uscode/10/ch15.html

Please note also, that anything in Title 10 USC is under the Armed Forces.  The USCG and it's auxiliary fall under Title 14 which is a whole different set of rules.

[RiverAux]

Ah, I was waiting for someone to make the claim that CAP was legally part of the Air Force. 

So, in regards to posse comitatus you think that we are considered part of the Air Force, but find me anything anywhere in federal law that says CAP members are part of the Air Force.  Find me anything that says that CAP is part of the Armed Forces.  You won't.  If you do, let me know so that I can start getting my military pay.

But, I can give you a legal citation which very clearly separates the military from its auxliliaries.  If the auxiliaries were considered part of the military there would not be any reason to mention them at all in this law. 

TITLE 18 > PART I > CHAPTER 33 > § 702
§ 702. Uniform of armed forces and Public Health Service
Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined under this title or imprisoned not more than six months, or both.

We are auxiliary to, not part of, the Air Force.  Broadly speaking we are part of the Air Force family, but thats as far as it goes. 

[Smithsonia]

RiverAux;
I'm in the CAP and occasionally experience Party Comatose -- due to my advanced age. Does that count?

[Pingree1492]

Actually- according to reliable sources, this is one of the reasons for the name change from "USAF Aux" to "Civil Air Patrol" on the tails of our aircraft with a new paint job, especially for our work in the CD- and HLS-type environments.

[Tubacap]

*Disclaimer: Not a lawyer, but have done a fair amount of research on this topic*

If you wanted to get down to it, the individual member is not necessarily a member of the Air Force, but the organization is a part of the Air Force.  That site is 10 USC 9442.  That is very clearly spelled out.  10 USC is all Armed Forces, as the Title of the code implies.  The fact that 10 USC 9442 includes the words volunteer and civilian denotes that you don't get paid, nor fall under UCMJ, but civil law... incidentally PCA is a civil law.

The other code cite that you provided is 18 USC, which comes from the Crimes and Criminal Procedure section of Federal Law.  The fact that it is includes the auxiliaries can probably be attributed to the fact that sometimes they are there, and sometimes they are not, depending upon the service.  I believe the Army had an auxiliary at one point in time, as did several of the other services.  This particular citation would not negate the fact that we are considered to be included in "any part of the Army or Air Force"

In regards to the tail name change, I think that is probably a comfort level for the USAF from a PR perspective in regards to this law.  Those missions are still routed through the USAF on a daily basis, and there is provisions in both Title 10 and Title 32 for military support of civil authorities for counterdrug support.  HLS type support comes from the DSCA provisions which are part of the National Response Framework (Ha!  I knew those darn ICS classes would come in handy!!!)

[RiverAux]

Being the Air Force Auxiliary does not mean that we're part of the Air Force.  Keep in mind that we are not bound to follow the orders of anyone in the Air Force.  Their only control over us is financial in one form or another.  If we were "part" of the Air Force, that wouldn't be the case. 

[JohnKachenmeister]

The fact is that since there has never, in my recollection, been a single prosecution under the PCA, we are faced with the fact that there is simply NO case law on this issue that can be cited.  We have a lot of legal opinions, and we ALL KNOW what opinions are compared to, since everyone has one.

"Everyone" in this case being "Every lawyer."

I DO recall finding the terms:  "...including reserves and auxiliaries" under Title 10's definitions when I looked into this before, but I dozed off trying to find it again last night.  Then, even if I had found it, we are left with the question as to whether Title 10's definitions of "The Army and the Air Force" fit the intended definitions of the PCA, since the PCA is under Title 18.

[Cecil DP]

If I were, as a member of the Civil Air Patrol,  told or asked to participate in a "Law enforcement" mission that involved Posse Commitatus issues I would refuse. CAP is not and should not be involved in law enforcement. 

[JohnKachenmeister]

If I were, as a member of the Civil Air Patrol,  told or asked to participate in a "Law enforcement" mission that involved Posse Commitatus issues I would refuse. CAP is not and should not be involved in law enforcement. 

That's kind of a broad statement, Cecil.

First, exactly what conduct violates the PCA?  If we transport a deputy in the air, is the deputy "Using a portion of the Army or the Air Force as a posse comitatus?"  If all the CAP is doing is providing an aerial platform for a LE officer to observe and direct action, does that violate the PCA?

Second, lets assume you have an 8 year old girl missing from a remote campsite.  The county sheriff requests CAP assistance to scout the area from the sky.  AFRCC provides the funding. While the planes are looking for the girl, a detective develops information that she was taken away from the campsite by a white male driving a red van.

So, do you:  1.  Land and go home.  Missing girl or not, this is now a law enforcement mission.  2.  Continue searching for the girl.  The information may be bogus, or you just may see a red van somewhere nearby, either way, there is still a helpless little girl in trouble.  If the AFRCC won't fund it, see if the sheriff's dept. will.  or, 3.  Whine loudly that we are not "Real" officers and not in the "Real" military and therefore cannot be expected to make "Real" decisions, after all, we're only volunteers.