Bringing the War Home

8 May 2003

Just a year after the attacks of September 11, the Pentagon finally achieved a goal it had been seeking for years: the establishment of a military command for the domestic United States. The supposed rationale for creating the US Northern Command (Northcom, in Pentagon parlance) is primarily an antiterrorist one: to use the armed forces in response to a September 11-style or even more severe attack. "It's a recognition by
the Department of Defense that the world has in fact changed," says Pete Verga, a retired US Army officer who served as the first head of the Pentagon's Homeland Security Task Force. "The idea that the homeland is
not a combat zone turned out not to be true."

In fact, Northcom is in some respects just an extension of a trend that has been going on for some time: the weakening of the 1878 Posse Comitatus Act, which prohibits the use of the military to enforce US laws. This trend accelerated with the passage of the Military Cooperation with Law Enforcement Official Act in the early 1980s, along with other laws assigning domestic tasks to the armed forces as part of the War on Drugs. Many Bush Administration officials were early Northcom supporters, among them Lewis Libby, a key player in Vice President Cheney's office who was a member of a working group that created a study called "Defending the U.S. Homeland," published by the Center for Strategic and International Studies in 1999. That study suggested that the Defense Department be given responsibility for domestic antiterrorism as well as "monitoring crossings of the US border" and "protecting the perimeter of key cities."

But where supporters see the establishment of Northcom as an important part of the "war on terror," the American Civil Liberties Union calls it dangerous. "It is a major departure from the tradition of keeping the
military out of law enforcement that will reverberate for decades to come," says Timothy Edgar, legislative counsel for the ACLU's Washington office. And indeed, except for the most unlikely, extreme cases, it's
difficult to envision a scenario in which the military could play an effective antiterrorist role within the United States. "Last Thanksgiving [2001], outside Miami International Airport, there were National Guardsmen in a tank, as if Al Qaeda was going to roll up in a military-style assault," scoffs Gene Healy of the libertarian Cato
Institute, which has monitored the increasing involvement of the military in domestic law enforcement. "It does weird things to our political culture when we start getting used to armed troops on the streets, that we find that comforting," he says. "It makes the United States start looking like we're not a democracy."

At Northcom headquarters at Peterson Air Force Base in Colorado Springs, officials are busily getting things up to speed, with a first-year budget of $70 million. Its staff will soon have its full complement of 500. Agencies with permanent liaison personnel at Northcom include the FBI, CIA, the National Security Agency, the Defense Intelligence Agency and the National Imagery and Mapping Agency, which operates spy
satellites. Northcom also has a Washington office, which provides liaison with the Justice Department and the Federal Emergency Management Agency. More than 200 people will be engaged in gathering domestic
intelligence, receiving information from local and state police as well as US intelligence agencies--reviving critics' memories of how Army intelligence units spied on civilians during the cold war.

The commander of the Northern Command is US Air Force four-star General Ralph Eberhart. Tall, slender and silver-haired, with a chestful of medals, Eberhart looks like someone straight out of Central Casting.
Last fall, he addressed a conference at the National Defense University in Washington, where he noted that before September 11 the idea of something like the Northern Command was a nonstarter. "It was too hard
to get our minds around how to establish a regional command for North America," he said. Now that Northcom is up and running, Eberhart is resolute. "We will," he said, "do what's necessary to protect or to
mitigate the situation, if something's gone down."

When I asked him about what kind of support his command could provide for US law enforcement, he cited recent experiences at the Super Bowl, the Olympics and air patrols over US cities, and he promised to try
actively to engage the military in future events. "Day in and day out, we're going to be working with the [Department] of Homeland Security," he said. "If it's inside the United States, and we think we have
capabilities that we think are applicable, then we will offer those." Making it clear that his unit is not just designed to bring in blankets, tents and medical supplies, he said that his command's engagement will depend on what he called "probability of kill," referring to the armed forces' ability to neutralize terrorists.

Last year, near the height of the post-September 11 homeland security frenzy, armed National Guard units took up positions at border crossings in Maine, Vermont, New York, North Dakota, Minnesota and Montana, and uniformed (but unarmed) National Guard units stood watch at other spots along the borders with Mexico and Canada. Against the advice of the National Guard Bureau itself, state leaders and members of Congress, the Defense Department placed the troops under its command, making them part of the US armed forces rather than allowing them to serve in their usual role as state-controlled militia. "We're making a presence here," Jacob Pierce, a specialist in the Army National Guard serving in Sandy Bay Township, Maine, told the Associated Press. "People look a little more intimidated when they see me."

Also last year, during the 2002 Winter Olympics in Salt Lake City, nearly 5,000 soldiers - including 3,100 from the Guard and 1,800 members of the regular armed forces - surrounded the arenas, flew air patrols above the city and deployed high-tech surveillance equipment. At the time, 4,000 US soldiers were occupying Afghanistan after ousting its Taliban regime, leading Defense Secretary Donald Rumsfeld to tell war-whooping troops in Utah: "We have more people in Utah participating in this Joint Task Force-Olympics ... than we do in Afghanistan." Besides the highly visible combat air patrols, flown round the clock out of nearby Hill Air Force Base, the Pentagon put armored vehicles, snipers, military police and antiterrorism specialists on the ground, and a dozen Black Hawk helicopters in the air. "We had everything from Marines on hilltops with radar units to troops on the ground with magnetometers running security checkpoints," says a Defense Department official.

The Olympics, a high-profile public event, was blanketed with military protection because it was designated a "national security special event." But in fact, so riddled with loopholes is the Posse Comitatus tradition and law that the President can decide to deploy the armed forces and the National Guard on his own authority. "The consistent DoD view has been that the President has sufficient legal authority to use the military in the US when he determines that doing so is appropriate," says Pentagon spokesman Major Ted Wadsworth. That's exactly what happened after September 11, when troops took over airports and downtown intersections and flew combat air patrols over major US cities.

Federalization of National Guard troops is not a new phenomenon (it was used sporadically in the civil rights era), but in the current climate it is something that could come to be regarded as routine. Pentagon officials cite the precedent of the 1992 uprising in Los Angeles after the not-guilty verdict in the trial of police officers charged with beating Rodney King. Then, nearly 10,000 members of the California National Guard were federalized on orders from President Bush, who sent an additional 4,000 Army soldiers and Marines to Los Angeles to serve as a virtual occupying army.

Verga, the former Homeland Security official, says that the Pentagon does not feel at all constrained with regard to deploying forces within the United States. "We've not come across situations where we're
restricted by Posse Comitatus," he says, adding that the military's usefulness can come in many shapes and sizes. It could mean providing high-tech equipment, such as night-vision goggles, to the police, or it
could mean providing local authorities with a helicopter. It could also mean simply providing additional manpower to local or state police. "Or," he says, "it could mean suppressing a riot, the kinds of things
that happened in the 1960s or more recently in Los Angeles."

The specter of the military patrolling streets, making arrests and conducting house-to-house searches is exactly what civil libertarians fear. Edgar of the ACLU cites the case of José Padilla, an alleged would-be terrorist who is an American citizen, who was seized by the military and held incommunicado. "The notion that the US military could march into your home and cart you off to the brig is a frightening one," Edgar says. "Before the incarceration of Padilla, it was inconceivable." According to the ACLU, the Posse Comitatus law is so weakened now that there is very little to prevent the armed forces from carrying out arrests, setting up roadblocks and performing search-and-seizure sweeps. And the Pentagon agrees. "Whether military personnel will have the authority to detain individuals or be given arrest authority depends upon the specific facts of each case," says Wadsworth.

Still, both state officials and the Defense Department have often preferred, so far, to err on the side of caution. During the Olympics, Utah state officials fought to have the state's National Guard kept under state control. Bob Flowers, Utah's commissioner of public safety and thus responsible for the state's homeland security, who oversaw Olympic security, says that the Defense Department itself was reluctant to deploy the regular armed forces to Utah, until prodded by the White House. The issue, he says, "goes to the essence of our Constitution." The National Governors Association agrees; reflecting widespread uneasiness among state officials over the federalization of the National Guard for border duty last year, it has issued a policy paper stating its preference that the Guard be kept under state control.

Some members of Congress also question whether the involvement of the military domestically may be going too far. "We're certainly concerned about keeping a clear line between military and civilian authority," says a key Senate staffer, who adds that both Republicans and Democrats were startled by the Pentagon's decision to deploy federalized National Guard forces along the borders. Later this year, Republican Senator John
Warner of Virginia, chairman of the Senate Armed Services Committee, plans to convene hearings to support his view that legislation may be needed to explicitly overrule the Posse Comitatus Act.

It's early in the governmentwide reorganization of homeland security, and the ultimate role of the US military is still in play. The Department of Homeland Security (DHS) is still taking shape, there's talk about the creation of a National Intelligence Agency and the whole alphabet soup of law enforcement and intelligence agencies is being stirred vigorously. How the domestic antiterrorism effort ultimately makes use of the armed forces, and Northcom's relationship to the FBI, the CIA and the DHS, is not yet determined. Liberals and libertarians
alike can be expected to fiercely resist an expansion of the armed forces' role in domestic law enforcement, and--just as they resisted greater involvement in the war on drugs - the military brass hasn't shown much enthusiasm for a law enforcement role. But in the climate of fear that has gripped the country since September 2001, and particularly if (or when) there is another terrorist incident, the beachhead that
American troops have set up domestically could easily become the base for a significant expansion of the military's role at home.

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