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Military involvement called into question in court case

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Published:   |   Updated: August 26, 2014 at 09:59 PM

The 35-year-old man from Miami headed to Clearwater in January, according to court documents, thinking he was going to meet up with Emily Millerson, who placed a personal ad on Craigslist soliciting opinions on which branch of the military to join.

As he got closer to Clearwater, Alexander Levi Blackwell, a civilian, received a text message.

“you sure our ok w/m age?”

A minute later, Blackwell responded.

“18?”

Millerson then texted Blackwell that she was 15.

The two continued to text for another five hours, with some of the conversations sexually graphic. Early the next morning, when he went to meet Millerson, Blackwell found out that she wasn’t 15. Or 18. Or even female.

Blackwell, according to court documents, had been chatting with Air Force Tech. Sgt. William Glidwell, an investigator with the Air Force Office of Special Investigations, stationed at MacDill Air Force Base. Blackwell was arrested and charged with traveling to meet a minor after using a computer to solicit, lure or entice the minor for sex. Several hours later, he was released from jail on $5,000 bond, according to Pinellas County Jail records.

Blackwell was one of 35 people rounded up by Clearwater Police as part of Operation Home Alone, a four-day, multi-agency online sting seeking those trolling the internet seeking minors for sex.

But in a motion filed in Pinellas County Court last week, Blackwell’s attorney Peter Aiken argues that the evidence against his client should be thrown out and the case dismissed.

Not only did Glidwell entrap his client, Aiken argues, but having military personnel take an active part in a civilian criminal investigation violates the Posse Comitatus Act, a federal law limiting the military’s role in civilian law enforcement activities.

As an Air Force investigator, Glidwell’s participation in Operation Home Alone and at least four other similar stings “is widespread, pervasive and illegal.”

Prosecutor Bernie McCabe disagrees.

“I don’t think it is a problem,” McCabe said about having an Air Force investigator participate in the sting operation. “My lawyers don’t think it is a problem. And I am advised that Air Force lawyers do not think it is a problem. At this point, I am not worried about it.”

When asked if military personnel are allowed to take part in civilian law enforcement operations, Air Force Office of Special Operations spokeswoman Linda Card said yes, citing a section of a Defense Department instruction issued last year.

The section spells out the activities that are not restricted under Posse Comitatus. They include actions taken for the primary purpose of benefiting the Department of Defense or foreign affairs functions of the United States, investigations related to military law known as the Uniform Code of Military Justice, investigations likely to result in administrative proceedings by the Department of Defense, related to the commander’s inherent authority to maintain law and order on a military facility, protecting classified defense information or equipment or disclosure of classified information, protecting Defense Department personnel, equipment and official guests and “such other actions that are undertaken primarily for a military or foreign affairs purpose.”

There is nothing in the section cited by Card that would allow military personnel to perform law enforcement investigations on civilians with no military connection.

The motion filed by Aiken will likely hinge on whether the personal ad Blackwell responded to, the one seeking opinions on which branch of the military to join, has a strong enough military connection to be considered not restricted by Posse Comitatus.

Card would not comment about the Blackwell case because it is still open.

“Lending expertise or advice is probably fine,” says U.S. Rep. Tom Rooney, a former Army Judge Advocate General officer. “The military being used as a police force to carry out traditional law enforcement would be a violation of the act in my opinion. A judge, however, will have to decide.”

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Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Posse Comitatus Act was enacted in 1878, after a dispute over the use of federal troops by U.S. marshals in the South, according to John R. Brinkerhoff, a retired Army colonel who has written extensively on the topic.

The 52-word law is rarely invoked in the courts, says Charlie Rose, an expert in both civil and military law. He is the director of the Center for Excellence in Advocacy and Professor of Excellence in Trial Advocacy at the Stetson University College of Law and a former Army Judge Advocate General officer and military lawyer who retired in 2004 as a major.

The argument by Blackwell’s attorneys that the sting operation violated the Posse Comitatus Act “has some validity to it,” says Rose.

The bottom line, however, is whether a judge goes along with it, excluding the evidence and dismissing the charge. Or decides to punish Glidwell. Or finds that is has no bearing.

“The problem is going to be what is the remedy,” says Rose. “I am not sure the judge will exclude the evidence, but (Glidwell) might get in trouble.”

The reason, says Rose, is that if a judge finds Glidwell violated the Posse Comitatus Act, “that is potentially a Court Martialable offense under the Uniform Code of Military Justice. It is the discretion of his commander as to whether to pursue that. If he has been a good airman for the Office of Special Investigations, they won’t do anything. And if the Office of Special Investigations is expanding the boundaries of Posse Comitatus internally, there is no way they are going to hang him out to dry and potentially have a problem.”

In a deposition, Glidwell testified that his understanding of Posse Comitatus was that the military cannot assert military laws over civilians.

He also testified that he had participated in several other stings, as well as on investigations that led to four or five federal prosecutions of military personnel on similar charges.

The Air Force Office of Special Investigations Detachment 340, based at MacDill, is an affiliate organization within the Central Florida Internet Crimes Against Children task force, according to 2nd Lt. Patrick Gargan, a spokesman for the 6th Air Mobility Wing, MacDill’s host unit.

As an affiliate organization, the detachment “actively participates in undercover operations involving online child exploitation,” he said.

Detachment officials asked to participate in the task force last year, “based on their participation and experience across the country with other ICAC task forces,” according to Carrie Horstman, spokeswoman for the Polk County Sheriff’s Office. The office runs the Central Florida ICAC task force.

“We appreciate and value their participation,” said Horstman. “The AFOSI have a strong interest in investigating online child sexual exploitation relating to members of the military. They have been a valuable resource regarding investigations involving military members.”

Because the case is still open and in another jurisdiction, Horstman said she couldn’t comment on the issues raised in the motion.

Clearwater Police also declined comment because the case is still open.

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At its heart, the Posse Comitatus Act is a balancing act, says Rose.

“There is a need for civilian law enforcement to work with the military when appropriate,” he says. “But the balance is needed to ensure the military does not become part of the police power of the state. That is a core democratic principal and has immense meaning. The minute you start rolling out active duty military to keep the peace, in a civilian setting, it fundamentally changes what it means to be a democracy.”

When asked what he would do if he were the judge, Rose says that he would rule on the lesser issue of whether Glidwell, as someone without the same law enforcement training as civilian police, entrapped Blackwell.

“Why take on the hard issue if you don’t have to?” he says of a ruling on the Posse Comitatus motion.

Could a judge rule in favor of Blackwell?

“I think theoretically it is possible,” says Rose.

haltman@tampatrib.com

(813) 259-7629

@haltman

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