Will recession-induced budget cuts result in the National Guard being deputized as lawmen in Jefferson County, Ala.?
While he may be bluffing for effect, Jefferson County Sheriff Randy Christian didn’t seem to be altogether unserious when he suggested that soldiers might be brought in to supplement policing gaps supposedly left by a $4 million budget cut in August. In fact, Gov. Bob Riley didn’t rule it out, either, probably for the same reason that the sheriff in Geneva County, Ala., didn’t think twice to call upon local U.S. military to help him out in the wake of a murder spree, or why the state of Colorado is now giving the National Guard a cut of federal asset forfeiture booty in exchange for its help in fighting the War on Drugs.
It’s why, when the New York Times revealed recently that former vice president Dick Cheney had wanted to deploy active-duty Army soldiers to arrest the so-called Lackawanna Six, a group of wannabe terrorists in Buffalo in 2002, it registered as no more than a titillating blip on the 24-hour news cycle. It’s why no one seems to care that an Army combat team is now deployed on U.S. soil or even blanch at reports that the military might be planning "regional teams" across the U.S. to assist in a "significant outbreak" of swine flu.
It’s becoming disconcertingly clear that post-9/11 America has no trouble
swapping out police for soldiers, SWAT teams for combat teams, beat cops for
GI Joe. They could be interchangeable, and that’s okay. In fact, most Americans
seem convinced that the threat to "homeland security" is now an eternal
struggle. Thus, they are easily persuaded to dismiss more than 200 years of
history, including posse
comitatus and any other bulwark against military mission creep on the home
"There is a basic sense of complacency," noted Mike Krause, law and justice expert at the Independence Institute in Golden, Colo. "[After 9/11] a lot of people welcomed the sight of soldiers at airports and downtown New York – it’s all about the illusion of safety and security. We are far removed from the idea that our government could be anything but a benevolent father figure."
Complacency is the best friend of mission creep. Over the last eight years, the Pentagon has taken advantage of the favorable political environment and gushing new Homeland Security funding streams and done what any formidable, self-generating bureaucracy would do: it began extending itself into domestic counter-terrorism efforts through USNORTHCOM, the new homeland AOR (area of operations).
And then after Hurricane Katrina, President George W. Bush attempted in 2006 to broaden the executive’s ability to declare martial law and put federal troops in charge of responding to "natural disasters, epidemic or other serious health emergency, terrorists attack or incident." He successfully convinced the Republican-held Congress to amend the Insurrection Act, which, since it was enacted 200 years ago, limited martial law – with few exceptions – to rebellion and subsequent domestic violence.
For all the hits the Democrats are taking from the neo-patriots on the Right today for being "fascists" and the new bringers of tyranny, it was the Democratic leadership that successfully repealed the Insurrection Act rider when they took back Congress in 2007.
As for the Posse Comitatus Act – a law passed in 1878 that prevents federal forces (excepting the U.S. Coast Guard) from engaging in domestic law-enforcement activities – experts say there have been so many amendments and changes to the law over the years that the U.S. Army can do pretty much whatever it wants on American soil. As a result, soldiers and Marines have been involved in border patrols and drug interdiction to a surprising extent.
"It [the Posse Comitatus Act] is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact," wrote Navy Reserve JAG officer and private attorney Craig Trebilcock in 2000. And that was before 9/11.
Governors Stand Up, Sometimes
No one has been more sensitive to the current mission creep than state governors and the National Guard. The traditional role of the citizen soldier has been to respond to state emergencies, including natural disasters and civil unrest. Unfortunately, Guard units in many states have been severely strained fighting the wars in Afghanistan and Iraq under federal orders, and their readiness to respond to crises back home is hardly at 100 percent.
For example, after concerns that the Louisiana National Guard was not at full strength during Hurricane Katrina, Congress asked the Defense Science Board to study Guard and Reserve overseas deployment trends [.pdf]. It found that as of 2007, 47 percent of Guard members in the U.S. had been federalized and deployed to Afghanistan and Iraq. About 20 percent had been mobilized more than once. There was a stunning lack of equipment here at home because it was all overseas. In fact, 88 percent of Guard units were reporting they were "not operationally ready" for the next emergency.
That is why governors are leery when Washington seems to take such an active interest in sending federal military forces to "assist" on the home front. It seems to be taking advantage of the gaps and horning in on roles traditionally held by the citizens under states’ authority, not by Washington. The governors may need the resources desperately, but they will not be supplanted.
The latest fight has come with the Pentagon wanting to make it easier to call up Army Reservists – part-time soldiers who remain under the control of the federal military – for disaster relief in the states while keeping those forces under the tactical control of the Department of Defense throughout such operations. The Pentagon has said the changes would not only establish clear lines of command, but ultimately allow the government to tap into more manpower in Katrina-like situations.
While governors welcome the additional assistance, they are bucking the move to place reservists under Washington’s control during emergencies. They said the dual state-federal command would create confusion on the ground and "interfere with governors’ constitutional responsibilities to ensure safety and security of their citizens," according to a letter by Gov. Jim Douglas (R-Vt.), chairman of the National Governors Association, and Gov. Joe Manchin (D-W.V.), vice chair, to the Pentagon in August.
It also smacks of mission creep, said David Quam, spokesman for the NGA. Changes to the Insurrection Act by the Bush administration would have taken control over disaster relief out of the hands of the states, which has made the governors wary. "Unfortunately, what we’ve seen are moves to change authority," he said. "This is all part of the same issue… it needs to be addressed in context."
A measure promoted by Senators Patrick Leahy (D-Vt.) and Kit Bond (R-Mo.) to instead place the Reserves under the tactical control of the governors during state emergencies has been equally opposed by the Pentagon and was left out of the current defense authorization bill, presumably to be taken up next year.
Does Anyone Really Care?
"Good for the governors, I hope they keep fighting this," said Krause, who wryly noted that when it is in their political and economic interest governors will take Washington’s lead – for example, allowing the National Guard in Colorado to become creatures of federal counter-drug operations for a share of the loot (according to the local U.S. attorney, the Guard took home its first check, for $93,701, last November from its participation in a major marijuana bust).
To be sure, the governors and traditional Guard associations had very little to say when the Pentagon announced the creation of CCMRF (Chemical, Biological, Radiological, Nuclear, High-Yield Explosive Consequence Management Response Force) – otherwise known as the 3rd Infantry Division’s 1st Brigade Combat Team (BCT) – in 2008. Fresh from battle duty in Iraq, they have been deployed on U.S. soil since last October.
Pentagon officials told me at the time that CCMRF’s "primary role is to augment the consequence management efforts of the first responders" to a state emergency, or if the president declares an emergency. In other words, CCMRF troops may be available to help the local responders at the behest of governors, but their boss is in Washington, and they can be sent into a state at any time with a phone call from 1600 Pennsylvania Avenue.
"The potential for mischief," author and blogger Glenn Greenwald told me then, "is quite high if we allow the president to use the military for domestic purposes."
Still, there was very little resistance to a BCT being deployed on American soil for the first time in history, as there seems to be little protest from the public – which has the power to put pressure on the elected officials who hold the purse strings – against each of the military’s incremental forays into domestic territory. Likely, the Pentagon will have its way in controlling the Reserves during domestic emergencies if the issue continues to be depicted as an "inside the beltway" territorial spat rather than a threat to state sovereignty.
"A soldier armed and ready – we view that as a sign we are safe and secure," said Krause, and we are so blinded by gratitude and deference that we have not only allowed the society to become more militarized, but have welcomed the military to engage in duties best performed by civilians, or at least citizen-soldiers.
In other words, while Republicans were jeering about the country becoming a "nanny state," they helped to advance the more threatening "daddy state" for eight years under president George W. Bush. It is up to Americans now to decide where the line should be drawn and begin to pressure the current president – who seems no more likely to stop the creep – in earnest.