Salon Radio: ACLU on the U.S. Army's domestic deployment

Why is a U.S. Army brigade being permanently assigned to the "Homeland," and should anyone care?

By Glenn Greenwald
Published October 27, 2008 3:12PM (EDT)

(updated below)

Last month, The Army Times reported that for "the first time an active [U.S. Army] unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities."  The brigade, the 1st Brigade Combat Team of the Army's 3rd Infantry Division, has spent most of the last four years fighting a war in Iraq, and will now be assigned on a permanent basis to engage in numerous domestic functions -- including, as the article put it, "to help with civil unrest and crowd control."

In response to the announced deployment, I wrote about the long-standing legal prohibitions against the use of the U.S. military for law enforcement purposes inside the U.S., and asked:  "Why is a U.S. Army brigade being assigned to the "Homeland?"  Several others asked similar questions, including Digby, who wrote about the dangers of relying on war-trained and combat-hardened U.S. Army soldiers for these sorts of domestic functions, and of the hazards of creating a precedent of this sort. 

As a result of questioning the purpose and legality of this deployment, a tidal wave of trite invective came pouring forth -- not merely from the Right, which always traffics in that sort of rhetoric whenever government or military authorities are questioned, but also from some ostensible "liberals," for whom the greatest sin, apparently, is questioning any policies involving the U.S. military:  Robert Farley, Jason Shigger, and Bob Bateman, who responded with riveting observations such as these:  "Glenn Greenwald has got his panties twisted up" -- "STFU, you ridiculous ninnies and stop manufacturing plotlines from the late 1960s" -- "paranoid" -- "panic" -- "handwringing terror" -- "fevered fear of the military" -- "Glenn 'Chicken Little' Greenwald" -- "Your anti-military paranoia is a wee bit misplaced" -- "Oh Noes!  The Army is Coming to Take our Democracy!!!!".

Last week, the ACLU -- disregarding those who, even after the last eight years, still insist upon the vesting of blind faith in our magnanimous leaders --  filed a FOIA request "demand[ing] information from the government about reports that an active military unit has been deployed inside the U.S. to help with 'civil unrest' and 'crowd control.'"  As long-time FBI agent and current ACLU national security policy counsel Mike German put it:

This is a radical departure from separation of civilian law enforcement and military authority, and could, quite possibly, represent a violation of law.  Our Founding Fathers understood the threat that a standing army could pose to American liberty. While future generations recognized the need for a strong military to defend against increasingly capable foreign threats, they also passed statutory protections to ensure that the Army could not be turned against the American people. The erosion of these protections should concern every American.

To explain its concerns, the ACLU cited this fact:  "Since the terrorist attacks of 9/11, the Department of Defense has dramatically expanded its role in domestic law enforcement and intelligence operations, including the National Security Agency's warrantless wiretapping programs, the Department of Homeland Security's use of military spy satellites, and the participation of military personnel in state and local intelligence fusion centers."

On Salon Radio today, I spoke with Jonathan Hafetz of the ACLU's National Security Project about the ACLU's FOIA request, the reasons it is demanding information about this deployment, and the concerns that it triggers.  The discussion is roughly 25 minutes long, and can be heard by clicking PLAY on the recorder below.  A transcript is posted here.


UPDATE:  Really sad, horrendous news:  Dean Barnett has died, at the age of 41, of cystic fibrosis.  I wrote about Dean here a couple of weeks ago, in the bottom section of the post.  Here's a 2006 article by Dean, bravely writing about his battle with that horrific disease.  And here's a very recent interview he gave about many things, including the times he invited me to appear with him when he guest-hosted The Hugh Hewitt Show.  Condolences to his family and friends.

To listen to this interview, click PLAY on the recorder below:


Glenn Greenwald: My guest today is Jonathan Hafetz, with the national security project of the ACLU. Jonathan, thanks for joining me again.

Jonathan Hafetz: It's great to be here.

GG: Last month, at the end of September, the Army Times published an article which reported that an army brigade, the 1st Brigade Combat Team of the 3rd Infantry Division -- which has spent most of its time over the last four years in Iraq patrolling and helping to keep order in Iraq -- would now become the first army brigade to have active duty service with the Northern Command, which was created in 2002 and assigned essentially to the homeland of the United States, to oversee disaster relief and respond to terrorist attacks and the like. Yesterday, the ACLU issued a release expressing serious concerns about this deployment decision, and requested a whole variety of information from the government, and said that depending on what it entails, there may be serious objections that the ACLU would have to this deployment. What are the ACLU's concerns, and why should people care about this deployment?

JH: This is a very concerning issue, which we don't have unfortunately a lot of information about. What we do know is that the military has deployed an active unit for the first time within the United States. And, this goes against the fundamental tradition of this country, that the civilian government, not the military, is what operates in the United States, that performs an array of functions, law enforcement and other functions, and this principle is embodied in a statute that goes back over a hundred years, called the Posse Comitatus Act, which, again, is intended to preserve the line in the United States between civilian and military authority.

GG: Well, I wrote about this article and some of the legal issues when the article came out, and it prompted a lot of angry responses, not only on the right, but some liberal commentators as well who tend to view any criticism of policies involving the military as an attack on the military itself. And the argument that they made, was that there's actually nothing at all unusual or notable about this deployment; that the armed forces have been deployed previously inside the United States, such as in the wake of Katrina, that there's nothing unusual about keeping a brigade assigned with  their primary duty to perform functions within the United States.

Is that actually true? Is there anything unique about a permanent deployment of a brigade or an assignment of a brigade to a command the supervises the United States as opposed to an ad hoc deployment in response to, say, some sort of disaster?

JH: Yeah, I think it's a big difference, Glenn, between the permanent and ad hoc deployment. There are instances where you have, for example, in Katrina, after Hurricane Katrina, where you have the military performing something substantial on an ad hoc basis. But this is a permanent deployment, which raises all kinds of different concerns about what it's doing. And the problem is we don't know. In other words, no real public debate; the government has not given any information.

In fact, some of the statements that we've seen are concerning what it refers to as doing things like crowd control, which raises all sorts of issues about what that actually means. And so, what we filed, it's not a lawsuit, it's a request for information under the Freedom of Information Act, so that we can get information disseminated to the American public, so people can actually figure out what is happening, why it's happening, and then at that point we could really determine whether there's a significant threat to basic civil liberties, and even to the Posse Comitatus Act. Right now, what we know is concerning and we're in the dark in terms of what this unit's actually going to be doing, and so the public needs to know.

GG: Right. Now, one of the other arguments that was made by those who claim there was nothing at all notable here, and nothing to be even interested in, let alone concerned about, was that it's customary for, say, the National Guard to engage in ongoing regular services inside the United States, and to perform functions inside the United States, and so if the National Guard does it, who cares if a regular U.S. Army brigade does it? What's the difference?

JH: Well, I mean, the difference is, this is under our Constitution, the U.S. Army is not supposed to be doing these things, performing civilian law enforcement functions. There's limits to what the National Guard can do. It also raises concerns about federal intrusion into state affairs as well. But this is a basic thing, that we have in terms of enforcing federal law, the civilian authority, the Department of Justice, the FBI, and related agencies are the ones who are supposed to do that, and not the U.S. Army.

There are also questions I think from, not necessarily from a legal perspective, but from a policy perspective, that should be debated, in terms of whether this is the best use of the military to be deploying forces inside the United States, when we do have these civilian agencies as well as the National Guard. But again, this is something that should be run openly and not behind closed doors.

GG: Well, one of the differences that strikes me between National Guard units and regular U.S. Army brigades, is that the National Guard is essentially trained to be a domestic force and to engage in these kind of emergency response functions, whereas the brigade that they're talking about assigning to the Northern Command has, as I indicated in the beginning, spent a huge amount of time over the last four years deployed in a war zone in Iraq. Are there concerns about taking a brigade that has been trained to fight a war in another country and assigning them functions domestically under the command of civilian federal officials, such as the president?

JH: There certainly are. I mean, it's hard to imagine what they're going to be doing or why the National Guard wouldn't be able to do it. As you say, and especially it's quite a dramatic transition or change to be performing what they were doing in Iraq, then come back to the United States. We've just never done this before, to have a permanent deployment of a military unit within the United States. And it just raises a series of questions about what it's actually going to be doing that can't be done by civilian authorities.

GG: Right. Now, one of the aspects that I found so interesting about those who objected to people who expressed concern over this deployment -- you know, for the last five decades in this country, there has been this manipulative attempt, largely on the part of the right, but really throughout the political spectrum, to try and equate those who object to policies involving the military, such as wars or occupations, to try and equate objections to those policies as being an attack on the military itself. That if you oppose a certain war, you must not support the troops, or you hate the military, or whatever. And I think that distinction has been widely recognized now, and that tactic has largely failed.

But what I found interesting was, among those who objected to these concerns, there was this claim that to be concerned about this deployment means that you don't trust the military, or you think that the military is inherently unlawful or tyrannical, or dictatorial, or liable to engage in anti-democratic abuses.

In your view, is the concern here about what kind of power this gives to civilian political officials and the potential for abuse that it vests in them, as opposed to, say, the belief that they military itself is not to be trusted? Put another way, can't you believe that the military is an honorable and trustworthy institution and still be highly concerned about these issues?

JH: Oh, absolutely. I'm really glad, Glenn, that you brought that up, because, this is something -- and I'll digress for a minute -- that's not limited to this particular issue about the deployment, but extends across the board in other areas, in particular since the 9/11 attacks. Absolutely.

It's not that the military per se will do -- it's what the civilian administration is planning to use the military for. And it's really more a reflection about that than anything else. And the military has been -- and I think this can be really seen in other areas around the detention issues, interrogation issues, places like Guantanamo, also in Iraq -- where you have the military trying to do their job, and being in a way misled by the civilian administration, really the top echelons of the government in DC, where they basically gave instructions not to follow the Geneva Conventions, encouraged the use of coercive interrogation tactics; and this type of thing is a clear example.

It's not a problem of the military, it's a problem with the civilian government, and in many cases ignored by a lot of top people in the military including the JAGs, or Judge Advocate General, the military lawyers, and short-circuited them. So, it's a long way of saying that, I agree, it's not a problem so much with the military, the military is bad is not what we believe, it's a question of, in particular here, what the civilian government is doing and how it may be inappropriately using the military and not adhering to the law and not doing things publicly.

GG: Now, I just want to ask you about the legal aspects. You referred earlier to the Posse Comitatus Act. There's also the Insurrection Act. And these are long-standing statutes that prohibit the use of the U.S. military inside the United States for law enforcement purposes, as opposed to, say, emergency response, and similar emergency or crisis functions like that. There have been some changes recently under the Bush administration; some expansions of federal power under those statutes, and some other changes as well that were justified in the wake of the 9/11 attacks. What are the legal issues that govern the deployment of permanent brigades inside the United States, and what kind of information would we need to know in order to know if the law is being violated?

JH: Well, you need to start with the Posse Comitatus Act, enacted in 1878 and it actually makes it a crime for the military to perform civilian functions within the country, unless there's an explicit act of Congress. Now, Congress has created a number of limited exceptions of things the military can do. One of these, for example, is the disaster relief that we talked about earlier. The question is what the military is going to be doing, and how it relates the Posse Comitatus Act.

There were no new law specifically authorizing the deployment of this unit in the country, and so the question is what they're going to be doing, and the devil is in the details. I think the fact that we don't know, we haven't been given much information, the fact that it's permanent, raises some serious concerns about what they might be doing. So I think we need to know the basis for the decision, what the legal authority is that the government plans to be relying on, and actually what the unit is going to be doing. And that's what we're requesting in our Freedom of Information Act filing.

GG: Now, can you walk through, as the last question, what the government's obligations are once you file the FOIA request, what the time frame is, and if they don't respond fully or satisfactorily, what your options are.

JH: Because of the importance of the issue, we've asked for expedited processing. We are expecting a prompt response, and if the government does not provide the information, or if they impermissibly redact the information, they don't give us what we need, we can file and submit an appeal, which is done administratively, and then there's the possibility of going to Federal Court, and demanding the information. Again, this is a right of the public to know if the law passed, the Freedom of Information Act passed by Congress to encourage and ensure open government, so the people have an understanding of what their government's doing and why. That this is an essential component of democracy.

GG: Right. You know, it's amazing. I don't think anyone's suggesting that this brigade of, I think, 5000 soldiers or so, in and of itself, poses some immense risk, although you can do a lot of harm and things you shouldn't be doing with even a single brigade of highly trained warriors, which is what these are. But I think the argument is there's genuine concerns over why we have these prohibitions for so long that are implicated, and you can always take a first step that might even in and of itself be innocuous, but the precedent that you create, the power that the government seizes with that innocuous first step, itself is what can be abused. And so the concerns are warranted and should be raised, not in the end, once the power has abused, but in the beginning once the power has been legitimized and institutionalized and seized.

And it's amazing to me, how even after eight years of severe abuse of these kinds of powers, you have people, not just on the right, but lots of establishment liberals as well, who scoff at the notion that there's anything to be concerned about when the federal government seizes brand new powers like this. And it just never ceases to surprise one at how willing people are to vest blind faith in the government no matter what it is they do.

JH: Yeah, that's right, and as they say, it's a slippery slope, and once you start going down the path of having the military deployed in the U.S. it gets harder to draw the limit. And again, it's not the military, it's the way that the military might be used by people to avoid certain protections, and certain civil liberties -- for example, crowd control is an example how this could be used -- how it could be wielded in ways that are dangerous, and that's why it's important to, before you take any step, so we know what the threat is, because it's hard to go back once the line has been eroded.

GG: Right, well, we'll certainly follow the ACLU's efforts at least in the first step. And I would hope that nobody objects to that, of obtaining information about what this deployment is for, and what the rationale behind it is. And I'm glad the ACLU is pursuing this, and I appreciate your taking the time to talk to me about it today.

JH: Oh, good to be here. Thanks Glenn.

GG: Thank, Jonathan.


[Transcript courtesy of Thames Valley Transcribe]

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