Such spying by the Defense Department on a civilian is both troubling and a possible violation of the Posse Comitatus Act, which forbids the use of the military in domestic surveillance of civilians except for some narrowly proscribed cases.
The Posse Comitatus Act is the United States federal law (18 U.S.C. § 1385) that was passed on June 18, 1878.
Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.
18 U.S.C. § 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.
10 U.S.C. § 375. Restriction on direct participation by military personnel
The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
Section 1076 is titled "Use of the Armed Forces in major public emergencies." It provided that:
The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
According to Wikipedia's entry, in 2008 these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act that in its original form was written to limit Presidential power as much as possible in the event of insurrection, rebellion, or lawlessness.
The newly proposed National Defense Authorization Act of 2012 would repeal some of the prohibitive language in the bill. But it is not the current law and the facts of this particular case are chilling. The fact that the United States needs to involve itself in harassing and spying on an American citizen because she is beating them in court is contrary to what we stand for as a country and people.
From the NCT: Carolyn Martin is suing the Naval Criminal Investigative Service for harassment. Filings in U.S. District Court in San Diego by Justice Department lawyers defending the NCIS and Marine personnel disclosed that federal agents conducted surveillance on the private investigator (who often works for military legal defense teams) at her Carlsbad home in 2010.
The suit claims the NCIS, its agents, Camp Pendleton military police and a Marine staff judge advocate violated Martin's constitutional rights through intimidation and harassment because of her success against them in court.
"NCIS retaliated against Ms. Martin because she is a zealous, effective defense investigator. Special Agent Martin [no relation] and his colleagues seized Ms. Martin for hours without justification, pounded on her front door near dawn one morning to falsely 'charge' her with a federal felony ... spied on her at her home and traumatized her in other ways," the civil complaint contends.
The government has denied all wrongdoing. Responding to Carolyn Martin's multiple claims, the government "admits NCIS agent(s) assisted with physical surveillance of plaintiff during its investigation."
The government also "admits that on May 3, 2010, at approximately 6:55 a.m., at plaintiff's residence" an NCIS agent issued Martin a federal citation for allegedly impersonating a federal agent.
ACLU lawyers claim the citation is so legally flawed as to constitute harassment. The government has not acted on the citation.
Martin had been cleaning the government's clock with regularity. "She's speaking out on behalf of Marines and sailors who are accused of crimes, whose cases she's investigated," said ACLU attorney Sean Riordan. "That got under the skin of NCIS, which is the investigating agency for the prosecution in these cases." The ACLU is taking her case.
According to the complaint, the NCIS retaliated against Martin "because she is a zealous, effective defense investigator." The complaint also said Martin was seized for hours without justification and that agents pounded on the front door of her home until dawn to falsely accuse her with a federal felony. Agents spied on her home and traumatized her in other ways, according to the complaint.
The complaint said the harassment started while on base but escalated off base.
According to court documents, on one occasion, an agent followed Martin to a restaurant in Carlsbad. When she went to leave, the agent followed her onto Interstate 5. Martin said that is when the situation became scary. Frightened by being followed, Martin said she lost the agents by making turns and hiding behind a building.
There is an interesting two year old article on the case at the National Institute of Military Justice blog by Dwight Sullivan, October 30, 2010 that discusses her disbarment among other things and discloses some of the games that the government was apparently playing with this woman, some of them seemingly quite childish.
The U.S. alleges: “On October 27, 2010, Plaintiff and her attorney attempted to deceitfully gain entry to MCDR San Diego’s Law Center. They blatantly violated the Acting Commanding General’s debarment order, which serves only to reinforce his decision.”
The author sort of debunks the governments case in its entirety in this article. Some of the comments are excellent as well and expose some of the basic pettiness from our military lawyers that one would not expect to encounter in such an important venue. The use of the military to spy on civilian criminal defense attorneys is Nixonian and contrary to the basic tenets of our judicial system and constitution.
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