Brandon Hixon, of the Idaho Reporter (a publication of the Idaho Freedom Foundation), reports on the introduction of House Bill 367 to the Idaho Legislature:
The House Transportation and Defense Committee, on a voice vote, has approved legislation that would significantly broaden the role of the Idaho National Guard. House Bill 367 seeks to amend existing law to allow for circumstances when the Idaho National Guard and the Idaho Military Division could be utilized as a state law enforcement agency.
“There seemed to be no major opposition to this bill,” commented Rep. Linden Bateman, R-Idaho Falls. “It seems like a good idea to me and I supported it.”
The bill also seeks to formalize what is known as the Idaho National Guard Counter Drug Support Program by declaring that it may “assist federal and state law enforcement agencies in interdicting the importation of controlled substances into this state.”
Additionally, the bill declares that the military unit will be “deemed a state law enforcement agency for the purpose of participating in the sharing of property seized or forfeited and receive property and revenues.”
When reached for comment about the new legislation, Monica Hopkins of the Idaho chapter of the American Civil Liberties Union noted that “I think there should be growing concern among citizens at the militarization of our police forces. We have seen communities where federal dollars are going toward the use of tanks and other military weaponry. American citizens should be concerned at the growing militarization of local government power.”
Similarly, Wayne Hoffman of the Idaho Freedom Foundation added that “every Idahoan should be alarmed by the continued use of the military for law enforcement purposes. That is not what the military is for, that is not what the National Guard is for. Yet we’re continuing to see our military deployed for law enforcement purposes or military equipment used for everyday law enforcement purposes. It is a very frightening trend.”
Rep. Brandon Hixon, R-Caldwell, a member of the committee, told IdahoReporter.com that “there are certain parameters set with this bill that make sense for the National Guard’s collaboration with law enforcement.” Hixon said that under the provisions of the bill, the National Guard would be used only in drug crimes and what he referred to as “related lawful property seizures.”
The distinctions between military power and domestic law enforcement power have a long and varied history. The Posse Comitatus Act, passed by the U.S. Congress and signed into law by President Rutherford B. Hayes in 1878, sought to limit the power of the federal government to use military personnel for domestic purposes although state National Guard units are generally regarded as exempt from the law.
Rep. Joe Palmer, R-Meridian, chair of the committee, told IdahoReporter.com that the new legislation will be beneficial to the Idaho National Guard’s budget. He added that Gov. Butch Otter has read the proposal and approves of it.
While it may astonish some that this arrangement would not violate the Posse Comitatus Act of 1878, it is the case that Congress amended Posse Comitatus in 1981 through the passage of the National Defense Authorization Act of 1982, allowing the President to provide Department of Defense support to law enforcement agencies, including limited counterdrug support to federal agencies. This law has provided the legal authority for military participation in counterdrug operations since 1983.
The proposed expansion of state law enforcement authority to to the Idaho National Guard for asset forfeiture participation purposes poses grave danger to property owners in Idaho as this law will intensify the predatory search for valuable real properties that are the incidental site of criminal activity. Indeed, the defense of a recent, highly-publicized federal asset forfeiture against the Motel Caswell in Massachusetts indicates that these counterdrug investigations often begin when special agents comb through arrest and property records, looking for opportunities to raise revenue through strategic forfeiture proceedings. It is also worth noting that Idaho's forfeiture laws provide very poor protections to property owners. As the Institute for Justice notes in its "Policing for Profit" report:
Based on limited data, while Idaho appears to only modestly pursue forfeitures against property owners, its civil forfeiture laws still put the property of ordinary citizens at risk. To forfeit your property, the state only needs to show that it was more likely than not that your property was used in some criminal activity—the legal standard of preponderance of the evidence. To recover seized property, an innocent owner bears the burden of proving his innocence. Moreover, law enforcement in Idaho reaps all of the rewards of civil forfeitures—they keep 100 percent of all funds and face no requirement to collect or report data on forfeiture use and proceeds.
It is greatly unfortunate that instead of providing greater security to private property owners, the Idaho legislature is considering further undermining property rights.