Homeland Offense

Washington contemplates deploying the Armed Forces for domestic law enforcement.

By Kelley Beaucar Vlahos

Americans have become so inured to the sight of federal troops fighting fires, rescuing flood victims from rooftops, and engaging in drug interdiction on the border that few eyebrows were raised when news broke that 20,000 active-duty infantry would soon be deployed on American soil for so-called homeland defense.

But critics say this development—announced by U.S. Northern Command (NORTHCOM) in October—is unprecedented and further evidence of a military mission-creep into domestic affairs, particularly in areas for which the National Guard and Reserves are already suited.

“I don’t get it. I don’t understand why they are further encumbering active-duty brigades with this kind of mission,” says Winslow Wheeler, author of America’s Defense Meltdown: Pentagon Reform for President Obama and the New Congress and one of Washington’s few civilian experts on the Pentagon’s Byzantine budget. “It sounds like someone is expanding his empire.”

Pentagon officials say that having a permanent, ready-reaction force capable of responding to a catastrophic event—natural or manmade—is a sensible and necessary outgrowth of post-9/11 national security. But the move has constitutional experts, civil libertarians, and retired and active military scratching their heads. Politicians are now demanding answers, wondering how close the military is to violating the Posse Comitatus Act, the 1878 federal law passed after Reconstruction to prevent federal troops from conducting domestic law enforcement. A separate Department of Defense directive prohibits the Navy and Marines from engaging in such activities.

“We were encouraging the Department [of Defense] to do something different than this,” says an aide to Sen. Patrick Leahy (D-Vt.). The chairman of the Senate Judiciary Committee thinks the federal government “jumped without weighing the pros and the cons,” while reacting to fears that the country would not be able to respond effectively to a future disaster. “[Leahy] asked for a briefing and is watching how it is being handled.” But like any expansion of Washington’s power, a dramatic reversal now seems unlikely unless President Barack Obama gets personally involved.

Meanwhile, the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) is back from duty in Iraq and now training at Fort Stewart, Georgia as the Chemical, Biological, Radiological, Nuclear, High-Yield Explosive Consequence Management Response Force (CCMRF, pronounced “sea smurf.”)

Other forces will join these soldiers to form a total of four domestically garrisoned BCT’s—or about 20,000 troops —by 2012, according to Pentagon spokeswoman Lt. Col. Almarah Belk. From here on, said Belk, CCMRF will have “unique training” in disaster recovery, with “equipment and personnel that cannot be found anywhere else in the federal government.” She insisted that, in adherence to Posse Comitatus, the forces would not be enforcing the law.

“Their primary role is to augment the consequence management efforts of the first responders” at the state level, she told TAC. CCMRF won’t be called in unless requested by governors or if the president declares an emergency. That sounds justified, given fears of another 9/11-style attack and widespread disgust at how federal authorities reacted to Hurricane Katrina, but the last part—if the president declares an emergency—raises some flags.

“If you hand power over to a political official, the chances that it might be abused are better than not,” says Salon writer Glenn Greenwald, author of Great American Hypocrites and a former constitutional litigator. “The potential for mischief—even if it is not intended right now or there is no specific plan for abuse—is quite high if we allow the president to use the military for domestic purposes.”

Greenwald and others point out that there are safeguards such as Posse Comitatus—loosely translated from Latin, “the power of the country”—preventing troops from rolling into town, setting up checkpoints, and arresting people. Only three years ago, however, the Bush administration tried to broaden the criteria under which the president could invoke the 1807 Insurrection Act, allowing the executive branch to override Posse Comitatus and declare martial law.

“These things don’t happen in a vacuum,” said Craig Trebilcock, an Army reservist and former JAG officer who shared his thoughts with TAC as a private citizen and attorney. The Bush administration’s mindset, he added, was to chafe against “any significant restrictions on its use of active duty military forces in the continental U.S.—a tectonic shift from our previous history.”

For nearly 200 years, the Insurrection Act held that the president could only declare martial law “to suppress, in a state, any insurrection, domestic violence, unlawful combination or conspiracy.” That would seem broad enough, but in 2006 the Bush administration managed to push new language through the GOP-controlled Congress that added “natural disaster, epidemic or other serious public health emergency, terrorist attack or incident” to the conditions permitting the president to act.

The changes, buried in the massive Defense Authorization Act of 2006, passed with little dissent on Capitol Hill. After the Democrats recaptured Congress, however, Senator Leahy succeeded in repealing the amendments. It was, according to the senator’s aide, “a bipartisan effort.”

One tiny battle won, but observers say that the slow erosion of Posse Comitatus and other safeguards goes on—with the complicity of an incurious if not compliant citizenry.

The 9/11 attacks and the aggressive posture of federal authority advanced by the Bush administration convinced Americans that “the solution to any significant problem relies on military action,” says Greenwald. “We place our faith now in the power of the executive to solve every potential problem. … When you adopt that mentality, it makes sense, I suppose, to give the president and the military troops under his command even more domestic powers.”

In “The Myth of Posse Comitatus,” a paper Trebilcock wrote in 2000, before the war on terror, he said that Posse Comitatus “is a statutory creation, not a constitutional prohibition. Accordingly, the act can and has been repeatedly circumvented by subsequent legislation,” particularly since 1980, when militarization began in earnest in the largely unsuccessful war on drugs.

For the purposes of drug interdiction and immigration control at the southwest border, restrictions under Posse Comitatus were loosened to allow a wide variety of military surveillance, training, and support activities. Questions about the military’s role finally arose after camouflaged Marines shot and killed a U.S. citizen as he tended goats a mile from his home in Redford, Texas. Esequiel Hernandez Jr., 18, often carried a .22-caliber rifle to ward off coyotes. Patrolling Marines, participating in an antinarcotics effort, said they acted in self-defense, but a subsequent investigation indicated otherwise. None of the Marines was charged, but the government paid $1.9 million to the family in a wrongful-death settlement.

The military was taken off the border, but it has since returned. The U.S. Coast Guard, which is not bound by Posse Comitatus, is also a major player. According to Thomas Schweich, a former Bush deputy secretary for international law-enforcement affairs, the Pentagon is “muscling in everywhere.” Writing for the Washington Post in December, he said the Pentagon runs “a big chunk” of the new Merida Initiative, a $400 million antidrug effort out of the State Department that supposedly complements law-enforcement operations in Mexico, Central America, Haiti, and the Dominican Republic.

In some instances, the expanding military presence on Main Street in non-emergencies has raised alarm. In December, authorities got an earful when the Morongo Basin office of the California Highway Patrol announced it would be working with Marine Corps Military Police to conduct joint sobriety and driver’s license checks in San Bernardino County.

“What has High Desert residents confused is that they are not used to military police so far from the Marine base,” reported local news ABC affiliate KESQ, suggesting that Posse Comitatus had been compromised. Not so, said Marine Lt. Thomas Beck: “We were not actively participating in enforcing any laws. We were just there to observe and observe only” in order to learn about conducting their own sobriety tests on base.

In other cases, residents seem indifferent. Last June, the 26th Marine Expeditionary Unit conducted urban-warfare exercises across central Indiana. According to a WRTV Channel 6 report, Indianapolis “surrendered” 26 sites, “a number of them public parks, where Marines plan to land helicopters and deploy troops.” The two-week training exercise included a force of 2,600 soldiers who fired weapons, conducted patrols, and reacted to ambushes “in an unfamiliar urban environment … in the interest of national defense.” Three months earlier, the media castigated Toledo Mayor Carty Finkbeiner after he pulled the plug on similar maneuvers by a Marine Reserve unit in his city. Finkbeiner said that he hadn’t been informed until the Marines were on their way, and he “didn’t think it was a good idea.”

Federal officials have repeatedly said that the military operates within the law. But they also point out that some key exceptions to Posse Comitatus allow the president to deploy the military for law enforcement to prevent future terrorist attacks and to respond to crimes involving nuclear, chemical, or biological incidents. So far, none of these exceptions has been invoked.

Federal troops certainly operate on U.S. soil today in numerous homeland defense, counter-drug, and civil-support missions under NORTHCOM, but they have only been deployed under martial law ten times since 1957. Each instance involved the federalization of the National Guard to quell violence and unrest: troops shielded civil-rights protesters and students entering desegregated schools in the South and policed race riots following the assassination of Martin Luther King Jr., looting after Hurricane Hugo in the Virgin Islands, and the violence after the 1992 Rodney King decision in Los Angeles. In 1970, the Guard was federalized for the New York City postal strike. More than 1,000 troops delivered the mail.

Whether well-founded or not, fears abound that the new BCT assignments to the homefront foreshadow abuses of executive power; that a president could use the threat of terrorism or an actual attack to invoke the Insurrection Act and call in battle-hardened troops to suppress social disorder or political dissent.

“God forbid, if there were another terrorist attack, would they [CCMRF] be precluded from engaging in law enforcement? You don’t know that,” said Jonathan Hafetz, head of the American Civil Liberties Union National Security Project, which has filed a series of Freedom of Information Act requests with various government agencies to learn more about CCMRF. “There was no public debate on this—it just sort of happened.”

Greenwald argues, “The fact there is a legal framework shouldn’t give anyone confidence that it will be adhered to. You obviously see that in many contexts over the years—illegal wiretapping, torture. Congress hasn’t shown any interest in it at all.”

Which brings us back to CCMRF. “What are the conditions under which they will come in? What’s the trigger? How many will roll in? What is their essential task? That is the key to the puzzle,” says retired Lt. Col. Richard Liebert , who has served on active duty, in the Reserves, and as a National Guardsman.

Like others, Liebert believes the National Guard is a better fit for domestic tasks and can just as easily be a crack force for nuclear, chemical, or biological response. “I argue, why do we even have a Department of Homeland Security when we have National Guard dealing with these issues? … I had plenty of [Guard] students who were forming up chemical response units” before and after 9/11, he added.

The easy response is that the National Guard is too busy fighting in Iraq and Afghanistan. As Liebert points out, they are still rotating in and out like “Groundhog Day.”

“What we have here is a little backward,” adds Trebilcock. “We are sending the National Guard and Reserves overseas and taking the active duty out of combat fighting to remain here in the United States. What’s going on?”

Over at the Pentagon, Belk says it doesn’t work that way. She argues that active National Guard and reservists will eventually support much of the CCMRF anyway. So in a sense, citizen soldiers, not full-timers, will constitute the domestic BCT’s. “This is a 12-month kind of thing, so as the units rotate back into Iraq or Afghanistan, we will rely more on National Guard and Reserves,” she says. In the meantime, DoD and the Department of Homeland Security have put together a task force “in order to enhance the states’ capabilities to prepare for these catastrophic events.”

“While I think it is perhaps a little unnerving to some that we would concentrate so much on the United States, I think it is just a cultural shift,” she explains. “We should be prepared to protect, wherever we can, the homeland.”

Greenwald says there are “conflicting signs” over how President Obama will handle the issue: “You look at his statements over the past year, and it is clear he has a real appreciation of the danger that comes from overreaching executive power.” Yet he concedes, “It is extremely rare for a president to get into office and look at ways to diminish his own power.” And the new president has already appointed two military men to top civilian positions—retired four-star Marine Gen. James L. Jones as national security adviser and Adm. Dennis Blair as director of national intelligence.

The Pentagon maintains that it is not averse to questions from the ACLU or anyone else: “We welcome any debate that keeps us in check and ensures that civil authority rules the land,” says Belk.

But citizens have reason to be wary. “No one likes to see people in military uniforms on the street in an armed capacity,” notes Trebilcock. “We admire our military, but the country was founded on a principle of civilian control of the military, not military control of civilians.”
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Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter.

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