RALEIGH — A recent article written by Assistant Professor Anthony “Tony” Ghiotto explores when the military can be used to enforce domestic civilian law and whether evidence obtained by the military acting in this capacity should be suppressed under the exclusionary rule.
The article, “Defending Against the Military: The Posse Comitatus Act’s Exclusionary Rule,” was published in the Harvard National Security Journal on June 19, 2020.
“This Article makes a relatively straightforward but novel argument — the Constitution affords each American a right to be free from military control, meaning each individual has the right to be free from the federal military exercising or threatening any actual or apparent authority over her actions unless Congress or the President has constitutionally granted the military such authority. Because the enforcement of civilian law inherently involves the military exercising some control over a citizen, this Article argues that the PCA is an effort by Congress to protect that right. As a statute designed to safeguard a constitutional right, there must be an effective enforcement mechanism. The most appropriate enforcement mechanism available for violations of the PCA is the exclusionary rule, which allows courts to suppress illegally obtained evidence and thereby deters future violations.”
The full article is available at this clickable link.
Ghiotto, who joined the Campbell Law School faculty in fall 2017, teaches Criminal Law, Criminal Procedure, Administrative Law and Trial Advocacy. Ghiotto’s scholarship focuses on legislative, judicial and political remedies to protect individual liberties and rights in times of constitutional dysfunction. He especially explores constitutional dysfunction and potential remedies in the realms of Fourth Amendment and Fifth Amendment jurisprudence as well as in national security matters.
Prior to joining the Campbell Law faculty, Ghiotto spent nearly 12 years as a judge advocate in the United States Air Force. While serving as an active duty judge advocate, Ghiotto prosecuted a wide range of felonies, served as a staff attorney at the Air Force’s military justice headquarters, and performed duties as a Staff Judge Advocate. As a Staff Judge Advocate, Ghiotto served as the principal legal advisor to the Wing Commander, all subordinate commanders, directly supervised a legal office consisting of twenty legal professionals, and was responsible for the provision of legal services to more than 3,000 active duty personnel and their dependents.
Ghiotto deployed to Parwan Province, Afghanistan, in support of Operation Enduring Freedom. During his six-month deployment, Ghiotto represented the United States in more than 100 hundred detainee review board hearings. He also performed special duties at the Office of the Secretary of Defense, Defense Legal Policy Board, in its investigation and report to the Secretary of Defense regarding the military services responses to civilian casualties caused by American servicemembers in Iraq and Afghanistan. Ghiotto is a graduate of the Air Force’s prestigious Air Command and Staff College, earning a master’s degree in Military Operations and Science with Academic Distinction. He separated honorably from the Air Force in 2017, having been selected to the rank of lieutenant colonel. He continues to serve as a judge advocate with the Georgia Air National Guard.
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