At the beginning of this month, something quite extraordinary occurred in the United States, something that—despite its clearly controversial nature—went almost entirely unaddressed by mainstream media outlets. On October 1, the U.S. military assigned the 1st Brigade Combat Team of the 3rd Infantry Division to the United States Northern Command (NORTHCOM). This means that U.S. soldiers will be operating on U.S. soil, seemingly in direct contradiction of federal law.
The Army Times broke the story early in September, reporting that the unit “may be called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive, or CBRNE, attack....” Since the story ran, NORTHCOM officials have backed off from the “crowd control” and “civil unrest” purposes. As Col. Michael Boatner told Amy Goodman on the Oct. 7 episode of Democracy Now!, “We’re proud to be able to provide this capability. It’s all about saving lives, relieving suffering, mitigating great property damage to infrastructure and things like that, and frankly, restoring public confidence in the aftermath of an event like this.”
Questions remain, however. Why here and why now? With Homeland Security funding already helping to militarize police forces throughout the United States, what additional purpose would a U.S. military unit serve? Well, consider this possibility: The country is facing its most frightening economic crisis since the Great Depression, and civil unrest is more than a looming threat for the government. Then there's the question of whether the maneuver is even legal. Critics of the unit assignment—including Glenn Greenwald at Salon, Amy Goodman, and author Naomi Wolf—cite a longstanding law that appears to be violated by the Pentagon’s recent assignment.
The Posse Comitatus Act, passed in 1878 following Reconstruction, prohibits federal military personnel from acting in a law enforcement capacity in the United States, except if authorized by constitutional amendment or Congress. Also important to note is the Insurrection Act of 1807, which authorizes the president to deploy federal troops to quell lawlessness, insurrection, or rebellion, yet seriously limits his powers by indicating that a state government must first request assistance.
In 2007, Congress amended the act to include the authority to deploy troops in the instances of a natural disaster, epidemic, public health emergency, terrorist attack, or “other condition”—a vague phrase leaving open the possibility of wide-ranging interpretation. Although Congress repealed the amendment via the 2008 National Defense Authorization Act, President Bush attached a signing statement essentially claiming his constitutional authority would allow him to act as he saw fit.
Since September 11, 2001, the executive branch has been slowly chipping away at civilian protections against martial law, possibly rendering both Posse Comitatus and the Insurrection Acts impotent. For example, as noted in 2005 on the Balkanization blog, a footnote in the 2005 book Torture Papers references a memo written by federal judge Jay Bybee in 2001 indicating his (and apparently Alberto Gonzalez’s and John Yoo’s) interpretation of the Posse Comitatus Act as not forbidding the use of military force for the purpose of preventing or deterring terrorism within the United States.
There's also National Security Presidential Directive 51, an executive order issued in May 2007 that defines the president’s unilateral authority to maintain continuity of the government in the instance of a “catastrophic emergency.” In the directive, a “catastrophic emergency” is defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government function.” As Matthew Rothschild, editor of the Progressive, points out, by using the word “or,” the directive could read “any incident... that results in extraordinary levels of... disruption severely affecting the U.S.... economy.” Sounds like a “catastrophic emergency” could be declared today, with a domestic military unit at President Bush’s disposal.
Although Wolf and others go so far as to argue that President Bush has executed a coup and should be arrested or that he could potentially call off the election in the name of an emergency, the chances that we’ll be living in a full-fledged military dictatorship anytime soon are probably slim. It isn’t that the soldiers will suddenly begin patrolling polling stations or shooting fellow citizens; it’s that this action and dramatic expansions of presidential power set a dangerous precedent that could be exploited through hazily legal means.
Because President Bush defined the whole world as a battlefield in the “War on Terror,” the United States is a battlefield, too. And as commander-in-chief, the president’s orders to the domestic military unit could theoretically supersede the law of the land. Whether a president with ill intentions would act on this authority remains to be seen, but even though it hasn’t occurred, we shouldn’t be any less frightened about the possibility of it occurring at any moment. And we should make sure our laws protect against such abuses of power.