ABLE DANGER PROBABLY ILLEGAL
In response to hits on me about the Army spying on Americans, here's a couple:
"POSSE COMITATUS ACT" (18 USC 1385): A Reconstruction Era criminal law proscribing use of Army (later, Air Force) to "execute the laws" except where expressly authorized by Constitution or Congress. Limit on use of military for civilian law enforcement also applies to Navy by regulation. Dec '81 additional laws were enacted (codified 10 USC 371-78) clarifying permissible military assistance to civilian law enforcement agencies--including the Coast Guard--especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance (e.g., use of facilities, vessels, aircraft, intelligence, tech aid, surveillance, etc.) while generally prohibiting direct participation of DoD personnel in law enforcement (e.g., search, seizure, and arrests).The late interpretation is
DOD) Prohibits search, seizure, or arrest powers to US military personnel. Amended in 1981 under Public Law 97-86 to permit increased Department of Defense support of drug interdiction and other law enforcement activities. (Title 18, "Use of Army and Air Force as Posse Comitatus" - United States Code, Section 1385)The President can get around this act by specific order. The Army can engage in certain domestic spying when controlled by the FBIThere is also this
Sec. 1385. - Use of Army and Air Force as posse comitatus----Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.So if the president specifically ordered the Able Danger, or the FBI directly authorized it, the activity was not legal. Almost all opinions say that the DoD can only assist local law enforcement.....
3 comments:
Can't see how the op was illiegal. No arrests, etc. The law permits intelligance.
On a higher level, the people in charge are supposed to make these calls on a per case basis, that's why they are there. Upshot: they permitted a terrorist cell to operate for political reasons only.
Xiaoding
I think it in part the legal problem arises because of limitations on information databases held by the government. I will see if I can find some references.
This is complex and would have gone to court. The military can't indulge in law enforcement activities within our borders on its own behalf. Once the information was used a legal challenge could have been mounted against the project. I think that's what the Pentagon feared. Of course, if everyone in the FBI were okay with it, the Pentagon's project wouldn't have become an issue. But top dogs in the DOJ were very, very much opposed to this sort of thing. Gorelik was one of them.
And one of the major questions is whether their actions in compiling the data would have been interpreted as an illegal search. I'm pretty sure it depends on exactly what data was being accessed and compiled. So a discovery order could have been sought to find out just exactly what that was.
That's the point. The data search was clearly a "fishing expedition" and not a search authorized by a judge. The law does allow for certain spying activities by the army, but the FBI must approve. Once the smoke clears on this look for the ACLU
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