SOUTH POMFRET, Vt. — Preoccupied with the war in Iraq
and still traumatized by Sept. 11, 2001, the American public has paid
little attention to some of what is being done inside the United States
in the name of anti-terrorism. Under the banner of "homeland security," the
military and intelligence communities are implementing far-reaching changes
that blur the lines between terrorism and other kinds of crises and will
break down long-established barriers to military action and surveillance
within the U.S.
"We must start thinking differently," says Air Force Gen. Ralph
E. "Ed" Eberhart, the newly installed commander of Northern
Command, the military's homeland security arm. Before 9/11, he says,
the military and intelligence systems were focused on "the away
game" and not properly focused on "the home game." "Home," of
course, is the United States.
Eberhart's Colorado-based command is charged with enhancing homeland
security in two ways: by improving the military's capability to defend
the country's borders, coasts and airspace — unquestionably within the
military's long-established mission — and by providing "military
assistance to civil authorities" when authorized by the secretary
of Defense or the president.
That too may sound unexceptionable: The military has long had mechanisms
to respond to a request for help from state governors. New after 9/11
are more aggressive preparations and the presumption that local government
will not be able to carry the new homeland security load. Being the military,
moreover, contingency planners approach preparing by assuming the worst.
All of this is a major — and potentially dangerous — departure from past
policy.
The U.S. military operates under the 1878 Posse Comitatus Act, which
prohibits the direct use of federal troops "to execute the laws" of
the United States. The courts have interpreted this to mean that the
military is prohibited from any active role in direct civilian law enforcement,
such as search, seizure or arrest of civilians.
"There are abundant reasons for rejecting the further expansion
of the military's domestic role," says Mackubin T. Owens, a professor
of strategy and force planning at the Naval War College. Looking at the
issue historically, Owens wrote in an August 2002 essay in the National
Review's online edition that "the use of soldiers as a posse [places]
them in the uncomfortable position of taking orders from local authorities
who had an interest in the disputes that provoked the unrest in the first
place." Moreover, Owens said, becoming more involved in domestic
policing can be "subtle and subversive … like a lymphoma or termite
infestation." Though we are far from having "tanks rumbling
through the streets," he said, the potential long-term effect of
an increasing military role in police and law enforcement activities
is "a military contemptuous of American society and unresponsive
to civilian authorities."
Eberhart says his Northern Command operates scrupulously within the bounds
of the law. "We believe the [Posse Comitatus] Act, as amended, provides
the authority we need to do our job, and no modification is needed at
this time," he told the House Armed Services Committee in March.
Of course, what he knows is that amendments approved by Congress in 1996
for that earlier civilian war, the war on drugs, have already expanded
the military's domestic powers so that Washington can act unilaterally
in dispatching the military without waiting for a state's request for
help. Long before 9/11, Congress authorized the military to assist local
law enforcement officials in domestic "drug interdiction" and
during terrorist incidents involving weapons of mass destruction. Furthermore,
the president, after proclaiming a state of emergency, can authorize
additional actions.
Indeed, the military is presently operating under just such an emergency
declaration. Eberhart's command has defined three levels of operations,
each of which triggers a larger set of authorized activities. The levels
are "extraordinary," "emergency" and "temporary." At
the "temporary" level, which covers such things as the Olympic
Games or the Super Bowl, limited assistance can be provided to law enforcement
agencies when a governor requests it, primarily in such areas as logistics,
transportation and communications. During "emergencies," the
military can provide similar support, mostly in response to specific
events such as the attacks on the World Trade Center.
It is only in the case of "extraordinary" domestic operations
that the unique capabilities of the Defense Department are deployed.
These include not just such things as air patrols to shoot down hijacked
planes or the defusing of bombs and other explosives, , but also bringing
in intelligence collectors, special operators and even full combat troops.
Given the absence of terrorist attacks inside the United States since
9/11, it may seem surprising that Northern Command is already working
under the far-reaching authority that goes with "extraordinary operations." But
it is.
"We are not going to be out there spying on people," Eberhart
told PBS' NewsHour in September. But, he said, "We get information
from people who do." Some of that information increasingly comes
not from the FBI or those charged with civilian law enforcement but from
a Pentagon organization established last year, the Counterintelligence
Field Activity (CIFA). The seemingly innocuous CIFA was originally given
the mission of protecting the Defense Department and its personnel, as
well as "critical infrastructure," against espionage conducted
by terrorists and foreign intelligence services.
But in August, Defense Secretary Donald H. Rumsfeld expanded CIFA's mission,
charging it with maintaining "a domestic law enforcement database
that includes information related to potential terrorist threats directed
against the Department of Defense." The group's Assessments and
Technology Directorate, which shares offices with the Justice Department's
Foreign Terrorist Tracking Task Force, has already identified 200 foreign
terrorist suspects in the U.S., according to a Defense Department report
to Congress.
This year, the Pentagon inspector general authorized assigning military
special agents to 56 FBI Joint Terrorism Task Force operations at FBI
field offices. These military agents will pursue leads in local communities
of potential threats to the military. Eberhart also plans to have his
own cadre of agents working with local law enforcement. Next year, he
plans to transform Joint Task Force Six, a drug interdiction unit of
160 military personnel at Ft. Bliss, Texas, into Joint Interagency Task
Force North. The new task force will be given nationwide responsibility
for working with law enforcement agencies.
CIFA, moreover, has been given a domestic "data mining" mission:
figuring out a way to process massive sets of public records, intercepted
communications, credit card accounts, etc., to find "actionable
intelligence." "Homeland defense relies on the sharing of actionable
intelligence among the appropriate federal, state, and local agencies," says
Lt. Gen. Edward G. Anderson III, Eberhart's deputy.
Another ambitious domestic project is being undertaken by the National
Geospatial-Intelligence Agency, which is gathering "geospatial information" about
133 cities, the borders and seaports. This "urban data inventory" combines
unclassified and classified data (including such things as the location
of emergency services, communications, transportation and food supplies)
with a high-resolution satellite map of the United States. When the mapping
efforts are completed, a national "spatial data infrastructure" will
be created down to the house level. Intelligence analysts speak of one
day being able to identify individual occupants, as well as their national
background and political affiliations. Though the military is just getting
its systems in place, there can be no other conclusion: Domestic surveillance
is back.
It's not that we're heading toward martial law. We're not. But outside
the view of most of the public, the government is daily expanding military
operations into areas of local government and law enforcement that historically
have been off-limits. And it doesn't seem far-fetched to imagine that
those charged with assembling "actionable intelligence" will
slowly start combining databases of known terrorists with seemingly innocuous
lists of contributors to charities or causes, that membership lists for
activist organizations will be folded in, that names and personal data
of anti-globalization protesters will be run through the "data mine." After
all, the mission of Northern Command and other Pentagon agencies is to
identify groups and individuals who could potentially pose threats to
Defense Department and civilian installations.
Given all this, it might be a good time for state and local governments
to ask themselves whether the federal government, through the military,
is slowly eroding their power to manage what — for very good reasons — have
always been considered local responsibilities.



