ACLU Demands Information on U.S. Military Domestic Operations

ACLU Demands Information on U.S. Military Domestic Operations

On Tuesday, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request demanding information from the government on U.S. Northern Command’s (NORTHCOM) deployment of the 3rd Infantry Division’s 1st Combat Brigade Team (BCT) on U.S. soil for “civil unrest” and “crowd control” duties.

Last month, Army Times published a piece detailing how the 1st BCT spent “35 of the last 60 months in Iraq.” The 1st BCT–also known as the “Raiders”–carried out house-to-house raids and engaged in close-quarters combat in the city of Ramadi to suppress Iraqi resistance to U.S. occupation, according to a report on the World Socialist Website.

Readers will recall my October 11 piece, “Militarizing the Homeland:” NORTHCOM’s Joint Task Force-Civil Support,” that described NORTHCOM’s Vibrant Response exercise at Fort Stewart, Georgia.

In tandem with the elite 82nd Combat Aviation Brigade, the 1st BCT participated in mock drills designed to “coordinate with local governments and interagency organizations such as the Federal Bureau of Investigation and the Federal Emergency Management Agency,” U.S. Northern Command News reported.

The Pentagon revealed that 1st BCT is a key component of NORTHCOM’s Joint Task Force-Civil Support (JTF-CS), designed to “execute both homeland defense and civil support missions.” As I pointed out in a piece earlier this month, current Army doctrine is heavily-weighted towards contingency planning for “civil disturbances.”

Indeed, Army Times reported that the 1st BCT would be kitted out with “the first ever nonlethal package that the Army has fielded.” The publication reported, “the package includes equipment to stand up a hasty road block; spike strips for slowing, stopping or controlling traffic; shields and batons; and, beanbag bullets.” But after spilling the proverbial beans, Army Times retracted that portion of their report.

NORTHCOM now claims that a “nonlethal” weapons package was intended only for use in Iraq and not in the heimat. In the opinion of this writer, this is nothing more than a feeble Pentagon move to spin a story that has garnered much unfavorable publicity since it first appeared.

Rules for domestic military operations, including as an armed force to suppress “civil disturbances,” are clearly spelled out in Department of Defense Directive 3025.12 (DoD 3025.12), “Military Assistance for Civil Disturbances” (MACDIS). Army doctrine and rules of engagement for civil disturbance and “riot control” planning have long recommended equipping troops with “non-lethal weapons” (NLWs) for what the Pentagon euphemistically calls “operations other than war.”

As researcher and activist Frank Morales reported in Police State America, the Center for Army Lessons Learned (CALL), located at Fort Leavenworth, Kansas, “reacting to a growing sense of urgency to field weaponry in step with the requirements of globalization, issued a primer on the subject, entitled, Civil Disturbances: Incorporating Non-Lethal Technology, Tactics, Techniques and Procedures,” in 2000. Why is the Pentagon now so hesitant to come clean on plans for using NLWs in the “homeland”?

Since the late 1960s, the military has gradually expanded its brief to include domestic law enforcement, drug interdiction and border security, in clear violation of the Posse Comitatus Act. The 1878 law specifically bars the use of the military in domestic policing. However the trend towards militarizing the inherently civilian nature of locally controlled law enforcement has accelerated since the September 11, 2001 terrorist attacks, most infamously with the October 2002 creation of NORTHCOM itself.

U.S. Northern Command’s original mandate “to provide command and control of Department of Defense (DoD) homeland defense efforts and to coordinate defense support of civil authorities,” has since expanded with the May 2007 National Security Presidential Directive 51, Homeland Security Presidential Directive 20 (NSPD 51/HSPD 20).

Indeed, as previously reported, NSPD 51/HSPD 20’s top secret Continuity of Government annexes have been refused to members of Congress; a clear move by the White House to inhibit the legislative branch from performing its lawful oversight functions. What then, is the Bush administration hiding from Congress and the American people?

The ACLU stakes out the legal ground on the erosion of Posse Comitatus and states,

Civilian authorities, not the military, have historically controlled and directed the internal affairs of the United States. This rule traces its origins to the nation’s founding and has been reaffirmed in landmark statutes including the Posse Comitatus Act, which helps preserve the foundational principles of our Constitution and democracy. (”ACLU Demands Information on Military Deployment within U.S. Borders,” Press Release, October 21, 2008)

Jonathan Hafetz, a staff attorney with the ACLU National Security Project inquires: “What is the unit’s mission? What functions will it perform? And why was it necessary to deploy the unit rather than rely on civilian agencies and personnel and the National Guard? Given the magnitude of the issues at stake, it is imperative that the American people know the truth about this new and unprecedented intrusion of the military in domestic affairs.”

Indeed, senior NORTHCOM commanders have repeatedly dodged these questions. During an emergency, they claim JTF-CS “supports” the “Primary Federal Agency [PFA] … designated to coordinate the government’s response to a disaster or emergency situation.” But “support” to a civilian agency is not the same as playing a subordinate role to civilian leadership. This is stated unambiguously by NORTHCOM: “Although the JTF-CS supports the PFA throughout a CBRNE [chemical, biological, radiological, nuclear and high-yield explosive] consequence management operation, the unit operates within a clear Department of Defense chain of command.”

In other words, the “chain of command” followed by JTF-CS begins and ends with the Executive Branch and the President in his role as leader of the “unitary executive branch” and Commander-in-Chief. As former FBI whistleblower and senior ACLU national policy counsel Mike German states, “This is a radical departure from separation of civilian law enforcement and military authority, and could, quite possibly, represent a violation of law.”

To facilitate an open and public assessment of recent “homeland” military deployments, the ACLU demanded that the Departments of Justice, Homeland Security and Defense “immediately make public all legal opinions, executive orders, presidential directives, memos, policy guidance, and other documents that authorize the deployment of military troops for domestic purposes.”

Such a demand arises precisely because of the unprecedented expansion of the U.S. national security-surveillance complex since the 9/11 attacks. As the civil liberties’ group pointedly reminds us,

[T]he Department of Defense has dramatically expanded its role in domestic law enforcement and intelligence operations, including the National Security Agency’s warrantless wiretapping programs, the Department of Homeland Security’s use of military spy satellites, and the participation of military personnel in state and local intelligence fusion centers. The ACLU has repeatedly expressed concern about these incremental encroachments of the military into domestic affairs, and the assignment of active duty troops to Northern Command only heightens these concerns.

Unfortunately, some, if not most members of Congress, rather than defending the rights of the American people would rather re-write Posse Comitatus to reflect the needs of an “Executive Branch gone wild.” As David Swanson reported on AfterDowningStreet.org, Senator John Warner wrote a constituent who had expressed alarm over the 1st BCT’s attachment to NORTHCOM. Swanson commented,

This, like other changes imposed by President Bush, of course violates the Posse Comitatus Act. It also served to strengthen the threats of martial law that Congressman Brad Sherman reported the White House making to Congress members in order to win their support for the $780 billion give-away to Wall Street. (David Swanson, “Sen. Warner Supports Domestic Use of Military, AfterDowningStreet.org, October 21, 2008)

Claiming he is “deeply concerned that the Department of Defense and the President may not have authority to use active duty personnel in the most effective manner,” Warner writes,

I believe we must review the 1878 Posse Comitatus Act and similar provisions that limit the role of the active duty military to ensure that every available asset is properly employed in any type of future emergency situation. Title 18, Section 1385 of the U.S. Code, commonly referred to as the Posse Comitatus Act, prevents the armed forces from becoming involved in law enforcement activities for which, in most cases, they are not specifically trained or equipped. Posse Comitatus is largely rooted in historical tradition that prohibits military involvement in civilian affairs.

To be clear, I do not believe that U.S. law pertaining to this matter needs to be entirely rewritten. I do, however, think it is necessary that we review the regulations governing use of military personnel in domestic operations in order to better understand how all of our military assets can best assist during emergency situations.

Attentive readers will recall that “The John Warner National Defense Authorization Act for Fiscal Year 2007,” included a section that permitted the President to deploy the armed forces to “restore public order” or to “suppress any insurrection.” As Democracy Now’s Amy Goodman reported earlier this month, “while a later bill repealed this, President Bush attached a signing statement that he did not feel bound by the repeal.”

The ACLU’s concerns are fully warranted and demand an impartial evaluation of the dangerous implications for democracy, particularly in light of the current capitalist economic crisis. As the historic meltdown deepens, social tensions–and struggles–will inevitably intensify. As researcher and analyst Michel Chossudovsky wrote,

Civil unrest resulting from the financial meltdown is a distinct possibility, given the broad impacts of financial collapse on lifelong savings, pension funds, homeownership, etc.

The timing of this planned militarization is crucial: how will it affect the presidential elections scheduled for Tuesday November 4.

The brigade in its domestic homeland activities will be designated as the Consequence Management Response Force (CCMRF).

What “Consequences” are being envisaged? (”Pre-election Militarization of the North American Homeland. US Combat Troops in Iraq repatriated to ‘help with civil unrest’,” Global Research, September 26, 2008)

While the state justifies this deployment as a response to “terrorist threats,” what other scenarios are being contemplated?

With daily reports of voter suppression drives by the Republican Party in multiple “battleground” states hitting the corporate media, and a major exposé of these antidemocratic operations by Robert F. Kennedy Jr. and Greg Palast published in Rolling Stone, Washington’s plans for the use of military force at home is a dagger aimed directly at the American people–and what remains of a democratic republic–by a thuggish and bankrupt ruling elite.

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Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. In addition to publishing in Covert Action Quarterly, Love & Rage and Antifa Forum, he is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press. Read other articles by Tom, or visit Tom's website.