Is Posse Comitatus Dead?

Amy Goodman: In a barely noticed development last week, the Army stationed an active unit inside the United States. The Infantry Division's 1st Brigade Team is back from Iraq, now training for domestic operations under the control of U.S. Army North, the Army service component of Northern Command. The unit will serve as an on-call federal response for large-scale emergencies and disasters. It's being called the Consequence Management Response Force, CCMRF, or "sea-smurf" for short.

It's the first time an active unit has been given a dedicated assignment to USNORTHCOM, which was itself formed in October 2002 to "provide command and control of Department of Defense homeland defense efforts."

An initial news report in the Army Times newspaper last month noted, in addition to emergency response, the force "may be called upon to help with civil unrest and crowd control." The Army Times has since appended a clarification, and a September 30th press release from the Northern Command states: "This response force will not be called upon to help with law enforcement, civil disturbance or crowd control."

When Democracy Now! spoke to Air Force Lieutenant Colonel Jamie Goodpaster, a public affairs officer for NORTHCOM, she said the force would have weapons stored in containers on site, as well as access to tanks, but the decision to use weapons would be made at a far higher level, perhaps by Secretary of Defense, SECDEF.

I'm joined now by two guests. Army Colonel Michael Boatner is future operations division chief of USNORTHCOM. He joins me on the phone from Colorado Springs. We're also joined from Madison, Wisconsin by journalist and editor of The Progressive magazine, Matthew Rothschild.

We welcome you both to Democracy Now! Why don't we begin with Colonel Michael Boatner? Can you explain the significance, the first time, October 1st, deployment of the troops just back from Iraq?

Col. Michael Boatner: Yes, Amy. I'd be happy to. And again, there has been some concern and some misimpressions that I would like to correct. The primary purpose of this force is to provide help to people in need in the aftermath of a WMD-like event in the homeland. It's something that figures very prominently in the national planning scenarios under the National Response Framework, and that's how DoD provides support in the homeland to civil authority. This capability is tailored technical life-saving support and then further logistic support for that very specific scenario. So, we designed it for that purpose.

And really, the new development is that it's been assigned to NORTHCOM, because there's an increasingly important requirement to ensure that they have done that technical training, that they can work together as a joint service team. These capabilities come from all of our services and from a variety of installations, and that's not an ideal command and control environment. So we've been given control of these forces so that we can train them, ensure they're responsive and direct them to participate in our exercises, so that were they called to support civil authority, those governors or local state jurisdictions that might need our help, that they would be responsive and capable in the event and also would be able to survive based on the skills that they have learned, trained and focused on.

They ultimately have weapons, heavy weapons and combat vehicles and another service capability at their home station at Fort Stewart, Georgia, but they wouldn't bring that stuff with them. In fact, they're prohibited from bringing it. They would bring their individual weapons, which is the standard policy for deployments in the homeland. Those would be centralized and containerized, and they could only be issued to the soldiers with the Secretary of Defense permission.

So I think, you know, that kind of wraps up our position on this. We're proud to be able to provide this capability. It's all about saving lives, relieving suffering, mitigating great property damage to infrastructure and things like that, and frankly, restoring public confidence in the aftermath of an event like this.

AG: So the use of the weapons would only be decided by SECDEF, the Secretary of Defense. But what about the governors? The SECDEF would have -- Secretary of Defense would have -- would be able to preempt the governors in a decision whether these soldiers would use their weapons on U.S. soil?

MB: No, this basically only boils down to self-defense. Any military force has the inherent right to self-defense. And if the situation was inherently dangerous, then potentially the Secretary of Defense would allow them to carry their weapons, but it would only be for self- and unit-defense. This force has got no role in a civil disturbance or civil unrest, any of those kinds of things.

AG: Matt Rothschild, you've been writing about this in The Progressive magazine. What is your concern?

Matthew Rothschild: Well, I'm very concerned on a number of fronts about this, Amy. One, that NORTHCOM, the Northern Command, that came into being in October of 2002, when that came in, people like me were concerned that the Pentagon was going to use its forces here in the United States, and now it looks like, in fact, it is, even though on its website it says it doesn't have units of its own. Now it's getting a unit of its own.

And Colonel Boatner talked about this unit, what it's trained for. Well, let's look at what it's trained for. This is the 3rd Infantry, 1st Brigade Combat unit that has spent three of the last five years in Iraq in counterinsurgency. It's a war-fighting unit, was one of the first units to Baghdad. It was involved in the battle of Fallujah. And, you know, that's what they've been trained to do. And now they're bringing that training here?

On top of that, one of the commanders of this unit was boasting in the Army Times about this new package of non-lethal weapons that has been designed, and this unit itself is going be able to use, according to that original article. And in fact, the commander was saying he had even tasered himself and was boasting about tasering himself. So, why is a Pentagon unit that's going to be possibly patrolling the streets of the United States involved in using tasers?

AG: Colonel Boatner?

MB: Well, I'd like to address that. That involved a service mission and a service set of equipment that was issued for overseas deployment. Those soldiers do not have that on their equipment list for deploying in the homeland. And again, they have been involved in situations overseas. And having talked to commanders who have returned, those situations are largely nonviolent, non-kinetic. And when they do escalate, the soldiers have a lot of experience with seeing the indicators and understanding it. So, I would say that our soldiers are trustworthy. They can deploy in the homeland, and American citizens can be confident that there will be no abuses.

AG: Matt Rothschild?

MR: Well, you know, that doesn't really satisfy me, and I don't think it should satisfy your listeners and your audience, Amy, because, you know, our people in the field in Iraq, some of them have not behaved up to the highest standards, and a lot of police forces in the United States who have been using these tasers have used them inappropriately.

The whole question here about what the Pentagon is doing patrolling in the United States gets to the real heart of the matter, which is, do we have a democracy here? I mean, there is a law on the books called the Posse Comitatus Act and the Insurrection Act that says that the president of the United States, as commander-in-chief, cannot put the military on our streets. And this is a violation of that, it seems to me.

President Bush tried to get around this act a couple years ago in the Defense Authorization Act that he signed that got rid of some of those restrictions, and then last year, in the new Defense Authorization Act, thanks to the work of Senator Patrick Leahy and Kit Bond of Missouri, that was stripped away. And so, the President isn't supposed to be using the military in this fashion, and though the President, true to form, appended a signing statement to that saying he's not going to be governed by that. So, here we have a situation where the President of United States has been aggrandizing his power, and this gives him a whole brigade unit to use against U.S. citizens here at home.

AG: Colonel Michael Boatner, what about the Posse Comitatus Act, and where does that fit in when U.S. troops are deployed on U.S. soil?

MR: It 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.

AG: Matthew Rothschild, does this satisfy you?

MR: No, it doesn't. One of the reasons it doesn't is not by what Boatner was saying right there, but what President Bush has been doing. And if we looked at National Security Presidential Directive 51, that he signed on May 9th of 2007, Amy, this gives the President enormous powers to declare a catastrophic emergency and to bypass our regular system of laws, essentially, to impose a form of martial law.

And if you look at that National Security Presidential Directive, what it says, that in any incident where there is extraordinary disruption of a whole range of things, including our economy, the President can declare a catastrophic emergency. Well, we're having these huge disturbances in our economy. President Bush could today pick up that National Security Directive 51 and say, "We're in a catastrophic emergency. I'm going to declare martial law, and I'm going to use this combat brigade to enforce it."

AG: Colonel Michael Boatner?

MB: The only exception that I know of is the Insurrection Act. It's something that is very unlikely to be invoked. In my 30-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.

AG: You mentioned governors, and I was just looking at a piece by Jeff Stein -- he is the national security editor of Congressional Quarterly -- talking about homeland security. And he said, "Safely tucked into the $526 billion defense bill, it easily crossed the goal line on the last day of September.

"The language doesn't just brush aside a liberal Democrat slated to take over the Judiciary Committee" -- this was a piece written last year -- it "runs over the backs of the governors, 22 of whom are Republicans.

"The governors had waved red flags about the measure on Aug. 1, 2007, sending letters of protest from their Washington office to the Republican chairs and ranking Democrats on the House and Senate Armed Services committees.

"No response. So they petitioned the party heads on the Hill."

The letter, signed by every member of the National Governors Association, said, "This provision was drafted without consultation or input from governors and represents an unprecedented shift in authority from governors … to the federal government."

Colonel Michael Boatner?

MB: 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.

AG: Matthew Rothschild?

MR: Well, this gets to what Senator Patrick Leahy of Vermont was so concerned about, that with NORTHCOM and with perhaps this unit -- and I want to call Senator Leahy's office today and ask him about this -- you have the usurpation of the governor's role, of the National Guard's role, and it's given straight to the Pentagon in some of these instances. And that's very alarming. And that was alarming to almost every governor, if not every governor, in the country, when Bush tried to do that and around about the Posse Comitatus Act. So, I think these are real concerns.

AG: Matt Rothschild, the Democratic and Republican conventions were quite amazing displays of force at every level, from the local police on to the state troopers to, well, in the Republican convention, right onto troops just back from Iraq in their Army fatigues. Did this surprise you?

MR: It did. It surprised me also that NORTHCOM itself was involved in intelligence sharing with local police officers in St. Paul. I mean, what in the world is NORTHCOM doing looking at what some of the protesters are involved in? And you had infiltration up there, too. But what we have going on in this country is we have infiltration and spying that goes on, not only at the -- well, all the way from the campus police, practically, Amy, up to the Pentagon and the National Security Agency. We're becoming a police state here.

AG: Colonel Michael Boatner, a tall order here, could you respond?

MB: Well, that's incorrect. We did not participate in any intelligence collection. We were up there in support of the U.S. Secret Service. We provided some explosive ordnance disposal support of the event. But I'd like to go back and say that, again, in terms of --

AG: Could you explain what their -- explain again what was their role there?

MB: They were just doing routine screens and scans of the area in advance of this kind of a vulnerable event. It's pretty standard support to a national special security event.

AG: And are you saying there was absolutely no intelligence sharing?

MB: That's correct. That is correct. … We're very constrained--

MR: But even that, Amy, now the Pentagon is doing sweeps of areas before, you know, a political convention? That used to be law enforcement's job. That used to be domestic civil law enforcement job. It's now being taken over by the Pentagon. That should concern us.

AG: Why is that, Colonel Michael Boatner? Why is the Pentagon doing it, not local law enforcement?

MB: That's because of the scale and the availability of support. DoD is the only force that has the kind of capability. I mean, we're talking about dozens and dozens of dog detection teams. And so, for anything on this large a scale, the Secret Service comes to DoD with a standard Economy Act request for assistance.

AG: Boatner, in the Republican Convention, these troops, just back from Fallujah -- what about issues of, for example, PTSD, post-traumatic stress disorder?

MB: Well, my sense is that that's something that the services handled very well. There's a long track record of great support in the homeland. If those soldiers were National Guard soldiers, I have no visibility of that. But for the active-duty forces, citizens can be confident that if they're employed in the homeland, that they'll be reliable, accountable, and take care of their families and fellow citizens in good form.

AG: Last word, Matthew Rothschild?

MR: Well, this granting of the Pentagon a special unit to be involved in U.S. patrol is something that should alarm all of us. And it's very important to the Army.