Drug Interdiction And The Military
AUTHOR Major Richard M. Whaley, USMC
CSC 1988
SUBJECT AREA National Military Strategy
EXECUTIVE SUMMARY
TITLE: DRUG INTERDICTION AND THE MILITARY
I. Purpose: To establish the need and the use of the
military in the drug interdiction mission in the war against
drugs.
II. Problem: That the quantity of illicit drugs coming into
the United States continued to expand throughout the 1970's
and 80's, and that the drug traffickers are using
sophisticated modern equipment to transport drugs and avoid
detection that surpasses the capabilities of civilian law
enforcement agencies. The threat narcotic traffickers pose is
a direct threat to the national security of the U.S..
III. Data: The Department of Defense and the military has,
since the passage of a 1981 Congressional amendment to the
Posse Comitatus Act, provided support to the law enforcement
communities' efforts to reduce the flow of illegal drugs into
the U.S.. This support came about as Federal, State, and
local law enforcement agencies were overwhelmed by the drug
importers increasingly sophisticated equipment. The military
is seen as the only organization with the necessary equipment
and skills to challenge the drug importers advantages. The
threat to other nations, including those that unofficially
sanction drug crops as cash crops, are also challenged.
IV. Conclusion: That a threat by drug importation
challenges the very foundation of America's life style as
well as America's future. Without assistance the drug
enforcement agencies will only interdict a small percentage
of illegal drugs.
V. Recommendations: To achieve a drug free America the
demand and the market must be eliminated. The elimination of
the demand through education and legal ramifications have
been ineffective. The military as a national resource must be
used in the war against drugs. They must be authorized to act
against civilian criminals that threaten the United States
and employ direct intervention whenever necessary.
DRUG INTERDICTION AND THE MILITARY
Thesis Statement: The threat narcotics traffickers pose is
viewed as a threat to the national security of the United
States. The Department of Defense and the military has, since
the passage of a 1981 Congressional amendment to the Posse
Comitatus Act, provided support to the law enforcement
communities' efforts to reduce the flow of illegal drugs into
the U.S..
I. Millions of Americans abuse drugs.
A. 450,000 Americans abuse heroin.
B. 10 Million Americans abuse cocaine.
C. 1 out of 18 high school students abuse drugs.
II. Less than 10% of all drugs are interdicted by
authorities.
A. The quantity of drugs increased in the 70's and
80's.
B. Drug agents are unable to stop the inflow.
C. Importers use modern equipment versus out of date
technology used by agents.
III. The crime threatening America was highlighted in 1981.
A. The Posse Comitatus Act is amended.
B. The National Security Decision Directive is
created.
IV. How to create a drug free America.
A. Elimination of the demand and the market.
B. Creation of a wall.
C. Utilize all national resources.
V. International cooperation to stop drug growers.
A. World strategy.
B. Eradication of a cash crop.
C. The narco-terrorist threat to America.
D. The Latin American connection.
E. The Latin American cooperation.
VI. The drug education challenge.
A. Drug education program.
B. Legal ramifications of drug abuse.
VII. The U.S. military as a national resource.
A. Authorization to utilize the military in
drug interdiction assistance.
VIII. The Posse Comitatus Act.
A. The Posse Comitatus Act of 18 U.S.C..
B. The role of the military in civilian law.
C. The Act defined.
D. Review of intent.
IX. Chapter 18 and Title 10 USC and the DOD.
A. The role of the military in support.
B. DOD assistance to the civilians.
X. The 1986 Drug Interdiction Act.
A. A comprehensive attack on drugs.
B. Dollars in addition to hardware for the DOD.
XI. The use of the military for a contingency.
A. Assistance from DOD should be authorized when
national security is challenged.
XII. Deadly force by the military.
A. Deadly force as a threat.
B. Improved readiness by interdiction forces.
C. Forethought of all concerned.
XIII. The drug threat is real, but is deadly force?
A. A pipe dream.
DRUG INTERDICTION AND THE MILITARY
Today, millions of Americans habitually abuse illegal
drugs. There are an estimated 450,000 Americans who use
heroin daily, nearly 10 million Americans who have abused
cocaine, and over 43 million who have used marijuana (1). The
widespread abuse of these substances on the streets and in
the schools of the U.S. is undermining the very foundation of
established American society; one out of 18 high school
seniors use marijuana daily (2). It is a multi-faceted
problem that has legal, social, economic and medical
ramifications. Drug users provide the demand for the illicit
manufacture, transportation and distribution of drugs. There
is no one simple solution to this challenge. A resolution of
this problem does not, and cannot, lie with one individual or
government agency.
As the quantity of illicit drugs coming into the United
States has continued to expand in both the 1970's and early
1980's, and because drug traffickers were using sophisticated
modern equipment to transport the drugs and avoid detection,
law enforcement agencies were unable to stop even small
amounts from appearing on the streets. Current estimates
conclude that less than 10 percent of all illicit drugs
coming into the country were successfully interdicted in
1986 (3). Traffickers spend large sums of money, primarily
cash, gleaned from the huge profits taken in from the sale of
illegal drugs to provide equipment that enables them to
escape detection and arrest. This equipment includes large
numbers of aircraft and high speed boats fitted with
sophisticated communications and navigation equipment. In
addition to the financial and technological advantages of the
traffickers, United States law enforcement agencies lose
much of their effectiveness when dealing with the entry of
illegal drugs into our country over such large expanses of
unsecured border areas.
This crime within and upon American society was
highlighted on 6 March, 1981, when President Reagan said that
"Drug abuse is one of the graver problems facing the American
public," and warned that "If we failed to act we are running
the risk of losing a great part of a whole generation (4)."
To stop this crime against the American society, Congress and
the President amended the Posse Comitatus Act of 1866 in 1981
and created a National Security Decision Directive (NSDD) on
narcotics and national security. The Directive allows the
board to facilitate coordination of U.S. operations and
policy on illegal drug law enforcement.
In effect these and other documents that followed in the
subsequent 5 years identified international narcotics
trafficking as a threat to the national security of the
United States and directed certain actions be taken to
increase the effectiveness of this country's counter-
narcotics efforts. Congress and the President, continuing to
recognize the growing menace of drug abuse and drug
trafficking, passed comprehensive legislation that declared a
war on drugs. In doing this the government brought to bear
its economic, diplomatic, socio-psychological, and military
instruments of power to carry out a national will for a drug
free society.
In my opinion, there are three solutions to achieving a
drug free America: 1) We can eliminate the market, or demand,
for the drugs thereby eliminating the need for drugs; 2) We
can create a wall, a wall 50,000 feet high that surrounds the
United States so that only authorized imports can come into
the U.S.; 3) We utilize Department of Defense assets and
employ their knowledge and hardware to stop importers and
help the civilian interdiction mission. Realistically,
combatting the drug threat problem is two-fold, for creating
a wall is neither an economically nor physically a sound
idea. To be successful both the supply of, and the demand
for drugs must be attacked and diminished.
A strategy seeking to reduce the supply of illicit drugs
to the point that drug abuse is no longer a threat to the
American lifestyle must be solved by international
cooperation. The easiest solution to drug free America would
be the elimination of the supply of drugs by eliminating the
source. There has been a growing realization throughout the
world that drug abuse is an international problem which
adversely impacts on all nations. Countries that are
producers of illicit drugs are also becoming consumers of
their own products. To reduce drug harvests, Congress would
have to convince world powers of the benefit of eradication
of a cash crop, even though most third world nations have
drug crops that are unofficially sanctioned. In a recent
interview with several high ranking members of the Inter-
American Defense Board, the general consensus of a panel
discussion was that the poor farmers of most third world
nations could not survive without the coca harvest. The rural
communities of these nations are dependent on their cash
crop. If the crop were to be destroyed it would take several
years to grow a replacement cash crop and in the interim many
farmers would face starvation. Therefore the possibility of
convincing a third world nation that an immediate destruction
of a cash crop is in the interest of the world would be
difficult. International agreements and cooperation on
narcotics matters have not been sufficiently comprehensive to
cause decisive damage to the drug producers. Suitable
substitutions are needed for the narcotics producing crops
which are now the main cash producers for the peasants.
International narcotics control receives much media
attention but very little real control is performed by most
third world nations. Those nations that do get tough with
established drug cartels often find that their sovereignty is
challenged. The narco-terrorist link, where narcotic
traffickers and guerrilla terrorist groups have formed
alliances, threaten fledging democracies in the drug
producing regions. Guerrillas are protecting the traffickers
in return for traffickers financing terrorist activities. To
cite one example, in November 1985, M-19 terrorists attacked
the Colombian Supreme Court and murdered nearly half of the
judges. The terrorists' behavior during the attack, that is
the judges they sought out to kill first, and the extradition
documents on drug traffickers they burned, convinced drug
enforcement agents that the guerrillas were working for
narcotic smugglers. A more recent example is the infamous
execution of the Colombian drug prosecutor that received much
international media attention. The viability of some national
economies are now linked to the presence of narcodollars.
A large majority of illicit drugs which enter the United
States comes from Latin America and the Caribbean region.
While Asia remains the principle source of heroin, Mexico is
rapidly challenging the Southeast Asian connection (5).
Despite heavy U.S. pressure and over 2.7 million dollars
in anti-drug aid, Mexico, a major producer of drugs and a
safe haven for drugs, did not eradicate a single coca plant
in 1986 (6). The threats to these democratically elected
nations and the fear of aid reduction have led to a greater
degree of cooperation with the United States in eliminating a
minor portion of the total drug supply. An excellent example
of this cooperation was demonstrated in 1986 when the U.S.
Army assigned helicopters with their aircrews to fly
Colombian drug agents into the jungle and destroy cocaine
producing laboratories. Operation Blast Furnace, although
successful as a show of international cooperation, had little
effect on the drug industry of Columbia. Unofficial
speculation by federal agents is that the drug cartel of this
region was notified in advance of all raids and was able to
move its labs to other jungle sites. The Colombian
government explains away the lack of successful raids by
blaming it on the American media. They contend that the
early release of information reduced the operation's
effectiveness because it allowed the manufacturers to vacate
the area during the planned raid period.
The other side of this challenge in reducing the drug
demand at the individual consumer level must be a massive
education program. The focus of drug education programs
should be on reducing consumption through fear of the hazards
of chemical abuse. The program would have to show a high
correlation that a user would become a compulsive user both
physically and psychologically once started and that
experimentation with drugs will lead to chronic and intensive
use. Education of the public would include legal ramification
if caught by authorities as well as the personal and
financial ruin which usually accompanies drug abuse.
Penalties would have to be imposed and adhered to without
exception. Does this sound familiar? It should, for these
programs and these threats of penalties are law. Are they
effective? In my opinion the answer is apparent with the ever
increasing problems of drugs in the streets and in the
schools.
Since 1981 the Department of Defense, ergo the Marine
Corps, has been authorized to support law enforcement
agencies in an effort to reduce the flow of illicit drugs
into the United States. This additional role of policeman
came about because Federal, State, and local law enforcement
agencies were overwhelmed technologically, financially, and
numerically by drug smugglers. The threat of illegal narcotic
traffickers is viewed as a national security threat,
therefore it demands the attention of all national resources.
The U.S. military was seen as the only organization with the
necessary equipment and trained personnel to offset the well
financed advantages the drug traffickers had in bringing
their contraband into the United States.
Arguments have been made both pro and con concerning
whether the use of the U.S. military in civil law enforcement
is in violation of the law, or intent, and the extent to
which the military can be used in support of law enforcement
agencies. First, let me address the issue of whether the
U.S. military can be used to interdict drugs from coming
into the United States. Approximately 120 years ago Congress
passed the Posse Comitatus Act 18 U.S.C. & 1385 which
provided that:
Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army as a
posse comitatus or otherwise to execute the laws shall
be fined not more than $10,000 or imprisoned not more
than two years or both.
The Act was passed in the heat of the Civil War
Reconstruction era and reflects the intent of Congress to
limit the role of the Army in civilian affairs. These
provisions proved to deter military commanders from agreeing
to requests for assistance from civil law enforcement
officers if there was any question that the Posse Comitatus
Act might be violated. As Senator Hill of Georgia contended:
The only proper role for the Army was to suppress
counterforce which was too great for the civil
power to overcome. If there is anything that commends
our system of government as a government designed for
preservation it is that the military power shall never
be called in to execute a civil duty, to enforce a civil
process. As I say, they may put down opposition to it,
but the courts alone and the civil officers alone ought
to execute the process. I care not by what agency it is
brought about, the fact will remain that whenever you
need the military arm habitually, or . . . whenever you
conclude that it is right to use the Army to execute
civil process, to discharge those duties which belong to
civil officers and to the citizens, then you have given
up the character of your government; it is no longer a
government founded in the consent of the people; it has
become a government of force. The Army is a government
of force; it has no civil functions in the proper sence
of the term (7).
The term "posse comitatus" is defined as "the body of
men that a peace officer is empowered to call upon to assist
him in preserving the peace of the land (8)." The intent of
the law is to constitute a summons to every male between
certain ages to be ready and equipped and at the command of
the local sheriff or marshall to assist in maintaining peace
and pursue felons. The Act prohibited the use of military
personnel as informants, undercover agents, or non-custodial
interrogators in a civilian criminal investigation that does
not involve potential military defendants. The intent of the
Act was to prevent the use of troops as a posse comitatus:
i.e. a body of men employed by the local marshall to collect
taxes, maintain order during strikes and influence elections
by intimidation of voters.
Although the act provides criminal sanctions and I
believe there have been violations in the past, I was unable
to find anyone convicted of violating this act. Most cases
that were reviewed like United States v. McArthur, Wrynn v.
United States and United States v. Walden indicated that the
United States was not in violation or the individual was not
liable.
The Posse Comitatus Act (18 USC 1385), in most cases,
prohibits the military from even assisting civilian law
enforcement agencies. In general, the Act prohibits the use
of military personnel to provide direct assistance to
civilian authorities in applying legal force to civilians. To
overcome this, Congress in 1981 clarified the role of the
military in support of law enforcement by adding Chapter 18,
Military Cooperation With Civilian Law Enforcement Officials,
to Title 10 of the United States Code. Chapter 18 authorized
the Department of Defense to:
* Provide to law enforcement officials information
collected during the normal course of military
operations concerning violation of State or Federal
laws.
* Make available to law enforcement officials any
equipment, base facility or research facility for law
enforcement purposes.
* Train and advise civilian law enforcement officials in
the operation and maintenance of military equipment
made available to them.
* Assign personnel of DOD to various agencies to operate
and maintain equipment.
Title 10, United States Code also allowed the Department
of Defense to provide a great deal of assistance to help
Federal, State, and local law enforcement agencies combat the
drug threat. Thus, as long as military personnel are not used
to exercise authority over civilians, the Posse Comitatus Act
permits them to participate, with Department of Justice
personnel, in a joint investigation that serves both federal
civilian law enforcement and lawful military purposes.
Due to the controversy, misunderstanding and civilian
drug interdiction agencies interdicting only a small
percentage of the illegal drug smuggler penetrations, in 1986
Congress created the National Drug Interdiction Improvement
Act of 1986. Without recreating the whole Act, section 3002
dictates that the Department of Defense and the use of its
resources be an integral part of a comprehensive, national
interdiction program. The Act highlighted the fact that
Federal government agencies charged with the drug
interdiction mission lacked the aircraft, ships, radar,
command, control, communications, and intelligence system and
manpower resources necessary to mount a comprehensive attack
on the narcotics traffickers who threaten the United States.
Essentially with this Act Congress authorized the use of
all assets that the Department of Defense possessed to assist
established civilian drug enforcement agencies and budgeted
additional monies to fund a war against drugs under the
Defense Drug Interdiction Assistance Act, 1986.
There is not much grey area in the question of the use
of the military in civilian interdiction since Congress
established the Drug Interdiction Act of 1986. The military
not only can be used but is budgeted for the drug war.
Calling for assistance of the armed forces is not an
abdication from authority by the U.S. Congress, Federal or
State law enforcement agencies. It is in fact a recognition
that the power available to drug enforcement agencies has
deteriorated to a point that employment of alternative assets
available MUST be employed to win the war on drugs. Where
drug interdiction is challenged and the capabilities of civil
agencies are unable to resist the onslaught of illegal
invaders, assistance should be expected from forces which
enjoy a superior capability and training necessary to offset
the invaders' advantage. The use of the military to assist in
drug interdiction is a reasonable contingency that must be
foreseen. Appropriate use of such force and adequate
provisions for its consequences also must be made by the
civil authorities. When resort to military assistance
requiring deadly force or infringements on civil liberties
becomes necessary there should be prior agreement between the
military command and civil authorities defining the role of
the military, and whenever practical, the rules of
engagements must be spelled out.
Initially the addition of the military's assets of
ships, aircraft, and sophisticated technology had a
substantial impact on importation. Successful seizures of
drug shipments increased and drugs were harder to find on the
streets of the United States. But by 1985 the traffickers had
changed tactics and they began to employ modern technology to
counter the interdiction effects. The drug cartels were no
longer intimidated by the military, for it was common
knowledge that the limited efforts of an operationally
restricted military were powerless as an enforcement agency.
Experience taught traffickers that although they were being
observed and tracked by the military, federal and local law
enforcement agents were slow to respond to calls for
assistance from the military. The military was unable to take
any action because of Posse Comitatus.
For the last five years the United States Marine Corps
has been active in the President's war on drugs. We have
intercepted, chased, and observed aircraft and boats
crossing into the U.S. bringing "death" with them; yet we
have been ineffective in stopping this importation. Recent
statistics show that in 1986 and 1987, less than 10 percent
of illegal drugs were confiscated by state and federal
officials.
One possible solution to stop the massive flow of drugs
from crossing the U.S. borders is a proposal by the U.S.
Department of Transportation and the U.S. Customs Service
to allow the U.S. Marine Corps to use deadly force in the
interdiction mission. For any tasked force to succeed in a
war against drugs it must have the authority to employ ALL
assets available to protect the citizens of the United States
from illegal drugs. Congress would have to enact legislation
that would allow the U.S. Marine Corps drug interdiction
aircrews to employ deadly force while intercepting aircraft,
surface craft and land vehicles that have been identified as
drug carriers.
A threat of using deadly force while intercepting drugs
would substantially inhibit efforts to move illegal drugs
into the United States. If the effort did no more than force
traffickers back into the more traditional methods of drug
smuggling, where normal drug enforcement agents could better
handle the problem. The threat of the use of military weapons
alone would reduce the candidates willing to cross the
borders illegally.
The enactment of the proposed legislation would also
help improve the readiness posture of many military units.
Increased training and proficiency by aircrews and their
maintenance crews could be seen as an immediate benefit of
this enforcement for any action would not be training, it
would be the real thing.
Other than eliminating the market or the demand for the
drugs the use of deadly force is the only economical means
left in inhibiting drug importers. The only remaining
alternative that the U.S. Congress possesses is to spend
billions of dollars to acquire enough advanced sophisticated
technological hardware to create an impenetrable wall on the
southern and northern borders in order to stop drugs from
crossing into the U.S..
The authorization to allow the use of deadly force when
in pursuit of a suspect will require extensive forethought by
many leaders prior to its employment. At the aircrew level,
the men chasing a suspected vehicle will have to determine if
deadly force is actually warranted and will serve the
American public. Junior officers as tactical aircrew of a
weapons platform will have to be mature enough to understand
rules of engagement and know what their actions or inactions
will lead to. These aircrews must know, within reason, that
the airplane that they are chasing or boat that they monitor
is bringing illegal drugs into the U.S.. There can be no
doubt in the minds of the aircrew that the vessel is actually
carrying contraband. There must be no reasonable doubt left
in their minds that the monitored vehicle is dangerous to
United States citizens prior to employing deadly force.
Consequently, a higher level screening will require that
the Squadron Commanding Officer and Operations Officer review
each assigned aircrew's qualifications for this highly
sensitive and responsible mission. Not only screened for
tactical and aeronautical ability, but to determine if the
aircrews are mature enough and have the level of training
necessary to decide whether or not to use deadly force in
drug interdiction. As Customs Commissioner William von Raab
said, "The decision to open fire on the suspected plane would
be made by a higher authority outside the apprehending
aircraft (9)."
The use of weapons in deadly force is not a light
decision. With each decision a mature, rational thought
process must precede the use of the selected weapon. Most
importantly, the use of weapons against civilian targets must
be used only to protect American citizens and used to stop
illegal importation, not merely to destroy life and property.
Military personnel are usually qualified and possess the
maturity to employ deadly force when necessary. The Marine
Corps has screened its members through its selection of
recruits, its education process, its standards of physical
and mental capabilities, and a daily evaluation by peers and
senior officers. The aircrew members of the Marine Corps can
generally be considered experts at the intelligent use of
weapons and the use of deadly force: it is their profession.
The authorization to use deadly force by the Marine
Corps and other armed services, I believe, to be a pipe
dream. I do not believe that Congress will ever authorize
the use of military weapons in deadly force against
civilians. Until the American public as a single voice
complains to Congress and it realizes that drugs are a real
threat to Americans, deadly force will never be authorized
for used by the military in drug interdiction. It is strongly
suggested that the use of the Marine Corps, or any military
force, as a response to drugs be regarded as a viable
solution but one that should be well thought-out and planned
before its use.
FOOTNOTES
(1) White House Drug Abuse Policy Office, 1984 National
Strategy for Prevention of Drug Abuse and Trafficking. p. 4.
(2) Ibid, p. 4.
(3) National Narcotics Intelligence Consumers' Committee,
"The Supply of Illicit Drugs From Foreign and Domestic
Sources in 1984," Narcotics Intelligence Estimate 1984,
Washington D.C. 1985, p.9.
(4) LtCol. M.S. Mosley, "The Military Joins the War on
Drugs", Technical Report, 14 April, 1987, p. 3.
(5) Col. N.D. Munger and Col. R.J. Kee, "Interdiction of
Illegal Drug Traffic-US Army Support to Civil Authority",
Technical Report, 15 August, 1986, p. 5.
(6) Ibid, p. 5.
(7) Major G.S. Laird, Military Law Review: "Background of
the Act", p. 4-5.
(8) J. Stein, ed.. The Random House College Dictionary, p
1035.
(9) J. Longo, "CGd Cool on Aircraft Shoot-Down Proposal",
Navy Times, January 25, 1988, p. 14.
BIBLIOGRAPHY
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Ibid, "Plane Woes Make CGd Miss Drug Flights Goals", 14
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Ibid, "CGd Asks Active Duty Increase; $222 Million More for
Operations", February 29, 1988, p. 24.
Robert Emmet Long, Drugs and American Society, The H.W.
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Zillman, A.P. Blausrein, E.F. Sherman, Matthew Bender,
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