Military Firearms in Ferguson and Beyond: Arms Transfers to Civilian Law Enforcement Under the ’1033 Program’

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law in Naples, Florida, discusses the Department of Defense Excess Property Program—commonly known as the ’1033 Program’—under scrutiny for the recent events in Ferguson, Missouri and concludes that this will result in stricter delineations concerning military cooperation than ever before…

 

Last year, JURIST highlighted the notable subject of the Defense Support for Civil Authorities [PDF], in the context of man-made and natural disasters. A variety of historic laws and policies are the foundations for providing defense support to civilian authorities. One law garnering very little public scrutiny before the Fall of 2014—but tremendous media coverage since—is the Department of Defense Excess Property Program, commonly referred to as the ’1033 Program.’ The ’1033 Program’ is primarily oriented towards counter-drug activities, but sometimes leads to very different capabilities and employments.

Section 1208 of The National Defense Authorization Act for Fiscal Year 1990, allowed the Secretary of Defense to:

[T]ransfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is– (A) suitable for use by such agencies in counter-drug activities; and (B) excess to the needs of the Department of Defense.”

The law further provided that:

2) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy.
(b) Conditions for Transfer-The Secretary of Defense may transfer personal property under this section only if-
(1) the property is drawn from existing stocks of the Department of Defense;
(2) the recipient accepts the property on an as-is, where-is basis;
(3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and
(4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient.

In 1996, Congress replaced Section 1208 with Section 1033 that subsequently became Section 2576a, yet is still colloquially called the ’1033 Program’ through the present.

The Defense Logistics Agency (DLA) notes that “[s]ince its inception, the ’1033 Program’ has transferred more than $5.1 billion worth of property. In 2013 alone, $449,309,003.71 worth of property was transferred to law enforcement.” As part of its outreach to civilian agencies, the DLA predicted that, “[i]f your law enforcement agency chooses to participate, it may become one of the more than 8,000 participating agencies to increase its capabilities, expand its patrol coverage, reduce response times and save the American taxpayer’s investment.

Critics of the program, such as the ACLU, have remarked that “a disturbing range of military gear [is] being transferred to civilian police departments nationwide” and allege that “one-third of all war materiel parceled out to state, local and tribal police agencies is brand new.”

Accountability problems are also surfacing as 184 state and local police agencies have been reportedly suspended from participating in the Pentagon’s ’1033 Program’ for losing weapons or failing to comply with other stipulations. Notably, on August 26th the nationally-known sheriff of Maricopa County, Joe Arpaio, admitted that his department had been suspended from the program and is currently missing nine firearms—eight .45-caliber pistols and one M-16 rifle—issued to the agency out of 200 weapons from the surplus program. Twenty to 22 of the weapons vanished over the years, but roughly half were recovered from retired or current deputies who, incredibly, took them home. Under the ’1033 Program,’ the Maricopa County Sheriff’s Office amassed an arsenal of “a Hummer, a tank, 90 M-16 rifles, 116 .45-caliber pistols, 34 M-14 rifles and three helicopters.”

This ’1033 Program,’ coupled with National Guard troops deployment to Ferguson, Missouri, became the subject of critical medial focus in August 2014. Following the police shooting of the teenager Mike Brown, the Ferguson Police Department responded to protests and riots with a robust show of force, using gear that one media outlet documented as not obtained through the ’1033 Program’, yet others speculated to the contrary.

In response to calls for a ‘demilitarization’ of civilian police forces, Attorney General Eric H. Holder Jr. said “[a]t a time when we must seek to rebuild trust between law enforcement and the local community…I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message.”

On Friday, August 15th, Senate Armed Services Chair Carl Levin (D-MI) called for a review of the so-called ’1033 Program,’ saying:

Congress established this program out of real concern that local law enforcement agencies were literally outgunned by drug criminals. We intended this equipment to keep police officers and their communities safe from heavily armed drug gangs and terrorist incidents. Before the defense authorization bill comes to the Senate floor, we will review this program to determine if equipment provided by the Defense Department is being used as intended.

Missouri Democratic Senator Claire McCaskill, the chairman of the Subcommittee on Financial & Contracting Oversight, also announced she will lead a hearing, observing that:

We need to de-militarize this situation—this kind of response by the police has become the problem instead of the solution. I obviously respect law enforcement’s work to provide public safety, but my constituents are allowed to have peaceful protests and the police need to respect that right and protect that right. Today is going to be a new start, we can and need to do better.

Shortly thereafter, President Obama ordered a “comprehensive review of the government’s decade-old strategy of outfitting local police departments with military-grade body armor, mine-resistant trucks, silencers and automatic rifles,” according to media interviews of senior officials.

Early on August 21st, Missouri Governor Jay Nixon announced that the National Guard—which was brought in to provide security for the police command center—would be withdrawn from Ferguson; this withdrawal began the next day, some five days after being dispatched to help “quell the unrest” and four days before the burial of Michael Brown.

These recent developments—along with Congressional review of the surplus Department of Defense military equipment program—will lead to even stricter delineations than ever before regarding military cooperation with civil authorities, while still focusing on preparation, partnerships and vigilance.

Kevin Govern is an associate professor at Ave Maria School of Law in Naples, Florida where he teaches military law, national security law, administrative law, directed research and contracts I and II. Professor Govern began his legal career as an Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. In addition to currently teaching at Ave Maria School of Law he has also served as an Assistant Professor of Law at the United States Military Academy and teaches at California University of Pennsylvania and John Jay College. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the US Government, Department of Defense, or Ave Maria School of Law.

Suggested Citation: Kevin Govern, Military Firearms in Ferguson and Beyond: Arms Transfers to Civilian Law Enforcement Under The 1033 Program, JURIST – Forum, Sept. 3, 2014, http://jurist.org/forum/2014/09/kevin-govern-military-transfers.php

The Ethics of Autonomous Weapons Systems

Center for Ethics and the Rule of Law

Upcoming Events

November 21-22, 2014

The Ethics of Autonomous Weapons Systems

imageAutonomous Weapons Systems (AWS) are defined by the U.S. Department of Defense as “a weapon system(s) that, once activated, can select and engage targets without further intervention by a human operator.” Since the crucial distinguishing mark of human reasoning is the capacity to set ends and goals, the AWS suggests for the first time the possibility of eliminating the human operator from the battlefield. The development of AWS technology on a broad scale, therefore, represents the potential for a transformation in the structure of war that is qualitatively different from previous military technological innovations.

The idea of fully autonomous weapons systems raises a host of intersecting philosophical and psychological issues, as well as unique legal challenges. For example, it sharply raises the question of whether moral decision-making by human beings involves an intuitive, non-algorithmic capacity that is not likely to be captured by even the most sophisticated of computers?  Is this intuitive moral perceptiveness on the part of human beings ethically desirable? Does the legitimate exercise of deadly force should always require a “meaningful human control?” Should the very definition of AWS focus on the system’s capabilities for autonomous target selection and engagement, or on the human operator’s use of such capabilities?  Who, if anyone, should bear the legal liability for decisions the AWS makes?  The purpose of this conference is to address such questions by bringing together distinguished scholars and practitioners from various fields, to engage in constructive discussion and exploration of the moral and legal challenges posed by Autonomous Weapons Systems.

View Details 

Reinforcing the Rule of Law and Human Rights in Mexico Through U.S. Special Operations Forces Missions

Reinforcing the Rule of Law and Human Rights in Mexico Through U.S. Special Operations Forces Missions

Abstract:
This article will assess the roles and responsibilities of Special Operations Forces (SOF) within Mexico, as an active proponent of a so-called smart power national security strategy. In particular, it will outline the economic, political, and military challenges faced in Mexico, and specifically how and why SOF, under the new Special Operations Command Northern Command (SOCNORTH), should become the U.S. force of choice for promoting the rule of law and human rights in Mexico. With the goals of the U.S. military in mind, questions will necessarily arise as to what success looks like for both the United States and Mexico and the roles of each in joint and combined civil-military initiatives. Concluding comments reflect on how these forces must model what right looks like, and the imperative that SOF operations in Mexico meet legal and doctrinal criteria for successful mission accomplishment.

SOCNORTH Assumption of Command Nov. 5, 2013

Military Legitimacy Review Award 2014 Announcement

JAG CA Crests Long BarMILITARY LEGITIMACY REVIEW AWARD 2014 ANNOUNCEMENT

The Military Legitimacy Review (MLR) is pleased to announce that the Barnes Wall Foundation of South Carolina, after careful consideration and deliberation, has selected for its 2014 Military Legitimacy Review Award University of Pennsylvania Law School (UPenn Law) Class of 2015 Juris Doctor Candidate Jon Todd’s work entitled:

Rewriting the AUMF – Bringing Guidance to Executive Decisions on Combatancy and Returning the U.S to the Path of the War Convention

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The Barnes Wall Foundation, through the efforts of the MLR and also from recommendations of service academy, university and law faculty professors, sought nominations for this award amongst many deserving student-candidates. Mister Todd was a scholar examining Just War Theory at UPenn Law when he completed this superb and presciently timely work regarding the Authorization for Use of Military Force (AUMF) from the perspectives of expanded understanding of combatancy in international law and a respect for the longstanding principle of distinction.

The award includes publication in MLR as well as a monetary prize ($500.00).

This award is not intended to recognize a paper for academic credit in an independent study, but an award for the best paper in a class or group of 3 or more. The topic and paper should relate to legal and moral issues in military operations and/or strategy (e.g. democracy, human rights and the rule of law, and religion/cultural issues), with the winning paper being posted with the author’s permission on the Military Legitimacy Review (MLR) website at http:// militarylegitimacyreview.com/

With this award a new cycle for 2015 begins, with submissions solicited for the next year’s competition encouraged and accepted through April 7th, 2015. For additional details please contact the Editor in Chief of the MLR, Professor of Law Kevin Govern, via info@ militarylegitimacyreview.com and / or khgovern@avemarialaw.edu for additional details.

 

 

Military Scholarship Award 2014 Announcement

JAG CA Crests Long BarMILITARY SCHOLARSHIP AWARD 2014 ANNOUNCEMENT

The Military Legitimacy Review (MLR) is pleased to announce that the Barnes Wall Foundation of South Carolina, after careful consideration and deliberation, has selected for its 2014 Military Scholarship award United States Military Academy (USMA) Class of 2016 Cadet Anna L. Gulbis’ work entitled:

THE INEFFECTIVENESS OF ARMED HUMANITARIAN INTERVENTION AND THE NEED FOR REFORM OF GLOBAL POLITICS TO PREVENT HUMAN RIGHTS VIOLATIONSWest-Point-Logo

The Barnes Wall Foundation, through the efforts of the MLR and also from recommendations of service academy, university and law faculty professors, sought nominations for this award amongst many deserving student-candidates. Cadet Gulbis was a scholar examining Special Topics In Just War Theory at USMA when she completed this superb and presciently timely work regarding armed humanitarian intervention and the principle of the Responsibility to Protect from the perspectives of United States national security.

The award includes publication in MLR as well as a monetary prize ($250.00) given in this inaugural year of competition for military scholars and those pursuing a career in uniformed service for having written the best paper on a topic related to military legitimacy.

This award is not intended to recognize a paper for academic credit in an independent study, but an award for the best paper in a class or group of 3 or more. The topic and paper should relate to legal and moral issues in military operations and/or strategy (e.g. democracy, human rights and the rule of law, and religion/cultural issues), with the winning paper being posted with the author’s permission on the Military Legitimacy Review (MLR) website at http:// militarylegitimacyreview.com/

With this award a new cycle for 2015 begins, with submissions solicited for the next year’s competition encouraged and accepted through April 7th, 2015. For additional details please contact the Editor in Chief of the MLR, Professor of Law Kevin Govern, via info@ militarylegitimacyreview.com and / or khgovern@avemarialaw.edu for additional details.

Civil Affairs: The Army’s hottest job is hiring now

logo_armytimesARMY TIMES
Civil Affairs: The Army’s hottest job is hiring now
Jun. 1, 2014 – 06:00AM

 bilde
1st Lt. Benjamin Riley, right, a civil affairs officer, meets a villager during a patrol to the Arghandab River, Afghanistan. The Army is looking to bolster its civil affairs ranks. (Senior Airman Grovert Fuentes-Contreras / Air Force)

 

By Joe Gould
Staff writer
Related Links

·         Switching to Civil Affairs brings fast promotion, big bucks

FORT BRAGG, N.C. — The Army is looking to bolster its cadre of “warrior diplomats” by adding hundreds of enlisted soldiers and officers. To entice applicants, the service is touting big bonuses, instant promotions, high job satisfaction and assignments all over the world.

Combined, these perks arguably make Civil Affairs the hottest job in the Army today and one that will set you up for a long career in uniform.

Although the active force continues to shed thousands of soldiers, Civil Affairs estimates adding nearly 250 enlisted and 150 officers annually over the next several years.

“We are looking for people who are intelligent, have high physical fitness and endurance, strong character, good interpersonal skills,” said Civil Affairs branch commandant Col. James Wolff. “We’re not an ‘engage from 2,000 meters’ unit, we’re face to face.”

Active-duty Civil Affairs troops are conducting peacetime operations in more than 40 countries. In small, four-person civil affairs teams — made up of a captain and three noncommissioned officers — they work with civilian agencies and organizations in a low-profile way, leveraging soft power to quietly strengthen and stabilize friendly governments, while fending off destabilizing groups.

You may find yourself building cyclone shelters in Bangladesh, teaching civil-military operations in Africa, supporting military field clinics in the Philippines, supporting security operations in Colombia, or assisting the country of Georgia as it builds a Walter Reed-style amputee care program for vets.

For qualified candidates, Civil Affairs’ growth over the last decade equals opportunity. The demand for Civil Affairs NCOs is so high the Army is offering bonuses of more than $70,000 for mid-grade as well as retirement-eligible NCOs. Language proficiency can significantly increase a soldier’s re-enlistment bonus and mean up to $400 per month in language pay.

Growth has fueled high promotion rates, meaning Civil Affairs must continuously replenish the ranks of its NCOs.

“We have one of the highest promotion rates in the Army for our NCOs, and our officers remain above the Army average,” Wolff said.

Civil Affairs has only existed as a branch since 2007, growing from a functional area into a military occupational specialty (38B) and an active-duty regiment with two brigades. The 95th Civil Affairs Brigade (Airborne) under Army Special Operations Command, and the 85th Civil Affairs Brigade under Army Forces Command each supply five regionally aligned battalions.

While the Reserve component continues to play a pivotal role, the active component’s share of Civil Affairs troops has grown from four percent to 30 percent over the last decade or so. With two wars raging, the high op tempo required Civil Affairs to expand and the active component to absorb more of the mission from the Reserve — which at one point transformed field artillery units into Civil Affairs.

“The Reserve component was hit hard by two wars going at the same time, and … a lot of reservists went back again and again and again,” Wolff said. “We’re really rebuilding our force structure to meet the demands of the nation.”

More than money and promotion potential, civil affairs leaders say the unique mission is the most compelling reason to join. In civilian clothes and with their weapons holstered, teams can deploy anywhere in the world for four- to eight-month missions. Within 24 hours of the 2010 Haitian earthquake, the 95th Civil Affairs Brigade (Airborne) sent in five teams from across U.S. Southern Command.

“My medic in the 95th delivered two babies in Haiti, so it’s incredibly rich as far as operational experiences go,” said Capt. John Toll, who supervises civil affairs assessment and selection.

According to Wolff, it has the highest retention rates and one of the lowest officer loss rates of any career field.

“When people get here and do the job, they love it,” he said.

Inside civil affairs

The teams are made up of regional experts with the autonomy to create their own operational plans based on broad strategic guidance from the Defense Department, an ambassador and the Army.

“Nowhere else in the world does an O-4 talk directly to a one-star or two-star, or to an ambassador; neither does an E-7 or a captain,” said Maj. Virgil Dwyer, operations chief for the 92nd Civil Affairs Battalion.

For Sgt. 1st Class James Lunn’s team, civil affairs meant assessing the needs of the Zaatari refugee camp near the Syrian border in Jordan in 2012. As part of a coordinated multinational effort, his team provided the camp with 5,000 tons of gravel. Modest by design, the project was a foot in the door to later establish schools and a relationship with the camp’s food distribution program.

“The effect we’re trying to achieve is to help the Jordan government, to show it’s capable of working with the international community to help the Syrian people,” said Lunn, a team sergeant with Delta Company, 96th Civil Affairs Battalion, 95th Civil Affairs Brigade. “The challenge is finding your niche. Everyone is asking, ‘What can you do?’ and we’re representing U.S. interests.”

Teams can work alongside their special operations brethren, conventional units or partner-nation militaries, providing populationcentric, non-lethal capabilities as part of a “holistic SOF approach,” according to Maj. Patrick Blankenship, executive officer for the 96th Civil Affairs Battalion. A civil affairs team analyzes the roots of instability in a given region or country, identifying civil vulnerabilities a potential enemy could exploit.

Working with a U.S. ambassador-led country team, a team could be working with the State Department, the U.S. Agency for International Development, the Drug Enforcement Agency, the Department of Homeland Security, or the FBI as well as any number of local or international organizations — quietly, more often than not.

Each region varies by political climate, the terms under which the Army operates with the host government and what funding is available.

“A lot of those organizations really don’t want to be seen as working with the [U.S.] military, so there is also a coordination you’ve got to be able to do without tainting how they’re seen, of not being a tool of the U.S. government,” according to Wolff, the Civil Affairs branch commandant.

Soldiers must also be careful not to overshadow the host government, but help it foster a bond with its people.

“To have that balance between assisting someone with their issue and not solve it for them, the teams have to be very candid and very careful,” said Dwyer, of the 92nd Civil Affairs Battalion. “We want to do as much as we can and not do it for for them.”

Civil affairs troops, through their ground-level interactions and understanding of local cultures and the people, are able to glean a sense of local dynamics. In the Zaatri refugee camp, for example, they were able to get a sense of whether Syrian refugees planned to return if Syrian president Bashar Assad’s government was overthrown.

“Who better to shed light on that common operating picture than a civil affairs soldier who ate from that market, who buys their groceries from that market, that has friends they deal with in that market or that village all the time,” Dwyer said. “The people in those places are key to our ability to operate and do what we’re able to do. We look for influencers in those communities. If I need to change something, who better to know how to impact it and who I have to talk to.”

Civil affairs troops have increasingly gone to Africa and the Pacific on counter-terror missions. Soldiers have served in West Africa, in hotbeds of insurgent activity and also trained local forces in East Africa, where the al-Shabab militant group has launched terror attacks.

Civil affairs leaders acknowledged that hard power has its limits.

“We realized in SOF as a whole that bad guys are like gremlins; you keep killing them and they keep popping up,” said Brandon Swygert, operations sergeant major for the 92nd Civil Affairs Battalion. “How do we affect through relationships, communities surrounding those bad guys and governments surrounding those bad guys so they are non-supportive to insurgents?”

Inside assessment and selection

On April 23, 1st Lt. Josh Jenks and his teammate tentatively entered the mock clinic at Bragg’s “Freedom Village” to engage with the nurse running it, first establishing rapport with her by sitting, laying down their weapons and asking about her needs.

But when Jenks asked whether the nurse was married, it sounded like a misstep. “That’s a really personal question,” the role player said.

This was the fifth day of Civil Affairs’ tough 10-day assessment and selection process. Civil Affairs looks at about 700 candidates each year to compete in the assessment — only about 62 percent make the cut and go on to the yearlong qualification course and foreign language course.

On this particular mission, 15 small teams were to engage “officials and influencers,” assess the village’s needs and devise a plan. The scenario was filled with figurative landmines and pitfalls, and mysteries.

What’s causing the tuberculosis outbreak? Why does the police chief need dozens of guns when he insists there’s no security problem? Who are the gangs menacing the village? Does the American presence help or increase the threat?

“The answers are there; it’s whether they’re able to retain them and come together to form a plan as a team,” said Toll, who supervises assessment and selection.

Observers assess whether candidates get rattled and acquiesce in a meeting. Are they carefully considering who they help and what the ripple effects may be?

“One of the pitfalls is someone asks for a generator, these guys give them a generator: check,” Toll said. “But what does it do if you give them a generator? Are we giving them fuel and spare parts? What happens when we leave in nine months? Are we creating more problems?”

The mission is all about stability, not taking credit, and not necessarily about helping people.

“Uncle Sam doesn’t have friends or enemies, Uncle Sam has interests,” Toll said. “Sometimes we help people, and man, that feels good, but we don’t go places to help kids; we go there because Uncle Sam says there’s a national security requirement.”

The course involves a combination of daunting physical and cognitive challenges, most with little sleep. Outside of the real-world scenarios, candidates are running and rucking. On the fifth day, candidates build an apparatus out of scrap parts that must carry several hundred pounds, an analogue for the complex problems civil affairs troops face with limited resources.

“At some point in the course, the apparatus will fail,” Toll said. “Seeing how they push through that, whether or not they can persevere, is really what we’re looking for.”

As in the field, sometimes there’s no way to “win” a scenario, and candidates overly fixated on a successful meeting may get rattled.

“Sometimes you’re going to go into a meeting and it’s not going to be friendly,” said Maj. Stephen Ward, of Echo Company, 96th Civil Affairs Battalion. “Are you going to plow through and risk burning a relationship? Sometimes the only thing you can do is set a time for the next meeting, and that’s success.”

It’s not a ‘full-on smash’

Though Civil Affairs is open to all MOSs, operational experience in combat arms or combat support helps. The majority of candidates tend to be infantrymen.

“A lot of guys come over here because they realize you don’t have to pull a trigger to win a war, that sometimes moving at a 45-degree angle instead of a full-on smash is the answer,” Toll said. “If you’re an 11B [infantryman] who goes to his gun every time, you’re not going to make it here.”

Civil Affairs wants well-rounded candidates, so a “physical stud” or a “rocket scientist” might not make it, Wolff said. Adaptability, capability, perseverance, courage, professionalism, charisma and the ability to work on a team are all desired qualities.

“The ones coming over simply for the promotion rates don’t make it past [assessment and selection],” Toll said.

According to Swygert, a former commander of the selection and assessment detachment now with 92nd Civil Affairs Battalion, the process targets whether a soldier is psychologically ready for civil affairs. What decision might a soldier make when his commander is 2,000 miles away?

“I can’t train initiative, I can’t train morality,” Swygert said. “I’ve got to see in their character, when they come into the pipeline, are they able to make the right decisions. If I go to a country and … compromise myself personally, it might have strategic consequences for the U.S. government.”

Those who can thrive under the pressure and independence will reap the rewards of a long, fulfilling career.

“The development opportunities far outweigh anywhere I’ve ever been in the military,” Dwyer said

Thank You For Barnes-Wall Award Nominations

The Barnes-Wall Foundation of South Carolina thanks the many who submitted nominations for the following award to a deserving student:

The foundation will consider providing an award ($500.00) to the best paper on a topic related to military legitimacy.

The award is not intended to recognize a paper for academic credit in an independent study, but an award for the best paper in a class or group of 3 or more. The topic and paper should relate to legal and moral issues in military operations and/or strategy (e.g. democracy, human rights and the rule of law, and religion/cultural issues), with the winning paper being posted (with a non-exclusive right of publication, rights reserved by author) with the author’s permission on the Military Legitimacy Review (MLR) website at http://militarylegitimacyreview.com

Award and publication decisions should be announced over the Summer of 2014.