NORTHCOM |
Marti Hiken, Originally printed in the National Lawyers Guild -- Guild Practicioner (Volume 59, Number 4, Fall 2002)
On October 1, 2002, one of the most important re-organizations of the U.S. military occurred. It was mentioned on local and national news stations, but its chilling importance and impact were not described in detail. In short, the reorganization constitutes an enormous increase in the power and influence of the military in our daily lives, all in the name of "homeland security." In the past, the duty of the U.S. military was nominally to ensure "national security," which was protection of the country from invasion by foreign powers (leaving aside its frequent role in asserting American domination around the world). Although ideas for other duties, notably drug interdiction, were floated, it has been with the transition from "national" to "homeland" that the power and role of the military and military organization has expanded exponentially.
The Posse Comitatus Act made the use of military troops for domestic law enforcement illegal. From the founding of the United States, the military has been subject to civilian authority which is why the President and not an officer, is the commander in chief of the armed forces. This historic separation of military forces from domestic politics and policy was affirmed by the Posse Comitatus Act and any possible breach has been viewed with great suspicion. For example, the role of the military in the government siege of the occupation of Wounded Knee by the American Indian Movement in 1971 was a key issue in many of the prosecutions that resulted. When one looks, for example, to Pinochet in Chile or Turkey's generals, the importance to democracy of keeping the military out of domestic politics is manifest. And with armed forces more powerful and overwhelming than any that has gone before, the specter of the U.S. military intervening in domestic politics is frightening indeed. Nevertheless, the reorganization of the military and its current activity raises precisely that specter.
The U.S. military has not had to operate on home soil since World War II, and thus the dynamics of interactions with Congress and the state governors and their homeland security functions have not been tested. The military has not recently wanted to become involved with domestic roles, and has strictly adhered to the spirit of the 1878 Posse Comitatus Act, which, along with related legislation, restricts U.S. military enforcement of U.S. law. At the state and local level, the new Command will have to create liaison arrangements, but will only act in support of local responding forces. Civilian authorities and fire and police chiefs at the scene of an incident will be controlling activities while the military provides specialized support.2
The reality contrasts markedly with the above pro-military statement. The most recent example is the sniper case in Maryland, Virginia, and the District of Columbia, when the U.S. Army contributed five RC-7 surveillance planes attempting to locate the snipers. Although there is a 1986 Defense Department regulation that states the military cannot be used in intelligence gathering and surveillance activities-i.e., in pursuit of individuals or in investigations-in the heat of the situation, the Department's own regulation was cast aside. The military argued in its defense that a local law enforcement official was on board. It is in such frightening situations as these that the U.S. military's role will be expanded. Two pending cases are of special interest. The first is that of Yaser Esam Hamdi, 21, a Louisiana- born man captured with Taliban forces and held at a Navy brig in Norfok, Virginia. He was captured in Afghanistan in November 2001, later transferred to Guantanamo Bay, and then transferred to Norfolk when he revealed his U.S. citizenship. The second individual, Abdullah al-Muhajir (aka Jose Padilla), a native of New York City, was seized after disembarking from an airplane in Chicago's O'Hare International Airport. He has been held incommunicado since May 8, 2002, in the Consolidated Naval Brig in Charleston, South Carolina.
Both have been labeled "enemy combatants." They have been transferred to military custody and subjected to interrogations without access to lawyers or judicial review. They are U.S. citizens being held in indefinite, incommunicado detentions, going beyond, but no less egregious than, the secret detention of non-citizens by immigration authorities and the continued detention of alleged combatants in Cuba. By the simple expedient of labeling these citizens enemy combatants, the Administration has stripped them of their most fundamental constitutional rights and subjected them to military authority. It would be difficult to conjure a scenario more directly flouting the restrictions placed on the military in the past century and a quarter. 3
On November 13, 2001, George W. Bush issued a military order authorizing the Secretary of Defense to constitute "military commissions" for the purposes of trying non-citizens when the Secretary determines there is reason to believe they either (1) are or were members of Al Qaeda, (2) engaged in, aided or abetted, or conspired to commit "acts of international terror," or (3) knowingly harbored Al Qaeda members or international terrorists.4 He excluded U.S. citizens from this. Al- Muhajir cannot be tried under military law since he is not a soldier. Many legal experts believe that his case seeks to set a precedent for the Executive Branch to de-citizen-ize U.S. citizens or, possibly, for military tribunals to be utilized for both citizens and non-citizens. 5 Neither prospect bodes well for democracy or the rule of law.
During World War II, the Pentagon divided the entire globe into military commands with a general or admiral in command of each region and designated forces. This practice of assigning U.S. military forces responsibility for specific regions worldwide is known as the Unified Command Plan (UCP). The ten unified commands are the Northern, Pacific, Central, European, Southern, Space, Special Operations, Transportation, Strategic and Joint Forces Commands. What follows is how these commands will operate after the reorganization.
The Northern Command (USNORTHCOM) has the mission of defending the United States and supporting the full range of military assistance to civil authorities. One may well wonder how this mission can be reconciled with the Posse Comitatus Act. For Secretary of Defense Donald Rumsfeld and his minions, there is no problem. In April 2002, he blithely noted that, if asked by a state's governor, the Northern Command was ready to intervene:
As is always the case, they all say, "We need some assistance in this regard." And the military then, in a supporting role, offers up what assistance we have. What's different is we have a focused capability and competence in the Northern Command that will be prepared, trained, exercised and equipped to do those kinds of things in a supporting role. Now, for example: We had a lot of troops in Salt Lake City. We did not take over the state. We did not take over the city. We were not in charge of the Olympics. What we did was, there were civil authorities in that region that asked for our assistance. That assistance was offered up, and it was done in coordination with them, in a supporting role.
Rumsfeld was then asked by a reporter:
There's obviously some sensitivity to Posse Comitatus when you put this all togetherŠDoesn't the president have the authority to suspend Posse Comitatus in certain cases, such as the discovery of a nuclear device. . . [or] if in fact there's a city that perhaps the federal government decides should be quarantined for some reason and the governor decides it shouldn't, would the president have the authority to suspend Posse Comitatus and in fact put U.S. armed forces into that region to quarantine an area?
Stephen Cambone, Principal Deputy Under Secretary of Defense for Policy, was ready:
That's too technical a questionŠbut the broad point I think is true, and that is that the president can, under his constitutional responsibilities, say this is a federal matter and I want this authority to be in charge of a particular matter. And he can-yes, there are circumstances under which that can happen." 6
The Space Command, which was formerly based at Colorado Springs, will merge with the Strategic Command based at Offutt Air Force Base near Omaha, Nebraska. The merged Space Command and the Strategic Command manage nuclear strike forces. NORAD (the combined U.S.- Canadian North American Aerospace Defense Command) remains at NORTHCOM, responsible for air defense, e.g. incoming missiles.
NORTHCOM has the primary mission of "homeland security" with a focus on coordinating with local, state, national and international agencies rather than commanding large combat forces as the other nine unified commands do. It will undertake the land, aerospace and sea defense of the continental United States, as well as command U.S. forces operating in support of civil authorities on "homeland security" tasks. It is located at Peterson Air Force Base, in eastern Colorado Springs, Colorado. Under NORTHCOM's jurisdiction are the continental U.S., Alaska, Canada and Mexico, plus two portions of the Caribbean, and the five hundred mile coastal area. NORTHCOM provides assistance to civil authorities when directed by the President or Secretary of Defense.
NORTHCOM most likely will include Army active and reserve home defense units in the U.S. as well as the bulk of the Army and Air Force's pool of U.S.-based combat units. Special arrangement will be made to align National Guard units under NORTHCOM, given that they usually report directly to their state governor. The only forces immediately reporting to the new command will be those of NORAD and three relatively small homeland defense units, one activated since the attacks of 9-11.
Although the Department of Homeland Security has been created with Tom Ridge as its director, a functioning military "homeland security" department is neatly tucked away inside NORTHCOM. The Joint Force Headquarters Homeland Security, established in January 2002, has 500 personnel assigned to NORTHCOM, but remains stationed in Norfolk, Virginia. It coordinates the land and maritime defense of the continental U.S. as well as military assistance to civil authorities. These forces include the Joint Task Force Civil Support, based at Fort Monroe, Virginia, which is to support civil authorities in the event of a weapons of mass destruction attack on the U.S. It also includes the Joint Task Forces 6, which is the Defense Department's southern land border counter-drug force, based at Fort Bliss, Texas.
NORTHCOM has command of a small number of specialized units called Combatant Command (COCOM). It gives combatant commanders the authority to organize, train and operate units. COCOM has been part of the Joint Forces Headquarters Homeland Security at Norfolk, Virginia. It also has direct coordinating authority with the U.S. Coast Guard and in the event of an attack, the U.S. Joint Forces Command will provide any additional forces NORTHCOM may need. NORTHCOM's budget is $90 million. As of October, 2002, it had approximately 200 personnel, which will increase to about 500 by October 2003.
In October 2002, Pentagon officials leaked the news that the reserve call-up for the impending escalation of the war against Iraq would equal that of the Gulf War in 1991, when about 265,000 members of the National Guard and reserves were called to active duty. This time around, the war will probably require fewer troops, but just as many reservists will be activated because of the purported need to protect military bases overseas and at home. National Guard units would most likely be used to protect sites in the United States viewed as potential targets. The difference now is "the need for greater force protection around the world and a drastically expanded role for the military in domestic security." This, in a nutshell, is the reason the American people are expected to consent to a greater role for the U.S. military in our domestic lives. Unfortunately, this creeping militarization has been accelerating over the last year. The National Guard's role in NORTHCOM is slowly being settled. Much controversy through the years has erupted over the management and purpose of the Guard. There is no doubt that it will play a central role in NORTHCOM and that it will be working closely with all command units. The National Guard has been operating in homeland security matters for some time. General William F. Kernan, U.S. Army Commander in Chief, said on October 24, 2001:
"Š [W]e organized and activated a 90-person Homeland Security Directorate from within the command, with a two-star Army general in charge, to oversee planning, organization and execution of our responsibilities towards homeland defense and assistance to civil authorities. Leveraging the insights and concepts gained from our joint training and experimentation work, we are employing emerging concepts to organize, train and operate this new organization as a highly functional command and control headquarters to conduct homeland security. In concert with ongoing operations and support, we initiated a comprehensive homeland security planning process working hand-in-hand with the office of the secretary of defense, the Joint Staff and my fellow combatant commanders. This planning effort additionally included extensive coordination and synchronization with the services, our components, and relevant government agencies, including the National Guard Bureau." 8
The Washington-based National Guard Bureau maintains a headquarters of a Homeland Security Directorate to define the Guard's role. According to the U.S. military, this is how the chain of command will work: In the event of a "terrorist attack," the governor of the state concerned, as commander-in-chief of that state's National Guard, will be responsible for deciding whether to call up the Guard for state service. If that state's Guard resources are overwhelmed, support can be requested from both neighboring states' civilian and National Guard "homeland security" resources through the Homeland Security Directorate, which will monitor the situation and keep NORTHCOM advised of the progress of disaster response. If the situation escalates to the point where it may become necessary to call the Guard into federal service, this communications process is supposed to bring NORTHCOM officials into the picture fully informed. At that point, Joint Task Force-Civil Support could deploy to the affected area to oversee the military contribution to the relief effort. The Task Force is commanded by a National Guard major-general. 9
Reservists, who traditionally act to support operations in major theater wars or smaller-scale contingencies, represent 47 percent of the nation's available military forces and 8.3 percent of the annual national defense budget. The reserve forces consist of the Army and Air National Guard as well as the Army, Navy, Marine Corps and Air Force Reserves and total over 1,200,000 men and women. Each state's or territory's National Guard is commanded by its governor. Most reserve units spend only a limited amount of time performing military duties and operate at the direction of federal authorities. Major deployments have been relatively rare and have occurred only when state authorities requested assistance or were unwilling to enforce federal law. For example, 2,000 men were deployed at the May Day demonstrations in 1971 in Washington, D.C., and in 1992, 10,000 guardsmen were called in during the Los Angeles rebellion. The Reserves were assigned domestic security missions in the 1990s. In January 1998, the ten Rapid Assessment and Initial Detection Teams, later renamed Weapons of Mass Destruction-Civil Support Teams (WMD-CST), were created. With each team comprised of 22 full-time Army and Air National Guard personnel, their mission is to deal with chemical, biological, radiological or nuclear attacks. The teams can conduct surveys, surveillance and sampling, advise the on-the-scene civilian authority in charge and provide communication and liaison with other Defense Department forces. This program was transferred to the National Guard Bureau in October, 1998. There has been a gradual move to expand the role of the reserves into "homeland security." They will be included in some fashion in NORTHCOM.
As of June 2002, there were about 80,000 Reserve Component troops mobilized (less than 7 percent of the total Reserve force). Under half of the forces called up are employed in "homeland security" and civil support tasks. Other Reserve forces support counter terrorism operations overseas and other operations worldwide. 10 The most recent figures show that 57,721 National Guard and Reserve Units have been called to duty as of October 30, 2002, along with a total of about 1.5 million active duty military personnel.
Since 9-11, a number of changes have taken place in the United States to further increase the military's role throughout our society. To understand some of the reasons for these changes, one need only follow the money. It should be emphasized that the spending discussed here goes not just to the military and its members but to the private contractors who supply the armed forces with equipment and supplies. Thus, the money spent represents profits for someone.
The World Policy Institute, which gathered these figures, states in its report:
The sheer scale of the increased military spending since 9-11 is impressive. The costs of the war on terror are mounting rapidly. In its 22 months in office, the Bush administration has sought more than $150 billion in new military spending. Spending on national defense is $355.5 billion for FY 2003, up from $329 billion when the Bush administration took office. 11
The spending for "homeland security" has increased from $19.5 billion in FY 2001 to $37.7 billion in FY 2003. In addition to the rapid increases in its yearly budget, the Pentagon has been the biggest beneficiary of the $68.9 billion in emergency and supplemental spending approved since 9- 11, receiving $30 billion via this route. According to the Office of Management and Budget, for "homeland defense" prior to 9-11, about $20 billion went to homeland security and combating terrorism, with $10.6 billion dedicated to homeland security out of the initial $40 billion in emergency funds appropriated by Congress. With the creation of the Department of Homeland Security, the 2003 budget request nearly doubles funding for a sustained strategy of "homeland security," focused on four key areas: bio-terrorism, emergency response, airport and border security, and improved intelligence, up from $19.5 billion to $37.7 billion, divided as follows:
Unified Command Plan (UCP) Area of Jurisdiction When Bush speaks of what or who commands Afghanistan, he speaks of General Tommy Franks, Commander of CENTCOM, which is based in new headquarters in Qatar or from MacDill Air Force Base in Tampa, Florida. Apparently, a number of European countries are also worried about the implications of this encroachment:
America's European allies are reacting with alarm at a plan being prepared in Washington to install a United States general to govern a newly liberated Iraq. This is in line with America's occupation of Japan after World War II. At a practical level, there are doubts over whether America has sufficient service personnel required. The total strength of the US armed forces is 1,414,000 with an army of 485,000, but of these only 15 percent or less are deployable on operations overseas. American planners calculate that a force of 75,000 US and allied troops will be needed for the occupation, which could last up to 10 years. 14
If the Bush Administration is willing to install a U.S. general head of a foreign state, is it so difficult to imagine martial law being declared in the United States and the military assuming authority? For example, if there were a terrorist attack in one of our cities and federal troops were activated, would Bush then have NORTHCOM General "Ed" Eberhart assume control of the city or the region? Military officials have taken the issue further. What if there is an attack at an American Embassy on foreign soil? If that foreign country so desires (or maybe even if it does not!), the administration could call in U.S. armed forces to "manage" the relief. With American forces in this situation, the commander of one of the Unified Command Plans would assume control of the area. Under what circumstance could he also assume control of that particular country?
The CIA's role in military affairs, as well as its military component, is increasing and accelerating. The CIA has para-military forces operating around the world. Some inside and outside government call them a "shadow military government." George T. Tenet is the CIA Director. He took the job in July of 1997. Although he is a Clinton appointee, he is said to work very well with Bush.
Few realize that these CIA troops operate exclusively under the jurisdiction of the President. They are, in fact, his private military force, composed of hardened ex-special forces veterans and mercenaries, to use and deploy as he alone wishes, with no congressional or judicial oversight. For the first time in history, forces operate outside the jurisdiction and overview of the Pentagon. This is particularly disquieting with an occupant of the White House who received fewer votes than did his opponent.
President Harry Truman first authorized covert actions in 1947 and the CIA has since engaged in any number of dirty tricks, covert "regime changes" (to coin a phrase) and political assassinations. To cite just a few examples, it ran the Phoenix Program in Vietnam, installed the Shah of Iran, assassinated Patrice Lumumba and toppled democracies in Chile and Guatemala.
The CIA gained valuable experience during the 1980's covert war in Afghanistan by supporting Mujaheddin rebels. The Counter-Terrorist Center, known as CT, is run by Cofer Black. He built up the CIA force during the earlier hunt for Osama Bin Laden. Black also developed a large paramilitary force that drew upon the Defense Department Special Operation Forces of the U.S. military. This included updating and adding Hellfire antitank missiles to the CIA's already existing Predator plane, which was developed as a miniature unmanned drone with cameras and other technological special devices.
In short, the CIA is eminently well qualified and equipped, by history and experience, to act as a covert military arm of government, even if its presumed mission is only intelligence gathering and analysis. This Special Activities Division (SAD)-made up of teams of a half-dozen men each- was first used in Afghanistan and now operates in Yemen and Djibouti. It played a central role in Afghanistan. Formerly labeled the Military Support Program, it had existed in the Agency for decades. Its name was changed two years ago but its function has remained the same.
Besides its paramilitary unit, the CIA's SAD has inserted into Afghanistan specialized CIA case officers from the Agency's Near East Division who know local languages and have extensive contacts in the area. SAD units handle intelligence for air strikes and are supposed to be in direct communication with the U.S. Central Command. 15
In the mid-1980s, the CIA set up a counter-terrorist center to coordinate intelligence and operations with the U.S. government. It had personnel assigned from the CIA, FBI and other U.S. intelligence agencies, including the Federal Aviation Agency. Three hundred people worked at the Center before 9-11 but it presently employs over 900. The CIA received $1.6 billion as part of the $40 billion post-attack special appropriation passed by Congress. It will be used to hire 700 new CIA employees, with the money targeted for counter-terrorism. It remains to be seen whether the CIA will be content to engage in covert operations and manipulation in other countries, or whether it will expand to include the United States.
The Central Intelligence Agency is expanding its domestic presence, placing agents with nearly all of the FBI's 56 terrorism task forces in U.S. cities," reports Dana Priest of the Washington Post. "In many cities, according to local FBI special agents, the CIA employees help plan daily operations and set priorities, as well as share information about suspected foreigners and groups. They do not, however, take part in operations or make arrests. . . The CIA's domestic field offices recruit foreigners living temporarily in the U.S. - for example, scientists at universities, diplomats at embassies and business executives - to work as agents for the CIA when they return home. They also conduct voluntary debriefings of Americans, mainly business executives and academics, who have recently returned from abroad. The division also is responsible for handling some defectors and for limited counterintelligence targetingŠIn Oregon, Portland Police Chief Mark Kroeger said there remains a deep distrust toward giving law enforcement or the CIA expanded powers. Although he approves of the CIA presence, he said he purposefully [sic] stays clear of the CIA officers. 16
Domestic militarization is part and parcel of the criminal justice system. For years, it has instilled and created a systemic fear of Americans towards each other. It wraps us all in an ever-present reality that the state has the power to kill, whether the person executed is guilty, insane, retarded or even innocent. With military backing, if deemed necessary, law enforcement becomes the answer to the fears. The "War on Drugs" has criminalized countless youth, and three strikes provisions have made that criminalization permanent, throwing them into prisons and pronouncing them useless to society.
Today, perhaps most noteworthy is that law enforcement and the military share all information; the wall between U.S. intelligence and law enforcement is gone. TIPs (Terrorism Information and Prevention System, introduced by Bush in January 2002) puts information into the hands of both. On December 6, 2000, the Department of Defense authorized five Joint Reserve Component Virtual Information Operations Organizations (JRVIOs), staffed by 182 reservists to support the detection and combating of cyber attacks. They are used extensively to support offensive information operations and intelligence gathering, as well as to protect the Department information systems. (TIPs should not be confused with VIPs-Citizen Corps' Volunteers in Police Service, which was introduced by Attorney General Ashcroft on May 30, 2002 and sought to turn the entire U.S. population into spies and snitches.)
There are, of course, other areas in which the military encroaches upon the American domestic scene, the most notable being defense and bio-defense contractors as well as civilian managers. The corporate contractors are enriched by the increased funding for the military after 9-1117 Beyond that, the military is hiring more and more individuals to fulfill certain functions. These are akin to mercenaries who have replaced regular military troops. Indeed, "[m]ercenaries, as they were once known, are thriving-only this time they are called private military contractors, and some are even subsidiaries of Fortune 500 companies" and NORTHCOM "cannot wait to fill these civilian billets." 18 The Defense Department has asked Congress for $41 million as part of the Defense Emergency Response Fund to pay for the new hires and to improve communications and training at NORTHCOM. This program brings civilians into the military:
- [These forces] "provide stand-ins for active soldiers in everything from logistical support to battlefield training and military advice at home and abroad.
- During the Persian Gulf War in 1991, one of every 50 people on the battlefield was an American civilian under contract; by the time of the peacekeeping effort in Bosnia in 1996, the figure was one in 10.
- Their legal obligation is solely to an employment contract, not to their country.
- Within the military, the use of contractors is Defense Department policy for filling the gaps as the number of troops falls.
- At the time of the Gulf War, there were 780,000 Army troops; today there are 480,000. Over the same period, overall military forces have fallen by 500,000.
- Corporations run the JROTC programs at many universities. This is a program to get retired military personnel back into uniforms. Retired personnel also run the recruitment offices."
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The importance of NORTHCOM is that it formalizes the role of the U.S. military in "homeland security" on American soil during peacetime and during war. It is supposed to work alongside state and federal "homeland security" agencies and Congress; however, the U.S. military has not operated on home soil since World War II. The 1878 Posse Comitatus Act and related legislation, which prohibits federal forces from performing law enforcement activities without the permission of Congress, have not been impediments to creating these home defense forces in the face of the Bush Administration's onslaught and congressional obsequiousness.
Although with NORTHCOM, the military is supposed to act only to support local responding forces, any situation could rapidly escalate. With or without martial law declared, the U.S. military would be in full immediate operation on the domestic scene. In addition, it places Canada, which is already part of the bi-nation command of NORAD, and Mexico, following anything classified as a terrorist attack, under the jurisdiction of the U.S. military, thus controlling the borders of all three countries. Although National Guard units are designed for federal missions overseas, the dual state and federal role is immediately blurred. Finally, the breadth and number of different military forces available for domestic purposes at any given time is limitless.
Even people like Phyllis Schlafly, on the far right of the political spectrum, are frightened by these development. She cites dangerous concepts contained in Bush's 90-page National Strategy for Homeland Security (NSHS):
General Ralph E. Eberhart, the head of Bush's newly established Northern Command for domestic security, said we should review the Posse Comitatus law 'if we think it ties our hands.' But tying the hands of the military over civilians is what Posse Comitatus is supposed to do. Americans must not allow the 9/11 terrorists to turn America into a police state. 20
The accelerating and increasing encroachment on the guaranteed rights of United States citizens continues, seemingly unimpeded. If this Administration has its way, the only "right" the American people will have is the right to "homeland security," enforced by the United States armed forces. But, one must ask, if the right to security as defined by the Administration trumps the rights to freedom of speech and press, to due process, to be represented by counsel, to reasonable bail, to all those rights so long held sacred under the Constitution, what security do we really have?
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