Posse Comitatus Act and mission creep

An interesting and potentially recurring Posse Comitatus Act (PCA) issue has arisen in a Florida civilian criminal case because an enlisted investigator with the MacDill Air Force Base Air Force Office of Special Investigations detachment was directly involved in a Clearwater Police Department child exploitation sting. Military.com has the story. According to Peter Aiken (the civilian defendant's attorney),

As an Air Force investigator, [TSgt William] Glidwell's participation in Operation Home Alone and at least four other similar stings "is widespread, pervasive and illegal."

Prosecutor Bernie McCabe disagrees.

"I don't think it is a problem," McCabe said about having an Air Force investigator participate in the sting operation. "My lawyers don't think it is a problem. And I am advised that Air Force lawyers do not think it is a problem. At this point, I am not worried about it."

When asked if military personnel are allowed to take part in civilian law enforcement operations, Air Force Office of Special Operations [sic] spokeswoman Linda Card said yes, citing a section of a Defense Department instruction issued last year.

The section spells out the activities that are not restricted under Posse Comitatus. They include actions taken for the primary purpose of benefiting the Department of Defense or foreign affairs functions of the United States, investigations related to military law known as the Uniform Code of Military Justice, investigations likely to result in administrative proceedings by the Department of Defense, related to the commander's inherent authority to maintain law and order on a military facility, protecting classified defense information or equipment or disclosure of classified information, protecting Defense Department personnel, equipment and official guests and "such other actions that are undertaken primarily for a military or foreign affairs purpose."

There is nothing in the section cited by Card that would allow military personnel to perform law enforcement investigations on civilians with no military connection.

Editor's vote: This is classic mission creep. AFOSI's conduct was clearly over the line and the defense's PCA motion should be granted. If the defense motion is granted, will disciplinary action follow for AFOSI personnel for violating the PCA without a colorable basis in the implementing DoD Instruction? Comments welcome.