Thursday, April 27, 2006

Posse Comitatus—Military Intelligence on Domestic Demonstrations

One of the more underreported aspects of the “Global War on Terror” is the collection of military intelligence on domestic activists. From time to time, stories will show up discussing how certain groups have been monitored by the US military, but the issue is by and large rarely discussed. For example, in , we mentioned that the ACLU had filed a Freedom of Information Act with the Department of Defense, claiming that its TALON system (which stands for Threat and Local Observation Notices) contained information about non-violent activists. And the other day, the Palm Beach Post ran a story detailing how a Quaker-based peace activist group, The Truth Project, ended up in the TALON database because a “concerned citizen” forwarded an email to the FBI, which in turn forwarded it to the 902nd Military Intelligence Group—“the Defense Department’s biggest, most comprehensive counterespionage unit”—based in Fort Meade Maryland.[1]

This morning, the Wall Street Journal reports that the Pentagon is “step[ping] up intelligence efforts inside U.S. borders.”[2] The article details how, in March of 2005, a group of “about 200 mainly middle-aged peace marchers made their way through the streets of [Akron, Ohio], stopping outside a Marine Corps recruiting center and a [FBI] office to listen to speeches against the Iraq war.”[3] They were trailed by police in unmarked vehicles, who had been given information from “analysts at the Army’s 902nd Military Intelligence Group [who had been] downloading information from activist Web sites, intercepting emails and cross-referencing this with information in police databases.”[4] The Army concluded that the demonstrators were “assessed to present a potential force protection threat.”[5] No violence, of course, occurred, and the Army apologized, “admitting that some of the information in military databases shouldn’t have been there.”[6] It is a hollow apology, however, because “they called that a minor slip in a critical program to protect Americans.”[7] In other words, Blackstone’s exhortation that it is “Better that ten guilty persons escape than that one innocent suffer,”[8] a quote which has been used by the US Supreme Court,[9] the First and Second Circuit Courts of Appeals,[10] and District Courts across the country,[11] has been turned on its head. The guiding principle now seems to be “Better that 200 innocent persons suffer than one guilty escape.”

Having the military conduct surveillance on domestic activities, an activity usually conducted by domestic law enforcement entities, seems to violate the Posse Comitatus Act of 1878. Posse Comitatus is Latin for “power of the county,”[12] and states that no person may “willfully” use any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws of the United States, unless it is authorized by the Constitution or an Act of Congress. This applies to making arrests, conducting searches, or seizing evidence.[13] Furthermore, while the military is allowed to provide equipment and facilities to civilian law enforcement authorities,[14] such activities must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”[15]

These considerations may be irrelevant. According to the Wall Street Journal, “[a]fter 9/11, the Bush administration declared the continental U.S. a theater of military operations for the first time since the Civil War. … Now several parts of the vast Pentagon bureaucracy are building large databases of information from sources including local police, military personnel and the Internet. In doing so, the military is edging toward a sensitive area that has been off-limits to it since the 1970s:[16] domestic surveillance and law enforcement.”[17]

Admittedly, we were surprised to discover that President Bush had declared the continental US a theater of military operations, especially since it has never been used as a rationale for allowing the NSA to conduct domestic surveillance, or to hold citizens as enemy combatants. In other words, one would have expected the administration to brush aside any criticisms of its policies by referring to the declaration. But it hasn’t done so. And we can find no record of such a clear statement.

There are two possibilities that would explain the Wall Street Journal’s assertion. The first possibility is that it is referring to President Bush’s many National Emergency declarations (the first on [18] the second on September 12, 2002,[19] and the most recent on September 8, 2005,[20] which extended the declaration of National Emergency for one more year; another declaration will likely be made sometime this September. The declaration of September 14, 2001 stated that he would utilize 10 U.S.C. §§ 123, 123a, 527, 2201(c), 12006, and 12302, as well as 14 U.S.C. §§ 331, 359, and 367.
  • 10 U.S.C. § 123 addresses military personnel laws, such as laws relating to promotion, involuntary retirement, or separation of commissioned officers. It states that “in time of war, or of national emergency declared by Congress or the President,” such laws can be suspended by the President.
  • 10 U.S.C. § 123a addresses year-end end-strength limitations, which may be suspended by the President in the declaration of a national emergency.
  • 10 U.S.C. § 527 allows the President, after declaring a national emergency, to suspend 10 U.S.C. §§ 523, 525, and 526, which relate to strength numbers of officers in the military.
  • 10 U.S.C. § 2201(c) allows the President to determine that it is necessary to increase the number of members of the armed forces on active duty beyond the number for which funds are provided.
  • 10 U.S.C. § 12006 allows the President, in time of national emergency, to suspend 10 U.S.C. §§ 12003, 12004, or 12005, which relate to strength levels of officers.
  • 14 U.S.C. § 331 gives the Secretary of Homeland Security[21] the ability to order any regular Coast Guard officer on the retired list to return to active duty, in time of war or national emergency.
  • 14 U.S.C. § 359 gives the Coast Guard Commandant the authority to order any enlisted member on the retired list to return to active duty in time of war or national emergency.
  • And finally, 14 U.S.C. § 367 gives the Coast Guard the ability to detain any enlisted member beyond his term of enlistment.
None of these statutory provisions explicitly constitute a declaration that the United States is a theater of military operations, so it is possible that the Wall Street Journal may be overstating the declarations.

We suppose the second possibility is that the declaration has been made in secret, and that the reason the administration has not made more use of the power inherent in such a declaration is that it is holding that power as the ultimate trump card. It is not a desirable scenario.


[1] Tony Doris, , Palm Beach Post, Apr. 23, 2006.
[2] Robert Block et al., , A1, Wall St. J., Apr. 27, 2006 (subscription only).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] 4 *358, (c.27)
[9] See Coffin v. United States, 156 U.S. 432, 456 (1895)
[10] See United States v. Clotida, 892 F.2d 1098, 1106 (1st Cir. 1989); United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989).
[11] See, e.g., United States v. Oxx, 56 F. Supp. 2d 1214, 1221 (D. Utah 1999).
[12] Black’s Law Dictionary 1200 (8th ed. 2005).
[13] Id. at 1201.
[14] .
[15] .
[16] Some might argue, as seen above, that it has been off-limits since the 1870s.
[17] Block, supra note 2.
[18] Procl. No. 7463, 66 Fed. Reg. 48,199 (Sep. 14, 2001).
[19] 67 Fed. Reg. 58,317 (Sep. 12, 2002).
[20] 70 Fed. Reg. 54,229 (Sep. 8, 2005).
[21] See 14 U.S.C. § 5.

posted by McNabb Associates, P.C. @ 1:39 PM