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The 1980s found the U. S. Navy in the peculiar position of serving as an assistant to the U. S. Coast Guard. This role reversal came about when the Navy, along with the other armed forces, was directed to assist in the national effort to eliminate drug smuggling into the United States.
Since 1878, the Posse Comitatus (power of the country) Act prohibited the use of the Army and implicitly any federal armed force in law enforcement. The 1981 additions to that act, however, combined with the stated intentions of the Reagan administration to use all means at its disposal to stop the flow of illegal drugs into the country have overcome that prohibition. To understand this turn of events, we should examine both the Posse Comitatus Act and the role of the Navy as assistant to the Coast Guard.
The Posse Comitatus Act was first enacted as part of a flurry of legislation designed to end the disastrous consequences of the imposition of military rule in the South following the Civil War.1 In the decade after the war, the Southerners were treated as a group of recalcitrant children, unwilling and t*nable to properly conduct a government of their own. They were deprived of their rights to have congressmen or to form their own state legislatures. Martial law was the way of life. “Army generals took over command of the five military districts into which the South had been divided, and with an army of occupation at their dis- P°sal assumed full responsibility 0r maintaining law and order.”2 federal troops were enlisted again and again to keep the peace and enforce the law throughout the South.
President Ulysses S. Grant and others soon realized that depen- ence on the military to ensure omestic tranquility was a road to
p ruin. By the end of his term in office in 1876, Grant had grown ever more reluctant to deploy troops for law enforcement. Although laws were passed to permit the President to call out the armed forces to quell civil disturbances, legislation concerning the presence of military personnel at polling places was hotly debated as was the use of federal troops for local and federal law enforcement.
From this chaotic period, the Posse Comitatus Act emerged in 1878. It prohibited the abuse of employing Army personnel to enforce the laws.
The Posse Comitatus Act was amended in 1956 to include the Air Force as well as the Army in its specifications. The act made no mention of the Navy and Marine Corps, however. The reason for excluding the naval forces remains uncertain, but it appears that the act intended to prohibit the use of military forces in civilian law enforcement. That the restriction applied to naval forces as well was therefore implied.
In 1974, the Navy officially recognized the implicit applicability of the Posse Comitatus Act to itself in
Secretary of the Navy Instruction (SecNavInst) 5820.7, but with the caveat that the act did not apply specifically to the Navy.3 The exception to this SecNavInst permitted the Navy to employ its forces in civilian law enforcement actions with the approval of the Secretary of the Navy. Thus, the principle that civilian control should be paramount over the military was still upheld—that is, the Secretary of the Navy, a civilian official, had to authorize any such use.
The Reagan administration entered office in early 1981 with a get-tough policy in regard to drug law enforcement. Since 1973, the Coast Guard had been battling maritime drug smuggling with limited success. It was seizing not more than 25% to 30% of the seaborne marijuana being smuggled into the country.
The October 1980 Proceedings
In the wardroom of the USCGC Dauntless (WMEC-624), Rear Admiral D.C. Thompson briefs President Reagan and Admiral James S. Gracey, Commandant of the Coast Guard, on drug interdiction activities.
pointed out that the Coast Guard was in dire straits with out-of-date equipment, insufficient personnel, and inadequate resources. The obvious solution to improving the Coast Guard’s success was to use the Navy to augment the Coast Guard’s forces.
Increased national awareness of drug smuggling and the problem of drug abuse in the United States mobilized congressional support for President Ronald Reagan’s initiatives and Vice-President George Bush’s South Florida Drug Task Force. As a result, in December 1981, the Department of Defense Authorization Act of 1982 (Public Law 97-86), passed by the Congress and signed by the President, included a section that allowed “the Secretary of Defense [to] . . . provide to Federal, States, or local civilian law enforcement officials any information collected . . .
[and] make available any equipment, base facility, or research facility . . . to . . . any law enforcement official.”4
Although these provisions ostensibly had no direct impact on Navy assistance, they removed any doubt about the propriety of using Navy resources to assist the Coast Guard. The Coast Guard, being an armed force of the United States, is not a “civilian law enforcement” agency, but it is still considered to fall under these provisions.
Subsequent to passage of Public Law 97-86, the Department of Defense issued Directive 5525.5 on 22 March 1982, which explained the requirements for employing Department of Defense resources in law enforcement activity. That directive calls for the Secretary of Defense to give prior approval for Navy and Marine Corps personnel to participate in interdicting vessels or aircraft involved in any illegal activity.
The USCGC Munro (WHEC-724) works with the USS Sterett (CG-31) and a Navy P-3 comes down for a closer look as the Navy-Coast Guard team plays a deadly serious game of law enforcement.
On 2 April 1982, Secretary of Transportation Andrew Lewis, Jr., sent a letter to Secretary of Defense Caspar Weinberger requesting Navy assistance for the Coast Guard in law enforcement missions. Then, in July, Secretary of the Navy John Lehman sent a memorandum to Secretary Weinberger requesting authority to support the Coast Guard in law enforcement activity, including surveillance, logistics, and embarkation of Coast Guard detachments on board Navy ships for law enforcement purposes.5 On 9 August 1982, Secretary Weinberger approved the request. He specifically authorized Navy support in four areas: air and surface surveillance, towing or escort of seized vessels and transportation of prisoners, logistics support to Coast Guard units, and embarkation of Coast Guard personnel on Navy ships to conduct law enforcement boardings of U. S.-flag and stateless vessels.6
Regarding logistics support, the Navy supplies fuel, provisions, and other supplies to the Coast Guard on a not-to-interfere basis with normal Navy operations. Many Coast Guard surface units are shortlegged, and such support is essential when these units are sent on long-range law enforcement missions. (Most Coast Guard vessels are less than 100 feet in length and have durations better measured in hours than days.)
The Navy provided the Coast Guard with air and surface surveillance even before the 1982 directives and Public Law 97-86. Because of their wide-ranging activities, Navy surface and air units observe substantial ocean areas during normal operations.
The Posse Comitatus Act did not prohibit Navy units from passing sighting information about suspicious vessels to the Coast Guard. The revision in the statute, however, combined with new Navy and Secretary of Defense directives as well as the increased visibility of Navy assistance to the Coast Guard amplified this practice. Air surveillance support has particularly increased. Navy patrol squadron flights provide direct support to Coast Guard surface units.
Towing or escort of seized vessels and transportation of prisoners and contraband involve Navy units directly in the law enforcement chain. It is generally accepted as Coast Guard policy that the officer responsible for seizing a vessel and arresting her crew will maintain custody of vessel, crew, and contraband until all are released to shoreside authorities (Customs, Drug Enforcement Administration,
or Immigration and Naturalization Service). If that officer remains with his catch, such legal niceties as “chain of custody” are not a Problem. Thus, at least one Coast Guard officer or petty officer will escort a captured vessel or any prisoners. In fact, the Atlantic Fleet’s Operation Order 2120, which addresses Navy assistance to the Coast Guard in detail, states that such Coast Guard accompaniment will occur.
Finally, Navy surface ship crews must be prepared to have Coast Guard Tactical Law Enforcement Teams (TacLETs) embarked on board their ships. TacLETs have been operating for about a year with some success.
A TacLET consists of two officers and about 12 enlisted personnel, each with appropriate Coast Guard law enforcement training. About one-half of these deploy on board Navy ships bound for high drug trafficking areas for limited periods of time (approximately 30 days). The senior TacLET officer briefs the ship’s commanding officer and other necessary personnel on the TacLET’s job. Coast Guard officers and petty officers are empowered to board vessels subject to the jurisdiction of the United States and conduct examinations to ensure compliance with all federal laws.
The Coast Guard has and likely will continue to enforce U. S. law against foreign-flag vessels on the high seas with the concurrence of the nation under whose flag the ship operates. Understandably, the federal government is reluctant to engage U. S. Navy warships in law enforcement action against private or commercial foreign-flag vessels.
A stateless vessel is not immune from law, but rather lacks the immunity of a state. In other words, a stateless vessel forfeits her rights. Another vessel willing and able to enforce law against a stateless vessel may do so.
A U. S. Navy commanding officer has the authority, under international law, to stop a stateless vessel on the high seas and take her to a U. S. port. The problem, however, is determining statelessness. Stopping or boarding a vessel legitimately registered under a foreign flag can possibly violate international law.
Determining statelessness is more a process of eliminating nationality than proving lack of nationality. Most legitimate vessels will display something to indicate nationality: a home port painted on the stem or a national flag, for instance. Obviously, a flag alone does not prove nationality, but display of a flag indicates nationality, an indicator that must be disproved before a vessel can be designated stateless.
Lack of a flag, home port, or any other external indicators still does not prove statelessness.
Should the master or a person on board claim a nationality for the vessel, that nationality is usually assumed correct until disproven. Normal Coast Guard procedure in this instance is to have the claim verified by the claimed country.
Statelessness results from one of three basic situations. First, the claimed flag state refutes the claim. Second, the vessel has claimed two different states of registry during the same voyage. Third, the vessel claims no registry. When a Coast Guardsman determines a vessel to be stateless, he is free to enforce applicable U. S. law on that vessel. The right of a Coast Guard boarding officer to enforce U. S. law on board a stateless vessel has already been challenged and upheld in federal court. In fact, a challenge arose from a case in which a TacLET had conducted a boarding and seizure from a Navy ship near Puerto Rico.7
Thus, the Navy is strongly and directly committed to supporting the Coast Guard in its law enforcement mission. The recent clarifications of the Posse Comitatus Act restrictions, combined with Navy guidance, appear to have cleared any legal barriers that previously prevented such involvement.
'Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), p. 295. 2Foster Rhea Dulles, The United States Since 1865 (Ann Arbor. Michigan: University of Michigan Press, 1969), p. 21.
-’Memorandum from James J. McHugh to Director, Strategy, Plans and Policy Division, Office of the Chief of Naval Operations, 30 March 1982, p. 2. Memorandum Opinion of Gilberto Gierbolini in U. S. District Court for the District of Puerto Rico, 13 January 1983. p. 4.
4U. S. Laws, Statutes, etc., “Military Appropriations Authorization Act of 1982,” United States Statutes at Large, Public Law 97-86 (Washington, D.C.: U. S. Government Printing Office, 1982), p. 17. ’Memorandum from John Lehman to Caspar Weinberger, 29 July 1982, p. 1.
6Memorandum from Caspar Weinberger to John Lehman, 9 August 1982, p. 1.
7For an account of a TacLET seizing the drugsmuggling vessel Ranger, see R. A. Laahs,
“‘Joint’ Operation,” Proceedings, June 1984, pp. 107-108.
Having recently completed a tour of duty as executive officer of the USCGC Dependable (WMEC-626) and the resident course at the Naval War College, Commander Adams is currently serving as the Coast Guard liaison officer on the staff of Commander, United States Forces, Caribbean. His previous assignments afloat included deck watch officer in the USCGC Absecon (WHEC-374) and operations officer in the USCGC Steadfast (WMEC-623). He has also served ashore at the Rescue Coordination Centers in Norfolk, Virginia, and San Juan, Puerto Rico, as well as at the Coast Guard’s Vessel Traffic Service in San Francisco, California. He is a frequent contributor to Proceedings and was presented the U. S. Naval Institute’s Award of Merit for an author in 1981.