For over 125 years, the Posse Comitatus Act has limited the federal government’s ability to use armed soldiers to “execute the laws” on American soil. But a month ago, a top Pentagon official told the National Commission on Terrorist Attacks that, when it comes to the war on terror, the act does not apply.
Peter Verga, the Pentagon’s number two man on homeland security, told the commission that when Congress authorized war with Al Qaeda and Afghanistan seven days after the September 11 attacks, that authorization “was not limited to overseas use of the military forces.” If so, then there are no legal restraints on what the military can do domestically to fight the war on terror. If the president so chooses, armed soldiers on the home front can search, interrogate, arrest, and possibly shoot to kill.
No one in Congress at the time contemplated such a result. The debate over the September 2001 use‐of‐force resolution does not contain any reference to the Posse Comitatus Act, and there’s no indication that anyone who voted for it thought they were authorizing militarization of the home front.
Given the grave consequences of amending the Posse Comitatus Act, one would have expected at least some debate in the House and Senate. As Suzanne Spaulding, chair of the American Bar Association’s Standing Committee on Law and National Security, has put it: “A domestic military operation could look exactly like a law enforcement operation, and yet it wouldn’t be constrained by any of the safeguards that might be in place if it were a law enforcement activity.… In theory, under the laws of conflict, if you’re engaged in a military operation against an enemy combatant, it’s not practical or feasible to capture them,” instead, “the typical way the military approaches enemy combatants is to shoot to kill.”
Of course, few would shed tears over the prospect of Al Qaeda operatives gunned down on American soil. Instead, the real concern is the potential for collateral damage to civilian life and liberty at home. In 1997, a Marine Corps anti‐drug patrol operating under the so‐called drug war exceptions to the Posse Comitatus Act, shot and killed an 18‐year‐old American high school student who was herding goats near his family’s farm in Redford, Texas. Wider use of the military to fight the war on terror on the home front could lead to similar incidents.
Verga’s ambitious legal theory ought to raise some eyebrows, as should the growing indications that the Pentagon wants an enhanced role in domestic surveillance. First, there was Total Information Awareness, the Pentagon’s research into data‐mining technology that could be used to generate a dossier on every American citizen. Last fall, Congress cut off funding for TIA. But L.A. Times military analyst William M. Arkin reports that research continues on domestic data‐mining, and military intelligence agents have been assigned to local FBI field offices. The Pentagon’s interest in domestic surveillance continues.
We’ve been down that road before. During World War I, army intelligence agents had arrest powers and free reign throughout the country. They used that power to harass labor leaders, opponents of the war, and politically active minorities. They carried out some six million investigations during the war, and caught a grand total of one German spy.
In the 1960s, the military got back into the spy business. Senate hearings in 1971 revealed that military intelligence agents kept thousands of files on suspected radicals, including such dangerous characters as Adlai Stevenson, the ACLU and Americans for Democratic Action.
We should be loath to repeat that history. Proud as we are of our armed forces, Americans have fought to keep our republic free from domestic militarization. As Madison put it in Federalist 41: “The liberties of Rome proved the final victim to her military triumphs.… A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution.”
In other words, remain vigilant. Take care that the institution that helps defend our liberties can never become a threat to our liberties. That warning has never been more important.