Posse Comitatus and "AUX OFF"

[Sgt. Savage]

Given recent discussions about CAP members carrying firearms and such, I'm curious regarding how our "Part Time" status with the USAF affects our ability to assist LE and carry firearms. It seems to me that before we debate the idea of carrying firearms, we need to discuss the legal aspects of firearms carry. Does Posse Comitatus still apply when we're not on AFAM's?

[JohnKachenmeister]

We've speculated on this numerous times, on this and some former forums.  The consensus seems to be that if we are not on an AFAM, we are not a part of the USAF, and therefore not subject to the PCA.  CAP regulations have not been changed, however, so we still must conduct operations as if we were subject to PCA.

There is, however, NO official determination of this, and I am not a lawyer.

But I did stay at a Holiday Inn Express last night!

[LtCol White]

At present, the Posse Commitatus is undergoing a major revision due to many of the issues arising from Hurricane Katrina. I have a copy of the latest proposal in a report for congress. PM me with a fax number and I'll be happy to send it out. Sorry, don't have an electronic copy.  For those who want to research and find it it is the:

CRS Report for Congress- The Use of Federal Troops for Disaster Assistance: Legal Issues by Jennifer Elsea. Order Code RS22266

[Dustoff]

Here's a link to the electronic version.

http://www.au.af.mil/au/awc/awcgate/crs/rs22266.pdf

Jim

[Nick Critelli]

Here's the situation: 

Statutorily we are not the USAF Auxiliary unless we are on an AF assigned mission (Title 10 or Title 36 USC 40302(5) and sometimes 40302(4) in the case of AFRCC or AFNSEP missions (assuming they still exist.) In those situations PCA does apply to CAP and with the exception of counterdrug our support of law enforcement is limited.

That leaves a whole world of other operations/missions where we are not assigned to the federal government or USAF.  In those situations PCA does not apply however CAP regulations do apply and there is a BIG conflict in our regs.

CAPR 900.3 allows for substantial support to  law enforcement whereas 60-1 (2.4h) specifically provides that CAP aircraft are prohibited from "(h)   Assistance to law enforcement officers,  except as provided for in Counterdrug." 

So it appears that you can support law enforcement to the extent authorized and allowed under CAPR900-3 provided you do it on the ground.

Obviously this doesn't help much.  The one mission that law enforcement is pleading for CAP assistance is the Amber Alert missions.  I have taken the position for the IAWG that we cannot perform these missions in light of 60-1(2.4h) which has prompted some of the legal officers to call for a revision of the reg by adding "...and to the extent authorized under CAPR 900.3" after the word Counterdrug in 60-1(2.4h). 

This was the reason behind remarking our air and ground vehicles from USAF Aux to CAP.   AF was concerned about using vehicles marked with USAF on PCA missions.

[Sgt. Savage]

That seems like a reasonable approach. I think that the regulations in general still reflect the USAFAUX position and not the DHS role we are likely to play in the future. Should we be authorized to carry firearms? I'm not sure it's a good idea; we aren't LEO's. Few of us have the training and background to be comfortable pointing a deadly weapon at a human being, to be willing to use it, and to be able to quickly decide if we need to. I do think, though, that a provision to allow it under the strictest of circumstances by the fewest of the few may be an appropriate addition to the regs.

[JohnKachenmeister]

That seems like a reasonable approach. I think that the regulations in general still reflect the USAFAUX position and not the DHS role we are likely to play in the future. Should we be authorized to carry firearms? I'm not sure it's a good idea; we aren't LEO's. Few of us have the training and background to be comfortable pointing a deadly weapon at a human being, to be willing to use it, and to be able to quickly decide if we need to. I do think, though, that a provision to allow it under the strictest of circumstances by the fewest of the few may be an appropriate addition to the regs.

We beat this to death in another thread, and every made their positions clear. 

I'll just add this comment.

The war that we now call the Global War on Terrorism, or (more accurately, IMO) World War III will go down in history as "The Scizophrenia War."  We, as a nation, cannot seem to decide if Terrorism is an act of war designed to force concesions in our foreign policy and to force us to surrender dominance of the Middle East to a regional power, or a crime whose motive is to force concessions in our foreign policy and to force us to surrender dominance of the Middle East to a criminal enterprise. 

We are having court hearings and debates about the "Rights" of battlefield captives taken under arms in Afghanistan, and some people think they should be tried.  For what, I don't know, but they think Guantanamo is like the County Jail.

As long as we mix police and military operations, we are going to generate this confusion.  And that confusion, in my not-so-humble opinion will defeat us.

We can't resolve the guns-on/guns-off or the aux-on/aux-off issue until the Commander-In-Chief grows a pair and decides once and for all that al-Qaeda is closer to Pancho Villa's gang and the Tripolitan Pirates than it is to the Mafia.

My apologies for that last outburst, which may have spoiled the decorum here.  I'll quietly slink out now and join the discussion of the funny-looking TPU in the other room.

[NYWG Historian]

Don't know if anyone saw this.  It was apparently on the NHQ press site for about a day before getting yanked.  The article has now been put into the Superior Telegram archives, but if you go to the link:
http://www.superiortelegram.com/articles/index.cfm?id=18137&section=news
and type in civil air patrol and select the date February 16, 2007, you'll find a very interesting article about CAP pilots tracking a car thief who ran into the woods and was apparently wearing a bright red hat.   While you have to pay for the full article, the archive abstract is [darn]ing enough.....