Appeals Court: US Military Unlawfully Enforcing Civilian Law

In a recent ruling, the 9th Circuit Court of Appeals determined that an investigation initiated by an agent of the Naval Criminal Investigative Service (NCIS)  -- under the auspices of finding child pornography -- resulted in an unlawful military dragnet in the state of Washington, in flagrant violation of the Posse Comitatus Act of 1878; the PCA forbids military enforcement of civilian law. A civilian living in Washington was eventually sentenced to 18 years in prison after the NCIS agent passed the information along to the Algona Police Department:  the local, civilian police force.

The government tried to argue that because the NCIS agent who had initiated the investigation was a civilian employee of the Department of Defense, that he was not subject to the Posse Comitatus Act. The Court found the government's assertion that there is a difference between civilian and other employees of the Navy to be: "unsound." The Court asserted that civilian employees of the Department of Defense are restricted from directly participating in civilian law enforcement, and that those restrictions "apply to all actions of DoD personnel worldwide," be they "federal military officers and enlisted personnel and civilian employees of the Department of Defense."

The 9th Circuit Court of Appeals has 29 judges, making it the largest of the 13 appeals courts, and the one with the highest number of judges appointed by Democratic presidents; due to the number of decisions The Court makes, the Supreme Court will only choose to review 20% of their decisions, making it unlikely that the Navy will be able to appeal this ruling. 

In their opinion, The Court clarified that the Posse Comitatus Act prohibited "direct assistance" to civilian forces, and that this included "use of military personnel[emphasis mine] for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators." The Court has established a guideline for what it means to provide "direct assistance:"
  1. The involvement must not constitute the exercise of regulatory,    proscriptive, or compulsory military power 
  2. must not amount to direct active involvement in the execution of the laws
  3. must not pervade the activities of civilian authorities.
The Court clearly established that the Navy's surveillance of all computers in Washington amounted to "impermissible direct active involvement in civilian enforcement." Furthermore, an investigation has to be initiated by civilian law enforcement, not by the NCIS or some other DoD sub-branch, The Court ruled. An investigation needs to be initiated for military or "foreign affairs function." 

Despite the Posse Comitatus Act dictating a potential prison sentence of up to two years for Army and Air Force personnel who violate it, The Court revealed that "NCIS agents routinely carry out broad surveillance activities that violate the restrictions on military enforcement of civilian law... it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state."

Most shockingly, The Court reveals that: "The government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military."

Judge Kleinfeld, concurring with the majority decision, went further and argued that the military was "acting as a national police force to investigate civilian law violations by civilians." 

Judge Chon argued that simply because the NCIS has a civilian director and a civilian chain of command does not exempt it from the Posse Comitatus Act... the NCIS Director reports to the Chief of the Naval Operations; and that although the Posse Comitatus Act only references the Army, the Navy was under the PCA umbrella due to it being part of the Department of Defense. The government argued that the Director of the NCIS was no longer reporting to the Chief of the Naval Operations, but was a "special assistant." Judge Chon determined that the relationship still constituted subordinate reporting by the NCIS Director.

The Court argued that NCIS Agent Steve Logan acted as investigator, and that his actions were "akin to the conduct that the Fourth Circuit held violated these regulations in United States v. Walden [1974], where Marines engaged in undercover investigations into store employees' illegal firearms sales to minors and to individuals not residents of the state." In that case, the Fourth Circuit decided not to suppress the evidence found by the Marines because it was the first time the court had learned of military personnel being used as the principal investigators of civilian crimes." However, the Ninth Court argues that violations are now widespread, and that evidence in this case needs to be suppressed, because the Posse Comitatus violation was "repeated against every user of [the] Gnutella" network in Washington.

In initial reports, Agent Logan stated that "suspect IP [address] was identified in area of large DoD and USN saturation indicating likelihood of USN/DoD suspect," an allegation which would later be proven patently false by the fact that Federal Way, Algona is 30 miles away from the nearest military facility, meaning that it is similarly distanced as Seattle and Tacoma, large metropolises. Agent Logan carried out these searches repeatedly, and he was involved in at least twenty other child porn investigations, investigations which he began carrying out with two other NCIS agents months prior to this current case.

In a stunning sentence, The Court clarified why Agent Logan's actions represent a threat to the freedom of every American: "The great beauty of our system is that it is to be governed by the people and that if we use military power... to discharge those duties that belong to civil officers and to the citizens, we have given up the character of [our] Government; it is no longer a government of liberty; it is no longer a government founded in the consent of the people; it has become a government of force."

Last year, Snowden's revelations highlighted how the NSA was passing along intelligence to the Drug Enforcement Agency and the IRS, intelligence which was also passed to local police departments. The DEA, IRS and other agencies use what they dub "parallel construction" to hide who initiated the investigation. The NSA is a child agency of the DoD, but this ruling does not clarify if "parallel construction" is a violation of the Posse Comitatus Act.
Though the Posse Comitatus Act proscribes up to two years imprisonment for Army and Air Force personnel who violate it, Agent Logan will not face charges because, as Judge Kleinfeld suggested, "if the military chooses to become a national police force to detect civilians committing civilian crimes, the Navy would be the branch to use, because the criminal penalty does not apply to Navy personnel."