An amendment proposed by Rep. Adam Schiff, D-Calif., to the National Defense Authorization Act (NDAA) would have likely resulted in letting a child pornographer off the hook in a case from a decade ago if it had existed then.
In the annual goat rope that typifies the drafting and passage of the NDAA, Rep. Schiff offered an amendment that would exclude evidence obtained “by or with the assistance of a member of the Armed Forces in violation of section 1385 of title 18” from any trial, hearing, or other legal proceeding, including legislative hearings. Section 1385 of Title 18 is the Posse Comitatus Act, a post-Civil War era statute that prohibits the use of federal military forces to enforce civil law. The Schiff amendment passed the House 215-213 and will now go to the Senate for consideration.
Schiff initially proposed a similar clause as a freestanding piece of legislation in 2020, ostensibly in response to then-President Trump’s purported plans to pre-position federal troops to assist local law enforcement in quelling the 2020 riots.
There has been no indication in any of the prosecutions of rioters that any evidence gathered in violation of the Posse Comitatus Act has been used. Thus, it appears the reintroduction of the Schiff amendment is a solution looking for a problem.
If the purpose of the amendment was to exclude evidence against rioters that was gathered in violation of the Posse Comitatus Act and no such violation occurred, why reintroduce it in this year’s NDAA? Some have speculated that Schiff is trying to preemptively block congressional Republicans from digging into the security failures at the U.S. Capitol on Jan. 6, 2021.
We may never know the answer to that question, but the Schiff amendment could have a dramatic impact on other types of cases. A relatively recent decision of the United States Court of Appeals for the Ninth Circuit illustrates the consequences of Schiff’s amendment.
The Case Against Michael Dreyer
In 2011, agents of the Naval Criminal Investigative Service (NCIS) conducted an internet search of computers in Washington state looking for evidence of peer-to-peer sharing of known child pornography files, specifically by military personnel. The search found an IP address from which some of the known pornographic images were shared. The internet service provider, responding to an administrative warrant served by the FBI, identified the IP address as belonging to Michael Dreyer, a civilian with no connection to the military.
The NCIS investigators, realizing they had no jurisdiction over a civilian, passed the information along to the local civilian police department. Subsequent searches of Dreyer’s computer revealed over 1,300 images of child pornography. Dreyer was charged with violating federal law.
In his federal trial, Dreyer moved to suppress the evidence obtained under both the state and federal search warrants because the actions of the NCIS agents in identifying his IP address violated the Posse Comitatus Act. The trial court found that it was routine for the NCIS to share investigative leads with their civilian counterparts and denied the motion.
On appeal, a three-judge panel of the Ninth Circuit reversed and remanded. The court held that the actions of the NCIS agents in linking Dreyer to the IP address were an inappropriate use of military assets to enforce civilian law. Then, in an unusual move, a majority of the active judges on the Ninth Circuit voted to rehear the case en banc to address whether suppression of evidence is required when there is a violation of the Posse Comitatus Act.
The court found the NCIS search did violate the Posse Comitatus Act, but then turned to whether suppression of the evidence was warranted. The court noted that suppression of evidence is always the “last resort,” and only compelling circumstances call for invocation of an exclusionary rule. Relying on recent Supreme Court decisions that held exclusionary rules should be used to deter constitutional violations and violations of statutes enforcing constitutional standards, the Nith Circuit found the facts of Dreyer did not warrant exclusion of the evidence. The court affirmed the trial court’s denial of the motion to suppress the evidence.
A Different Outcome Under Schiff’s Amendment?
Had Schiff’s amendment to the NDAA been the law, the result would have almost certainly been different. The court would have had no discretion to decide whether the facts and circumstances of the case warranted the drastic application of an exclusionary rule. Dreyer’s motion to suppress would have been granted and the case would have been dismissed. Adam Schiff would have been the pornographer’s new best friend.
Is this the result Schiff intends? In a sane America we would protect children, not predators. The Senate should not vote for legislation that could protect the “civil liberties” of child pornographers at the expense of exploited children.
Professor Woodruff is a retired Army lawyer and retired law professor. He served 22 years on active duty in the Army Judge Advocate General’s Corps and taught law for over 25 years at Campbell University School of Law in Raleigh, North Carolina.