August 12, 2009

The Pentagon has approached Congress to grant the Secretary of Defense the authority to post almost 400,000 military personnel throughout the United States in times of emergency or a major disaster.

This request has already occasioned a dispute with the nation’s governors. And it raises the prospect of U.S. military personnel patrolling the streets of the United States, in conflict with the Posse Comitatus Act of 1878.

In June, the U.S. Northern Command distributed a "Congressional Fact Sheet" entitled "Legislative Proposal for Activation of Federal Reserve Forces for Disasters." That proposal would amend current law, thereby "authorizing the Secretary of Defense to order any unit or member of the Army Reserve, Air Force Reserve, Navy Reserve, and the Marine Corps Reserve, to active duty for a major disaster or emergency."

Taken together, these reserve units would amount to "more than 379,000 military personnel in thousands of communities across the United States," explained

Paul Stockton, Assistant Secretary of Defense for Homeland Defense and America’s Security Affairs, in a letter to the National Governors Association, dated July 20.

The governors were not happy about this proposal, since they want to maintain control of their own National Guard forces, as well as military personnel acting in a domestic capacity in their states.

"We are concerned that the legislative proposal you discuss in your letter would invite confusion on critical command and control issues," Governor James H. Douglas of Vermont and Governor Joe Manchin III of West Virginia, the president and vice president of the governors’ association, wrote in a letter back to Stockton on August 7. The governors asserted that they "must have tactical control over all . . . active duty and reserve military forces engaged in domestic operations within the governor’s state or territory."

According to Pentagon public affairs officer Lt. Col. Almarah K. Belk, Stockton has not responded formally to the governors but understands their concerns.

"There is a rub there," she said. "If the Secretary calls up the reserve personnel to provide support in a state and retains command and control of those forces, the governors are concerned about if I have command and control of the Guard, how do we ensure unity of effort and everyone is communicating and not running over each other."

Belk said Stockton is addressing this problem. "That is exactly what Dr. Stockton is working out right now with the governors and DHS and the National Guard," she said. "He’s bringing all the stakeholders together."

Belk said the legislative change is necessary in the aftermath of a "catastrophic natural disaster, not beyond that," and she referred to Katrina, among other events.

But NorthCom’s Congressional fact sheet refers not just to a "major disaster" but also to "emergencies." And it says, "Those terms are defined in section 5122 of title 42, U.S. Code."

That section gives the President the sole discretion to designate an event as an "emergency" or a "major disaster." Both are "in the determination of the President" alone.

That section also defines "major disaster" by citing plenty of specifics: "hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought," as well as "fire, flood, or explosion."

But the definition of "emergency" is vague: "Emergency means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States."

Currently, the President can call up the Reserves only in an emergency involving "a use or threatened use of a weapon of mass destruction" or "a terrorist attack or threatened terrorist attack in the United States that results, or could result, in significant loss of life or property," according to Title 10, Chapter 1209, Section 12304, of the U.S. Code. In fact, Section 12304 explicitly prohibits the President from calling up the Reserves for any other "natural or manmade disaster, accident, or catastrophe."

So the new proposed legislation would greatly expand the President’s power to call up the Reserves in a disaster or an emergency and would extend that power to the Secretary of Defense. (There are other circumstances, such as repelling invasions or rebellions or enforcing federal authority, where the President already has the authority to call up the Reserves.)

The ACLU is alarmed by the proposed legislation. Mike German, the ACLU’s national security policy counsel, expressed amazement "that the military would propose such a broad set of authorities and potentially undermine a 100-year-old prohibition against the military in domestic law enforcement with no public debate and seemingly little understanding of the threat to democracy."

At the moment, says Pentagon spokesperson Belk, the legislation does not have a sponsor in the House or the Senate.