How Police Became Soldiers – A Fifty Year History

Originally Published at Motherboard. March 4, 2013

In 2007, journalist Radley Balko told a House subcommittee that one criminologist detected a 1,500% increase in the use of SWAT teams over the last two decades. That’s reflective of a larger trend, fueled by the wars on drugs and terror, of police forces becoming heavily militarized.

Balko, an investigative reporter for the Huffington Post and author of the definitive report on paramilitary policing in the United States, has a forthcoming book on the topic, Rise of the Warrior Cop: The Militarization of America’s Police Forces. He was kind enough to answer some questions about how our police turned into soldiers as well as the challenges of large-scale reform.

There’s certainly a lot of overlap between the war on drugs and police militarization. But if we go back to the late 1960s and early 1970s, there were two trends developing simultaneously. The first was the development and spread of SWAT teams. Darryl Gates started the first SWAT team in L.A. in 1969. By 1975, there were 500 of them across the country. They were largely a reaction to riots, violent protest groups like the Black Panthers and Symbionese Liberation Army, and a couple mass shooting incidents, like the Texas clock tower massacre in 1966.

At the same time, Nixon was declaring an “all-out war on drugs.” He was pushing policies like the no-knock raid, dehumanizing drug users and dealers, and sending federal agents to storm private homes on raids that were really more about headlines and photo-ops than diminishing the supply of illicit drugs.

But for the first decade or so after Gates invented them, SWAT teams were largely only used in emergency situations. There usually needed to be an immediate, deadly threat to send the SWAT guys. It wasn’t until the early 1980s under Reagan that the two trends converged, and we started to see SWAT teams used on an almost daily basis — mostly to serve drug warrants.

I actually think that the Occupy protests gave the broader militarization issue more attention than it’s had in a very long time. For 25 years, the primary “beneficiaries” of police militarization have been poor people in high-crime areas — people who generally haven’t had the power or platform to speak up. The Occupy protesters were largely affluent, white, and deft at using cell phones and social media to document and publicize incidents of excessive force.

We’re also seeing interest in this issue from new quarters as SWAT teams have fallen victim to mission creep in recent years and begun raiding poker games, bars, and even people suspected of white collar crimes. So far, the only state that has passed any meaningful reform legislation in reaction to a SWAT raid gone wrong is Maryland, which passed a transparency bill after the mistaken raid on Berwyn Heights Mayor Cheye Calvo.

I suppose that may be the “it needs to get worse before it will get better” good news, here. As governments at all levels continue to expand the list of crimes for which they’re willing to send the SWAT team, we’ll inevitably see these tactics used against more people with more clout and stature to push for reform. It’s an unfortunate bit of realpolitik, but it’s undoubtedly true.

I think part of the reason is that it has happened gradually. We got here by way of a number of political decisions and policies passed over 40 years. There was never a single law or policy that militarized our police departments — so there was never really a public debate over whether this was a good or bad thing.

But there were other contributors. For about a generation, politicians from both parties were tripping over themselves to see who could come up with the tougher anti-crime policies. We’re finally seeing some push-back on issues like incarceration, the drug war, and over-criminalization. But not on police. No politician wants to look anti-cop. Conservatives want to look tough on crime. Liberals love to throw money at police departments. So for now, rolling back police militarization is still a non-starter in Congress and state legislatures.

The other problem is that political factions decry police militarization when it’s used against them, but tend to fall somewhere between indifferent and gleeful when it’s used against people they don’t like. Conservatives, remember, were furious over Waco, Ruby Ridge, and a host of BATF abuses against gun owners in the 1990s — and rightly so. Liberals mocked them for it.

Liberals were furious at the aggressive response to the occupy protests — and rightly so. And conservatives mocked them. Liberals are rightly angry about militarized immigration raids — conservatives don’t much care. Conservatives were mad about the heavy-handed raid on the Gibson Guitar factory. Liberals blew it off. Just a few weeks ago, Rachel Maddow resurrected the Ruby Ridge and Waco incidents in a segment about gun control — and was dismissive of people who thought the government’s actions were excessive. Of course, Maddow was also fuming about the treatment of Occupy protesters.

Until partisans are willing to denounce excessive force when it’s used against people whose politics offend them — or at least refrain from endorsing it — it’s hard to see how there will ever be a consensus for reform.

It really just accelerated a process that had already been in motion for 20 years. The main effect of 9/11 on domestic policing is the DHS grant program, which writes huge checks to local police departments across the country to purchase machine guns, helicopters, tanks, and armored personnel carriers. The Pentagon had already been giving away the same weapons and equipment for about a decade, but the DHS grants make that program look tiny.

But probably of more concern is the ancillary effect of those grants. DHS grants are lucrative enough that many defense contractors are now turning their attention to police agencies — and some companies have sprung up solely to sell military-grade weaponry to police agencies who get those grants. That means we’re now building a new industry whose sole function is to militarize domestic police departments. Which means it won’t be long before we see pro-militarization lobbying and pressure groups with lots of (taxpayer) money to spend to fight reform. That’s a corner it will be difficult to un-turn. We’re probably there already. Say hello to the police-industrial complex.

It won’t be won legally. The Supreme Court has been gutting the Fourth Amendment in the name of the drug war since the early 1980s, and I don’t think there’s any reason to think the current Court will change any of that. The Posse Comitatus Act is often misunderstood. Technically, it only prohibits federal marshals (and, arguably, local sheriffs and police chiefs) from enlisting active-duty soldiers for domestic law enforcement. The president or Congress could still pass a law or executive order tomorrow ordering U.S. troops to, say, begin enforcing the drug laws, and it wouldn’t violate the Constitution or the Posse Comitatus Act. The only barrier would be selling the idea to the public.

That said, I think the current state of police militarization probably violates the spirit of the Posse Comitatus Act, and probably more pertinent, the spirit and sentiment behind the Third Amendment. (Yes — the one no one ever talks about.) When the country was founded, there were no organized police departments, and wouldn’t be for another 50 to 60 years. Public order was maintained through private means, in worst cases by calling up the militia.

The Founders were quite wary of standing armies and the threat they pose to liberty. They ultimately concluded — reluctantly — that the country needed an army for national defense. But they most feared the idea of troops patrolling city streets — a fear colored by much of human history, and more immediately by the antagonism between British troops and residents of Boston in the years leading up to the American Revolution. The Founders could never have envisioned police as they exist today. And I think it’s safe to say they’d have been absolutely appalled at the idea of a team of police, dressed and armed like soldiers, breaking into private homes in the middle of the night for the purpose of preventing the use of mind-altering drugs.

As for change, the good news is that I think the public is finally waking up to this problem. Anecdotally, I’ve noticed more skepticism, for example, in the comment sections to stories about SWAT raids. I’ve also noticed more skepticism in much of the media coverage of these raids. And again, I think the fact that these tactics are now being used against people who have the means and status to speak out is drawing new attention to police militarization, and causing more people to question the wisdom of all of this. But again, there are some major political hurdles in the way of reform.

The gear and weapons and tanks are a problem. But I think a much deeper problem is the effect all of this war talk and battle rhetoric has had on policing as a profession. In much of the country today, police officers are psychologically isolated from the communities they serve. It’s all about us vs. them. There are lots of reasons for that, which I describe in the book but are too involved to get into here. But it’s really destructive.

I make a number of specific suggestions in the book about how to change that mindset — most of which came from interviews with long-time cops and former police chiefs. But generally speaking, cops should be a part of the communities in which they work. They should walk beats. They should know the names of the school principals, 7-11 managers, and Boys and Girls Club and community center staffers. When your only interaction with the community is antagonistic — responding to calls, conducting stop & frisks, questioning people — your relationship with the community will be antagonistic. Cops are public servants. Their job is to keep the peace while protecting and observing our constitutional rights. Somewhere in the process constantly declaring war on things, we’ve lost sight of that.

For 30 years, politicians and public officials have been arming, training, and dressing cops as if they’re fighting a war. They’ve been dehumanizing drug offenders and criminal suspects as the enemy. And of course they’ve explicitly and repeatedly told them they’re fighting a war. It shouldn’t be all that surprising that a lot of cops have started to believe it.

Since the end of the Cold War, the U.S. military has become increasingly involved in fighting the national anti-drug effort. Critics of this trend contend that “militarizing” domestic law enforcement operations, long considered the exclusive province of civilian police, is a dangerous intrusion into civilian powers by the military. The framers of the Constitution feared the influence of a standing army. Today many fear that military tactics and training are inconsistent with police activities limited by the Bill of Rights and the rulings of the courts. Supporters say military involvement is necessary to counter sophisticated and well-armed drug traffickers. The recent shooting in Texas of a U.S. teenager near his house by a U.S. Marine has put the issue prominently on the public’s radar screen (see article in this issue of NewsBriefs).

A statutory bar to the use of the military for domestic police functions dates back to the Posse Comitatus Act (18 USC 1385) passed in 1878 (and subsequently amended):

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 not more than $10,000 or imprisoned not more than two years, or both.

The Posse Comitatus Act was enacted in response to civil liberties abuses committed under the military governors during the post-Civil War Reconstruction of the South. No one has ever been convicted under the Posse Comitatus Act, but there have been occasions when evidence obtained as a result of the Act’s violation was ruled inadmissible in criminal court. Also, military personnel who violate the Act may be found personally liable for their actions in civil court (LTC Geoffrey Demarest, “The Overlap of Military and Police in Latin America,” United States Army, Foreign Military Studies Office, Fort Leavenworth, Kansas, April 1995).

The formal commencement of the role of the U.S. Armed Forces in anti-drug law enforcement began in 1981. Congress considered what that role should be in a number of hearings when the prohibitions of the Posse Comitatus Act were specifically examined in the context of the anti-drug effort.

In December 1981, the Military Cooperation with Civilian Law Enforcement Statute (10 USC 371-380) was enacted, allowing for military “assistance” to civilian law enforcement agencies generally outside the U.S., especially in combating drug smuggling into the U.S. Under this law, the military is generally allowed to give technical and support assistance, including the use of facilities, vessels, aircraft, intelligence, translation and surveillance. The statute specifically prohibits the direct involvement of soldiers in law enforcement, such as search and seizure, arrests or detention, and the use of military personnel in an undercover capacity (10 USC 375).

Under Reagan, the military’s role grew slowly because of the Pentagon’s discomfort with its new mission and modest funding from Congress. Caspar Weinberger, Secretary of Defense, spoke out against military involvement in law enforcement. “Reliance on military forces to accomplish civilian tasks is detrimental to both military readiness and the democratic process,” he said.

But in 1983 then Vice President Bush’s office coordinated the involvement of the Navy and the Air Force in drug interdiction activities in the Caribbean, in the Gulf of Mexico and along the coasts.

In 1989, President Bush named Dr. William Bennett as his “drug czar,” and ordered a more vigorous military anti-drug involvement. Congress doubled the Department of Defense’s (DOD) anti-drug budget from $200 million in 1988 to $438 million in 1989. During the Bush Administration, amendments to the National Defense Authorization Acts (Public Laws 101-189, 101-510, and 102-190), designated the Pentagon as the lead federal agency for anti-drug intelligence; integrated U.S. command, control, communications, and intelligence (C3I) systems; provided an improved interdiction role for the National Guard; directed the armed forces to conduct training exercises in known drug-trafficking areas in the U.S.; and expanded military authority to assist foreign police and military in anti-drug operations (emphasis added) (David Isenberg, “Militarizing the Drug War,” CovertAction, Fall 1992, p. 42).

In November 1989, under the direction of Defense Secretary Richard Cheney, Joint Task Force-6 (JTF-6) was established at Fort Bliss in El Paso to coordinate military and law enforcement anti-drug operations along the U.S.-Mexico border. “We serve as the eyes and ears of the Border Patrol,” said Maureen Bossch, a spokesperson for JTF-6. JTF-6 troops help train drug agents, and provide transportation and engineering support, such as building roads and fences. JTF-6 circulates a 55-page “Operation Support Planning Guide” that markets the use of Green Beret units, Navy SEAL teams, and Marine patrols to police agencies. By fiscal year 1996, JTF-6 had a $24 million budget, and conducted 530 law enforcement support missions. Currently, the JTF-6 program includes 700 soldiers, with about 125 conducting surveillance on the border.

Under President Bush, the military continued to focus on interdiction of the drug trade toward and into the U.S., and building a radar net over the Gulf of Mexico with radar ships and Airborne Warning and Control System (AWACS) planes. The Clinton Administration deemphasized that element of the strategy as ineffective and expensive, and ordered a shift in resources to military assistance in source countries, strengthening anti-drug efforts at the U.S.-Mexico border, and increased intelligence gathering. The Clinton Administration strategy has resulted in increased use of military personnel in civilian anti-drug law enforcement in the guise of “training.”

In his first year, Clinton raised the status of the “drug czar” to cabinet level. After the resignation in December 1995 of “drug czar” Dr. Lee Brown, a former chief of police, President Clinton nominated General Barry McCaffrey as director of the Office of National Drug Control Policy (ONDCP). McCaffrey, a 29-year Army veteran, had been Commander in Chief of the U.S. Southern Command (USSOUTHCOM) in Panama since February 1994, where, among his duties, he was responsible for coordinating anti-drug efforts in Central and South American countries. The Senate Judiciary Committee confirmed McCaffrey as the Director of ONDCP on February 29, 1996 and he then retired from the military. McCaffrey is the first career military officer to lead the anti-drug effort (“Drug Czar Lee Brown Resigns,” NewsBriefs, January 1996; “Clinton Names General McCaffrey as “Drug Czar” Nominee,” NewsBriefs, February 1996; “General Barry R. McCaffrey Sworn in as New Drug Czar,” NewsBriefs, March 1996).

[For a complete bio of Gen. McCaffrey, contact the NewsBriefs office.]

DEA officials estimate 70% of illegal drugs now smuggled into the U.S. enter along the U.S.-Mexico border. The Clinton Administration’s position appears to be to withdraw the military from the border in favor of expanding the civilian agencies such as the Border Patrol and the Customs Service. Commander Joe March, Assistant Secretary of Defense for Public Affairs told NewsBriefs that the Pentagon is already busy with military and peacekeeping missions around the world. March said the Pentagon would like to withdraw from domestic anti-drug missions if the Border Patrol is given enough resources to do the work without them. Last year McCaffrey said, “We have a major concern in not involving the armed forces in direct law enforcement in the United States. We would rather build law enforcement groups — the Border Patrol, Customs, the Immigration and Naturalization Service — adequate to protect the people.” In late June, the House voted for the Traficant Amendment (Rep. Jim Traficant, D-OH) to put up to 10,000 U.S. troops along the 2000-mile long U.S.-Mexico border (H.G. Reza, “Military Silently Patrols U.S. Border,” Los Angeles Times (Washington Edition), June 30, 1997, p. B1; Thaddeus Herrick, “Borderline Shootings,” Houston Chronicle, June 22, 1997, p. 1A).

“Militarizing” the border increases law enforcement’s reliance on military technology, equipment and intelligence, according to Timothy Dunn, University of Texas scholar and author of The Militarization of the U.S.-Mexico Border, 1978-1992. The Pentagon has contributed to the Border Patrol and other anti-drug agencies “excess equipment” used during and after the Vietnam War. Donated equipment includes Blackhawk helicopters, heat sensors, night vision telescopes and electronic intrusion devices. The Pentagon valued the transferred equipment at $260 million in 1995 (Timothy J. Dunn, “The Militarization of the U.S.-Mexico Border, 1978-1992,” University of Texas, Center for Mexican-American Studies, April 1996 (University of Texas Press, 512-471-7233)).

The military anti-drug effort also involves an integrated intelligence network. The El Paso Intelligence Center (EPIC), managed by the DEA, employs about 300 people, including personnel from the Department of Defense. EPIC is the oldest and largest of some dozen clearinghouses for drug intelligence. The North American Aerospace Defense Command (NORAD), once used to track nuclear weapons during the Cold War, is now primarily used to gather drug intelligence (José Palafox, “Militarizing the Border,” CovertAction Quarterly, Spring 1996, p. 14; Jim Mallory, “These days, NORAD key player in drug war,” Denver Post, April 23, 1997, p. 4B).

The National Guard’s domestic drug eradication and enforcement program is the largest anti-drug mission in the DOD. Each day, the National Guard is engaged in nearly 1300 ongoing counterdrug missions performed by about 4000 personnel on duty. National Guard forces operate under state command and control, and are coordinated by the National Guard Bureau. The DOD Coordinator for Drug Enforcement Policy and Support supervises the various National Guard anti-drug efforts. The Guard “now provides thousands of soldiers a day to assist local law enforcement, as well as the Customs Service, in the Southwest,” McCaffrey said in 1996 (Richard Keil, “Dole pledges to give National Guard greater role in war against drugs,” Buffalo News, September 2, 1996, p. A6; William W. Mendel and Murl D. Munger, “The Drug Threat: Getting Priorities Straight,” Parameters, Summer 1997, pp. 110-124).

DOD’s anti-drug budget has increased by 2850% from $33.6 million in 1981 to $957.5 million for 1997. In 1995, more than 8,000 soldiers, sailors and Air Force personnel participated in 754 domestic anti-drug support missions that led to 1,894 arrests (Jim McGee, “Military Seeks Balance in Delicate Mission: The Drug War,” Washington Post, November 29, 1996, p. A1).

The Pentagon’s strategy for the next decade will increasingly emphasize the military’s expanding noncombat roles, including drug interdiction, officials said at an April 2 press conference. A Pentagon draft report said the armed forces should be equipped to take on many more such deployments than the U.S. has mounted since the end of the Cold War. Such assignments are “just reality” and are “out there for us,” said Lt. Col. Tim Muchmore, an Army staff officer involved in the Pentagon’s study. The draft report says that the end of the Cold War has brought a strategic “pause” that will leave the U.S. an unrivaled superpower until at least 2010. The report calls for the armed forces to master a full range of military roles — what one official called “full-spectrum dominance” (Paul Richter, “Pentagon Plans Bigger Noncombat Role,” Los Angeles Times, April 3, 1997, p. A19).

Support for a larger military role relies heavily on the view that drug trafficking is a direct threat to national security, and that well-armed, sophisticated drug traffickers require a military response. In 1986, President Reagan signed a National Security Decision Directive, formally designating drug trafficking as a national security threat. President Bush affirmed that directive in 1989. President Clinton restated that theme in Presidential Decision Directives.

For two decades, many in Congress have been eager to characterize the drug trade as a national security threat, and Congress consistently appropriates increased budgets for the national drug strategy. Rep. Bill Zeliff (R-NH), former chairman of the House Government Reform and Oversight national security, international affairs and criminal justice subcommittee, stated his support simply: “It all boils down to: Do we want to declare war on drugs or don’t we?” Recently, U.S. Rep. Benjamin Gilman (R-NY), Chairman of the House International Relations Committee, said, “The most immediate and serious security threat to the United States today is international narcotics trafficking.” His committee recently completed action on the Foreign Policy Reform Act of 1997 to make the issue a foreign policy priority (Rep. Benjamin Gilman, “Fighting Narcotics Should Be Foreign Policy Priority,” Roll Call, May 12, 1997, p. 19).

“Based not only on comparative threat assessments but also on the social and political realities of the decade … the use of military force should be considered whenever the nation is severely threatened by any circumstance to which no adequate response is possible solely with civilian forces or resources,” wrote William W. Mendel and Murl D. Munger in a recent article in Parameters, the U.S. Army War College quarterly. Mendel and Munger conclude that the U.S. “should increase the tempo of military counterdrug support and reconsider our force design for supporting the counterdrug strategy.”

Furthermore, supporters argue that military involvement in anti-drug activities can help maintain soldiering skills during peacetime. “Readiness for wartime can often be increased by participation in real-world counterdrug operations,” said Mendel and Munger.

In January 1997, Cesareo Vasquez, a Mexican national, illegally in the U.S., was the first person to be shot by JTF-6 troops. Vasquez had fired a shot at a Green Beret, and later pleaded guilty to assault and weapons charges. On May 20, 1997, a JTF-6 Marine fatally shot 18-year-old Esequiel Hernandez. The Marines claim Hernandez fired on a Marine patrol. Hernandez, a studious high school sophomore and well respected in his community, was herding his goats near his house. The teenager was the first U.S. citizen killed by military troops on anti-drug patrol. Reportedly he was allowed to bleed to death and local prosecutors plan to take the case to a grand jury in July. For more information about Hernandez’s shooting, see article in this issue of NewsBriefs.

“The Constitutional issue is the breakdown of the bright line that we have traditionally maintained between military and law enforcement,” said James X. Dempsey, formerly of the Center for National Security Studies in Washington. “There is a very strong claim that we are already pressing the outer bounds of what is constitutionally desirable.” Even Gen. McCaffrey stated, “The biggest limitation, it seems to me, is our constitutional and political uneasiness with getting the armed forces involved in domestic law enforcement.”

Soldiers are trained to “vaporize, not Mirandize,” says Lawrence Korb, Assistant Secretary of Defense under President Reagan. Korb, a senior fellow at the Brookings Institute, opposes putting troops on the border because soldiers are not trained to police in an environment of constitutional liberties.

Militarization of domestic anti-drug enforcement efforts represents “the use of the military and its resources to control targeted groups of civilians,” writes Timothy Dunn. Dunn describes this policy as the “low-intensity conflict doctrine.”

Critics argue that the open-endedness of the military’s commitment to the anti-drug effort is its greatest potential hazard. “Where does it stop?” said Jon R. Thomas, former Assistant Secretary of State for International Narcotics Matters and once a supporter for a strong military role in the federal anti-drug effort. “Posse Comitatus was a real smart idea. It was basically saying, look, we don’t want the military with police power,” said Thomas. “Once the military was told by the Congress and the president that this was part of their mission,” said James Dempsey, “then they were institutionally bound to make it permanent and pervasive.” Korb agrees, “It should [have been] a stopgap … but it’s been institutionalized.”

References and
Resources for the Introductory Essay…

• Blurring the line between police officer and soldier: The rise of the warrior cop By Radley Balko The Wall Street Journal. August 7, 2013 4:44 p.m. ET
• Matt Taibbi rips into America’s growing income gap in Matt Taibbi rips into America’s growing income gap in ‘The Divide’. By Matt Taibbi
• Ban the Box. Rethinking Schools.