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October 22, 2002Bending Posse Comitatus Brings Bad ResultsPerhaps I should not have been surprised, but I was at least somewhat appalled that with the wall-to-wall coverage the issue received almost no attention. But the use of a military surveillance plane to try to capture the notorious Beltway murderer raises serious questions about the already-tattered separation between military activity and domestic civilian law enforcement. Most news reports, however, focused on the technical capabilities of the airplane, and the news readers could barely contain their excitement that this marvelous tool was being wielded on their behalf. To some extent, I can understand that attitude. I used to live in the area, and most of the locations are familiar to me. I have an idea just how concerned I would be if I were still living there, especially with school-age children. The news and media establishment is concentrated in the Imperial City, and many of the news people have kids in school, buy gas and go shopping at Home Depot. Indeed, this personal investment in the story has produced the occasional insight as to just how devastating the impact of the killer has been on the region. But journalists are supposed to be able to cultivate a certain distance between themselves and the stories they cover. I certainly hope the authorities capture the Beltway killer soon. I even hope that perhaps the DeHavilland DHC-7 military airborne reconnaissance plane is helpful in the pursuit. Even if it does help, however, troubling questions about the use of military equipment and personnel in domestic law enforcement activities deserve to be considered and answered. BREACHING THE LINE This occasion should not serve as a precedent to further breach the important line between the military and law enforcement, which serves to safeguard both American liberties and the ability of the military to perform its primary mission: fighting wars. To be sure, news reports say the help will be provided in a way that complies with the 1878 Posse Comitatus Act, which bans the military from domestic law enforcement. Officials say the data from the surveillance plane, said to be able to detect flashes of gunfire, will be furnished directly to law enforcement officials, and civilian law enforcement rather than the military will choose the targets to watch. Well. Perhaps it's reassuring that authorities are still aware of the Posse Comitatus Act. But pardon me if I'm concerned that the awareness leads to complying with the law in letter rather than in spirit – or even of using loopholes to move "beyond" the spirit of the law. The 1878 law does contain provisions for emergency use of military in certain circumstances, but it really meant to keep the functions separated in all but the most extreme of circumstances. I'm not sure this one qualifies. And if nobody complains, this small breach in a highly-publicized case could be viewed as normal rather than an exception. OMINOUS PRECEDENTS The danger of a larger breach in the wall that separates the military from civilian law enforcement is very real. A small – well, actually not so small – but significant breach already exists in a provision approved in the 1980s for the military to lend support in drug-law enforcement, making the War on Drugs something more than a mere metaphor. It was the allegation of drug law violations (later shown to be unfounded and probably at the time known to be unfounded) that permitted the military to assist in the initial BATF assault on the Branch Davidian compound near Waco. This breach has also been a contributing factor (although not the only one) in the ongoing militarization of civilian law enforcement. When you see photos of cops making some kind of a raid, like the recent raid on a medical marijuana cooperative in Santa Cruz, California, they're all dolled up in military-style garb, with scary-looking weapons, in a fashion that would have made real soldiers in previous wars (as recently as Vietnam and maybe even Desert Storm) feel underdressed. In July homeland security honcho Tom Ridge raised quite seriously the possibility of repealing the Posse Comitatus Act as one step in fighting the war on terrorism. Other officials and dignitaries have suggested revisions in the act to permit more open cooperation between civilian and military authorities. That would be a mistake. MORE THAN ABSTRACT To many this concern may seem abstract and theoretical. Who really worries about a military takeover in the United States? As John Eastman, a law professor at Chapman University who clerked for Justice Thomas and is affiliated with the conservative Claremont Institute, explained to me last week, however, "One reason we've been able to have a standing army that has not assumed power or seriously threatened our freedom is because we have maintained the civilian/military distinction. The prospect for Caesarism becomes much more serious when we breach those lines." Other conservatives are also concerned. In previous columns I have had occasion to disagree with or criticize Mackubin Thomas Owens, professor of strategy at the Naval War College. But there he was, in the August 1 edition of National Review Online explaining the importance of the Posse Comitatus law – as much for the military as for civilians and for American freedoms. As Owens wrote, "posse comitatus" is a Latin term meaning "the power of the county," classically understood to be the people at large as the constabulary. In medieval days the "shire-reeve" or sheriff, would call out the "posse comitatus," and every able-bodied man was expected to assist in the search for a criminal, or to help put down some disorder. That's the origin of the sheriff calling together posses in all those old westerns. The Posse Comitatus act was passed after the election of 1876, during which soldiers guarded some polling places and some suspected that they intimidated voters. Most officers welcomed the law. Having been used for constabulary purposes on the frontier, army people had come to understand that it detracted from the army's ability to be an effective, professional war-fighting force against foreign powers. DIFFERENT MISSIONS War fighting and law enforcement are different missions requiring different skills, tactics and attitudes. "Employing the U.S. military as a domestic police force is a recipe for disaster," Mackubin Owens wrote, that would weaken it as a fighting force. Of course, the trend of late has been to use the military as a constabulary in foreign countries the U.S. has decided to occupy – for the constructive purpose of "nation-building," of course. That use has also led to some deterioration of the war-fighting capacity of the American military, and to some confusion about mission among those who serve, although it might be impossible to know exactly how much damage has been done until the U.S. gets involved in a real ground-based conflict in which the mission is something other than the avoidance of U.S. casualties. Using
a surveillance plane to catch a killer is not a huge breach. But
it's a potentially dangerous move that should not serve as a precedent
for future
blurring of the line. CONTEMPLATING KOREAN NUKES On North Korea and nukes, I have just a few preliminary thoughts. The announcement by the Bush administration that the regime in North Korea has a nuclear weapons development program and may even have nuclear weapons is, to say the least, a complicating factor, especially when we're thinking about Iraq so heavily. Whether North Korea is a genuine threat to the United States, or even to its all too farflung and ill-defined "interests" is dubious, but it is unquestionably a troubling development. The U.S. suspicion, expressed by officials in interviews Thursday, that it was Pakistan that supplied critical equipment for North Korea's clandestine nuclear program, is a further complication. Since last Sept. 11 the United States has regarded Pakistan as a key ally in the purported war on terrorism. (Gen. Pervez Musharraf, Pakistan's president, has denied that Pakistan is supplying such equipment, though he was vague about whether it had in 1997-98, before he took power in a military coup, as U.S. intelligence experts allege.) What is to be done, if anything? The administration has so far taken a cautious and diplomatic approach, which is probably appropriate given the short time – two weeks – it has had the information and the need to consult with South Korea, China and Japan, which are more directly affected. But it faces choices that could make its policies toward various threats look contradictory. The United States will come under increasing pressure to formally revoke a 1994 "Agreed Framework" with North Korea negotiated by the Clinton administration, under which the U.S. agreed to supply fuel oil and "peaceful" nuclear knowledge in exchange for a promise to discontinue weapons development. Given the fact that North Korean officials, who were said to be belligerent in confirming U.S. intelligence information, have already declared the agreement nullified, the point may be moot. COMPARE AND CONTRAST Questions arise when this relatively soft stance is compared to the hard line the administration has taken toward Iraq. National security adviser Condoleezza Rice, while agreeing that "no one wants to see a nuclear-armed North Korea," argued on "Nightline" that diplomatic methods might suffice with North Korea, but "Saddam Hussein is in a category all by himself, as still the only leader to have actually used a weapon of mass destruction, against his neighbors." That doesn't quite resolve the matter. First, there are differences within the artificial category of "weapons of mass destruction." Nuclear weapons are much more deadly than chemical or biological weapons. And Saddam used poison gas back in the late 1980s, when he was fighting Iran and the United States tacitly backed him. He hasn't since, even in the 1991 Persian Gulf War. An argument could be made, then, that a nuclear-armed North Korea is actually more of a threat than Iraq, and if diplomatic methods are appropriate for North Korea, perhaps they would be for Iraq. Others argue that confirmation of nukes in North Korea makes it all the more important to take out Saddam before he gets nukes. Just to complicate matters, Joel Witt, a former State Dept. analyst, told the Toronto Globe and Mail that Pyongyang's nuclear bluster may be "an attention-getting gesture," designed more to bring on food aid in a country failing economically than to signal an imminent use of force. For starters, it's worthwhile to remind North Korea that one of the reasons it is an economic basket-case is that it is a centrally planned dictatorship that systematically diverts resources from civilian needs to military programs. Beyond that, it is probably prudent to wait until more is known before rushing to a policy – Iraq-style or otherwise. – Alan Bock
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