Senators May Attach Strings to Federal Surplus Programs for Local Police

Sen. Claire McCaskill, D-Mo., is considering legislation to improvement management of the Pentagon's 1033 program. Sen. Claire McCaskill, D-Mo., is considering legislation to improvement management of the Pentagon's 1033 program. J. Scott Applewhite/AP

Invoking  images of 20-ton armored vehicles confronting unarmed protestors after last month’s police shooting of a black youth in Missouri, senators on Tuesday quizzed agency officials on tightening oversight of federal programs that transfer surplus equipment to local law enforcement and provide anti-crime grants under post 9/11 calculations.

The result, said speakers at a hearing of the Senate Homeland Security and Governmental Affairs Committee, could be legislation to more closely monitor  the types of weapons the government gives away while improving training in police sensitivities to the intimidating effect of heavy weaponry in local communities.

“Since 1997, federal agencies have supplied over $5 billion in surplus Department of Defense supplies and equipment to law enforcement,” noted Chairman Tom Carper, D-Del. , adding that the Justice and Homeland Security departments both administer multi-million-dollar grant programs that also can pay for military-style gear such as armored vests and vehicles. “We have responsibility to ensure accountability of funds and equipment provided by the federal government to state and local police. It is our job to ensure that these programs provide value to police, the communities they serve and the taxpayer.”

Sen. Claire McCaskill, D-Mo., fresh from frequent visits to the troubled town of Ferguson, said, “I  saw first-hand how aggressive tactics used in the name of crowd control, like a sniper pointing a rifle at an unarmed protester, are not consistent with our First Amendment rights. He did not deserve to be treated like an enemy combatant.”

Acknowledging the simultaneous need to protect uniformed law enforcement officials, McCaskill said the legislation she is considering must improve management of the 1033 program, set up by Congress in the early 1990s to allow local communities to take advantage of Defense Department surplus furniture, microwaves and vehicles, as well as pistols, rifles and armor. 

Also commonly transferred to states and communities are the 14-ton-plus Mine Resistant Ambush Protected (MRAP) armored vehicles, which, McCaskill said, in states such as Texas and Florida are more common in city governments than in the National Guard. “Any vehicle, even if painted black and used with discretion, can be intimidating and may be asking for militarization,” she said. In addition, as much as 36 percent of what the Pentagon gives away is “brand new,” she thundered. “What you gave away this year I guarantee you bought this year—it drives me crazy.”

McCaskill also complained that DHS and Justice do not track the anti-crime grant money closely enough, and provide insufficient training in use of the federal equipment.

Witnesses from the agencies agreed that oversight could be improved and said they were working closely with a White House unit exploring what went wrong in Ferguson.

Alan Estevez, principal deputy undersecretary of Defense for acquisition, technology and logistics, defended the existence of a surplus. “As the force structure changes, as the budget changes under the Budget Control Act, things we thought we’d need we no longer need,” he said.

The Defense Department “does not have the expertise” to train or determine how local police departments select and use the surplus equipment, he testified. He told the lawmakers his job is to provide “good stewardship for the taxpayer dollar” in forwarding the materials to 8,000 local agencies in 49 states and territories. About 96 percent of the goods are “non-controlled,” he said, meaning the localities can use them as they see fit, but the remaining 4 percent are “controlled” weapons, including night-vision goggles and Humvees, for which the Defense Department retains title for accountability.

But Estevez agreed that the Pentagon’s consultation with Justice on the 1033 program’s risks “is currently lacking.”

Brian Kamoie, assistant administrator for grant programs at the Federal Emergency Management Agency, said all spending is monitored by inspectors general and state auditors, and that resources are allocated according to crime and terrorism “risk profiles” created by intelligence staffs, which prompted the Homeland Security secretary to designate 39 highest-risk communities this year. “We work closely with states and tribes on oversight,” he said, citing the response to last year’s Boston Marathon bombing as an example of effective “planning, equipment, training and exercises” by DHS and other law enforcement components.

Karol Mason, assistant attorney in Justice’s Office of Justice Programs, said her agency’s Justice Assistance Grants based on formulas factoring in population and violent crime frequency “improve effectiveness and efficiency of the justice system.” There are quarterly and annual reports to assure against misuse, she said, and the department conducts a police public contact survey to gauge police interaction with citizens to provide data on excessive use of force. “We continue to bring the latest knowledge and best tool to this problem,” she said.

Sen. Tom Coburn, R-Okla., the panel’s ranking member, asked why localities need MRAPs and who decides if delivery is appropriate. He also challenged the FEMA officials’ claim that federal funds were key to capturing the surviving Boston bomber, “who was found when a guy spotted him in his backyard boat and called 911,” Coburn said.

Kamois disagreed, pointing to infrared vision equipment that played a role.

Sen. Ron Paul, R-Ky., said he was puzzled that 12,000 bayonets are among the items available to states for free from DoD, and noted that such equipment is explicitly “not supposed to be used for riot suppression.” The FEMA official agreed, saying his agency, once it learns the final facts on what federal weapons were present in Ferguson, will take corrective action.

The reason the program has gone on, said Sen. Ron Johnson, R-Wis., is that “local police departments get things for free from federal government, where the saying is, ‘use it or lose it.’ ”

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