Why is a U.S.
Army Brigade Being Assigned to the "Homeland"?
By Glenn Greenwald
today have pointed to
this obviously disturbing article from Army Times,
which announces that "beginning Oct. 1 for 12 months, the [1st
Brigade Combat Team of the 3rd Infantry Division] will be under
the day-to-day control of U.S. Army North" -- "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." The article details:
They'll learn new skills, use
some of the ones they acquired in the war zone and more than
likely will not be shot at while doing any of it.
For more than 100 years -- since
the end of the Civil War -- deployment of the U.S. military
inside the U.S. has been prohibited under The Posse Comitatus
Act (the only exceptions being that the National Guard and Coast
Guard are exempted, and use of the military on an emergency
ad hoc basis is permitted, such as what happened after
Hurricane Katrina). Though there have been some erosions of this
prohibition over the last several decades (most perniciously to
allow the use of the military to work with law enforcement
agencies in the "War on Drugs"), the bright line ban on using
the U.S. military as a standing law enforcement force inside the
U.S. has been more or less honored -- until now. And as the
Army Times notes, once this particular brigade completes its
one-year assignment, "expectations are that another, as yet
unnamed, active-duty brigade will take over and that the
mission will be a permanent one."
They 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. . . .
The 1st BCT's soldiers also
will learn how to use "the first ever nonlethal package
that the Army has fielded," 1st BCT commander Col. Roger
Cloutier said, referring to crowd and traffic control
equipment and nonlethal weapons designed to subdue unruly or
dangerous individuals without killing them.
"It's a new modular package
of nonlethal capabilities that they're fielding. They've
been using pieces of it in Iraq, but this is the first time
that these modules were consolidated and this package
fielded, and because of this mission we’re undertaking we
were the first to get it."
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.
"I was the first guy in the
brigade to get Tasered," said Cloutier, describing the
experience as "your worst muscle cramp ever -- times 10
throughout your whole body". . . .
The brigade will not change
its name, but the force will be known for the next year as a
CBRNE Consequence Management Response Force, or CCMRF
After Hurricane Katrina, the
Bush administration began openly agitating for what would be, in
essence, a complete elimination of the key prohibitions of the
Posse Comitatus Act in order to allow the President to deploy
U.S. military forces inside the U.S. basically at will -- and,
as usual, they were successful as a result of rapid bipartisan
compliance with the Leader's demand (the same kind of compliance
about to foist a bailout package on the nation).
This April, 2007 article by James Bovard in The American
Conservative detailed the now-familiar mechanics that led to
the destruction of this particular long-standing democratic
The Defense Authorization Act
of 2006, passed on Sept. 30, empowers President George W.
Bush to impose martial law in the event of a terrorist
"incident," if he or other federal officials perceive a
shortfall of "public order," or even in response to antiwar
protests that get unruly as a result of government
provocations. . . .
As is typical, very few members of
the media even mentioned any of this, let alone discussed it
(and I failed to give this the attention it deserved at the
time), but Congressional Quarterly's Jeff Stein wrote
an excellent article at the time detailing the process and
noted that "despite such a radical turn, the new law garnered
little dissent, or even attention, on the Hill." Stein also
noted that while "the blogosphere, of course, was all over it .
. . a search of The Washington Post and New York Times
archives, using the terms 'Insurrection Act,' 'martial law' and
'Congress,' came up empty."
It only took a few
paragraphs in a $500 billion, 591-page bill to raze one of
the most important limits on federal power. Congress passed
the Insurrection Act in 1807 to severely restrict the
president's ability to deploy the military within the United
States. The Posse Comitatus Act of 1878 tightened these
restrictions, imposing a two-year prison sentence on anyone
who used the military within the U.S. without the express
permission of Congress. But there is a loophole: Posse
Comitatus is waived if the president invokes the
Section 1076 of the John
Warner National Defense Authorization Act for Fiscal Year
2007 changed the name of the key provision in the statute
book from "Insurrection Act" to "Enforcement of the Laws to
Restore Public Order Act." The Insurrection Act of 1807
stated that the president could deploy troops within the
United States only "to suppress, in a State, any
insurrection, domestic violence, unlawful combination, or
conspiracy." The new law expands the list to include
“natural disaster, epidemic, or other serious public health
emergency, terrorist attack or incident, or other
condition" -- and such "condition" is not defined or limited.
. . .
The story of how Section
1076 became law vivifies how expanding government power
is almost always the correct answer in Washington. Some
people have claimed the provision was slipped into the bill
in the middle of the night. In reality, the administration
clearly signaled its intent and almost no one in the media
or Congress tried to stop it . . . .
Section 1076 was supported
by both conservatives and liberals. Sen. Carl Levin
(D-Mich.), the ranking Democratic member on the Senate Armed
Services Committee, co-wrote the provision along with
committee chairman Sen. John Warner (R-Va.). Sen. Ted
Kennedy openly endorsed it, and Rep. Duncan Hunter
(R-Calif.), then-chairman of the House Armed Services
Committee, was an avid proponent. . . .
Sen. Patrick Leahy
(D-Vt.), the ranking Democrat on the Senate Judiciary
Committee, warned on Sept. 19 that "we certainly do not need
to make it easier for Presidents to declare martial law,"
but his alarm got no response. Ten days later, he commented
in the Congressional Record: "Using the military for law
enforcement goes against one of the founding tenets of our
democracy." Leahy further condemned the process,
declaring that it "was just slipped in the defense bill as a
rider with little study. Other congressional committees with
jurisdiction over these matters had no chance to comment,
let alone hold hearings on, these proposals."
Bovard and Stein both noted that
every Governor -- including Republicans -- joined in Leahy's
objections, as they perceived it as a threat from the Federal
Government to what has long been the role of the National Guard.
But those concerns were easily brushed aside by the bipartisan
majorities in Congress, eager -- as always -- to grant the
President this radical new power.
The decision this month to
permanently deploy a U.S. Army brigade inside the U.S. for
purely domestic law enforcement purposes is the fruit of the
Congressional elimination of the long-standing prohibitions in
Posse Comitatus (although there are
credible signs that even before Congress acted, the Bush
administration secretly decided it possessed the inherent power
to violate the Act). It shouldn't take any efforts to explain
why the permanent deployment of the U.S. military inside
American cities, acting as the President's police force, is so
"Martial law" is a euphemism
for military dictatorship. When foreign democracies are
overthrown and a junta establishes martial law, Americans
usually recognize that a fundamental change has occurred. .
. . Section 1076 is Enabling Act-type legislation—something
that purports to preserve law-and-order while formally
empowering the president to rule by decree.
The historic importance of the
Posse Comitatus prohibition was also well-analyzed
As the recent militarization of
St. Paul during the GOP Convention made abundantly clear, our
actual police forces are already quite militarized. Still, what
possible rationale is there for permanently deploying the U.S.
Army inside the United States -- under the command of the
President -- for any purpose, let alone things such as "crowd
control," other traditional law enforcement functions, and a
seemingly unlimited array of other uses at the President's sole
discretion? And where are all of the stalwart right-wing "small
government conservatives" who spent the 1990s so vocally
opposing every aspect of the growing federal police force? And
would it be possible to get some explanation from the Government
about what the rationale is for this unprecedented domestic
military deployment (at least unprecedented since the Civil
War), and why it is being undertaken now?
this commenter notes, the 2008 National Defense
Authorization Act somewhat limited the scope of the powers
granted by the 2007 Act detailed above (mostly to address
constitutional concerns by limiting the President's powers to
deploy the military to suppress disorder that threatens
constitutional rights), but President Bush, when signing that
2008 Act into law, issued
a signing statement which, though vague, seems to declare
that he does not recognize those new limitations.
UPDATE II: There's no need to start manufacturing
all sorts of scare scenarios about Bush canceling elections or
the imminent declaration of martial law or anything of that
sort. None of that is going to happen with a single brigade and
it's unlikely in the extreme that they'd be announcing these
deployments if they had activated any such plans. The point is
that the deployment is a very dangerous precedent, quite
possibly illegal, and a radical abandonment of an important
democratic safeguard. As always with first steps of this sort,
the danger lies in how the power can be abused in the future.
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