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 , 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 Gen.
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 Maj. 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
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.
Robert Dreyfuss is a contributing editor of The Nation.
Copyright © 2003 The Nation