A child pornography case has been overturned in Washington because the case was investigated by a Special Agent with the Naval Criminal Investigative Service (NCIS) in an investigation unrelated to the U.S. Navy, Navy personnel, or Naval property.
Unusually, the case was overturned based on the Posse Comitatus Act (PCA) which restricts Army and Air Force military personnel from enforcing Federal law. Notably, the PCA does not directly reference the Navy, nor does it apply to civilian employees of the Department of Defense (DOD).
This is of interest to immigration patriots because of the issue of overreach of the Federal government and the concomitant failure of the Federal government to act within its core responsibilities, such as the enforcement of immigration law and the policy of U.S. Immigration and Customs Enforcement (ICE) Special Victims Unit (SVU) to ignore immigration law violations and act outside its authority and purpose.
First, the back story:
WaPo/Volokh Conspiracy September 12, 2014 by Eugene VolokhChild Pornography Conviction Overturned Because The Government Violated The Posse Comitatus ActUnited States v. Dreyer (9th Cir. Sept. 12, 2014) (2-to-1 vote); here are excerpts from the majority, the concurrence, and the dissent (some paragraph breaks added, some removed):
A special agent of the Naval Criminal Investigative Service (NCIS) launched an investigation for online criminal activity by anyone in the state of Washington, whether connected with the military or not. The agent found evidence of a crime committed by a civilian in the state and turned it over to civilian law enforcement officials. The civilian, Michael Dreyer, was prosecuted, convicted, and sentenced to eighteen years in prison. We hold that the NCIS agent’s investigation constituted improper military enforcement of civilian laws and that the evidence collected as a result of that investigation should have been suppressed….
Given that the Navy is not covered by the PCA, but the court thinks it should apply, should not the same principle apply to ICE SVU? Is it time to use this open interpretation of the purpose and implication of the PCA to the same purpose and implication of the Homeland Security Act (HSA) to force ICE SVU back into the immigration law enforcement business?
The principle is good but even stronger when one makes a Federalism argument, the Federal government exists to act within the confines of the Constitution and especially the 10th Amendment. Immigration is the responsibility of the Federal government, and it is time to force ICE SVU back into the immigration enforcement business. In this case, the NCIS agent effectively investigated a State crime and presented the case in a State court, he was a State actor. Essentially, the NCIS was wasting Federal resources investigating a State crime completely unconnected with an NCIS interest, much as ICE SVU has been investigating crimes with no connection to immigration or customs law, like New Jersey moving companies.
Perhaps the courts will do something right soon.