The pre-weekend Air Force raid at the Citadel Gun and Safe shop in Las Vegas, NV has been drawing extensive media and blogosphere scrutiny. The operation was led by Special Agents of the Air Force Office of Special Investigations (OSI), assisted by law enforcement officials from various federal, state, and local agencies. Many of the concerns I’ve read about deal with the issue of the Posse Comitatus Act. But there is much more to the story that needs to be told.
Let me say up front that I am as far right as they come, so my perspective on this is tempered by my hardcore conservative beliefs. If I sniffed even a whiff of a Constitutional issue, I’d be the first to throw a flag on the field and call the military out for a violation. But nothing untoward occurred in Las Vegas.
I am also a retired career OSI Special Agent, having served over 25 years in that capacity. When I retired in 2007, as a Colonel, I was one of the organization’s senior-most agents and Region Commanders. I’ve been involved in many investigations and operations where the Air Force OSI has executed warrants or subpoenas in the civilian community, especially at the offices of defense contractors. It happens quite often, so I can speak with authority about the Las Vegas raid.
The Air Force OSI is one of a handful of Military Criminal Investigative Organizations (MCIOs) that can receive and execute federal subpoena authority from the Department of Defense Inspector General (DoD/IG). The other MCIOs are the Naval Criminal Investigative Service (NCIS), the Army Criminal Investigation Command (CID) and the Defense Criminal Investigative Service (DCIS).
The Inspector General Act of 1978 (5 USC) is the federal law that gives inspectors general, to include the DoD/IG, their authority. One of the authorities given to IGs is the ability to issue subpoenas that carry the enforceability of a federal district court. Specifically, 5 USC, Section 6 (a) (4) states that IGs have the authority:
“to require by subpoena the production of all information, documents, reports, answers, records, accounts, papers, and other data in any medium (including electronically stored information, as well as any tangible thing) and documentary evidence necessary in the performance of the functions assigned by this Act”
There are special provisions that relate just to the DoD/IG (5 USC Section 8), key among which is 5 USC Section 8 (c) (8) which states the DoD/IG may:
“request assistance as needed from other audit, inspection, and investigative units of the Department of Defense (including military departments)”
This subsection gives the DoD/IG the authority to request the Air Force OSI to execute a subpoena on its behalf, as it did in the Las Vegas raid.
A second key subsection, 5 USC Section 8 (g), states:
“The provisions of section 1385 of title 18, United States Code [Posse Comitatus Act], shall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Department of Defense to carry out the purposes of this Act.”
This provision states explicitly that the Posse Comitatus Act does not apply to such audits and investigations; therefore, Posse Comitatus was never an issue in Las Vegas.
When the Air Force OSI Special Agents in Las Vegas acted under the authority of the DoD/IG subpoena, they were enforcing federal law with the full weight of a federal district court subpoena. Only they could execute the subpoena, which explains why they were the lead agency. They appropriately asked for and received the assistance of other federal, state, and local law enforcement agencies.
My only criticism of the situation is in how poorly Air Force Public Affairs officials addressed the media scrutiny. They easily could have explained the process as I have in this article, but chose instead to limit their comment. This type of insular reaction only breeds cynicism and confusion, and it fosters public distrust.
Follow Mike Angley on Twitter: @MikeAngley and on FaceBook: mike.angley.
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