Will National Guard’s aerial surveillance "outsourcing" survive scrutiny?
A few hours ago, Lt. Col. Mike Shiels, chief of counterdrug aviation for the National Guard, told me in an exclusive interview with GSN that the primary purpose for this aerial surveillance capability is to support federal, state and local law enforcement officials who are mounting surveillance operations against suspected drug kingpins.
"We provide support during difficult surveillance situations, when law enforcement has gone as far as they can with ground surveillance," explained Lt. Col. Shiels. He was careful not to divulge the specific ways in which his airborne surveillance operations keep an eye on alleged drug merchants under investigation, but he noted that the aerial efforts are generally more focused on big-time drug operators, rather than street-level dealers.
It turns out that the Global War on Terror may be impacting the local war on drugs. According to Col. Shiels, "about half" of the 11 fixed-wing aircraft used by the National Guard for aerial surveillance in the 50 states and four U.S. territories have been deployed overseas for the "war effort." He declined to specify whether that meant Iraq, Afghanistan or elsewhere, but acknowledged that, "We don’t yet know the impact" that reassignment of surveillance aircraft may have on the Guard’s domestic counterdrug campaign.
"We’re looking to see if there is a way to back-fill for a temporary period of time," said Lt. Col. Shiels.
As the National Guard tries to think "out of the box" about how it can deal with this potential squeeze on its airborne resources, it must overcome at least two obstacles:
First, the Guard must find a commercial contractor which has the aircraft, the surveillance cameras and sensors, the pilots and the crew to perform the Guard’s airborne mission. (In addition to the most-common counterdrug assignments, the same aircraft and crews would be expected to be available on an ad hoc basis to perform surveillance during "National Special Security Events", for domestic response in case of emergencies and for counter-terrorism purposes.)
Lt. Col. Shiels has already heard from a handful of willing contractors, and doesn’t anticipate a big problem in lining up a capable vendor.
Second, he is more concerned about the willingness of the National Guard leadership to embrace a program that would "outsource" its surveillance duties to the employees of a commercial contractor. Lt. Col. Shiels wonders whether a senior National Guard policy maker or legal advisor may question the Guard’s legal right to undertake such a program.
Lt. Col. Shiels explained that the National Guard has the narrowly-defined legal right to conduct this airborne surveillance of U.S. citizens and other drug-related suspects under 32 USC Section 112, but admits, "It’s a very narrow provision that we operate under."
He said has not yet asked whether a commercial contractor would be afforded the same legal rights to conduct the same surveillance activities. "We haven’t run any of this through Legal yet," Lt. Col. Shiels told me on March 31.
Under the Posse Comitatus Act, which was enacted in 1878, uniformed members of the U.S. military generally are forbidden to conduct law enforcement activities inside the United States. But, Lt. Col. Shiels believes that 32 USC 112 provides the legal authorization such a program would need.
Lt. Col. Shiels said law enforcement officials at the state and local levels wholeheartedly embrace the airborne surveillance counterdrug capabilities offered by the National Guard because most could never afford such capabilities on their own.
He’s working hard to put together an attractive package that can provide the aircraft and crews to continue performing the counterdrug mission technically and the bureaucratic rationale that can defend the proposal legally, but he’s not kidding himself.
"The bureaucracy may be the part that will kill it," he told me.
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