The diverse rulings on these challenges raised questions about the legality of much of the military assistance being broadly and regularly provided to law enforcement agencies. The courts in United States v. Banks and United States v. Jaramillo found certain military activities to be in violation of the Posse Comitatus Act, while the court in United States v. Red Feather found the military involvement at Wounded Knee permissible. 142 The Red Feather court determined, that as long as military assistance was passive or indirect, such assistance did not violate the Posse Comitatus Act.143

In order to resolve questions raised by the Wounded Knee cases, and at the urging of the Defense Department and Justice Department, Congress adopted the above distinctions set forth by the Red Feather court 144 and, in 1981, enacted a number of general exceptions to the Posse Comitatus Act.145 In general, the 1981 exceptions authorized the military to make available to civilian law enforcement agencies information collected during military operations, training and advice, the use of military equipment and facilities, and the use of some Defense Department personnel.146 However, direct participation in law enforcement activities like search, seizure and arrest was prohibited. 147

b. The war on drugs

By the mid-1980's, there was little question that the Nation was struggling with a major increase in illegal drug importation and use, and Congress summoned a massive increase of resources to confront this modern scourge. The fiscal year 1989 Department of Defense Authorization Act significantly expanded the role of the National Guard in support of law enforcement agencies. 148 The following year, the role of the military was expanded further in the fiscal year 1990 Department of Defense Authorization Act which "directed the U.S. Armed Forces, to the maximum extent possible, to conduct military training in drug interdiction areas." 149

After Congress and the courts expanded permissible military assistance to civilian law enforcement and the Defense Department assumed the lead in the war on drugs, military assistance to law enforcement greatly increased. This increased use of military personnel is most noticeable with the National Guard because of fewer legal restrictions on its use.

142 Congressional Research Service, supra note 54, at 23 n.63. The court in McArthur ruled that the Posse Comitatus Act is violated only when the civilians are subjected to the direct "regulatory, proscriptive or compulsory" aspect of the military involvement. United States v. McArthur, 419 F.Supp. at 194.

143 Sanchez, supra note 137.

144 Id. at 7 (citing to 10 U.S.C. §371-375, as subsequently amended by Pub. L. No. 100-456, 102 Stat. 117 (1988)).

145 Congressional Research Service, supra note 54, 23. See also Defense Department Authorization Act of 1982 §905, Pub. L. No. 97-86, 95 Stat. 1114, as amended by National Defense Authorization Act Fiscal Year 1989 § 1004, Pub. L. No. 100-456, 102 Stat. 2043 (codified as amended at 10 U.S.C. §377).

148 JTF-6 Operational Support Planning Guide (citing Pub. L. 100-456, 102 Stat. 1218, 2042, codified at 10 ̊U.S.C. § 124 [See Documents produced to the subcommittees by the Department of the Treasury T08786, T08788, at Appendix (hereinafter Treasury Documents]. The Appendix is published separately.] See also 32 U.S.C. § 112 for the National Guard.

149 JTF-6 Operational Support Planning Guide, Treasury Documents T08786, T08788. See

c. The National Guard and the Posse Comitatus Act under current law

The National Guard, for reasons that are at least partially historical, is not subject to the same legal restrictions placed on active duty and reserve military personnel with regard to involvement in civilian law enforcement. 150 Having evolved from the State militia concept, the National Guard holds the unique position as both a State and a national military force. Thus, a National Guard member can wear a U.S. Army or Air Force uniform, fly in a military aircraft, receive Federal military pay and allowances, be covered by the Federal Torts Claims Act and Federal military medical care. Yet, he or she can perform this military service not only as a member of the U.S. Armed Forces, but as a member of the State militia, having a Governor for a Commander-in-Chief rather than the President of the United States.

The ability of the National Guard to perform military service in this capacity exists because the National Guard has three different "statuses" under the law. The first two are a title 32 status (also called "state active duty" status) and a "pure state" status. Under either a title 32 or "pure state" status, National Guard troops are under the command and control of the Governor of their State and the Posse Comitatus Act does not apply. 151 However under current law, while the National Guard is in a title 32 status and under the command and control of the Governor, it is still funded with Federal funds. 152 An example of the National Guard being in a title 32 status is when National Guard personnel are conducting counterdrug operations.

The third National Guard status is called "title 10" or "Federal active duty" status. Title 10 status occurs when Congress or the President takes affirmative action to "federalize" a National Guard unit as in the case of a natural disaster or civilian disturbance. Only in a federalized status are National Guard troops under command and control of the President of the United States. Under this status, the Posse Comitatus Act applies.

Aside from the title 10 status and Wounded Knee cases, the Posse Comitatus Act has been widely interpreted as not applying to the National Guard. Thus under current law, the leading interpretation of the Posse Comitatus Act is that unless otherwise prohibited by policy directive, regulation or State law, the National Guard can participate actively in civilian law enforcement. The National Guard, however, does implement similar proscriptions as the

150 Rich, The National Guard, Drug Interdiction and Counterdrug Activities, and Posse Comitatus: The Meaning and Implications of "in Federal Service," 35 Army Law. 1 (1994). Active and Reserve military personnel are both subject to the proscriptions found in the Posse Comitatus Act, while the Posse Comitatus Act only applies to National Guard personnel when they have been called "into Federal service."

151 During the Waco incident, the National Guard was operating under title 32 or "state active duty" status as it provided assistance to the ATF and FBI. By contrast, the status of the Nebraska and South Dakota National Guard units during the 1973 Wounded Knee incident is unclear, since the courts did not rule on whether the Posse Comitatus Act applied to the National Guard personnel based upon their status. In Jaramillo, the court did not indicate whether or not the National Guard had been "federalized." Similarly, the Red Feather court decided the issue of improper military assistance based on whether the assistance was "active" or "passive,” not on the legal status of the National Guard units.

Posse Comitatus Act by regulation even while in a title 32 status. 153

d. Active duty personnel and the Posse Comitatus Act under current law

Unlike the National Guard, active duty military personnel clearly fall within the proscriptions of the Posse Comitatus Act. Any assistance they provide to civilian law enforcement personnel must be either within a statutory exception or expressly authorized by the U.S. Constitution.

Many of the statutory exceptions to the Posse Comitatus Act have been enacted in the last 15 years and evolved from a desire to support counterdrug efforts. Title 10, U.S. Code, section 371 et seq. outlines the types of routine law enforcement assistance that active duty military personnel may provide. Such assistance, includes equipment, training and advice.

One of the most important issues for a civilian law enforcement agency in deciding whether to seek and accept military assistance, is whether the agency must reimburse the military for the assistance provided. Generally, a civilian law enforcement agency must reimburse the military for the cost of assistance, except under three circumstances. Reimbursement may be waived if the assistance: (1) is provided in the normal course of military training; (2) results in a benefit to the unit providing the support "that is substantially equivalent to that which would otherwise be obtained from military operations or training;" 155 or (3) is for counterdrug operations. 156

154

The counterdrug statutory waiver has come to mean in practice that before a waiver of reimbursement can occur under the counterdrug operation exception, the civilian law enforcement agency must demonstrate the existence of a sufficient "drug nexus" in the investigation. 157 Although there is no defined standard for what constitutes a "drug nexus," it is essentially a quantum of credible evidence that links an otherwise nondrug investigation with the existence, or well-founded belief of the existence, of significant illegal drug crimes.

This waiver for counterdrug operations developed when Congress created a specialized subset of military assistance for counterdrug operations in 1990.158 Military assistance for counterdrug operations provided under this statutory authority is on a nonreimbursable basis, which means civilian law enforcement agencies do not have to reimburse the military for the assistance. Instead, Congress provides a separate fund to the military for this type of assistance. However, these funds must be used solely for military as

153

53 Rich, supra note 150. The National Guard Bureau policy on authorized support to law enforcement currently lists 16 approved counterdrug missions. Any mission outside the parameters of the approved list must receive Department of Defense approval. See also NGB Reg. 500-2 and National Guard Counterdrug Coordinator's Handbook.

154 10 U.S.C. §377.

155 Id.

156 Pub. L. No. 102-190 § 1088, 105 Stat. 1484 (1991). See also Pub. L. No. 101-510 § 1004, 104 Stat. 1629 (1990) and Pub. L. No. 101-189 § 1212, 103 Stat. 1567 (1989).

157 Office of the Department of Defense coordinator for Drug Enforcement Policy and Support Memorandum, Subject: Priorities, Policies, and Procedures for DoD CD Support to Domestic Law Enforcement Agencies, 26 Jan. 95. Defense Documents 109-115, at 111.

sistance to civilian law enforcement agencies for counterdrug operations. Significant portions of military assistance provided to ATF and even the FBI were funded through these counterdrug funds.

A further formalization of the military's increased support to the war on drugs involved the creation of Joint Task Forces 159 between civilian drug law enforcement agencies and the Regular Army. The Defense Department created these Joint Task Forces to increase the coordination between the military and civilian law enforcement agencies and to increase the civilian agencies' accessibility to Regular Army assets for counterdrug operations. For the southwest border region where the ATF investigation of the Davidians took place, Joint Task Force-Six (JTF-6) 160 was responsible for the operational support to ATF by active duty military personnel.

JTF-6's Operational Support Planning Guide, in explaining its support capabilities, states, "No list of military support capabilities is ever all-inclusive. Innovative approaches to providing new and more effective support to law enforcement agencies are constantly sought, and legal and policy barriers to the application of military capabilities are gradually being eliminated." 161 This quote from the JTF-6 Operation Support Planning Guide clearly and succinctly describes the weakening of the Posse Comitatus Act proscriptions since the 1973 Wounded Knee cases. This observation foreshadowed the potential for military involvement that was realized eventually at the 1993 Waco events.

2. INTERSTATE USE OF NATIONAL GUARD BY GOVERNORS

There is a common practice among the States of using National Guard personnel across State lines. 162 States enter into memoranda of agreement with one another which provide for the mutual use of National Guard forces across State lines. However, these agreements raise several legal concerns, particularly when the National Guard personnel are used to assist civilian law enforcement. Although a thorough examination of memoranda of agreement is far beyond the scope of the subcommittees' Waco investigation, the most significant legal issues arising from the use of memoranda of agreement will be highlighted. While the National Guard has attempted to address these legal issues, the Defense Department and the States have failed to adequately address the potential legal problems which memoranda of agreement raise. Two major legal concerns are (1) whether these memoranda of agreement, or other

159 In early 1989, the Defense Department, at the direction of Congress and the President, "tasked four war fighting, regional Commander's in Chief (CINCs) to carry out the drug interdiction mission. The CINC of Atlantic Command (USCINCLANT) created Joint Task Force, JTF4 at the Key West Naval Air Station, Florida. The Pacific Command CINC (USCINCPAC) established JTF-5 at the Alameda Naval Air Station, California. And, the CINC for Continental Defense (USCINCFOR) established JTF-6 at Fort Bliss, Texas." Sanchez, supra note 137, at 17. 160 JTF-6 was created in 1989 to serve as the planning and coordinating (operational) headquarters for military assistance to counterdrug operations of drug law enforcement agencies. JTF-6 is located at El Paso, TX (Fort Bliss), and supports the Federal, State, and local law enforcement agencies within the southwest border region. It's region of responsibility mirrors that of Operation Alliance and includes the States of Texas, New Mexico, Arizona, and Southern California. [JTF-6 Operational Support Planning Guide, Treasury Documents T08786-08789.] As of October 1, 1995, JTF-6's area of responsibility expanded from the southwest border to the entire continental United States, Puerto Rico and the U.S. Virgin Islands.

161 JTF-6 Operational Support Planning Guide, Treasury Documents T08786, 08791 (emphasis added).

162 The interstate use of National Guard personnel occurred at Waco with the use of the Ala

similar agreements between States are either a treaty, an alliance, or confederation in violation of the U.S. Constitution, or at the very least a compact requiring congressional ratification; and (2) whether these memoranda of agreement or similar agreements attempt to supersede State constitutions and statutes without legal authority.

a. States' power to enter memoranda of agreement

Only the Congress 163 and the President (to the extent presently delegated by law) have the power to use military force across State lines. Many argue that any agreement between States to concert their military forces for the use of force for any purpose constitutes a treaty or an alliance. 164 However, the U.S. Constitution specifically prohibits States from entering into treaties in any instance, 165 and into alliances or confederations without congressional consent.166 Applying such an argument would mean that the use of the National Guard for law enforcement purposes across State lines is strictly prohibited by the U.S. Constitution. The National Guard bureau takes the position that such interstate use of force is prohibited, but the contrary opinion is advanced by the Defense Department General Counsel and the Army Staff Judge Advocate. 167 The National Guard bureau further argues, also contrary to the Defense Department General Counsel and the Army Staff Judge Advocate, that even if such agreements among States are not treaties, they are at the very least compacts which require the consent of Congress. 168 If an agreement among States results in a potential encroachment on Federal authority or a tendency to enhance State power, then it would constitute a compact requiring congressional consent. 169 The National Guard bureau argues that these National Guard memoranda of agreement enhance State power by allowing Governors to command militia employed for force across State

163 "The Congress shall have Power. to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions." U.S. Const., art. I, §8, cl. 15. 164 The U.S. Supreme Court, in U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 n.12 (1978) discussed the distinctions between treaties, compacts and mere agreements. "Military alliances" are cited as examples of treaties. The Court quotes Story to the effect that: "Treaties, alliances, and confederations. generally connote military and political accords and are forbidden by the States. Compacts and agreements, such as questions or boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of States bordering each other." 434 U.S. at 464. See also 32 U.S.C. § 109 (b) which infers that States do not have the authority to employ their militia (i.e., the National Guard) outside their boundaries, "Nothing in this title limits the right of a State or Territory to use the National Guard or its defense forces authorized by subsection (c) within its border in time of peace, or prevents it from organizing and maintaining police or constabulary." 165 The treaty-making power is exclusively vested by the Constitution, in the President, with the advice and consent of the Senate. U.S. Const. art. 2, § 2, cl. 1.

166 U.S.C.A. Const., art. I, § 10, cl. 1.

167 National Guard Draft Legal Memorandum, "Cross Border use of National Guard for Law Enforcement: Constitutional Issues and Need for Congressional Ratification of Interstate Agreements" (Received by subcommittees on March 12, 1996).

168 U.S. Const., art. I, § 10, cl. 3. "Not all agreements between states are subject to strictures of this clause; application of this clause is limited to agreements that are directed to the formation of any combination tending to increase the political power in the states and which may encroach on or interfere with the just supremacy of the United States." U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 n.43 (1978) (citing U.S. Const., art. 1, § 10, cl. 3). See also, Virginia v. Tennessee, 148 U.S. 503 (1893).

169 "Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact on federal supremacy. We agree." U.S. Steel Corp. v. Multistate Tax Commission, 434 U.Ŝ. 452, 472 (1978). This is the current position of the National Guard Bureau. However, the position of the Defense Department and the Army SJA is that these agreements violate the Compact Clause of the Constitution only if they actually encroach of Federal power or enhance