Militarization

"The militarization of American policing has occurred as a direct result of federal programs that use equipment transfers and funding to encourage aggressive enforcement of the War on Drugs by state and local police agencies. One such program is the 1033 Program, launched in the 1990s during the heyday of the War on Drugs, which authorizes the U.S. Department of Defense to transfer military equipment to local law enforcement agencies.¹² This program, originally enacted as part of the 1989 National Defense Authorization Act, initially authorized the transfer of equipment that was 'suitable for use by such agencies in counterdrug activities.'¹³ In 1996, Congress made the program permanent and expanded the program’s scope to require that preference be given to transfers made for the purpose of 'counterdrug and counterterrorism activities.'¹⁴ There are few limitations or requirements imposed on agencies that participate in the 1033 Program.¹⁵ In addition, equipment transferred under the 1033 Program is free to receiving agencies, though they are required to pay for transport and maintenance. The federal government requires agencies that receive 1033 equipment to use it within one year of receipt,¹⁶ so there can be no doubt that participation in this program creates an incentive for law enforcement agencies to use military equipment."

"The Department of Defense operates the 1033 Program through the Defense Logistics Agency’s (DLA) Law Enforcement Support Office (LESO), whose motto is 'from warfighter to crimefighter.' According to LESO, the program has transferred $4.3 billion worth of property through the 1033 Program.⁶¹ Today, the 1033 Program includes more than 17,000 federal and state law enforcement agencies from all U.S. states and territories. The amount of military equipment being used by local and state police agencies has increased dramatically—the value of property transferred though the program went from $1 million in 1990 to $324 million in 1995 and to nearly $450 million in 2013.⁶²
"The 1033 statute authorizes the Department of Defense to transfer property that is 'excess to the needs of the Department,'⁶³ which can include new equipment; in fact, 36 percent of the property transferred pursuant the program is brand new.⁶⁴ Thus, it appears that DLA can simply purchase property from an equipment or weapons manufacturer and transfer it to a local law enforcement agency free of charge. Given that more than a third of property transferred under the program is in fact new, it appears that this practice happens with some regularity."

"Even though paramilitary policing in the form of SWAT teams was created to deal with emergency scenarios such as hostage or barricade situations, the use of SWAT to execute search warrants in drug investigations has become commonplace and made up the majority of incidents the ACLU reviewed. When the police are executing a search warrant, there has been no formal accusation of a crime; rather, the police are simply acting on the basis of probable cause to believe that drugs will be present.
"There is no criminal case, no formal suspects, and often little if any proof that a crime has been committed; it is simply an investigation. Thus, the use of a SWAT team to execute a search warrant essentially amounts to the use of paramilitary tactics to conduct domestic drug investigations in people’s homes.
"The majority (79 percent) of SWAT deployments the ACLU studied were for the purpose of executing a search warrant, most commonly in drug investigations. Only a small handful of deployments (7 percent) were for hostage, barricade, or active shooter scenarios. The remaining deployments were for other purposes such as protecting visiting dignitaries, capturing fleeing suspects, and responding to emergencies. Our investigation found that in the majority of deployments the police did not face genuine threats to their safety and security.
"Further, often the quantity of drugs found did not seem to justify a SWAT deployment. For example, the Allentown SWAT team was deployed to search someone’s house for drugs. They executed the warrant at 6:00 a.m., knowing children were likely to be present. When gathering intelligence the day before, the team did not see any weapons. Nonetheless, the team deployed a distraction device, broke the door down with a battering ram, and entered the residence to find three adults and three children asleep in the home. The team found no weapons and what the report described as a 'small amount of marijuana.'"

"There is almost no oversight of SWAT at the state or local level. Maryland is the exception — in 2009, Maryland enacted a law requiring law enforcement agencies that maintain a SWAT team to report, semi-annually, specific activation and deployment information.⁷⁷ The law required the Police Training Commission, in consultation with the Governor’s Office of Crime Control and Prevention, to develop a standardized format for each agency to use in reporting data.⁷⁸ It also provided that if a law enforcement agency failed to comply with the reporting provisions, the fact of noncompliance by that particular agency would be reported to the state legislature.⁷⁹ Utah enacted a similar bill this year.⁸⁰
"The Maryland law did not come out of nowhere. The year before, the Prince George’s County Sheriff’s SWAT team had raided the home of Cheye Calvo, the mayor of a small Prince George’s County municipality. The county police department then held Calvo and his family at gunpoint for hours and killed his two dogs, on the basis of a misguided investigation in which Calvo and his wife were wrongly suspected of being involved in a marijuana transaction.⁸¹"

"Oversight of the 1033 Program exists, but there are gaps.⁸⁶ The only significant responsibilities placed on participating law enforcement agencies are that they not sell equipment obtained through the program and that they maintain accurate inventories of transferred equipment.
"The state coordinator is required to approve or disapprove applications for participation, but there appear to be only two criteria that must be satisfied in order for a request to be approved: (1) that the agency intends to use the equipment for a 'law enforcement purpose' (counterdrug and counterterrorism efforts are emphasized by law); and (2) that the transfer would result in a 'fair and equitable distribution' of property based on current inventory. The Memorandum of Agreement (MOA) also provides that as a general matter, 'no more than one of any item per officer will be allocated.'⁸⁷ Most of the state coordinator’s other responsibilities are administrative in nature (e.g., ensuring that LESO has current and accurate points of contact, that only authorized agency requests are submitted to LESO, that participating agencies update their account information annually, etc.)."

Basic Data and History

"Over the last 25 years, America has seen a disturbing militarization of its civilian law enforcement, along with a dramatic and unsettling rise in the use of paramilitary police units (most commonly called Special Weapons and Tactics, or SWAT) for routine police work. The most common use of SWAT teams today is to serve narcotics warrants, usually with forced, unannounced entry into the home.
"These increasingly frequent raids, 40,000 per year by one estimate, are needlessly subjecting nonviolent drug offenders, bystanders, and wrongly targeted civilians to the terror of having their homes invaded while they’re sleeping, usually by teams of heavily armed paramilitary units dressed not as police officers but as soldiers. These raids bring unnecessary violence and provocation to nonviolent drug offenders, many of whom were guilty of only misdemeanors. The raids terrorize innocents when police mistakenly target the wrong residence. And they have resulted in dozens of needless deaths and injuries, not only of drug offenders, but also of police officers, children, bystanders, and innocent suspects."

"The [Obama] Administration has deployed unprecedented technology, personnel, and resources along the Southwest border. From FY 2009- 2011, the Department of Homeland Security has seized 41 percent more drugs, 74 percent more currency, and 159 percent more weapons along the Southwest border as compared to FY 2006-2008. The Border Patrol increased its agents from approximately 10,000 in 2004 to more than 21,000 today, with nearly 18,500 agents stationed along the Southwest border. The Federal Bureau of Investigation (FBI) established its Latin American Southwest Border Section, strengthening intelligence-driven investigations targeting transnational criminal organizations impacting the Southwest border. Additionally, DEA has allocated nearly 28 percent of its domestic agent positions to the Southwest border, and HSI has deployed a quarter of its operational personnel to the region. The Department of Justice has also secured a dramatically higher number of extraditions from Mexico (93 in 2011, compared to 12 in 2000) and has trained over 5,400 Mexican prosecutors and investigators."

"In FY 2017, DoD requests $1,060.1 million for drug control activities, a decrease of $176.5 million from the FY 2016 enacted level."

"The fight against drugs is characterized by a progressive militarization of the issue, as seen by the various interventions, military agreements on no fly zones, strong investments in the armed forces (especially in South America, e.g. Colombia). The drug issue was in fact considered to be a national security issue by the US, in the framework of the Low Intensity Conflict theory elaborated by Pentagon in the 1980’s. President Reagan officially added drug trafficking to the list of threats to national security with his secret directive number 221, signed on April 1986. [22] This directive authorized the US military to intervene abroad in order to fight against drug production."

"Using the military for internal matters like crimefighting carries four main risks. First, it generates a potentially tense overlap between military and police institutional missions and responsibilities, especially for crime prevention and control. Second, it politicizes the military; as Hunter (1994) warns, it 'invites the armed forces to remain an important political actor.... The symbolic significance of military involvement in domestic affairs should also not be underestimated, especially where a tradition of interventionism exists.'⁸⁹ Third, it places military personnel in a situation for which they are not properly trained or equipped: constant contact with the population. This entails risks of authoritarian behavior and human rights abuse. Fourth, it carries a high institutional opportunity cost. Recurring constantly to the military to solve internal security problems reduces political will to make the investments necessary to build a functioning civilian security and justice sector. This sector’s continued weakness, in turn, guarantees that the armed forces will be called on again in the future."
[Note: Ellipses in original.]

"Many experts believe the term 'narcoterrorism' was first used by former Peruvian President Belaúnde Terry in the early 1980s to describe terrorist-like tactics used against Peruvian law enforcement by Shining Path Marxist rebels. While narco-terrorism has no formal definition, it is generally used to describe activities by groups that use drug trafficking to fund terrorism. For the DEA, it is 'a subset of terrorism,' in which groups or individuals participate directly or indirectly in the 'cultivation, manufacture, transportation, or distribution of controlled substances and the money derived from these activities.'"

"Since fiscal year 2000, the availability of U.S. and allied assets spent on interdiction operations in the transit zone [South America through the Caribbean Sea and eastern Pacific Ocean] — as measured in on-station ship days and flight hours -— has varied. U.S. and allied on-station ship days decreased from approximately 3,600 days in fiscal year 2000 to about 3,300 in fiscal year 2005, and U.S. and allied on-station flight hours increased from approximately 10,500 hours in fiscal year 2000 to almost 12,900 in fiscal year 2005. However, on-station ship days peaked in fiscal year 2001 and flight hours peaked in fiscal year 2002, but both have generally declined since then, primarily because Defense has provided fewer assets. Declines in Defense assets were largely offset by the Coast Guard, CBP US Bureau for Customs and Border Protection), and several allied European nations -— France, the Netherlands, and the United Kingdom. Nevertheless, with the assets available in recent years, JIATF-South (Joint Interagency Task Force-South) reports that it detected (made visual contact with) less than one-third of the known maritime drug movements."

"C2.3 TYPES OF INFORMATION THAT MAY BE COLLECTED ABOUT UNITED STATES PERSONS,
"Information that identifies a United States person may be collected by a DoD intelligence component only if it is necessary to the conduct of a function assigned the collecting component, and only if it falls within one of the following categories:
"C2.3.1. Information Obtained With Consent. Information may be collected about a United States person who consents to such collection.
"C2.3.2. Publicly Available Information. Information may be collected about a United States person if it is publicly available.
"C2.3.10. Narcotics. Information may be collected about a United States person who is reasonably believed to be engaged in international narcotics activities."

Posse Comitatus Act

"The term 'posse comitatus' means the 'force of the county.' Its doctrine dates back to English common law, in which a county sheriff could raise a posse comitatus to repress a civil disturbance or for other purposes. The Posse Comitatus Act of 1878 states (as amended):

"'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.'

"Over the past century and a half, the wording of the Posse Comitatus Act has remained essentially unchanged, but its use has become engrained in U.S. law and culture. Though there have been several incidents when the Act has been severely tested, this basic concept of civilian control – absent in too many other countries – has helped guarantee freedom from military oppression."

"Americans have a tradition, born in England and developed in the early years of our nation, that rebels against military involvement in civilian affairs. It finds its most tangible expression in the nineteenth century Posse Comitatus Act, 18 U.S.C. 1385. The Act forbids use of the Army and Air Force to execute civil law except where expressly authorized."

"The language of the [Posse Comitatus] Act mentions only the Army and the Air Force, but it is applicable to the Navy and Marines by virtue of administrative action and commands of other laws. The law enforcement functions of the Coast Guard have been expressly authorized by act of Congress and consequently cannot be said to be contrary to the Act. The Act has been applied to the National Guard when it is in federal service, to civilian employees of the armed forces, and to off-duty military personnel.
"The Act is probably only applicable within the geographical confines of the United States, but the supplemental provisions of 10 U.S.C. 371-381 appear to apply world-wide. Finally, the Act is a criminal statute under which there has never been a prosecution. Although violations will on rare occasions result in the exclusion of evidence, the dismissal of criminal charges, or a civil cause of action, as a practical matter compliance is ordinarily the result of military self-restraint."

"Questions regarding which activities violate the Posse Comitatus Act arise most often in the context of assistance to civilian police. At least in that context, the courts have held that, absent a recognized exception, the act is violated (1) when civilian law enforcement officials make 'direct active use' of military investigators, (2) when the use of the military 'pervades the activities' of the civilian officials, or (3) when the military is used so as to subject citizens to the exercise of military power that is 'regulatory, prescriptive, or compulsory in nature.'⁸⁴ The act does not apply to the Navy or Marines⁸⁵ and does not prohibit activities conducted for a military purpose that incidentally benefit civilian law enforcement bodies."

"Late in 1988, the U.S. military’s active participation in America’s fight against illegal narcotics was further expanded by the George W. Bush administration through Public Law 100-456 that created amendments to USC Title 10, Chapter 18.²² The changes to public law now required the Department of Defense (DoD ) 'to serve as the lead agency for the detection and monitoring of aerial and maritime transit of illegal drugs into the United States.'²³ It also required the DoD, 'to the maximum extent practicable,' to consider the needs of civil law enforcement agencies when planning and conducting military training or operations.²⁴ The Secretary of Defense was now authorized to not only make available military equipment and facilities for law enforcement authorities, but also the personnel to train law enforcement agents in the operation and maintenance of equipment. Finally, Public Law 100 -456 authorized the DoD to provide the funds 'sufficient to pay for all expenses of the National Guard of such State when engaged in drug interdiction assistance activities.'²⁵"

"DOD [Department of Defense] personnel are permitted to provide training and expert advice to civilian law enforcement personnel, and may conduct maintenance on equipment it provides. However, DOD personnel are expressly authorized to operate the DOD-provided equipment only in support of certain federal law enforcement operations, which include counter-terrorism operations, renditions of suspected terrorists from a foreign country to the United States to stand trial, and investigations involving violations of certain laws that control imports, exports, immigration, drug trafficking, and terrorism.⁸⁷ DOD personnel are authorized to operate equipment for the purpose of, among other things, detection, monitoring, and communication of the movement of air and sea traffic, as well as surface traffic outside of the geographic boundary of the United States and within the United States not to exceed 25 miles of the boundary (if the initial detection occurred outside of the boundary), and “aerial reconnaissance.”"

Sociopolitical Research

"The election year of 1996 marked the highest percentage of federal funds allocated to drug enforcement during the decade. The Clinton administration appointed former SOUTHCOM CINC, Gen (Ret) Barry McCaffery to the office of Director, National Drug Control Policy. Following the mandate of the President and Congress, the Cabinet level office maintained the 70/30 ratios between supply and demand reduction programs with the exception of 1999 and 2000. Programs that represented a traditional supply control approach included Presidential decertifications of Colombia, followed by the support of Plan Colombia."

"Electoral politics was the reason why the preponderance of federal fiscal dollars resourced supply programs higher rather than demand reduction programs. The United States drug policy has been driven by the need to appear tough on drugs, regardless of results. Cocaine and heroin cost are declining and product purity is rising. Presidential leadership has a value, however, pressures to compromise may mitigate effectiveness. Political activism by an informed electorate to help shape the direction of public policy is needed."

According to US Defense Department regulation 5240.1-R, DoD intelligence components are allowed to gather information on US citizens in some circumstances relating to drugs: "C2.3.10. Narcotics. Information may be collected about a United States person who is reasonably believed to be engaged in international narcotics activities."

"The US Congress approved in July 2000 an emergency supplemental assistance request for fiscal years 2000-2001 of $1.32 billion, of which $862.3 million was allocated to Colombia and the balance to neighboring countries (primarily Peru, Bolivia, and Ecuador) and to US agencies' Andean region antidrug operations. Of the $862.3 million allocated to Colombia, $521.2 million is new assistance to the Colombian armed forces and $123.1 is assistance to the police, with the rest ($218 million) going to alternative economic development, aid to displaced persons, judicial reform, law enforcement, and promotion of human rights.
"The bulk of the military assistance will support the Colombian armed forces' three counter-narcotics battalions, which are to receive 16 UH-60 Black Hawk and 30 UH-1H Huey transport helicopters."

"Although no single comprehensive U.S. counternarcotics strategy exists for the Andean region, mission strategic resource plans (MSRPs) for each of the countries in the region delineate the strategic approaches guiding U.S. counternarcotics assistance. According to State officials, the MSRPs incorporate high-level guidance from ONDCP’s annual National Drug Control Strategy, which also includes specific policy guidance for the Western Hemisphere. This strategy presents a broad framework for reducing illicit drug use and its harmful effects on the United States. Included in the strategy is a chapter on international partnerships focused on reducing the supply of illicit drugs in the United States via U.S. cooperative efforts, such as those with Colombia and Peru, the CBSI [Caribbean Basin Security Initiative] countries, and the CARSI [Central American Regional Security Initiative] countries, and initiatives to combat trafficking through transit countries such as Ecuador.
"The MSRPs for the Andean countries, developed by interagency teams at U.S. embassies in consultation with host country governments, summarize conditions in each country, specify U.S. foreign assistance goals, and describe in general terms the assistance planned to further those goals.⁷"

"State, USAID, DOD, and DEA allotted a combined estimated total of nearly $5.2 billion in counternarcotics assistance to Andean countries in fiscal years 2006-2011. Of this amount, about $366 million (7 percent) was allotted for Bolivia; $3.92 billion (76 percent) for Colombia; $233 million (5 percent) for Ecuador; $659 million (13 percent) for Peru; and $7 million (less than 1 percent) for Venezuela (see fig. 2)."

"Total estimated allotments for counternarcotics assistance programs in the Andean countries declined overall by about 51 percent from fiscal year 2006 to fiscal year 2011. Allotments for Bolivia declined by about $103 million (87 percent); for Colombia, by $377 million (45 percent); for Ecuador, by $32 million (59 percent); for Peru, by $87 million (52 percent); and for Venezuela, by $2 million (88 percent). In fiscal year 2008, allotments for counternarcotics assistance programs declined in all Andean countries. (See fig. 3.)"

"Of the agencies’ combined estimated assistance in fiscal years 2006 through 2011, State provided about $3 billion (60 percent), USAID provided $1 billion (21 percent), DOD provided $956 million (19 percent), and DEA provided $25 million (less than 1 percent). As figure 4 shows, each agency’s allotments decreased during this time period. State’s allotments for counternarcotics assistance declined the most, dropping by about 60 percent from fiscal year 2006 to fiscal year 2011. According to agency officials, this decline in funding for counternarcotics assistance could be attributed to factors such as the ongoing nationalization of U.S. counternarcotics programs and assets in Colombia as well as a general reduction in available resources across the federal government in recent fiscal years.¹⁰"

"Although US assistance is provided for counter-narcotics purposes only, there is a clear linkage between the Colombian government's counter-narcotics and counter-insurgency strategies. the Colombian government believes that, by striking at the drug trade, it also strikes at the economic center of gravity of the guerrillas. That is, by destroying the coca and poppy fields, drug-production facilities, and transportation networks, the government can also degrade the guerrillas' ability to carry on the war.
"Whether this is an accurate assessment remains to be seen."

"The FARC clearly believes that US counter-narcotics assistance is directed against it, that it is, in effect, disguised counter- insurgency assistance, and that if they, the guerrillas, were to gain the upper hand, the United States would intervene on the side of the Bogota government. Therefore, in its public posture, the FARC has stressed the threat that US military assistance to Colombia poses to the peace process, a theme that plays well with some domestic and international audiences. The FARC professes to be opposed in principle to the narcotics trade, while criticizing the methods employed by the Colombian government -- aerial spraying in particular. It has also sought to forestall direct US intervention by drawing parallels between Colombia and Vietnam."

"The Air Bridge Denial Program derives its name from its goal: to deny the South American drug network the “air bridge” used to transfer semi-refined cocaine from growing areas in rural Peru, Bolivia and Colombia to processing plants in Colombia and onward to destination countries. While this transportation network also includes land and water routes, its lifeblood is aerial transportation.⁴ The denial of this air bridge, initially through the interdiction of suspect planes on the ground and later through the use of weapons against aircraft in flight, is seen as a key component of the overall success of U.S. counter-drug operations. However, while this component has had a long and successful history, it has been controversial."

"Given the strategic importance of reducing drug production and trafficking in the Andean countries—the source of more than 95 percent of the cocaine seized in the United States and much of the heroin available east of the Mississippi River—accurate and reliable information on the results of this assistance is essential. State, USAID, and DEA have reported the required information, with attestations of its reliability, regarding the combined $4 billion in assistance that they provided in fiscal years 2006 through 2011. However, lacking attestations by DOD’s IG, ONDCP has minimal assurance of the reliability of DOD’s reporting on its estimated $956 million in counternarcotics assistance in those years. Without reliable information, ONDCP may be limited in its ability to carry out its responsibility for coordinating and overseeing implementation of the policies, goals, objectives, and priorities established by the national drug control program and to report accurately to Congress on counternarcotics assistance provided by agencies under ONDCP’s purview. Moreover, without reliable information, Congress and other decision makers, including ONDCP, may lack information that is essential to assessing progress toward the U.S. goal of curtailing illicit drug consumption in America, making decisions on the allocation of resources, and conducting effective oversight."

Note: The number in parenthesis following each quote references its respective source below.