When the Military Serves as Police

From Campaign for Liberty by Jacob Hornberger

What happens when the military is used in a police capacity? You get a "war on terrorism," one in which people think that the laws of war now apply to the situation. But in actuality, nothing could be further from the truth. What you actually get is a criminal-justice problem that inevitably goes horribly awry, causing the problem to escalate into a deadly and destructive horror story.

Consider the war on drugs. Most everyone concedes that drug dealing and drug possession are federal criminal offenses. Drug offenses are listed as crimes in the U.S. Code. People who are caught violating them are arrested, indicted by a federal grand jury, and prosecuted in U.S. District Court. The Bill of Rights requires the government to accord drug defendants all the rights and guarantees of the Bill of Rights, including trial by jury and due process of law. Incompetent, irrelevant, and illegally acquired evidence is excluded from the trial. The defendant is presumed innocent and must be found not guilty unless the government provides sufficient evidence to convince the jury that the defendant is guilty. Cruel and unusual punishments are prohibited. The defendant has the right to remain completely silent, before, during, and after the proceeding.

Now, consider the following scenario. In a concerted effort, a couple thousand members of powerful Latin American drug cartels cross the Mexican border into the United States. Employing automatic weapons, bombs, and grenades, they begin killing DEA agents, federal judges, and local cops and blowing up federal buildings in retaliation for U.S. military actions against drug cartels in Colombia and DEA actions in Mexico. The drug gangsters slip back into the populace, only to engage in more assaults in the following weeks.

The local cops take on the drug gangs, but they are clearly outgunned. The state governors ask the president to send the U.S. military to help them out. The president persuades Congress to suspend the posse comitatus law, and he reassigns U.S. military forces fighting the drug war in Colombia to the U.S. southern border.

Question: Does the military's participation in the drug war automatically change the drug war into a real war, like World Wars I and II and the Vietnam War?

Answer: No. The matter continues to remain one of criminal-justice. The gangsters are violating laws against murder, mayhem, drug dealing, illegal entry, and no doubt dozens of other criminal laws on the books. But the fact that the military is being employed to assist the police doesn't mean that the matter is now governed by the laws of war. The gangsters do not become enemy combatants. They remain criminal suspects.
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