FOR OFFICIAL USE ONLY

SUBJECT: Proposed USAJFKSWC Training Support for BATF

FROM: SOJA

DATE: 9 Sep 93

1st END 1. Non-concur in the action as stated. The Joint Staff form 136 has a signature element which is to be signed, from all appearances, by the Director of the Joint Staff. The coordination line for S0J3 signature is neither adequate nor appropriate for USSOCOM to articulate USASOC's reservations on that form, nor would the proposed memorandum to the Executive Secretary of the Office of the Secretary of Defense be sufficient to put BATF on notice that this is not a free lunch.

2. This is the sort of training which precipitates the Economy
Act, 31 USC 1535 (a), which requires that one agency of
government reimburse another for supplies, services rendered.
Inasmuch as the training is being conducted at the SWC in the
ordinary classroom environment, we cannot waive reimbursement
under the fiction that we are training the trainer" as is
not so subtly suggested by the 3 Aug BATF letter.

3. A collateral point bears mentioning here., USASOC's more recent involvement with BATF came in the form of training the agents who ultimately were tasked to "take down" the Branch Davidian compound in Waco, Texas. In that instance, we were persuaded to provide BATF free training with the allegation, never confirmed, proven, or even acknowledged, that it was for a "suspected methamphetamine laboratory. By thus characterizing it, BATF was able to use the liberal waiver provisions of the Economy Act which cover assistance to counterdrug LEAS, when, if the truth had been known, the training would have required reimbursement.

4. I have attached for your consideration an instrument for SOJ3 signature reflecting these concerns.

SEP

Acting Staff Judge Advocate

D-1166

SOJ3

MEMORANDUM FOR: DIRECTOR,JOINT STAFF

Sep 93

SUBJECT: Letter to BG M. B. Sherfield, ES OSD from Dept. of
Treasury RE: Request Special Forces Training for Two Weeks

1. USASOC has indicated their ability to support subject
request, and has provided two possible time frames, 6-17 Dec 93
and 13-26 June 1994. Concur in the provision of subject training
subject to following:

a. Full reimbursement by BATF for all training subject to the provisions of the Economy Act, 31 USC 1535 (a);

b. Class size not to exceed 20 students;

c.

Training shall be scheduled so as not to conflict with or disrupt regular scheduled training at the USAJFKSWC.

2. Request these stipulations be incorporated into the DJS instrument forwarded to the Executive Secretary.

LLOYD W. NEWTON
Maj General, USAF
Director of Operations

February 1993

1. About 031125 (all times Romeo) Feb 93, SPC PROJ/CD, USASFC (A) G-3 came to this office seeking a legal opinion on a JTF-6 mission. According to a Federal DLEA in JTF-6's AOR had identified a methamphetamine production site and requested RSU support to:

b.

Review and scrub the operations plan for the DLEA

Assist in developing rehearsal site and conduct

rehearsals with the DLEA.

c. Provide 18D medical support at a casualty evacuation site (not on the "target" but in proximity thereto) where triage for casualties would be conducted before follow-on transportation to civilian medical facilities.

2.

further advised that both bad guys and civilians (i.e. women and children) were located at the drug production site (issue: SOT/CQB) that the civilian DLEA was intending to take down". It was noted that this is an actual law enforcement mission with civilian targets and civilian property within CONUS to be attacked.

3. Advised that I was of the opinion that 18 USC 1385 (the Posse Comitatus Act) was the first hurdle to clear in that with identified civilian subjects on an identified civilian lab site with an on-going federal (civilian) law enforcement investigation an exception under federal law would have to be found. Also discussed was the issue of METL related tasks, that this was operational, not training (requiring reimbursement under 31 USC 1535, the Economy Act), and was outside of the training concept of the RSU as I understood it, as well as missions not delegated to CINC per CJCS message 1900502 Dec 91 (as well as USASOC directives implemented in response to SECDEF Memo of 18 Sep 89).

FOR OFFICIAL USE ONLY

1. I informed

FOR OFFICIAL USE ONLY

Mat while 10 USC 373 allowed the military to provide training and expert advice to the DLEAS (Issue: can JTF-6 "loan" 3d Group soldiers they do not own?), we were not permitted direct participation in searches, seizures, arrests, or similar activity unless permitted by law (10 USC 375). I was of the opinion that the degree of involvement proposed crossed the line and exposed the RSU to criminal as well as civil liability. Unless the RSU is engaged in "free lance" activities, their element is not an expert on "take downs", discriminating fire, SOT/CQB, laboratory considerations (a DEA Criminal Laboratory Enforcement Team task), etc. The issue of 18D medical involvement in providing initial care to any civilian casualties was also outside of the MAST program, AR 40-1 and 3, was outside of scope and should best be provided by the appropriate civilian EMTs with responsibility for the AOR. an "off set the 18Ds would be involved in direct participation in the search and arrest of the civilians.

5.

Even in

called the RSU from my office. I also talked to the Company Commander (RSU) and advised him that as I understood the mission, it was not permissible. I raised the issue of which AUSA was involved in the planning of this mission, since in some instances evidence has been suppressed by courts for this sort of activity. Additionally, any federal violations would most likely be tried in a US District Court and AUSA involvement would provide limited protection. I reiterated my opinion that although the line was gray, at the point where the RSU assisted in the actual planning and rehearsal of the take down, participation in the arrest was "active". This was my opinion based upon the law as interpreted after Army officers provided the FBI advice during the Wounded Knee Occupation (for instance US v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975), US v. Banks, 383 F. Supp. 368 (D.S.D. 1974), US v. Jaramillo, 380 F. Supp. 1375 (D. Neb. 1974)). NOTE: NO AUSA is involved in the review of the proposed operation. While 10 USC 371 et seq. has expanded permissible activities, the case law is clear and the burden is still upon the government to prove beyond a reasonable doubt that the military's actions were permissible in order to convict the civilians in a US District Court. No "war on drugs" will be won if the guilty cannot be convicted...

6. Additionally the issue of civil liability and outside scope concerning the tasking on 18Ds was presented. Finally the training concept for the RSU and METL tasks was addressed. Since this was not an emergency situation, in full control of the civilian authorities on civilian lands with expert civilian laboratory "take down teams available and civilian medical facilities presumably within the AOR, this appeared to go beyond the DOD guidance for these missions. I advised against the operation and asked for my return number so JTF-6 legal advisor could contact me.

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7. About 031150 Feb 931 briefed the SJA and CSOL personnel on the context of what was discussed and all agreed that mission as stated was not advisable.

8. About 031332 Feb 93 I received a telephone call from was under the impression that the entire mission was permissible IAW US v. Yunis, 681 F Supp 891 (D.D.C. 1988). [The Yunis case involves the Navy allowing the FBI to use a Naval ship to apprehend a terrorist and addressed whether this was a violation of the Posse Comitatus Act it's not.].

explained that the proposed mission was merely providing expert advice as allowed by 10 USC 373. I tired to explain to the Colonel that the RSU did not have expertise in any of the functions proposed, that this was analogous to the SOT/CQB issue that others (civilians) were available and should be involved. (Note: To my raising the issue of US Attorney involvement,

responded, "that's a BATF problem"

in otherwords, there is

no confirmation of US Attorney involvement). I raised liability issues as well as the Economy Act. I was told in so many words that I was wrong, that the mission was permissible, that the Wounded Knee issue didn't apply (it is raised in Yunis at p. 892] and that I was out to, "undermine" and "undercut JTF's mission. I advised

that with my law enforcement background (over 6 1/2 years as a federal agent and 2 1/2 years with the State of SD] I would do anything legal to facilitate a mission and that I considered his words a personal attack. I was advised that I could take it personally. I again tried to get the Colonel to discuss legal analyses of the mission but either we were preempted or hung up.

10. About 031348 Feb 93 I briefed the SJA and was advised to coordinate with S.TA CINCSOC as well as SJA ASOC. I then attempted to call OSJA USSOCOM who was TAD.

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SJA,

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11. About 031351 Feb 93 I discussed the case with USSOCOM who opined that the facts, as known, presented a problem and that before execution his office at USSOCOM should be informed. It was agreed that this is an operations issue and G-3 should take the lead action with SJA coordination.

12.

About 031359 Feb 93 I discussed the case with ASOC. In going over the facts,

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OSJA offered the opinion that the RSU might go so far as to go over the DLEA plan (e.g. evaluate a 5 paragraph operations order per METL tasking) but the rehearsals probably went too far.

FOR OFFICIAL USE ONLY