USDA and Submachine Guns: Latest Example of Mission Creep as Federal Policing Expands

Why does the U.S. Department of Agriculture (USDA) need submachine guns?

The agency’s Office of Inspector General is seeking .40 Caliber semiautomatic submachine guns. But while many may wonder why USDA agents need semiautomatic weapons, the Inspector General’s request is not unusual for other similar and seemingly unlikely federal agencies that are rapidly becoming armed and equipped with police units of their very own.

USDA Inspector General spokespeople explained its procurement request to Truthout by citing a 1978 law that authorizes Inspector General Special Agents to make arrests, execute warrants and carry firearms. From 2012 to March of this year, USDA Inspector General investigations have obtained more than 2,000 indictments and 1,350 convictions.

The agency also noted in a statement that “[Inspector General] Special agents regularly conduct undercover operations and surveillance. The types of investigations conducted by [Inspector General] Special Agents include criminal activities such as fraud in farm programs; significant thefts of Government property or funds; bribery and extortion; smuggling; and assaults and threats of violence against USDA employees engaged in their official duties.”

But the Agriculture Department isn’t the only federal agency seeking an increased amount of weapons and/or ammunition in recent months.

Earlier this year, the U.S. Postal Service listed a similar notice on its website, soliciting proposals for assorted small arms ammunition. On top of that, the Social Security Administration put in a request for 174,000 rounds of hollow-point bullets, shortly after the USDA requested 320,000 rounds about a year ago. The National Oceanic and Atmospheric Administration, which oversees the National Weather Service, also requested 46,000 rounds.

The ammunitions purchases are to supply dozens of federal agencies which, in the years since 9/11, have acquired Special Weapons and Tactics (SWAT) teams to enforce the inflating definition of their missions. The Department of Agriculture, the Railroad Retirement Board, the Office of Personnel Management, the Labor Department, the National Aeronautics and Space Administration, the Department of Health and Human Services, the Food and Drug Administration, and the U.S. Fish and Wildlife Service are just some of the federal agencies that have their own SWAT units.

But how did these agencies come to acquire their very own police forces? Why do they not rely on the U.S. Marshalls Service or the FBI to enforce federal criminal law? The answer can be found somewhere in the ever-expanding and sprawling federal code that gives these agencies’ inspector generals the authority to make arrests and enforce the law.

Federal Regulatory Over-Criminalization

The number of federal agencies creating their own police and SWAT forces has grown in tandem with the expansion of criminal law into regulatory and civil enforcement areas in the last few decades.

No one knows exactly how many federal regulatory criminal provisions are scattered throughout the federal code, but some legal experts estimate that the number may be as high as 300,000, with hundreds more regulatory criminal laws passed at the federal level every year.

“We’ve seen this reaction from Congress that every problem deserves a criminal remedy,” said Tiffany Joslyn, counsel at the National Association for Criminal Defense Lawyers.

But as the federal code becomes more and more prolific, the criminal statutes passed by Congress authorized agencies’ inspector generals to create means to enforce the law, such as SWAT teams and armed criminal investigators. The statutes also allowed inspector generals to write the copious additional regulations required to make the laws a reality.

Members of the public are increasingly encountering the law enforcement officers and tactical teams who enforce these regulatory statutes.

In 2003, federal law enforcement officers from the U.S. Fish and Wildlife Service, clad in protective Kevlar and bearing semiautomatic weapons, raided the home of George Norris, forcing him to remain in his kitchen as the agents searched his belongings. Norris was indicted for “smuggling” legally imported orchids. In reality, though, his only crime was a paperwork violation; agents found that a small percentage of his documentation for the orchids was inaccurate.

More recently, in April, the U.S. Supreme Court agreed to decide whether a Florida fisherman, John Yates, violated the 2002 Sarbanes-Oxley Act, a post-Enron anti-shredding statute, by throwing three undersized fish from his boat back into the Gulf of Mexico. The Criminal Defense Lawyers filed an amicus brief supporting Yates, arguing his prosecution is an example of unconstitutional executive expansion of federal law.

Joslyn contended that the creation of these criminal statutes and the process for their enforcement doesn’t make sense and serves only to convolute the federal code with unnecessary criminalization of offenses that really should be punishable by civil fines.

“If the conduct [in question] is so egregious that it needs to be addressed criminally, than the agency would typically have to go to the FBI or the [U.S.] Marshalls and get them involved,” said the Criminal Defense Lawyers’s Joslyn. “But the FBI may not be interested because the conduct at issue is actually not that big a deal, so them getting their own police force, their own militia, is essentially their way of making their agency and their regulation tougher and stronger and enforceable criminally.”

It’s a problem that is only beginning to be addressed by lawmakers: The Over-Criminalization Task Force within the House Judiciary Committee met for the first time last year. The task force has held hearings on issues like the erasure of the criminal intent requirement in federal criminal law, the redundancy of state law in the federal code, mass incarceration, mandatory minimum sentences and widespread regulatory criminalization.

The task force is set to have a hearing this month on the consequences of conviction, including the legal barriers faced by those convicted, generalized discrimination and social stigma. The Criminal Defense Lawyers recently released a lengthy report on the subject.

Agency Police May Lack Oversight

The Government Accountability Office hasn’t conducted a survey on federal civilian law enforcement functions since 2006. In that survey, there were more than 25,000 law enforcement officers reported working in government agencies outside of traditional crime-fighting departments. Among the smaller agencies, 3,812 criminal investigators were counted.

Congress typically provides much less oversight of these officers and investigators than it provides officers within traditional federal law enforcement agencies such as the FBI. Committees overseeing these departments pay little heed to their policing practices.

It is often the agencies’ inspector generals that are tasked with enforcing new regulatory criminal laws and expanding public law enforcement. But inspector generals are also intended to serve as the primary sources of accountability within their departments — often, inspector generals are the ones who blow the whistle on officer practices. The massive increase in criminal laws focused on the public has muddled the function of inspectors generals, endangering the integrity of essential oversight.

The operational practices of agency officers have also paralleled the growing trend of increased militarization across local police departments, with officers acquiring military-grade weaponry and armor, often to enforce regulatory law that was once punishable by civil fines.

“These federal agencies are no different in that they want what’s considered to be the best equipment available to law enforcement,” said Jeffrey Bumgarner, a professor of government at Minnesota State University. He has served as a federal officer and written a history of federal law enforcement.

Bumgarner said the expansion of federal regulatory law into criminal law was a troubling trend and one that conservatives and progressives should agree on.

“There’s a lot of common cause to be made between progressives and conservatives on the issue of federal law enforcement, just because progressives tend to be generally suspicious and wary of police power, and conservatives tend to be wary and suspicious of federal power, and so you combine federal with law enforcement, and there’s a lot for a lot of people to be concerned about.”

So, as the USDA begins to acquire its own military weaponry and other unlikely federal agencies stock up on hundreds of thousands of rounds of ammunition, experts and advocates emphasize that it’s still possible to turn this trend around.

“If there were ever a time to stop this trend, for reform and reversal, that time is now, and I saw that because we can take lessons from our friends on the state level that are winning criminal justice reform,” said the Criminal Defense Lawyers’s Joslyn. “Business as usual is being called into question, and that business as usual … is aggressive police tactics, over-criminalization, over-incarceration — all of that is now being called into question and looked at.”