American armed forces are assuming major new domestic policing and
surveillance roles.
By William M. Arkin William M. Arkin is a military
affairs analyst who writes regularly for Opinion. E-mail:
[email protected].
November 23, 2003
SOUTH POMFRET, Vt. — Preoccupied
with the war in Iraq and still traumatized by Sept. 11, 2001, the American
public has paid little attention to some of what is being done inside the United
States in the name of anti-terrorism. Under the banner of "homeland security,"
the military and intelligence communities are implementing far-reaching changes
that blur the lines between terrorism and other kinds of crises and will break
down long-established barriers to military action and surveillance within the
U.S.
"We must start thinking differently," says Air Force Gen. Ralph E.
"Ed" Eberhart, the newly installed commander of Northern Command, the military's
homeland security arm. Before 9/11, he says, the military and intelligence
systems were focused on "the away game" and not properly focused on "the home
game." "Home," of course, is the United States.
Eberhart's Colorado-based
command is charged with enhancing homeland security in two ways: by improving
the military's capability to defend the country's borders, coasts and airspace —
unquestionably within the military's long-established mission — and by providing
"military assistance to civil authorities" when authorized by the secretary of
Defense or the president.
That too may sound unexceptionable: The
military has long had mechanisms to respond to a request for help from state
governors. New after 9/11 are more aggressive preparations and the presumption
that local government will not be able to carry the new homeland security load.
Being the military, moreover, contingency planners approach preparing by
assuming the worst. All of this is a major — and potentially dangerous —
departure from past policy.
The U.S. military operates under the 1878
Posse Comitatus Act, which prohibits the direct use of federal troops "to
execute the laws" of the United States. The courts have interpreted this to mean
that the military is prohibited from any active role in direct civilian law
enforcement, such as search, seizure or arrest of civilians.
"There are
abundant reasons for rejecting the further expansion of the military's domestic
role," says Mackubin T. Owens, a professor of strategy and force planning at the
Naval War College. Looking at the issue historically, Owens wrote in an August
2002 essay in the National Review's online edition that "the use of soldiers as
a posse [places] them in the uncomfortable position of taking orders from local
authorities who had an interest in the disputes that provoked the unrest in the
first place." Moreover, Owens said, becoming more involved in domestic policing
can be "subtle and subversive … like a lymphoma or termite infestation." Though
we are far from having "tanks rumbling through the streets," he said, the
potential long-term effect of an increasing military role in police and law
enforcement activities is "a military contemptuous of American society and
unresponsive to civilian authorities."
Eberhart says his Northern Command
operates scrupulously within the bounds of the law. "We believe the [Posse
Comitatus] Act, as amended, provides the authority we need to do our job, and no
modification is needed at this time," he told the House Armed Services Committee
in March.
Of course, what he knows is that amendments approved by
Congress in 1996 for that earlier civilian war, the war on drugs, have already
expanded the military's domestic powers so that Washington can act unilaterally
in dispatching the military without waiting for a state's request for help. Long
before 9/11, Congress authorized the military to assist local law enforcement
officials in domestic "drug interdiction" and during terrorist incidents
involving weapons of mass destruction. Furthermore, the president, after
proclaiming a state of emergency, can authorize additional
actions.
Indeed, the military is presently operating under just such an
emergency declaration. Eberhart's command has defined three levels of
operations, each of which triggers a larger set of authorized activities. The
levels are "extraordinary," "emergency" and "temporary." At the "temporary"
level, which covers such things as the Olympic Games or the Super Bowl, limited
assistance can be provided to law enforcement agencies when a governor requests
it, primarily in such areas as logistics, transportation and communications.
During "emergencies," the military can provide similar support, mostly in
response to specific events such as the attacks on the World Trade
Center.
It is only in the case of "extraordinary" domestic operations
that the unique capabilities of the Defense Department are deployed. These
include not just such things as air patrols to shoot down hijacked planes or the
defusing of bombs and other explosives, , but also bringing in intelligence
collectors, special operators and even full combat troops.
Given the
absence of terrorist attacks inside the United States since 9/11, it may seem
surprising that Northern Command is already working under the far-reaching
authority that goes with "extraordinary operations." But it is.
"We are
not going to be out there spying on people," Eberhart told PBS' NewsHour in
September. But, he said, "We get information from people who do." Some of that
information increasingly comes not from the FBI or those charged with civilian
law enforcement but from a Pentagon organization established last year, the
Counterintelligence Field Activity (CIFA). The seemingly innocuous CIFA was
originally given the mission of protecting the Defense Department and its
personnel, as well as "critical infrastructure," against espionage conducted by
terrorists and foreign intelligence services.
But in August, Defense
Secretary Donald H. Rumsfeld expanded CIFA's mission, charging it with
maintaining "a domestic law enforcement database that includes information
related to potential terrorist threats directed against the Department of
Defense." The group's Assessments and Technology Directorate, which shares
offices with the Justice Department's Foreign Terrorist Tracking Task Force, has
already identified 200 foreign terrorist suspects in the U.S., according to a
Defense Department report to Congress.
This year, the Pentagon inspector
general authorized assigning military special agents to 56 FBI Joint Terrorism
Task Force operations at FBI field offices. These military agents will pursue
leads in local communities of potential threats to the military. Eberhart also
plans to have his own cadre of agents working with local law enforcement. Next
year, he plans to transform Joint Task Force Six, a drug interdiction unit of
160 military personnel at Ft. Bliss, Texas, into Joint Interagency Task Force
North. The new task force will be given nationwide responsibility for working
with law enforcement agencies.
CIFA, moreover, has been given a domestic
"data mining" mission: figuring out a way to process massive sets of public
records, intercepted communications, credit card accounts, etc., to find
"actionable intelligence." "Homeland defense relies on the sharing of actionable
intelligence among the appropriate federal, state, and local agencies," says Lt.
Gen. Edward G. Anderson III, Eberhart's deputy.
Another ambitious
domestic project is being undertaken by the National Geospatial-Intelligence
Agency, which is gathering "geospatial information" about 133 cities, the
borders and seaports. This "urban data inventory" combines unclassified and
classified data (including such things as the location of emergency services,
communications, transportation and food supplies) with a high-resolution
satellite map of the United States. When the mapping efforts are completed, a
national "spatial data infrastructure" will be created down to the house level.
Intelligence analysts speak of one day being able to identify individual
occupants, as well as their national background and political affiliations.
Though the military is just getting its systems in place, there can be no other
conclusion: Domestic surveillance is back.
It's not that we're heading
toward martial law. We're not. But outside the view of most of the public, the
government is daily expanding military operations into areas of local government
and law enforcement that historically have been off-limits. And it doesn't seem
far-fetched to imagine that those charged with assembling "actionable
intelligence" will slowly start combining databases of known terrorists with
seemingly innocuous lists of contributors to charities or causes, that
membership lists for activist organizations will be folded in, that names and
personal data of anti-globalization protesters will be run through the "data
mine." After all, the mission of Northern Command and other Pentagon agencies is
to identify groups and individuals who could potentially pose threats to Defense
Department and civilian installations.
Given all this, it might be a
good time for state and local governments to ask themselves whether the federal
government, through the military, is slowly eroding their power to manage what —
for very good reasons — have always been considered local responsibilities.
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