[R-G] Why is a U.S. Army brigade being assigned to the "Homeland"?

[Anthony Fenton]

Wednesday Sept. 24, 2008 12:26 EDT
Why is a U.S. Army brigade being assigned to the "Homeland"?
http://www.salon.com/opinion/greenwald/2008/09/24/army/
(updated below - Update II)

Several bloggers today have pointed to this obviously disturbing  
article from Army Times (http://www.armytimes.com/news/2008/09/army_homeland_090708w/ 
) , 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.

     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 (pronounced "sea-smurf").

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."

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 that is 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 safeguard:

     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. . . .

     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  
Insurrection Act.

     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."

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."

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 disturbing. Bovard:

     "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 here.

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?

UPDATE: As 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.

-- Glenn Greenwald

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