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Bush's Posse Roundup

The Bush administration has shown a disregard for the firewall between military and domestic affairs. Is that a G.I. knocking at your door?
 
 
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Over the past three years, the Bush administation has accelerated a trend of using the military as a tool in our nation’s domestic affairs. From its support of the Total Information Awareness surveillance vacuum cleaner, to its use of Pentagon spy planes during the Washington-area sniper shootings in late 2002, to its attempt to empower military officials to seize Americans' financial and other private information without a warrant, the Bush administration gives grave cause for concern about the growing role of the armed forces in our daily life.

The framers of the Constitution sought to put the U.S. military on a short leash, as they had witnessed standing armies topple one European government after another. One example of their intent to keep the military out of domestic affairs was the Third Amendment, which declares “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” This separation was strengthened in 1878 by the U.S. Congress with the passage of the Posse Comitatus Act, which prohibits any involvement of the U.S. military with domestic law enforcement. The law was enacted after pervasive abuses by the U.S. military in southern states during the Reconstruction. Congress at the time recognized that using military forces against civilians would likely trample Americans’ Constitutional rights. When former Rep. Bob Barr (R-Ga.) said, “When we send the Marines overseas we don't have them carry a copy of the Miranda rights," he knew what he was talking about. The military is trained to kill the enemy, not serve our domestic rights guaranteed by the Constitution.

Unfortunately for our democracy, in recent decades, the restrictions on using the military at home have been eviscerated, particularly under this sitting president. And because the Bush administration is so intent on secrecy, and because the Congress during Bush’s presidency has almost totally defaulted on its duty to conduct oversight, we have little idea of how often the Posse Comitatus law is now being violated. The few Bush efforts that have become public do not inspire confidence.

The Patriot Act of 2001 created a new Information Office in the Pentagon that promptly launched work on the Total Information Awareness (TIA) system, which was a project of the Defense Advanced Research Projects Agency (DARPA). TIA was intended to create a massive dragnet to build dossiers on American citizens—seeking “connections between transactions – such as passports, visas, work permits, driver’s licenses, credit cards, airline tickets, rental cars, gun purchases, chemical purchases – and events such as arrest or suspicious activities and so forth," according to Undersecretary of Defense Pete Aldridge.

The feds claimed that the TIA’s database would not constitute a search of private citizens – at least until the government decided to have someone arrested based on the data stockpile. Thus, the TIA would not violate the Fourth Amendment’s prohibition on unreasonable searches. Aldridge declared: “It is absurd to think that DARPA is somehow trying to become another police agency. DARPA’s purpose is to demonstrate the feasibility of this technology. If it proves useful, TIA will then be turned over to the intelligence, counterintelligence and law enforcement communities as a tool to help them in their battle against domestic terrorism.”

In January 2003, Sen. Charles Grassley learned that the FBI was working on a memorandum of understanding with the Pentagon “for possible experimentation” with TIA. Assistant Defense Secretary for Homeland Security Paul McHale confirmed, in March 2003 testimony to Congress, that the Pentagon would turn TIA over to law enforcement agencies once the system was ready to roll. There was nothing in the original TIA design to prevent the Pentagon from turning over the information it gathered to the FBI — or anyone else.

That set off alarm bells far and wide, and Congress sought to rein in its development in early 2003. But by that time, the Pentagon had already awarded 26 contracts for dozens of private research projects to develop components for TIA. Congress's action did nothing to stop the feds from pursuing massive data mining research closely akin to TIA—especially the Novel Intelligence from Massive Data (NIMD) project being conducted by the National Security Agency. Many of the companies and researchers previously working on TIA are now working on the NIMD project. Steven Aftergood of the Federation of American Scientists commented that “the whole congressional action looks like a shell game. There may be enough of a difference for them to claim TIA was terminated while for all practical purposes the identical work is continuing.”

Another major assault on Posse Comitatus occurred when two snipers went on a rampage in the Washington, D.C. area in October 2002. The Bush administration quickly called in Pentagon spy planes to canvas the entire Washington area. The use of the RC-7 planes, operated by military personnel, appeared to be a brazen breach of the Posse Comitatus Act. But the mass panic that gripped the Washington area indicated how feeble the status of Posse Comitatus is. In the political world after 9/11, laws appear to provide far less restraint on the use of the military than in the past. Public opinion polls apparently carry far more weight than a federal statute book. Posse Comitatus is a law, but valuing the dividing line between civilian law enforcement and the military is not boiled into the American public ethos as the idea that we have the right to bear arms.

John Pike, a defense analyst at GlobalSecurity.org, explained the military’s thinking in the midst of the sniper crisis: "The theory on this is that they'll have this aircraft flying in circles over downtown Washington and they get a 911 call and the police tells the TV camera operator on the airplane where to point the camera. They basically start panning the camera out from the shooting scene until the operator sees a white van fleeing the crime scene."

The military planes provided no information that aided the apprehension of the suspects. Instead, they epitomized how a massive federal-state-local response did nothing to compensate for a shortage of street smarts and common sense detective work. The response by local governments and the FBI to the sniper rampage was one of the biggest Keystone Kops episodes in recent U.S. history: the FBI had ignored five different people who contacted them months before the shootings to warn about John Allen Muhammad's homicidal comments, local police ignored eyewitness reports about the snipers' Chevrolet Caprice at the scene of shootings, and the snipers' auto passed through at least five police roadblocks erected after their attacks. Eventually the two suspects were caught in routine law enforcement fashion. The military’s efforts went for naught —they only signalled the Bush adminstration’s willingness to apply military force to the domestic populace.

But the deployment of Pentagon spy planes was still a political and propaganda success for the Bush administration because it assured frightened people that the government cared enough to save them to prevent the law from standing in their way.

Perhaps buoyed by the lack of criticism or resistance to the use of military spy planes for domestic law enforcement, the Bush administration requested in May 2003 that Congress authorize the Pentagon to issue National Security Letters (NSL) to American businesses and citizens. These subpoena letters compel individuals, businesses, and other institutions to surrender confidential or proprietary information without a court order — including records on bank accounts, Internet usage, phone calls, email logs, lists of purchases and so on. Anyone hit with a National Security Letter is obliged to remain forever silent on the government’s demand; disclosure is punishable by up to five years in prison. There is no judicial oversight of this power, and each FBI field office is entitled to issue its own letters.

The Patriot Act vastly expanded the power of the FBI to issue these letters — and made a mockery of Bush's claim on the campaign trail that "every action in the Patriot Act requires court order, before the government can move." The FBI has refused to disclose how often its agents are issuing such orders, or how many Americans’ private information has been snared as a result. There is no requirement that probable cause of law-breaking exist before the FBI forcibly intrudes; instead, the amount of data demanded depends largely on the discretion of the FBI agent.

These National Security Letters turn the Fourth Amendment on its head by creating a presumption that the government is entitled to personal or confidential information unless the citizen or business can prove to a federal judge that the NSL should not be enforced against them. But few Americans can afford the cost of litigating against the Justice Department to preserve their privacy.

The proposal to give the Pentagon the power to issue NSLs was rebuffed — at least temporarily — by Democrats on the Senate Intelligence Committee. And it stunned many civil liberties experts, since federal law is clear that the Pentagon has no role in domestic law enforcement. If the provision had become enacted, then the military would have had free rein to vacuum up whatever information it chose.

While the Senate Democrats denied this power to the Pentagon, FBI agents are still empowered to issue the NSLs. The FBI's power of issuing these letters is so broad that federal judge Victor Marreo, in a case brought by the ACLU, struck down the gag orders that apply to companies and individuals hit with the letters as an "unconstitutional prior restraint of speech in violation of the First Amendment." Judge Marreo warned that the powers were so extensive that "the FBI theoretically could issue to a political campaign's computer systems operator a [NSL] compelling production of the names of all persons who have e-mail addresses through the campaign's computer systems. The FBI theoretically could also issue an NSL [to learn] the identity of someone whose anonymous weblog, or 'blog,' is critical of the government." The judge’s ban issued this September on the use of National Security Letters will not take effect for 90 days, giving the Justice Department time to appeal (which it almost certainly will).

Regardless of the controversies and power struggles over the National Security Letters, Bush's Pentagon is sending U.S. military intelligent agents on domestic fishing expeditions. This past February, two U.S. Army intelligence agents descended upon the University of Texas law school in Austin. They entered the office of the Journal of Women and the Law and demanded that the editors turn over a roster of the people who attended a recent conference on Islam and women. The editors denied having a list; the behavior of one agent was described as intimidating. The agents then demanded contact information for the student who organized the conference, Sahar Aziz. University of Texas law professor Douglas Laycock commented, “We certainly hope that the Army doesn’t believe that attending a conference on Islamic law or Islam and women is itself ground for investigation.”

Military officials later declared that U.S. army intelligence agents had overstepped their bounds. But this did not stop the Bush administration in June from having a provision inserted in a bill passed in secret session by the Senate Intelligence Committee that would allow military intelligence agents to conduct surveillance and recruit informants in the United States. A Senate committee report on the bill stated the provision would provide "greater latitude ... both overseas and within the United States” for “counter-terrorism operations.” Wired.com reported, “Pentagon officials say the exemption would not affect civil liberties and is needed so that its agents can obtain information from sources who may be afraid of government agents, such as a green card-holding professor of nanotechnology who formerly lived under a repressive government.”

But it is a peculiar response to fear of government agents to unleash government agents to deceive people across the land (the provision would exempt military counter-intelligence agents from the Privacy Act, thus freeing them any obligation of informing their targets who they were or why they were gathering information). Kate Martin, director of the Center for National Security Studies, denounced the provision: "This ... is giving them the authority to spy on Americans. And it's all been done with no public discussion, in the dark of night."

The hubbub over the amendment led to its defeat. However, it belies the mentality of the current administration’s disregard for one of the most important linchpins that sustain our democracy — the firewall between our domestic and military affairs.

Based on its actions in the last three years, the Bush administration is apparently confident that Americans will continue to be apathetic about military activities within the United States. Perhaps it would be naive to expect the Bush team to have more respect for the Posse Comitatus Act than they have for the War Crimes Act, which top administration officials insisted did not apply to presidential directives after 9/11. Unfortunately, on this subject, there is no substitute for both eternal vigilance and boundless cynicism.

James Bovard is the author of "The Bush Betrayal" (Palgrave, August 2004), "Terrorism and Tyranny" (Palgrave, September 2003), and six other books.