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An Attack on Posse Comitatus?

Anna Christensen,
National Security Project
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October 23, 2008

On Tuesday, the ACLU filed a request under the Freedom of Information Act with the Departments of Defense, Justice, and Homeland Security, demanding an explanation for the Army’s decision to station an active-duty military unit inside the United States. This development represents the first-ever permanent deployment of an active-duty unit within the country. The deployment threatens a significant erosion of the Posse Comitatus Act of 1878 and sparks renewed concerns about the Defense Department’s increasing role in domestic surveillance. It raises critical questions, as the ACLU explained, “about the longstanding separation between civilian and military government within the United States — a separation that dates to the Nation’s founding.”

In the request, the ACLU asked the government to disclose any records relating to its decision to deploy the unit, as well as documents concerning the its purpose, including “contemplated functions; duties; surveillance activities; and relationship to existing civilian agencies or personnel or the National Guard.” The release of these records, the ACLU believes, will allow the public to reach an informed conclusion as to whether the deployment represents an erosion of our rights and a violation of federal law.

Here’s what we do know: The program, entitled the Chemical, Biological, Radiological/Nuclear, and Explosive (CBRNE) Consequence Management Response Force, or CCMRF (pronounced, strangely enough, “sea-smurf”), will be stationed for one year in Fort Stewart, Ga., with the expectation — according to Army Times — that another active-duty brigade will then take over, and that the deployment will be permanent. The first unit to be deployed will be the 3rd Infantry Division’s 1st BCT, or “First Raiders”, which spent 35 of the last 60 months “in Iraq patrolling in full battle rattle” (again, the Army Times‘ characterization). The unit’s explicit mission will be to provide support for civilian law-enforcement branches like local police and rescue personnel: it may be called upon in situations involving civil unrest, crowd control, or catastrophes like chemical, biological, or nuclear attack, and it will be trained in skills like search and rescue and crowd control.

But we also know that the CCMRF deployment jeopardizes the Posse Comitatus Act, a cornerstone of America’s democratic society. Enacted after the end of Reconstruction (and the domestic military occupation that went along with it), the Act prevents the government from using the military as a tool for law enforcement, except in situations of explicit national emergency based on express authorization from Congress (the aftermath of Hurricane Katrina is one example). Posse Comitatus embodies and preserves the separation between civilian and military government crucial to the protection of civil liberties and the avoidance of martial law.

The implementation of the CCMRF program should therefore be extremely troubling to all Americans concerned about their civil liberties. After Hurricane Katrina, the Bush administration began to work for an elimination of the most important elements of the Posse Comitatus Act, eventually helping pass legislation that permitted the President to authorize domestic military deployment in cases of “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” (this “other condition” was not limited in any way by the text of the law). Although that amendment was repealed in 2008, it nonetheless signaled a significant departure from the Posse Comitatus Act, and a substantial broadening of executive power. It stands to reason, then, that the deployment of CCMRF may be just the first example of a series of expansions in presidential and military authority.

The deployment of an active unit within the United States is also troubling given recent evidence of the Defense Department’s involvement in warrantless surveillance. The expansion of the military’s role in domestic law enforcement may pave the way for a further increase in domestic surveillance activities in which the government oversteps its legal authority by listening to the private communications of ordinary Americans.

Not to mention that it makes no sense for an already over-taxed military to expand its operations to responsibilities normally reserved for civilian law enforcement. A 2003 General Accounting Office study found that domestic security missions heavily strain our military, which is already stretched thin in Iraq and Afghanistan, and severely restrict its ability to effectively combat real threats abroad. As Gene Healy, vice-president of the Cato Institute has observed, the military “is not a Swiss army knife”; it cannot be expected to return from Iraq and immediately turn to natural disaster response efforts. And, according to Army Times, the domestic mission “will take place during the so-called dwell time a unit gets to reset and regenerate after a deployment” — that is, instead of relaxing and visiting their loved ones during their much-deserved time off, our soldiers may now be spending their vacation conducting “crowd control” stateside.

In an era where many argue that international efforts should take a back seat to domestic concerns, there may be merit behind the theory of focusing our defense efforts on the homeland; but the deployment of an active-duty unit on our soil raises important questions that need to be addressed — not secretly behind closed doors, but openly by the American people. We have a right to know why the government has made the unprecedented decision to implement the CCMRF program, and the true threat it poses to our civil liberties.

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