Commentary

If Troops Are Deployed at Home, We Need to Have Solid Oversight

It’s not hard to understand why President Barack Obama appalls supporters of traditional American liberties.

In the first six months of his presidency, he’s fought for radically expanded federal power while asserting a quasi-royal prerogative to control the auto industry and push for a government takeover of the health care sector, along with a cap-and-trade scheme that would regulate virtually every human activity that emits carbon dioxide.

But if you’re inclined to thank God for small favors, there’s this at least: Obama has yet to propose turning the U.S. military against American citizens. Last week, The New York Times revealed that the Bush administration seriously considered doing just that.

According to former administration officials, at a top-level meeting in 2002, then-vice president Dick Cheney and his allies lobbied hard for sending U.S. troops onto the streets of a Buffalo, N.Y., suburb to kick down doors and kill or capture a group of terrorist suspects, the so-called Lackawanna Six.

In that debate, Cheney relied on a legal memo by Justice Department official John Yoo that said neither the Fourth Amendment nor the Posse Comitatus Act, the federal statute that restricts the use of standing armies to keep the peace at home, could check the commander in chief’s power to use the military domestically.

There’s good reason to resist turning the machinery of war inward. From the violent suppression of strikers in the 19th century to the 1997 Marine Corps killing of an American high school student at the Mexican border, deviation from our tradition of civilian law enforcement has had grave consequences.

Even when it doesn’t lead to collateral damage, the use of standing armies at home can, as Thomas Jefferson put it, “overawe the public sentiment” and acclimate Americans to a militarized home front inconsistent with democratic life.

In Hurricane Katrina’s aftermath, Bush pushed through new exceptions to the Posse Comitatus Act that, until they were repealed in 2008, gave him the power to fight a militarized federal war on hurricanes, declaring himself supreme military commander in any state where he thought emergency conditions warranted it.

Obama seems less inclined than his predecessor to reach reflexively for the military option at home. But unless it’s actively resisted, “mission creep” can lead to domestic militarism all the same.

The 3rd Infantry Division’s 1st Brigade Combat Team was the first to fight their way into Baghdad, and last fall they became the first unit assigned to the Army’s domestic Northern Command to serve as “an on-call federal response force” for natural disasters or terrorist attacks.

Initial statements — later retracted by the Defense Department — suggested that they’d have a hands-on law enforcement role, Posse Comitatus notwithstanding.

And the Pentagon recently announced plans for military task forces to work with FEMA in the event of a swine-flu outbreak. It’s worth remembering that during 2005’s avian-flu scare, Bush officials explored the idea of military-enforced quarantines.

Perhaps, instead of relentlessly extending federal power with the economy and the environment, Congress could exercise its legitimate oversight functions, investigate whether these domestic military missions are needed and ensure that they remain firmly within the law. Or would that be too much to ask?

Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency.