Sept. 11: Will the Military Take Over?

by Andrea Prichett

Sept. 11: Will the Military Take Over?

Copwatch Report

Winter 2001/2002

Here at COPWATCH there has been much discussion about how to move forward as a "Know Your Rights" organization when it seems that so many of our basic rights are in jeopardy. We share a belief that freedom and access to information make a nation strong. We also believe in the fundamental rightness of the vote and civilian rule, and so we view with grave concern the recent moves to militarize our system of governance and to deny our democratic tradition.

Since the tragedy of September 11, 2001 we have seen the federal government extend its power through the federalization of airports, the racially based detention of over 1100 foreign born people, the deep erosion of our civil liberties, and the chilling refrain of "United We Stand" as a pretext for investigating and isolating those who disagree with the war in Afghanistan. With the establishment of the Office of Homeland Security, it seems that these extraordinary measures are only the extension of a radical transformation of the mechanisms of civilian authority that has been taking place for some time.

The Posse Comitatus Act

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. (Title 18 US Code, Part 1, Chapter 67, 1385)

Posse comitatus literally describes a "body of men over the age of 15 in a county whom the sheriff may summon to repress a riot or for other purposes". The idea is that in times of unrest or civil disorder, the sheriff is empowered to enlist the help of citizens in maintaining order. The idea here was that it is better to use untrained civilians to maintain domestic order than to enlist the help of the military and risk imposing military rule upon the nation. The Posse Comitatus Act (PCA) was intended to preserve that historic division between civilian and military roles and to maintain civilian superiority over the military. Congress adopted it in 1878 after an incident in which President Ulysses S. Grant sent troops as a "posse comitatus" for federal marshals to use at the polls during the election of 1876. This misuse of the military in an election -- the most central event to a democracy -- led Congress to enact the PCA.

The PCA explicitly recognizes constitutional and legislative exceptions to its application. However, the number of these exceptions has increased significantly in the last few decades, most notably, with the use of marines to patrol our southern border and in various drug interdiction efforts.

Gradual Militarization

Despite the intention to maintain civilian control of the military, the Posse Comitatus Act was not enough to keep the military establishment subordinate to the people. The National Security Council was created in 1947 (a year before the CIA was established) to coordinate national defense, diplomacy, and intelligence at the highest levels for the president. Part of the NSC's function has been to provide for civil security. It has significant power and is not subject to Congressional oversight.

Through the use of Executive Orders, recent presidents have blurred the distinction between civilian and military authority. Highly detailed plans have been developed to coordinate the many government agencies that would respond in case of a natural or man-made disaster. These plans have been developed with the help of military minds in the Department of Defense, Joint Chiefs of Staff, and CIA among others. Disaster response planning and the efficient use of labor and resources is certainly an important governmental function. However, more and more, the "disasters" for which the government is planning include any kind of civil dissent, and the focus has mainly been on containing civil unrest and containing or eliminating political opposition.

Executive Orders

Executive Orders (EOs) are legally binding orders given by a President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. (The President's source of authority to issue Executive Orders can be found in Article II, Section 1 of the Constitution which grants to the President the "Executive Power." Section 3 of Article II further directs the President to "take care that the laws be faithfully executed.")

On October 30, 1969, President Nixon issued Executive Order (EO) 11490 "Assigning Emergency Preparedness Functions To Federal Departments and Agencies" which consolidated 21 operative Executive Orders and two Defense Mobilization Orders on a variety of emergency preparedness matters. In 1976, Gerald Ford adopted EO 11921 which ordered the Federal Emergency Preparedness Agency (FEPA) to develop plans to establish government control of the mechanisms of production and distribution of energy sources, wages and salaries, credit, and the flow of money in American institutions in any "national emergency." This Order also stipulated that, when the President declares a state of emergency, Congress could not review the matter for a period of six months. He also signed Executive Order 12656, which appointed the National Security Council (NSC) as the principal body that should consider emergency powers. This same Executive Order allows for increased surveillance of citizens, the ability to restrict their movement and the right to isolate large groups of civilians.

While this may have seemed like a huge consolidation of power in the executive branch of government, President Carter took things one step further with EO 12148, establishing the Federal Emergency Management Agency (FEMA) to replace FEPA. This directive mandated an interface between the Department of Defense and FEMA for civil defense planning.

When President Reagan came to power, the focus of civil defense planning took a dramatic turn away from disaster relief to implementing new ways to expand police powers in times of nuclear war, domestic unrest, or civil disorder. In fact, while many of us associate FEMA with getting financial help during natural disasters, only about 6% of its budget has been spent to help victims and survivors.

The power of FEMA continued to grow under Reagan and Bush. Reagan created yet another senior interdepartmental board called the Emergency Mobilization Preparedness Board (EMPB). Its members were from the Department of Defense, the Joint Chiefs of Staff, and ten other agencies. With the help of Col. Oliver North (known for his clandestine guns-for-drugs operations in Central America and his ability to mislead the Congress), plans were created that provided for a complete military takeover of all resources within the country. One major goal of this plan was to suspend the Constitution in the event of a national crisis such as nuclear war, violent and widespread internal dissent, or national opposition to a U.S. invasion abroad. The picture that emerges is that the primary consideration in modern civil defense planning is not the potential for disasters, but how to contain a restive population.

The New Power Structure Up until September 11th, the law established that, in the event of a national emergency, the Constitution could be suspended and the reigns of government could fall into the hands of the President, the FBI, and FEMA.

The FBI would provide "crisis management" while FEMA would be the "consequence" manager. Now, enter the Office of Homeland Security, with former Governor Tom Ridge (the man who signed Mumia Abu-Jamal's death warrant) as its head.

The Office was created to coordinate activities of federal agencies at the highest level. Its power is meant to be as great as that of the NSC. It is not subject to congressional oversight. It will include the attorney general, the secretaries of defense, treasury, health and human services, and agriculture, as well as the FBI and FEMA. It will have a staff of over 100 employees. Its mission will be to coordinate the 46 agencies and departments that currently are involved in emergency planning. Counter terrorism, intelligence gathering, prevention, and defense are also under Tom Ridge's command.

In addition, Attorney General John Ashcroft announced on September 17th the creation of "Antiterrorism Task Forces" in each of the U.S. Attorney's districts across America. According to Ashcroft:

The task forces will serve as a conduit for information about suspected terrorists between federal and local agencies, so that local police forces can be part and parcel of an effort to prevent terrorist attacks by having access to the information available to federal agencies. Intelligence about terrorist networks obtained by federal agencies will be disseminated through these task forces to the local police officials who can help monitor any terrorist network in their locality. Also, intelligence developed by local police will be conveyed through this collaboration to the federal agencies....The anti-terrorism task force in each district will serve as a coordinating body for implementing the operational plan for the prevention of terrorism. Once substantial credible information is received indicating that individuals or groups in a particular district may be terrorists or abetting terrorism or aiding terrorism, the members of the antiterrorism task force in conjunction with the Criminal Division of the Department of Justice will determine and implement the most effective strategy for incapacitating any terrorist activity on their part.

With the vagueness of the new definition of "terrorist," it is easy to imagine that the Office of Homeland Security could well target those who dissent from the government's plans for war. After all, the new definition of domestic terrorist activity has been expanded to include "acts dangerous to human life that are a violation of criminal laws of the U.S. or any state; that appear to be intended to intimidate or coerce a civilian population and to influence the policy of a government by intimidation or coercion." (section 803 U.S.A. Act) This would most certainly include Ploughshares activists, Greenpeace, and protesters at the WTO. The Attorney General will be empowered to designate groups as being "terrorist" and there is no process for challenging that designation. Association with such groups can also become grounds for investigation.

At every step of these plans, we see the elimination of democratic processes. Remember that the Congress is already being circumvented, our Supreme Court "selected" our president, and now the president rules by executive order and the power of the armed forces. On the local, state and national levels, civilian law enforcement agencies have been absorbed into military service. The difference between civilian authority and military rule is critical for advocates of democracy to understand.

Civilian law enforcement requires the recognition of individual rights and seeks to protect those rights, even if the person being protected is thought to be a criminal. Police officers are trained to use lesser forms of force when possible and to draw their weapons only when they are prepared to fire. On the other hand, the military exists to carry out the external mission of defending the nation. Thus, in an encounter with a person identified with the enemy, soldiers need not be cognizant of individual rights, and the use of deadly force is authorized without any aggressive or bad act by that person. How tragic for all of us when "we the people" begin to be perceived as the enemy.

Various powerbrokers within the U.S. government are working to dismantle our democracy in the name of the "War on Terrorism." Preventing widespread opposition to the bombing of innocent civilians in Afghanistan is the real reason that so much legislation, money and attention are being concentrated domestically. The evidence is everywhere. In the process of quashing dissent, our leaders have transformed our form of government from a civilian to a military one that precludes any real or informed discussion of the issues. The recent crisis has, tragically, been a great opportunity for those in power who fear our democratic traditions, which have been a source of strength and inspiration for people throughout America's troubled history. Whether or not the "Noble Experiment" will be deemed a failure by future generations depends on the will of the people to fight for freedom, equality, and rule by consent of the governed.