National Guard Checkpoint

May 13, 2009 7:42PM

MP exercise with Whiteville Police initially canceled by public affairs office. By Clint Brewer Policy Brief No. 04-09 The Tennessee National Guard cancelled one of its military police company’s participation in a local police seat belt checkpoint a day before it was scheduled over concerns about the “perception” the public might have of the event. Public affairs officials with the Tennessee Department of the Military ordered the Tennessee National Guard 251st MP Company not to participate in an April 4 seat belt checkpoint with the Whiteville Police Department. Public records and written statements obtained by TCPR through the state’s Open Records Act show Guard Joint Director of Public Affairs Randy D. Harris “instructed” the MP Company not to join the police exercise, even though the stated reason for their participation was to “observe” according to statements from Harris and MP Capt. Daniel F. Evans. “I told SGT. Spencer that even though the MP’s were not involved in the actual checks, the perception could be that the MP’s were a part of the actual check,” Harris stated in a document obtained by TCPR. ‘Actually, this has been cancelled.’ Concerns over the event were originally voiced on the national blog, where the planned Tennessee exercise was compared to an event in California where the Posse Comitatus Act was allegedly violated. The federal Posse Comitatus Act makes it a crime to use military forces in domestic police actions in the U.S. under most circumstances. The law does not apply to the National Guard when it is under state authority. In addition, journalist Keith Sherley of NewTalk 101.5 in Jackson interviewed State Rep. Johnny Shaw (D-Bolivar) about the planned exercise. Shaw suggested to the radio station that Gov. Phil Bredesen’s office was involved in canceling the event, with Shaw calling the MP’s involvement in the seatbelt check a “bad idea.” “Actually, this has been cancelled,” Shaw said on the air. “Some calls were made to the Governor’s office earlier today. Of course, the Governor just simply said, ‘I don’t need another headache.’ …This was a bad idea in the first place. During this climate in this day and time in which we live, can you imagine the Army stopping you for a seat belt check?” “I don’t think this will happen again,” Shaw added. “I think it would frighten more people than it would help.” However, statements from the Department of the Military contradict Shaw’s assertion, saying Bredesen’s office was not involved in the decision to cancel the MP’s presence at the Whiteville checkpoint. “In reality, the training exercise was cancelled by the Tennessee National Guard, and to date, I have had no contact with the Governor’s Communication Office, Representative Shaw or the Office of Homeland Security concerning this matter,” Harris said in his written statement. “As you will see from the memo from SFC Harris, there was no written or oral communication with the Governor’s Office, Representative Shaw, Homeland Security, or the Department of Safety,” Department of the Military General Counsel Fred Denson said in a letter responding to TCPR’s open records request. A statement from Bredesen’s communications office agreed with Harris’ version of events, saying the Governor’s office was never involved in the Whiteville situation. “Randy Harris is correct,” Bredesen spokesperson Lydia Lenker said in an email to TCPR. “Neither the Governor, nor the Governor’s office had any involvement. Rep. Shaw was given incorrect information.” Shaw did not return multiple telephone calls or respond to emails from TCPR requesting comment on the matter. Posse Comitatus Department of the Military officials at several points in their correspondence to TCPR state the planned checkpoint would not have been a violation of the federal Posse Comitatus Act had it been allowed to happen as the MPs would have been under state and not federal control. A statement on the planned exercise from CPT Daniel F. Evans of the 251st says the “opportunity” to participate in the seatbelt checkpoint was “presented” by the Whiteville Police Department. Emails between members of the 251st suggest the Whiteville Police Department was approached by members of the company to participate in the checkpoint exercise. “I felt it could benefit us to observe civilian police authority interaction as long as we did not enforce local law or participate in the execution of the check point,” Evans states. Denson also included in the documents sent to TCPR a 1999 6th Circuit U.S. Court of Appeals decision in Charles Gilbert and Jennings Gilbert v. United States of America that he said showed Posse Comitatus did not apply to the National Guard. “This case clearly shows that the Posse Comitatus Act…does not apply to the National Guard unless and until ordered into federal service by the President of the United States,” Denson said. Conclusion It is clear from the documents that Guard members at the command level felt empowered to enter into this exercise with the Whiteville Police. It is also clear a disconnect exists between Guard training objectives at the local level and what is permissible from a public policy and perception standpoint from the command in Nashville. It is troubling to think that Tennesseans might have to experience military police sitting at domestic seat belt check points, even if they are there to observe and train only. The public will hardly see it that way. Shaw and Department of the Military officials were correct to have concerns about the perception this would create. The Department of the Military should have a clear-cut policy on this sort of activity and communicate it to their units statewide rather then from the department’s public affairs office in a piecemeal fashion. The department should also provide an outlet for our National Guard military police to complete the type of necessary training the 251st command sought.