There aren’t many circuit court decisions on violations of the Posse Comitatus Act, so the 9th Circuit’s opinion in United States v. Dreyer was bound to catch someone’s attention. Steve Vladick at Just Security explains the PCA:
[A]n 1878 statute that subjects to criminal punishment anyone who, “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.”
In Dreyer, that’s what happened:
At issue in Dreyer are the actions of a civilian agent of the Naval Criminal Investigative Service (NCIS), who, without any specific military trigger or target, began an investigation into online criminal activity by anyone in the state of Washington. (Although the PCA’s plain terms apply only to the Army and Air Force, Department of Defense regulations have long provided that the PCA “is applicable to the Department of the Navy and the Marine Corps as a matter of DoD policy.” And although the government argued in Dreyer that civilian agents of the NCIS aren’t covered by those regulations, the Court of Appeals unanimously disagreed.)
That the NCIS agent was a civilian working for the military gave the court little trouble. What presented a much more significant problem was what to do about it. While it seems obvious to many non-lawyers, the question of remedy is often far more troubling than the question of whether the government violated the law. Indeed, failure to adhere to the requirements of the law is one of the dirty little secrets of criminal law, a reality shrugged off as inconsequential so frequently as to make it amazing that anyone on the government side ever follows the law at all.
At WaPo Conspiracy, Orin Kerr writes that the courts in the heady days of the mid-20th Century saw suppression as a “free-floating” remedy for violations.
First, some history. Back in the the middle of the 20th Century, the federal courts often found ways to impose an exclusionary rule for statutory violations in federal court. For example, in Nardone v. United States, 302 U. S. 379 (1937) (“Nardone I”) and Nardone v. United States, 308 U.S. 338 (1939) (“Nardone II”), the Supreme Court adopted an exclusionary rule for violations of the Communications Act. In McNabb v. United States, 318 U.S. 332 (1943), the Court adopted an exclusionary rule for violations of Rule 5 of the Federal Rules of Criminal Procedure. The Court had a rather free-form approach to the exclusionary rule at the time, in part because suppression was seen as the judiciary’s domain. The federal courts had an inherent power to control evidence in their own cases, so the Court could be creative in fashioning what evidence could come in to deter bad conduct. If the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.
I would add that the remedy of suppression was used because there was no other remedy to deter rampant law enforcement and prosecutorial misconduct that would offer the victim of misconduct any benefit. But then again, I’m inclined to believe that there should be a remedy to the victim of misconduct. Others disagree.
By the 1980s, after [the] Warren Court revolution, the Supreme Court had a different view of the exclusionary rule. The scope of the rule had expanded dramatically when it was incorporated and applied to the states. But as a kind of tradeoff for that expansion, the Court cut back on the free-form approach outside core constitutional violations. The Burger and Rehnquist Courts saw suppression as a doctrine that had to be rooted in deterrence of constitutional violations and not just something that courts didn’t like or found offensive.
Assuming one concluded that a violation of the PCA fell short of a constitutional violation, because the government violating the law carries no due process implications, then the basis for exercise of the exclusionary rule comes into question.
The majority in Dreyer held that the “free-form” use of suppression was warranted by the pervasiveness of the violation:
The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists. . . .
In his partial dissent, Judge O’Scannlain questioned whether such pervasiveness was shown in this case, but more importantly, whether the salutary purpose of the exclusionary rule was worth the cost.
But perhaps most interestingly, Judge O’Scannlain suggested in a footnote that suppression might never be an appropriate remedy for PCA violations, given “(1) the fact that Congress could have provided for exclusion had it thought such a remedy was appropriate; (2) the PCA provides for its own enforcement through criminal sanctions; and (3) ‘the [PCA] expresses a policy that is for the benefit of the people as a whole, but not one that may fairly be characterized as expressly designed to protect the personal rights of defendants.’”
Orin sees the majority on shaky ground, should the case go to the Supreme Court, but if suppression isn’t an available remedy for a flagrant violation of the Posse Comitatus Act, what is?
At a time when the line between military and civilian law enforcement has become increasingly blurred, is this such an outlier situation that it raises no significant issue outside of this particular case? Certainly, the war against terrorism suggests otherwise, as various arms of the government are used interchangeably under the rubric of fighting terrorists to do what would be outrageous if the public cared a little more about civil rights.
More to the point, if there is no remedy for violation of the PCA, does that not provide carte blanche to the government to use military resources with abandon in ordinary law enforcement. After all, if there is no remedy, there is no right. If there is no downside, then why not? If there is no suppression, there is nothing.
H/T Jim Tyre