November 14, 2008 8:38AM

Should We Fear Sea‐​Smurfs?

On October 1, active duty US Army troops for the first time began an assignment under control of Northern Command, the Combatant Command created in 2002 for homeland defense. This deployment, and particularly the revelation that the troops were training for law enforcement missions like crowd control, caused an outbreak of consternation on liberal and libertarian blogs. There is great uncertainty about why the Pentagon assigned active duty troops for homeland security and what purpose they serve. The main fear is that the mission will contravene Posse Comitatus, the 19th century law that restricts the use of the military domestically. The ACLU even filed a Freedom of Information Act request to compel the release of plans for the troops’ use. This post is an effort both to answer some of these questions and to raise others.

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Here’s the bottom line: The trouble is less this particular assignment, which probably does not upend Posse Comitatus, than the gradual militarization of various governmental tasks in the United States. The creation of the Sea Smurfs is just the latest step in that process.

The troops are the 1st Brigade Combat Team of the 3rd Infantry division. In this year‐​long assignment they will be a CBRNE Consequence Management Response Force, or CCMRF (pronounced Sea‐​Smurf). CBRNE stands for chemical, biological, radiological, nuclear or high‐​yield explosive. The 1st BCT is the first of three CCMRF teams, who will comprise 15,000 soldiers in total. The other two will come from the Army National Guard. The Pentagon assigned these troops to Northern Command — probably over the objections of the Army, which likes to train its troops for war — because there was concern in Congress and elsewhere that Northcom could not ensure a proficient response to large scale disasters unless it controlled forces. For an example of this thinking, see this GAO report from April.

The assignment essentially amounts to extra training and equipment for responding to unconventional weapons attacks. The training will occur at Fort Stewart in Georgia where the troops are based. It does not change rotation schedules to Iraq of Afghanistan.

Why is this not an obvious violation of Posse Comitatus? Because it is shot full of holes already. It is a statute, and other statutes create exceptions. Today, the military can provide equipment and expertise to police, fly fighter aircraft to protect airspace, respond to storms and do a host of other things in the United States. What Posse Comitatus now prevents the military from doing is law enforcement: arrests, crowd‐​control, detention, search and seizure activities, and so on. That does not apply to the National Guard when they are under state command. And of course, there is an insurrection exception to Posse Comitatus. If the President declares an insurrection, troops can engage in law enforcement.

The 2006 Defense Authorization bill appeared to create new exceptions to Posse Comitatus. Those exceptions were undone, the status quo restored, via legislation passed by Senator Pat Leahy in early 2008. However, the administration’s theory of executive power says that they can use the troops as they see fit to deal with terrorism, whatever the law. There is probably a secret Office of Legal Counsel memo from 2001 that asserts that Posse Comitatus does not apply in the event of terrorist attacks. (That memo should be near the top of pyre when Obama takes office.)

Sea‐​smurfs can then do tasks short of law enforcement, including cleaning up after attacks. If terrorist attacks qualify as an insurrection, troops could perform law enforcement tasks in their aftermath. That might explain why the Sea‐​Smurfs received law enforcement training, but the Army denies that the training was related to domestic duties. It is good that the ACLU is trying to figure what exactly is intended.

Even if this mission is legal, however, it does not make it wise. Homeland defense activities like storms and terrorist attacks are the job of local and state authorities, and in extreme cases, the National Guard. Historically, these forces have been sufficient. Failures like Hurricane Katrina resulted more from poor decision making than the lack of capacity.

It’s true that a biological or nuclear attack is another can of worms. (One reason to avoid man‐​power intensive occupational wars is that they prevent the National Guard from performing homeland missions.) It is also true that regular Army troops have more capacity. But the standard cannot be perfect preparation for all contingencies, especially when they are extremely low‐​probability events.

The real trouble with the Sea‐​Smurfs is the logic that justifies Northern Command: that Americans face a host of dangers at home that only military forces can protect them against. These dangers are grossly exaggerated, but even if they aren’t, someone beyond bloggers ought to be asking why it is the job of the military, let alone the federal government, to interdict drugs and refugees, clean up after storms, protect computers and hunt bad actors at home. Doesn’t this sap the military’s readiness for war? And doesn’t this militarization of government have some detrimental effect on liberal values?