Blog of Rights

The Erosion of Posse Comitatus

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 2:26pm

(Originally posted on Daily Kos.)

Remember Esequiel Hernandez, Jr.? "Junior," as he was known, was an American teenager shot and killed in 1997 by U.S. Marines as he tended a flock of goats near his home one evening in Redford, Texas. The Marines, fully armed and dressed in camouflage ghillie suits, were operating on U.S. soil as part of a covert counter-drug mission supporting the Border Patrol. They were not supposed to come into contact with civilians; rather they were just to observe and report what they saw to the Border Patrol. But Junior had a .22 caliber rifle with him, and it appears he fired at least one shot from it that evening. What he was shooting at isn't clear. The Marines looked more like tumbleweeds than men, and none of them were hit. But as war-fighters, Marines are trained to engage a threat until it is destroyed, without asking a lot of questions. While this mission orientation is essential in combat, it is a poor fit with the shades-of-gray world of domestic policing. In any event, they followed their military "rules of engagement," advanced their position and returned fire, killing Junior with a bullet to the chest.

The reason I bring this incident up is that it demonstrates the risks of using military forces in domestic law enforcement missions. From their colonial experience, the framers of the Constitution recognized the threat a standing army posed to democracy, and they sought to establish a government that guaranteed civilian control over the military. This ideal was finally codified after the Civil War through the Posse Comitatus Act, which prohibited the Army from engaging in law enforcement activities.

The Posse Comitatus Act should have prevented what happened to Junior. But Congress has weakened Posse Comitatus over the years to involve the military in drug enforcement, border control and all sorts of other "domestic support" operations. Today, the number of domestic missions the military is accepting and the number of troops it is deploying inside the U.S. is drastically increasing, making future tragedies like Junior's only more likely.

The first meeting of a new "Advisory Panel on Department of Defense Capabilities for Support of Civil Authorities After Certain Incidents" is taking place this afternoon. Congress recently charged this panel with evaluating "the authorities and capabilities of the Department of Defense (DOD) to conduct operations in support of U.S. civil authorities in the event of a chemical, biological, radiological, nuclear, or high yield explosive (CBRNE) incident." This effort appears to be part of the latest assault on Posse Comitatus.

The ACLU submitted comments to remind the Panel that this increasing domestic use of military troops cuts against longstanding traditions of civilian dominance and to ask them to consider options other than increasing reliance on military forces.

Last year the Army's 3rd Infantry Division's 1st Brigade Combat Team, fresh from a tour in Iraq, became the first combat troops assigned to the U.S. Northern Command. These 4,700 soldiers would be tasked with responding to a CBRNE event in the U.S., and were not expected to be directly involved in law enforcement operations. But they train and deploy with the National Guard, who are not governed by Posse Comitatus unless called to federal service (so someone in camouflage might still end up pointing a gun at you if they are ever sent on a mission). Moreover, there are indications that the size of this CBRNE response force is going to increase. The Progressive's Matthew Rothschild reported last month that U.S. Northern Command recently distributed a legislative proposal asking Congress to authorize "the Secretary of Defense to order any unit or member of the Army Reserve, Air Force Reserve, Navy Reserve, and the Marine Corps Reserve, to active duty for a major disaster or emergency." This would put "more than 379,000 military personnel in thousands of communities across the United States" at the secretary's command.

Now a CBRNE event could certainly overwhelm the capabilities of local law enforcement and first responders. But if there is a need for a dedicated force to respond to such an event that force should be civilian. After 9/11, we created the Department of Homeland Security (DHS), the largest civilian agency in the federal government, and gave it the mission (PDF) "to prevent and deter terrorist threats and to protect against and respond to threats and hazards to the nation" (emphasis added). If the DOD has a role here, it is to train and equip the civilian agencies responsible for disaster response. There is simply no reason why we have to accept that the military is the only entity capable of responding to CBRNE events. Yesterday, DHS announced it was giving state and local fusion centers access to classified military intelligence in DOD databases, an unusual move given the New York Times reported in July that "Janet Napolitano, the homeland security secretary, said Wednesday that fusion centers were not intended to have a military presence, and that she was not aware of ones that did.

There is no doubt that the military is very good at many things. But recent history shows that restraint in their new-found domestic role is not one of them.

  • In 2001 the National Security Agency began domestic wiretapping and data collection programs we still don't know the true extent of (though we do know the NSA continued to "overcollect" even after Congress legalized the program).

  • In 2003, the Department of Defense began a program to track potential terrorist threats to Department personnel or property. These TALON reports, an acronym for Threat and Local Observation Notices, were designed to permit civilians and military personnel to report on suspicious activity near defense installations. Not surprisingly, the DOD soon strayed from this limited mission and TALON became a repository for information about peaceful anti-war protesters, and even Quakers. Reports were added to the database even when the "threat" was an anti-war protest that occurred far from any military installation and some "threats" the military deemed non-credible were never removed.

  • A detective with the Los Angeles County Sheriff's Office allegedly established a spying ring that included a Marine intelligence specialist stationed at Camp Pendleton, California and a civilian intelligence analyst working at U.S. Northern Command. Together they stole hundreds of highly classified intelligence files from the Strategic Technical Operations Center at Camp Pendleton and secret surveillance reports from the U.S. Northern Command. Some of the stolen files reportedly "pertained to surveillance of Muslim communities in Southern California," including mosques in L.A. and San Diego, and revealed "a federal surveillance program targeting Muslim groups" in the United States. It remains unclear why the military had such records.

  • In the most recently exposed example, just last month a civilian DOD employee working for Fort Lewis Force Protection violated military regulations by infiltrating anti-war protest groups in Olympia, Washington. He used a fake name and posed as a sympathizer for more than a year, all the while reporting the groups' activities to the local law enforcement agencies he worked with.

These examples of excess and overreach amply demonstrate the risks to giving new domestic missions to the military. The military needs to focus on and train for its primary mission of fighting and winning wars. We don't need more tragedies like Junior's, and we can avoid them by assigning civilian missions to civilians.

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