As its overwhelming victories in Afghanistanand Iraq have demonstrated, the U.S. military isthe most effective fighting force in human histo-ry. It is so effective, in fact, that many governmentofficials are now anxious for the military toassume a more active policing role here at home.

Deploying troops on the home front is verydifferent from waging war abroad. Soldiers aretrained to kill, whereas civilian peace officers aretrained to respect constitutional rights and touse force only as a last resort. That fundamentaldistinction explains why Americans have longresisted the use of standing armies to keep thedomestic peace.

Unfortunately, plans are afoot to change thattime-honored policy. There have already been

temporary troop deployments in the airports andon the Canadian and Mexican borders and calls tomake border militarization permanent. ThePentagon has also shown a disturbing interest inhigh-tech surveillance of American citizens. Andkey figures in the Bush administration andCongress have considered weakening the PosseComitatus Act, the federal statute that limits thegovernment’s ability to use the military fordomestic police work.

The historical record of military involvementin domestic affairs cautions against a more activemilitary presence in the American homeland. IfCongress weakens the legal barriers to using sol-diers as cops, substantial collateral damage tocivilian life and liberty will likely ensue.

Deployed in the U.S.A.The Creeping Militarization of the Home Front

by Gene Healy

_____________________________________________________________________________________________________

Gene Healy is senior editor at the Cato Institute. His previous studies include “There Goes the Neighborhood: TheBush-Ashcroft Plan to ‘Help’ Localities Fight Gun Crime” and “Arrogance of Power Reborn: The ImperialPresidency and Foreign Policy in the Clinton Years.”

Executive Summary

No. 503 December 17, 2003

Introduction

As its overwhelming victories in Afghan-istan and Iraq have demonstrated, the U.S.military is the most powerful fighting force inhuman history. In fact, the military has beenso brilliantly effective abroad that it is not alto-gether surprising that many people think itcan be equally effective fighting the war on ter-rorism here at home. Since the September 11,2001, terrorist attacks, there has been a risingchorus of calls for deploying military person-nel on the home front to fight terrorism. Inthe immediate aftermath of the attacks,troops were stationed in airports, and fighterjets patrolled the skies over New York andWashington. Later, in early 2002, the Penta-gon deployed troops on the borders withCanada and Mexico. Even though that borderdeployment was temporary, it was a blatantviolation of federal law—and a disturbing indi-cation that the Bush administration is willingto disregard the law when it gets in the way.Meanwhile, the Department of Defense hasshown an unhealthy interest in domestic sur-veillance, exploring technologies that couldopen the door to surveillance of American cit-izens on an unprecedented scale.

High-level officials in Congress and theBush administration have proposed revisingor rescinding the Posse Comitatus Act, the125-year-old law that restricts the govern-ment’s ability to use the U.S. military as apolice force. Sen. John Warner (R-VA), chair-man of the Senate Armed Services Commit-tee, has said that the legal doctrine of possecomitatus (force of the county) may have hadits day.1 That view was echoed by Gen. RalphE. Eberhart, who as head of the newNorthern Command oversees all militaryforces within the United States. Eberhart hasdeclared, “We should always be reviewingthings like Posse Comitatus . . . if we think itties our hands in protecting the Americanpeople.”2

The notion that the military is the appro-priate institution for fighting terrorism athome, as well as abroad, is ill-conceived. Onthe home front, there are many tasks for

which the military is ill suited and situationsin which its deployment would be hazardousto both civilian life and civil liberties.

Americans have long distrusted the idea ofsoldiers as domestic police officers—a distrustthat is reflected in both the Constitution andfederal statutory law. Col. Patrick Finnegan,who heads the Department of Law for theU.S. Military Academy, has observed, “Themilitary is designed and trained to defend ourcountry by fighting and killing the enemy,usually faceless, with no individual rights. . . .The training, mission, and role of the militaryand police are so dissimilar that it is not sur-prising that we do not, and should not, wantthe military to act as a police force.”3

Experience has shown that when Americadeparts from that principle, the results can bedisastrous.

It is unfortunate that the call to have sol-diers assume a more active police role domes-tically has not generated more media andscholarly attention. Such a dramatic moveaway from the American tradition must becarefully studied. As this paper argues,Americans have good reason to distrust pro-posals to militarize the home front. First, thepaper briefly reviews America’s history ofcivil-military separation—and a series of trag-ic departures from that tradition. It thenturns to America’s experience in the after-math of September 11 and evaluates propos-als to break down the legal barriers to domes-tic use of the military in areas such as bordercontrol, domestic surveillance, and criminalinvestigations. The paper concludes that cur-rent law does not “tie the hands” of the gov-ernment in responding appropriately to theterrorist threat, and, far from being weak-ened or repealed, the Posse Comitatus Actshould be strengthened.

Historical and LegalBackground

A strong preference for civilian law enforce-ment is deeply rooted in the American tradi-tion. Historian Bernard Bailyn notes that the

2

On the homefront, there

are many tasksfor which the military is ill

suited and situations in

which its deployment

would be haz-ardous to both

civilian life andcivil liberties.

generation that fought the AmericanRevolution considered the use of soldiers tomaintain law and order a grave threat to free-dom: “[The colonists’] fear was not simply ofarmies, but of standing armies, a phrase thathad distinctive connotations . . . the colonistsuniversally agreed that ‘unhappy nations havelost that precious jewel liberty . . . [because]their necessities or indiscretion have permit-ted a standing army to be kept amongst them.’There was, they knew, no ‘worse state of thrall-dom than a military power in any government,unchecked and uncontrolled by the civilpower.’”4

That fear was reinforced by one of theepochal events of the Revolutionary period:the Boston Massacre. In March 1770 a civil-ian mob started to taunt British soldiers whohad been sent to Boston to reinforce the localcolonial government. Under threat from thecrowd, the troops opened fire, woundingeight and killing five, including CrispusAttucks, a runaway slave who had been work-ing as a seaman and day laborer.5 Later,Boston was placed under military rule, andthe Intolerable Acts passed in 1774 in thewake of the Boston Tea Party provided forquartering of troops in private houses.

American hostility toward militarized lawenforcement, born in republican politicaltheory and stoked by the experiences of theRevolutionary period, found expression inthe Declaration of Independence’s bill of par-ticulars against King George III: “He has keptamong us, in times of peace, StandingArmies, without the consent of our legisla-tures. He has affected to render the Militaryindependent of and superior to the Civilpower.”

Seven years after the Revolutionary War,America adopted a Constitution that autho-rized Congress to raise an army.6 So great wasthe fear that a standing army might be usedto oppress the people, however, that themovement for a Bill of Rights included callsfor safeguarding the right to keep and beararms so as to ensure that an armed populacewould be able to resist abuses of power. TheConstitution authorizes the federal govern-

ment to suppress insurrections and restoreorder but identifies the militia, not the regu-lar army, as the force to be used for suchtasks.7 In fact, there is no explicit constitu-tional authority for use of the Army to sup-press domestic violence.8

Later, following the struggles of theReconstruction period, Congress passed thePosse Comitatus Act, which made it a crimi-nal offense to use the Army to “execute thelaws.” As one federal judge has written, the actexpresses “the inherited antipathy of theAmerican to the use of troops for civil pur-poses.”9

However, along with the American tradi-tion of hostility toward domestic militariza-tion has come a series of bloody departuresfrom that tradition, both before and after thepassage of the Posse Comitatus Act. Through-out American history, presidents havedeployed troops against civilians, often withtragic results. Here are just a few of the abusesthat have occurred when presidents have disre-garded the bedrock principle that the militaryshould not intervene in civilian affairs:

• In the years leading up to the Civil War,efforts to enforce the odious FugitiveSlave Laws often met with forceful resis-tance in the North. In response, the feder-al government repeatedly used federaltroops to disperse abolitionist protestorsand forcibly return escaped slaves tobondage. In 1851, for example, 300 armedfederal deputies and soldiers led a 17-year-old escaped slave named Thomas Simsfrom a Boston courthouse to the Navyyard, where 250 more Army regulars wait-ed to put him on a ship heading South.10

• In the late 19th century, the federal gov-ernment repeatedly and illegally usedtroops to intervene in labor disputes.Particularly egregious was the Army’ssuppression of the 1899 miners’ strikein Coeur d’Alene, Idaho. Army regularsengaged in house-to-house searches andassisted in more than a thousandarrests. Troops arrested every adult malein the area and jailed the men without

3

Along with the American tradition of hostility towarddomestic militari-zation has come aseries of bloodydepartures fromthat tradition.

charges for weeks, imposing martial law.After two years of military occupation,the union was destroyed.11

• During World War I, the War Departmentquashed strikes and destroyed theInternational Workers of the Worldunion. Military intelligence agentsharassed and arrested union leaders. TheArmy suppressed strikes in Gary, Indiana;Butte, Montana; and Seattle, Washington,as well as occupying the copper miningregions of Arizona and Montana for threeyears. Historian Jerry Cooper notes that“unrestrained federal military interven-tion . . . substantially slowed unionizationfor more than a decade.”12

• Concerns about German saboteurs dur-ing World War I led to unrestraineddomestic spying by U.S. Army intelli-gence operatives. Civilian spies for theArmy were given free rein to gather infor-mation on potential subversives and wereoften empowered to make arrests as spe-cial police officers. The War Departmentrelied heavily on a quasi-private volunteerorganization called the AmericanProtective League. The APL was com-posed of self-styled “patriots” who agreedto inform on their fellow citizens. At theWar Department’s request, APL volun-teers harassed and arrested opponents ofthe draft.13

• During the Vietnam War, NationalGuardsmen shot four student protest-ers to death at Kent State University.After four days of protests followingPresident Richard Nixon’s announce-ment that American troops were beingsent to Cambodia, the governor of Ohiocalled in National Guard units torestore order. The troops arrived oncampus and ordered the crowd to dis-perse, advancing on the unarmed stu-dents with fixed bayonets. Some of theprotesters responded by throwing rocksat the soldiers. Without firing a warningshot, 28 Guardsmen began firing intothe crowd of demonstrators—at least 61shots in 13 seconds—killing students

Allison Krause, Jeffrey Miller, SandraScheuer, and William Schroeder andwounding nine others, paralyzing one.14

• Military involvement in the 1993 stand-off between federal police agencies andthe Branch Davidian community inWaco, Texas, contributed to the worstdisaster in law enforcement history—military-style attacks that left morethan 80 civilians dead, including 27 chil-dren. First, U.S. Army Special Forceshelped the Bureau of Alcohol, Tobaccoand Firearms to rehearse its aggressiveinitial raid on the Davidian residence.Federal law enforcement officials usedfalse allegations of drug trafficking bythe Branch Davidians to obtain militarytraining and National Guard heli-copters. Second, U.S. Army Delta Forcecommanders advised Attorney GeneralJanet Reno to end the 51-day standoffby launching a tank and chemical gasassault against the Branch Davidians’residence.15

As those appalling incidents demonstrate,colonial fears about military law enforce-ment were well-grounded. The abuses ofpower and risks to civilians that come withusing soldiers as cops caution against legalchanges that encourage further militaryinvolvement in domestic security.

Posse Comitatus and theSeptember 11 Attacks

The phrase posse comitatus refers to thesheriff ’s common law power to call upon themale population of a county for assistance inenforcing the laws. Enacted by Congress in1878, the Posse Comitatus Act forbids lawenforcement officials to employ the U.S. mil-itary for that purpose.16 The act consists of asingle sentence:

Whoever, except in cases and under cir-cumstances expressly authorized bythe Constitution or Act of Congress,

4

Military involvement in

the 1993 standoffbetween federalpolice agenciesand the Branch

Davidian community in

Waco, Texas, contributed to the

worst disaster inlaw enforcement

history—military-style attacks that

left more than 80civilians dead,

including 27 children.

willfully uses any part of the Army as aposse comitatus or otherwise to exe-cute the laws shall be fined under thistitle or imprisoned not more than twoyears, or both.17

Supporters of the act believed it merelyaffirmed principles that were already embod-ied in the Constitution. During the congres-sional debate in 1877, for example, Rep.Richard Townsend of Illinois said that “it wasthe real design of those who framed ourConstitution that the Federal Army shouldnever be used for any purpose but to repelinvasion and to suppress insurrection when itbecame too formidable for the State to sup-press it.”18

In practice, however, the Posse ComitatusAct has a number of limitations and excep-tions that make it far from a blanket prohibi-tion on domestic use of the military. First,the courts have held that the phrase “execut-ing the laws” indicates hands-on policing:searching, arresting, and coercing citizens.Thus, the act does not prohibit the militaryfrom providing equipment and training tocivilian authorities—even though such civil-military cooperation often works to incul-cate a dangerous warrior ethos among policeofficers.19 Second, the act applies only toArmy regulars and federalized NationalGuardsmen. If Guard units remain under thecommand of state governors, the act doesnot apply. Third, the act does not bar the useof federal troops even for hands-on policing,so long as Congress has passed a statutory“exception”—and there are statutory excep-tions in place that permit the military tooperate domestically where a terrorist attackwith nuclear, biological, or chemical weaponsthreatens imminent loss of human life.20

Fourth, the courts have long recognized a“military purpose” exception to the act.When the Army is used domestically toachieve a military purpose, it does not violatethe act even if the action incidentally aidscivilian law enforcement.21 Thus, if a latter-day Pancho Villa were to invade the UnitedStates, the Army could stop him without vio-

lating the Posse Comitatus Act. Finally, eventhough the act has clearly been violated anynumber of times since its passage, theDepartment of Justice has never prosecutedanyone for violating the act.

America’s experience in the weeks follow-ing the September 11 attacks makes it abun-dantly clear that the Posse Comitatus Act doesnot “tie the hands” of the military in respond-ing to terrorism. For good or for ill, U.S. armedforces were heavily involved in security opera-tions on the home front. In February 2002, forexample, as Black Hawk helicopters and thou-sands of troops patrolled Salt Lake City for theWinter Olympics, Secretary of DefenseDonald Rumsfeld observed: “It’s interesting tonote that the largest theatre for the UnitedStates is not Afghanistan today. It is in factSalt Lake City and the environs. We have morepeople in the area around Salt Lake City forthe Olympics than we do in Afghanistan.”22

Shortly after September 11, the Air Forcewas given the authority to shoot down civilianairliners in the event of a hijacking.23 No onesuggested that such activity violated the PosseComitatus Act, and rightly so. The act’s pro-scription against using the military to “exe-cute the laws” does not bar the use of militaryforces to ward off a military-style attack. If AlQaeda somehow procured a squadron ofSoviet MIGs and attempted a kamikaze run atthe White House, no one would suggestdeploying police helicopters to “arrest” them.By shooting the planes down, the Air Forcewould not be violating federal law—it wouldbe doing its job. The fact that Al Qaeda hasdecided to turn civilian airliners into missilesdoesn’t change the legal analysis. An Air Forcepilot ordered to down a hijacked plane wouldnot be trying to enforce the District ofColumbia’s laws against homicide or federallaws against destruction of federal property—he would be defending the capital against mil-itary attack.24

The Posse Comitatus Act did not prohibitthe deployment of some 7,000 NationalGuardsmen at the nation’s airports in theaftermath of the 9/11 attacks. Those troopswere operating under the command of the

5

America’s experi-ence in the weeksfollowing theSeptember 11attacks makes itabundantly clearthat the PosseComitatus Actdoes not “tie thehands” of themilitary inresponding toterrorism.

state governors and therefore were not cov-ered by the act.25 Mindful of the possible dan-ger to civilians, in most cases the governorsopted to keep the troops unarmed (as onePennsylvania Guard leader put it, “We don’twant any John Waynes”).26

Of course, whether the use of theGuardsmen was an intelligent deployment ofmilitary personnel is another question entire-ly. Joseph McNamara, former police chief ofKansas City, Missouri, called the Guardsmen’spresence “a pretense of doing something.” Heargued that the troops provided no real secu-rity benefit, and leaving them in place formonths after the attacks only made peoplenervous and discouraged them from flying.27

Indeed, use of the Guardsmen wasemblematic of an overly simplistic approachto domestic security that sees the military asthe answer to almost every conceivable terrorthreat. Florida authorities, for instance,deployed a tank outside Miami InternationalAirport over the Thanksgiving holiday in2001, as if the next terror attack would comein the form of an Al Qaeda mechanized col-umn, rather than a shoe bomb or a smuggledboxcutter.28 But what many public officialsfail to understand is that the military is ablunt instrument: effective for destroyingenemy troops en masse but ill suited for thefight on the home front, which requires sub-tler investigative and preventive skills.

In the panicked days following the terrorattacks, many public officials sought militaryhelp in areas where it would have been entire-ly inappropriate. One of the most ludicrousideas came from Transportation SecretaryNorman Mineta, who urged that Delta Forcecommandos be placed aboard civilian airlinersto guard against hijackers. Delta Force soldiersought to be hunting Al Qaeda operatives over-seas, not riding domestic flights. DeputySecretary of Defense Paul Wolfowitz was thevoice of reason in that case. Providing securityon board civilian aircraft “is fundamentally acivil function,” noted Wolfowitz, “It doesn’trequire all the exotic training that Delta Forcemembers have. It requires law enforcementtraining that our people don’t have.”29

Yet Wolfowitz and other administrationofficials have called for rethinking the PosseComitatus Act.30 In July 2002 the WhiteHouse indicated its openness to a new rolefor the military in providing domestic securi-ty; its National Strategy for Homeland Securitycalled for a “thorough review of the laws per-mitting the military to act within the UnitedStates.”31 The views expressed by Gen.Eberhart, the newly appointed commanderof all U.S. armed forces within NorthAmerica, are particularly troubling. InOctober 2002 Eberhart became head of thenew Northern Command, responsible forhomeland defense—the first time sinceAmerica’s founding that the command of allmilitary personnel in North America hasbeen centralized under a single officer.32 Solong as the military confines itself to its tra-ditional role, the new homeland commandis, in itself, no cause for concern. But Gen.Eberhart has repeatedly contemplated abroader role for the military. In September2002, for example, Eberhart said, “My viewhas been that Posse Comitatus will constant-ly be under review as we mature this com-mand.”33 He did not elaborate on what that“maturation” process will entail.

Creeping Militarization

Gen. Eberhart’s openness to domesticmilitary intervention may be a sign of thingsto come. Already, some troubling new mea-sures that would expand the domestic role ofthe military are being explored and tested.

Militarizing the BordersThe Pentagon is under increasing pressure

from Congress to militarize America’s borderswith Canada and Mexico. That pressure led toa six-month deployment of some 1,600 feder-alized National Guardsmen that ended inAugust 2002, a deployment carried out in vio-lation of the Posse Comitatus Act. Thoughmost of the soldiers were unarmed, the tasksthey undertook involved regulation and com-pulsion of citizens and thus constituted active

6

Florida authorities

deployed a tankoutside Miami

InternationalAirport over the

Thanksgivingholiday in 2001,

as if the next terror attack

would come inthe form of an

Al Qaeda mechanized

column, ratherthan a shoe bomb

or a smuggledboxcutter.

police work under the Posse Comitatus Act.The Immigration and Naturalization Service’sown press release announcing the use of theGuardsmen stated that soldiers assigned tothe border would perform “cargo inspections,traffic management, and pedestrian con-trol.”34 Because the soldiers were operatingunder federal command and performingpolicing tasks, the deployment was illegal.35

Although the troops were removed aftersix months, the pressure for militarizationhas not abated. Politicians like Rep. TomTancredo (R-CO) and Sen. Trent Lott (R-MS)and conservative pundits like Bill O’Reillyand Michelle Malkin have called for armedsoldiers to enforce U.S. immigration law. Inher new book, Invasion, Malkin writes that “atthe northern border with Canada . . . everyrubber orange cone and measly ‘No Entry’sign should immediately be replaced with anarmed National Guardsman.” Malkin sug-gests that something in the neighborhood of100,000 troops would be appropriate.36

The problem with such proposals is thatthe same training that makes soldiers out-standing warriors makes them extremely dan-gerous as police officers. Lawrence Korb, for-mer assistant secretary of defense in theReagan administration, put it succinctly: themilitary “is trained to vaporize, notMirandize.”37 No one knows that better thanthe military establishment, which is why thePentagon has steadfastly resisted calls to sta-tion troops on our borders, most recently inthe spring of 2002 when members of Congresspushed for border militarization. Pentagonofficials raised the possibility of an “unlawfuland potentially lethal use of force incident” ifthe troops were armed. Ultimately, some 1,600National Guardsmen, most of them unarmed,were placed on the Mexican and Canadianborders for a six-month mission. A Pentagonofficial told United Press International: “Wedo not like to do these things. We do them asa matter of last resort. That is why we enteredinto this undertaking with a specific end dateand a specific requirement.”38

Military officials are right to worry. U.S.troops have been placed on the borders in the

past, as part of the quixotic fight against drugsmuggling. Even though those deploymentshave been limited to surveillance and supportroles, they’ve led to tragedy in the past. In1997, for example, a Marine anti-drug patrolshot and killed an 18-year-old high school stu-dent named Esequiel Hernandez, who was car-rying a .22-caliber rifle while tending goatsnear his family’s farm near the Mexican bor-der. Hernandez allegedly fired two shots in thegeneral direction of the Marines, who werehidden in the brush heavily camouflaged,with blackened faces and bodies covered withburlap and leaves. The Marines did not returnfire instantly. Nor did they identify them-selves, order Hernandez to put down the rifle,or try to defuse the situation. Instead, theytracked Hernandez silently for 20 minutes.When Hernandez raised his rifle again, aMarine shot him. Hernandez bled to deathwithout receiving first aid.39 An internalPentagon investigation noted that the soldiersinvolved in the shooting were ill prepared forcontact with civilians, as their military train-ing instilled “an aggressive spirit while teach-ing basic combat skills.”40 That assessmentwas echoed by a senior Federal Bureau ofInvestigation agent involved with the case,who said: “The Marines perceived a target-practicing shot as a threat to their safety. . . .From that point, their training and instinctstook over to neutralize a threat.”41 The JusticeDepartment ultimately paid $1.9 million tothe Hernandez family to settle a wrongfuldeath lawsuit.42

The new proposals to use troops for bor-der patrol work would greatly multiply thedangers revealed by the Hernandez incident.Unlike the soldiers deployed for the drug war,the troops on border patrol duty would begiven arrest authority and allowed to directlyengage civilians. And the danger to civilianswould not be limited to the border itself.Federal law allows the Border Patrol to set upcheckpoints as far as 100 miles inland fromthe border or shoreline.43

It is true that U.S. soldiers have success-fully guarded other countries’ borders foryears. But patrolling the demilitarized zone

7

Lawrence Korb,former assistantsecretary ofdefense in theReagan adminis-tration, put itsuccinctly: themilitary “istrained to vaporize, notMirandize.”

on the Korean peninsula is a far cry fromenforcing U.S. immigration laws in Texas orMaine. The American borders with Canadaand Mexico, two peaceful neighbors withwhom Americans trade heavily, are rife withambiguous situations and opportunities forconflict. Having soldiers enforce the immi-gration laws is not wise, it is not necessary,and it is not legal. If more immigration andborder enforcement personnel are needed,they should be hired. Border security can beprovided without the dangerous innovationof militarized borders.

The Threat of Military SurveillanceAlthough the Department of Defense

deserves credit for resisting calls to placetroops on the borders, its research arm hasshown a disturbing interest in domestic sur-veillance. As has been widely reported, thePentagon’s Office of Information Awareness,part of DoD’s Defense Advanced ResearchProjects Agency, has been planning to developa powerful data-mining system called TotalInformation Awareness.44 Such a system couldpotentially allow the government to track theroutine activities of Americans, from travelplans to credit card transactions to medicalrecords. In response to public outcry, Con-gress shut down the Office of InformationAwareness in September 2003.45 But work onTIA-style technology continues below theradar screen.46 Moreover, the JetBlue scandal,in which an airline shared private passengerdata with a defense contractor in response toan “exceptional request from the Departmentof Defense,” shows that DoD retains its inter-est in developing data-mining technology tosift through personal information on civilians,whatever the fate of TIA.47 In any event, it’sworth examining the TIA proposal to under-stand what Americans would be risking if theypermitted military surveillance with 21st-cen-tury technology.

As Iran-contra figure John Poindexter, whooversaw research for TIA, envisioned it, TIAwould “break down the stovepipes” that sepa-rate commercial and government databases,allowing government access to records of citi-

zens’ credit card purchases, travel itineraries,telephone calling records, e-mail, medical histo-ries, and financial information. As recently asJanuary 2003, DARPA’s website featured a TIAschematic that envisioned use of “TransactionalData” including “Financial, Education, Travel,Medical, Veterinary, Country Entry, Place/EventEntry, Transportation, Housing . . . [and]Communications” data, as well as “Authenti-cation Biometric Data,” including “Face, FingerPrints, Gait, [and] Iris” identifiers. Interestingly,that schematic, demonstrating DARPA’s desireto access private databases, was removed fromthe DARPA website after news spread about theprogram and the controversial implicationsbecame widely known. In any event, the idea isto develop data-mining technology that can siftthrough these databases, many of which are cur-rently in private hands, and identify patterns ofterrorist activity.48 Once developed, the systemwould give the government the power to gener-ate a comprehensive data profile on any U.S. cit-izen. Though some DARPA officials envisionedturning the system over to civilian law enforce-ment, it’s clear that military officials were keenlyinterested in the technology. In November 2002Maj. Gen. Dale Meyerrose, chief information-technology officer for NORTHCOM, said: “I’vebeen to [visit] Admiral Poindexter. He and I aretalking about TIA.”49

DARPA officials maintained that TIAwould be designed so as to respect constitu-tional guarantees of privacy and shield law-abiding citizens from the Pentagon’s all-see-ing eye. But if the history of military surveil-lance of civilians is any guide, accepting thatassurance would amount to the triumph ofhope over experience. After all, the Penta-gon’s TIA project would not be the first timethe U.S. military has amassed private data oncitizens, and judging by its past forays intodomestic surveillance, that authority wouldalmost certainly be abused.

For example, during World War I, U.S.Army intelligence operatives were given carteblanche to gather information on potentialsubversives and were often empowered tomake arrests as special police officers.Occasionally, they carried false identification

8

Although theDepartment of

Defense deservescredit for

resisting calls toplace troops onthe borders, its

research arm hasshown a disturb-

ing interest indomestic

surveillance.

as employees of public utilities to allow them,as the chief intelligence officer for theWestern Department put it, “to enter officesor residences of suspects gracefully, andthereby obtain data.”50 In her book, ArmySurveillance in America, historian Joan M.Jensen notes, “What began as a system to pro-tect the government from enemy agentsbecame a vast surveillance system to watchcivilians who violated no law but who object-ed to wartime policies or to the war itself.”51

The War Department relied heavily on aquasi-private volunteer organization, theAmerican Protective League, which was com-posed of self-styled “patriots” who agreed toinform on their fellow citizens. America’sexperience with the APL makes clear that civillibertarian concerns about Operation TIPS,the Justice Department’s plan to enlist alegion of citizen-informants in the war onterror, are, if anything, understated.52 APLvolunteers carried identification cards andtin badges and responded to requests fromthe War Department for investigation ofcivilians. At the War Department’s request,APL volunteers harassed labor organizers;intimidated and arrested opponents of thedraft; and spied on Mexican-American lead-ers in Los Angeles, pacifist groups, and anti-war religious sects. Through it all, the Armycaught exactly one German spy.53 By the endof the war, the APL had close to a quarter ofa million members and had carried out some6 million investigations.54

The Army’s domestic surveillance activi-ties were substantially curtailed after the endof World War I, but throughout the 20th cen-tury, in periods of domestic unrest and for-eign conflict, Army surveillance ratcheted upagain, most notably in the 1960s. Duringthat tumultuous decade, President LyndonB. Johnson repeatedly called on federaltroops to quell riots and restore order. To bet-ter perform those domestic missions, Armyintelligence operatives began compilingthousands of dossiers on citizens, many ofwhom had committed no offense beyondexercising their constitutional right toprotest government policy. Reviewing the

files, the Senate Judiciary Committee notedthat “comments about the financial affairs,sex lives and psychiatric histories of personsunaffiliated with the armed forces appearthroughout the various records systems.”55

In a case involving the program, JusticeWilliam O. Douglas called army surveillance“a cancer in our body politic.”56

With TIA, DARPA sought to bringPentagon surveillance into the 21st century,replacing the low-tech, labor-intensive sys-tem relied on in the past with high-tech data-mining techniques. DARPA’s website statesthat the Department of Defense is commit-ted to executing TIA “in a manner that pro-tects privacy and civil liberties.”57 But giventhe military’s legacy of privacy abuses, suchvague assurances are cold comfort. And evenif the military would be barred from access tothe TIA system, the potential for abuse inher-ent in that system counsels against its devel-opment. Once the system is developed, therewill be no guarantee that privacy protectionscan be maintained, or that it will be limitedto tracking terrorist suspects.58 Thus far,Congress has prevented the development ofthis dangerous “all-seeing eye.” But given theinvasive potential of the technology and thesordid history of military surveillance, this isan area where vigilance is imperative.

Gumshoes and Grunts: Blurring theLines

In addition to the dangers posed by domes-tic surveillance and militarization of the bor-ders, the war on terrorism threatens to blurthe lines between civilian law enforcement andthe military in two ways: first, by encouragingpolice paramilitarism and, second, by invitingmilitary participation in the investigation ofhigh-profile crimes that may not have any gen-uine connection to terrorism.

Increasingly, American police depart-ments are coming to view their mission inmilitary terms—a tendency encouraged byfederal policies that allow the transfer of sur-plus military equipment to local cops andpolicies that promote training of law enforce-ment personnel by the military.59 The warrior

9

Increasingly,American policedepartments arecoming to viewtheir mission inmilitary terms—atendency encouraged byfederal policies.

mentality encouraged by civil-military coop-eration has repeatedly resulted in collateraldamage to innocents killed in violent no-knock police raids. To take one recent exam-ple, in May 2003 a raid in New York Cityresulted in the death of Alberta Spruill, a 57-year-old church volunteer. She died of a mas-sive coronary after cops in riot gear threw aflash-bang grenade into her small apartment.No drugs were ever found.60

The drug war has been the driving forcebehind the growth of police paramilitarismover the last two decades. But the far moreserious threat of terrorism in the post-9/11environment threatens to accelerate thistrend. New York City police commissionerRaymond Kelly has hired ex-military profes-sionals, including a retired Marine Corpsgeneral as deputy commissioner for coun-terterrorism, to reshape the department’sapproach to fighting terrorism. Says Kelly:“We’re at war, and we have to be able todefend ourselves in a variety of ways. . . . Themilitary experience is really perfect for whatwe have to do.”61 Kelly has created “HerculesTeams”—elite paramilitary units armed with9-millimeter submachine guns and oftenaccompanied by air or sea support—thatmount public shows of force at potential ter-rorist targets like Times Square or the NewYork Stock Exchange.62 The NYPD has alsoconsidered placing .50-caliber machine gunson police helicopters.63

The terrorist threat to New York City isundeniably real, and extraordinary measuresthat would be inappropriate elsewhere may bejustified in a city that has been targeted repeat-edly by Al Qaeda. But if this is so, NYPD offi-cials must take steps to ensure that the depart-ment as a whole is not infected with a “warriorcops” mentality. After all, the paramilitarymindset that NYPD leadership has condonedamong anti-crime units has contributed totragedy in the past. The NYPD’s elite StreetCrimes Unit—members of which fired 41shots at an unarmed West African immigrantnamed Amadou Diallo in 1999—had a dis-tinctly militaristic cast, with officers referringto themselves as “commandos.”64

Fortunately, some police departments areresisting the trend toward militarized tactics.Chief Kenneth Holding of Trenton, Florida,gave up his department’s military-issue M-16s, saying, “I don’t think terrorists are likelyto visit here.”65 But with the warrior élan thatmilitary hardware brings and with federallypromoted deep discounts that can have M-16s going to local police departments for lessthan $5, it is not realistic to expect manypolice officials to be as conscientious as ChiefHolding.

In addition to providing further incen-tives for police paramilitarism, the war onterrorism may increase direct militaryinvolvement in the investigation of high-pro-file crimes. In the heightened threat environ-ment of the post–September 11 world, thereis a real danger that the military will be calledin for any high-profile incident that has anyplausible connection to terrorism. And oncethat precedent is established, militaryinvolvement could expand to ordinary crimi-nal investigations. After all, terrorists havebeen connected to mundane criminal activi-ty, such as cigarette smuggling.66

During the month-long hunt for theWashington, DC, area sniper, Secretary ofDefense Donald Rumsfeld approved the useof Army RC-7 surveillance aircraft to helpfind the killer. The low-flying planes,crammed with $17 million worth of infraredsensors and other surveillance technologies,are typically used for tasks like monitoringtroop movements around the demilitarizedzone on the Korean peninsula. Federal offi-cials argued that the RC-7 could help to pin-point the sniper’s location.67 At the time,however, constitutional scholar and criminaljustice expert Stephen Halbrook predictedthat when the sniper was eventually caught,it would not be through use of high-tech mil-itary hardware but through old-fashionedpolice work.68 Halbrook was right. In the end,the killers’ greed, a credit card number, a fin-gerprint, ballistics work, and a witness identi-fication of the car at a rest stop in Marylandled to the apprehension of John AllenMuhammad and Lee Boyd Malvo.

10

The drug war hasbeen the drivingforce behind thegrowth of police

paramilitarismover the last two

decades.

Is it legal and appropriate for police offi-cials to use the military to help solve adomestic murder spree with no solid connec-tion to international terrorism? First, itshould be noted that use of the Army planesdid not violate the Posse Comitatus Act. Ifthe Army had deployed Delta Force sniperson the ground to hunt Muhammad andMalvo, that would have been a clear violationof the act. But, as noted above, the courtsdefine “executing the laws” as arresting,shooting, searching, and coercing citizens;the courts have not held that provision ofadvice or equipment constitutes execution ofthe laws under the Posse Comitatus Act.Thus, the act is no barrier to the Army’s pro-vision of surveillance equipment to localauthorities.69

However, that the law was not brokendoes not mean that Pentagon involvement inthe sniper hunt is no cause for concern. Theeagerness of the civilian authorities to seekmilitary help in that case suggests thatAmerica will likely see more military involve-ment in high-profile investigations in thefuture. As then-representative Bob Barr (R-GA) noted: “If you use this as a precedent,where do you then draw the line? The nexttime you have a sniper, do you bring the mil-itary in after two deaths?”70 And even wherethe military’s role is limited to advice, train-ing, and provision of equipment, the erosionof the civil-military line is troubling. After all,to the best of our knowledge, Army person-nel at Waco limited themselves to provisionof equipment and advice. Even that limitedinvolvement contributed to the greatest dis-aster in U.S. law enforcement history.

Of late, local officials have been calling infederal law enforcement agencies on high-profile local incidents—even if the incidenthas no plausible connection to a federalinterest. For instance, half a dozen federalagencies participated in the investigation ofthe tragic Rhode Island nightclub fire at aGreat White Concert in February 2003.71

Federal intervention is worrisome enough;calling in Army Special Forces will be evenworse.

Increasingly, public officials are coming toview militarization of law enforcement, not asa last resort in situations in which civil orderbreaks down entirely, but as an option thatcan be invoked whenever public safety isthreatened. In the middle of the sniper ordeal,Maryland governor Parris Glendening an-nounced that he was considering using theNational Guard to provide security at pollingplaces on Election Day.72 Consider the omi-nous image of armed soldiers surroundingAmerican polling places. That is an image onewould normally associate with a bananarepublic, not a free, democratic one.

Policymakers Should Lookbefore They Leap

Before policymakers embrace proposalsthat will radically restructure the role of theAmerican military, the dangerous implica-tions of such a move must be carefully consid-ered. Those dangers are not limited to collat-eral damage to civilians from combat-trainedsoldiers; they include threats to our open, par-ticipatory, republican institutions.

Will There Be Accountability forAccidents, Misconduct, Brutality?

“The blue wall of silence” is the popularterm for a pattern of collusion and coverupthat can often be found among police officersseeking to shield lawless violence and corrup-tion in the ranks. It denotes “an unwritten ruleand custom that police will not testify againsta fellow officer and that police are expected tohelp in any cover-up of illegal action.”73 Theblue wall of silence frustrates citizens andelected officials who are investigating possibleabuses of power. Civilian authorities havedeveloped institutions, such as internal affairsboards, that are designed to overcome thatwall, but those institutions work only imper-fectly, and cover-ups persist.74

However much the code of silenceobstructs the search for truth in cases ofpolice abuse or negligence, the problem islikely to be far worse if policymakers expand

11

In the heightenedthreat environ-ment of thepost–September11 world, there isa real danger thatthe military willbe called in forany high-profileincident that hasany plausibleconnection to terrorism.

and normalize the use of military policing.People trying to ascertain exactly what hap-pened when citizens are killed or seriouslyinjured by soldiers engaged in police actionson the home front are likely to run into a“green wall of silence” that will be even moreimpenetrable than the culture of secrecy indomestic police agencies. The prospect oflawless and unaccountable military unitspatrolling America should concern peopleacross the political spectrum.

Consider, for example, the military’sresponse to the previously mentionedEsequiel Hernandez incident, in which anAmerican high school student was killed by aMarine Corps anti-drug patrol. The Pentagonand other federal agencies repeatedlystonewalled the local civilian investigators,according to Rep. Lamar Smith (R-TX), whoconducted a congressional oversight inquiryinto the circumstances surrounding the slay-ing. Two days after the incident, the soldiersinvolved in the shooting were abruptly trans-ferred from the Texas border to CampPendleton, California, which obviously ham-pered the investigation of the incident. Rep.Smith’s report notes that “the Marines weretreated much differently from most potentialsuspects in homicide cases, and as a result theybenefited from ample opportunities to coor-dinate and memorize their stories before beingsubjected to professional law enforcementinterrogation.” Moreover,

During their criminal investigation, theTexas Rangers and District AttorneyValadez found it difficult to obtain nec-essary information, documents and tes-timony from the Marines, JTF-6 [JointTask Force Six, the multiservice militarycommand responsible for counterdrugoperations within the United States]and the Border Patrol. The federal agen-cies failed to provide evidence inresponse to simple requests, so theDistrict Attorney served subpoenas. TheDefense Department responded tothose subpoenas by asserting federalimmunity.75

Rep. Smith’s investigation concluded thatthe Defense Department, along with theJustice Department, operated so as to“obstruct and impede state criminal lawenforcement in the Hernandez case.”76

The Pentagon and federal agencies alsoevaded scrutiny when wrongful death law-suits were filed in the aftermath of the Wacoincident. Lawyers for the victims’ families,seeking to determine what role Delta Forcesoldiers played at Waco, were repeatedlyrebuffed with assertions of “national securi-ty.” For example, when the lawyers soughtthe names of the soldiers so that they couldbe interviewed, the government’s reply wasthat only written questions could be submit-ted and the lawyers would eventually receiveanonymous answers from military personnelinvolved in the incident.77 Although threeDelta operatives were eventually questionedface to face, the Pentagon refused to declassi-fy 5,000 pages of documents the plaintiffs’lawyers believed were instrumental to resolv-ing whether military personnel acted illegallyduring the standoff. “Public interestdemands the public be informed of the mili-tary activities undertaken against U.S. citi-zens on U.S. soil,” attorney Jim Brannonwrote to then–secretary of defense WilliamCohen in protest.78

Should use of soldiers to fight the domes-tic war on terror be expanded, the compellingpublic interest in government transparencywill run up against a powerful legal barrierpreventing disclosure of the facts when citi-zens are killed or injured. That barrier is theso-called state secrets privilege, which allowsfederal agencies to shield information fromcivil or criminal courts when “compulsion ofthe evidence will expose military matterswhich, in the interest of national security,should not be divulged.”79 Courts accord“utmost deference” to executive assertions ofprivilege on national security grounds.80 Thejudge will generally not examine the docu-ments sought, to ensure that they in fact con-tain military secrets, lest too much judicialinquiry into the claim of privilege “force dis-closure of the thing the privilege was meant

12

If broadscale,hands-on

policing by themilitary is adopt-

ed and citizensare injured or

killed, there is noguarantee that the

state secrets privilege will notbe abused again.

to protect.”81 If through a narrow review, acourt satisfies itself that military secrets areat issue, “even the most compelling necessity[on the part of the litigant] cannot overcomethe claim of privilege.”82

There is no parallel claim of “public safetyprivilege” or the like protecting police meth-ods and tactics from disclosure in cases involv-ing civilian police personnel. That helps tokeep the police accountable to the people. Incontrast, the more policymakers turn to, andrely on, military personnel to fight crimedomestically, the harder it will be for innocentinjured parties to attain redress in the courts.Judicial review of the state secrets privilege isso deferential that courts may uphold it evenwhere it is invoked, not to protect genuinenational security interests, but to shieldwrongdoers from civil or criminal liability.

There is perhaps no better illustration ofthis than United States v. Reynolds, the landmark1953 Supreme Court case that established thestate secrets doctrine. That case arose out ofthe crash of a B-29 aircraft in Waycross,Georgia, on a flight to test electronic naviga-tion equipment. Three widows of civilianobservers killed in the crash brought a wrong-ful death suit against the federal governmentand sought the release of the Air Force’s acci-dent report. The secretary of the Air Forceasserted that the report was privileged for“national security” reasons, and the SupremeCourt upheld the claim of privilege.

It now appears that the Air Force misledthe Supreme Court. Five decades later, thereport had been declassified, and the daughterof one of the victims ordered a copy.According to the accident report, “[T]he air-craft is not considered to have been safe forflight,” because, in violation of Air Force direc-tives, a protective shield designed to preventengine overheating had not been installed onthe plane. No genuine military secret wasinvolved—rather, what the Air Force sought toshield was evidence of its own negligence.83

Note the double abuse: First, the plane wasnot properly equipped for safe flight and peo-ple were killed as a result. Second, the AirForce evaded accountability by defrauding the

civilian court and litigants with false claimsabout “national security.”84

If broadscale, hands-on policing by themilitary is adopted and citizens are injured orkilled, there is no guarantee that the statesecrets privilege will not be abused again.Those who seek to bring the military intodomestic law enforcement will increase thedanger to civilians while at the same timemaking it difficult or impossible for the pub-lic to find out the truth about incidents of“collateral damage.”

Covert Operations on the Home Front?Americans have traditionally been uneasy

about greater involvement of the military indomestic affairs because military culturemixes uneasily with open, participatory,republican institutions. During the ColdWar, for example, military leaders occasional-ly showed appalling judgment about thekinds of clandestine activities that should becarried out domestically in the name ofnational security. What follows are two cau-tionary tales from that era.

Between 1949 and 1969 the military con-ducted open-air tests of biological agents 80times, often using American civilians asguinea pigs.85 The Army used biologicalagents that were thought to be harmless, dis-persing Serratia bacteria on Key West andPanama City, Florida, and other areas duringthe 1950s. In at least one case, however, theexperiment appears not to have been harm-less. In 1950 the Navy staged a mock biologi-cal attack on San Francisco, spraying Serratiaand Bacillus microbes from hoses on an off-shore vessel. Soon, 11 men and womenchecked into Stanford hospital with a rareform of pneumonia caused by exposure toSerratia marcescens. One of the men, a retiredpipefitter named Edward J. Nevin, died threeweeks later.86 Three decades later, when infor-mation about the experiments was revealed,Nevin’s surviving family members sued thefederal government. A federal appellate courtrebuffed the claimants with the followingwords: “[O]ur review would likely impair theeffective administration of government pro-

13

Between 1949 and1969 the militaryconducted open-air tests ofbiological agents80 times, oftenusing Americancivilians asguinea pigs.

grams believed to be vital to the defense ofthe United States at the time that they areconducted.”87

One of the witnesses at the Nevin trial wasretired general William Creasy, former com-mander of the testing program. Creasy wasunapologetic about his actions, noting thatbiological agents are “designed to workagainst people. You have to test them in thekind of place where people live and work.”And in such cases, he argued, it would be“completely impossible to conduct such a testtrying to obtain informed consent. I couldonly conduct such a test without informingthe citizens it was being conducted.”88

In another shocking episode, top militaryofficials developed a plan to foment a war withCuba by staging mock terrorist attacks andshifting the blame to Fidel Castro. In 1962Army general Lyman L. Lemnitzer, chairmanof the Joint Chiefs of Staff, presented RobertMcNamara, President Kennedy’s defense sec-retary, with a memo detailing OperationNorthwoods, a plan to covertly engineer vari-ous “pretexts which would provide justifica-tion for U.S. military intervention in Cuba.”89

Those pretexts would include “a ‘Rememberthe Maine’ incident”—staging the explosionand sinking of a U.S. ship in GuantanamoBay. Though no U.S. personnel were to bekilled in the incident, phony casualty listswould be supplied, which “in U.S. newspaperswould cause a helpful wave of national indig-nation.”90 The memo also contemplates fak-ing a Cuban attack on “a chartered civil airlin-er enroute from the United States to Jamaica,Guatemala, Panama or Venezuela,” and devel-oping a fake

Communist Cuban terror campaign inthe Miami area, in other Florida cities,and even in Washington. The terrorcampaign could be pointed at Cubanrefugees seeking haven in the UnitedStates. We could sink a boatload ofCubans enroute to Florida (real or sim-ulated). We could foster attempts onlives of Cuban refugees in the UnitedStates even to the point of wounding

in instances to be widely publicized.Exploding a few plastic bombs in care-fully chosen spots, the arrest of Cubanagents and the release of prepared doc-uments substantiating Cuban involve-ment also would be helpful in project-ing the idea of an irresponsible[Cuban] government.91

The plan, which was unanimously ap-proved by the Joint Chiefs of Staff, wasapparently vetoed by Defense SecretaryMcNamara.92 Still, it is frightening that mili-tary authorities at the highest level felt com-fortable proposing such a plan to the civilianleadership.

These episodes are not revived to impugnthe integrity of the men and women whoserve in America’s armed forces or the integri-ty of their leaders in general. The point is torecall that, on occasion, U.S. military leaders’zeal for victory has inspired actions that areprofoundly dangerous to free, democraticinstitutions. That sort of zeal is a serious dan-ger—and never more so than when the mili-tary is engaged, as it is now, in a justifiedstruggle against an evil foe.

Necessary Reforms

There is ample reason, then, to be cautiousabout proposals for further domestic militaryinvolvement. The burden ought to lie on thosewho seek to cast aside the time-honored prin-ciple that day-to-day protection of civilians onthe home front is a civilian responsibility.Thus far, the proponents of such a move havenot come close to discharging that burden.The Posse Comitatus Act does not hamstringthe government in fighting the war on AlQaeda. The act leaves ample room for anyappropriate use of the military to aid civilianauthorities in protecting Americans from vio-lence. The real problem is not that the PosseComitatus Act is too restrictive but that it isnot restrictive enough. The current law allowsfar too much military involvement in lawenforcement, in areas where it is neither neces-

14

Top military officials

developed a planto foment a war

with Cuba bystaging mock

terrorist attacksand shifting the

blame to FidelCastro.

sary or appropriate. Congress should closethose loopholes.

Demilitarize the War on DrugsFor more than 20 years the federal govern-

ment has steadily ramped up the militariza-tion of the war on drugs. In 1986 PresidentReagan signed a National Security DecisionDirective that declared the drug trade a“national security threat.”93 Congress, in aseries of statutory revisions passed in the1980s, made the war on drugs a bona fide war,with the Pentagon a central player in thestruggle.94 Though those statutory provisionsare commonly referred to as the “drug warexceptions” to the Posse Comitatus Act, theydo not grant soldiers arrest authority.However, the provisions do encourage thePentagon’s involvement in surveillance anddrug interdiction near the national borders.

In some cases, the loopholes also promotedirect involvement by soldiers in law enforce-ment. In 1990 Congress authorized the secre-tary of defense to fund National Guardinvolvement in state-level drug war opera-tions.95 That funding has encouraged the useof uniformed National Guardsmen in statedrug interdiction operations, which rangefrom leveling crack houses to lecturing highschool students about the dangers of drugabuse.96 One state-level anti-drug program,California’s Campaign against MarijuanaPlanting, has long been a source of frictionbetween rural residents and law enforcement.Under CAMP, National Guard helicoptersbuzz California farms and Guardsmen andpolice officers invade private property lookingfor marijuana plants during growing season.As one irate Californian described CAMP: “It’slike a Boy Scout outing for law enforcement. Itis a kick. . . . They get up here, and everyone inthe countryside is a criminal.”97

The Department of Defense spent about abillion dollars fighting the drug war duringfiscal year 2002. But that may be about tochange. With the shift in priorities afterSeptember 11, the Pentagon is prepared toscale back its role in drug interdiction. “Thetop priorities are now to defend the home-

land and to win the war on terrorism,” saidAndre Hollis, head of the Pentagon’s drugwar efforts.98 That is good news. Secretary ofDefense Donald Rumsfeld has referred tomilitary efforts to stop drug trafficking as“nonsense.”99 In his confirmation hearing inJanuary 2001, Rumsfeld noted that “the drugproblem in the United States is overwhelm-ingly a demand problem and to the extentthat demand is there and it is powerful, it isgoing to find ways to get drugs in this coun-try.”100 Former defense secretary CasparWeinberger has been equally blunt, arguingthat military involvement in the war ondrugs has been “detrimental to militaryreadiness and an inappropriate use of thedemocratic system.”101

Weinberger’s assessment is accurate. Themilitarization of the drug war has led to abus-es of power at home and abroad. Abroad, U.S.Army involvement in the fight against drugshas destabilized Latin American governmentsand cost scores of innocent lives, includingthose of Americans. In April 2001 in Peru, forexample, a U.S. surveillance plane identified asmall Cessna airplane as a possible drug-traf-ficking vehicle. The Peruvian air force sent upan A-37B Dragonfly attack plane, which firedon the Cessna, killing an innocent Americanmissionary, Roni Bowers, and her infantdaughter.102

Incredibly, in the midst of drug war hyste-ria, some legislators have even consideredadopting the Peruvian shoot-to-kill policy fordrug interdiction inside the continentalUnited States. In 1990 Sen. Mitch McConnell(R-KY) introduced an amendment to theFY90 Pentagon budget that would haveallowed the military to shoot down planessuspected of carrying drugs. Though theamendment passed the Senate, it did notbecome law.103

But the loopholes for military participa-tion in the drug war have done damageenough. By putting heavily armed and inap-propriately trained Marines on the U.S.-Mexican border, the “drug war” exceptions tothe Posse Comitatus Act led inexorably to thedeath of Esequiel Hernandez. And by encour-

15

In 1990 Sen.Mitch McConnellintroduced an amendment tothe FY90Pentagon budgetthat would haveallowed the military to shootdown planes suspected of carrying drugs.

aging the transfer of military ordnance tocivilian peace officers, the drug war excep-tions have encouraged a dangerous culture ofparamilitarism in police departments.

Given this record, the Pentagon’s move todivert resources from drug interdiction is astep in the right direction. But that policychange is not nearly enough. Instead of a subrosa effort to limit Pentagon involvement inthe war on drugs, Congress should repeal the“drug war exceptions” to the Posse ComitatusAct. American military personnel should befocusing on Al Qaeda operatives who are plot-ting mass murder, not marijuana smugglers.

Weapons of Mass DestructionMilitary involvement in the drug war has

been a tragic mistake. But that does not meanthat every use of military resources domesti-cally ought to be reflexively opposed. There arelimited areas in which military expertise,equipment, and even personnel can help tosecure Americans from terrorist threats—andwhere such assistance does not present thekind of dangers the Posse Comitatus Act isdesigned to prevent.

For example, there are 32 Civil SupportTeams currently operational in the UnitedStates, tasked with responding to suspectedchemical, biological, or radiological attacks.The teams are not combat units; rather, theyconsist of full-time National Guardsmenspecially trained in analyzing and respondingto threats involving weapons of massdestruction (WMD). The Civil SupportTeams operate under the command of theirrespective state governors, but they can beplaced under federal command, if necessary.They bring special expertise and capabilitiesnot normally available to civilian firstresponders—such as high-tech mobile labo-ratories that can allow the teams’ WMDexperts to analyze suspected chemical or bio-logical agents on-site to determine whetherthe suspected threat is genuine.104 If it is, theteams advise civilian authorities on the likelyconsequences and preferred courses ofaction. Congress has authorized the creationof 23 additional teams.105

The Civil Support Teams are a goodexample of how military resources can bedeployed effectively and appropriately toimprove homeland security.106 Regrettably,most other proposed domestic uses ofAmerican military post-9/11 have not metthat standard. Public officials, most of themoutside the uniformed services, have uncriti-cally accepted the notion that because themilitary has been so spectacularly effective atits appointed task of waging war, it can beequally effective providing security on thehome front. That notion is as simplistic as itis dangerous.

Conclusion

The U.S. military is the most effective fight-ing force in human history; it is so effective, infact, that some federal officials have come tosee it as a panacea for domestic security prob-lems posed by the terrorist threat. But on thehome front, there are many tasks for whichthe military is ill suited, and for which itsdeployment would be profoundly unwise.

The soldier’s mission, as soldiers oftenphrase it, is “killing people and breakingthings.” In contrast, police officers, ideally,are trained to operate in an environmentwhere constitutional rights apply and to useforce only as a last resort. Accordingly,Americans going back at least to the BostonMassacre of 1770 have understood theimportance of keeping the military out ofdomestic law enforcement. That understand-ing is reflected in the Posse Comitatus Act of1878, which makes it a criminal offense touse U.S. military personnel as a police force.

In the more than two years since the terrorattacks of September 11, 2001, however, therehas been a slowly building chorus of calls toamend or weaken the Posse Comitatus Actand give the U.S. military a hands-on role inhomeland security. Prominent figures inCongress and the Bush administration havecomplained that legal barriers to domesticmilitarization tie their hands in protecting theAmerican people. Of course, where appropri-

16

By putting heavilyarmed and

inappropriatelytrained Marines

on the U.S.-Mexican border,

the “drug war”exceptions to thePosse Comitatus

Act led inexorablyto the death of

EsequielHernandez.

ate, we want constitutional and statutory con-straints to “tie the hands” of the authorities intheir pursuit of domestic security. Safety andsecurity are not the only ends of government—liberty is our highest political end. The PosseComitatus Act is, unfortunately, a weak andporous barrier to military involvement indomestic law enforcement, but it is designedto protect both our liberty and our safety.

Changed circumstances after September11 provide no compelling reason to weakenthe statute further. Moreover, the disturbinghistory of Army involvement in domesticaffairs strongly cautions against giving themilitary a freer hand at home.

Notes1. Hearing of the Senate Armed ServicesCommittee, Federal News Service, October 4, 2001.

2. Quoted in Eric Schmitt, “Wider Military Role inU.S. Is Urged,” New York Times, July 21, 2002, p.A16.

3. Quoted in Fred Brown, “Civilians, MilitaryClashed on 9-11; Each Had Different Goals,Historian Says,” Knoxville News-Sentinel, May 3,2003, p. B1.

4. Bernard Bailyn, The Ideological Origins of theAmerican Revolution (Cambridge, MA: HarvardUniversity Press, Belknap, 1992), pp. 61–62, quot-ing from Argument Shewing, That a Standing Army IsInconsistent with a Free Government by the Englishlibertarian pamphleteer John Trenchard.

5. Details on the Boston Massacre, including con-temporary accounts, can be found at www.bostonmassacre.net/index.html. The soldiers were prose-cuted for murder but were eventually acquitted,thanks in part to a defense led by John Adams, therevolutionary who was later to become America’ssecond president.

6. Even so, the Framers would not concede thata regular army had to be a permanent feature ofgovernance; they empowered Congress to “raiseand support Armies, but no Appropriation ofMoney to that Use shall be for a longer Term thantwo Years.” U.S. Constitution, Art. I, sec. 8, cl. 12.

7. See Art. I, sec. 8, cl. 15: “To provide for callingforth the Militia to execute the Laws of the Union,suppress Insurrections and repel Invasions.”Indeed, the first use of federal authority to sup-

press insurrections, President Washington’squashing of the Whiskey Rebellion in 1794, wascarried out with federalized militia, and in thatuse of the militia “Washington was careful alwaysto subordinate the military to civilian authority.The militia was not allowed to exercise theauthority or function of civil officers, or to serveas an occupying army. The President’s orders toGeneral Harry Lee emphasized that the militaryforce was simply to suppress disorder and allowjudges, district attorneys, marshals, and exciseofficers to enforce the law.” Jerry M. Cooper,“Federal Military Intervention in DomesticDisorders,” in The United States Military under theConstitution of the United States, 1789–1989, ed.Richard H. Kohn (New York: New York UniversityPress, 1991), p. 123.

8. Since the modern National Guard is ultimate-ly subservient to the president in conflicts withstate governors, Perpich v. Department of Defense,496 U.S. 334 (1990), it is arguably no longer the“militia” contemplated by Art. I, sec. 8, cl. 12. Forthat reason, some scholars have argued that anyuse of federalized National Guardsmen rests ondubious constitutional grounds. See Stephen P.Halbrook and David B. Kopel, “‘I Can’t Have MyBabies Back’: Historical and ConstitutionalObjections to Use of the National Guard inDomestic Law Enforcement,” Hearings before theSubcommittee on Crime of the House JudiciaryCommittee, October 5, 1994. But note that it wasat the request of President Thomas Jefferson in1807 that Congress amended the insurrectionstatute to allow use of “such part of the land andnaval force of the United States as shall be judgednecessary” for the same purposes for which thepresident was allowed to use federalized militia.Cooper, p. 124.

9. Wrynn v. United States, 200 F. Supp. 457, 465(E.D.N.Y. 1961) (Dooling, J.).

10. See James M. McPherson, Battle Cry of Freedom(New York: Oxford University Press, 1988), p. 83;and Cooper, p. 123. See also Clay Conrad, JuryNullification (Durham, NC: Carolina AcademicPress, 1998), pp. 75–88. Defenders of domesticmilitarization point out that military involve-ment in law enforcement has done some good inthe past—for instance, the 1957 desegregation ofCentral High School in Little Rock, Arkansas, inwhich President Eisenhower used federalizedNational Guardsmen and Army paratroopers toensure compliance with Brown v. Board ofEducation. True enough, but the story of ThomasSims, and others like him, serves as an importantreminder that the federal policies soldiers havebeen used to enforce have not always been just.

11. Joan M. Jensen, Army Surveillance in America,

17

1775–1980 (New Haven, CT: Yale University Press,1991), p. 139; and Cooper, p. 135.

12. Ibid., p. 137

13. Jensen, p. 177.

14. Gary Tuchman, “Kent State Forever Linkedwith Vietnam War Era,” CNN.com, May 4, 2000,www.cnn.com/SPECIALS/views/y/2000/04/tuchman.kentstate.may4.

15. Rowan Scarborough, “Military Training ofCivilian Police Steadily Expands; Congress HasPaved Way with Legislation,” Washington Times,September 9, 1999, p. A1; Lee Hancock, “ATFOfficial Defends Raid Planning,” Dallas MorningNews, March 27, 1993; and David B. Kopel andPaul H. Blackman, No More Wacos (Amherst, NY:Prometheus, 1997), p. 86.

16. In an attempt to discredit the act, supporters ofbroader use of the military to enforce the laws havemade much of the act’s Reconstruction-era origins,perhaps too much. Historian Joan M. Jensenargues that it is inaccurate to label the PosseComitatus Act merely a “Reconstruction law”:

Democrats were still concerned about aRepublican president using the army in theSouth, but with troops already withdrawnfrom the South, it is unlikely that SouthernDemocrats would have been able to get sup-port for the bill had Northern members ofCongress not responded to the rhetoricexpressing opposition to a standing army.By resurrecting the old Republican fears of1856, raising the specter of the army beingused against laboring men, and examiningthe difference between suppressing domes-tic violence and the execution of the law,proponents were able to convince manymembers that the act merely declared atruth about the limits of the military inAmerican society.

Jensen, p. 36.

17. 18 U.S.C. § 1385. The act was later amendedto include the Air Force. It does not apply to theNavy, but another statute, 10 U.S.C. § 375, pre-cludes naval involvement in hands-on lawenforcement, providing, “The Secretary ofDefense shall prescribe such regulations as maybe necessary to ensure that any activity (includingthe provision of any equipment or facility or theassignment or detail of any personnel) under thischapter does not include or permit direct partici-pation by a member of the Army, Navy, Air Force,or Marine Corps in a search, seizure, arrest, orother similar activity unless participation in suchactivity by such member is otherwise authorized

by law.”

18. Congressional Record, 45th Cong., 1st sess., vol.6, pt. 1, p. 287 (November 8, 1877).

19. For more on the active-passive distinction, seeUnited States v. Red Feather, 392 F. Supp. 916 (S.D.1975); see also Bissonette v. Haig, 800 F.2d 812 (8thCir. 1986) (furnishing equipment and advice didnot violate Posse Comitatus Act, but roadblocksand armed patrols do, because they are regulato-ry, proscriptive, and compulsory). See also DianeCecilia Weber, “Warrior Cops: The OminousGrowth of Paramilitarism in American PoliceDepartments,” Cato Institute Briefing Paper no.50, August 26, 1999.

20. See 10 U.S.C.S. § 382 (“Emergency SituationsInvolving Chemical or Biological Weapons ofMass Destruction,” which allows the attorneygeneral to request the Pentagon’s help in such cir-cumstances and even grants the military arrestauthority if it is necessary for “immediate protec-tion of human life” and civilian law enforcementagencies cannot handle the situation); and 18U.S.C.S. § 831 (allowing same authority withrespect to nuclear threats).

21. See Anchorage v. King, 754 P.2d 283 (Ak. App.1988).

22. Quoted in Damian Whitworth, “Utah Goeson to War Footing for Winter Games,” Times(London), February 8, 2002.

23. Associated Press, “Two Generals GivenAuthority to Shoot Down Airliners,” HoustonChronicle, September 27, 2001, www.chron.com/cs/CDA/story.hts/special/terror/impact/1064439.

24. It is important, however, to recognize the lim-its of the military purpose exception, lest it bewarped into an exception that swallows the PosseComitatus Act rule. It is true that the ultimatepurpose of any post-9/11 military involvement indomestic law enforcement would be to deter andneutralize Al Qaeda operatives at war with theUnited States. But that does not allow the U.S.military to take over all aspects of local lawenforcement simply because by so doing soldiersmight catch some terrorists. To slide down thatslope is essentially to say that the act does notapply during wartime so long as saboteurs may beafoot. That is not a proviso that Congress everchose to write into the law, and it would be anunreasonable interpretation of the military pur-pose exception.

25. Instead of federalizing them, President Bushasked the state governors to call them up andpromised to have the federal government pay the

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bills. See George Cahlink, “Identity Crisis,”Government Executive, September 1, 2002, www.govexec.com/features/0902/0902s5.htm.

26. Quoted in ibid.

27. Henry Towsner, “News: Hoover ExpertDiscusses Airport Security,” Stanford Review 27, no.3 (November 15, 2001), http://stanfordreview.org/Archive/Volume_XXVII/Issue_3/News/news7.shtml.

28. Oliver Poole, “Thanksgiving Gestures Focuson Servicemen,” Daily Telegraph (London),November 24, 2001, p. 15.

29. Quoted in “Military Resists Domestic Role,”Government Executive, November 2001, www.govexec.com/dailyfed/1001/102201kp2.htm.

30. In a hearing before the Senate Armed ServicesCommittee, Sen. John Warner (R-VA) suggestedto Deputy Secretary of Defense Paul Wolfowitzthat the Posse Comitatus Act needed to be reex-amined since “we saw [on September 11] fromwithin the cities and towns and villages of thisgreat nation came the enemy.” Wolfowitz said heagreed “very strongly” that the doctrine needed tobe reexamined. Warner has also stated, “The rea-sons for the Posse Comitatus Act have long givenway to the changed lifestyle we face today here inAmerica.” Hearing of the Senate Armed ServicesCommittee. See also Mary Leonard, “FightingTerror Legislative Moves/Posse Comitatus Act,Officials Talk of Using Military at Home, DespiteDoubts,” Boston Globe, October 31, 2001. Later,Sen. Joseph Biden (D-DE) backed giving U.S. sol-diers the authority to arrest American civilians insome cases. See Joyce Howard Price, “Biden BacksLetting Soldiers Arrest Civilians,” WashingtonTimes, July 22, 2002.

31. Office of Homeland Security, National Strategyfor Homeland Security, July 2002, p. 48, www.whitehouse.gov/homeland/book/nat_strat_hls.pdf.

32. The benefits of the new Northern Commandare not entirely clear. On the one hand, unifyingunder one commander the military personnelavailable for the defense of North America likelywould make it possible to carry out legitimatedefensive operations more efficiently. But thebroad view the Pentagon takes of the executive’sauthority to use the military domestically (see 32C.F.R. 215.4 for Department of Defense viewsregarding “Employment of Military Resources inthe Event of Civil Disturbances,” which includes“the inherent legal right of the U.S. Government . .. to ensure the preservation of public order and thecarrying out of governmental operations within itsterritorial limits, by force if necessary”), coupledwith Gen. Eberhart’s readiness to consider weaken-

ing the Posse Comitatus Act, suggests that the newcommand should be closely monitored by consti-tutionalists and civil libertarians. For furtherdetail, see “The Creation of the United StatesNorthern Command: Potential Constitutional,Legal, and Policy Issues Raised by a UnifiedCommand for the Domestic United States,” AnInterim Report of the Constitution Project, February 13,2003, www.constitutionproject.org/ls/NorthcomInterim.DOC.

33. Quoted in Mary H. Cooper, “The New DefensePriorities,” Congressional Quarterly Weekly,September 13, 2002.

34. “INS Signs Memorandum of Agreement withDepartment of Defense, National Guard Troopsto Assist INS at Northern and Southern Borders,”U.S. Department of Justice, Immigration andNaturalization Service, press release, February 25,2002, www.immigra tion.gov/graphics/publicaf-fairs/newsrels/nguard.htm.

35. See Bissonette v. Haig, 800 F.2d 812 (8th Cir.1986) (furnishing equipment and advice did notviolate PCA, but roadblocks and armed patrolsdo, because they are regulatory, proscriptive, andcompulsory).

36. Michelle Malkin, Invasion: How America StillWelcomes Terrorists, Criminals, and Other ForeignMenaces to Our Shores (Washington: Regnery, 2002),p. 233. See also Bill O’Reilly, “Porous U.S. Borders,”FoxNews.com, February 7, 2003, www.foxnews.com/story/0,2993,77898,00.html.

37. Quoted in Douglas Holt, “DA QuestionsMilitary Account of Border Slaying; Drug UnitSpokeswoman Calls Remarks Surprising,” DallasMorning News, June 4, 1997, p. 1A.

38. Quoted in Pamela Hess, “Soldiers at USBorder Posts to Be Armed,” United PressInternational, March 26, 2002.

39. Oversight Investigation of the Death of EsequielHernandez, Jr., report by Chairman Lamar Smithto the Subcommittee on Immigration and Claimsof the House Committee on the Judiciary, 105thCong. (Washington: Government Printing Office,November 1998), pp. 4–5.

40. Quoted in Dane Schiller, “Was Justice Deniedon the Border?” San Antonio News Express, December13, 1998, p. A1.

41. Ibid.

42. Ibid.

43. See 8 U.S.C.S. § 1357 and 8 C.F.R. 287.1(2):“The term reasonable distance, as used in section

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287(a)(3) of the Act, means within 100 air milesfrom any external boundary of the United States.”See also Tamara Audi, “Rights at Risk atMichigan Checkpoints; Under New Laws, FederalAgents Have More Power in All Border States,”Detroit Free Press, December 9, 2002. Note also thatthe Supreme Court has held that FourthAmendment protections are substantially weakerat border checkpoints. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

44. In a May 20, 2003, report to Congress,DARPA changed the name of the proposed sys-tem to Terrorist Information Awareness, in anattempt to allay the privacy concerns of critics.

45. Associated Press, “Pentagon Spy Office toClose,” September 25, 2004, www.wired.com/news/print/0,1294,60588,00.html.

46. Noah Schactman, “Bride of TIA Lives,”Defense Tech.org, September 26, 2003, www.defensetech.org/archives/000595.htm/.

47. Ryan Singel, “Jet Blue Fesses Up Quietly,” WiredNews, September 19, 2003, www.wired.com/news/privacy/0,1848,60540,00.html; and Ryan Singeland Noah Schactman, “Army Admits UsingJetBlue Data,” Wired News, September 23, 2003,www.wired.com/news/privacy/0,1848,60540,00.htm.

48. DARPA’s TIA website is www.darpa.mil/iao/TIASystems.htm. The Electronic Privacy InformationCenter runs a site following, and critiquing, devel-opments in the TIA program at www.epic.org/privacy/profiling/tia/.

49. Quoted in Nathan Hodge, “DARPA OfficialStumps for ‘Total Information Awareness,’”Defense Week 23, no. 46 (November 18, 2002).

50. Quoted in Jensen, p. 175.

51. Ibid., p. 160.

52. TIPS stands for “Terrorism Information andPrevention System.” See Gene Healy, “VolunteerVoyeurs?” Cato Daily Commentary, July 29, 2002.

53. Jensen, pp. 176–77.

54. See generally, G. J. A. O’Toole, HonorableTreachery: A History of U.S. Intelligence, Espionage, andCovert Action from the American Revolution to the C.I.A.(New York: Atlantic Monthly Press, 1991), p. 278.

55. Quoted in Morton H. Halperin et al., TheLawless State: The Crimes of the U.S. IntelligenceAgencies (New York: Penguin Books, 1976), p. 165.

56. Laird v. Tatum, 408 U.S. 1, 28 (1972) (Douglas,

J., concurring).

57. www.darpa.mil/body/tia/tia_report_page.htm.

58. Heritage Foundation analysts Paul Rosenzweigand Michael Scardaville argue that, with appropriateprivacy protections, TIA can be a useful tool forfighting terrorism without threatening to develop asurveillance state. See Paul Rosenszweig andMichael Scardaville, “The Need to Protect CivilLiberties While Combating Terrorism: LegalPrinciples and the Total Information AwarenessProgram,” Heritage Foundation Legal Memoran-dum no. 6, February 5, 2003, www.heritage.org/Research/HomelandDefense/lm6.cfm. For instance,they argue that Congress should ensure that “theuse of TIA to query non-government databases belimited to the exigent circumstances that made itnecessary,” i.e., terrorist activity. They further urgethat the government should not get wider access toprivate databases as part of TIA than it already has.However, even under current law, government accessto private databases is both disturbingly easy andsweeping. As Sen. Ron Wyden (D-OR) put it inresponse to OIA’s assertion that the program wouldnot go beyond private data that could be obtainedunder current law, “That loophole is so big youcould drive five trucks through it.” Quoted inAudrey Hudson, “Report Stirs Fear of PrivacyViolations,” Washington Times, June 25, 2003.

59. Starting with the drug-war-inspired MilitaryCooperation with Law Enforcement Officials Actin 1981, Congress has passed a series of statutesthat order the Department of Defense to loan,sell, or give away military equipment to civilianpolice agencies for law enforcement purposes—regardless of how ill suited such equipment maybe to police work in a civilian environment. See 10U.S.C. § 2576 (“the Secretary of Defense maytransfer to Federal and State agencies property ofthe Department of Defense . . . [that is] suitablefor use by the agencies in law enforcement activi-ties, including counter-drug and counter-terror-ism activities”); and 10 U.S.C § 381 (“Procure-ment by State and local governments of lawenforcement equipment suitable for counter-drug activities through the Department ofDefense”). The Department of Defense maintainsa website to facilitate such transfers via the LawEnforcement Support Office of the DefenseLogistics Agency, www.dla.mil/j-3/leso/aboutle-so.htm.

60. Eric Lenkowitz and Dan Mangan, “$500MDeath Suit,” New York Post, May 23, 2003, www.nypost.com/news/regionalnews/57963.htm.

61. Quoted in Patrice O’Shaughnessy, “NYPD’sPrepping for War; Kelly Taps Military Pros toReshape Force vs. New Threats,” New York DailyNews, March 3, 2002, p. 27.

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62. Craig Horowitz, “The NYPD’s War on Terror,”New York Metro, February 3, 2003, www.newyorkmetro.com/nymetro/news/features/n_8286/.

63. Sean Gardiner and Rocco Parascandola, “9/11One Year Later,” Newsday, September 8, 2002.

64. See Timothy Lynch, “‘We Own the Night’:Amadou Diallo’s Deadly Encounter with NewYork City’s Street Crimes Unit,” Cato InstituteBriefing Paper no. 56, March 31, 2000.

65. Quoted in Chuck Murphy and Sidney P.Freedberg, “Fort Florida,” St. Petersburg Times,March 2, 2003, p. A1.

66. See Patrick Fleenor, “Cigarette Taxes, BlackMarkets, and Crime: Lessons from New York’s 50-Year Losing Battle,” Cato Institute Policy Analysisno. 468, February 6, 2003.

67. Pamela Hess, “Pentagon Agrees to Help DCSniper Hunt,” Washington Times, October 16, 2002.

68. Halbrook’s comments were delivered at a CatoInstitute Policy Forum, “The Posse Comitatus Act:Venerable Safeguard—Or Old Hat?” October 16,2002, www.cato.org/events/021016pf.html.

69. That is not to say that use of military resourceswas entirely legal in this case. Attorney and formerjudge advocate general Eugene Fidell argues thatthe Pentagon went beyond its authority underTitle 10 of the U.S. Code, which limits assistance inthe form of “aerial reconnaissance” to cases relatedto immigration, customs, drug trafficking, and ter-rorism. The first three were not at issue, and as forthe possible link to international terrorism, Fidellargues that “speculation is not a basis for breakingthe law.” Quoted in Elaine M. Grossman, “FormerJAG: Military Aid in D.C. Sniper Pursuit May HaveBroken Law,” Inside the Pentagon, November 14,2002, www.fas.org/sgp/news/2002/11/itp111402.html.

70. Quoted in Adam Clymer, “Big Brother Joinsthe Hunt for the Sniper,” New York Times, October20, 2002.

71. Elizabeth Mehren, “Bracing for Wave ofLitigation; Questions of Liability Abound afterNightclub Fire in Rhode Island That Killed 97People. Some See Civil Claims Exceeding $500Million,” Los Angeles Times, March 2, 2003, part 1,p. 17.

72. Vaishali Honawar, “National Guard Eyed toLend Voter Safety,” Washington Times, October 24,2002.

73. David Rudovsky, “Police Abuse: Can theViolence Be Contained?” Harvard Journal of Civil

Rights and Civil Liberties 27 (1992): 465, 481 n. 60.

74. See Human Rights Watch, Shielded from Justice:Police Brutality and Accountability in the United States(New York: Human Rights Watch, June 1998).

75. Oversight Investigation of the Death of EsequielHernandez, Jr., p. 14.

76. Ibid., p. 15.

77. Lee Hancock, “Government Seeks Delay onWaco Files; White House Weighs WithholdingDocuments,” Dallas Morning News, November 2,1999, p. 15A.

78. Quoted in “Davidians Lawyer Says DefenseDocuments Hold Key to Gunfire Issue,”Associated Press, February 18, 2000.

79. United States v. Reynolds, 345 U.S. 1, 10 (1952).

80. Black v. United States, 62 F.3d 1115, 1119 n. 5(8th Cir. 1995).

81. Reynolds at 8.

82. Ibid. at 10.

83. L. Stuart Ditzen, “Unearthed Military SecretBrings New Life to Old Case,” Philadelphia Inquirer,March 5, 2003.

84. Even now, 50 years later, the federal govern-ment is resisting paying compensation to the vic-tims’ families. See Timothy Lynch, “An InjusticeWrapped in a Pretense: In ‘48 Crash, the U.S. Hidbehind National Security,” Washington Post, June22, 2003, p. B3.

85. Jim Carlton, “Of Microbes and Mock Attacks:Years Ago, the Military Sprayed Germs on U.S.Cities,” Wall Street Journal, October 22, 2001.Edward A. Miller, the Army’s secretary forresearch and development, defended the programbefore the Senate Subcommittee on Health.According to Miller, “Release in and near cities, inreal-world circumstances was considered essentialto the program, because the effect of a built-uparea on a biological agent cloud was unknown.”Quoted in Lawrence L. Knutson, Associated Press,March 8, 1977.

86. Ibid.

87. Nevin v. United States, 696 F.2d 1229, 1231 (9thCir. 1983).

88. Quoted in Leonard A. Cole, “BiologicalWarfare Testing ‘Where People Live and Work,’”Testimony before the Legislation and NationalSecurity Subcommittee of the House Committee

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on Government Operations, September 28, 1994.

89. Quotations are from the “Operation North-woods” memo, which can be found at www.gwu.edu/~nsarchiv/news/20010430/northwoods.pdf in George Washington University’s NationalSecurity Archive, www.gwu.edu/~nsarchiv /: “TheArchive is simultaneously a research institute oninternational affairs, a library and archive of declas-sified U.S. documents obtained through theFreedom of Information Act, a public interest lawfirm defending and expanding public access to gov-ernment information through the FOIA, and anindexer and publisher of the documents in books,microfiche, and electronic formats.”

90. “Operation Northwoods” memo, p. 8.

91. Ibid., pp. 8–9.

92. William D. Hartung, “Shadow Warriors,”Washington Post Book World, May 27, 2001. For fur-ther information on Operation Northwoods, seeDavid Ruppe, “Friendly Fire Book: U.S. MilitaryDrafted Plans to Terrorize U.S. Cities to ProvokeWar with Cuba,” ABC News.com, November 7, 2001,http://abcnews.go.com/sections/us/DailyNews/jointchiefs_010501.html; and MichaelYoung, “Spy Watch behind Closed Doors at theNational Security Agency,” Reason, March 1, 2002.

93. National Security Decision Directive 221,Narcotics and National Security, April 8, 1986,www.fas.org/irp/offdocs/nsdd/nsdd-221.htm.

94. 18 U.S.C.S. 371–82.

95. 32 U.S.C.S. 112.

96. Stacie Orsagh-Aguillon and Elisa Schement,“Residents Speak Out on Project; Drug Crack-down’s Success Questioned,” San Antonio Express-News, June 13, 2001; Sgt. 1st Class Eric Wedeking,“Guard’s ‘War on Drugs’ Gets Nod fromCongress,” Army News Service, June 27, 2000,www.dtic.mil/armylink/news/Jun2000/a20000627counterdrug.html.

97. Quoted in New York Times News Service, “LawAgencies’ Tactics in Fight against MarijuanaCriticized. Some Say Zealous Officers Disrupt DailyLife,” Dallas Morning News, October 2, 1994, p. 8A.

98. Quoted in Paul Richter, “Military Is Easing ItsWar on Drugs,” Los Angeles Times, October 20,2002.

99. Quoted in ibid.

100. Quoted in John J. Stanton, “War on Drugs:U.S. Has No ‘Exit Strategy,’” National Defense, May1, 2001.

101. Quoted in ibid.

102. Tony Karon, “Peru Plane Tragedy Highlightsa Troubled War on Drugs,” Time, April 25, 2001,www.time.com/time/columnist/karon/article/0,9565,107559,00.html.

103. Ted Galen Carpenter, Bad Neighbor Policy:Washington’s Futile War on Drugs in Latin America(New York: Palgrave Macmillan, 2003), p. 197.

104. William K. Rashbaum, “After Effect:Security; Sniffing New York’s Air Ducts for Signsof Terror,” New York Times, April 22, 2003, p. A1.

105. Maj. Gen. Raymond F. Rees, USA ActingChief, National Guard Bureau, Prepared state-ment before the Subcommittee on Terrorism,Unconventional Threats and Capabilities of theHouse Armed Services Committee, Federal NewsService, March 13, 2003.

106. 10 U.S.C.S. § 372 also allows the provision of“material or expertise of the Department ofDefense appropriate for use in preparing for orresponding to an emergency involving chemicalor biological agents, including the following:

(A) Training facilities. (B) Sensors. (C) Protective clothing. (D) Antidotes.”

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