Theoretical Future Evolution of CAP

[riffraff]

Premise: Is the recent movement away from badging/markings referencing USAF (aircraft, vehicles, command patch) a precursor to moving CAP into another agency such as Dept of Homeland Security? Or is it simply a workaround for possible Posse Comitatus Act issues?

[RiverAux]

Well, considering that an Air Force Instruction has restricted AFAMs for CD activities in CAP planes with USAF markings, it seems pretty clear that this is a posse comitatus issue primarily.  Though a bogus one since the US Army-marked National Guard choppers are used in the exact same CD operations all the time. 

[riffraff]

I was pretty confident that CAP personnel clearly fell outside the restrictions of PCA (Posse Commitatus Act) being that we are civilian members of a non-profit corporation.

Haven't we done work through MOUs previously? I'm presuming these missions went ahead with the USAF markings?

[RiverAux]

The reg puts a higher standard on who in the AF approves the CD missions as compared to other AFAMs.  Technically it doesn't actually prohibit use of planes marked in that fashion. 

There have been arguments presented in more offiical venues that PCA does not apply to CAP members under any circumstance.  However, that isn't the posture that the AF is taking at this time and since they control the key to the mission money box....

[riffraff]

Probably correct.

However, hasn't USAF performed support missions for the same federal agencies as the national guard and, coincidently the same agencies we're doing work for?

Just seems like a lot of expense to remove mention of USAF if it's only for add-on missions. Especially if USAF-directed SAR is still our primary mission.

[JohnKachenmeister]

I was pretty confident that CAP personnel clearly fell outside the restrictions of PCA (Posse Commitatus Act) being that we are civilian members of a non-profit corporation.

Haven't we done work through MOUs previously? I'm presuming these missions went ahead with the USAF markings?

Your confidnece may be over-confidence.

When CAP is acting as an instrumentality of the US, we are a part of the Air Force, and therefore subject to the PC Act.

When CAP is acting in its corporate authority to perform services for state and local govts. we are probably not governed by the PC Act.   Since the law making us not a part of the AF is only 8 years old, there has not been a lot of legal issues arising from our "Non-AF" status.

Also, our regulations were written to comply with the PC Act, and have not ben changed.  60-1 still makes it improper to perform missions on behalf of law enforcement agencies regardless of CAP's AF/corporate status.  Drug missions are a specific exception to this rule.

A few months ago, I would have agreed with you that CAP was being re-organized in preparation of a transfer to DHS.  Since the former National Commander has been relieved, the "US Civil Air Patrol" nonsense was rescinded, and we seem to be backing away from that apparent intent.

[RiverAux]

I've seen us do more law enforcement support actions in the last few years than I have in a long time -- and these are AFAMs.  I've said it before, but since they started running everything through the NOC, they seemed to have loosened up quite a bit on that score. 

I guess Kach doesn't think the arguments made by the DoD (I think it was) lawyers about CAP and PCA were very compelling. 

[JohnKachenmeister]

Actually, I did consider them compelling.  Especially the part where they said that CAP was not subject to the PCA when not in its Air Force role.  Their opinions are informed, but are presently still untested in court.

That is why I do not understand the delay in bringing our own regulations in line with the law and the opinions of the attorneys.

[Eclipse]

I would stay tuned to see how things unfold before getting too excited about any moving away from the USAF.

He who shall remain nameless was doing his best to turn us into an LE-Aux.

The "US CAP" was only a piece of that, and the iCC is already undoing that.  As an FYI, not even all of the vehicles and aircraft were remarked.

As to PCA, nothing has changed for now, nor do I think it should.  Again this was HWSRN latching onto some background noise from one Whitehouse opinion that PCA >might< not apply to military personnel assigned to homeland defense and especially disaster relief missions.

Nothing has come of that, to date, either.

PCA is a cornerstone of our democracy, it does not preclude us from doing any activities or missions which are appropriate for us (I have no interest in becoming an unpaid LEA augmentee).

[RiverAux]

The part of the brief I was talking about was the one that said that even if CAP was operating under AF direction on an AFAM, that CAP members were still civilians and couldn't be considered "part" of the Air Force.  In other words you can't have multiple laws that are very specific about who are members of the Armed Forces that definetely exclude CAP and then have this other law that says that we are part of the AF.  Seems to me that you can't have it both ways.

[lordmonar]

I would not say that the "retagging" of the aircraft was part of any over all long range plan to do anything....due to the personalities involved probably did not think that far in advance.

Was it a move to try to end around USAF objections?  Probably.  But we have have had a change in leadership, we have had some congressional level discussions about PCA and will be seeing a change in the executive branch.

All of these may spell a change in how PCA is applied to CAP, a change in the PCA or a change in our status when we support other federal agencies.

[riffraff]

Guys,
This is a theoretical discussion. I'm not advocating a move away from USAF. I was looking to explore a hypothetical move into DHS and any pros/cons that would come of it.  USCG moved from DOT to DHS and, on the surface, appears to have been little effected. Being a civilian organization operating within the US with SAR as a primary mission, how much would change with a shift to DHS? AFAMs would still come from AFRCC; aircraft would remain; organizational structure would remain; etc. The cadet program would clearly be an issue.

[BillB]

You say the aircraft would remain. But remember the aircraft are funded by USAF in purchase and most operating funding.
CAP has three missions, none of which are covered by DHS. While it may be possible for CAP to take part in DHS missions, the AE and CP programs would not fit into any DHS operations.
A better answer would be for USAF to take a more active oversight/operations of CAP and if DHS wants CAP for any missions to coordinate through USAF.

[isuhawkeye]

BillB

Don't forget the aircraft are owned and maintained by CAP.  CAP holds the title on them, not the Air Force. 

[riffraff]

I'm not sure how the money flows but I'm assuming Congress allocates funding for CAP -- either directly into USAF budget or indirectly (X dollars allocated to USAF that must be used for CAP -- i.e. no loss of funds to USAF). A shift to DHS would require a shift of funding from USAF to DHS.

The theoretical issue with more AF oversight does involve PCA issues. In a purely USAF-controlled environment, you would have a DoD component directly involved in activities that play in the PCA grey areas. There would be no corporate missions, only AFAMs. Current MOUs would become potential legal issues.

Admittedly, I don't know that much about the AE program but on the surface it appears it could also function within DHS. The cadet program would be a problem.

[LittleIronPilot]

This is soooo simple, do away with the PCA!

Yes...I am semi-serious about that. 

[mikeylikey]

BillB

Don't forget the aircraft are owned and maintained by CAP.  CAP holds the title on them, not the Air Force. 

Yes but the stipulation is if it was purchased with appropriated $ or AF $, it will be returned to the FED either through DRMO, or directly to the AF.  Same with those vehicles purchased or funded by the AF.  Actually everything CAP "owns" corporate or otherwise is FED assets that are accounted for.

[riffraff]

This is soooo simple, do away with the PCA!

Yes...I am semi-serious about that. 

I'm pretty sure I don't want the DoD playing policeman within the US. PCA for the military is fine. A clear cut document stating CAP is not constrained by PCA for non-AFAMs would be better.

[riffraff]

Yes but the stipulation is if it was purchased with appropriated $ or AF $, it will be returned to the FED either through DRMO, or directly to the AF.  Same with those vehicles purchased or funded by the AF.  Actually everything CAP "owns" corporate or otherwise is FED assets that are accounted for.

Fed owned is very different from USAF owned. For example, an aircraft owned by DHS can be used in law enforcement activities whereas a DoD owned aircraft technically cannot. I would presume that an airplane owned by the GAO (General Accounting Office) could also legally be used for law enforcement, if necessary.

[mikeylikey]

^ Actaully ownership was a poor choice of word on my part.  Everything the AF "Owns" is actaully Federal Property.  PCA does not apply to the machine being used, but to the people inside the machine.  DHS/ Border patrol can without fear of violating PCA take an AF aircraft up in the skies.  AS long as the people flying it are not AF, but representatives of DHS or Border there is no problem.

The law is tricky, but the Government would not make PCA difficult for themsleves.