Worried about the legality of the armed drone program and some covert missions in places not covered by the text of the 2001 measure, US Senators are mulling over the prospects for either a new resolution or an update to the existing one. On May 13 the US Senate debated an expansion of the 2001 Authorization to Use Military Force (AUMF) so the U.S. can essentially engage any area in the world in the war on terror, including the territory of US itself. Assistant Secretary of Defense Michael Sheehan told Congress that the AUMF authorized the US military to operate on a worldwide battlefield from Boston to Pakistan… According to him the executive power is authorized to put boots on the ground wherever it finds expedient.
During the manhunt for the Boston Marathon bombing perpetrators many noticed that it was hard to discern between fully outfitted police SWAT teams and the military. The difference became even murkier at the hearings when it was revealed that some changes have been inserted into the U.S. «Defense Support of Civilian Law Enforcement Agencies» Code.
The U.S. armed forces are prohibited from intervening in domestic affairs except the cases provided under Article IV of the Constitution when domestic violence that threaten the government of a state or the application of federal law. This provision was further amended by the Insurrection Act of 1807 and the Posse Comitatus Act of 1878 (PCA). The Insurrection Act specifies the circumstances under which the president may convene the armed forces to suppress an insurrection against any state or the federal government. Consent of the state governor must be obtained prior to the deployment of troops. Under the Insurrection Act the President may deploy armed forces domestically under extreme circumstances but Congress has to review the action every 14 days. The 1878 Posse Comitatus law forbids the military from being involved in domestic law enforcement «except in cases and under circumstances expressly authorized by the Constitution or Act of Congress». It made unauthorized employment of federal troops a punishable offense. Under the War Powers Resolution of 1973, the President cannot commit troops to an armed conflict for a period longer than 60 days without an authorization from Congress to use military force or a declaration of war.
With a revision to the Defense Support of Civilian Law Enforcement Agencies the US military has full authority to police the streets of America without consent from the state or local governments. The DOD instruction now allows the US servicemen to quell «civil disturbances» domestically without any Presidential authorization. The instruction was originally released in February yet has only come to light this May (1).
A «civil disturbance» declared, «federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances». The military can intervene when:
(a) «Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order; or,
(b) When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect Federal property or functions».
It actually means that now a «commander» has the same power to authorize military force as the President in the event the head of state is somehow unable to access a telephone. The rule ignores the existing chain of authority in the event a sitting President is unavailable.
This isn’t, however, the Pentagon’s first attempt to expand its authority domestically in the last decade. Back in 2008, U.S. troops returning from Iraq were earmarked for «homeland patrols» with one of their roles including helping with «civil unrest and crowd control». Preparations for CONUS civil unrest have been intensified under the incumbent Administration. In 2009 3rd Infantry Division’s 1st Brigade Combat Team was redeployed from Iraq to domestic operations within the United States under the Northern Command (NORTHCOM). From September 2011 onwards, an expansion of NORTHCOM’s militarization of the country in preparation for potential civil unrest following a total economic collapse or a mass terror attack. A US Army Military Police training manual for «Civil Disturbance Operations» leaked in July last year outlines how military assets are to be used domestically to quell riots, confiscate firearms and even kill Americans on U.S. soil during mass civil unrest. The document outlines how military assets will be used to «help local and state authorities to restore and maintain law and order» in the event of mass riots, civil unrest or a declaration of martial law.
The instruction in question has not appeared as a bolt from the blue. The regulations changes were actually substantiated by Army chief of staff General Raymond T. Odierno an article published last year by the Council on Foreign Relations (CFR). (2) In the May/June 2012 issue of Foreign Affairs magazine, Odierno said the armed forces should address «challenges in the United States itself» in order to keep the homeland safe from domestic disasters, including terrorist attacks. According to him, «Where appropriate we will also dedicate active-duty forces, especially those with niche skills and equipment, to provide civilian officials with a robust set of reliable and rapid response options». No doubt the Boston events constitute an «extraordinary emergency circumstance» justifying bringing in a «rapid response» force as described by the top General.
At the hearings Senator Angus King said at the hearing «This is the most astounding and most astoundingly disturbing hearing that I’ve been to since I’ve been here. You guys have essentially rewritten the Constitution today». 16 senators condemned the trend. Even such a hawk as John McCain came out to say the government has gone way beyond its authority.
Eric Freedman, a constitutional law professor from Hofstra University, calls the ruling «an unauthorized power grab». According to Freedman, «The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute». (3)
Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, calls the rule, «a wanton power grab by the military,» and says, «It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control». (4)
In an article published in the Long Island Press, Jed Morey wrote that the US is witnessing «significant seizure of domestic police power by the Pentagon». (5)
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The Senate hearing evokes fears related to the future of US political system. With the War on Terror defining the US agenda for over a decade, the attempts to expand the mission of the US military on the domestic front are obvious. The recent evidence shows the government is moving to give the military unparalleled authority on US territory nullifying fundamental legislative acts. In essence, the military are granted the power to act domestically without approval from the President or Congress.