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Men in Black
The paramilitarization of our police forces is a threat to all of us, not just the bad guys.

By Diane Celcilia Weber

Over the last 20 years, one direct consequence of the "war on drugs" has been the militarization of civilian American law enforcement. Confusion of police functions with military functions has had dangerous-and all too predictable-results. As the police chief of Albuquerque succinctly told The New York Times in March, "If [cops] have a mind-set that the goal is to take out a citizen, it will happen."

Lest that sound like reckless fear-mongering, remember what did happen when a group of federal law enforcement officers, with the "benefit" of military advice and training, tried to execute a simple arrest and search warrant in Waco, Texas: In the ultimate conflagration, 49 adults and 27 children perished.

The military's heightened involvement in the Waco fiasco was perfectly legal. The stage had been set long before by the actions of elected officials.

Nor was the incident an aberration, except in the ferocity of the pyrotechnics and the number of people killed. Similar scenes-frequently involving SWAT teams-have occurred at the local level. And that should worry all Americans.

Here's how the militarization of law enforcement played out in Waco. On Feb. 28, 1993, the Bureau of Alcohol, Tobacco and Firearms (BATF) assaulted the Branch Davidian compound. The agents who stormed the residence had been trained in military assault tactics by the Green Berets. Although plenty of evidence suggested that a peaceful approach would have worked, the agents fired MP-5 machine guns and tossed percussion grenades.

The Federal Bureau of Investigation, which took over after the botched raid, had likewise received advice, training, and equipment from the military. Behind the scenes, the Army's Delta Force played a key advisory role. In the final April 19 attack, the agents who operated the tanks that inserted CS gas and the Bradley Fighting Vehicles that shot canisters of gas had had military training.

Now here's how the militarization of law enforcement distorts the actions of local police. In April 1996, the 10-member La Plata County, Colo., SWAT team stormed the ranch of Samuel Heflin. The objects of the search warrant were a cowboy hat, a shirt, and a cigarette pack-evidence related to a barroom brawl.

As the team approached the house, they forced down at gunpoint an eight-year-old boy playing basketball and a 14-year-old boy. Sheriff's deputies then followed Heflin's screaming four-year-old daughter into the house with a laser-sighted weapon aimed at her back. Once inside, the SWAT team ordered the family to lie face down. When Heflin asked to see a search warrant, he was told to "shut the f- up."

Last August a federal district judge allowed an excessive-force suit against the SWAT team to proceed.

In a similar military-style overreaction a few years ago, Albuquerque's SWAT team responded to a suicide call by shooting the depressed man, 33-year-old Larry Harper. Harper's worried family had contacted the local police. Nine men dressed in military gear and armed with automatic rifles and stun grenades showed up. SWAT snipers followed Harper to the edge of a park and shot the frightened man from 43 feet away.

After a wrongful-death suit was settled out of court, the city disbanded its SWAT unit and hired a new police chief. According to Sam Walker, a University of Nebraska criminal justice professor hired to investigate the Albuquerque department, "The rate of killings by police was just off the charts." The SWAT team "had an organizational culture . . . that led them to escalate situations upward rather than de-escalating."

WHY NOW?
There have been too many other such cases. Yet violent crime in the United States has declined since 1993. So why is law enforcement pursuing such heavy-handed, military-style tactics?

Civilian police agencies began to establish "special forces" teams to deal with extreme situations in the late 1960s. In 1966, the Los Angeles Police Department created the first Special Weapons and Tactics team, to which they gave the acronym SWAT.

It was not until the 1980s and 1990s, however, that SWAT teams began popping up across the nation. A 1997 study by Peter Kraska and Victor Kappeler of Eastern Kentucky University found that nearly 90 percent of police departments surveyed in cities with populations over 50,000 have paramilitary units, as do 70 percent of those surveyed in communities with populations less than 50,000.

Although they were originally set up to deal with hijackers, hostage-takers, barricaded suspects, and similar emergency situations, today these special forces are deployed three-quarters of the time in "warrant work"-that is, dynamic entries into the residences of drug suspects. In some cases, such as in Fresno, Calif., SWAT units dressed in full military gear are used on routine patrols in neighborhoods known as "war zones."

Trained in military tactics-sometimes alongside special operations units within the military-these paramilitary wings of police departments organize and dress like combat units. A SWAT team has a commander, a tactical team leader, a scout, a sniper, etc. And like military special forces, SWAT teams are elite units distinguished by appearance. Their "battle dress uniform" consists of lace-up combat boots, full body armor, Kevlar helmets, and at times "ninja" hoods to reinforce the impersonality of members.

Most important, the modus operandi of the group is military. According to an article in Police magazine, "A [police] sniper must take, understand and obey orders without questioning why."

What Professor Kraska has called the "militarization of Mayberry" happened as a series of congressional and executive initiatives drew the military further and further into the drug prohibition effort. In 1981, a bipartisan Congress ended the traditional separation of the military and civilian law enforcement established by the 1878 Posse Comitatus Act. The Military Cooperation with Law Enforcement Officials Act created a drug exception to the 1878 statute and encouraged the military to supply intelligence, equipment, and training to civilian police.

Five years later, President Ronald Reagan declared drugs to be an official threat to "national security." And in 1987, Congress set up an administrative office, with a special 800 number, to ensure that civilian police were taking advantage of the military hardware available.

In 1989, President George Bush established six regional joint task forces (JTFs) within the Defense Department to coordinate the activities of the military and police agencies in the drug war. The JTFs are called on by civilian police when military help is needed in drug cases. (The BATF and FBI relied on JTF-6 for help in the Waco assaults.)

'WAR IN THE STREETS'
Finally, in 1994, the departments of Defense and Justice signed a Memorandum of Understanding that enables the military to transfer wartime technology to local police departments for peacetime use-in American neighborhoods, against American citizens. Between 1995 and 1997, the Defense Department gave police 1.2 million pieces of hardware. The LAPD alone received 73 grenade launchers, 112 armored personnel carriers, and 600 M-16 automatic rifles. On the Jasper, Fla., (pop. 2,000) police department, the Pentagon bestowed 23 helicopters, two C-12 aircraft, seven M-16s, an armored personnel carrier, and a bomb robot-a total of $900 million worth of equipment.

Stressing the military mind-set required of police in fighting the drug war, Attorney General Janet Reno said to a group of defense and intelligence experts in 1994: "So let me welcome you to the kind of war our police fight every day. And let me challenge you to turn your skills that served us so well in the Cold War to helping us with the war we're now fighting daily in the streets of our towns and cities."

When the government embraced this military solution to what is basically a social problem, it entered uncharted territory. The current overlap between civilian and military functions flies in the face of the history of English common law and American constitutional jurisprudence.

Common law in 13th century England distinguished between the armed force that defended the realm against foreign enemies and the armed force responsible for keeping the king's peace among the king's subjects. Although the two forces came from the same body, the latter army was bound by the rules of the king's ordinary courts of common law.

That tradition stood five centuries later when William Blackstone, the great 18th century legal writer, explained in Book I of Commentaries on the Laws of England (1765) that the rule of martial law was disallowed as long as courts were functioning, and that any soldier who killed a person during peacetime, even on military orders, was liable for his actions.

American colonists understood this principle well. In the Declaration of Independence, they railed against King George and Parliament for using royal troops to enforce unpopular laws and for granting civil immunity to British soldiers.

The Revolutionary War left Americans with a distaste for standing armies, including their own. The Founders inserted safeguards into the Constitution to ensure that the civilian powers of the new republic would remain distinct from and superior to the military. The powers to declare war and to wage war were assigned to two separate branches of government, and the Second Amendment gave armed power to the body of citizenry, designated the "militia."

Apparently heedless of these centuries of collective wisdom, many modern American politicians see no danger in mixing military and civilian law enforcement. But they are wrong.

The blending of military and civilian law enforcement is dangerous because the mind-set of the police officer is not-and should not-be that of the warrior. The job of the police is to apprehend a suspect-nearly always, a fellow American citizen-while adhering to constitutional procedures. The officer is expected to use minimum force and to turn that suspect over to a court of law.

A soldier, however, is an instrument of war, and war is the use of unrestrained force against an enemy to achieve a given objective, often by inflicting maximum damage. As Gen. Stephen Olmstead observed, a soldier with a machine gun doesn't worry about Miranda rights.

Our democratic government has the power to reverse this ominous trend. Congress should eliminate the drug war exception to the Posse Comitatus Act, and clarify that the military's mission is to defend the nation against foreign aggressors. The joint task forces should be abolished, and police agencies-federal, state, and local-should be required to return military hardware-especially automatic weapons-or destroy it. The departments of Defense and Justice should end their partnership in technology.

Looking at the larger picture, we need to reconsider whether the nation's drug problem is so dire that we're willing, in the words of Benjamin Franklin, to "give up essential liberty to obtain a little temporary safety." Do we really want police turned into soldiers, neighborhoods turned into war zones, and citizens turned into enemies? Perhaps redefining drugs as a public health problem, instead of a law enforcement problem, might be a first step back from the overkill.

Diane Cecilia Weber is a Virginia writer on criminal justice and Second Amendment issues. This article has been adapted from a longer paper published by the Cato Institute, "Warrior Cops: The Ominous Growth of Paramilitarism in American Police Departments."

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Page Updated Mon Nov 8, 1999 3:00am EST