Part I - Authority and Jurisdiction Aspects of Terrorism Counteraction Issues

Still another example is explosive ordnance disposal.

The local

commander "may provide assistance when requested by federal agencies or civil

authorities in the interest of preserving public safety. When delay in responding

to such a request would endanger life or cause injury, commanders may authorize

assistance to the extent necessary to prevent injury or death." (DA Pam 27-21,

paragraph 3-18d.) This assistance, then, is provided "in the interest of...public

safety." (AR 75-15, paragraph 3-2a.) It normally requires referral of the matter to

the National Response Center, an Environmental Protection Agency/U.S. Coast Guard

Operations Center.

Again, if such delay "would endanger life or cause injury,

commanders may authorize assistance to that extent necessary, to prevent injury or

death." (AR 75-15, paragraph 3-2a.)

Similarly, AR 190-12, paragraph 4-7, deals with requests for "explosive

detector dog team assistance." Installation commanders may provide such assistance

to civil authorities "upon determination that such assistance is required in the

interest of public safety." In such cases, "only the dog team's searching and

detecting capabilities will be utilized when providing assistance to civil

authorities.

Use of the dog team to track and search a building or area for,

and/or detect...an intruder or offender or suspect is prohibited." (AR 190-12,

paragraph 4-7(c)(7).)

QUESTION:

WHY IS THIS PROHIBITED?

ANSWER:

THE PROPOSED OPERATION VIOLATES THE POSSE COMITATUS ACT. FURTHER, CID

POLICY MEMORANDUM #5 HAS BEEN REPLACED BY DOD IG MEMORANDUM, DATED 1

OCTOBER 1987.

THIS MEMORANDUM ALLOWS THE MILITARY TO CONDUCT OFFPOST,

COVERT DRUG OPERATIONS THAT TARGET CIVILIAN DRUG DEALERS WHO ARE NOT

SUBJECT TO THE UCMJ, IF THERE ARE REASONABLE GROUNDS TO BELIEVE THAT THE

TARGETED CIVILIANS ARE DISTRIBUTING ILLEGAL DRUGS TO MEMBERS OF THE

MILITARY OR ARE WORKING IN CONJUNCTION WITH MILITARY DRUG DEALERS.

INVESTIGATORS ARE REQUIRED TO COORDINATE SUCH COVERT OPERATIONS WITH THE

SUPPORTING SJA OFFICE, THE APPROPRIATE CIVILIAN PROSECUTOR'S OFFICE, AND

THE CIVILIAN POLICE AGENCIES AFFECTED BEFORE BEGINNING THESE OPERATIONS.

QUESTION:

WHY DOESN'T THIS VIOLATE THE POSSE COMITATUS ACT?

ANSWER:

THERE IS AN "ARMY INTEREST" HERE. THE ARMY, FOR ONE THING, IS THE VICTIM

OF THE CRIME.

ALSO, THERE IS A "REASONABLE BASIS TO BELIEVE THAT A

SUSPECT MAY BE SUBJECT TO THE UCMJ." (AR 195-2, PARAGRAPH 3-lb.) REMEMBER,

WHEN THE PRIMARY PURPOSE OF THE INVESTIGATION FULFILLS A LEGITIMATE DA

INTEREST, ANY INCIDENTAL BENEFIT TO THE CIVIL AUTHORITIES DOES NOT

CONSTITUTE A VIOLATION OF THE ACT.

PART I - AUTHORITY AND JURISDICTION ASPECTS OF TERRORISM

COUNTERACTION ISSUES

We have touched upon many of these problems throughout this subcourse.

USC Sections 2331 to 2338 entitled "Terrorism" set out a series of offenses

involving international terrorism.

MP1018

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