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 "A Continent Aroused Against Drugs," New York Times, 20 January 1986, p.A30. Assistance to Civilian Law Enforcement Agencies-Possee Comitatus Act, Major W. J. McGowan, DAJA-AL, 1987. "Background of the Act", Military Law Review, Vol. 70, p. 86- 92, 1975. "Background Paper on the Historical Development of the Traditional Seperation Between Military and Civilian Activities", Department of the Army, Director of Military Support. "Cooperation With Civilian Law Enforcement Officials", Department of the Army Memo, Office of the Judge Advocate General, 25 July 1986. "Disorder and Terrorism, Report of the Task Force on Disorders and Terrorism", National Advisory Committee on Criminal Justice Standards and Goals Washington, D.C. 1979. "Federal Strategy for Drug Abuse and Drug Traffic Prevention 1979", The Strategy Council on Drug Abuse. The Drug Abuse Office and Treatment Act of 1972. Lieutenant Colonel J. W. Kerr, "Military Support of Civil Authority", Military Review, Vol. 50, July-December 1970. "Military Force and American Society", B. M. Russett and A. Stepan, Harper Torchbooks, 1983. National Drug Enforcement Policy Board, Fereral Drug Enforcement Progress Report 1984-1985, March 1986. Ibid," National and International Drug Law Enforcement Strategy", January 1987. The Navy Times, "Cuts Would Slow War on Cocaine Smuggling", J. Longo, 1 February, 1988, p. 13. Ibid, "Plane Woes Make CGd Miss Drug Flights Goals", 14 March, 1988, p. 40. 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. Wilson Company, The Reference Shelf, Vol. 57, Number 6. "Strengthened Programs of International Cooperation for Halting the Illicit Supply of Drugs", The Department of State Bulletin, Under Secretary E. L. Richardson, 1979. "The Drug War-Losing While Winning", The Washington Post, Sunday, February 21, 1988, D. McClintick, p. B1. The Military in American Society, Cases and Materials,D.N. Zillman, A.P. Blausrein, E.F. Sherman, Matthew Bender, May 1981.
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