Army declines to send reservist-congressman

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Drizzt

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Army declines to send reservist-congressman
By Kathy Kiely, USA TODAY

WASHINGTON — Steve Buyer wanted to serve his country in Iraq. He had his duffel packed with the things he remembered needing on his first tour of duty in the Persian Gulf 12 years ago. He had a skill his Army Reserve superiors said they need.

But hours before Buyer was due to ship out, his country said: No thanks. One thing on his résumé gave the Army pause.

Buyer is a congressman.

A letter from Army Secretary Thomas White said his "high profile status" might "put in jeopardy your safety and the safety of those serving around you."

Publicly, Lt. Col. Buyer seemed to be accepting his commanding officer's orders. "I understand the rationale," he said. Inwardly, he was seething.

"You don't pick and choose like that," Buyer (pronounced BOO-yur) says of the decision to exempt him. He's still a fan of the military, the six-term Republican from Indiana says, but "my respect for the civilian leadership has been lowered."

Buyer's thwarted service comes as the Reserves are straining to fulfill manpower requirements and some war critics are accusing Congress and the administration of being detached from the true cost of war. Only one member of Congress, Sen. Tim Johnson, D-S.D., has a child in combat.

Letting Buyer serve would provide "a very, very positive role model" for reservists and their employers, says Bob McIntosh, a retired major general of the Air Force Reserve and the executive director of the Reserve Officers Association. The downsizing of the military has meant longer, more frequent tours of duty for the nation's citizen-soldiers.

Since 1995, members of the Army Reserve have been called up for active duty more times than they had been in the previous 88 years of its existence, according to spokesman Joseph Hanley.

There are three active reservists in Congress: Buyer, Rep. Mark Kirk, R-Ill., and Sen. Lindsey Graham, R-S.C. Rep. Joe Wilson, R-S.C., is in the National Guard. Buyer is the only one who was considered for duty in the war theater. He says that's because he has a special skill: During the 1991 Gulf War, Buyer, a lawyer, interrogated Iraqi prisoners.

Members of Congress have been discouraged from heading to the front lines since World War II, when President Franklin Roosevelt ordered eight back from active duty. (Four, including Rep. Lyndon Johnson, D-Texas, later the nation's 36th president, complied; four quit Congress rather than quit fighting.) Under a November 1999 Defense Department directive, members of Congress and others in "key positions" of federal government cannot be ordered to active duty. But it doesn't say they can't volunteer.

"I've already voted to send people," Buyer says. "How could I not go?"

He took a leave of absence and began the emotional process of saying goodbye to his wife and two children. When the letter from White came, Buyer wasn't relieved. He felt terrible "for the person that they're sending in my place," he says.

The Army says Buyer's skills as a POW interrogator were outweighed by the possibility that he might become a magnet for terrorists. "A congressman is a very inviting target to any enemy," Hanley says.

Buyer notes that actor Jimmy Stewart and baseball slugger Ted Williams served in World War II, though they undoubtedly had higher profiles than the representative from Indiana's 5th congressional district. "I could have taken my name tag off," Buyer says. "Don't treat me any differently than anyone else."

Former representative Greg Laughlin, a Texan who spent two weeks in Kuwait and Saudi Arabia as a congressman-reservist during the last Gulf War, says "it was easy" for him to keep his official status under wraps. He says his soldier's view was invaluable for a member of Congress.

Other congressional reservists are planning to do their active duty on the home front. Kirk will spend Congress' two-week spring recess later this month at the Pentagon. Graham hopes to give another reservist a break this summer by taking his place as a military lawyer. "I may go to Bosnia," he says. Wilson spends his weekends briefing fellow Guard members on everything from how to write their wills to the laws of war.

Buyer isn't sure what he'll be doing. "I stand prepared to serve," he says. "If they need me, they know where to find me."

http://www.usatoday.com/news/washington/2003-04-06-buyer-no-iraq_x.htm
 
At least there are some people in the political echelons that don't want special treatmen...
 
You know, if the military is part of the "executive branch" of government, it's possible that he *cannot* legally serve under the "separation of powers" Constitutional bit. For an example of how that panned out in another area:

Original source:
http://www.usdoj.gov/olc/depmar.htm

DEPUTIZATION OF MEMBERS OF CONGRESS
AS SPECIAL DEPUTY U.S. MARSHALS

The deputization of members of Congress as special Deputy U.S. Marshals is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation.

May 25, 1994

MEMORANDUM FOR FRANCIS J. MARTIN
ACTING GENERAL COUNSEL
UNITED STATES MARSHALS SERVICE

You have requested our assistance in determining whether the United States Marshals Service may deputize members of Congress as special Deputy U.S. Marshals. The Director of the Marshals Service is authorized to deputize the following individuals to perform the functions of Deputy Marshals: selected officers or employees of the Department of Justice; federal, state or local law enforcement officers; private security personnel to provide courtroom security for the Federal judiciary; and other persons designated by the Associate Attorney General. 28 C.F.R. § 0.112; see also 28 U.S.C. § 561(f) (authorizing Director of Marshals Service to appoint "such employees as are necessary to carry out the powers and duties of the Service").

We believe that deputation of members of Congress is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation.(1) First, deputizing members of Congress violates the principle recognized in Bowsher v. Synar, 478 U.S. 714 (1986), that Congress may not exceed its constitutionally prescribed authority by playing a direct role in executing the laws. The Marshals Service is clearly a part of the executive branch(2) and the primary duties of Deputy Marshals are the execution and enforcement of federal law. See Steele v. United States, 267 U.S. 505, 508 (1925) (deputy marshals are "chiefly charged with the enforcement of the peace of the United States"); United States v. Krapf, 285 F.2d 647, 649 (3rd Cir. 1960) (duties of marshals include the "enforcement, maintenance and administration of the federal authority"); 28 U.S.C. § 566 (describing the duties of the Marshals Service). Permitting members of Congress to execute and enforce the laws encroaches upon the very heart of the executive authority and violates one of the fundamental tenets of separation of powers jurisprudence: "[t]he structure of the Constitution does not permit Congress to execute the laws . . . ." Bowsher v. Synar, 478 U.S. 714, 726 (1986).

Members of Congress presumably request special deputation so that they may carry weapons for personal security and not so that they may actually execute or enforce the law. Nonetheless, deputized members of Congress will have statutory authority to enforce the law. Moreover, the fact that a legislative usurpation of executive power may prove to be innocuous or inchoate does not mean that it is constitutionally permissible. Legislative intrusions into the executive sphere that may prove harmless in practice nonetheless violate separation of powers principles. See Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 111 S.Ct. 2298 (1991); Bowsher v. Synar, 478 U.S. 714 (1986). "The separated powers of our Government cannot be permitted to turn on" speculative assessments about the likelihood of a legislative official actually exercising usurped executive authority; "in the long term, structural protections against abuse of power [are] critical to preserving liberty." Bowsher, 478 U.S. at 730.

Deputation of members of Congress, furthermore, is not authorized by the statute and regulations governing special deputation. 28 U.S.C. § 561(f) states that the Director of the Marshals Service may appoint "such employees as are necessary to carry out the powers and duties of the Service . . ." (emphasis added). Similarly, 28 C.F.R. § 0.112 provides that the Director may deputize certain persons "to perform the functions of a Deputy U.S. Marshal." Both the Marshals Service and this Office have repeatedly taken the position that the use of the special deputation authority should be limited to those circumstances where the United States Marshal needs the deputations in order to accomplish his or her specific mission. See Memorandum for Rudolph W. Guiliani, Associate Attorney General, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel (March 18, 1983) (concluding that Marshals Service could not deputize Henry Kissinger's private security service); Memorandum to the Attorney General from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel (March 28, 1977) (advising that it would be unlawful for the Marshals Service to deputize former Vice President Rockefeller's security detail). The Marshals Service does not need members of Congress to serve as deputy marshals in order to perform its assigned functions; indeed, members of Congress cannot perform the functions of the Marshals Service without running afoul of separation of powers principles.

It is therefore our conclusion that the Marshals Service cannot continue to grant requests from members of Congress for special deputation. Please let us know if we may be of any further assistance.
Walter Dellinger
Assistant Attorney General

1. Because we think that the result is clear under a separation of powers analysis, we do not address the argument that special deputation of members of Congress is invalid under the Incompatibility Clause.

2. The United States Marshals Service is a bureau within the Department of Justice and under the authority and direction of the Attorney General. 28 U.S.C. § 561.
 
Members of Congress presumably request special deputation so that they may carry weapons for personal security and not so that they may actually execute or enforce the law. Nonetheless, deputized members of Congress will have statutory authority to enforce the law.

So, is senator feinstein carrying illegally, or is the U.S. Marshal ignoring his counsel's opinion?
 
First, it's my understanding that Buyer (who happens to be my Congressman) is an attorney by training, whose MOS is that of JAG officer. Color me a little cynical, but this sequence of events seems a trifle too convenient, but something that would play well in this district. He did serve in Gulf War #1, but as a JAG officer dealing with prisoner issues. I have not heard that he had anything to do at that time with prisoner interrogation. I would anticipate that someone with good psychological/psychiatric training would do the best at interrogation.

Secondly, IIRC, Feinstein happens to hold one of the few concealed carry licenses that the Peoples Democratic Mini-republic of San Francisco has issued.

FWIW,

emc
 
Secondly, IIRC, Feinstein happens to hold one of the few concealed carry licenses that the Peoples Democratic Mini-republic of San Francisco has issued.

True, true.

senator feinstein was elected to the U.S. Senate in 1992. Not long afterward a number of the gun magazines, including American Handgunner, indicated that Washington rumor had it that feinstein was trying to get deputized as a special deputy U.S. marshal. Her PDMRSF permit wouldn't be good outside of the PDRK and handguns were banned in Washington D.C., except for law enforcement, even then.

It is certainly a coincidence that the General Counsel to the U.S. Marshal published his opinion in 1994 regarding deputizing members of Congress.
 
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