The proposed new Homeland Security strategy recently released by the administration of President George W. Bush quietly unearths, in seemingly innocuous language buried on p. 48, an old idea that deserves robust public debate: "The threat of catastrophic terrorism requires a thorough review of the laws permitting the military to act within the United States in order to determine whether domestic preparedness and response efforts would benefit from greater involvement of military personnel and, if so, how."
What this review means is that the Bush administration now is casting a critical eye on the Posse Comitatus Act of 1878. It might mean giving the federal government authority to deploy the National Guard in emergencies, currently a power reserved for governors, or to use the military for civilian defense, including enforcing quarantines in case of a biological weapons attack.
Administration officials have thus far downplayed the implications of reviewing the Posse Comitatus Act. Homeland Security Director Tom Ridge said "the public discussion is really about the private discussion that will undoubtedly occur between the new secretary of the Department of Homeland Security and the Secretary of Defense Donald Rumsfeld, once his new North American Command is established, because I think it would be very appropriate for the two secretaries to determine what military assets would be available, under what circumstances, to support civilian authorities in the event of another terrorist attack."
Similarly, Gen. Ralph E. Eberhardt, the designated head of the new Northern Command (NORTHCOM) that the Pentagon is forming explicitly for homeland security functions, said he would favor changes in existing law to give greater domestic powers to the military to protect the country against terrorist strikes.
Eberhardt said he had no specific changes in mind, but added: "we should always be reviewing things like Posse Comitatus and other laws if we think it ties our hands in protecting the American people."
However, such changes could have far-reaching, and potentially negative, ramifications for both the U.S. military and the country at large. Indeed, the willingness of Eberhardt and some other senior officers to consider amending the post-Civil War Reconstruction law is a shift in thinking by many top Pentagon officials, who have traditionally been wary of involving the military in domestic law enforcement. Military leaders have generally supported the restrictions because their troops were not specifically trained in those roles, and they worried that domestic tasks could lead to serious political problems. As recently as May, Rumsfeld said the Pentagon would not seek any changes in the law, and the legal review contained in Bush's new plan for domestic security surprised many senior officers and Pentagon officials.
Military leaders should be wary. Efforts to further weaken the Posse Comitatus Act are, at a minimum, unnecessary, and at a maximum, potentially damaging.
In fact, Congress already has passed several laws relaxing the strictures of the act in order to deal with potential attacks on American soil. In 1997, Congress gave the Pentagon authority to cooperate with the Justice Department in responding to biological or chemical attacks. Another law gives the president authority in an emergency to use the armed forces to perform work "essential for the preservation of life and property." Another allows military personnel to assist the Justice Department in collecting intelligence or conducting searches and seizures if "necessary for the immediate protection of human life." Section 104 of the USA Patriot Act passed last year further authorizes the emergency use of the military in "case of attack with a weapon of mass destruction."
Over the years, the law has been amended to allow the military to lend equipment to federal, state and local authorities; assist federal agencies in drug interdiction work; protect national parks; and execute quarantine and certain health laws. About 5,000 federal troops supported civilian agencies at the Winter Olympics in Salt Lake City this year.
Additionally, as conservative observers often like to point out, the Posse Comitatus Act does not presently forbid all U.S. military units from enforcing domestic laws. The plain language of the law does not cover the Navy, Marine Corps or National Guard. The act expressly applies only to the Army and Air Force," wrote Matthew Carlton Hammond in an article in the Washington University Law Quarterly (Summer 1997). "Congress did not mention the Navy, Marine Corps, Coast Guard, or National Guard in the [Posse Comitatus Act]; accordingly, the [act] does not limit them. However, the Department of Defense has extended by regulation the [act's] prohibitions to the Navy and Marine Corps."
The Pentagon, furthermore, has already taken significant steps to participate in homeland defense. On Oct. 2, 2001, Rumsfeld announced he had designated Army Secretary Thomas E. White as the Defense Department's executive agent for all homeland security matters. Additionally, the Pentagon plans to consolidate U.S. offices associated with homeland defense under a new undersecretary.
The Defense Department also has expanded the role of the U.S. Joint Forces Command (JFCOM), giving it additional authority to coordinate and deploy military forces to fight terrorism in the continental United States. The commander was placed in charge of land and maritime defense of the continental United States, as well as providing military assistance to civil authorities. JFCOM already was responsible for providing support to civilian authorities responding to attacks or disasters, and for planning the land and maritime defense of the continental United States. Now JFCOM has the power to deploy military forces domestically to fight terrorism and defend the homeland, an authority previously left to the defense secretary.
In the wake of Sept. 11, U.S. Air Force pilots were authorized to shoot down commercial airliners, if necessary. And, as noted above, the Pentagon has established NORTHCOM for homeland defense. On April 17, 2002, NORTHCOM was assigned the defense of the United States and military support to civil authorities. The continental United States, Alaska, Canada, Mexico, and portions of the Caribbean region, including Cuba, will be designated as NORTHCOM's area of responsibility. NORTHCOM's commander will also be responsible for security cooperation and military coordination with Canada and Mexico, and it will begin operations on Oct. 1, 2002.
Taken together, all these measures give the president authority to use the military in most conceivable emergency situations. There is little reason to do more, and, indeed, there are reasons to be concerned about any further military involvement in homeland security.
From a civil liberties viewpoint, while members of the armed forces take an oath to uphold and defend the Constitution, they are not trained, like the police, to uphold Americans' rights to privacy and due process. Civil libertarians' fears about due process have been heightened since Sept. 11 by the indefinite detention of citizens and immigrants, and by proposals to try them before secret military tribunals.
More importantly, there are issues from a practical viewpoint. The U.S. armed forces of 2002 are one-third smaller than the armed forces of 1990, but have the same, if not more, missions around the world. They are stretched thin, the latest figures showing that more than 30 percent are ashore or afloat outside the continental United States on any given day. Military leaders should be concerned about the prospect that homeland defense duties could dilute their primary mission: fighting the nation's battles abroad.
Further, the U.S. military is not well organized or trained to deal with homeland security missions. Military organizations focus on centralization and the ability to rapidly "mass" forces to operate as large units, while police are slow to assemble and are trained to function safely in pairs. To presume that combat troops can somehow fit effortlessly between roles in to disparage both professions. And military men and women are not trained to be good cops - they are trained as soldiers. In simple terms, soldiers search and destroy while the police search and capture.
A better approach to homeland security would be a militia, which would better accord with American tradition. Indeed, the members of the U.S. National Guard, who already are quasi-law enforcement troops under the control of the state governors, could perhaps serve such a function. But any move to so empower the National Guard also must be done with caution, and proper training. Badly trained guardsmen could also cause tragedy, as was the case with four student protesters were killed and nine wounded by poorly prepared National Guard troops at Kent State University in Ohio in 1970, during demonstrations against the war in Vietnam. America does not need such a disaster again.
It behooves the Bush administration and the U.S. Congress to seriously consider the potential costs of any moves to rewrite the Posse Comitatus Act. And it behooves them to do it in a public manner, rather than behind the scenes as now seems to be the case.
Sources
Naval War College Posse Comitatus References
Mackubin Thomas Owens, "Soldiers Aren't Cops," nationalreview.com
John R. Brinkerhoff, "The Posse Comitatus Act and Homeland Security," ANSER Journal of Homeland Security," February 2002.
Brigadier General Joseph R. Barnes, USA (Ret.), "Despite The Posse Comitatus Act, Are Federal Soldiers About to Deploy as Deputized Border Patrol and Customs Agents?," ANSER Journal of Homeland Security," February 2002.
"The Posse Comitatus Act: A Principle In Need Of Renewal," L75 Wash. U. L.Q. 953.
Sec. 1511. Study and Report on the Role of the Department of Defense with Respect to Homeland Security, Conference Report on S. 1438, National Defense Authorization Act For Fiscal Year 2002, Congressional Record: December 12, 2001 (House), Page H9333-H9383.
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