In the last two days, we have been talking about coordinated crackdowns and the fact that the President:
...hopes the right balance can be reached between protecting freedom of assembly and speech with the need to uphold order and safeguard public health and safety.
Add to that, Keori's comment about a military unit stationed here in the US:
Beginning in October, the Army plans to station an active unit inside the United States for the first time to serve as an on-call federal response in times of emergency. The 3rd Infantry Division’s 1st Brigade Combat Team has spent thirty-five of the last sixty months in Iraq, but now the unit is training for domestic operations. The unit will soon be under the day-to-day control of US Army North, the Army service component of Northern Command. The Army Times reports this new mission marks the first time an active unit has been given a dedicated assignment to Northern Command. The paper says the Army unit may be called upon to help with civil unrest and crowd control. The soldiers are learning to use so-called nonlethal weapons designed to subdue unruly or dangerous individuals and crowds.
The incessant drum beat was beginning to take its toll on me and I just had to start doing my homework. My biggest concern, as a military wife, is that our active duty military not be called to remove Occupations in any city or town. And, before writing this diary, I wasn't sure what would prevent it from happening.
Join me below the fold for a conversation about the history of Northern Command (USNORTHCOM), links to other articles discussing the unique deployment of the 3rd Infantry Division's 1st Brigade Combat Team to support USNORTHCOM, an overview of Posse Comitatus, and what this may or may not mean for the Occupy Movement in the United States.
As I started looking into this, I was initially very worried. Conversations with my husband, research on the internet, and just the process of assembling the facts have helped calm my nerves. That doesn't mean there aren't reasons to be concerned, but I don't think they are as immediate as I once felt.
First, we need a little perspective. Those troop movements took place back in 2008. From Keori's link, I had originally believed that they took place last month because I had neglected to look at the top of the page where it clearly states these are headlines for September 22, 2008. I realized that this troop movement did not occur because of Occupy Wall Street - that had been my original fear.
With that little bit of anxiety gone, I was better able to process the facts that I have found.
First of all, USNORTHCOM did not originate without trouble - it was put in place during the Bush Administration and during the time when the Patriot Act was in high gear and Congress was re-writing the Insurrection Act. I am very thankful that at this point in time we do not have President Bush as the Commander-in-Chief. I would be even more worried if we did.
USNORTHCOM exists to coordinate the efforts of several military organizations that were already working within our borders. They help coordinate training of active duty, reserve and guard troops and that training mainly covers emergency management of man-made and natural disasters.
So, while the USNORTHCOM website claims they have "few permanently assigned forces," we know that they have at least a brigade, approximately 3000 troops, of active duty troops at their disposal. They can also call into service the Guard and Reserve troops as needed. Back in 2008, the Army Times gave us the basic facts of that initial active duty assignment:
Beginning Oct. 1 for 12 months, the 1st BCT will be under the day-to-day control of U.S. Army North, the Army service component of Northern Command, as an on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks.
It is not the first time an active-duty unit has been tapped to help at home. In August 2005, for example, when Hurricane Katrina unleashed hell in Mississippi and Louisiana, several active-duty units were pulled from various posts and mobilized to those areas.
But this new mission marks the first time an active unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities.
I believe the active duty force was added at this point in time because our own reserve and guard forces, which normally handle the natural and man-made disasters from state to state, was seriously overworked and understaffed from repeated deployments to two wars. Our own active duty forces needed to spend more dwell time at home so this seemed to be a practical solution to the problem.
It seems that within the last three years, USNORTHCOM has stuck to its stated mission. Their latest Posture Statement given before the House Armed Services Committee by the USNORTHCOM leadership does not mention any plan to exert any control over civilians within the borders of the US. The report focuses on terrorism; on "Countering Transnational Criminal Oragnizations," particularly those in Mexico; on natural and man-made disasters; on "Chemical, Biological, Radiological, or Nuclear (CRBN) Consequence Management"; on radar and missile defense; and, finally, on the Arctic. I realize that the report was written before large demonstrations started taking place, but it is good to realize that civilian 'insurrection' has not been a concern to NORTHCOM. They have plenty on their plate without needing to worry about Occupy Wall Street and other peaceful demonstrations.
I also reviewed the latest in the USNORTHCOM news archive. Most current news deals with the wildfires in Texas. It looks as if USNORTHCOM has provided ample assistance to help control and suppress the fires. Other articles include US/Mexican international exchanges, responses to flooding in Nebraska, help during Hurricane Irene, and support to FEMA.
Even the article about the Army Brigade, published September 20, 2008, sells the acquisition of new troops as en emergency management team to help during natural disasters. They take special precaution to remind us of what the team will not be doing, bolding mine:
“We’re excited about obtaining a ready and capable team that we can quickly activate and deploy as part of a federal response package when responding in the aftermath of catastrophic events,” Boatner said. “This response force will not be called upon to help with law enforcement, civil disturbance or crowd control, but will be used to support lead agencies involved in saving lives, relieving suffering and meeting the needs of communities affected by weapons of mass destruction attacks, accidents or even natural disasters.”
When I briefly mentioned this assignment to my husband and then shared the concerns of some in the blogosphere about how these troops might be used against US citizens, he immediately mentioned a phrase I had not heard before, the Posse Comitatus Act. Obviously, this is a concern not just for my military husband, but also for Northern Command themselves. It is where the above quote from Col. Boatner originates. USNORTHCOM also includes a specific reference on their introduction page, bolding mine:
USNORTHCOM’s civil support mission includes domestic disaster relief operations that occur during fires, hurricanes, floods and earthquakes. Support also includes counter-drug operations and managing the consequences of a terrorist event employing a weapon of mass destruction. The command provides assistance to a Primary Agency when tasked by DOD. Per the Posse Comitatus Act, military forces can provide civil support, but cannot become directly involved in law enforcement.
The link takes us to another page on their website with quotes and explanation about the Posse Comitatus Act of 1878. They quote it in its entirety:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
Obviously, with the founding of this command, there were citizens who questioned the need for a such a command within the border of the US. At the time, the New York Times published an article about the possible expanding role of the US military and the Bush Administrations review of the Posse Comitatus Act and "other laws that sharply restrict the military's ability to participate in domestic law enforcement":
The willingness of General Eberhart and some other senior officers to consider amending the post-Reconstruction law is a shift in thinking by many top Pentagon officials, who have traditionally been wary of involving the military in domestic law enforcement.
Military leaders have generally supported the restrictions because their troops were not specifically trained in those roles, and they worried that domestic tasks could lead to serious political problems.
But in the aftermath of Sept. 11, some Pentagon officials and military officers are beginning to say that the law, as it stands, may slow or complicate their domestic defense missions.
Some military officials fear that without additional authority to operate in the United States, they could be blamed for failures without adequate ability to prevent them. But other Pentagon officials continue to contend that accepting greater domestic responsibilities is risky, and that any proposed changes should receive careful public scrutiny.
All of this reflects the larger national debate over how best to protect Americans from terrorist attacks.
And Amy Goodman at Democracy Now interviewed Col. Michael Boatner, who, at time, was to be the future Operations division chief of USNORTHCOM and Matthew Rothschild, Editor of The Progressive magazine. Mr. Rothschild specifically raised the question of Posse Comitatus. He was especially concerned about attempts by the Bush Administration to subvert current law.
Col Boatner responded:
[The Posse Comitatus Act] absolutely governs in every instance. We are not allowed to help enforce the law. We don’t do that. Every time we get a request — and again, this kind of a deployment is defense support to civil authority under the National Response Framework and the Stafford Act. And we do it all the time, in response to hurricanes, floods, fires and things like that. But again, you know, if we review the requirement that comes to us from civil authority and it has any complexion of law enforcement whatsoever, it gets rejected and pushed back, because it’s not lawful.
I feel the need at this point in time to mention that except for the Generals working under the Bush Administration, all active duty military opinion points towards a firm commitment to uphold the Posse Comitatus Act. It is referred to repeatedly through out everything I can find about USNORTHCOM.
Furthermore, when Col. Boatner was questioned by Ms. Goodman about the political decision to form North Command, he had this to say:
That’s in the political arena. That has nothing to do with my responsibilities or what I’m — was asked to talk about here with regard to supporting civil authority in the homeland.
This is the part that people often don't like to hear - military officials do what they are told. Yes, some generals lobby for pet projects. But, at the end of the day, it is the civilian leadership that makes the decisions. It is a large part of the reason we must be so very careful when choosing our Commanders-in Chief. And the military leadership at USNORTHCOM want you to know this. They publish on their page a link to possible exceptions to the Posse Comitatus Act - not exceptions that the military will use but that the civilian leadership might use:
The United States Congress has enacted a number of exceptions to the PCA that allow the military, in certain situations, to assist civilian law enforcement agencies in enforcing the laws of the U.S. The most common example is counterdrug assistance (Title 10 USC, Sections 371-381). Other examples include:
- The Insurrection Act (Title 10 USC, Sections 331-335). This act allows the president to use U.S. military personnel at the request of a state legislature or governor to suppress insurrections. It also allows the president to use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S.
- Assistance in the case of crimes involving nuclear materials (Title 18 USC, Section 831). This statute permits DoD personnel to assist the Justice Department in enforcing prohibitions regarding nuclear materials, when the attorney general and the secretary of defense jointly determine that an “emergency situation” exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies.
- Emergency situations involving chemical or biological weapons of mass destruction (Title 10 USC, Section 382). When the attorney general and the secretary of defense jointly determine that an “emergency situation” exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. DoD personnel may assist the Justice Department in enforcing prohibitions regarding biological or chemical weapons of mass destruction.
Obviously, of most concern to the Occupy Movement is The Insurrection Act. From Wikipedia:
For military forces to be used under the provisions of the revised Insurrection Act, the following conditions must be met:
(1) The President may employ the armed forces, including the National Guard in Federal service, to--
- (A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
- (i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
- (ii) such violence results in a condition described in paragraph (2); or
- (B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
(2) A condition described in this paragraph is a condition that--
- (A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
- (B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
The Insurrection Act has been used one time in our history to bring Active Duty troops into service on US soil - for the LA Riots in 1992. Again, Col. Boatner during his interview with Democracy Now:
The only exception that I know of is the Insurrection Act. It’s something that is very unlikely to be invoked. In my thirty-year career, it’s only been used once, in the LA riots, and it was a widespread situation of lawlessness and violence. And the governor of the state requested that the President provide support. And that’s a completely different situation. The forces available to do that are in every service in every part of the country, and it’s completely unrelated to the — this consequence management force that we’re talking about.
So the first Operations Division Chief of USNORTHCOMMAND believed that it would be illegal to sue the command in operations to clear even a violent riot - he states the role in that situation would fall to individual states, "in every part of the country."
Simply put, if the Federal Government wants to use US troops to maintain law and order, several things would need to happen first. At the most basic level, to use only Guard and Reserve troops, Governors would need to make a request of the Federal Government. At a more complicated level, one in which the government wants to use Active Duty troops and engage USNORTHCOM, it would require invoking the Insurrection Act or an Act of Congress to overcome the Posse Comitatus Act. The decision could not be made behind closed doors. Furthermore,
Whenever the President considers it necessary to use the militia or the armed forces under [the Insurrection Act], he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.
Are you worried yet?
Believe it or not, I am less worried than I was when I originally started looking into this.
It seems to me that it is highly unlikely that USNORTHCOM would be used in any way shape or form against US citizens protesting with Occupy Wall Street or like-minded movements.
First, Occupy Wall Street is peaceful. The only violence that has occurred happens when police try to clear peaceful protesters. I think it would be a very hard sell to claim that tents are a form of violent protest. They may be illegal in some locations, but they aren't hurting anyone. Therefore, I don't believe the government can use the Insurrection Act as a motivation for pulling in US Troops.
Of course, if local police keep trying to find 'weapons' within the camps, and keep trying to paint this movement as violent, that could change.
Also, if local police have lose the ability to maintain public order, even if it is caused by their own inept attempts to arrest peaceful protesters, the Federal Government may chose to intervene. In this situation, however, I believe that the first step would be to turn to the National Guard and Reservists, not to USNORTHCOM to coordinate those efforts nor to use their Active Duty troops.
Second, there would obviously be a huge mental barrier to overcome. US troops have been trained to believe that the Posse Comitatus Act prevents them from being a civilian police force... again, it would take an act of Congress to force the military to take action. It is possible to use the active military in support roles, however. In an article by Major Craig Trebilcock, he points out that duty military have been used to support local police:
In the past five years, the erosion of the Posse Comitatus Act has continued with the increasingly common use of military forces as security for essentially civilian events. During the 1996 Olympics in Atlanta, over ten thousand U.S. troops were deployed under the partial rationale that they were present to deter terrorism. The use of active-duty military forces in a traditional police security role did not raise any serious questions under the act, even though these troops would clearly have been in the middle of a massive law enforcement emergency had a large-scale terrorist incident occurred. The only questions of propriety arose when many of these troops were then employed as bus drivers or to maintain playing fields. This led to a momentary but passing expression of displeasure from Congress.
If this were a college debate, I could pick up the cards from either side and feel very comfortable arguing either point of view. It comes down to one thing and one thing only - faith in the office of the President.
There are a group of people who don't have this faith - immediately after the election of President Obama they formed an organization called Oathkeepers. I will not link to them. I understand the need to be concerned about overreach of the US Government - obviously we watched it happening under the Bush Administration yet these same people chose to ignore the concerns at that point in time. But I cannot in any way, shape, or form, believe that the President I helped elect would actually do anything that could be deemed unconstitutional. Nor can I support active duty service members joining an organization that would ignore orders from the President. So maybe, deep down inside, this is what bothers me the most, that there is the slightest chance our active duty military might be called to do this. We have paved the way with good intentions, in the name of helping during times of disaster, and only good intentions and a strict adherence to the Posse Comitatus Act can prevent the future misuse of our military.
I would love to hear your thoughts in the comments below. I beg, however, for constructive conversation and no pie fights. We're here to learn from each other, not to tear each other apart.