Coup de Grace

Over a decade ago, an Air Force lieutenant colonel mused about a military coup in the United States. In a widely praised 1992 essay in the Army War College journal Parameters, the officer, Charles J. Dunlap Jr., argued, in the form of a letter written far into the future, that elected officials would gradually and deliberately cede authority to the military for an increasing number of previously civilian functions. Eventually the generals, encouraged by public disgust with squabbling politicians, accepted the myth of their own infallibility and took the reins of state directly. Dunlap's deliberately hysterical essay was brought up repeatedly in the defense debates of the 1990s: Conservatives used it to criticize the Clinton administration's inattention to civil-military relations and its proclivity for using the military for nation- building in the Balkans; liberals responded that their opponents were failing to adjust to post-cold war military missions. Lost in the shuffle was the fact that one of the sparks for Dunlap's warning was the Sturm und Drang over an insufficient civilian response to Hurricane Andrew.In the aftermath of Hurricane Katrina, President Bush has taken a position that looks like Dunlap on fastforward. In a speech delivered from Jackson Square in New Orleans last month, Bush called for a vastly expanded military role in disaster relief, including "reconsideration" of a century-old law banning the active-duty military from law-enforcement duties. That law, the Posse Comitatus Act (PCA) of 1878, is widely considered to be a cornerstone in the development of U.S. liberty. Enacted after Reconstruction, when much of the South was under military occupation (and federal troops monitored political rallies and stood guard at polling places), it sought to prevent any subsequent use of the military to perform traditional police duties. There's no evidence that the PCA had anything to do with the administration's bungled response to Hurricane Katrina. But Bush has cynically seized on the law to reverse the political damage wrought by his administration's incompetence. Civil libertarians are rightly concerned that eliminating the PCA would lead to abuses as the active-duty military begins supplementing civilian police--the slippery slope Dunlap warned about in 1992, when his protagonist wrote, "Faced with intractable national problems on one hand, and an energetic and capable military on the other, it can be all too seductive to start viewing the military as a cost-effective solution." And it's not just civil libertarians who are concerned. When I asked Bush's senior Pentagon official for homeland defense, Assistant Secretary Paul McHale, whether the PCA is a relic of an outmoded era, he immediately responded "absolutely not." And, last week, Admiral Timothy Keating, who heads U.S. Northern Command (northcom), told The New York Times that "I'm not at all convinced that we need to go back and revise Posse Comitatus." What's worse, Bush's push to eliminate the PCA risks obscuring the legitimate and beneficial ways in which the military's role could be expanded, within existing laws and under civilian control, to bolster disaster relief. And some in the Pentagon, where homeland security missions are viewed with skepticism, conflate the debate over junking the PCA with these less radical options in order to scale back military involvement in homeland security. As a result, Bush's push to eliminate the PCA may be a classic case of one bad idea drowning out several good ones. No one believes Bush is laying the foundations for a military coup. Yet, over the last few weeks, you could be forgiven for thinking he had hired Dunlap's evil twin as his new speechwriter. In Jackson Square, Bush declared that "a challenge on this scale requires greater federal authority and a broader role for the Armed Forces." Later, his spokesman, Scott McClellan, clarified that the PCA was something that "needs to be looked at." (Similar sentiments were expressed the previous week by General Peter Pace, the new chairman of the Joint Chiefs of Staff.) At the Energy Department last month, Bush--buoyed by support from John Warner, the Virginia Republican who chairs the Senate Armed Services Committee and who has been a PCA skeptic since September 11--added that he could envision "a scenario which would require federal assets to stabilize the situation, primarily DOD assets, and then hand back over to the Department of Homeland Security, for example.'' He further raised the stakes earlier this month by asking Congress to grant the active- duty military the power to quarantine patients in the event of a flu pandemic, something one public health expert called akin to "martial law in the United States." Again, McClellan elaborated that "the Department of Defense would assume the responsibility for the situation and come in with an overwhelming amount of resources and assets to help stabilize the situation." Such growth in domestic military responsibilities reads like a step toward Dunlap's Coup of 2012, but you don't have to buy his nightmare scenario to believe revoking the PCA would be a reckless move. As McHale puts it, "Posse Comitatus was enacted in 1878 for reasons that remain largely valid today"-- namely, the preservation of liberty that comes from restricting the active-duty military from civilian affairs and the need to ensure that the military concerns itself first and foremost with winning wars. "We separate military and law enforcement in the United States in order to protect both," says Tim Edgar, the counsel for national security at the American Civil Liberties Union. "That's because the military doesn't have the function of executing the law with respect to constitutional rights." What's more, the open-ended use of federal troops for apprehending neighborhood car thieves and burglars represents the end of local police responsibilities--an essential element of federalism. "Posse Comitatus may be old, but it's old in the same way the Bill of Rights is old," Edgar continues. "It protects our liberties by setting out clearly what functions of our government belong to what agencies." But it doesn't actually prevent the president from using the military in disaster relief. In fact, laws like the 1984 Stafford Act allow the president to use active-duty forces under fema authority after declaring a state of emergency. Additionally, non-active military units can engage in law- enforcement duties: National Guard forces under state command--as opposed to active-duty troops under federal jurisdiction--have been used throughout history to supplement overwhelmed police forces without detriment to civil liberties. The real obstacle to more effective disaster relief isn't the PCA; it's the composition of the military itself. Three years after its establishment, northcom--the regional military command responsible for the continental United States--still doesn't have much in the way of designated military assets, such as aircraft or ships, that can facilitate rapid deployment of troops or civilian aid workers in the event of a catastrophic disaster. (To his credit, Keating is working on a plan to create a rapid-response active-duty force to assist Guardsmen in a domestic crisis.) That's part of the reason why, after Hurricane Katrina, it took nearly a week--an eternity for evacuees in the Superdome and elsewhere, where people suffered needlessly--to deploy enough troops to New Orleans. Another structural problem is that the National Guard doesn't have sufficient capabilities for homeland security at a time when it is also expected to play a major role in fighting wars overseas. Neither of these woes is solved by scrapping the PCA. As Jim Carafano, a homeland security expert at the Heritage Foundation, wrote earlier this month, Katrina critics "miss the mark" in focusing on the PCA when the real challenge is "restructur[ing] the military so that it is better prepared to respond quickly." The aclu's Edgar agrees. "One thing I think we should look at is how we can strengthen the National Guard so that it serves its appropriate function, to safeguard domestic security," he says, adding that there's no trouble with the active- duty military "providing logistical and humanitarian aid [or] for using its soldiers and its planes to assist the local government." The active-duty military, however, doesn't necessarily want the job, and some--often for principled reasons--have warned against not just revising the PCA but also against expanding the military's role in homeland security. A Defense News op-ed last week warned that using Pentagon assets for hurricane relief was "setting a dangerous trend," last seen in the '90s, when "the military slowly started to outrank its civilian chain of command in influence, authority, and resources in many parts of the world." McHale rejects any suggestion--in particular, one I raised in a recent article ("Indefensible," September 19)--that the Defense Department is reluctant to take on homeland security missions, but he is circumspect about increased military involvement in disaster mitigation. "If we expect [Defense] to arrive on the scene in large numbers 24 hours after an event," says McHale, "we're going to have to significantly alter our force structure, training, and equipping of this department, and significantly reduce our expectations of response normally tasked to state and local governments under our federal system." Plans like Keating's yet-to-be-finalized strategy, however, would hardly go so far. Northcom envisages hundreds, not thousands, of specially trained and equipped active-duty forces able to deploy within 18 hours of a domestic emergency to augment Guard forces under state command. That would represent neither a demolition of war-fighting prowess nor the death of federalism. Most importantly, it might save lives when the next catastrophe hits. "Faster deployment of the logistical, communications, engineering, and rescue capabilities of the Armed Forces" would be a perfectly appropriate mission, says Dunlap, now a brigadier general with the Air Combat Command. "That's the kind of thing where you're not going to get into conflicts with civil liberties. " Opposition to scuttling the PCA hasn't just come from McHale and Keating. Their boss, Donald Rumsfeld, is decidedly unenthusiastic about the move. In a September 27 press conference, Rumsfeld pointedly called military-driven law enforcement "a very narrow piece of the task of dealing with a catastrophic difficulty or problem." But just as the defense secretary was distancing himself from Bush's PCA scheme, his Pentagon was asking Congress to change a mid-'70s privacy law so the Defense Intelligence Agency could conduct spying operations inside the United States--an authority forbidden to the CIA. Rumsfeld's desire to get involved in domestic intelligence collection suggests that he's not an anguished constitutionalist so much as simply disinterested in disaster relief. McHale says the "whole system" failed during Hurricane Katrina, from New Orleans to Washington, as the dead and displaced proved. But there's more than one way to fail in the event of a domestic disaster, as the Bush administration seems intent on proving by simultaneously talking about junking century-old civil liberties protections and expressing skepticism about limited military measures that might actually make a difference. "When I reread my essay," says Dunlap, "I find it very eerie in light of today's circumstances." Eerie might be an understatement.

By spencer ackerman