Soldiers on the Home Front: The Domestic Role of the American Military 9780674495395

Citation preview

Soldiers on the Home Front

WILLIAM C. BANKS | STEPHEN DYCUS

Soldiers on the Home Front The Domestic Role of the American Military

Cambridge, Massachusetts, and London, England 2016

Copyright © 2016 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America First printing Library of Congress Cataloging-in-Publication Data Banks, William C. Soldiers on the home front : the domestic role of the American military / William C. Banks and Stephen Dycus. pages cm Includes bibliographical references and index. ISBN 978-0-674-73674-0 (alkaline paper) 1. United States. Army—Civil functions. 2. United States. Army—Civic action. 3. Civil-military relations—United States. 4. Civil-military relations—Law and legislation—United States. 5. Soldiers—United States. 6. National security—United States. 7. Internal security—United States. 8. Civil defense—United States. 9. Terrorism—United States—Prevention. I. Dycus, Stephen. II. Title. UA25.B19 2015 332'.50973—dc23 2015014167

To America’s men and women in uniform, who risk all to keep us safe and free

Contents

1 The Military at Home in America 2 The Origins

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3 Soldiers as Peacekeepers, Soldiers as Cops 4 Soldiers as Jailors

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5 Soldiers as Judges

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6 Soldiers as Investigators 7 Soldiers in Charge

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8 Soldiers at Home in the Age of Terrorism

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9 The Military in Twenty-First-Century America:

Leaning Forward Notes

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Acknowledgments Index

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Soldiers on the Home Front

CHAPTER ONE

The Military at Home in America

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hink of the U.S. military as part of a large cast of characters in a dramatic production of domestic life in America. Troops have always played a key role. They have always stood ready to use their special training, equipment, and discipline to help out in emergencies when no else could. They have served bravely in the midst of hurricanes and forest fi res to save lives and property. They have enforced the law when civilian officials were unwilling to do so. And they have helped restore order when civil unrest overwhelmed local authorities. Most of the time, however, America’s military forces have remained behind the curtain, out of sight, waiting in the wings for a cue from their civilian director to step out onto the public stage and perform. Everyone in the theater knows their lines and recognizes their distinctive costumes, but no one else can play their part. When they have stepped into the spotlight they have almost always received a standing ovation. Here is a recent example: When Hurricane Katrina struck New Orleans and surrounding areas in 2005, political posturing and ineptness by federal and state officials, together with a Keystone Cops–like response from local leaders in the first days before and after landfall, made a bad situation worse. Only when combined National Guard forces from several states, the Coast Guard, and the regular army were finally deployed did help come to most

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of the storm victims. But for the many heroic rescues by these men and women in uniform, along with lots of heavy lifting to provide medical care, food, and water, the casualties from Katrina would have been much worse. Troops also helped restore order in the stricken city. Otherwise scathing after- action reports on Katrina gave high marks to military personnel.

Occasionally, military forces have gone off script to become involved in civilian life when their help was not needed. More often than not they have been goaded to do so by civilian political leaders. Then they were greeted by silence from the audience, sometimes even catcalls. One notable instance grew out of the arrest of a suspected terrorist: On an otherwise unremarkable day in May 2002, a flight from Zürich landed at Chicago’s O’Hare Airport and taxied to the gate. FBI agents were waiting to take one of the passengers, José Padilla, into custody. They had a warrant that described him as a material witness in the ongoing investigation of the 9/11 terrorist attacks on the World Trade Center and the Pentagon. Padilla was transported to New York City and confined in the Metropolitan Correctional Center there, while he waited to be called to testify before a grand jury. As a former Chicago street gang member who had served time for murder and other offenses, Padilla was not a particularly sympathetic character. According to information reportedly obtained by CIA agents from terrorist suspect Abu Zubaydah, Padilla had traveled to Afghanistan for training with Al Qaeda, and he was returning home with plans to carry out a terrorist attack using a radioactive “dirty bomb” in the United States. Padilla was assigned a public defender, who quickly moved to dismiss the material witness warrant. Two days before a scheduled hearing on the motion, however, President George W. Bush signed an order naming Padilla an “enemy combatant” and directing his delivery to military offi cials. He was then transferred to a Navy brig in Charleston, South Carolina, where he was held for almost four years without charges and, for much of that time, without access to a lawyer.

Whether or not Padilla was guilty of the charges eventually brought against him (he was later convicted of different terrorism-related offenses by a civilian court), public safety clearly did not require his imprisonment by the military. The civilian facilities in New York held him securely. In the future, America’s military might be called on to help out in ways wholly unexpected—in effect to perform improv. Consider this frightening, yet altogether plausible scenario:

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While on a business trip to Macau, an American shakes hands with a hotel restaurant chef who is in the midst of preparing a pork dish for dinner. Unbeknown to either of them, the pig had recently ingested a bit of virus-infected banana dropped into its feeding area by an infected bat. When the American arrives home in Minneapolis a few days later, she is very sick with flu-like symptoms, and before she dies a few hours later she infects her husband and son. Other travelers on her trip home were also exposed. Within a few days the virus has spread around the world, and more than one quarter of those infected have died. As the Centers for Disease Control (CDC) works around the clock to identify the virus and develop an antidote, the outbreak continues to spread. Casualties mount and major metropolitan areas struggle to maintain essential infrastructure and services. State governors deploy National Guard units to transport those who show symptoms of the virus to medical facilities, and to patrol urban streets and neighborhoods to prevent looting and help control spreading panic. Food and other basic human needs are in short supply, and local law enforcement is collapsing in many cities, as overtaxed National Guard personnel are overwhelmed by the scope of the contagion. The president decides to call out regular army units to help. The combined military force is able to provide some relief in the cities with the delivery of emergency food, water, and medical supplies. They also stop some of the looting and violence (some directed at citizens who have stockpiled food and water). As days and weeks pass without an antidote to the virus, however, confusion grows about lines of authority among state and federal officials, as well as fatigue, leading to violent confrontations between military personnel and civilians, and open hostility between National Guard units and regular army personnel deployed in the same areas. Governors, mayors, and the president plead for patience. Meanwhile, army commanders in some of our largest cities begin planning for martial law.

This plot summary for a Hollywood movie shows that the very survival of the nation might depend on the intervention of military forces at home. Their involvement, however, could threaten some of the most basic principles of American government. Our theater metaphor illustrates the need for balance in considering the military’s domestic role— a balance between freedom and security. One former movie actor, President Ronald Reagan, described the balance this way: “The primary objective of U.S. . . . security policy is to protect the integrity of our democratic institutions . . . embodied in the Declaration of Independence and the Constitution.”1 Reagan’s statement underscores the vulnerability of those institutions, and indeed of our very political identity. It stresses their defense as our highest priority, perhaps employing the military

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in that defense. It also suggests a perennial tension in our society—that actions perceived as needed to protect the lives and property of Americans may be unconstitutional, while efforts to defend democracy and the rule of law may compromise public safety. History shows that we must expect the unexpected. It also demonstrates the importance of taking reasonable steps now to prepare for whatever domestic emergencies may arise in the future, even though we cannot predict the precise shape or scope of those crises. Two considerations seem particularly important here: (1) we should anticipate calling on military forces to help out if civilian agencies are not up to the job, and (2) we ought to be able to predict the military’s response with some measure of certainty. Planning should, in other words, reflect the balance suggested by President Reagan— reasonable flexibility to meet unforeseen needs, with limits to safeguard the very constitutional values our military is pledged to protect. Plans for emergencies also must be based on the rule of law. Every U.S. commissioned officer, after all, takes an oath to “protect and defend the Constitution of the United States.” The Constitution, as interpreted by courts, implemented by Congress, and executed by the president, does not always provide perfectly clear authority for military action, nor does it always prescribe the exact limits of that authority. But the law in various forms does offer helpful guidance, and it lends some predictability for planners. It is an imperfect guide, but it is also a work in progress. The law is in turn the product of a political process by which we continually decide how to govern ourselves. Law lies at the very core of the relationship between American civilians and their military on the home front. Indeed, this book is about the domestic role of the military as it is shaped by law. LEARNING FROM EXPERIENCE

Much of the colorful history of the U.S. military’s involvement in domestic life is not widely known. Nor are the implications for American democracy and the rule of law fully appreciated, even among those who take an interest in government and civic affairs. Although we are concerned ultimately here with the military’s role in American society today, a brief review of the history is also important, for as Shakespeare’s Antonio reminds us, “what’s past is prologue.”2

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Before the American Revolution, British soldiers intimidated citizens, enforced the laws arbitrarily, and used their strength in arms and numbers to overpower local officials. Prominent among the list of complaints addressed to King George in the Declaration of Independence was that he had “affected to render the military Independent of and superior to the Civil Power.” Revolutionary leader Samuel Adams warned of the potential risks of a strong domestic military: “A standing army, however necessary it may be at some times, is always dangerous to the liberties of the people. Soldiers are apt to consider themselves as a body distinct from the rest of the citizens.”3 Still, by winning the Revolution the American military furnished the basis for a new nation committed to the rule of law and protection of its citizens’ rights. When the Framers of the Constitution met in Philadelphia in 1787, they provided for state militias and a regular army to protect against foreign and domestic enemies. They placed those military forces firmly under civilian control, however. In the more than two centuries since then, Congress and the states have enacted measures to regulate the armed forces at home and abroad. Military personnel have employed their unique training, equipment, communications, and organization to protect the nation from internal and external threats. While they represent only about 1 percent of the U.S. workforce, they occupy a central place in this country’s politics, culture, and imagination. Our collective gratitude to these men and women in uniform is expressed in movies, stump speeches, and national holidays. Americans say they admire the military more than any other public institution.4 The U.S. armed forces have been most active in domestic life during great national crises, especially wars and natural disasters. Historically, more threats to American society have come from within than from abroad, although that may be changing with the emergence of international terrorism.5 Regardless of the source of the danger, the armed forces have often been able to do what no other government entity could— save lives and property in the face of disaster or disturbance—because of their numbers and wide dispersal among the population, as well their special training and discipline. At times, however, these same forces have threatened the very interests they are sworn to protect— civil liberties, representative government, and the rule of law. Thus, from the earliest days of the Republic, we have developed a dependent, yet uneasy, relationship with our military. We have, in short, embraced our troops at home with caution.

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The Framers’ fear that a standing army would overwhelm and destroy democratic government has not been realized. Indeed, the military has almost always been respectful of civilian authority. But civilian leaders have sometimes used military forces to violate civil liberties. Congressional timidity and judicial deference have enabled this use. This has happened most often during times of national crisis, as in the aftermath of the 9/11 terrorist attacks.6 Nearly 150 years ago the Supreme Court declared, optimistically, that it is “an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.”7 Its optimism was not justified, because great emergencies have always invited abuses, and they will again. Even in happier times, military units have occasionally jeopardized fundamental freedoms as they sought to keep us safe from physical harm. Soldiers assigned to enforce the laws in the midst of civil strife have sometimes treated civilians as enemies, not as persons fully deserving of constitutional rights. They have imprisoned civilians and tried them in military courts, denying them the protections offered by the civilian criminal justice system. And on rare occasions military commanders have declared martial law simply to suspend the Constitution. Our task here is to celebrate the U.S. military’s profound historical and continuing contribution to domestic tranquility, while at the same time describing the threats it may pose to the American way of life. We hope to alert Americans to the risks that accompany increased military involvement in civilian affairs. We want to provoke both civilian and military policy makers to work toward a clearer, more nearly predictable balance between liberty and security, in accordance with the rule of law. With the growing threat from international terrorism, the need for clarification of that balance is urgent. Our approach is deliberately practical and functional, corresponding to the various ways the military becomes involved in civilian life—keeping the peace, enforcing the laws, collecting intelligence, detaining and trying civilians, and responding to disasters. We have tried to be constructive in our criticisms, and practical in our recommendations. This is not a comprehensive military history. Nor do we employ social science methods to evaluate the social dynamics of the military at home. We rely instead on a review of the most important representative events in American history to illuminate our themes and make our arguments. We

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also recognize that the military’s role in American society remains very dynamic. So we look back as well as forward, seeking to learn from the past as we plan for the future.

THE MILITARY AT HOME: ISSUES AND THEMES Responding to Civil Disturbances and Assisting Law Enforcement

Colonial Americans were heavily influenced by a long history of British military meddling in civilian affairs. On home soil the British subordinated its military to civilian rule generally, but an ocean away its continuing interference with civil authority helped spark the Revolutionary War. The architects of the new American system of government regarded standing armies as potential instruments of autocracy and abuse. At the same time, they worried about both external and internal threats to domestic security, and they knew that civilian authorities might not be able to contain these threats without a military force. The Founding Fathers knew that they had to balance security and liberty, power and restraint, secrecy and accountability. The Constitution’s Framers were practical problem solvers. They aimed to support a military that could keep us safe at home, but that was not so strong as to threaten civil liberties or overall civilian control. Their efforts produced a durable yet imperfect framework for government that has needed regular attention and refi nement. Its key provisions include separation of powers, federalism, subordination of the military to a civilian commander in chief, and respect for individual rights. Over time, changing circumstances have required adjustments in our thinking about some of the principles set forth in the Constitution. The accumulated experience of more than two centuries has also helped fill in some of the blanks in the original plan. For the most part, resort to military force has been guided as much by the perceived threat that force poses to democratic government, as by its potential contributions to domestic security. The president’s power to use soldiers to keep the peace and enforce the laws has been well circumscribed by statute.8 And with certain important exceptions, Congress has been careful to preserve the prerogative of states to utilize their own military forces— militias and the modern National Guard—to deal with internal problems.

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The military, meanwhile, has adopted its own fairly detailed rules for support of civil authorities. Nevertheless, civilian leaders have sometimes abused their authority by ordering the deployment of troops for civil disturbance or law enforcement operations without legal justification. What is perhaps most striking throughout our history, however, is an overarching public commitment to the rule of law. Military Imprisonment of Civilians

Military forces have occasionally taken civilians into custody and imprisoned them for extended periods without charges, without access to legal counsel, and without the ability to petition courts for release on grounds that their detention was not justified. Sometimes these measures were plainly justified, as in the confinement of British sympathizers during the Revolution. At other times, most notoriously the internment of 120,000 Japanese American civilians during World War II, military detention violated fundamental civil liberties and had no basis in military necessity. One lesson from this experience is that the law provides a shield against abuses only if the nation’s leaders follow it. Another is that the air of crisis and dread which permitted such a shocking abuse may return to do so again. Military Trials of Civilians

In a similar vein, civilian leaders have sometimes subjected civilians to trials by military commission precisely to avoid constitutional and statutory limits that might make prosecutions more difficult in civilian courts. Congress has occasionally authorized such trials, even when civilian courts were open and operating. And civilian courts have not always been willing to interfere to say what the law requires. Precisely when may Congress constitutionally approve military commission trials of civilians? May the president authorize such a trial on his or her own initiative? Are such trials barred when civil courts are open and operating? Does the liability of a civilian to military justice depend upon citizenship or residence? Definitive answers to these questions are not yet available.

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Military Intelligence Collection in the United States

Similar issues arise when soldiers collect intelligence inside the United States. No one doubts that the military must have good information in order to defend the homeland and suppress domestic violence. Nor does anyone question the hard work or devotion of soldiers who act as spies. They have helped keep us safe from both external and internal threats. It is less clear that military personnel should investigate ordinary crimes involving civilians—to act as police detectives. In this role their superior numbers, equipment, communications, and technology may give them an edge over their civilian counterparts. Yet they lack both the training and experience that professional cops have to uphold the constitutional rights of citizens. At times military personnel have been deployed to do jobs assigned to civilian agencies like the FBI. These deployments were not only unauthorized, they also betrayed our long-held tradition of barring military intrusions into civilian life except in the most extraordinary circumstances. Sometimes these soldiers operated under strict civilian leadership, sometimes not. They often were wasteful, as well, duplicating the efforts of the FBI and other law enforcement agencies. More disturbing, soldier spies have sometimes been used for blatantly political purposes—to thwart labor movements, resist advances in civil rights, and suppress peaceful protests against government policies. Their actions would have been unlawful no matter which government agencies carried them out. But these soldiers uniquely threatened the very freedoms they were supposed to secure. The Domestic Role of the Military after September 11

The role of the military in America was transformed in the years after 9/11. Soon after the terrorist attacks, new laws and policies were put into place, some of them by presidential fiat, some kept secret from both Congress and the American people. Some government insiders suggested that the military could operate under its own, separate, much more permissive body of rules at home, insulated from the scrutiny of courts or the public. In their view, the cautious embrace of a domestic role for the military should become less cautious.

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In the atmosphere of crisis following the attacks, military forces were given significantly expanded responsibilities for countering terrorism, maintaining order, and enforcing the laws— even for responding to natural disasters. They were also authorized by Congress to imprison terrorist suspects indefinitely without charges or trial, and to try civilians before military commissions. In the first several years of the twenty-first century, as well, an unseemly competition developed between federal and state civilian officials over control of domestic military deployments. Many Americans were alarmed to learn that the military might be planning to lead the federal government’s response to catastrophic events. The operational plans and their triggering mechanisms were in principle subject to civilian approval, of course. Yet civilian defense officials reportedly planned to assign soldiers to leadership, rather than supporting, roles. And some Department of Defense (DOD) planning scenarios may have envisioned a declaration of martial law without any showing that civilian institutions were unable to function. After 9/11, the phrase “homeland defense” entered the vernacular to describe the use of military force to fight terrorists on our soil. In this role, the Defense Department is always properly in charge. But it may be difficult to distinguish homeland defense missions from overlapping assignments to play a supporting role in homeland security, law enforcement, and the abatement of civil disturbances. Pentagon rules reveal conflicting expectations and confusion about command responsibilities, a dangerous condition that could hinder the ability of troops to respond effectively in a fast-moving crisis. Almost immediately after 9/11, the Defense Department also reorganized itself for an increased domestic intelligence effort, and it created new tools for the collection of personal information about Americans at home. The efficacy of these efforts is uncertain. It also is unclear that nonmilitary agencies could not have accomplished as much. What is clear is that these activities raise important new legal and policy questions about the military’s involvement in civil society. Uncertainty about the law is dangerous here, as in other contexts. LOOKING AHEAD: CAUTIOUS EMBRACE OR GENTLE REBUKE?

The kinds of crises that have prompted domestic military deployments in the past will surely occur again. Indeed, future calamities could be far greater

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than any we have encountered, or even imagined, so far. The terrorist attacks of 9/11 provide awful proof of this possibility. Whatever the source, character, or severity of the next great domestic emergency, our capacity for resilience and recovery will be tested. There is little doubt that the military will be called out to help. When it is, both civilian and military leaders need to know how the troops will respond. They also need to know what legal authorities will guide them. Even as we prepare for a wide range of threats— storms, earthquakes, cyber attacks on critical infrastructure, acts of bioterrorism—we must also take a fresh look at our much- celebrated system for civilian control of the military. The military itself needs to adopt coherent protocols for domestic deployments, so soldiers will not be in doubt about what is expected of them. And civilian agencies, chiefly the Department of Homeland Security, should harmonize their emergency response plans with those of the Defense Department, including the establishment of a single line of command authority. The record of domestic military deployments in the past has been uneven, sometimes sticking closely to the Framers’ script (although that script left plenty of room for improvisation), sometimes not. In contrast to the experience of many nations, however, we have seen relatively few instances of overreaching or unnecessary uses of force. This may be due to the good training and discipline of our military, or to instructions, first instituted by President Washington, to use minimum force in overcoming resistance. Or it may be attributable to an enduring commitment by military commanders to support civilian authority, or to the good fortune of strong civilian and military leadership. Nevertheless, we have sometimes strayed from the Framers’ vision, and we might again, especially given current uncertainties in the law. The law matters in describing and managing the military’s responsibility for domestic security. As the Supreme Court warned at the end of Reconstruction, “the military should always be kept in subjection to the laws of the country to which it belongs, and . . . he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.”9 Even where the courts have not gotten involved, law in the form of the Constitution, statutes, and regulations of the Defense Department and its ser vice branches provides the politically negotiated basis for norms and expectations in this field.

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Law has always been respected, if not always faithfully followed, by civilian and military leaders alike. President Obama confirmed this fact during a review of NSA surveillance programs in 2014: “Given the unique power of the state, it is not enough for leaders to say: Trust us. . . . For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on law to constrain those in power.”10 Years ago, Chief Justice Earl Warren wrote that the “military establishment is, of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset.”11 That balance may be upset by extreme threats, which often provoke extreme responses—when in an atmosphere of fear and anxiety fidelity to the rule of law might seem to jeopardize security. Indeed, planners and lawmakers cannot hope to anticipate every danger the nation will face in the future. Yet even in the most exigent circumstances law can provide a shield against tyranny, and well- constructed ground rules for responding to emergencies may offer the flexibility needed to keep us both safe and free. As Justice Frankfurter suggested in a famous 1952 Supreme Court decision, we need to make a “conscious choice of policy in a field full of perplexity” before the next crisis arrives.12

CHAPTER TWO

The Origins

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n October 1768, three regiments and an artillery detachment of British troops debarked from a fleet of warships anchored offshore, then marched— bayonets fi xed—into the City of Boston.1 These Redcoats came to stay—not as an army to protect the people, but as a police force to ensure obedience to oppressive acts of Parliament. Boston was suddenly transformed into a garrison town. Bostonians feared the Redcoats and deeply resented their presence. Over the next year and a half, these alien invaders established military checkpoints and conducted drills in civilian neighborhoods. They menaced men and women in the streets with bayonets, and they carried out public whippings on the Boston Common. They even competed with local citizens for scarce jobs. Soldiers and civilians became engaged in an escalating spiral of titfor-tat taunts, threats, and, occasionally, violent exchanges. The rising tension came to a head on the evening of March 5, 1770, when a young wigmaker’s apprentice traded insults and then blows with a British sentry guarding the Custom House. Several hundred loud and boisterous citizens quickly gathered. They were described by John Adams as a “motley rabble of saucy boys, negroes and molattoes, Irish teagues and outlandish jack tarrs.”2 As church bells rang out, normally a summons for volunteer firefighters, more citizens joined the throng.

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The sentry called for help. He was joined by eight other British soldiers, who were greeted by a chorus of catcalls, whistles, and jeers. They were also pelted with snowballs, sticks, and stones. When some thrown object struck one young soldier, he fi red his musket into the crowd— almost surely by accident. But in the ensuing confusion the other soldiers discharged their weapons as well. Three people in the crowd, including a runaway slave named Crispus Attucks, died immediately; two others later succumbed to their injuries. Order was restored only after an appeal from the acting governor. The Boston Massacre, as the incident became known, marked a critical turning point in the American colonists’ quest for independence. A painting depicting the scene was engraved by Paul Revere, printed, and circulated widely, further inflaming passions. The British troops departed Boston soon thereafter. When the Declaration of Independence was drawn up six years later, it set forth a long list of grievances against King George III. Prominent among these were that he had “Quarter[ed] large bodies of armed troops among us,” and more generally that he had “affected to render the Military independent of and superior to the Civil power.” These words were surely inspired by the Boston Massacre and the events surrounding it. In fact, the Declaration reflected a long history of military meddling in civilian affairs. Its signers were also familiar with centuries of confl ict over domestic deployments of troops in the mother country. Even after Magna Carta guaranteed the right to due process of law in 1215, British monarchs used soldiers to keep subjects in line, as Parliament struggled to set limits on the Crown. Our Founding Fathers thus regarded standing armies as potential instruments of autocracy and abuse. America’s early leaders nevertheless worried about “domestic tranquility” long before it became part of our Constitution’s preamble. External threats from Native Americans and European adversaries abounded. Closer to home, insurgents schemed to overthrow the new government, and angry mobs— citizens aggrieved by one government policy or another—remained a prominent feature of political life. These leaders knew that civilian authorities might be unable to contain these internal threats without help from military forces. The men who crafted rules for the new American democracy were practical people with a keen sense of the challenges they faced and the conse-

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quences of failure. The legal framework for civilian control of the military broadly achieved their objectives. More than two centuries on, we can only admire their brilliance and dedication. At the same time, we recognize that the government they designed was imperfect, and that, like all complex human inventions, it has needed constant refi nement. EN GLISH HISTORY

A citizen militia existed in England long before the Norman Conquest.3 Service in the Saxon militia, the fyrd, was expected of all able-bodied men, who supplied their own weapons. They were called out only in the event of an actual or threatened attack. With the introduction of feudalism in 1066, land was doled out among William’s followers in return for promises of military ser vice. Well-off mesne lords could pay the Crown money in lieu of knights and foot soldiers, however. That money paid for a professional military force that the king sometimes used to put down protests and punish opponents. When feudal services fell into disuse, the king had to rely on a reluctant Parliament to fund this force. All the while, militia forces continued to provide protection at the local level. During the years immediately following the Norman Conquest, a succession of English kings used their armies to control their subjects more or less as they saw fit. With the signing of Magna Carta in 1215, and much later the Petition of Right and English Bill of Rights, however, they began to recognize citizens’ rights to the due process of law, free from arbitrary enforcement by soldiers. Yet this recognition came slowly, with the Crown occasionally invoking martial law or calling out troops to quell civil disturbances, or simply to enforce the law. Magna Carta

Magna Carta fi rst confi rmed in writing what has become the AngloAmerican tradition of disfavoring military involvement in civilian affairs: “no freeman shall be . . . imprisoned . . . or in any way harmed . . . save by the lawful judgment of his peers or by the law of the land.”4 Although it had little immediate effect on personal liberties, the “Great Charter” established the principle that the power of the king and the king’s military authority

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could be subordinated to the power of law. In the middle of the fourteenth century Parliament enacted legislation declaring that no person should be punished except “by due Process of the Law.”5 In theory, this meant that citizens would not be subjected to coercion by military authorities. Still, “we are not to imagine that the kingdom was left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions,” as one scholar put it.6 Landowners obligated to provide military service to the king could be called out. And other subjects were required to own weapons and could be “mustered and arrayed” into “military order” to help keep the peace. There were no strict guidelines, however, and—human nature being what it is— soldiers were sometimes used in ways that offended the ideals of the Great Charter. The Petition of Right and the Ship Money Case

Four hundred years after Magna Carta, in 1625, Charles I ascended to the English throne following the death of his father, King James I. Charles immediately embarked on a prolonged struggle with Parliament to secure funding for the ongoing Thirty Years War. When Parliament refused, Charles ordered “forced loans” from landowners, quartered soldiers in private homes, and declared martial law in order to conduct military trials of individuals who opposed his policies. In 1628, Charles’s third Parliament responded by passing the Petition of Right. The Petition of Right recited a long list of grievances against the Crown and its officers, praying that (1) martial law (“Martiall Lawe”) not be used to punish subjects, (2) troops not be billeted in subjects’ houses, (3) no one be imprisoned or put to death without due process of law, and (4) only Parliament should impose taxes on British subjects.7 Charles reluctantly assented to the Petition of Right, but then dismissed Parliament and ruled alone for the next eleven years. The king had to find new ways to fund his government without relying on Parliament’s approval. He settled on a “ship money” tax on coastal towns, unprecedented in peacetime, ostensibly to pay for the defense of those towns in the face of general unrest in Europe and a growing threat from pirates. The tax was subsequently expanded to cover the entire kingdom. His authority to levy the tax was challenged by a wealthy Buckinghamshire landowner and member of Parliament, John Hampden, who refused to pay it.

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In The Case of Ship Money,8 a court upheld the tax based on the Crown’s arguments of necessity and public safety. The appeal to the court was that ordinary law, a mere “tributary” to the “law of necessity,” should yield when “the keeping of the laws would end the commonwealth.”9 The court agreed, concluding that the king was “the sole judge, both of the danger, and when and how the same is to be prevented and avoided.”10 The court need not, however, have reached this last conclusion to dispose of the case before it. Hampden’s counsel accepted the legitimacy of the necessity argument and instead based his case on the facts—that there was no real need to raise funds for the Royal Navy. In contrast, the arguments of the king’s counsel were struck in republican rather than royalist terms—that the tax was for the common good, not the king’s purse, and that because of public necessity it was not so much his right as his obligation to collect the tax. The judges saw Hampden’s case as pitting the landowner’s rights against those of the community. The outcome was hardly surprising. Most importantly, the court declared that the king alone could determine the existence of the danger to the realm and the corresponding need for the tax; the court had no role to play in deciding. Three years later both the Ship Money Case and the tax it upheld were struck down by Parliament as contrary to the Petition of Right.11 Nevertheless, the Ship Money court’s broad dictum about authority based on necessity would later provide a rationale for acts of the Crown far more intrusive than merely collecting taxes. The principle of necessity had another emerging theoretical origin. According to the political philosopher John Locke, necessity was part of a government’s prerogative power exercisable only by the Crown. Locke wrote in his Second Treatise that the executive should exercise this power “for the public good, without the prescription of law, and sometimes even against it.”12 Some contemporary writers disagreed. Henry Parker, for example, regarded the king as separate from people. He saw the people, not the king, as making up the state, and he viewed Parliament as the embodiment of the people’s will and thus of the prerogative powers.13 As Parker and other critics of the Stuart kings eventually concluded, the promoters of ship money were wrong not because of the cause, but because the wrong institution decided the question of necessity. These critics would inspire the Framers of the U.S. Constitution to reject the prerogative powers altogether and give many of their new government’s

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security powers to Congress. Yet the principle of necessity—investing government, especially the executive, with extraordinary powers in perilous times—was to become an enduring feature of our republic. It would be asserted, for example, by Abraham Lincoln at the beginning of the Civil War to use soldiers to perform acts usually reserved for civilian officials. Stepping back from the ship money dispute, Charles I won the short-term legal battle but eventually lost the larger war over control of the government and the use of troops to enforce his will. His conflict with Parliament helped provoke two civil wars. Both sides employed professional soldiers who committed various abuses against civilians. In the end the king and his forces were defeated. Charles also lost something he valued even more: in 1649 he was tried for treason and beheaded. Restoration, the English Bill of Rights, and the Riot Act

With the restoration of the monarchy in 1660, Charles II enjoyed a relatively harmonious relationship with Parliament, although his tolerance of Catholicism fed sectarian tensions throughout his reign. Avowedly for financial reasons, Parliament initially ordered the disbanding of the professional army that had served Oliver Cromwell’s government during the interregnum.14 The following year, however, it passed the Militia Act of 1661, declaring that the “sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land” belonged to the king.15 Then, under the Militia Act of 1662, the king was authorized to recruit and arm local military forces, which could be used to suppress “Insurrections and Rebelions and repel[] Invasions,” as well as to confiscate weapons owned by anyone judged “dangerous to the Peace of the Kingdome.”16 Thus, the domestic security of the realm was to depend on local militia. Nevertheless, foreign wars eventually required the reestablishment, with Parliament’s consent, of a standing army numbering some 5,000 men. James II inherited the throne in 1685 and soon enlarged the army further to more than 30,000 men. James was a practicing Catholic who also served as official head of the Anglican Church. Although Catholics were barred by a series of parliamentary acts from holding appointive office, James named a number of his Catholic followers to command positions. He justified these appointments by obtaining a court ruling (from judges he placed on the bench) that he had the power to dispense with acts of Parliament.

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James, fearing Protestant Whig reprisals, declared martial law in some garrison towns. Laborers were conscripted to fortify military defenses, while the state of martial law effectively rendered soldiers unaccountable for their abuses of the civilian population. Elsewhere, troops were instructed to seize muskets and other guns carried openly by private citizens. For a brief period the standing army grew larger still, in part due to fears of a French invasion, and in part because the reliance on professional soldiers meant that Englishmen generally could avoid ser vice in the militia. In the process, the tradition of a citizen military force—in which able-bodied men would take up arms to defend their local communities—was ignored. In 1688, Parliament adopted and the new monarchs, William III and Mary II, accepted the English Bill of Rights.17 For the first time in English law, the maintenance of a standing army in peacetime was forbidden without the consent of Parliament. It also granted Protestants the right to bear arms. In a variety of other ways, as well, the monarch was subordinated to Parliamentary control. An actual separation of powers was developing in England, not through formal constitutional requirements, but through the evolving practice of governing. Yet executive power to deal with domestic unrest using troops was by no means eliminated. The Riot Act of 1714 authorized civilian law enforcement officials to suppress riots—twelve or more persons “unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace”—after reading rioters a royal proclamation to disperse. Those who failed to disperse were guilty of a “felony without benefit of clergy” and punishable by death. While the act did not expressly authorize the use of military forces to enforce the law, “the King’s subjects of age and ability” (later interpreted to include soldiers) could be enlisted to help out.18 Nevertheless, the trend toward subordination of military to civilian rule generally and of disfavoring military involvement in law enforcement in particular was well established by the middle of the eighteenth century. In 1765, the widely respected jurist William Blackstone was able to write that laws regulating the militia “have provided for the public peace, and for protecting the realm against foreign or domestic violence.”19 He also warned against the potential dangers of a permanent professional military force: [T]he raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. . . .

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To prevent the executive power from being able to oppress, . . . it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people . . . . Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. . . . [I]t should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed.20

Blackstone cautioned, as well, that martial law, which might be invoked during a foreign war, “ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.”21 (For more about martial law, see Chapter 7.)

Protestant Riots and Emergence of the Mansfield Doctrine

In 1778, as the Redcoat army began to be worn down in the American Revolutionary War, Parliament passed the Catholic Relief Act.22 That measure sought to replenish the army’s ranks by absolving Catholics of the requirement to take a (Protestant) religious oath when enlisting. Leading Protestants, however, saw the act as a major affront to Britain’s Protestant and libertarian heritage. They feared that any loosening of restrictions on Catholics would inevitably lead to all of Britain coming under the thumb of the pope. Peaceful protests against the act evolved into violent anti- Catholic riots in London.23 For a week in the summer of 1780, mobs burned and looted Catholic churches, and they attacked the homes and persons of Catholics and suspected sympathizers. Thousands of Protestant extremists also struck at symbols of government authority, surrounding and shutting down Parliament, emptying the jails, and setting fires that burned large parts of the city. The small constabulary force could do little to stem the violence. During the worst of the rioting, sizable army contingents were garrisoned nearby, yet soldiers stood by and did nothing. Once it was clear that the police could not control the rioters, London’s Lord Mayor Brackley Kennett could have read out the Riot Act, a prerequisite since 1715 for calling in troops to assist, but he hesitated. Kennett said he feared that bringing soldiers into the city would provoke further violence, and that in any case the

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military could not be called out because England remained legally at peace. But his inaction was more likely based on fear of popular retribution. Meanwhile, mobs targeted leading members of the London establishment, including Lord Chief Justice Mansfield, whom they suspected of supporting the Catholic Relief Act. The rioters attacked Mansfield’s home and burned it to the ground, the chief justice and his wife barely escaping through a back passage. With Parliament unable to meet, King George III (widely viewed as a Catholic sympathizer and suspected of having converted to Catholicism) eventually ordered the army to end the violence and arrest the rioters. The army accomplished its mission, but only after brutal street battles between rioters and musket-bearing soldiers, in which several hundred civilians were killed. When Mayor Kennett was later charged with neglect of duty for his response to the riots, Lord Chief Justice Mansfield presided over his trial. The chief justice indicated that the “common law and several statutes have invested justices of the peace with great powers to quell riots, because, if not suppressed, they tend to endanger the constitution of the country; and, as they may assemble all the King’s subjects, it is clear they may call in the soldiers, who are subjects, and may act as such; but this should be done with great caution. It is well understood that magistrates may call in the military.”24 In other words, as Mansfield made clear in an earlier address to Parliament, civilian authorities could call soldiers to serve as members of a posse comitatus when necessary to suppress a riot. Military personnel would act as “mere private individuals,” not soldiers, however, and their conduct would be judged by civilian laws in civilian courts.25 The lord mayor was convicted of criminal negligence and fined £1,000 for failing to read out the Riot Act. What came to be known as the “Mansfield Doctrine,” stressing local civilian control of military forces, was to have a considerable impact on the nearly simultaneous development of law in the United States. REDCOATS IN AMERICA: THE COLONIAL EXPERIENCE

As British settlers in North America pushed inland from the Atlantic coast, they faced a constant threat of attack from the Native Americans they displaced, as well as occasional domestic violence.26 Royal grants enabled these intrepid colonists to organize citizen military forces for their protection. The

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second Massachusetts Bay Charter in 1691, for example, granted authority “to assemble in Martiall Array and put in Warlike posture the Inhabitants of Our said Province” and to “use and exercise the Law Martiall in time of actuall Warr Invasion or Rebellion.”27 The colonists looked to English law as a model for a government of balanced and mixed powers. Yet they recognized the monarchical features of the unwritten English constitution as inviting an arrogation of authority by the king. Accordingly, the colonies and later the states placed strong limits on executive power, including constraints on the executive’s use of military force. Perhaps the most striking characteristic of the political and legal development of the nascent United States was the scattered settlement of the eastern seaboard by thirteen separate groups of people, each with its own colonial government. Their evolution as distinct, substantially self-reliant, yet interdependent legal entities paved the way toward eventual statehood and the federal constitutional structure. This same development strongly influenced the organization and domestic use of military forces. Colonial militias began to form with the arrival of the first settlers. They were typically orga nized into company- sized units in local townships or counties. Qualifications for citizen soldiers varied among the colonies, but membership might be required for all white males between the ages of 18 and 45 who paid taxes and owned property, with exceptions for some occupations. Regular but largely ceremonial drills were required, but seldom active ser vice. Militiamen were supposed to supply their own equipment and arms, although few of them owned guns. Colonial legislatures set policies for the troops, and governors appointed the officers in an early American form of patronage. The colonists created cross-border militia confederations to fight off attacks from Native Americans. Some towns also formed specialized units, called Minutemen. These were elite militia personnel— somewhat akin to modern U.S. special forces—who were usually younger, better trained, and chosen for their ability to turn out for a fight on very short notice, hence the name. The militias were not involved in the conflicts fought among European powers in North America. British military leaders recruited war time forces episodically, as the need arose, and disbanded them when the fighting ended. Even the largest of these conflicts, the French and Indian War of 1754–1763, was fought by “war ser vice only” battalions of volunteers recruited to fight

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independently or alongside British troops. Likewise, southern campaigns against Native Americans and against Spanish and French outposts along the Gulf Coast and in Florida were carried out by forces raised ad hoc, some of them excluded from membership in the militias. Seeds of Rebellion

Over time, the settlers began to claim that issues purely internal to the colonies should be decided by them alone. Elected colonial legislatures took effective control of most local matters, and the power of the Crown’s appointed governors gradually diminished. At the same time, the colonists treasured the protections of their royal charters, and they demanded all of the rights and protections to which other British subjects were entitled. Some trace the beginnings of the American Revolution to the Crown’s employment of writs of assistance. These were general warrants from colonial courts authorizing royal customs officers to enter and ransack citizens’ houses without probable cause and without specifying a time or place of search. James Otis, a prominent Massachusetts lawyer, described them in 1761 as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law.”28 Outrage over these writs later inspired the Fourth Amendment to the U.S. Constitution. The flames of revolution were fanned further by Parliament’s passage of the Sugar Act in 1764, imposing a duty on molasses imports, and the Stamp Act in 1765, requiring revenue stamps on newspapers, pamphlets, and various legal documents.29 The colonists’ reaction to the stamp tax was immediate and sometimes violent, as mobs prevented tax collectors from doing their duty. In October 1765, elected representatives from nine of the colonies met in New York in the First Congress of the American Colonies. Several of those in attendance addressed a petition to King George III and Parliament complaining that the tax had a “manifest tendency to subvert the rights and liberties of the colonists.”30 Early the following year, amid talk that soldiers might be used to enforce the tax, Parliament repealed the Stamp Act. On the same day, however, it passed the so- called Declaratory Act, which asserted Parliament’s authority to make laws binding on the colonists “in all cases whatsoever.”31 Adding to the mounting tension, Parliament passed the first Quartering Act in 1765, requiring the colonies to bear the cost of providing housing and supplies for British soldiers.32 With the end of the French and Indian War two

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years earlier, many colonists believed the thousands of Redcoats remaining there were unneeded, and they feared the continued presence of a large standing army. Even more, they resented having to pay for one. When the New York assembly refused to pay, Parliament suspended the assembly until it fell into line. A second Quartering Act in 1774 created new resentment by allowing soldiers to be billeted in inns, public houses, barns, and other unoccupied structures.33 The Colonial Militias and General Gage’s Army

General Thomas Gage was commander of all British forces in North America for ten years beginning in 1763, then military governor of Massachusetts until 1775. The uproar over the 1765 Stamp Act and other revenue measures prompted Gage to redeploy his troops from the colonial frontier to the seaboard cities to restore order, and the Quartering Acts provided for their maintenance there. When Redcoats began to arrive in force in Boston in 1768 to help enforce the tax laws, peaceful protests soon turned violent. These reached a tragic climax in 1770 with the Boston Massacre. The incident was widely publicized, adding dramatically to a growing sense of anger and alienation throughout the colonies. In 1774, Parliament passed a series of punitive measures in response to the Boston Tea Party the previous year. One of these revoked the 1691 Massachusetts Bay Charter.34 Another provided that British subjects accused of committing “murther, or other capital offense” while suppressing riots or enforcing the revenue laws could be tried in a distant colony or even England, frustrating colonists’ efforts to punish abuses by Redcoats.35 Eventually, the colonial militias played a key role in bringing the American Revolution to a head. When Parliament revoked the Massachusetts Bay Charter, General Gage dissolved the colonial assembly. The assembly then reorganized itself as the Provincial Congress, with John Hancock as its head, and assumed full authority to govern the colony. This body directed local militias to reorganize for greater efficiency and to form one- quarter of their members into companies of Minutemen with special training and drilling. After Parliament banned the export of guns and ammunition to the colonies, Gage was ordered to disarm citizens in rebellious areas and imprison their leaders, including Hancock and Samuel Adams. Militia organizations

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throughout the colonies responded by purging British sympathizers from their ranks and stepping up their preparations for combat. On April 18, 1775, Gage dispatched a contingent of British regulars to seize a cache of rebel weapons in Concord. But word of the foray leaked, and Paul Revere rode out from Boston that night with a warning that the British were coming. Militia forces throughout the area were alerted by other riders, including William Dawes and Samuel Prescott, as well as by bells, trumpets, guns, and bonfires. At dawn the next morning, April 19, some 700 Redcoats were met in Lexington by perhaps 80 local militiamen. No one today is sure who fired first, but the exchange of gunfire marked the beginning of the Revolutionary War. Eight colonists were killed, and the remainder beat a hasty retreat. The British troops then turned toward Concord, where they met a larger militia group from surrounding towns, and in the ensuing battle at the North Bridge three Redcoats died. Before the day was over, the British force was chased back to Boston by a growing body of militiamen, eventually numbering several thousand, who ambushed the exhausted regulars from behind trees and stone walls along the way. Dozens were killed on both sides. The day after the British debacle at Lexington and Concord, as many as 15,000 militiamen from around the region cut off land access to the City of Boston, although they could not stop the resupply of British troops from the sea. The Massachusetts Provincial Congress, meeting in Watertown, immediately developed plans for a New England army, to be recruited initially from the ranks of these militias. Writing to the Second Continental Congress in Philadelphia, it explained that “a power full Army, on the side of America, hath been consider’d, by this Congress, as the only mean left to stem the rapid Progress of a tyrannical Ministry. Without a force, superior to our Enemies, we must reasonably expect to become the Victims of their relentless fury: With such a force, we may still have hopes of seeing an immediate End put to the inhuman Ravages of mercenary Troops in America, and the wicked authors of our Miseries, brought to condign punishment, by the just Indignation of our Brethren in Great Britain.”36 Then on June 12, 1775, Gage issued a proclamation addressed to what he called the “infatuated multitude, who have long suffered themselves to be conducted by certain well known incendiaries and traitors.” He declared martial law and offered pardons to all rebellious colonists except John Hancock and Samuel Adams.37 But it was too little too late. The first major battle of the Revolutionary War took place on Bunker Hill just five

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days later. In September that same year Gage was recalled to England and forced to retire. Meanwhile, the Continental Congress assumed responsibility for funding and directing the expanding New England force, which now included contingents from New Hampshire, Rhode Island, and Connecticut. These were the first elements of the Continental army, to be led by former militia commander George Washington, who was appointed general and commander in chief. At this point the Continental Congress had no legal authority and no funds to recruit an army to fight the British, so it had to depend on the colonies to furnish troops, mostly from their militias. These were primarily farmers, willing to commit to only three months active duty so they could return home to plant and harvest their crops, but many had experienced combat in the French and Indian War. By the time the Declaration of Independence was signed, the Continental army had become a truly national fighting force, with troops representing every colony. Still, a large number of these were militia units, in whom General Washington had only limited confidence. He wrote to Congress in September 1776, “If I was called upon to declare upon Oath, whether the Militia have been most ser viceable or hurtful upon the whole; I should subscribe to the latter.”38 Alexander Hamilton later concluded that reliance on the militia “had like to have lost us our independence . . . . The steady operation of war against a regular and disciplined army can only be successfully conducted by a force of the same kind.”39 Despite these misgivings, no one questioned the bravery of the militiamen or doubted their critical role in gaining independence, whether serving in the Continental army or in local communities. They fought Native Americans and British soldiers in frontier skirmishes, turned back British raids from the sea, and carried out guerrilla warfare against the Redcoats in the mid-Atlantic and South. They also helped enforce new laws enacted by state assemblies. A NEW GOVERNMENT IS BORN

The union of colonies that became the United States emerged gradually, as discontent with British rule increased and the colonists developed a greater capacity for local governance.40 In a dramatic act of defiance, the First Continental Congress convened in Philadelphia in September 1774 as an extralegal

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body of one house. Twelve colonies (all but Georgia) sent elected representatives. Each delegation had one vote, regardless of the colony’s population. A petition from the congress to King George contained a long list of complaints, including one that “the keeping a Standing army in these colonies, in times of peace, without the consent of the legislature of that colony in which such army is kept, is against law.”41 The petition was ignored. But the groundwork was laid for a second congress the following summer. And the idea of independence now seemed irresistible. The Declaration of Independence

The Declaration of Independence really just announced a fait accompli. Its true purpose was to rally the American people. The text of the Declaration plainly reflects English legal history that was familiar to the delegates at the Continental Congress. Its principal drafter, Thomas Jefferson, relied heavily on the style and substance of the Petition of Right, the English Bill of Rights, and the writings of William Blackstone. After the well-known invocation of “the Laws of Nature and of Nature’s God,” the document set out fundamental principles of self- determination, then “a long train of abuses and usurpations” by the Crown against the people of the colonies. Prominent among these were charges that the king had “kept among us, in times of peace, Standing Armies without the Consent of our legislatures,” had “Quarter[ed] large bodies of armed troops among us,” and, more broadly, had “affected to render the Military independent of and superior to the Civil power.” Thus, the signers of the American Declaration of Independence echoed grievances that their English forebears had fought over repeatedly for more than five centuries. Given this history, it is hardly surprising that delegates to the Constitutional Convention in Philadelphia in 1787 developed plans for a new government that expressly subordinated the military to civilian control. Protections for individual liberties, however, would have to await approval of amendments in the form of a Bill of Rights four years later. Even during the struggle for independence, however, revolutionary leaders recognized that civilian resources would not always be up to the challenge of managing extreme domestic emergencies. The new national government might need to call out both state and federal troops to help enforce federal laws, protect the states, or respond to existential threats.

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The Articles of Confederation

Three weeks before it approved the Declaration of Independence, the Second Continental Congress appointed a committee to prepare a first constitution for the new government, based on an earlier draft by Benjamin Franklin.42 Proposed articles of confederation were set before the delegates a month later and debated for more than a year. They were approved in November 1777, then ratified by all the states in 1781.43 Even before formal ratification, however, the articles guided the conduct of the Revolutionary War, as well as the more mundane business of running the country. Although the Declaration of Independence referred to Americans as “one people” and described the states as “United,” it also declared that the colonies had become “free and independent states.” Reflecting this paradox, the Articles of Confederation described a loose association of autonomous states with a number of shared obligations. Each state retained “its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States.”44 At the same time, the several states entered into “a firm league of friendship with each other, for their common defense, . . . binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them.”45 Decisions about the use of military force were entrusted to Congress. No state could “engage in any war” without Congress’s approval unless it were “actually invaded by enemies, . . . and the danger is so imminent as not to admit of a delay.”46 Otherwise, Congress was to have “the sole and exclusive right and power of determining on peace and war.”47 By the time the Articles were drafted in 1776, of course, the War of Independence was well underway. Congress had long since approved the creation of a national war time army with George Washington at its head. The Articles authorized Congress “to agree upon the number of land forces, and to make requisitions from each State for its quota . . . which requisition shall be binding.” Congress was also given the job of “making rules for the government and regulation of the . . . land and naval forces, and directing their operations.”48 What the Articles failed to do was specify a reliable means of paying for the army or the war. They declared that “[a]ll charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States.” 49 They also stated that “[e]very State shall abide by the determination of the

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United States in Congress assembled, on all questions which by this confederation are submitted to them.”50 Yet Congress had no way to enforce the states’ obligation to pay. It was forced to go hat-in-hand to the states, which had their own financial problems. Even at the height of the Revolutionary War, when the Continental army was undermanned and short on supplies, state contributions were not nearly enough. In early 1783, military officers frustrated by Congress’s continuing failure to pay for soldiers’ salaries and supplies threatened either to disband immediately or to refuse to disband after a peace treaty was signed. General Washington defused the so- called Newburgh Conspiracy in what one scholar called “one of his greatest triumphs as a military general with words rather than bullets or bayonets,”51 in the process helping to ensure civilian control of the military. By war’s end, however, the nation had accumulated a huge debt, and on the eve of the Philadelphia Convention a congressional board warned of impending bankruptcy and dissolution of the Union.52 Finances aside, there was considerable doubt that the Articles permitted a national military force to be maintained in peacetime. To address this question, Congress appointed a committee headed by Alexander Hamilton, who asked George Washington to devise a plan for interior defense. Washington recommended a combined body of militiamen and professional soldiers to be led by former Continental army commanders. Congress rejected the scheme as illegal under the Articles. Members also were not interested in sending their militias all around the country to fight for causes that would yield no tangible benefits in their respective states. James Wilson of Pennsylvania later ruefully observed that he did “not know a nation in the world, which has not found it necessary and useful to maintain the appearance of strength in a season of profound tranquillity.”53 Peacetime security was to be provided instead by state forces. The Articles specified that “every State shall always keep up a well-regulated and disciplined militia.” Yet no state could maintain “any body of forces”—a standing army—in peacetime unless Congress agreed.54 No provision was made for federal intervention to suppress insurrections or other domestic violence. Nor was the federal government authorized to call out state militia forces to help keep the peace. No strong central executive was named in the Articles. Rather, a committee headed by a president was to manage the “general affairs” of the new nation, as well as the war in progress against the British.55 There was also

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no mention of federal courts of general jurisdiction to operate as a check on either the executive or Congress. The program of government- by- committee set forth in the Articles of Confederation proved ineffectual in conducting the Revolutionary War. Congress responded by delegating broad powers to General Washington to manage the conflict. After the war ended, however, the fledgling nation found itself ill- equipped to deal with internal violence that exceeded the capacity of state forces. Shays’ Rebellion

In the years following the British army’s exit from the colonies, divisions formed among the newly independent Americans, largely along class and cultural lines.56 In Massachusetts, the eastern portion of the state was dominated by wealthy commercial interests, while the poorer western part included mostly farmers. In the midst of a post-war recession, many of the latter were burdened by high taxes, crushing debt, and a lack of hard currency to pay either. Some were former Continental army soldiers who, three years after the Treaty of Paris, had yet to be fully paid for their ser vices. As debtors’ prisons began to fi ll up and farms were seized for unpaid debts and delinquent taxes, hundreds of local citizens armed with muskets, clubs, and pitchforks responded by closing several local courts. Shays’ Rebellion, as the uprising became known, was led by Daniel Shays, a captain in General Washington’s army who fought at Bunker Hill and Saratoga. In September 1786, a session of the Massachusetts Supreme Judicial Court meeting in Springfield was forced to shut down by an armed body with Shays at the head. As word of the Massachusetts disturbance spread to other states, the prospect of anarchy prompted Washington to write that “[c]ommotions of this sort, like snow-balls, gather strength as they roll, if there is no opposition in the way to divide and crumble them.”57 Worried that the protestors might break into the federal arsenal in Springfield, Congress approved sending federal troops to the area, but it had no money to pay them, so they were not deployed. When an armed group of some 1,500 men led by Shays attacked the Springfield armory in late January 1787, they were met by a state militia force equipped with artillery. The defenders killed several of Shays’ men with

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cannon fire, and the rest fled in panic. After some further skirmishes, Shays’ Rebellion ended with a final battle at Sheffield on February 27. The uprising in Massachusetts eventually produced lower taxes and a moratorium on debts. Its impact on the new national government was far more dramatic. When delegates gathered in Philadelphia a few months later to draft a new constitution, Shays’ Rebellion reminded them that in extreme situations some form of military force must be available to keep the peace and enforce the laws. James Wilson of Pennsylvania remarked that “the flames of internal insurrection were ready to burst out in every quarter.” Wilson did not trust the state militias alone to ensure domestic security, however, and he could not conceive of a government “deprived of power to prepare for the defense and safety of our country.”58 FRAMING A CONSTITUTION

Almost from the beginning it was evident that the Articles of Confederation would fail to provide an enduring, coherent plan of government for the newly united states.59 Before the war for independence ended, the Union found itself with no reliable way to fund the government, no effective mechanism for settling disputes between states, and no way to prevent individual states from interfering with interstate commerce. The Articles included almost no guarantees for the individual rights of citizens and no authority to provide directly for their welfare. Most important for our purposes, the Articles anticipated the creation of a national army, but they offered no guidance for the use of either federal troops or militiamen for internal security. Spurred by Shays’ Rebellion, the Continental Congress approved a conference in the summer of 1787 to consider amendments to the Articles of Confederation. The conferees instead developed a radical new plan of government that continues to this day with few changes. The Philadelphia Convention

The delegates convened in Philadelphia on May 25, 1787. They met six days each week through the summer. After extended deliberations, they submitted fundamental resolutions and plans to a Committee of Detail on July 26. That committee produced the fi rst full draft of the Constitution in early August. The Convention then debated and modified the draft for

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another month, before submitting it to a Committee on Style and Arrangement. After stylistic changes, the delegates approved the finished document on September  17, and George Washington, President of the Convention, submitted it to the Continental Congress. Congress sent the Constitution for ratification to the states, where the debates were even more intense than those in Philadelphia. Separation of Powers and Responsibilities

The Framers of the Constitution recognized that while the Articles of Confederation had worked well enough in organizing colonial resistance to Great Britain, its concentration of government functions in a one-house legislature was both ineffectual and potentially dangerous. They knew that whatever powers they gave their new government would need to be checked against abuses and balanced among several component parts. They were familiar with the principle of separation of powers espoused by the French political philosopher Montesquieu and various English writers, including John Locke, and they wanted to avoid the constant struggles for primacy that marked relations between Parliament and Crown. Indeed, a number of state constitutions adopted in the nation’s fi rst decade embraced separation of powers as a primary theoretical construct for government. The delegates in Philadelphia thus sought to avoid a dangerous aggregation of power in a single body by distributing authority among three branches of the national government— executive, legislative, and judicial. As representatives of the various states, these men were also concerned about the division of power between national and state governments. They were jealous of the autonomy guaranteed to the former colonies by the Articles of Confederation. At the same time, they recognized strength in numbers, and they were willing to surrender some measure of state sovereignty in return for collective influence and security. Most of them were, in short, as firmly committed to creating a strong national government as they were to preserving states’ rights. The federal system that emerged, after much debate, ensured that states and the national government would share the responsibility for internal security and for the domestic use of military personnel. Nevertheless, the supremacy of the national government and its laws was assured by the

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Supremacy Clause in Article VI, and the judiciary was given the authority in Article III to ensure that national commands were obeyed. THE CONSTITUTION’S PLAN FOR INTERNAL SECURITY

On the eve of the Philadelphia Convention, George Washington endorsed some “means of coercion in the Sovereign” to enforce obedience to the laws of a general government, “without which, everything else fails. . . . But the kind of coercion you may ask?” 60 Alexander Hamilton answered in debates on the floor of the convention that the force needed to secure obedience “may be understood [as] a coertion of laws or coertion of arms.”61 If there were a strong central government, able to “carry its agency to the . . . citizens”62 directly and to rely on the courts to execute its own resolutions, then law could achieve compliance without resort to violence. The law and its courts would supply the force—the force of law. With the recent experience of Shays’ Rebellion fresh in their minds, convention delegates were well aware that in extreme situations soldiers would have to help keep the peace and enforce the laws. But what extreme situations? And what kind of military force could provide the needed internal security without unduly jeopardizing citizens’ rights? A Role for a Standing Army

Like their English forebears, the Framers were familiar with the potential dangers of a standing army.63 The Articles of Confederation had forbidden the establishment of permanent state military forces without Congress’s approval. The Constitution repeats this prohibition in Article I, Section  10: “No State shall, without the Consent of Congress . . . keep Troops.” The militias— citizen soldiers who could be called out in emergencies— did not pose the same threat. Many of the delegates in Philadelphia felt that state- controlled militiamen could cope with most local lawlessness or civil unrest. Others thought such state forces could provide a needed counterweight to an overbearing national military force under central control.64 As an immediate practical political expedient, primary reliance on state militias for internal security helped gain the approval of some delegates who

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feared a dominant national military. It also temporarily quieted some of the debate about the military’s role in domestic affairs generally. The fact that the militias had performed unevenly during the Revolutionary War was largely ignored. So were the risks that internal strife or meddling by Europeans might generate centrifugal forces that could lead to disunion. Nevertheless, the delegates were acutely aware of external threats to their fledgling democracy—Spanish and French in the south and west, British to the north, and Native Americans determined not to surrender their homes to the European settlers without a fight. A permanent professional military force clearly was needed to address these threats. But at least initially that force would be small. At the time of the Philadelphia Convention the army had only 700 men in uniform. The delegates’ cautious embrace of a standing army is reflected in the text of the new Constitution. They hoped that by making a civilian, the president, commander in chief the military would be less likely to try to seize control of the government. Then in the spirit of separated powers they gave Congress, not the president, power to “raise and support Armies” and “provide and maintain a Navy.” To help preserve some measure of legislative control of these military forces, they provided further that appropriations to pay for them would have to be renewed at least every two years. Supreme Court Justice Robert Jackson would later observe that “[w]hile Congress cannot deprive the President of command of the army and navy, only Congress can provide him an army or navy to command.”65 Congress was also assigned the task of making “Rules for the Government and Regulation of the land and naval Forces.” This arrangement reflected a practical compromise that has since 1787 worked to reflect the Framers’ aspirations most of the time. But it was no guarantee that civilian presidents would never misuse this national military force to violate the rights of Americans at home, or even ignore the rules and regulations adopted by Congress. And it provided no certain assurance that Congress and the president would not collaborate to repeat the kinds of abuses visited on British subjects by a succession of monarchs. A Role for the State Militias

At the end of his career, Thomas Jefferson reflected on the ideal of a nation in arms—“every man a soldier,” equipped and ready to come to the defense

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of his country when called.66 The Greeks and Romans, he observed, required universal ser vice in citizen militias, and they had no need for “such [an] engine of oppression as a standing army.”67 Jefferson, like many before him, was influenced by the writings of Niccolò Machiavelli, who advocated a citizen military force to serve a popu lar prince in his native Italy. Machiavelli scorned professional soldiers as mercenaries—“disunited, ambitious, without discipline, faithless, bold amongst friends, cowardly amongst enemies . . . having no fear of God, and keep[ing] no faith with men.” 68 Any mercenary army powerful enough to defend the state would, he argued, just as likely subjugate it. By contrast, a national militia would make the state powerful and stable, and military service would make its citizens public spirited and self-reliant. Jefferson believed that a national citizen militia like the one described by Machiavelli might have prevented the British from burning the Capitol in 1814. But Congress had rejected compulsory military ser vice. The third president lamented that “[i]n the beginning of our government we were willing to introduce the least coercion possible on the will of the citizen. Hence a system of military duty was established too indulgent to his indolence.”69 Instead, the nation had come to rely primarily for its defense—and sometimes for internal security—on citizen soldiers serving in state militias, called into national ser vice on occasion, and augmented from time to time by a small professional military force. This was the model embraced by the delegates to the Philadelphia Convention, reflecting long experience with colonial militias, a melding of national and local interests, powers divided among the federal branches, and civilian control of military institutions. Despite Jefferson’s misgivings, it was a model well suited to the practical needs of a new nation based on republican values. At the Philadelphia Convention, all agreed that the militias would continue to occupy a prominent place among the nation’s military forces. But how prominent? Just how would they be used? The First Continental Congress had rejected a proposal by Richard Henry Lee of Virginia to form a national militia. And there was no appetite for centralizing control of the local militias in the national government, as Parliament had done after the Reformation. The idea of the citizen soldier, defending the local community he understood better than anyone else, still held powerful sway. Nevertheless, the Framers recognized the need for a military force that could defend the united states on occasion, or that could come to the aid of

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individual states if their militias were unable to suppress insurrections or domestic violence. Some kind of compromise was required. Like so many compromises, this one left no one entirely happy. Federalists—those who favored a strong central government—won approval of language that gives Congress the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”70 In other words, under this first Militia Clause the state militias may be called into national military ser vice, but only in specified emergencies. To ensure their readiness and to secure federal control when they are called up, a second Militia Clause directs Congress to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Ser vice of the United States.”71 The Anti-Federalists were left with the right to appoint militia officers and the responsibility for training militiamen, albeit “according to the discipline prescribed by Congress.” 72 They also won a concession from the Federalists that the forthcoming Bill of Rights would include a provision acknowledging that a “well regulated Militia [was] necessary to the security of a free State,” and guaranteeing “the right of the people to keep and bear Arms.”73 Responsibility for both external and internal security was thus to be shared by the national and state governments, although details of the arrangement were largely lacking. These would be worked out by early Congresses and by practical experience over time. Federal Responsibility for Security of the States

The Preamble to the Constitution declares that among its goals are to “insure domestic Tranquility” and “provide for the common defence.”74 This is an acknowledgment of federal responsibility for the security of the states and, through its open- ended terms, a recognition that the responsibility would be concurrently shared with the states. James Madison laid the groundwork for the convention delegates’ consideration of this issue in an April 1787 pamphlet, Vices of the Political System of the U. States. He pointed out that the Articles of Confederation lacked any “Guaranty to the States of their Constitutions & laws against internal violence,” and that on this point “the hands of the federal authority are tied.”75 Madison worried that without federal power to intervene, republican government in individual states might be jeopardized.

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Once the convention got under way, Governor Edmund Randolph of Virginia urged the adoption of a clause stating that the Union would guarantee a republican government in each state. His proposal did not, however, mention the use of military force or otherwise indicate how the guarantee would be carried out. During the debate, James Wilson of Pennsylvania insisted that the purpose of the clause was “merely to secure the States against dangerous commotions, insurrections, and rebellions.”76 Several other delegates joined the discussion. Luther Martin of Maryland preferred leaving it to the states to suppress their own insurrections, while John Rutledge of South Carolina found the clause unnecessary because the principle was implicit in the plan for the Union. A substitute by Wilson—“that a Republican (form of Governmt. shall) be guarantied to each State & that each State shall be protected agst. foreign & domestic violence”—was then approved and sent to the Committee of Detail.77 The Committee of Detail recast Wilson’s language into two separate clauses. The fi rst would have empowered Congress to put down a rebellion in a state following a request from that state’s legislature. Several delegates objected when Thomas Pinckney of South Carolina moved to strike the requirement of a state request, because Congress would then have been allowed to intervene on its own initiative. According to Madison’s notes, Elbridge Gerry of Massachusetts “was agst. letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Massts in the late insurrection, if the Genl. authority had intermeddled.”78 In the ensuing debate, no one seemed to be concerned that the measure would, like the Articles of Confederation, rely on a military response from the legislature, which could hardly be expected to act quickly or decisively in an emergency. This clause was eventually dropped. The second proposed guarantee clause provided that “[t]he United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence.”79 This time John Dickinson of Pennsylvania moved to strike the requirement of a state request for federal intervention, but his motion was defeated by eight states to three, as was a motion to substitute “insurrection” for “domestic violence,” by six states to five. No record was made of any discussion on this issue. Then the term “foreign” before “invasions” was struck as redundant, and the provision was

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further amended to permit a state request from either the executive or the legislature. The finished Constitution reflects this long process of compromise and refinement. Article IV, Section 4 now states: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and, on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” The fi rst part of this measure, commonly referred to as the Guarantee Clause, imposes an affirmative obligation on the federal government to step in if a state’s democratic institutions are threatened. This might happen, as Madison noted, if a minority within the state were “in an appeal to force . . . an overmatch for the majority.”80 It did in fact happen on several occasions, as we shall see, when competing factions within a state each claimed to represent a majority. In either case the legitimacy of a state government would be in doubt, so the federal government is bound to intervene without waiting for an invitation from the state. The second part of Article IV, Section 4, the Protection Clause, also obligates the federal government to come to the aid of a state without a request, but only in the event of an “invasion,” a development equivalent to war. By contrast, federal authorities must help protect a state against “domestic Violence,” but they must wait for an invitation from a governor or state legislature to do so. One fundamental point should be emphasized here: the Protection Clause in Article IV, Section 4 is the only constitutional provision that explicitly empowers the United States to respond to “domestic violence.” The definition of this phrase, and therefore the scope of the federal government’s obligation to respond to a state’s request for assistance, has been much debated. So also, because the phrase is not used elsewhere in the Constitution, the federal power to intervene in a state uninvited may be limited to other circumstances expressly described in the text, such as “invasion.” Finally, the military is nowhere mentioned in Article IV, Section 4. The United States might protect democratic institutions within a state simply by officially recognizing the legitimacy of a contested state government. Or it might fulfill its obligation to protect a state from invasion by diplomatic or other non-violent initiatives. But military force is not ruled out in either case, and common sense dictates that it might sometimes be needed.

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Federal Power to Call Out State Militias or to Intervene Uninvited

At the convention some delegates resisted giving the federal government any authority to intervene in the states, except in the limited circumstances described in the Guarantee and Protection Clauses.81 They recognized, however, that the central government would need to be able to enforce federal laws inside the states, possibly using military force. They also acknowledged that without a large standing army, something almost all the delegates opposed, the federal government might be unable to defend the nation from foreign threats or carry out its obligations to defend individual states. Help would have to come from state militias, just as it had early in the Revolutionary War. But experience under the Articles of Confederation had shown that states might not voluntarily furnish that help when it was needed. The Committee of Detail proposed giving Congress the power to “call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions.”82 A special committee appointed to consider various militia issues then recommended deletion of the reference to treaties. The Convention delegates approved the amended proposal without any record of debate or dissent. As it now appears in the Constitution this first of two Militia Clauses authorizes Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”83 The language of this provision is remarkable not only for its economy, but also for the enormous trust it places in Congress to work out details for the new nation’s internal security. The text does not tell us under what exact circumstances the Framers meant to authorize the federalization of state military forces. The meanings of “insurrection” and “invasion” are clear enough. But what, precisely, does it mean to “execute the Laws”? And which laws? It should not take a company of Marines to arrest and interrogate a bank robber or a tax cheat. And how, if at all, are the provisions for law enforcement and suppression of insurrections related? Fortunately, even without a contemporaneous record of the Framers’ discussion of this clause, we can form an educated guess about the meaning of the words they used from the historical context and the debates over ratification. The delegates knew that under the English Riot Act of 1714 citizens could be part of a posse comitatus to assist civilian law enforcement officials in

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putting down “unlawful, riotous, and tumultuous” assemblies.84 They also were aware that, under the Mansfield Doctrine, articulated in 1781, the posse might include soldiers subject to civilian control. In the colonies, the Framers knew firsthand that locally controlled militias had fought Native Americans, controlled civil disorder, and served on and off the battlefield in the Revolutionary War, and that only months earlier they had put down Shays’ Rebellion. Except on the battlefield, these citizen soldiers served under civilian control. Local civilian officials decided when local conditions required their ser vice. And the militias were called out to help enforce the laws only when civilian law enforcement personnel were unable to do so without their assistance. THE RATIFICATION DEBATES

Once the Framers were done with their work, it had to be explained and defended in ratifying conventions in each of the states. The debates surrounding ratification were spirited, to put it mildly. But they offer us additional insights into contemporary thinking about the meaning of ambiguous language in the text. At least ten of the Federalist papers— essays by Hamilton, Madison, and Jay in support of ratification—were devoted in whole or in part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime. Others dealt with the correlative powers of state and federal governments to deploy militia forces in emergencies. James Madison generally favored a strong central government. He pointed out that the Union was “essential to the security of the people of America against foreign danger; . . . essential to their security against contentions and wars among the different States; . . . essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain.”85 Concerning external threats, Madison insisted that while he was “no friend to naval or land armaments in time of peace,” a national military force was needed to discourage “attacks and insults” from abroad. “The best way to avoid danger, is to be in a capacity to withstand it.”86 Regarding internal security, he suggested, federal authority was needed to call forth the state militias when civilian power was insufficient. Taking a

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somewhat different stand from the one he expressed at the convention, Madison argued that federal power could be used to help enforce the law even in the absence of an insurrection: “There are cases in which the execution of the laws may require the operation of militia, which cannot be said to be an invasion or insurrection. [A] riot [is] not within the legal defi nition of insurrection. . . . [Yet] the civil power might not be sufficient to quell.”87 So also, he noted, that when the republican government of a state is threatened, with “violent factions, flying to arms, and tearing a State to pieces.”88 The practical criterion for federal intervention, in other words, was lawlessness and disorder that exceeded the capacity of civilian law enforcement personnel and state militia to control it. Moreover, Madison observed, presciently, actual federal intervention might prove unnecessary: “The existence of a right to interpose, will generally prevent the necessity of exerting it.”89 Alexander Hamilton’s views complemented those of Madison. Hamilton pointed out in another Federalist essay that when disobedience and disorder in a state violated federal law, state law enforcement officials could be assisted by a posse comitatus that included soldiers serving as civilians under the command of a federal marshal. There might thus be no need to deploy federal troops under centralized federal command.90 In the Virginia convention, Patrick Henry argued against approval of the Constitution. He complained that it deprived the states of control over their own militias. He also warned that requiring the states to apply first to Congress for aid in suppressing domestic violence before calling on their own militias might prove “fatal.”91 But the constitutional text contains no such requirement. Madison pointed out that the power to deploy militia forces is divided between state and federal governments: “The state governments are to govern the militia when not called forth for general national purposes; and Congress is to govern such part only as may be in the actual ser vice of the Union. Nothing can be more certain and positive than this.”92 Other Anti-Federalists worried that federal power to intervene was still too great—that states might be not so much protected as endangered by the national government. They indicated that provisions in state constitutions for militias and the right to bear arms were meant to check any excesses of a standing army. Those provisions would be meaningless if federal authorities could assume control of the militias. Edmund Pendleton of Virginia responded that federal power to call out the militias is limited to those circumstances spelled out in the first Militia Clause: “to execute the Laws of

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the Union, suppress Insurrections and repel Invasions.” And while the federal government is charged in Article IV with guaranteeing to each state a republican form of government and protecting it against invasion, the same article contains “a restraint on the general government not to interpose” in cases of domestic violence “without the application of the state itself.”93 The views expressed in the ratification debates are not authoritative, or even entirely consistent. But arguments of those most closely involved in the drafting and approval of the constitutional text, like James Madison, provide important clues about the Framers’ intent. THE BILL OF RIGHTS

Several delegates to the Philadelphia Convention were deeply unhappy that the fi nished document lacked an enumeration of individual liberties and states’ rights. Many members of state conventions voted for ratification with the understanding that a bill of rights would soon follow. Of special relevance here, some states immediately recommended changes to the new Constitution, as well as legislation, that addressed the still widely held fear of federal troops in the states. In 1789, James Madison submitted a proposal to the fi rst United States Congress, part of which, as amended, was added to the Constitution two years later as the Bill of Rights. Several of its provisions preserve some state control over the militias or guard against an overzealous federal military power. The Second Amendment declares that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Third Amendment states that “[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” The Fifth Amendment adds that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” It forbids prosecution for a capital or “otherwise infamous crime” without presentment or grand jury indictment, except “in cases arising in the land or naval forces, or in the Militia, when in actual ser vice in time of War or public danger.” Remarkably, given the attention it received in the Constitutional Convention, none of the changes proposed by Madison or incorporated into the Bill of Rights imposes specific limitations on the establishment or maintenance of a standing army.

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Another important constraint on military power, the right to petition for a writ of habeas corpus, is set forth in Article I, Section 9 of the Constitution itself. CONGRESS GETS INTO THE ACT

With ratification won, much work remained to elaborate and refine the Constitution’s plan for domestic security.94 The Framers left it to Congress to “provide for” calling out the state militias to enforce federal laws, suppress insurrections, and repel invasions. A number of practical questions arose almost immediately. What precise circumstances would justify calling state militias into federal ser vice? When could federal or federalized state troops be sent into states? Could the president, as commander in chief, order either of these things? The First Congress began to answer these questions as early as 1789, when it authorized the president to call out state militias to protect the frontier against “hostile incursions of the Indians.”95 It also created positions for federal officials—judges and marshals—who might work with military forces to enforce federal laws. In 1790 Congress took up legislation to require the creation of state militias meeting national standards. Eligible males would have been divided into age groups, with the youngest intensely trained to serve as the principal force for mobilization in emergencies (akin to the colonial Minutemen). Arms and equipment would come from federal stores, and militiamen would receive federal pay while in training. As finally enacted into law, the Militia Act of 179296 included a number of compromises that weakened the federal hand. No provision was made for a special emergency force. The senior militia officer in each state was to be an adjutant general appointed by the governor. Most “free able- bodied white” men between the ages of 18 and 45 were required to serve, and to buy their own equipment and arms. They were also subject to national disciplinary rules. There were no national training standards, however. And while the militia were obligated to muster at least once a year, even if their members had no arms or equipment, the act provided no penalties for noncompliance. At about the same time, Congress passed the Calling Forth Act of 1792.97 This mea sure was meant to implement the constitutional mandate for

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Congress to “provide for calling forth the Militia.” It authorized the president to call out state militias “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe . . . to repel such invasion.” In case of “insurrection in any state,” the president was given the power to federalize the militias of another state or states, in such numbers “as he may judge sufficient” to suppress the insurrection, but only “on application of the legislature” of the state in distress, “or of the executive (when the legislature cannot be convened).” There was no opposition to this part of the statute. A federal military response to an invasion was seen as a shared responsibility of all the states. And federal intervention within a state required an invitation. Moreover, the term “insurrection” seemed to reflect an understanding that military forces would not be introduced for lesser disturbances. Another part of the 1792 act, however, was very controversial. It permitted the president to deploy the militia without a request from a state whenever “the laws of the United States shall be opposed, or the execution thereof obstructed . . . by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the [federal] marshals.”98 The statutory language made it clear that troops would be called out only when civilian authorities were overwhelmed. The House committee that reported out the legislation apparently believed that troops would be used for law enforcement only as part of a posse comitatus—trained and equipped as military, but acting as civilians under civilian control and civil laws. But the statute includes no such limitation. Opponents were somewhat mollified by the addition of language stating that a federal judge had to certify the need for military force. The new law also specified that the militia could be called into federal ser vice only after the president issued a proclamation ordering “insurgents to disperse and retire peaceably to their respective homes.”99 And the militia of one state could not be called up for deployment in another state if Congress was in session.100 The act was subject to sunset in two years. Notably, no provision was made for the use of regular army or navy forces. The 1792 Calling Forth Act was replaced in 1795 by nearly identical legislation, this time with no sunset provision.101 The new law eliminated the requirements of a judicial certificate and a prior presidential proclamation to disperse, however, as well as the limit on deployments of militia from multiple states. Its terms governed federal employment of the militia until the Civil War forced major revisions.

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Then in 1807 Congress passed another measure permitting regular military forces to be used in circumstances where deployment of the state militias was authorized by the 1795 Calling Forth Act.102 This measure enabled presidents to deploy professional soldiers when there was reason to doubt that local militias would overcome local biases in ser vice of a national objective. Together, the two statutes (along with others added later) came to be called the Insurrection Act. Meanwhile, individual states were busy enacting laws to regulate militias formed during the colonial period. In principle, they continued a nearly universal military obligation for white male citizens aged 18 to 45. In practice, however, individuals could send substitutes or pay fi nes in lieu of attending drills. No active duty ser vice was required. State militiamen could not be compelled to serve outside their home states, and ser vice was required only for a fi xed period. Most states did not provide arms for their militiamen, and only par ticular volunteer forces supported by donations and small government grants were well equipped. Individual militia units continued to reinforce regular paid soldiers and volunteers on occasion, but they were typically slow to assemble and more expensive to deploy than either. When they were involved in law enforcement, it was usually as members of a posse comitatus—that is, as citizens, not as members of the military. Even after Congress began providing financial incentives for militia reforms in 1798, the states still mostly failed to field reliable, effective local fighting forces. Thus, the home-grown military forces that were supposed to ensure the nation’s internal security were often as not poorly organized and ill-prepared to play that role.

The Founding Fathers were idealists. They were also intensely practical people. They had emerged from the fires of revolution with a sense of perspective that we could hardly imagine today. They knew that an unpredictable future held threats that would require firm but adaptable responses. And they appreciated the risks of overreacting to those threats. Thus, the Framers of the Constitution established a foundation for a new nation based on representative democracy, security, and individual liberty. But it was only a foundation. A strong, enduring government structure would depend significantly on a willingness to balance these three ideals in practice, sometimes compromising one for the sake of the others.

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The broad plan for internal security sketched out by the Framers has generally stood the test of time, at least in part because of their commitment to constitutionalism—an agreement to be governed by a higher, written law, unchangeable by ordinary lawmaking, executive action, or judicial decision. As Hamilton predicted, law would provide the central coercive force. The organic law written by the Framers was wisely cast in general rather than specific terms, however, leaving the details to be worked out through the political process and practical experience. There were plenty of details to work out. Based on the vague criteria of “insurrection” and “domestic violence,” it was impossible to guess what kinds of civil disturbances might overwhelm civilian authorities and justify both the federalization of state militias and federal military intervention within the states. No one knew for certain who was authorized to order the deployment of federal forces, or when, or who could question that decision. It was far from clear just what constituted a “republican government.” Nor was it apparent which federal laws could be enforced using troops, or under what circumstances. The early Congresses began to answer these questions. But their efforts would, predictably, need considerable refinement based on accumulated experience. That experience, punctuated by legislative responses, is spelled out in the chapters that follow.

CHAPTER THREE

Soldiers as Peacekeepers, Soldiers as Cops

O

ne theme emerges clearly from the fragmentary record of the Philadelphia Convention and the ratification debates. The Framers worried that a standing army might be misused by civilian offi cials, or that it might even become strong enough to seize control of the government. They recognized, however, that civilian authorities might sometimes be unable to control widespread violence or enforce the law without help from the military. They sought to reduce the attendant risks by separating civilian and military functions— subordinating military to civilian authority, and relying mainly on civilian officials for law enforcement. They also intended to separate state from federal powers to call out troops. The difficulty then, as now, lay in clearly describing this division of responsibilities, as well as in adopting procedures to ensure that the division was maintained. For example, the Constitution indicates that Congress may “provide for calling forth the Militia to . . . suppress Insurrections and repel Invasions.” It also includes a guarantee of a “Republican Form of Government” in each state, and it promises that the federal government will protect each state from invasion and from “domestic Violence” (the latter at the request of a governor or legislature). The Framers expected states to meet lesser challenges with their own law enforcement resources, however, supplemented when necessary by state militias (today’s National Guard)

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operating under state control. But they neglected to distinguish between greater and lesser challenges. Delegates to the Philadelphia Convention also knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when. While the constitutional text allows Congress to “provide for calling forth the Militia to execute the Laws of the Union,” no qualifying language sets limits on these call-ups. Contemporaneous records suggest that the Framers intended the deployment of troops for law enforcement only when civilian personnel were unable or unwilling to enforce the laws themselves, and then only in the worst of times, when a state or the nation faced an especially grave threat. Such general constraints, however, have provided little useful guidance in practice. In this chapter we focus on two separate functions performed by troops over the years—peacekeeping and law enforcement—both related to the commitment in the Constitution’s preamble to “insure domestic Tranquility.”1 For historical and practical reasons these tasks were regarded differently by the Framers and early members of Congress. As a consequence, perfor mance of these functions often relies on (or is limited by) very different legal authorities. Still, the functions often overlap. The distinctions have often been ignored, and the controlling legal principles have sometimes been confused. This blurring of functions is, in fact, an important part of the story. The Framers may be forgiven if they failed to fi nd language adequate to reflect their intentions fully. It is possible, of course, that they simply could not foresee the practical difficulties that would prompt future leaders to call on the military for help in governing. Or, recognizing their own inability to predict the future, they may have deliberately left a somewhat ambiguous prescription to be refined later in the political process or in response to immediate crises of uncertain dimensions. We do know that in some instances they chose general language to paper over political differences and arrive at compromises. Whatever the reason, the organic law has furnished an incomplete guide to the military’s domestic role. In the years following the Philadelphia Convention, members of Congress expressed the same fears of federal military involvement in law enforcement or in the affairs of the states. Yet they approved legislation, always in response to new, immediate threats, that largely preserved the ambiguities in the Constitution. In practice, as well, the assignment of responsibilities envisioned by the Framers—between federal and state military forces, between military and

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civilian officials, and between peacekeeping and law enforcement—was often blurred. Regular federal troops or federalized state militias, or both, were sometimes called out to perform the same tasks. At times, federal forces were employed when state militias could have done the job, or when outside help was not wanted. Federal military intervention was sometimes ordered by the president, and at other times by subordinates or even by state or local officials. Occasionally, command of federal troops was handed over to state officials. The mission of those troops often involved both peacekeeping and law enforcement, when law breaking evolved into rioting that could not be contained by state or local officials. The basic legal architecture for military involvement in domestic affairs was sketched out during the first century after the Revolution. While federalized state militias were called out a number of times to keep the peace (the mere threat of their use often sufficed), elected leaders began to rely more often on federal troops for help in governing. When the battle over slavery stretched the federal system to the breaking point in the Civil War and then during Reconstruction, the deployment of soldiers sometimes far exceeded what the Framers or members of the first Congresses had in mind. Later, lawlessness and violence sparked by industrial expansion, labor disputes, and racial discrimination cast military forces in new domestic roles. As the nation moved into the modern era, troops were sometimes deployed in civil disturbances with a distinctly political purpose. In the middle of the twentieth century, they helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters. The military’s involvement in peacekeeping and law enforcement from revolutionary times to the present day, traced briefly here, is a fascinating story of need and mistrust, ser vice and abuse. AFTER THE PHILADELPHIA CONVENTION

The ink was hardly dry on the new Constitution before its provisions began to be applied to the hard work of governing. In the seventy-four years leading up to the attack on Fort Sumter in April 1861, presidents from Washington to Buchanan resorted to military force a number of times to keep the peace and enforce the law at home. Their actions were authorized in most instances

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by legislation designed to provide needed flexibility in an increasingly complex society. In general, both the new laws and their implementation reflected the Framers’ intent that troops be deployed in the United States only in the most extraordinary circumstances, when the government itself and the rule of law were threatened. Each of these developments helped to establish a template for future domestic uses of the military, filling in some of the blanks left by ambiguous language in the constitutional text. The Whiskey Rebellion: Enforcing Federal Law While Keeping the Peace

In the Calling Forth Act of 1792, Congress authorized the president to call out the state militia in cases of invasion, insurrection, or obstruction of the federal laws, and to place those state forces under federal command.2 The first application of the law came in 1794, in what came to be called the Whiskey Rebellion. While the unrest involved sporadic violence, it hardly deserved to be called a “rebellion.” Nevertheless, it provided the first precedent for the use of troops to enforce the law. The manufacture (and consumption) of distilled spirits was big business in western Pennsylvania at the end of the eighteenth century. So in 1791 when Congress, struggling to shore up federal finances, approved an excise tax on liquors and the stills that produced them, the law was extremely unpopular there. Within months, opposition to the tax turned violent, when a federal tax collector was tarred and feathered by protestors. Over the next year, open resistance to the tax spread to the Carolinas. In September 1792, President Washington issued a proclamation calling on the protestors to “refrain and desist,” and directing courts and their officers to assist in collecting the tax. Although the new president was determined to enforce the federal law, he wrote to his treasury secretary, Alexander Hamilton, that the use of federal troops should be “avoided if it be possible to effect order without their aid . . . . Yet, if no other means will effectually answer, and the Constitution and the Laws will authorize these they must be used.”3 Washington’s proclamation may have quieted things down for a while. But in the summer of 1794, when a U.S. marshal attempted to serve writs against distillers in Allegheny County for violating the excise law, he was chased off by a mob of thirty or forty men. In the ensuing violence, at least two people were killed and several were wounded. A short time later, a force

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of 7,000–15,000 protestors marched on Pittsburgh, although they did not, as feared, try to seize weapons stored at nearby Fort Fayette. Meanwhile, collection of the tax was rendered impossible. In this volatile atmosphere, Washington laid the groundwork for invoking the 1792 Calling Forth Act by obtaining a certificate from Associate Justice James Wilson of the Supreme Court, stating that execution of the federal law was opposed by “combinations too powerful to be suppressed by the ordinary course of judicial proceedings.” After seeking, unsuccessfully, to persuade Pennsylvania officials to call up their own militia to deal with the unrest, the president issued the required proclamation ordering the “insurgents” to disperse and halt their “treasonable acts.”4 Then, facing opposition to the deployment of troops from his secretary of state and from the governor of Pennsylvania (who argued that the 1792 law permitted calling forth troops only to suppress rioters, not to support civilian law enforcement), Washington called up nearly 13,000 militiamen from four states, including Pennsylvania, but he ordered them held in abeyance while federal commissioners made a final effort to convince the protestors to stand down. That effort failed. The president then issued a second proclamation calling for compliance with the law, warning that a force “adequate to the exigency, is already in motion to the scene of disaffection.”5 In late October 1794, some 11,000 militiamen moved west into insurgent territory, with instructions to capture the leaders and deliver them to civil authorities for prosecution. Others would be “disarmed, admonished, and sent home.”6 The purpose of this military action was thus clearly to support, not displace, civil authority. The size and seriousness of the military operation caused the insurgents to disband, and the Whiskey Rebellion quickly ended without further bloodshed. Many insurgents fled westward, others were rounded up by troops and then granted amnesty, and a handful were imprisoned but subsequently released. With the rule of law restored, collection of the hated federal excise tax resumed. To ensure that order was preserved, Congress approved the stationing of 2,500 men in the western counties of Pennsylvania for a time. Was such a massive military force really needed to end the Whiskey Rebellion? On the basis of the information available to him, Washington thought it was. According to one observer, the president deserved high praise for his “patience over a considerable period of law violation, his attempt at conciliation and peaceful settlement, his efforts to enlist the cooperation of

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state officials, and his especial concern for the protection of the civil rights of the citizenry.”7 In other ways, however, the federal military response created a problematic precedent. The disturbance was hardly a “rebellion,” and it was certainly not an insurrection against the government as that term was understood by either the Framers or the drafters of the 1792 Calling Forth Act. The Pennsylvania governor characterized the insurgents as “rioters,” and he refused to invite federal intervention after concluding that state personnel could enforce the laws. On the other hand, in an atmosphere of widespread violence, at least some federal laws could not be enforced, the federal court in the district was forced to close, and insurgents attacked and detained the federal marshal and the revenue collector. Under the 1792 law, militia could be called out without a state request if “the laws of the United States [were] opposed, or the execution thereof obstructed . . . by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the [federal] marshals.”8 These criteria were clearly met. The Whiskey Rebellion illustrates the uneasy overlap of law enforcement and peacekeeping using troops, as well as the potential for conflict between federal and state authorities. It also hints at the importance of political considerations at all levels of government in resolving such crises. President Washington’s actions were, like the 1792 law that authorized them, controversial. Future domestic uses of troops would prove no less so. The Aaron Burr Affair: A Growing Role for the Regular Army

Military forces were soon deployed again on other law enforcement missions, but never on a scale like that of the Whiskey Rebellion. Nor were the justifications for later deployments nearly so carefully spelled out. In 1799, for example, angry farmers in eastern Pennsylvania waylaid two tax assessors seeking to impose a federal levy to finance the Quasi-War with France, and an armed mob forced the release of some imprisoned tax protestors. Without consulting state officials, President Adams quickly issued a cease- and- desist proclamation under the 1795 Calling Forth Act, along with a warning that he was determined to use military force. Although the threat alone was enough to quiet any further overt resistance, a body of some 1,000 federalized militia was ordered to take protestors into custody and turn them over to civilian authorities. Unfortunately, these troops arrested

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a number of innocents, mistreated some prisoners, and generally terrorized the local population. Three protestors were convicted of treason but later pardoned. Again, in 1806–1807 President Jefferson approved the use of regular troops or militia to capture Aaron Burr, Jefferson’s fi rst vice president. Burr and coconspirators allegedly had plans to attack Spanish territory, in violation of the 1794 Neutrality Act, which forbade mounting such an enterprise from American soil against a state with which we were at peace.9 (The Neutrality Act expressly permitted the use of regular military personnel for its enforcement, while the 1795 Calling Forth Act provided only for the deployment of federalized state militia.) Burr was also accused of plotting to separate western lands from the Union. He was charged with treason, and some of his collaborators were taken into custody by state officials in Ohio. Burr himself surrendered to civil authorities in Mississippi Territory, then escaped. He was later recaptured by federal soldiers, but by then his enterprise had been rendered harmless. If Burr was guilty of the charges against him, and if his purported plans had succeeded, he might have posed a very significant threat to national security, perhaps justifying deployment of the military to stop him. But civilian authorities in several states were able to enforce the law and thwart any such plans. In the end, all of those charged, including Burr, were eventually acquitted or were released on grounds that the local courts had no jurisdiction to try them. The Burr affair had one important lasting impact. President Jefferson, determined to remedy his lack of clear authority to use regular army troops in response to domestic disorders, succeeded in obtaining passage of the 1807 legislation that authorized the president to use “such part of the land or naval force of the United States, as shall be judged necessary,” to suppress insurrections or enforce the laws whenever state militia might be federalized for the same purpose.10 The new law gave the president a much stronger hand, although it ignored the limitation in the Constitution’s Calling Forth Clause that permitted Congress to provide for calling forth the militia, not regular military forces. And while the 1807 statute expanded the military resources available to the president for domestic deployment, it did nothing to clarify the circumstances in which they could be deployed. We will see that the expanded authority to commit regular troops has been used by presidents many times, often in controversial circumstances.

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The War of 1812: Strengthening the President’s Hand

With few exceptions, military forces were not used domestically to preserve the peace during the first sixty years of the nineteenth century, although they were employed in law enforcement a number of times. But the exceptions were important. Early in the War of 1812, President Madison invoked the 1795 Calling Forth Act to direct state governors to furnish militia forces to fight the British. When militiamen in Connecticut and Massachusetts were ordered to defend the frontiers, the Federalist governors objected, claiming that it was their role alone to decide whether an emergency justified calling up the militia. Massachusetts Governor Caleb Strong sought an opinion from the state supreme court, which agreed that the determination of an emergency under the Calling Forth Act was “vested in the commanders-in- chief of the militia of the several states.”11 The governor of New York, however, ordered members of his state’s militia to report for duty. When one Jacob E. Mott refused to do so, he was court-martialed, convicted, and fined, and when he was unable to pay the fine, imprisoned. The legal issue of authority to call out the state militia was put to rest when Mott brought suit in a civil court to recover goods he said were improperly seized to satisfy his fine, and his suit eventually made its way to the U.S. Supreme Court.12 In Martin v. Mott, he asserted that the president exceeded his powers under the Calling Forth Act, and that the New York governor therefore could not force him into ser vice with the militia. Responding to Mott’s claim that the statutory prerequisite of invasion or “imminent danger of invasion from any foreign nation” did not exist at the time of his call-up, the Court declared that “the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil.”13 More important for this and future cases, the Court then concluded, “We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object

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contemplated by the act of Congress.”14 In other words, courts may not second-guess the president in deciding when to call forth the militia. The Court understood the risks of entrusting the president with such broad discretion, concluding, optimistically, “It is no answer, that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.”15 The Court’s conclusion was based in part on the assumption that, sooner or later, accountability would be available through the means spelled out in the Constitution— electoral defeat or impeachment of the president. The Court neglected to note, however, that because information about a perceived crisis or about the process for deciding to deploy troops might never be shared with the public or with Congress, we might be forced to rely instead on the president’s “public virtue” and “honest devotion to the public interests.” As events would later demonstrate, that reliance has sometimes been misplaced.

These first several decades after the Philadelphia Convention are important for our purposes because civic leaders, interpreting the commands of the Constitution, adopted basic ground rules for the domestic use of troops. The decisions they made are especially meaningful not only because of their proximity in time to the Convention, but also because many of those making the decisions were Framers, who were in the best position to know what was meant by the Constitution’s sometimes cryptic language. As the new nation struggled to its feet, the first Congresses enacted laws to “provide for” calling forth and federalizing the state militias to stop invasions, suppress insurrections, and enforce federal laws. It also authorized the president to employ regular federal troops for the same purposes. Troops were actually called out on several occasions when civilian authorities were unable to cope, and the Supreme Court offered the first of many deferential

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opinions resolving doubts about the locus of emergency powers by finding at least some of them in the president. Yet many questions remained about criteria for deployment of military forces, about authority and accountability for such deployments, and about the balance between state and federal powers. Some of these questions would be answered in the years leading up to the Civil War.

BETWEEN WARS Growing Pains: Battling Racial and Labor Violence

Between the two most recent wars fought on American soil, rioting in the cities was sparked by protests for and against slavery, against Mormons, and against banks, as well as by labor disputes. Appeals for federal military assistance were usually rejected, and state and local authorities successfully addressed the unrest. Outside the cities, however, federal troops were deployed several times to restore or keep the peace, although in most instances they served as individual members of a posse comitatus operating under the command of a civilian federal marshal. Equally important, large-scale civil unrest was occasionally averted merely by the threat of federal military intervention. In August 1831, a slave named Nat Turner, inspired by what he interpreted as a vision from God, went on a rampage in southern Virginia to free other slaves and kill their owners. He and about 60 others used knives and axes to massacre 57 white men, women, and children. Nat Turner’s Rebellion, as it came to be called, was almost immediately quelled by a large state militia force, and most of the rebellious blacks were quickly captured, tried, and executed. But in the aftermath militiamen and angry white civilians killed at least 100 other blacks. Federal soldiers and marines were sent to the scene by a local commander at the request of the mayor of Norfolk, with instructions to consult with civil authorities but “be governed . . . according to the circumstances.” The president was not consulted in advance, and the procedures set out in the 1795 Calling Forth Act were not followed. In any event, the federal forces arrived too late to affect the outcome, although their deployment elsewhere in the following weeks may have deterred wider unrest.

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Three years later, in 1834, a violent labor dispute broke out between rival groups of Irish immigrant workers building the C&O Canal. Although Maryland militiamen were able to stop the rioting, the state legislature appealed to President Andrew Jackson to send in federal troops. This time the president ordered the deployment of two companies of regulars, although he failed to issue the cease- and- desist proclamation required by the Calling Forth Act. Jackson’s adjutant general then directed these forces to “receive the instructions of the civil authority, and aid that authority in the execution of the law.”16 Once again, the violence ended before the federal troops arrived, but their continued presence probably helped preserve the peace for a time. On the Edge: Guarding the Borders, Protecting Neutrality

Early in the nineteenth century, Thomas Jefferson used troops to help enforce embargo legislation designed to cut off all international commercial trade. There never was any “insurrection” or “combination too powerful to be suppressed,” however, only persistent smuggling of goods back and forth across the Canadian border. When a call-up of Vermont militia failed to produce results, a contingent of regular military forces, some armed with artillery, was dispatched to Vermont and along the northern border of New York. One firefight in 1808 on the edge of Lake Champlain resulted in three deaths and several injuries. The following year Congress passed a new measure specifically authorizing the president or anyone he designated to use “the land and naval forces or . . . the militia” to enforce the embargo.17 Many bridled at such a broad handover of power to the executive, but the authority was never fully exercised, and the embargo law was soon repealed. When a rebellion broke out against British authority in Canada in 1837, many Americans calling themselves “Patriots” organized to assist the rebels. But efforts to invade Canada from Michigan, New York, and Vermont plainly violated the Neutrality Act of 1818.18 State authorities proved incapable of halting further attacks across the northern border. Matters came to a head in 1837, when British seamen crossed the Niagara River to attack an American vessel, the Caroline, which had been used to ferry supplies to the rebels, then set it ablaze and sent it over the falls. Invoking the Calling Forth Act of 1795, President Van Buren instructed the governors of the bordering states

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to call up their militia to defend the frontier. While he expressed doubt that he was authorized to use those forces to halt further incursions into Canada, federalized state militia and regulars nevertheless engaged the Patriots in a series of skirmishes, largely putting a stop to any more cross-border attacks. Dorr’s Rebellion: Choosing between Republican Governments

In 1838, a bitterly contested election in Pennsylvania left the lawful control of that state’s government in doubt. When the governor asked President Martin Van Buren to send federal troops, citing the Constitution’s commitment to protect the states against “domestic Violence,” the president refused, his secretary of war characterizing the dispute in that state as purely political. Van Buren’s reluctance to intervene created a precedent for the response to a similar crisis four years later. The 1842 Dorr Rebellion arose from a conflict within Rhode Island, which at that time had not yet adopted its own constitution and was still governed by the terms of a charter from the king of England. Complaining that the charter permitted only those owning property of a certain value to vote, and that representation in the general assembly was inequitable, a large group of citizens, perhaps a majority, adopted a constitution, elected one Thomas W. Dorr as governor, appointed other new state officers and judges, and fielded an armed force bent on seizing the state arsenal in Providence. The governor of the established charter government appealed to President John Tyler to send in federal troops to prevent domestic violence. On four separate occasions Tyler refused to intervene. He maintained that he was not empowered to anticipate an insurrection by deploying a military force. Finally, when armed confl ict seemed imminent and unavoidable, Tyler sent his secretary of war to Rhode Island with authority to issue a cease-anddesist proclamation, federalize the militias of Massachusetts and Connecticut if needed, and mobilize regular army troops in the vicinity to end the insurrection. Some say the mere threat of federal intervention deterred putative Governor Dorr and his followers. Whatever the reason, Dorr was only able to organize a small armed band, which scattered when confronted by a much larger state militia force deployed by the charter governor. A Dorr partisan named Martin Luther sued for trespass when charter government militiamen entered his home to arrest him during the uprising. In Luther v. Borden, the Supreme Court noted that Article IV of the Constitution

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requires the federal government to protect each state against domestic violence, when requested to do so by the legislature or the governor.19 In the view of the Court, the 1795 Calling Forth Act gave the president, not the courts, the power to fulfill this requirement, and to decide which of two competing groups constituted the lawful government of Rhode Island. When President Tyler issued instructions to call out the militia if they were needed, he made clear his intention to recognize the original charter government. Which group was the lawful government of Rhode Island was a political, not judicial, question, said the Court. The authority of the charter militia could not be questioned in a lawsuit, and the trespass case was dismissed. In the end, President Tyler’s threat to use federal military force in support of the charter government, coupled with his forbearance in carrying out that threat, probably played a key role in defusing the Dorr Rebellion and keeping the peace. But the Supreme Court decision associated with the uprising may have had a more lasting influence, for it included a remarkable dictum suggesting that if the president had deployed federal troops under the Calling Forth Act, the courts would have been powerless to question the arrest and detention of persons by those troops. It was a further indication that for both legal and practical reasons, courts would tend to defer strongly to the president in cases involving the domestic use of the military. Trouble on the Frontier

With the discovery of gold in California in 1849, San Francisco experienced a wave of lawlessness and corruption. Seeking to restore order, a group of wealthy citizens formed a vigilante committee to arrest, try, and in some cases execute persons determined to be criminals. Some 6,000 recruits, organized into military-like units, were overwhelmingly supported by the citizens of San Francisco. Eventually (and predictably), the vigilantes took over control of the city. In June of 1856, the governor of California declared that San Francisco was in a state of insurrection, and he ordered a state militia force led by Major General William Tecumseh Sherman to put it down. When the governor appealed urgently to President Franklin Pierce for federal weapons and ammunition to supply the militia, the president sought the advice of Attorney General Caleb Cushing. Cushing, finding no violations of either the U.S. Constitution or federal laws, advised that federal intervention could only be

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justified under the statutes of 1795 and  1807, and then only upon the request of the state legislature, or of the governor if the legislature could not be convened. Neither of these criteria had been satisfied. Nevertheless, Cushing suggested, arms (but not troops) might be supplied in “the most exigent emergency . . . for instance a case of indisputable bellum flagrans in a given state in which all the constitutional power of the state shall have been exerted in vain to prevent or suppress domestic war.”20 But according to Cushing the unrest in San Francisco was not such a case. Pierce accepted Cushing’s advice and rejected the governor’s plea for help. Shortly thereafter, the vigilantes captured and imprisoned a naval official and a state supreme court judge.  U.S. navy officers on the scene, acting without approval from Washington, then moved the sloop John Adams and two other vessels into the harbor and threatened the vigilantes with unspecified dire consequences if the prisoners were not released. The prisoners were turned loose, and the vigilantes soon disbanded without further federal action. Once again, events seem to be guided by the threat of federal military force, rather than its actual use, although in this instance the threat was not authorized by the president.21

The sometimes tumultuous period between wars is remarkable in part because federal military forces were used so sparingly to suppress domestic unrest and enforce the law. Yet when troops were called out, often without adhering to statutory guidelines, they were increasingly regular army or navy, rather than militiamen. At the same time, the mere threat of their intervention was often enough to restore order. The federal government exercised its authority under the Republican Government Clause for the first but not for the last time, with the Supreme Court once again finding broad discretion in the president to deploy and use troops.

UNDER GATHERING CLOUDS OF WAR The Nullification Crisis: First Signs of a Rebellion

In 1832–1833, the so- called Nullification Crisis showed once again that the mere threat of federal military force could influence the course of events.22

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Over a period of several years, Congress had adopted a series of protectionist federal tariffs on imported goods. In a move that foreshadowed the coming Civil War, South Carolina commercial interests hurt by the tariffs prompted the state legislature to pass its own law purporting to nullify those federal tariffs within the state. There was even talk of seceding from the Union. When defiant state officials assembled a military force and threatened to take over several federal installations, President Jackson saw a need to exhibit national strength and resolve. He proposed to send a large federal force into the state to help defend those installations and enforce the law. Congress passed a measure expressly authorizing the use of military force,23 but at the urging of Senator Henry Clay it also approved a reduction in the tariffs. The South Carolina legislature then relented, ending the crisis. The Trouble in Kansas: Testing Slavery at a Distance

A different kind of trouble arose two decades later in the middle of the country. In 1854, Congress passed the Kansas-Nebraska Act after a bitter debate pitting South against North. This legislation allowed settlers in the newly opened Kansas Territory to decide by popular vote whether to allow slavery when they applied for statehood. What ensued was a sometimes violent conflict between proslavery and abolitionist elements to seize control of the territorial government. The two competing factions rushed in to establish settlements in different parts of the territory. In 1855, large numbers of Missouri residents crossed the border to vote in an election that created a solidly proslavery but clearly fraudulent Kansas legislature. Then, in a development reminiscent of events in Rhode Island a decade earlier, so- called freestaters created their own separate territorial government, named their own officials, and adopted a constitution that forbade slavery. They also asked Congress for admission to statehood. Congress spent the first half of 1856 debating this question. When both the proslavery government and the freestaters formed militias, the territorial governor appealed to President Franklin Pierce for federal troops from Fort Leavenworth and Fort Riley to help keep the peace. In February 1856, Pierce issued a proclamation directing “all persons engaged in unlawful combinations against the constituted authority of the Territory of Kansas” to disperse. “Constituted authority” meant the proslavery government. Meanwhile, the secretary of war instructed the commanders of the

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two forts to supply troops upon the request of the governor “for the suppression of insurrectionary combinations or armed resistance to the execution of the law.”24 Amid scattered violence, small contingents of federal forces were dispatched to assist proslavery law enforcement officials and prevent further bloodshed. But they could not stop an attack on the freestate capital of Lawrence that destroyed a hotel and newspaper offices, and that almost ignited a civil war within Kansas. Several days later a group led by abolitionist John Brown massacred five proslavery settlers. As the unrest spread, larger numbers of federal troops were deployed with the approval of President Pierce. These forces, sometimes acting independently of civil authority, managed to break up armed bands of freestaters, but also to bar the entrance of additional proslavery forces from Missouri. Eventually they helped disband the competing militias, restoring relative calm to the territory. In the fall of 1856, federal forces in Kansas received new orders from the War Department to deploy troops “as a posse comitatus . . . for the preservation of the public peace and the due execution of the laws” upon the request of the governor.25 “In executing this delicate function of the military power of the United States, the responsibility will be on the governor of the territory, and you will implicitly obey his orders.”26 Even though the governor at the time was a federal appointee, this delegation of command authority to a local civilian official was remarkable. It was also notable for the breadth of uses to which federal troops might be put. The governor invoked his newfound power to stop fraudulent voting by proslavery nonresidents, deploying a large force of regulars, not militia, to guard polling places during October elections, and allowing control of the territorial legislature finally to be taken over by abolitionists. Three years later, in January 1861, Kansas was admitted to the Union as a free state, shortly before the beginning of the Civil War. Thus ended a tumultuous period on the nation’s frontier when, by and large, peace could not have been maintained without troops to support civil authorities. The Fugitive Slave Act of 1850: A Military Role in Domestic Politics

Congress passed the original Fugitive Slave Act in 1793 27 to implement the Constitution’s shameful directive that any escaped slave “shall be delivered up on Claim of the Party to whom such Ser vice or Labour may be due.”28 A

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half- century later the statute was amended, as part of the Compromise of 1850, to allow federal marshals to “call to their aid the bystanders, or posse comitatus of the proper county, when necessary . . . and all good citizens are . . . commanded to aid and assist in the prompt and efficient execution of this law, whenever their ser vices may be required.”29 President Millard Fillmore was determined to enforce the newly amended law, despite widespread opposition in the free states. One posse comitatus called to help enforce the law in Pennsylvania refused to assist the marshal in returning a runaway slave, and posses in Detroit, Philadelphia, and Syracuse met with only mixed success. A federal judge inquired directly of President Fillmore whether he could request the assistance of federal troops to fulfill the Fugitive Slave Act process. The president convened two cabinet meetings to address this question. Although his advisors agreed in principle that military forces could be so used, some felt that troops could serve in posses only in their capacity as citizens. Fillmore took the bolder position that, apart from any legislation, he had “an inherent executive power” to use military forces to help enforce the law. Blending these extremes, the cabinet concluded that local federal marshals could call for military support when a federal judge certified its necessity. (Recall that the 1792 Calling Forth Act’s requirement of a judicial certificate was eliminated when that act was readopted in 1795.) Not long after, a crisis arose when a group of blacks in Boston forcibly freed a fugitive slave named Shadrach Minkins and transported him to Canada. The secretary of war, following the Fillmore cabinet’s lead, instructed his commander in Boston to furnish troops for a posse comitatus upon the certificate of a judge. Minkins was not recaptured, however, and none who helped him escape were punished. Fillmore then asked the Senate to consider whether additional legislation was needed to allow a federal marshal to call out an organized military unit to serve as a posse comitatus under the command of its own officers, rather than under civilian leadership. The Senate Judiciary Committee answered no. There was no reason, it said, to “exempt[] the citizens who constitute the military and naval forces of the United States from [this] duty. Because men are soldiers or sailors, they cease not to be citizens; . . . and while acting under the call and direction of the civil authority, they may act with more efficiency, and without objection, in an organized form, under appropriate subordinate command.”30 If the posse comitatus failed to enforce the law, of course, the

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president could then invoke the 1795 and 1807 legislation to call out troops if circumstances warranted. Fillmore’s successor, Franklin Pierce, however, was aware that the use of entire military units as posses was not expressly authorized by legislation. He sought and obtained from Attorney General Caleb Cushing an opinion affirming that such use was nevertheless permissible. Echoing the Senate Judiciary Committee, Cushing proclaimed that militia and regular forces were simply able-bodied men who could, like others similarly situated, serve when called. Moreover, according to the attorney general, it did not matter “that they are organized as military bodies, under the immediate command of their own officers.”31 He concluded that a local federal marshal could call up such forces to help enforce the law, without consulting a judge or the president. His opinion came to be known as the Cushing Doctrine. As it turned out, military forces were not often used to enforce the Fugitive Slave Act. The most important instance involved a runaway slave named Anthony Burns. The Rendition of Anthony Burns

Anthony Burns was walking home from his job as a stock boy in a secondhand clothing store in Boston on May 24, 1854, when he was taken into custody by a federal marshal. Burns had been a slave laborer in Richmond, Virginia for Charles F. Suttle when he stowed away on a ship headed north to the relative security of a strong abolitionist community. Suttle learned of Burns’s whereabouts by intercepting a letter from Burns to his brother, then traveled to Boston and applied for a warrant for Burns’s arrest under the Fugitive Slave Act. Following his arrest, Burns was confined in the Boston courthouse, where he faced almost certain return. Local abolitionists organized a Faneuil Hall rally to try to rescue him. A crowd of 500 or more succeeded in smashing through one of the courthouse doors with a battering ram before city police arrived, but not before one person was killed. The mayor ordered a local militia artillery company engaged in monthly drills nearby to guard the courthouse. Its job avowedly was to keep the peace, however, not to assist in Burns’s rendition, which would have violated an 1843 Massachusetts law forbidding public officials to assist in returning fugitive slaves.

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The marshal who had arrested Burns then obtained a statement from the local federal judge that a posse comitatus was necessary to enforce the federal law. Armed with the judge’s certificate, the marshal asked for U.S. army troops from Fort Independence and marines from the Charlestown Navy Yard to help guard the courthouse. When the marshal telegraphed President Pierce to tell him that he had sought the support of federal troops, Pierce wired back: “Your conduct is approved. The law must be executed.”32 Over the next several days, the military guards— state and federal— were pelted with stones by protestors. Many in the gathering crowds were arrested. When Burns’s trial got under way, as many as 7,000 people filled the Court Square. Some 170 federal troops with loaded guns and fi xed bayonets joined a slightly smaller posse of armed citizens and local police to protect the courthouse. A cannon loaded with grapeshot was set up in the square. Defense counsel objected to the federal military presence, but the district attorney prevailed by noting that the posse had the legal blessing of the president. The judge allowed three full days of arguments for and against Burns’s rendition, from technical nitpicks to frontal attacks and defenses of the constitutionality of the Fugitive Slave Act. When the judge read his decision ordering Burns’s return to Virginia, however, it was apparent that he regarded his role as merely administrative, no different from extraditing any fugitive from justice once the identity of the fugitive was established. Federal and city officials anticipated the judge’s decision. A second contingent of marines arrived from Portsmouth, New Hampshire to join the posse, as well as an entire brigade of Massachusetts militia. A chartered steamer and a revenue cutter were anchored in Boston harbor, ready to take Burns away. At this point the mayor gave the commander of the Massachusetts militia and the Boston police chief “full discretionary power to sustain the laws of the land.”33 Police, assisted by militiamen, cleared crowds estimated at 50,000 along the route Burns would travel from the courthouse to the wharves. The procession was led by the National Boston Lancers, followed by a company of U.S. army infantry, then a marine platoon, then Burns, who was surrounded by a group of volunteer guards. Bringing up the rear were two more platoons of marines, the cannon that had been deployed in the square, yet another marine platoon, and finally two companies of mounted militia.

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Crowds along the route were hostile, but given the heavy military presence there was no attempt to rescue Burns. A few civilians were injured when militiamen used sabers and bayonets to push them back, and some onlookers hurled stones, bricks, cayenne pepper, and sulfuric acid at the passing troops. When someone stabbed a cavalry horse, a militia captain ordered his forces to open fire, but a superior officer quickly countermanded the order. Otherwise, Burns reached the harbor without serious incident. He was placed aboard the waiting steamer, then transferred to the revenue cutter, which immediately set sail for Virginia. When it was all over, the marshal discharged the 1,600 men, including 180 soldiers and marines, who constituted the “largest posse comitatus in the nation’s history.”34 Given the fervent abolitionist sentiment in Boston and the nonreturn law in Massachusetts, Anthony Burns probably could not have been returned to his slave master in Virginia without the assistance of a large military force. The huge commotion and the potential for greater violence apparently satisfied the Framers’ determination that troops be deployed only when civil authorities were overwhelmed. Nevertheless, the use of military personnel in this instance was clearly unlawful. Its plain purpose was enforcement of the Fugitive Slave Act. Congress had not authorized a federal marshal to call out troops to help enforce any federal law. And the Fugitive Slave Act made no allowance for its enforcement by soldiers. Equally important, because the 1795 and 1807 acts were not invoked, President Pierce avoided direct involvement in the decision to use federal military force, as well as political accountability for that very controversial decision.

Lessons learned during the three- quarters of a century after the Philadelphia Convention profoundly influenced thinking about the military’s domestic role in America. For the most part, troops were deployed only when civilian officials were incapable of suppressing civil unrest. But new questions arose about who had the authority to order troops out, and under what precise circumstances. Adding to the uncertainty, with rising tensions between North and South the use of troops became increasingly politicized. The lessons of this period were temporarily suspended with the onset of the Civil War.

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THE CIVIL WAR After Fort Sumter: Amending the Calling Forth Act

After the attack on Fort Sumter in the spring of 1861, Congress amended the 1795 Calling Forth Act.35 The amendment permitted the president to order the deployment of either state militias or regular armed forces whenever “by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President . . . to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State.”36 The so- called Lincoln Law was an extreme measure enacted in extraordinary times, designed to give the president needed flexibility, as war of unprecedented ferocity threatened to tear the nation apart. Still, by lumping “rebellion” together with “unlawful obstructions, combinations, and assemblages,” this provision violated the Framers’ understanding that federal troops would be used to address lesser forms of domestic violence only following a state request. In addition, the president had merely to find it “impracticable” to enforce the laws by ordinary processes before calling out troops, whereas earlier he had to find “combinations . . . too powerful to be suppressed” by ordinary law enforcement mechanisms. Thus, the new law undermined the basic precept that troops would be called out only after civilian institutions had failed. Despite these fundamental constitutional defects, the 1861 Lincoln Law survives largely unchanged today.37 The new law may have provided one legal justification for Lincoln’s conduct of the war. It also appeared to authorize the deployment of federal troops away from the battlefield in some instances. Yet when soldiers were sent north to deal with widespread domestic violence, it was never expressly invoked by the president. Lincoln seemed to have been concerned more with preserving the Union than with basic questions about legal sources and limits of authority. The Draft Riots: Peacekeeping and Policing Off the Battlefield

Most civil disturbances during the war were sparked initially by resistance to conscription laws passed to replenish the ranks of Union soldiers.38 These draft protests often evolved, however, into labor unrest or attacks on blacks,

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the former sometimes prompting the latter. Some were also motivated by antiwar sentiment or animus toward the Lincoln administration. Across the North, when federal officials went door-to- door to enroll potential draftees, and later conducted lotteries to select new troops, they were threatened or assaulted, and their records were destroyed. Federal troops had to be called in to protect the enrollers and suppress the violence when local police were unable to cope. Sometimes the mere deployment of soldiers was enough to deter further resistance. Occasionally, however, massive force was required. Troops were ordered into the field by state governors, by the War Department, or at times by federal military officers acting on their own, but never directly by the president, as the Lincoln Law required. The unrest reached its peak in New York City in the summer of 1863. Interference with the draft laws quickly turned to anarchy. Large mobs attacked draft officials and police, destroyed enrollment records, set fires, and looted businesses. They also murdered many blacks. More than a hundred rioters and soldiers were killed in pitched battles. A large force of New York militia, joined by federal soldiers and marines, armed with howitzers and acting on orders from Washington, finally put an end to the rioting after three terrifying days. The rioting in New York City prompted smaller outbreaks of violence in Boston and other cities in the northeast. But quick responses by police, augmented by state militia and federal troops, some equipped with cannon, kept bloodshed to a minimum and allowed the draft process to continue. In Philadelphia, Detroit, and elsewhere, a large federal military presence alone seemed to deter any unrest.

Once again, the distinction between the use of troops for peacekeeping and for law enforcement was unavoidably blurred. Ensuring compliance with the draft laws was critical to the success of the war. And when resistance to those laws erupted into widespread violence beyond the control of local officials, only military forces could keep the peace. Legalistic distinctions simply took a back seat to strategic concerns in fighting the war. The domestic use of troops in multiple roles was viewed as indispensable given the existential threat to the nation. President Lincoln never acted on a request from state officials to intervene with federal forces,

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and he never issued a cease-and- desist proclamation as required by the 1795 Calling Forth Act. Troops were deployed instead on the orders of subordinates or of state governors. It is not surprising that the rule of law receded in importance during this greatest of all wars at home. Yet the danger then, as now, lay in the potential for abuses, that is, in the use of military forces to perform functions not critical either to prosecution of the war or to keeping the peace. It lay also in the difficulty of restoring basic principles once the crisis had passed.

RECONSTRUCTION After Appomattox: New Roles for an Occupying Army

According to one authority, “the era of Reconstruction in the South was one during which the army played an abnormal role in civil government. Never before or after, within the continental boundaries of the United States, did it exercise police and judicial functions, oversee local governments, or deal with domestic violence on the scale it did in the eleven ex- Confederate states from 1865–1877.”39 Yet rules developed during this period for the domestic use of troops, both enabling and limiting such use, endure to this day. During Reconstruction, military government continued in each former Confederate state until it adopted a new “loyal and republican State government” and was readmitted to the Union. Throughout this period, however, embittered whites, fearing the destruction of what they regarded as the Southern way of life, engaged in a wide-ranging campaign of lawlessness and terror against emancipated slaves and their supporters. This campaign was led by the Ku Klux Klan and its allies. President Andrew Johnson was reluctant to intervene with federal troops to stop the violence. Congress sought to force his hand by passing the Civil Rights Act of 1866,40 which criminalized any state or local race-based discrimination. It also authorized federal judges and marshals, as well as the president, to call out “such part of the land or naval forces of the United States, or of the militia,” as needed to help enforce the law. The Freedman’s Bureau Act, enacted shortly thereafter, directed the president to “extend military protection and have military jurisdiction over all cases and questions concerning the free enjoyment of [former slaves’] immunities and rights” in the secessionist states.41

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The following year, 1867, Congress passed three Reconstruction Acts, extending military rule in each Southern state (except Tennessee, which had ratified the Fourteenth Amendment and been readmitted to the Union the previous year).42 The army was ordered to “protect all persons in their rights of person and property, [and] to suppress insurrection, disorder, and violence.”43 Specifically, it was charged to register voters, then oversee elections to frame and ratify a new constitution in each state. It was also empowered to remove and replace disloyal or obstructionist public officials in those states. President Johnson ignored these new statutory authorities, however, and relied instead on the 1854 opinion of Attorney General Cushing to authorize marshals or local law enforcement officials to deploy federal military personnel as part of a posse comitatus, but only in “rare cases of necessity.” 44 When they were deployed, Southern Democrats, who had applauded the Cushing Doctrine when it helped repatriate escaped slaves under the Fugitive Slave Act, now found army troops in their states enforcing unpopular laws made by Republican state governments in support of a Republican president. Military commanders in the South, short on troops and uncertain of their authority, and lacking direct instructions from their commander in chief, were able to help enforce the new laws and control racial violence in some areas, but not in others. In Norfolk, Virginia, for example, regular army soldiers and marines suppressed rioting by whites reportedly determined to “exterminate” the black community. In Memphis, rioters included many white policemen and firefighters. Together they murdered scores of blacks and burned many homes, schools, and churches. And in New Orleans, policemen and ex- Confederate soldiers murdered at least three dozen individuals, mostly blacks, who were meeting to amend the state’s constitution to allow universal suffrage. In each instance, federal troops intervened to stop the carnage. But they were called out by local mayors and military officers on the scene, not upon orders from the president. In more rural areas violence against former slaves continued largely unabated. In 1869, President Ulysses S. Grant succeeded Johnson. Grant recognized the pervasive influence of the Klan and other white terrorist groups in Southern states, and he was prepared to use military force to advance Reconstruction. Despite the broad language of the 1861 Lincoln Law and the

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Civil Rights Act, however, he felt that he needed additional legislative authority to do so. Beginning in May 1870, Congress responded by passing three so- called Enforcement Acts.45 The last of these, generally known as the Ku Klux Act, authorized the president to use the militia or regular armed forces to suppress “insurrections, domestic violence, or combinations” intended to deprive anyone of rights protected by the Constitution.46 Specifically, troops could be employed to help former slaves exercise their newfound rights and privileges, including the right to vote under the recently ratified Fifteenth Amendment. In contrast to earlier legislation, the Ku Klux Act did not require that civilian law enforcement resources be exhausted before deploying troops. One key provision empowered soldiers to arrest anyone who went “in disguise upon the public highway or upon the premises of another” for the purpose of denying anyone the equal protection of the laws.47 Once the Ku Klux Act was signed, President Grant quickly issued a ceaseand-desist proclamation directed at “combinations of lawless and disaffected persons in certain localities lately the theater of insurrection and military conflict.”48 He ordered commanders in the South to use regular army forces to aid civil authorities in making arrests, preventing the rescue of those arrested, and “breaking up and dispersing bands of disguised marauders, and of armed organizations, against the peace and quiet” of the citizens.49 Following this order, federal troops were called to serve in hundreds of marshal’s posses to help keep the peace, as well as to enforce the new laws. Meanwhile, internal struggles for control of state governments in Louisiana and Arkansas led to further violence and calls to Washington for federal military intervention. Each competing faction cited the constitutional guarantee of “a republican form of government,” hoping that President Grant would follow the Supreme Court’s lead in Luther v. Borden a quarter- century earlier by choosing sides before sending in troops. Instead, orders from headquarters generally instructed local commanders merely to help keep the peace without supporting one party or another. Fortunately, the mere presence of U.S. troops was usually enough to prevent bloodshed. But in the face of growing unrest, Grant eventually relented, and he officially recognized one government in each contested state. Newly elected President Rutherford B. Hayes later did the same in South Carolina in 1877.50

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The Posse Comitatus Act: Restoring Control and Accountability

White Southern Democrats gradually retook control of state and local governments, despite the sporadic military presence.51 By 1876, only Louisiana, Florida, and South Carolina still had Reconstruction governments supported by federal troops. As the presidential election approached that year, Democrats waged campaigns of violence against blacks and Republicans, in one instance proclaiming that they would win the election “if we have to wade in blood knee- deep.”52 Anticipating widespread voter fraud and intimidation at the polls, President Grant sent troops to assist federal marshals as posses comitatus on election day, which passed without major disturbances. Republican Rutherford B. Hayes, who supported the continuation of Reconstruction policies, won the election by one electoral vote over Democrat Samuel Tilden, but he apparently lost the popular vote. Southern Democrats alleged that federal troops had skewed the result by intimidating voters in several states, but they agreed not to contest the election if Hayes would withdraw remaining federal troops from the South. When those forces departed the following year, white supremacy was restored. Denied the protection of the Ku Klux Act and other federal laws, black citizens were soon relegated to a status little better than slavery. As Southern Democrats then expanded their influence in Congress, they were able to force passage of the Posse Comitatus Act in 1878, barring the use of troops for law enforcement unless expressly permitted by statute or the Constitution. The act declared, “It shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; . . . and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor.”53 The new law was aimed squarely at the Cushing Doctrine, which permitted a federal marshal to order soldiers, even an entire military unit, to serve in a posse comitatus under the direction of the marshal. More generally, it was supposed to end the practice of allowing any subordinate federal official, or even state or local authorities, to call out troops for law enforcement without express approval from the president.54 The Posse Comitatus Act would not prevent the president from exercising various statutory authorities—the 1795 Calling Forth Act, the 1807 law per-

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mitting expanded domestic use of regular troops, the Lincoln Law, the Civil Rights Act, and the Ku Klux Act—to deploy military personnel to enforce federal laws.55 Requiring direct presidential approval made it more difficult to send soldiers into the streets, however, and it made the president politically accountable. The War Department promptly issued orders to army field units explaining the act’s broad limits on troops acting as cops.56 Law enforcement aside, the Posse Comitatus Act did not purport to limit in any way the president’s use of military forces to keep the peace or protect national security. Nevertheless, despite lingering questions about the scope of the 1878 law or the legal consequences of violations, U.S. military leaders have taken it very seriously. Presidents have occasionally ignored the act. At other times military commanders have misinterpreted it as denying them authority to undertake lawful domestic operations. But in the years since 1878 it has influenced almost every domestic use of troops.

Throughout this difficult period, troops were used both as cops and as peacekeepers in ways that the Framers never envisioned. They had expected soldiers to help enforce federal laws only when civilian authorities were unable—not merely unwilling—to do so. They directed Congress to make rules for calling out militias, but not the regular army. And while they presumably were familiar with the English practice of including military personnel in posses comitatus, they gave no indication that they intended to authorize that practice in this country. With the coming of the Civil War, Congress approved a much expanded domestic role for both state militias and regular federal military forces. It directed troops to enforce a variety of new federal laws and to protect civil rights, and it gave the president unprecedented latitude in deploying them. In the end, the difficult job of reorganizing the former rebel state governments, while protecting the rights of newly freed slaves, simply could not have been completed without the extensive use of federal military personnel. The troops generally followed their instructions to use the minimum force necessary to suppress violence, and with few exceptions they acted to support, not supplant, civilian authorities. Most operations were carried out without bloodshed, although soldiers were often vastly outnumbered by rioters and lawbreakers. No other institution could have done the job.

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When Congress asked Grant to explain his use of troops in several Southern states in late 1876, the president replied, “I have not employed troops on slight occasions, nor in any case where it has not been necessary to the enforcement of the laws of the United States.”57 MILITIA METAMORPHOSIS: EMERGENCE OF THE NATIONAL GUARD

From the end of the Civil War to the beginning of the twentieth century, governors called out their militias hundreds of times to respond to disturbances, most arising from labor disputes.58 These state forces were called into federal ser vice far less often. By 1879, however, committed militiamen formed the National Guard Association to promote the idea that the militias were an integral component of a national military force. From this beginning the state- enrolled defensive forces emerged as a first-line backup to the regular army, ready to serve in times of crisis. By the fi rst decade of the twentieth century, poor per for mance by National Guard forces during the Spanish-American War prompted adoption of uniform training and equipment standards for guardsmen. The Militia Act of 1903, generally referred to as the Dick Act,59 for Major General Charles Dick, president of the National Guard Association, replaced the 1792 Militia Act, which early on had required states to maintain and equip militias. The new legislation established uniform protocols for organizing, training, and outfitting these state forces. It also made federal funds available to the states for this purpose, but on condition that the states muster their troops at least 24 times each year for training, conduct a summer training camp, and submit to inspections. Army officers were assigned as advisors to guard units. The Militia Act of 1908 (the second Dick Act)60 required states to make National Guard troops available for ser vice within or outside U.S. territory. It also directed that all guard forces be called up before any nonmilitia volunteers, and it increased federal funding for guard training and equipment.61 The 1916 National Defense Act62 set new training standards for the National Guard, and for the first time it authorized two distinct types of guard call-ups. The president could continue to call for guard troops through the governors, as he was authorized to do by the Calling Forth Act of 1795, but he could also draft members of the National Guard into federal ser vice when Congress authorized the use of troops in greater numbers than those avail-

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able in the regular armed forces. In this latter posture guard personnel served not as part of the militia, but as regular army soldiers; they were discharged from state militias for the duration of their federal ser vice. The 1916 law left undisturbed the president’s power to call out militia (now National Guard) troops on his own initiative to repel invasions or enforce federal laws. By the time the United States entered World War I, the transformation of state militias into an effective national fighting force (with a new name) was complete. Yet guardsmen continued to function as citizen soldiers, uniquely familiar with the communities where they lived and served when not called into federal ser vice. Because of their improved training and equipment, as well as their wide dispersal, they would prove invaluable in future domestic emergencies.

INDUSTRIAL EXPANSION AND LABOR UNREST Soldiers as Strikebreakers

With rapid industrial expansion following Reconstruction, military forces were called out a number of times to quell civil disturbances triggered by labor disputes, racial animus, and other social tensions.63 Presidents often dispatched troops quickly, without first inquiring whether they were legally authorized to do so. More often than not the mere threat of military intervention or the arrival of regular army troops was enough to restore order. When force was needed, military officers generally showed deference to civilian governors and restraint in carry ing out their assignments. Military personnel were, however, occasionally misused by civilian leaders. In one major development in 1877, President Rutherford B. Hayes ordered federal troops to help suppress violence arising from the nation’s first nationwide railroad strike. Army forces protected the railways and dispersed rioting workers across the mid-Atlantic and Midwestern states when police or local militia failed to do so. Labor unrest on such a large scale was simply unprecedented. The strikes disrupted transportation and communications by rail and telegraph, so that command and control of troops could not always be managed effectively from the White House. President Hayes was forced to place some federal military forces under the control of state governors, while others were left to act independently. Much to the credit of the

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commanders, no regular army troops fired into any crowds, and no rioters were killed. Passage of the Posse Comitatus Act in 1878 certainly did not end military participation in law enforcement. Nor did it immediately have much impact on the occasional presidential claim of inherent constitutional authority to deploy federal troops as cops. This claim was repeated in 1894, when a railway strike broke out in the company town of Pullman, Illinois. Attorney General Richard Olney (who at the time earned more as an employee of a major railroad than he did as attorney general) ordered the local U.S. marshal to deputize friends of the railroad companies. The dispute quickly spread nationwide when the recently formed American Railway Union, headed by Eugene V. Debs, entered the fray against the major railroad owners. Over the objection of the Illinois governor, Olney cited rioting associated with the strike to persuade President Grover Cleveland to send 16,000 federal troops into five states on the grounds that it had become impracticable to enforce the laws with the Justice Department’s resources. The stated purpose of the deployment was implementation of a federal court injunction to prevent obstruction of the mails, protect the movement of interstate commerce, and ensure the continued operation of the federal courts themselves. State and local officials in Chicago denied that any significant disturbances had taken place or that there was any real threat to moving trains. Media reports confi rmed this assessment. Army troops were widely perceived as taking the side of the railroads in order to break the strike. This perception was encouraged when, for example, soldiers aided marshals in arresting union leaders. Antiunion bias was also evident in the president’s failure to determine whether civilian law enforcement personnel could have done the job without military support. Cleveland neglected to consult with state and local officials, and he made no effort to promote a negotiated settlement. The conflict between management and striking workers was marked by sporadic violence, but it never even bordered on insurrection. Thirteen people were killed and fifty-three seriously wounded during the strike, but none by federal troops. Debs and other strike leaders were arrested and found in contempt of court for violating the federal injunction to stop interfering with the mails. In a lengthy opinion refusing to grant Debs’s petition for a writ of habeas corpus, the Supreme Court included this sweeping dictum: “The strong arm of the national government may brush aside all obstructions to the freedom

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of interstate commerce . . . . If the emergency arises, the army of the nation and all its militia, are at the ser vice of the nation, to compel obedience to its laws.”64 The dictum was unnecessary and hyperbolic.65 Whatever the president’s motives for military intervention, his statutory authority was straightforward, but not unlimited. Under the 1861 Lincoln Law, President Cleveland was empowered to act unilaterally using troops, even over the governor’s objection, if he found it “impracticable” to enforce the federal law otherwise. He did so, issuing the required proclamations to disperse in early July 1894.66 Nevertheless, the Supreme Court’s rhetorical flourish is often quoted as evidence of expansive unilateral presidential power in times of crisis.67 The Pullman Strike, as the affair has come to be known, left the army’s image as a politically neutral agent of government badly tarnished. Although none of the deaths or injuries were caused by federal troops, the experience prompted the army to adopt a civil disturbance doctrine that for the first time set out detailed tactical guidance for domestic peacekeeping operations. Yet the new regulation provided enormous leeway for violence, declaring that “sharpshooters may shoot down individual rioters who have fired upon or thrown missiles at the troops. . . . [Troops] should make their blows so effective as to promptly suppress all resistance to lawful authority.”68 The regulation and variations over the next half century emphasized heavy military firepower in controlling civil disturbances, until revisions were made to respond to modern civil rights demonstrations. Five years later, in 1899, President William McKinley sent 500 regular army troops to Coeur d’Alene, Idaho at the governor’s request. Their mission was to restore order following a violent dispute between mine owners and union members. The governor followed statutory procedures and noted that he was acting because the legislature was not in session and could not be convened in time to suppress a local insurrection. Yet President McKinley failed to issue the required cease-and- desist proclamation when he approved the deployment. The violence had largely subsided before the troops arrived. Without guidance from the War Department in Washington, and without regard for the original purpose of his mission, the army commander on the scene allowed the local sheriff to use soldiers in a dragnet to locate and apprehend suspected rioters. Some members of Congress deplored the army’s “reprehensible [conduct], violative of the liberty of the citizen, and totally unwarranted by the laws and Constitution of the United States.”69

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Although troops performed both peacekeeping and law enforcement functions in responding to the strikes, they invariably took the side of management against labor. But the army was mostly just following orders. To “support Armies” in the New Century

In war time, the nation’s industrial might has to be focused on the production of weapons and other matériel to support the troops at the front. Not everyone feels the same sense of selfless devotion to the good of the country, however. Manufacturers may seize the opportunity to dramatically expand profits, while workers demand fair compensation for their increased efforts. If prices are raised, inflationary pressures may weaken the economy. If laborers strike to press their demands for higher wages, the critical flow of goods and ser vices may stop. This dilemma set the stage for military action on the home front on several occasions. In May 1917, for example, shortly after the United States entered World War I, Secretary of War Newton D. Baker announced a radical change in the domestic use of troops. His “Direct Access Policy,” undertaken entirely on his own initiative, purported to suspend the application of the statutes governing that use. With the National Guard in many states deployed abroad and unavailable for duty at home, the new policy permitted local and state officials to request regular army troops directly from regional military commanders. Officers, even at the platoon level, were instructed to honor these requests, which could include making arrests. They were also authorized to imprison those arrested without the right of habeas corpus. Needless to say, the Direct Access Policy was blatantly illegal, especially because it defied various congressional mandates dating back at least to 1807. Federal officials sought to justify the policy by citing alien, radical, or Bolshevist provocations. But there was no insurrection or threat to a republican government in any state. Courts remained open and operating. Nevertheless, soldiers were used dozens of times without a presidential proclamation to help put down labor disputes and minor disturbances. The policy was rescinded in 1921. Between the World Wars, the War Department began for the first time to plan systematically for the use of troops to suppress domestic disturbances in war time. Like the Direct Access Policy before it, the mysteriously code-

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named Emergency Plans-White was strongly animated by perceived threats from radical labor organizations and Bolshevik-inspired revolutionaries.70 By 1941, however, moderating influences had significantly reformed the guidelines. The army developed new instructions that emphasized nonlethal force in putting down civil disturbances, along with protocols to ensure that army actions were authorized by the Constitution and laws.71 Until the beginning of World War II, President Franklin D. Roosevelt, unlike his predecessors, refused to send troops to intervene in labor disputes. He relied instead on negotiated settlements, strengthening state and local police forces where necessary to quell violent outbreaks. Only after the United States entered the war did Roosevelt employ military forces to maintain industrial production and keep the peace on the home front. In one instance a strike erupted suddenly near Cleveland, Ohio, in November 1942, in the wake of a dispute between the United Mine Workers and the Brotherhood of Railroad Engineers and Firemen. Army regulars took over the Fairport, Painesville & Eastern Railroad, a ten-mile line that served as the only means of moving raw materials in and fi nished goods out of thirteen defense plants. Although President Roosevelt was away from Washington at the time, he approved the seizure informally based on 1916 legislation that authorized him “in time of war . . . to take possession and assume control of any system . . . of transportation.”72 He also invoked a 1941 executive order promulgated a few days after the Pearl Harbor attacks directing the Secretary of War to “establish and maintain military guards and patrols, and to take other appropriate measures, to protect from injury or destruction national- defense material, national- defense premises, and national- defense utilities.”73 The labor dispute ended and the federal troops withdrew when an agreement was reached between the parties three days later. Before the war ended, Roosevelt approved the seizure of sixty-four privately owned industrial plants, nearly half of them by the War Department, almost always in the face of threatened strikes. Initially the takeovers were justified by a variety of statutes, none clearly on point, and by the president’s powers as commander in chief. Most occurred after June 1943, however, when Congress passed the War Labor Disputes Act. That measure gave the president, acting through any government department or agency, statutory authority to seize “any plant, mine, or facility” vital to the war effort where production was interrupted by a labor dispute.74

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THE PER SIS TENT PROBLEM OF RACE

When the Supreme Court began to recognize and Congress began to legislate equal rights for black Americans—to vote, attend good schools, and use public accommodations and transportation—many whites were reluctant to surrender their traditional advantages, and they fought to keep them. Sometimes they resorted to violence. For our purposes, several things are important about the series of episodes described here, beginning in 1943. They are linked by the common element of racial unrest in an urban setting, and by the use of military forces to help control that unrest. In each instance National Guard personnel were called out by governors to serve alongside police officers and fi refighters. Sometimes the guardsmen were federalized by the president and placed under national command, and were joined by regular, active- duty federal troops— usually upon the request of the governor, but sometimes over the governor’s vehement objections. A governor’s decision to request federal military intervention, and a president’s decision to grant that request (or to act without a request), usually had important political dimensions. Public safety and equal justice often failed to top the list of motivations in making those decisions. The opinions of electoral majorities or even state budgets sometimes trumped other considerations. When regular federal forces were deployed, they sometimes took longer to react than guardsmen. But once on the scene their superior training and discipline generally enabled them to bring unrest under control more quickly and with less bloodshed. Race Riots in the Urban North

In the early days of World War II, large numbers of blacks were among workers, many of them from the rural South, pouring into cities around the country in search of jobs in the defense industry. They found work, but with it came slum housing, exclusion from public accommodations, and few opportunities for economic advancement. They also found whites resentful of the growing competition. This inflammable mixture often ignited racial violence.

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On a hot night in Detroit in June 1943, a fight broke out between white sailors on liberty and local blacks, then quickly grew into a full-blown riot that engulfed the ironically named Paradise Valley ghetto. Crowds of perhaps 5,000 people attacked passersby, broke windows in white-owned businesses, and set cars alight. The next day, as the violence escalated, the governor of Michigan dispatched National Guard personnel to the city. He also imposed a curfew, banned public gatherings, and forbade the sale of alcohol. He was reluctant to request help from Washington, however, fearing that he would be perceived by voters as incompetent to manage the crisis. Not until early morning of the third day did the governor finally ask for federal troops to be sent in. But due at least in part to confusion about proper procedures, his request went to a regional army commander, Major General Henry S. Aurand, who ordered the troops out without the cease-and- desist proclamation or presidential order plainly required by law. General Aurand claimed to be acting instead under an army regulation that called for immediate federal intervention in the event of an “insurrection, or riot, endangering the public property of the United States . . . or other emergency so imminent as to render it dangerous to await instructions requested through the speediest means of communications.” 75 Yet Aurand was in constant touch with his superiors in Washington. Facing mobs numbering as many as 15,000, army soldiers were able to curb most of the violence before the night was over. Only then did the governor formally ask President Roosevelt for federal military assistance, whereupon the president belatedly issued the requisite proclamation and order. Soldiers enforced an armed truce in Detroit for several days, patrolling transportation networks so laborers could get to and from work, and dispersing unruly crowds. Although the rioting led to 34 deaths and 675 injuries, none of the fatalities and few of the injuries were caused by federal forces. There seems little doubt that those numbers would have been smaller if army troops had been called in promptly; when it was all over, they were praised for their effectiveness and restraint. Nevertheless, the commanding general’s unilateral actions are troubling. As far back as 1792 Congress had made it clear that only the president should decide when to use federal (or federalized) troops for peacekeeping and law

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enforcement. In any event, the regulation on which the general relied (a version of which remains on the books today) indicates that in some extreme cases the statutes may, for practical reasons, be ignored. But the 1943 Detroit riot was not such a case. Using Troops to Integrate Public Schools

The first significant domestic deployment of troops after World War II came in 1957 in a dramatic test of federal supremacy over state power.76 On September 3 of that year, Governor Orval Faubus directed heavily armed Arkansas National Guard troops to block nine black students from entering Little Rock’s all-white Central High School.77 The reason, he announced, was to “preserve the peace and good order.” His real motivation was to preserve the status quo. A personal appeal from President Dwight Eisenhower to the governor to stop interfering with a court- ordered desegregation plan was ignored. Two weeks later a defiant Faubus, now facing a federal court injunction directed at him personally, sent the state troopers home, leaving the students exposed to a violent mob of angry whites. In a handwritten note Eisenhower reflected, “President can stand by in the face of organized or locally undeterred opposition by violence and see the entire court system disintegrate (meaning destruction of our form of govt) or he can carry out his oath of office.”78 He then issued a proclamation commanding “all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith.” 79 In an address to the nation on September 23, the president referred to “demagogic extremists” and “disorderly mobs” in Little Rock, declaring that “we are a nation in which laws, not men, are supreme.” “The very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of the Government will support and insure the carry ing out of the decisions of the Federal Courts,” he said, “even, when necessary with all the means at the President’s command.”80 Attorney General Herbert Brownell likened the situation to the Whiskey Rebellion. The next day the president approved a call-up of the entire Arkansas National Guard, in order to remove it from Governor Faubus’s control. It marked the first peacetime federalization of state forces in ninety years. He also authorized the deployment of regular army personnel to enforce the federal court orders.81 Eisenhower expressly invoked modern versions of the 1861

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Lincoln Law and the 1871 Ku Klux Act, which allow the president to use troops to execute federal laws and protect civil liberties without an invitation from a state.82 On September 25, 1957, paratroopers from the army’s 101st Airborne Division equipped with M-1 rifles and fi xed bayonets formed a cordon around Central High. An army helicopter hovered overhead, while other soldiers accompanied the nine black students to their classes. Two members of a large, unruly crowd of white protesters suffered minor injuries, and several were taken into custody and turned over to civilian authorities. Otherwise, the day passed without incident. Regular army or federalized guard troops were to remain at the school for the rest of the academic year. Segregationist Senator Richard Russell of Georgia compared Eisenhower’s actions to those of “Hitler’s storm troopers.” The president responded that “the obligations of my office required me to order the use of force within a state to carry out the decisions of a Federal Court. . . . Failure to act in such a case would be tantamount to acquiescence in anarchy and the dissolution of the union.”83 Attorney General Brownell, citing the Supreme Court’s 1894 decision in In re Debs, expressed confidence that the president’s actions were supported by the Constitution.84 The president was also empowered, he wrote, by the two statutes cited above, which provided clear exceptions to the Posse Comitatus Act. The Little Rock controversy was spawned by the same racial and cultural tensions that had torn the nation apart nearly a century earlier. It seems fitting that a Reconstruction- era law, the Ku Klux Act, was used to enforce the rights of descendants of slaves. Instead of the troops being used at the request of a state governor to assist in restoring local peace, Eisenhower acted in opposition to a governor to enforce federal court orders. The president’s measured response was remarkable for its careful mixture of federal and state forces, recognizing the reluctance of some guardsmen to enforce policy they deeply opposed, and for the fact that the entire operation was closely controlled from Washington. While it is true that the courts were still open and operating in Little Rock, federal marshals alone could not have enforced the law or controlled the violence, and state officials were unwilling to do so. The combination of federal and state military forces, together with centralized operational control, were important features of other military

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interventions in school desegregation, as well. As late as 1961, Mississippi, South Carolina, and Alabama maintained official racial segregation in public education. In January of that year James Meredith, a former air force staff sergeant and student at the all-black Jackson State College, applied for admission to the University of Mississippi in Oxford.85 When the school refused his application, Meredith sued in federal court. The Fifth Circuit Court of Appeals ruled that Meredith was unlawfully rejected on racial grounds alone and on July 27, 1962, ordered his immediate enrollment.86 In a virtual repeat of the Arkansas governor’s action, Mississippi’s segregationist Governor Ross R. Barnett declared that his state would not “surrender to the evil and illegal forces of tyranny,” and that “no school will be integrated in Mississippi while I am your governor.”87 President John  F. Kennedy hoped to force the issue using more than 500 U.S. marshals, many of them recruited especially for the job. Based on the Little Rock experience four years earlier, however, federal officials also began preparations for military intervention in Oxford. Meanwhile, Meredith, escorted by federal marshals, was repeatedly prevented from enrolling by Governor Barnett personally and by Mississippi law enforcement personnel. Matters came to a head on Sunday, September 30, 1962, when President Kennedy signed a proclamation declaring that Barnett and others were willfully obstructing the enforcement of federal court orders, and ordering all those engaged in the obstruction to “cease and desist therefrom and to disperse.”88 He invoked the same statutory authorities used by President Eisenhower in Little Rock. The same day, he issued an executive order directing Secretary of Defense Robert S. McNamara to “take all necessary steps” to enforce the court orders and “remove all obstructions of justice in the State of Mississippi,” using regular armed forces and Mississippi army and Air National Guard troops called into federal ser vice. 89 McNamara immediately federalized all the Mississippi guardsmen. The governor eventually relented. But on Sunday night rioting broke out on the Ole Miss campus on a scale that far eclipsed anything seen in Little Rock. A crowd of 2,000 or more, some of them armed, threw bottles, bricks, Molotov cocktails, and pieces of pipe at marshals, who responded with volleys of tear gas. Local and state police were of only limited assistance; at the height of the rioting they simply evacuated the campus en masse. President Kennedy reluctantly ordered as many as 1,000 federalized National Guard

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troops to the campus to support the marshals. That was followed shortly by an order to deploy regular army troops. But their arrival, bearing rifles with bayonets fi xed, was delayed until well after midnight. Before dawn broke, two civilians were killed, one of them a French journalist who was shot in the back. None of the marshals, guardsmen, or regular soldiers discharged his fi rearm, although many of them were seriously wounded in the melee. On Monday morning, October 1, 1962, James Meredith, accompanied by U.S. marshals, fi nally registered for classes. By the next day more than 9,000 regular troops and some 2,700 federalized guardsmen were deployed in and around Oxford. A mixed force of regulars and National Guard troops remained on campus to assist marshals guarding Meredith until shortly before Meredith graduated the following summer. Like President Eisenhower in Little Rock, President Kennedy acted with clear legal authority to use military personnel to enforce federal court orders when local and state officials were unable or unwilling to do so. In Oxford, the financial and human costs were much higher, however, and military leaders lamented the poor planning and coordination that limited the effectiveness of their intervention. At the same time, Pentagon officials praised the Justice Department and the work of federal marshals in guarding Meredith and enabling his enrollment. Reviewers of the Oxford riots hoped— optimistically but naively—that future race- based civil disturbances might be managed entirely with civilian resources. Renewed Racial Violence in America’s Cities

Some of the worst domestic violence in the nation’s history erupted in the mid-1960s.90 In 1964, rioting broke out in seven cities in the Northeast; all of it was controlled by local authorities. The following year, on August 11, 1965, serious trouble began near the predominantly black Watts area of Los Angeles with the arrest of a young black motorist for driving while intoxicated.91 An angry mob of perhaps 1,000 people quickly gathered at the scene and began throwing rocks, first at police, then at passing cars. Several white motorists were pulled from their vehicles and beaten. The next day looting and arson spread to surrounding neighborhoods. On the morning of the third day, as the violence intensified, the chief of

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police asked for help from the California National Guard. The order to deploy troops came late in the afternoon. By that time, whole blocks of Watts were in flames. Firefighters were driven away by rock throwing and snipers. As darkness fell, the unrest extended over a wide area of Southeast Los Angeles. The day after that, a full complement of 13,900 California National guardsmen finally arrived to accompany police and firemen into the mayhem. Guard personnel carried loaded weapons, which they were authorized to discharge as necessary “to ensure their safety and accomplish their missions.”92 They fired a .30- caliber machine gun at rooftop snipers, for example, and shot at cars attempting to crash through roadblocks. With the massive show of military force, relative calm was restored by the end of the day. In all, more than 600 buildings, mainly retail stores and pawn shops, were looted or damaged. A third of these were destroyed by fire. Property losses were estimated at $40 million. Nearly 4,000 people were arrested, 1,000 were injured, and 34 were killed. Twenty-six of the deaths were ruled justifiable homicides, seven of those at the hands of guard troops. The guard’s use of lethal force was clearly contrary to restrictions in the then- current army field manual on civil disturbances. Nevertheless, a commission appointed by the governor to review the incident found that while the National Guard was slow to respond, it performed well.93 Although state forces were eventually able to control the violence, active-duty federal troops, deployed at the governor’s request under the authority of the Insurrection Act,94 might have used their superior training and better discipline to bring the rioting to a halt more quickly, with fewer deaths and injuries. In hindsight, given the scale and ferocity of the unrest, it is far from clear why they were not called in. Over the next two years, racial violence escalated, mostly in the North, with state-controlled guard troops called out several dozen times. In Newark, for example, where more than half the residents were black, but the police force was mostly white, a black taxi driver was stopped for a traffic violation in July 1967. When rumors began to circulate that police had beaten the driver to death, a major riot broke out. The governor sent in 5,000 National Guard troops, many of them young, frightened, and poorly trained. Targeted by an unknown number of snipers, these “trigger-happy guardsmen,” as the chief of police called them, fi red more than 10,000 rounds in response. In the melee, at least twenty-three people were killed, almost all of them black.

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Less than a week after peace was restored in Newark, police in Detroit raided a black after-hours drinking club there, setting off another huge riot marked by widespread looting and arson by both blacks and whites. With snipers shooting at firemen, Governor George W. Romney, like his predecessor twenty-five years earlier, imposed a curfew, prohibited the sale of alcohol, and barred gatherings of more than five persons. He also ordered 7,000 National Guard troops into the city, some of them equipped with .50- caliber machine guns, armored personnel carriers, and even tanks. Guardsmen were issued live ammunition and instructed to return fire when fired upon, and to shoot looters if necessary to stop them. When it became clear that even more was needed, the governor called Washington to ask for 5,000 federal troops. Attorney General Ramsey Clark objected that Romney had failed to employ the language of the Insurrection Act (Section 331 of which provides for military support only in cases of “insurrection” following a “request” from the state) or the Constitution (also referring to a state “request” to quell “domestic violence”). The governor also neglected to claim that state forces were unable to control the violence without federal assistance. President Lyndon Johnson, facing what he believed would be a tough reelection campaign the following year, was reluctant to take steps that might alienate some of his supporters. Nevertheless, after some hesitation, during which the attorney general’s legal concerns were not addressed, Johnson issued the required proclamation to disperse, along with an executive order federalizing the Michigan guard and authorizing the deployment of federal troops.95 He based his actions on the Insurrection Act generally. Elements of the army’s 101st and 82nd Airborne Divisions began arriving in the city more than 48 hours after the rioting started. By that time the worst of the violence had ended. Their job consisted mainly of debris removal, patrols, and guard duty. When it was over, thirty-four people were dead, thirty-three of them black. Guardsmen were responsible for at least seven of these, regular army troops for one. Injuries ran to more than 600. Until they were brought under army command, guard personnel carried loaded weapons, and they reportedly showed little discipline in shooting at suspected snipers. They fired a remarkable 156,000 rounds of ammunition, compared with just 206 by regulars. Not for the first time, army and civilian leaders worried that the guard’s poor perfor mance, as well as its largely white racial makeup, would create

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pressure to rely more on regular army units and less on the National Guard to deal with future disturbances. This time, however, their concern helped promote greater diversity and better training for guard members. The Kerner Commission

Even while federal troops were still deployed in Detroit, President Johnson announced the appointment of a National Advisory Committee on Civil Disorders, chaired by Governor Otto Kerner of Illinois. The job of the Kerner Commission was to investigate the causes of the ongoing disturbances and recommend needed reforms. Its basic conclusion: “Our nation is moving toward two societies, one black, one white— separate and unequal. . . . Discrimination and segregation have long permeated much of American life; they now threaten the future of every American.”96 It recommended a detailed list of “new initiatives and experiments that can change the system of failure and frustration that now dominates the ghetto and weakens our society.” 97 The list included better schools, job training, improved access to public accommodations, and further racial integration of police and armed forces. Noting that “[p]reserving civil peace is the first responsibility of government,” 98 the commission urged clarification of the legal mechanisms for calling out federal troops to deal with civil disorders. Specifically, it proposed changes in the relevant statutes to make it clear that the president could respond favorably to a state request for military assistance in the event of domestic violence only when the state was unable to control unrest with its own forces, and only when immediate action was needed to avert a disaster. In other words, the commission would have reversed the more relaxed predicates for military intervention in the 1871 Ku Klux Act and returned to the criteria for deployment of federal troops in response to a state request set forth in the eighteenth- century Calling Forth Acts.99 Congress failed to adopt this proposal. Among the Kerner Commission’s other recommendations was one that the army abandon its reliance on weapons of war for riot control. Machine guns and tanks, it insisted, are useful on the battlefield but not in America’s cities. The commission proposed instead the development of new weaponry that might employ noise, foam, nets, or guns with nonlethal projectiles. The army apparently ignored this suggestion.

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Both the Kerner Commission and congressional investigators reviewed pervasive problems of military command and control. They found only rudimentary coordination among regular army, National Guard, and police units during the Detroit and Newark riots. Communications equipment was not interoperable, and, unlike earlier deployments in Little Rock and Oxford, there was no unified command structure. One important result of these recommendations was immediate revisions in an army field manual and training for deployment of regular and guard troops in civil disturbances. The new instructions specifically addressed the use of munitions and tear gas, responses to sniping and looting, protection of firefighters, and command and control of forces in the field. The size of the guard force was increased in many states, and many more blacks were recruited into the ranks of the National Guard. Planning for More Trouble: garden plot

In 1968, at least partly at the urging of the Kerner Commission, the army developed a new civil disturbance plan known as GARDEN PLOT.100 It updated earlier contingency planning and anticipated the possibility of simultaneous, large- scale events in different locations requiring multiple federal deployments. GARDEN PLOT suggested that between 4,000 and  25,000 regular army troops might be deployed in any given disturbance, supplemented by police and National Guard forces. It also called for the president to federalize guard forces in affected areas and place them under an army task force commander. It spelled out command relationships and included detailed operational guidelines. Troops were to use the minimum force necessary to prevent looting, apprehend offenders, and accomplish other assigned missions. Gas and riot control agents could be used at the discretion of local commanders. Rifle fire was authorized when no practical alternatives were available, shooting to injure rather than to kill. Civilian police would make arrests whenever possible, and the media would have freedom of movement so long as they did not interfere with the mission. Specific plans were developed for more than 120 cities, placing priority on potential trouble spots like Baltimore, Los Angeles, Detroit, and Philadelphia. While many Americans might have applauded the military’s commitment to planning for crises, others would have been concerned at approval for the use of lethal force and other measures that could severely restrict civil

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liberties. But few knew about this plan or its content, because it was either classified in its entirety or released only in heavily redacted versions. The Assassination of Martin Luther King Jr.

When the GARDEN PLOT plan was adopted in early 1968, military officials expected to have time to prepare for its implementation if violence broke out during civil rights and antiwar marches expected later that spring. On March 31, the Rev. Martin Luther King Jr. told an audience at Washington’s National Cathedral, “I don’t like to predict violence. But if nothing is done between now and June to raise ghetto hope, I feel this summer will not only be as bad but worse than last year.”101 No one, certainly not military planners, foresaw King’s assassination in Memphis just four days later, on April 4. Rioting began almost immediately in the nation’s capital. Within hours the mayor of Washington, DC, declared a state of emergency and imposed a dusk-to- dawn curfew, then asked President Johnson to send in federal troops. This time the president, who had just announced that he would not run for reelection, agreed and published the required cease-and- desist proclamation right away.102 One minute later he signed an executive order authorizing the deployment of active duty armed forces and federalized National Guard personnel, citing the Insurrection Act, in order “to restore law and order, and to see that the property, personnel and functions of the Federal Government . . . in the Washington metropolitan area are protected against violence or other interference.”103 Rioting by as many as 20,000 people continued for five days. The violence was mostly confined to poor neighborhoods in Northeast and Northwest, where businesses were selectively looted and burned. Angry crowds pelted police and fi refighters with rocks and bottles. More than 6,000  persons, overwhelmingly black residents, were arrested for offenses related to the rioting. Some 15,000 troops were deployed in and around the city, many of them bivouacked in neighborhood parks. Marines equipped with .50- caliber machine guns manned the Capitol steps, while army soldiers guarded the White House. GARDEN PLOT protocols were immediately refined to accommodate the crisis in Washington. The revised guidelines instructed troops to use “minimum force, consistent with mission accomplishment,” and to “avoid appearing as an invading alien force rather than a force whose pur-

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pose is to restore order with a minimum loss of life and property and due respect for the great number of citizens whose involvement is purely accidental.”104 They emphasized the use of riot control agents instead of live ammunition, and firing when necessary to wound rather than to kill. Troops were also told not to take orders directly from district officials. The combined military force fired just fourteen shots, although they used more than 5,000 nonlethal tear gas grenades. Twelve people died in the riot, two by gunfire, but none of the deaths was caused by soldiers. Riots comparable to those in Washington, DC, erupted simultaneously in Baltimore and Chicago. Federal military assistance was also sought and provided in those cities. Troops served there with restraint and professionalism, as they did in Washington, with coordination between regular forces and National Guard units much improved in each instance. Riots in several other American cities that year were controlled by state and local resources, although many black neighborhoods were largely destroyed. The Los Angeles Riots

The most recent major racial unrest began in 1991, when a black motorist named Rodney King was stopped by California Highway Patrol officers following a high-speed chase. King was pulled from his car, tasered, and savagely beaten and kicked by five white Los Angeles police officers. A bystander’s videotape of the event appeared on television again and again in the weeks that followed. Many feared a repeat of the rioting in the city twenty-six years earlier, when the Watts neighborhood erupted in flames after a similar incident. Their fears were well-founded, although the reaction was delayed for more than a year. Still, the eventual tragic aftermath could have been avoided. Four of the LAPD officers involved in the beating were eventually charged with assault and excessive use of force. In April 1992, they were placed on trial in the nearby town of Simi Valley before a jury consisting of ten whites, one Asian American, and one Hispanic. Despite the powerful visual evidence of criminal behavior, none was found guilty. The response in the black neighborhoods of Los Angeles was instantaneous and violent. Rioting, following a now-familiar pattern, broke out in South Central, then quickly spread to other parts of the city. At first, Los Angeles police simply refused to respond to widespread arson and looting.

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Mayor Tom Bradley declared a dusk- to- dawn curfew, but it was clear that military support would be needed to control the growing mayhem. Governor Pete Wilson called out California National Guard troops, who began to arrive on the second day. Better trained and more racially representative of the community, they were reportedly very effective in restoring order in some areas. Yet they were not able to bring the unrest fully under control. On the third day of the rioting, in part based on advice from those involved in the 1965 Watts riots, the governor asked President George H. W. Bush to send in federal troops. The president, invoking the Insurrection Act generally, quickly issued a proclamation and executive order authorizing the federal takeover of state guard troops and the deployment of regular military forces.105 The attorney general was instructed to “coordinate the activities of all Federal agencies assisting in the suppression of violence and in the administration of justice” in the city. On the fourth day, 2,500 active- duty army soldiers arrived in the city from Fort Ord, along with 1,500 marines from Camp Pendleton. They joined a growing body of now-federalized guardsmen, bringing the total troop strength to more than 11,000. The appearance of such a large military force had the desired effect. By the end of the day most of the violence had subsided, although sporadic outbursts continued for several more days. Six days of rioting left at least 54 people dead and more than 2,300 injured. Property losses approached $1 billion. Some California guard personnel complained that calling in federal forces and federalizing the guard reflected badly on their own response to the crisis, or even that federal intervention was not needed. The federal force was indeed unhelpful in one important par ticular: the army general in charge refused to allow troops to assist local police in law enforcement, mistakenly believing that the Posse Comitatus Act barred such use. He apparently failed to consult or to heed his staff judge advocate, who would have assured him that the Insurrection Act operates as a clear exception to the 1878 law.

The second Los Angeles riot in three decades found both state and federal military forces generally better prepared than ever before to respond to racial violence in America’s cities. Those forces benefitted from new guidelines and improved training prompted by the half- century of race-based episodes

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described here. Along the way, lingering questions about the legal criteria for deploying troops at home, and about the correlative rights of federal and state officials for their deployment, were largely, but not entirely, resolved. These new insights and reforms apply not just to the use of troops in race riots, moreover, but to all kinds of domestic unrest in which civilian officials are unable to keep the peace and enforce the law. At least two other lessons may be drawn from this experience. Several presidents and governors called out troops, or refused to do so, for reasons having nothing to do with public safety or law enforcement. The influence of political considerations simply bears out the Framers’ concerns that civilian officials might misuse the military powers entrusted to them. Nonetheless, recurring images of soldiers in the streets gave Americans a new sense of both the advantages and risks of maintaining a standby military force to play such a critical role at home. They also reminded us that the rule of law may help keep the soldiers in their assigned role. THE VIETNAM WAR AT HOME

The Vietnam War era saw some of the worst riots and civil disturbances in our history. Antiwar movements were hardly unknown in America; pacifists and antimilitarist dissenters have been vocal opponents of almost every war. In the 1960s, however, the uneven but undeniable alignment of the antiwar protesters with the growing civil rights movement created an especially volatile mix. Some civil rights leaders became active in both movements. Appearances by the Rev. Martin Luther King Jr. at large rallies in Los Angeles, Chicago, and New York City in 1967, for example, coincided with demonstrations on college campuses and in cities around the country. The protests were fed by TV images of U.S. battlefield casualties and a growing sense of unease both about the nature of American interests in Southeast Asia and about our ability to defend those interests. Added to the mix, economic and social conditions for black Americans at home continued to suffer. March on the Pentagon

The announcement of plans for a large antiwar and civil rights march on the Pentagon in October 1967 alarmed many government officials. They knew that avoiding violence would be legally tricky. Denying a permit to march

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might unconstitutionally restrict the protesters’ freedom of speech and assembly, and it would certainly spark further demonstrations. And as long as the marchers were kept out of the building, they would not disrupt what went on inside. With upwards of 100,000 demonstrators expected, however, it appeared unlikely that civilian police could maintain order. It might have seemed reasonable to call on active- duty army and National Guard troops to protect the Pentagon’s entrances and exits against “unlawful obstructions, combinations, or assemblages,” acting under authority of the Insurrection Act. In the end, the permit to march was issued. Federal officials decided that the president could pre-position regular army troops around the Pentagon, relying on his nonstatutory, implied constitutional authority as commander in chief to protect federal property. They also advised that DC National Guard troops operating in their state capacity could serve as part of a posse comitatus to assist local officials in enforcing the laws, based on a provision in the DC code. In the weeks leading up to the march, civilian and military planners considered and wisely rejected several extreme proposals, such as ringing the Pentagon with triple concertina wire or a six-foot fence. Instead of armed soldiers, they cordoned off the entire building with ropes. U.S. Park Police and Virginia and Arlington County police lined the march route and Pentagon parking lots, while military guards were stationed at Pentagon entrances and inside the building. When the march began on October  21, between 20,000 and 35,000 marchers (far fewer than organizers had predicted) listened to a program of music and speeches at the Lincoln Memorial, then crossed the Memorial Bridge and moved toward the Pentagon. Once in the parking areas, most gathered around a platform for more speeches. But others, perhaps as many as 2,000, broke through rope barriers and surged toward the Pentagon’s main Mall entrance, throwing rocks and bottles. Twenty or thirty of them pushed into the vestibule and were forced back by troops stationed inside the building. At another corner of the Pentagon, demonstrators overran military police and knocked some soldiers to the ground. Tear gas grenades were detonated, and in the resulting melee U.S. marshals and military police used boots and rifle butts to subdue the crowd. But no shots were fired. Many were arrested, and when the Pentagon area was closed off

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at midnight, as the permit specified, some 200 demonstrators were forcibly removed when they resisted leaving. Whatever one’s view of the ongoing war, a protest of such im mense proportions held the very real possibility of damage to the war effort, and therefore to national security. The destructive potential of an angry mob running loose in the nation’s military headquarters can hardly be denied. Under the circumstances, it would have been irresponsible not to assign troops to defend the building. The troops, for the most part, deserve credit for using minimal force to complete their mission. Yet this clash between citizens and soldiers simply hardened resistance to the war, and it left the public more alert than ever before to the risks of military involvement in civilian affairs. The Democratic Convention in Chicago

Soon thereafter, the National Mobilization Committee to End the War in Vietnam, the Youth International Party (Yippies), and other groups organized a massive demonstration to coincide with the Democratic national convention in Chicago in August 1968.106 Protests would focus on the war and the Democrats—the party in power. Federal, state, and city officials deliberated at length over whether to preposition federal troops in and around Chicago, to be ready if violence erupted. Attorney General Ramsey Clark was among those opposed. He reasoned that deployment of soldiers in the city would interfere with the authority of state and local officials to manage the convention. It would also make it more likely that the troops would be used, he argued, inevitably provoking more violence among the demonstrators. Even though city and state officials requested the federal troop deployment, there was as yet no “domestic Violence” to quell. Nor had state and local forces failed to keep order, and the president had not issued the required proclamation. Despite these misgivings, and notwithstanding the lack of legal authority for federal intervention, 6,000 regular army troops were sent to Chicago area military bases in full field gear, equipped with rifles, flame throwers, and bazookas! Those who predicted trouble were right. The city refused to issue permits for the demonstrations. Some 10,000 protestors nevertheless gathered in Lincoln Park, where they were met by 12,000 police and 6,000 National

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Guard troops. Police and guardsmen had their hands full with the demonstrators, who hurled obscene epithets, rocks, sticks, and even human feces at them. The guard units were widely praised for their restraint and discipline. Many Chicago police officers, on the other hand, responded with indiscriminate and unrestrained violence. They made extensive use of tear gas and Mace, and they beat protestors and bystanders alike, although they singled out newsmen and photographers for assault. Miraculously, no one was killed. A report by the National Commission on the Causes and Prevention of Violence characterized the events in Chicago as a “police riot.”107 In the end, federal troops equipped for combat remained on the sidelines and quietly left the area after the convention ended. Some said the presence of federal troops lessened the violence. But army intelligence personnel with a very different mission mixed with the crowds and collected personal information on thousands of protestors. We take up their story in Chapter 5. Kent State

Opposition to the Vietnam War grew steadily with nightly TV news coverage from the battlefield, the My Lai massacre, army spying on politically active Americans, and continuing resistance to the military draft. Students on college campuses across the country traded textbooks for protest signs, and many conducted sit-ins of university administration offices. On April  29, 1970, President Richard Nixon announced that a joint U.S.-South Vietnamese force had attacked enemy positions inside Cambodia. While the president explained that the offensive was intended to help wind down U.S. involvement in Southeast Asia, many Americans interpreted the operation as widening a wrongheaded war. A spasm of protests immediately spread to nearly 450 universities. Some schools chose to end their academic years early. President Nixon reportedly called the student demonstrators “bums . . . blowing up the campuses.”108 His remarks only fanned the flames of dissent. At Kent State University in Ohio, the trouble started on Friday, May 1, when student protestors smashed windows in the downtown business district. The next day the mayor of Kent, Leroy Satrom, requested and promptly received state National Guard troops from Governor James A. Rhodes. The governor did not ask for federal assistance. Given the modest scale of the dis-

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turbance, such a request would most likely have been denied. Yet the intervention of active duty army troops might have avoided the tragic events that followed. When guard personnel arrived at Kent State on Saturday night, a crowd of nearly 1,000 students burned down an ROTC building on campus. On Sunday night police and guard personnel used tear gas to disperse another large crowd and make several arrests. On Monday, May 4, students called for a noon rally to protest the presence of the guardsmen, ignoring an edict from the governor banning outdoor gatherings and an order from the guard commander to disperse. As some 500 students gathered on the campus commons, a subordinate officer ordered officers and enlisted men to load their M1 rifles with .30- caliber ammunition. The load-and-lock order was standard Ohio guard practice, but completely inconsistent with the army’s GARDEN PLOT prescription of minimum force. As the crowd swelled to perhaps 2,000, the guard commander ordered his troops to move forward—with loaded weapons, fi xed bayonets, and gas masks in place. Tear gas had little or no apparent effect on the students, and the advancing soldiers were met with a barrage of rocks, bottles, and gas canisters. More than fifty soldiers were injured, eight seriously enough to require hospitalization. The troops then marched toward the burned- out ROTC building, the students following and continuing to throw rocks. Then, without warning, the guardsmen turned toward the students and opened fire. No officer admitted giving an order to shoot, yet twenty- eight guardsmen said they discharged their weapons. Four students were killed, nine were wounded, and one was paralyzed from the waist down. Of the students who died, the nearest was nearly the length of a football field away from the soldiers when the shooting started. The President’s Commission on Campus Unrest, appointed the month after the shootings, concluded that the Kent State deaths were “unnecessary, unwarranted, and inexcusable.”109 Vice President Spiro Agnew dismissed the report as “more pablum for the permissivists.”110 Two important Supreme Court decisions arose from this tragic episode. In one case, Gilligan v. Morgan, several students who survived the shooting sued to enjoin future violations of their civil rights—freedom of assembly and speech, and a right to due process. Specifically, they complained that the

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Ohio National Guard employed “a pattern of training, weaponry and orders [that require or make inevitable] the use of fatal force in suppressing civilian disorders when the total circumstances . . . are such that nonlethal force would suffice to restore order.”111 The Supreme Court ordered the case dismissed. Noting that since the shooting the guard had adopted new rules and training for the use of force in civil disorders, the Court characterized the case as “a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard.”112 For it to take a position in this controversy, the Court said, would require “initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard, . . . critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.”113 The Court went on to declare that “it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system.”114 Despite this broadly deferential rhetoric, however, the Gilligan Court concluded that “we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief. We hold only that no such questions are presented in this case.”115 At least on these facts, the Court made clear, it would look back, but not forward, to determine the legality of the military’s domestic role. That’s just what the Supreme Court did a short time later in Scheuer v. Rhodes.116 In the second Kent State case, families of the dead students fi led suit in federal court for damages against the governor, the university president, National Guard officers, and guardsmen for “intentionally, recklessly, willfully and wantonly” deploying state troops unnecessarily on the campus, then ordering those troops to perform illegal acts— depriving the students of their lives without due process. The plaintiffs alleged that the defendants

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acted outside the scope of their official powers, or that they arbitrarily and grossly abused those powers. The nation’s highest court responded this way: When a condition of civil disorder in fact exists, there is obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others. While both federal and state laws plainly contemplate the use of force when the necessity arises, the decision to invoke military power has traditionally been viewed with suspicion and skepticism since it often involves the temporary suspension of some of our most cherished rights— government by elected civilian leaders, freedom of expression, of assembly, and of association. Decisions in such situations are more likely than not to arise in an atmosphere of confusion, ambiguity, and swiftly moving events and when, by the very existence of some degree of civil disorder, there is often no consensus as to the appropriate remedy. In short, since the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.117

Nevertheless, the Court ruled, the various defendants enjoyed only qualified immunity for their actions. That immunity depended on “the existence of reasonable grounds for the [officials’] belief formed at the time and in light of all the circumstances, coupled with good-faith belief.”118 Whether they acted reasonably and in good faith were facts to be determined by a trial. Prompted by this ruling, the suits were eventually settled out of court for a combined total of $675,000. In an unrelated case several years later, the Court narrowed its holding in Scheuer to conclude that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”119 Even this more demanding “objective” standard, however, might have been met by the presidential commission’s conclusion that the Kent State students’ deaths were “unnecessary, unwarranted, and inexcusable.” The Kent State cases concerned the actions of unfederalized National Guard forces. But the Supreme Court’s decisions made it clear that courts might also play an important role in cases involving federal troops.

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The prospect of judicial review may, needless to say, influence the behavior of civilian and military leaders alike in a crisis—or in planning for a crisis. It may have had that effect in the wake of the Kent State shootings. Recognizing the likelihood that National Guard troops would arrive first on the scene in future civil disorders, the army began in 1971 to offer sixteen hours of special civil- disturbance instruction as part of National Guard basic training. More significant reforms arrived a year later in a revised army field manual governing the application of force in civil disturbances. The manual included this guidance: “The use of deadly force in effect invokes the power of summary execution and can therefore be justified only by extreme necessity . . . [and] is not authorized for the purpose of preventing activities which do not pose a significant risk of death or serious bodily harm (e.g., curfew violations or looting).”120 Before deadly force could be used, less violent means had to be exhausted or unavailable. Because the Constitution directs each state to train its “Militia according to the discipline prescribed by Congress,”121 all fifty states and the District of Columbia adopted the army’s new training protocols and field manual for their own guard forces. Another two decades would pass before these new rules were put to the test.

A NEW ERA OF DOMESTIC VIOLENCE Uprising at Wounded Knee

On the night of February 27, 1973, members of the American Indian Movement (AIM) and the Oglala Sioux Civil Rights Organization forcefully took possession of the village of Wounded Knee on the Pine Ridge Reservation in South Dakota. They were protesting a corrupt tribal government, mismanagement by the Bureau of Indian Affairs (BIA), violations of the Treaty of 1868, and deplorable economic conditions on the reservation. More than one hundred people in about thirty cars drove into the village, shot out the street lights, broke into the trading post and looted it, then occupied the local church. Later they dug trenches, built bunkers, and constructed roadblocks, while transforming private homes and the church into sleeping quarters, communal kitchens, and a medical clinic. Almost immediately, FBI agents, U.S. marshals, and BIA police sealed off the village by setting up their own roadblocks at all major entry and exit roads.

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Attorney General Richard Kleindienst proposed sending in federal troops to quickly retake the village, but various civilian and military officials persuaded President Richard Nixon otherwise. Instead, army personnel, along with National Guard troops from several states, provided advice to the other federal agencies, collected intelligence from ground and aerial surveillance, maintained roadblocks, and conducted armed patrols around the village. The army also furnished weapons and other military equipment. No presidential proclamation to disperse was issued, and no statutory exception to the Posse Comitatus Act was invoked. Army officers on the scene wore civilian clothes and sought to blend in with civil law enforcement personnel. They persuaded civilian officials to replace their shoot-to-kill orders with instructions to shoot to wound, and to adopt military protocols for dealing with civil disorders. They also urged negotiations with the activists. The standoff lasted for ten weeks. Before it ended with the surrender of the occupiers, two Native Americans had died and one U.S. marshal was paralyzed. Federal officials arrested several of the AIM activists and charged them with a variety of offenses, including assault on federal officers, possession of unregistered firearms, and interference with a “law enforcement officer lawfully engaged in the lawful perfor mance of his official duties.” Defense lawyers argued that law enforcement officers were acting unlawfully, because they violated the Posse Comitatus Act when they enlisted the help of army troops. After years of litigation, the convictions of the Indian defendants were upheld, while courts articulated a variety of approaches to measur ing compliance with the Posse Comitatus Act, and thus to the appropriate role for federal military forces in civil law enforcement. One court interpreted the act as barring use of the army to execute the laws if that use “pervaded the activities” of civilian law enforcement officers.122 Another found that the legality of that use turns on the extent to which troops take “an active direct role” in law enforcement.123 A third court ruled that the act prohibits uses of the military that are “regulatory, proscriptive, or compulsory in nature.”124 In a civil suit growing out of the Wounded Knee uprising, several of the protestors claimed that their Fourth Amendment protection against unreasonable searches and seizures was violated by the military’s involvement. An

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appeals court observed that the interests opposing seizure “are more societal and governmental than strictly individual in character. They concern the special threats to constitutional government inherent in military enforcement of civilian law.” On the other hand, the court acknowledged that the government has an interest in “maintain[ing] order in times of domestic violence or rebellion” and in “improv[ing] the efficiency of civilian law enforcement by giving it the benefit of military technologies, equipment, information, and training personnel.” Conceding that the president may have inherent powers to use the military to respond to domestic emergencies, the court noted that Congress had by statute prescribed the means for deployment of the military. Accordingly, because no statutory authority permitting such use was invoked, the Posse Comitatus Act provided “a reliable guidepost” for evaluating the Fourth Amendment claim. The act is “not just any act of Congress,” said the court, but “the embodiment of a long tradition of suspicion and hostility towards the use of military force for domestic purposes.”125 A search or seizure that violated the act would be “unreasonable” and therefore unconstitutional. The judicial tests created in the aftermath of the Wounded Knee standoff became the dominant yardstick for measur ing compliance with the Posse Comitatus Act. They added subjective texture to the statutory language. The ser vice branches and operational lawyers then began using the courts’ criteria to flesh out the practical application of the act in regulations and directives. Nevertheless, many questions remain about the meaning of key terms. For example, no one is prepared to say precisely what constitutes an “active direct role” for the military in law enforcement. These terms, as well as the open- ended language of the act itself, continue to provide plenty of wiggle room for civilians to use soldiers as cops in a variety of settings. The War on Drugs

In recent decades soldiers have played an expanded role as cops in the “war on drugs.” Putting aside the dramatic obfuscatory metaphor, they have been thrust into a quintessentially civilian law enforcement activity. Beginning in 1972, the Treasury Department asked the Pentagon for help with aerial reconnaissance to track private aircraft flown by smugglers. When military lawyers concluded that such assistance would violate the

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Posse Comitatus Act, Congress enacted a series of new statutory exceptions in 1981, authorizing military forces to provide information, equipment, facilities, and training to civilian authorities.126 One of those exceptions permits military personnel to operate equipment on loan to civilian drug enforcement agencies under certain circumstances.127 Another directs the Department of Defense (DOD) to issue regulations that preclude “direct participation” by military personnel in a “search, seizure, arrest, or other similar activity” unless otherwise authorized by law.128 The resulting regulations parrot the Posse Comitatus Act restrictions as interpreted by the Wounded Knee cases—that DOD activities should not subject civilians to “active” or “direct” military power, with certain exceptions.129 The Coast Guard has long been involved in the interdiction of drug smugglers. Now an agency within the Department of Homeland Security, the Coast Guard becomes part of the navy when called into active military ser vice.130 Until it is so activated, however, it is not subject to the Posse Comitatus Act.131 And even when it is, it has various law enforcement duties conferred by statute, to which the act would not apply in any case. Coast Guard detachments are sometimes assigned to navy ships in areas of suspected maritime smuggling activity. When a suspicious vessel is sighted, Coast Guard officers may take tactical control of the ship, while navy personnel serve in support or backup roles, thus ensuring that the law enforcement operation is—at least technically— carried out by Coast Guard personnel unaffected by either the Posse Comitatus Act or DOD regulations. The Branch Davidian Debacle

In May 1992, the Bureau of Alcohol, Tobacco, and Firearms (ATF) learned that the Branch Davidians, members of an obscure religious group with a compound near Waco, Texas, were stockpiling large quantities of firearms and black powder.132 The sect’s charismatic leader was known to his followers as David Koresh. Suspecting illegal weapons activity, ATF officials obtained a warrant to search the compound. The ATF had its own highly trained response team, but it asked for military support in executing the warrant. To avoid footing the bill for that support, however, ATF sought to invoke the special legislation, described above, that authorizes limited military assistance for drug law enforcement. Before the search could be conducted, ATF officials reported the possible

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presence of a methamphetamine laboratory in the compound, but they offered no proof. And even though aerial surveillance revealed no evidence of drug activity, the Department of Defense supplied training facilities and equipment, including seven Bradley armored fighting vehicles. As planning progressed for a raid on the compound, ATF requested Special Forces troops to assist directly with a range of operations, including “room clearing discriminate fi re operations,” the military equivalent of “close- quarter combat.”133 When local army commanders reported the new request to Army Special Forces Command at Fort Bragg, North Carolina, officers there began to grow suspicious. They worried that soldiers could fi nd themselves conducting searches and arrests. If there was a drug lab in the compound, they might be involved in collecting evidence for criminal prosecutions. Lawyers at Fort Bragg concluded that the military was being asked to provide “active” participation in law enforcement forbidden by the Posse Comitatus Act. Officers in Texas complained about legal obstacles to the success of the “mission,” but a memorandum to the Office of the Secretary of Defense put a stop to any further assistance. No soldiers would accompany ATF to the compound. When the raid was executed on February 28, 1993, the resulting firefight killed four ATF agents and wounded twenty more, while the Davidians suffered six deaths and four injuries. A fifty- one- day siege ensued, ending only when a fi re swept through the compound, killing seventy-four more cult members. The tragic outcome of a federal agency’s raid on a religious group, based on questionable evidence and marked by bad judgment, shocked the nation. Direct participation by Army Special Forces troops might or might not have affected the outcome. What is clear is that the local army task force simply ignored the tradition of avoiding military involvement in civilian law enforcement. Only the persistence of military lawyers saved the army from violating that tradition. Disaster Response—The Stafford Act

Another possible statutory exception to the Posse Comitatus Act is the Robert  T. Stafford Disaster Relief and Emergency Assistance Act.134 It provides broadly for federal assistance to states or for direct federal action in response to a variety of natural and manmade catastrophes—from floods and hurricanes to terrorist attacks. The Stafford Act may be invoked

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when the president declares a major disaster or emergency, usually following a state governor’s request for help, when federal support is needed to “supplement state and local efforts . . . to save lives and protect property and public health and safety.”135 The president may, however, act unilaterally when “the primary responsibility for response rests with the United States.”136 The act authorizes the president to direct the Defense Department to perform any emergency work “essential for the preservation of life and property” for up to ten days.137 It has not been construed to permit the use of those forces to maintain law and order, however.138 President Clinton declared an emergency under the Stafford Act in 1995 in response to the terrorist bombing of the Alfred P. Murrah Federal Building in Oklahoma City, and he ordered the Federal Emergency Management Agency (FEMA) to direct and coordinate responses by other federal agencies and provide needed federal assistance.139 The Stafford Act was also invoked on September 11, 2001, when President George W. Bush declared a “major disaster” in the State of New York, and again in 2005 following the landfall of Hurricane Katrina.140 Hurricane Katrina

When Hurricane Katrina barreled toward New Orleans and then struck the city in late August 2005, senior Bush administration officials remained indecisive for days about whether to send in troops to help out with rescue and recovery.141 Once the gravity of the disaster began to sink in, however, Pentagon officials ordered a small task force to the Gulf Coast to support federal response efforts led by FEMA. Army Lieutenant General Russell Honoré, affectionately known as “The Ragin’ Cajun,” arrived in New Orleans with a few aides two days after the storm hit. That same day Louisiana Governor Kathleen Blanco telephoned President Bush to say that state and local responders were overwhelmed by the crisis. She asked for federal help in evacuating stranded New Orleans residents, and she requested 40,000 federal troops to take over logistics and search-andrescue operations, so National Guard personnel under state control could focus on law enforcement. As media reports amplified rumors of widespread mob violence and looting, President Bush proposed federalizing the Louisiana National Guard. Under the president’s plan, guard forces would be led by a federal commander

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but would still be subject to the governor’s orders. A contingent of regular federal troops would be led by the same federal commander, but under the president’s orders. Governor Blanco rejected this unprecedented, hybrid arrangement, insisting that Louisiana forces could manage the law enforcement problems on their own. Governor Haley Barbour refused a similar proposal in Mississippi. The White House clearly wanted to avoid a highly publicized political battle with Governor Blanco. One official remarked to the New York Times, “Can you imagine how it would have been perceived if a president of the United States of one party had preemptively taken from the female governor of another party the command and control of her forces, unless the security situation made it completely clear that she was unable to effectively execute her command authority and that lawlessness was the inevitable result?”142 Presidential political advisor Karl Rove, however, later declared that “[t]he only mistake we made with Katrina was not overriding the local government.”143 For the record, White House officials suggested that the administration’s delay in responding was attributable to a lack of clear legal authority for federal military intervention. This despite advice from the Justice Department’s Office of Legal Counsel that federal troops could be sent in, even over the objections of local officials. Indeed, the Insurrection Act plainly authorized the president to use regular military or federalized National Guard “to suppress . . . domestic violence” that deprived the people of any state of the protection of the laws, when state authorities were unable to protect their citizens.144 The sporadic looting and unrest in New Orleans, together with the scale of the physical destruction in the city, would unquestionably have satisfied the statutory criteria for prompt deployment of federal forces without an invitation from the governor. In any case, President Bush chose not to exercise his statutory discretion, and the federal military response arrived late and remained independent of the state forces. More than 50,000 National Guard troops were eventually involved. In addition to those from Louisiana and Mississippi, nearly 30,000 guardsmen from every other state, two territories, and the District of Columbia arrived to help out pursuant to Emergency Management Assistance Compacts. They were commanded by the governors of the two states hardest hit. Some 22,000 Reserve and active- duty soldiers acted under the command of the president.

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Coordination problems were legion, as the separate command structures got in the way of shared operations and clear communications. For several days following the hurricane’s landfall, the Department of Defense reportedly relied heavily on news media accounts for information about conditions in the affected areas. A congressional study later blandly observed that a “lack of integration of National Guard and active- duty forces hampered the military response.”145 To complicate matters further, much of the Louisiana guard’s critically needed equipment, including radios and bulldozers, had been shipped to Iraq to support the ongoing war there. In an effort, some say, to divert responsibility for his ineffectual response, President Bush claimed a need for “greater Federal authority and a broader role for the Armed Forces”146 in responding to future emergencies. One top military commander even recommended that the Department of Defense be given “complete control” of responses to disasters like Hurricane Katrina: “We have to think the unthinkable may be possible, even probable.”147 In response, the Republican- controlled Congress amended the Insurrection Act in 2006 to allow the president to “employ the armed forces, including the National Guard in Federal ser vice to . . . restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that . . . domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and . . . such violence results in an inability to enforce the laws and protect local citizens.”148 The 2006 amendment permitted quick federal intervention in a great crisis. But it also presented two constitutional problems. First, it turned the presumption against a federal military role in the states on its head, thus usurping state decision-making prerogatives. Second, it compounded an existing constitutional defect in the Insurrection Act: “domestic violence” is not one of the conditions for which the Constitution contemplates uninvited federal military intervention. The amendment only enlarged the scope of the president’s discretion to order troops into a state without a request from the legislature or governor. All fifty state governors opposed the measure, as did the adjutants general of the National Guards and local law enforcement officers. They argued that the new language, replacing that of the updated 1871 Ku Klux Act, would

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unduly expand the president’s authority to act alone. More broadly, they said, it would undermine historic state-federal and civilian-military relationships, threaten state sovereignty, and impair the ability of states and cities to carry out core government functions, including the protection of their citizens. They also insisted that the “constructive ambiguity” of the old law—referring to “insurrection, domestic violence, unlawful combination, or conspiracy”— worked well in encouraging consultation between state and federal officials when determining whether state officials could maintain order or whether “domestic violence” obstructed the enforcement of U.S. laws (as, for example, with the Whiskey Rebellion and Dorr Rebellion). Two years later, after extended discussion, Congress, now controlled by Democrats, repealed the amendment, restoring the earlier language.149

LINGERING QUESTIONS ABOUT THE POSSE COMITATUS ACT What Constitutional Exceptions?

Congress provided in the Posse Comitatus Act that the statutory ban on use of the military to “execute the laws” does not apply “in cases and under circumstances expressly authorized by the Constitution.” This provision raises several important questions, none of them yet definitively answered. First, under what circumstances does the Constitution “expressly authorize” the use of troops to execute the laws? One easy but insufficient answer is that there are none. It is true, of course, that Congress is expressly authorized to “make Rules for the Government and Regulation of the land and naval Forces,” and to “provide for calling forth the Militia to execute the Laws of the Union.” But the Posse Comitatus Act is itself a self-limiting exercise of that constitutional authority. The president is expressly obligated to “take Care that the Laws be faithfully executed,” and he acts as commander in chief, but nothing in the text links the executive obligation with the domestic use of military force. Despite the absence of a clear linkage, these last two provisions may give the president independent authority to order troops to enforce the laws, at least under some circumstances. In the extreme case, when the nation comes under enemy attack, there is widespread agreement that the president has inherent power to use military force to repel the attack.150 The Supreme Court has noted that an attack on the homeland triggers the president’s fun-

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damental duty to “protect our Government against those who would subvert or overthrow it by unlawful means.”151 The repel-attack power might enable the president to take a variety of actions that are forbidden at other times, overriding some contrary legislative or even constitutional constraints. The power is implied, not express. And it is far from clear just when or for how long that power could be exercised. In less compelling circumstances the implied presidential power to use the military domestically is even less clear. During the Korean War, for example, the Supreme Court ruled that the president’s domestic powers as commander in chief were limited when Congress had refused to approve his actions.152 And in several cases the Court has determined that those powers will not trump constitutional guarantees.153 In fact, there was confusion in the 1878 Congress about the extent of the president’s powers. The “expressly authorized” language was added as a facesaving compromise to placate those who believed that the president possessed such constitutional powers.154 Before conference and enactment, the House version of the act contained no constitutional exception, while the Senate bill contained an exception for constitutional powers without requiring that they be expressly stated. Defense Department regulations claim two other constitutional exceptions to the Posse Comitatus Act, although they are not express. One is inherent authority to take “prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situations.”155 The other protects “Federal property and functions.”156 President Johnson cited these regulations when he ordered the military to suppress rioting in Washington, DC, following the assassination of Dr. Martin Luther King Jr. in 1968. Another DOD directive purports to allow federal military commanders to exercise “immediate response authority . . . in response to a request for assistance from a civil authority, under imminently serious conditions and if time does not permit approval from higher authority . . . by temporarily employing the resources under their control . . . to save lives, prevent human suffering, or mitigate great property damage within the United States.”157

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Even this measure, however, forbids actions that “would subject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or compulsory.”158 In practical terms, these constitutional questions may not really matter, because Congress has granted the president such broad statutory discretion to call out military support in a variety of homeland defense and natural disaster settings. These statutory authorities are analyzed further in Chapter 8. Which Military Services Are Covered?

In its latest version the Posse Comitatus Act literally applies only to “the Army or the Air Force.”159 DOD policy has long extended its application to the navy and Marine Corps,160 however, and several court decisions have done the same.161 The Coast Guard, as noted above, is subject to the Posse Comitatus Act only when it is called into ser vice as part of the navy. The National Guard—the modern militia—is another story. Recall that the use of state militias by civilian officials in posses comitatus to enforce the Fugitive Slave Act helped fuel passage of the Posse Comitatus Act. Republicans in Congress wanted to restore presidential accountability for using soldiers as cops. Congressional Democrats, by contrast, supported the Posse Comitatus Act because they wanted to stop the use of regular troops to enforce hated Reconstruction era laws in the South. The Posse Comitatus Act does not, of course, expressly refer to the militia. Some commentators argue that the 1878 Congress did not intend to cover it.162 Yet state military personnel have the same training and equipment as regular federal forces. They have the same capacity for law enforcement. And they present the same risks of military involvement in civilian affairs. Despite this functional equivalence, however, courts and commentators have agreed that members of the National Guard are not subject to the restrictions of the act, unless and until they are called into federal ser vice.163 This interpretation might seem at odds with the Framers’ determination to limit the law enforcement activities of military forces generally. Still, the delegates to the Philadelphia Convention understood that state troops would play a critical internal role in both peacekeeping and law enforcement when state civil authorities could not cope.

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How Should the Act Be Enforced?

There has never been an officially reported criminal prosecution for violating the Posse Comitatus Act. But the act may have influenced the use of soldiers as cops in other ways. In a civil case growing out of the Wounded Knee uprising, the act provided criteria for finding government liability when protestors’ constitutional rights were violated by the use of troops. Apart from any possible constitutional injury, however, violations have not given rise to a private cause of action for damages.164 Criminal defendants have often claimed that violations of the Posse Comitatus Act required dismissal of charges against them. They have asserted, for example, that military assistance to civilian police made their arrests invalid, or that evidence improperly collected by soldiers should be excluded from use in court. These claims have so far been rejected, at least in the absence of “widespread and repeated violations.”165

The Framers settled on imprecise language in the Constitution (“insurrection,” “domestic violence,” “execute the laws”) to describe the national roles of state militias, and they provided what could be interpreted as inconsistent instructions (in the Protection, Guarantee, and Calling Forth Clauses) for federalizing the militias. They also made no clear provision for the domestic deployment of regular armed forces. Early Congresses reacted to these ambiguities mostly by adopting procedural mechanisms to limit the president’s use of troops at home. The Framers’ commitment to minimal military involvement in civilian life was severely tested by the growing pains that accompanied westward expansion of the frontier, industrialization, and the integration of former slaves and their descendants into the mainstream of American society. Along the way, wars at home and abroad raised new questions about the military’s domestic role, and presidents sometimes exalted politics over public interest in deploying (or refusing to deploy) troops. The courts have not always been willing to check the abuses by the political branches. Still, the accumulated experience of more than two centuries has helped fill in some of the blanks left by the Framers. With certain important exceptions, Congress has been careful to preserve state prerogatives in utilizing

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their own military forces to deal with internal problems and in inviting federal intervention. The president’s power to use soldiers to enforce the laws is pretty well circumscribed by statute. Along with restraints on presidential power have come increased transparency and accountability. And the military has adopted its own extensive rules for interactions between troops and civilians. What is perhaps most striking throughout this period is an overarching public commitment to the rule of law.

CHAPTER FOUR

Soldiers as Jailors

I

t would never occur to most Americans that civilians might be locked away in military prisons in the United States indefi nitely, without charges or trial, without even access to a lawyer. We would like to think this sort of thing could only happen somewhere else, where the rule of law exists in name only, but not here. Yet in the atmosphere of fear following the terrorist attacks of 9/11, three civilians were imprisoned in a navy brig in South Carolina for years without any legal process whatever. The Supreme Court gave its qualified approval. And in 2011 Congress passed legislation formally authorizing this practice. Most Americans have not protested, presumably assuming, if they thought about it at all, that they would never face the same treatment. In fact, since the beginning of the Republic civilians have been imprisoned by U.S. military forces a number of times during great domestic crises. Some of these detentions were plainly justified, when the national security was clearly threatened and no reasonable alternatives were available. Confi nement of British supporters during the Revolution is an example. At other times the need for such drastic measures was questionable, as with the imprisonment of some Confederate sympathizers during the Civil War. More recently, the military’s role in interning 120,000 Japanese American civilians during World War II was totally unjustified. Their imprisonment was based on racism, avarice, and politics, not on any threat to the United States.

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If another big terrorist attack is launched on U.S. soil, will more civilians be taken into military custody? The answer will depend, at least to some degree, on the president’s understanding of what the law requires. Congress may act to clarify those requirements. And courts may be willing to say whether the Constitution and laws permit the suspension of familiar civil liberties under the circumstances. But even after more than two centuries of experience the relevant law is far from settled, and in past crises courts have often refused to get involved. Moreover, the law provides a shield against abuses of authority only if the president is committed to following it. A brief look at our history makes this all too clear. THE FOUND ERS AS PRAGMATISTS

The Declaration of Independence is both an indictment and a statement of ideals.1 The men who signed it were realists, however. They understood that separation from British rule would involve confl ict, hardship, and compromise, and that civilian rule without the intervention of military forces might not always be possible. A significant fraction of the population were Loyalists, many of whom furnished intelligence and supplies to British military forces. It is not surprising, therefore, that late in 1776, when the Continental Congress gave General George Washington almost unlimited powers to raise and support a revolutionary army, it also authorized him “to arrest and confine persons who . . . are . . . disaffected to the American cause.”2 He alone could decide who was “disaffected.” The following year, when the war was going badly for the American revolutionaries, a large British force landed on the shores of Chesapeake Bay to invade Delaware and Pennsylvania. The Continental Congress, sitting in Philadelphia, passed a measure the very next day directing that “notoriously disaffected” persons in those two states, whom it feared might help the invaders, “be apprehended, disarmed, and secured, till such time as . . . they may be released without injury to the common cause.”3 Six weeks later, Congress authorized General Washington to arrest, try, and sentence anyone in “Pennsylvania, Jersey, and Delaware” who aided the enemy, declaring that “the process of the municipal law is too feeble and dilatory to bring to a condign and exemplary punishment persons guilty of such traitorous practices.”4 Washington’s troops invoked these authorities to arrest hundreds of

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suspected British sympathizers. Some were tried and convicted of high treason and executed. In these earliest days of the Republic, and in the middle of a war zone, the civilian criminal justice system was simply not up to the job. In 1798, during the so- called Quasi-War with France, Congress passed the Alien Enemy Act.5 It gave the president broad powers to detain and remove all male citizens of a hostile nation, aged 14 years or older, during “a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion.” 6 The act was fi rst invoked by President Madison during the War of 1812 to require the relocation of British subjects at least 40 miles inland from tidal waters on the East Coast. But it was enforced by civilian, not military authorities.7 A number of citizens were detained by the army during the War of 1812 on charges of treason or espionage. There was no explicit statutory authority for their military imprisonment, however, as there had been during the Revolutionary War. Three cases in New York courts found the detentions of U.S. citizens illegal.8 In one suit for false imprisonment against a military commander, the judge wrote, “If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority.”9 In New Orleans, more than thirty civilians were taken into custody by the army near the end of the War of 1812 on orders from General Andrew Jackson, not based upon any statutory authority but on Jackson’s declaration of martial law there. When a federal judge ordered the release of a state senator from military confinement, Jackson arrested the judge.10 In the years that followed, federalized militia or regular army troops arrested civilians a number of times, but immediately turned them over to civilian officials for trial. Half a century would pass before civilians would again be confined in military jails.11 LINCOLN VS. THE JUDICIARY

On April 12, 1861, the Confederate attack on Fort Sumter marked the beginning of the Civil War.12 The next day Lincoln called to active duty 75,000 militia from various states to put down the rebellion. Several Southern states had already seceded from the Union, and the others refused his call. Fear gripped the nation’s capital, which seemed especially vulnerable to rebel attack from neighboring Virginia, although that state had not yet

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seceded. Maryland, on its other flank, was deeply divided over the war. Baltimore, in par ticular, was the scene of rioting by thousands of Confederate sympathizers. Secessionists in Maryland burned railroad bridges and cut telegraph lines connecting Washington, DC, to the north and west. When civil authorities were unable to cope with the crisis, Lincoln decided that “strong mea sures” were “indispensable to the public safety.”13 Acting as commander in chief, he wrote to Winfield Scott, General of the Army, on April 25, authorizing him to take steps necessary to suppress any insurrection in Maryland and, “in the extremest necessity,” to suspend the writ of habeas corpus.14 Two days later, he wrote to General Scott again, approving suspension of the writ in the vicinity of any rail line between Philadelphia and Washington if the public safety rendered it “necessary.”15 In each instance, authority to suspend the writ carried with it, implicitly, the power to arrest and detain without specific charges. The ancient writ of habeas corpus—the Great Writ—is an order from a court directing a jailor to bring forth a prisoner and explain his continued holding. If the court finds that the detention is unjustified, it may order the prisoner’s release. The Framers regarded the writ so highly that they included a special provision for it in the Constitution. Article I, §9 declares, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.” But while the clause appears in the part of the Constitution mostly devoted to limitations on legislative powers, the Framers neglected to indicate clearly who— Congress or the president—is authorized to suspend the privilege. Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene. So thousands of civilians suspected of disloyalty were in fact confined in military prisons without charges during the war. But may a civilian judge force the commander in chief to bring a military prisoner into court and justify his detention? That question arose at the beginning of the Civil War in a celebrated case called Ex parte Merryman.16 John Merryman and the Writ of Habeas Corpus

John Merryman was a prominent farmer and political figure in Maryland, and a lieutenant in that state’s militia. He was also a vocal Southern sympa-

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thizer suspected of involvement in the destruction of railroad bridges and telegraph lines north of Baltimore. When he was seized by federal troops at his rural home on the morning of May  25, 1861, and confi ned at Fort McHenry, no judicial warrant authorized his arrest, and no criminal charges were filed against him until much later. Merryman’s lawyer immediately filed an application for a writ of habeas corpus with the chief justice of the United States, Roger B. Taney. Taney promptly issued the writ, directing it to General George Cadwalader, commander of the military district that included Fort McHenry. But instead of appearing as ordered two days later, the general sent word that he had been authorized by the president on April 27 to suspend the writ. Taney then ordered the general brought before the court the following day to show why he should not be held in contempt. When a federal marshal sought to serve the contempt order, he was stopped at the gates of the fort. A frustrated Taney declared from the bench that “the President, under the Constitution of the United States, cannot suspend the writ of habeas corpus, nor authorize a military officer to do it.”17 Two days later the chief justice issued a written opinion declaring, “I had supposed it to be one of those points in constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.” 18 He based his conclusion on English history, on early practice in the United States, and on the location of the Suspension Clause among the legislative powers in Article I of the Constitution.19 Taney went further, complaining that “the military authority . . . has, by force of arms, thrust aside the judicial authorities and officers to whom the constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. . . . I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.”20 Taney’s opinion was ignored by President Lincoln, and Merryman remained at Fort McHenry. A month later, in a message to a special session of Congress, Lincoln remarked that Taney’s interpretation of the Constitution would allow “all the laws, but one [habeas corpus], to go unexecuted, and the government itself go to pieces, lest that one be violated.”21 The president thus seemed to concede Taney’s point about the locus of authority to suspend the writ. He might also have worried that John

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Merryman’s seizure would be found unreasonable, in violation of the Fourth Amendment to the Constitution, or that Merryman had been denied the due process of law guaranteed by the Fifth Amendment. But all the evidence suggests that Lincoln was determined to do what he thought was best for the nation, even when the law of the land may have provided otherwise. He also acted openly, unlike some of his successors, and he stood ready to suffer the political consequences, which might have included rejection by the voters in the next election, or even impeachment. On July 10, Merryman was indicted by a grand jury for treason, then delivered to civilian authorities. Two weeks after that he was released on bond, but the charges against him were eventually dropped without further proceedings. Did he break any laws? Without a trial, we cannot be sure. Doubts about his guilt might have been resolved without the government “going to pieces,” of course, since Merryman could have been confined by civilian authorities without bail during the pendency of his trial. Lambdin Milligan’s Narrow Escape

All of Lincoln’s actions respecting the military, including, implicitly, his authorization for suspension of habeas corpus, were approved retrospectively by Congress on August 6, 1861.22 On September 24, 1862, Lincoln issued a proclamation authorizing the arrest, military trial, and punishment of “all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States,” and suspending the writ of habeas corpus for any such persons.23 Many civilians were imprisoned by Union military forces pursuant to this proclamation. Then in the Habeas Corpus Act of 1863, Congress expressly authorized the president to suspend the writ, but only under certain conditions.24 The president quickly issued a second proclamation suspending the privilege of the writ,25 this time under the authority of the 1863 Habeas Corpus Act. The question of whether the president could act independently of the statutory conditions to order the military arrest and trial of a civilian, on the grounds that he posed a threat to national security, came to the Supreme Court only after the Civil War ended. One of those imprisoned was Lambdin P. Milligan, a lawyer and politician in Huntington, Indiana, who was an outspoken critic of the war. Mil-

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ligan was arrested at his home by soldiers on October 5, 1864, and confined in a military prison, then brought before a military commission for trial on charges ranging from inciting insurrection to violating the laws of war. (Military trials of civilians are addressed in Chapter 5.) He was convicted and sentenced to be hanged. Milligan’s appeal did not reach the Supreme Court until 1866. Lambdin Milligan was a very dangerous man, the government insisted, a menace to the community. “If it was dangerous,” the Court responded, “to leave Milligan unrestrained of his liberty . . . the law said arrest him, confi ne him closely, render him powerless to do further mischief,” then try him in a court of law like anyone else accused of committing a crime. Thus, “the Constitution would have been vindicated . . . and the securities for personal liberty preserved and defended.”26 The Supreme Court noted that in the Habeas Corpus Act of 1863, Congress had approved Lincoln’s suspension of the writ, albeit with certain restrictions, and that the president was bound by those restrictions. According to the statute, if a person who was not a prisoner of war were confined for twenty days, while a local grand jury met and adjourned without indicting him, he could then seek the writ. In Milligan’s case, these conditions were met, and the Court ordered his release. The Court went on to observe that while Milligan was imprisoned by the army, the circuit court in Indianapolis “met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments.”27 It is far from clear that Milligan’s case would have been decided the same way if it had come to the Court while the Civil War still raged. The Court itself admitted, “During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.”28 In other words, the Court might not have been so willing to vindicate individual liberty interests if the nation still faced an apparent existential threat. In a remarkably similar case three years earlier, involving the military arrest and trial of a civilian named Clement Vallandigham, who spoke out against the war in defiance of a military order, the Supreme Court ruled that it lacked jurisdiction directly to review his conviction by a military

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commission.29 (We consider Vallandigham’s case in Chapter 5.) Eighty years later, in the midst of the Second World War, the Court again refused to intervene, this time to stop the needless military imprisonment of 120,000 civilians. THE JAPA NESE AMERICAN INTERNMENTS

Immediately after the attack on Pearl Harbor, President Roosevelt invoked the 1798 Alien Enemy Act30 to enjoin German, Italian, and Japanese citizens in the United States to refrain from aiding the nation’s enemies and to obey war time regulations.31 These regulations included exclusion from designated sensitive areas and restrictions on air travel, as well as a prohibition on the possession of weapons, cameras, and shortwave radios. The aliens were also advised that they were subject to summary apprehension and confinement.32 More than 2,000 individuals considered especially dangerous, most of them Japanese, were quickly taken into custody by the FBI. The military was not initially involved. The Aftermath of Pearl Harbor

The wrath of the American people was directed particularly at a large Japanese American population living on the West Coast, where racial discrimination had an ugly history. In the late nineteenth century, after completion of the transcontinental railroad, nativist efforts to bar further immigration from China led to passage of the Chinese Exclusion Act in 1882.33 When Japanese immigrants then began arriving in larger numbers to work in agriculture, California farmers and labor unions joined forces to fight the new “yellow peril.” In 1907, the Teddy Roosevelt administration agreed to limit further Japanese immigration to the United States, and in 1924 Congress put a stop to it.34 Racist voices of fear, tribalism, and economic opportunism were raised again in the weeks following the Pearl Harbor attack. They were strengthened when a commission looking into the causes of the attack reported evidence of Japanese espionage in Hawaii. In January 1942, the Los Angeles Times editorialized that “the rigors of war demand proper detention of Japanese and their immediate removal from the most acute danger spots” on the West Coast,35 while the Los Angeles Chamber of Commerce called for the evacu-

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ation of all ethnic Japanese, aliens and citizens alike, from that city. Nationally syndicated columnist Walter Lippmann wrote, “The Pacific Coast is officially a combat zone; some part of it may at any moment be a battlefield. Nobody’s constitutional rights include the right to reside and do business on a battlefield.”36 Another journalist added, “and to hell with habeas corpus.”37 Joining the clamor, nativist groups such as the American Legion and the Native Sons and Daughters of the Golden West, allied with commercial interests such as the California Farm Bureau Federation and the Grower-Shipper Vegetable Association, argued that all ethnic Japanese were “unassimilable” and maintained their allegiance to the Japanese emperor. Years later, a congressional commission observed that it was “impossible to convey in a few pages the virulence and breadth of anti-Japanese feeling which erupted on the West Coast in January and February of 1942.”38 Responding to the mounting public hysteria, congressional delegations from California, Washington, and Oregon wrote to President Roosevelt recommending the “immediate evacuation of all persons of Japanese lineage” from the West Coast.39 In this climate of anger and fear, the army soon began drawing up plans for the relocation of all civilians of Japanese ancestry, about two-thirds of them U.S. citizens, to the interior of the country.

The Decision to Intern: A Civilian/Military Collaboration

Attorney General Francis Biddle at first argued strenuously against internment, calling it “ill-advised” and “unnecessary.”40 Japanese American citizens, but not aliens, he said, had the same constitutional rights as any government official— even President Roosevelt.41 FBI Director J. Edgar Hoover wrote to Biddle in early February that the mounting arguments for mass evacuation were “based primarily upon public and political pressure rather than on factual data. Public hysteria and in some instances, the comments of the press and radio announcers, have resulted in a tremendous amount of pressure being brought to bear on [state officials] and on the military authorities.”42 On February 17 Biddle wrote to the president that for several weeks there have been increasing demands for evacuation of all Japanese, aliens and citizens alike, from the West Coast states. A great many of the West Coast people distrust the Japa nese, various special interests would welcome their removal from good farm land and the

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elimination of their competition, some of the local California radio and press have demanded evacuation, the West Coast Congressional Delegation are asking the same thing and finally, Walter Lippman [sic] and Westbrook Pegler recently have taken up the evacuation cry on the ground that attack on the West Coast and widespread sabotage is imminent. My last advice from the War Department is that there is no evidence of imminent attack and from the  F.B.I. that there is no evidence of planned sabotage. It is extremely dangerous for the columnists, acting as “Armchair Strategists and Junior G-Men,” to suggest that an attack on the West Coast and planned sabotage is imminent when the military authorities and the F.B.I. have indicated that this is not the fact. It comes close to shouting FIRE! in the theater.43

Secretary of War Henry Stimson also expressed doubts about the legality of the proposed expulsion. Evacuation of citizen Japanese, he wrote in his diary on February 10, 1942, would make “a tremendous hole in our constitutional system.”44 But he later claimed publicly that he thought a Japanese invasion of the West Coast was likely, and that Japanese Americans would help the invaders. Meanwhile, California state officials and members of Congress exerted pressure directly on Army Lieutenant General John L. DeWitt, head of the Western Defense Command headquartered in the Presidio, to expel all Japanese Americans. As the Commission on War time Relocation and Internment of Civilians observed decades later, “laymen had a great deal to say about what the army should do on the West Coast.” The general was “sold a bill of goods.”45 DeWitt soon began to repeat rumors of espionage by ethnic Japanese along the coast, including signaling to Japanese submarines. After extensive investigations, however, the FBI, the Office of Naval Intelligence, and the Federal Communications Commission all reported to DeWitt that these rumors were completely groundless. In a February 14, 1942, report to the Secretary of War, DeWitt concluded that mass evacuation was necessary because, he asserted, it was impossible to distinguish loyal from disloyal Japanese Americans.46 The “Japanese race is an enemy race,” he wrote. “Along the vital Pacific Coast over 112,000 potential enemies, of Japanese extraction, are at large today. There are indications that these are organized and ready for concerted action at a favorable opportunity.” He did not explain what these “indications” were. He then

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concluded, astonishingly, “The very fact that no sabotage has taken place to date is a disturbing and confi rming indication that such action will be taken.”47 Trying to put the best face on things, Attorney General Biddle later observed that “[i]t was not DeWitt’s task to protect the civil liberties of American citizens. He was a soldier.” But Biddle failed to indicate why a top military leader, even in war time, was not bound by the Constitution he had taken an oath to uphold and defend. He nevertheless went on to point out that the facts recited in the report “did not indicate any military necessity.”48 But even before DeWitt issued his report, President Roosevelt apparently had already made up his mind. Ignoring advisors like Biddle, who insisted that there was no credible evidence of a security threat, on February 11 he tacitly approved War Department preparations for a wholesale evacuation, including citizens. A week later, Roosevelt issued Executive Order No. 9066, authorizing “the Secretary of War, and Military Commanders whom he may from time to time designate . . . to prescribe military areas . . . from which any and all persons may be excluded,” using federal troops if necessary.49 It was widely understood that “any and all persons” meant persons of Japanese ancestry. Attorney General Biddle immediately drafted a memorandum that sought to justify the executive order as based on military necessity. On March 2, General DeWitt issued the first of a series of public proclamations declaring that the entire Pacific Coast of the United States was in danger, establishing “as a matter of military necessity” military areas and zones from which “[s]uch persons or classes of persons as the situation may require” would be “excluded,” and restricting the travel and other activities of “such persons.”50 The proclamation covered the states of California, Oregon, Washington, and Arizona. DeWitt then imposed a curfew, followed by a series of Civilian Exclusion Orders directing that “all persons of Japanese ancestry, both alien and non-alien,” report to assembly centers and be removed from the designated military areas up and down the West Coast.51 Congress got into the act on March 21 by making it a crime to violate an order of the Secretary of War or his designated military commander in any prescribed military area.52 The following year the Supreme Court observed that “the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such.”53 In other words, both political branches approved the exclusions. The judicial branch would soon join them.

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Neither the executive order nor the statute said anything about imprisonment of persons excluded from military areas, but orders from General DeWitt expressly did so.54 By October 1942, more than 110,000 Japa nese Americans had been rounded up by the army and sent off to ten so- called relocation centers in the interior of the country, where they suffered shocking privations over the next two and a half years. The internees were allowed to take with them only what they could carry. The camps were managed by a civilian agency, the War Relocation Authority (WRA).55 But internees could leave only with permission from military headquarters (leave authority was later delegated by General DeWitt to the WRA), and the camps were surrounded by barbed wire, searchlights, and machine gun emplacements manned by military police.56 Aside from the huge numbers, the military incarceration of civilians was remarkable in several respects. None of those confined in the camps was ever charged with a crime. The writ of habeas corpus was never suspended. After Pearl Harbor the West Coast of the United States was never a battlefield,57 and civilian courts remained open and operating. There was no domestic violence, other than attacks on Japanese Americans by Caucasians. And no statute purported to authorize the detentions. The military’s actions were, in short, completely unprecedented. Fred Korematsu’s Tale

Fred Korematsu was a Japanese American shipyard welder born in Oakland, California to immigrant parents.58 When he was arrested in 1942 and charged with violating a military evacuation order, he was engaged to be married to one Ida Boitano, of Italian descent. His case was taken up by the ACLU and, when he was found guilty, appealed all the way to the U.S. Supreme Court.59 The ACLU argued that in the absence of martial law, with the civilian courts open and operating, Korematsu’s imprisonment violated the Fourth Amendment ban on seizure without probable cause, the Fifth Amendment guarantees of due process and equal protection of the laws, the Sixth Amendment right to a fair trial, the Eighth Amendment ban on cruel and unusual punishment, and the Thirteenth Amendment prohibition of slavery and involuntary servitude. It also claimed that the criminal statute was an unconstitutionally broad delegation of legislative authority to the executive. “The sufferings of 1775–1781 were a hollow mockery,” the ACLU

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insisted, “were our Courts to allow military power to override civilian right upon the pretext offered by an obscure military commander that a spurious military necessity called for a suspension or destruction of all the constitutional rights and liberties of a segment of our citizenry upon an ancestral origin basis.”60 The Supreme Court responded that the executive and military orders on which Korematsu’s conviction was based were “aimed at the twin dangers of espionage and sabotage.”61 It found that the war power of Congress and the executive enabled the exclusion of all Japanese Americans from the West Coast. Moreover, said the Court, “we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”62 “There was evidence of disloyalty on the part of some,” the Court concluded, “the military authorities considered that the need for action was great, and time was short. We cannot . . . now say that at the time these actions were unjustified.”63 But of course the Court could have questioned those actions. There was no evidence of disloyalty. Two and one-half years after the internments began, and with victory in the Pacific assured, time was no longer “short.” The Court forgot its earlier insistence in Ex parte Milligan that, at least in the absence of martial law, “[t]he Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy and despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.” 64 The effect of the majority opinion in Korematsu was simply to suspend the Constitution in response to unexamined military claims of necessity. Justice Frankfurter, concurring in the result, wrote that “the validity of action under the war power must be judged wholly in the context of war. That

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action is not to be stigmatized as lawless because like action in times of peace would be lawless.”65 Justice Murphy, on the other hand, complained bitterly that the exclusion “goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism,” and he chided the majority for not being more skeptical about claims of military necessity.66 In his dissent, Justice Jackson had a different complaint—that courts had no role to play in enforcing the evacuation. “The military reasonableness of these orders,” he wrote, “can only be determined by military superiors.” A military commander “issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.” 67 Thus, he worried about the precedent that the courts’ involvement would set: Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. . . . But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.68

Apparently resigned to the result in this case, Justice Jackson suggested that the only safeguard against repetition of such a constitutional violation lay in the political process: “If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.”69 In this instance, however, the “political judgments of their contemporaries” were clouded by the fear and hysteria that accompanied the war. And while history would judge both political leaders and the Court itself harshly, it provided little comfort for those whom the Constitution was designed to protect.

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The Korematsu decision approved the exclusion of Japanese Americans from the West Coast. The Supreme Court majority explicitly declined to rule on the constitutionality of the imprisonment of civilians, finding that forced evacuation and confi nement raised distinctly different issues.70 But in a separate ruling on the same day in Ex parte Endo, the Court decided that a concededly loyal Japanese American citizen could not be imprisoned—not, however, because the Constitution forbade it, but because no statute or executive order expressly authorized it.71 If the Endo Court had squarely addressed the constitutionality of the internments, and if it had dug more deeply into the military’s asserted justifications, it almost surely would have found violations of the Fourth Amendment’s prohibition of unreasonable seizures and the Fifth Amendment’s guarantees of due process and equal protection of the laws. But the Court followed its tradition of avoiding constitutional questions whenever a case can be resolved on some other basis. We now know that by early 1943 the War Department recognized that there was no military necessity for continuing to hold the internees.72 Yet it was not until May 1944 that Secretary Stimson finally recommended to President Roosevelt that the internments be ended. The president nevertheless delayed ordering immediate closure of the camps, fearing that adverse reaction among California voters could cost him reelection later that year. It then took nearly another half a year, until three days after the November elections, for the president to agree to release the internees. In the words of a congressional commission investigating the internments years later, “The inescapable conclusion . . . is that the delay was motivated by political considerations.”73 In contrast to the mass internment of Japa nese Americans, only a few hundred ethnic Italians and Germans, citizens and aliens, were excluded from military districts and imprisoned by military authorities, and each of these received individual loyalty hearings.74 (Larger numbers were arrested by the FBI and confined by the Immigration and Naturalization Ser vice.) The Italians were largely dismissed as threats; Roosevelt referred to them as “a lot of opera singers.”75 And while attacks by German military forces on Gulf and East Coast targets were numerous and very destructive, ethnic Germans were, like the Italians, more nearly assimilated into American society and, because of their much larger numbers, more politically influential than their Japanese American counterparts.76 Thus, it seems clear that politics played

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a key role in deciding whom to imprison, and that the military was indispensable in implementing that decision. A Belated Vindication

Remorse about the shocking injustice of the internments was slow in coming. In 1950, at the beginning of the Cold War, Congress passed the Emergency Detention Act over President Truman’s veto. It authorized the president to declare an “internal security emergency,” following which the attorney general could “apprehend and by order detain . . . each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.”77 The Justice Department constructed a half-dozen detention “camps” around the country pursuant to the act. Although the camps were never used, during the Vietnam era it was suggested that war protesters might be interned in them.78 Congress repealed the 1950 measure unused in 1971, citing the “concentration camp implications of the legislation.”79 At the same time, Congress adopted the Non-Detention Act, which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”80 This new statute apparently was intended to apply to the military as well as to civilian agencies. President Gerald Ford rescinded Executive Order No. 9066 on February 19, 1976, thirty-four years to the day after its issuance. Praising the sacrifices and contributions of Japanese Americans, he called upon the American people to affirm with him “this American Promise—that we have learned from the tragedy of that long-ago experience forever to treasure liberty and justice for each individual American, and resolve that this kind of action shall never again be repeated.”81 In 1980, Congress established the Commission on War time Relocation and Internment of Civilians to review the facts and circumstances surrounding Executive Order No. 9066 and its impact on American citizens and permanent resident aliens. 82 In its report, the commission found that some 120,000 people were held without judicial review, “despite the fact that not a single documented act of espionage, sabotage, or fifth column activity was committed by an American citizen of Japanese ancestry or by a resident

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Japanese alien on the West Coast. . . . [T]here was no justification in military necessity for the exclusion, . . . there was no basis for the detention.”83 But that was not nearly the end of the story. In 1983, political science professor Peter Irons initiated a Freedom of Information Act request for Justice Department records of the Korematsu case in the Supreme Court. He was invited to Washington, DC, to look through the files in person. When he arrived, he was ushered into a large windowless room filled with file boxes, and left alone there by an uninterested clerk. Iron reached for the nearest box, pulled out a file folder of draft briefs, and immediately received a tremendous shock. Irons recalled that a footnote in the brief filed by the government with the Supreme Court in 1944 asked the Court to take judicial notice of “facts relating to the justification for the evacuation” set out in General DeWitt’s 1943 Final Report. 84 The same footnote in the draft brief that Irons held in his hand said instead that the Final Report was “in several respects, particularly with reference to the use of illegal radio transmitters and to shore-to-ship signalling by persons of Japa nese ancestry, in confl ict with information in the possession of the Department of Justice. In view of the contrariety of the reports on this matter we do not ask the Court to take judicial notice of the recital of those facts contained in the Report.”85 Irons knew then that the case for internment was built on a lie, and that Justice Department attorneys had perpetrated a fraud on the Supreme Court of the United States. He also realized that the case might have been decided differently if those lawyers had been candid with the Court about the lack of any evidence of military necessity. Years later the acting solicitor general came to the same conclusion. He thought it “unlikely” that the Court would have ruled the same way if the solicitor general in 1944 had not engaged in the suppression of relevant evidence.86 Peter Irons buried the draft brief in a bundle of other documents in which he had no interest, called the clerk, and asked for copies to be made of everything. When he got home, he called Fred Korematsu and explained what he had found. Korematsu’s initial response was, “They did me a great wrong.” He then decided to file a petition in the same federal district court where he was tried in 1942, asking that his conviction be vacated on grounds of government misconduct. When the petition came before Judge Marilyn Patel, she set aside

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Korematsu’s conviction and concluded with this warning about the Supreme Court’s decision: Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.87

One might expect that news of such a monstrous crime by government officials would take the country by storm. But it didn’t. In fact, the 1984 Korematsu decision has been little noticed. In 1998, for example, Chief Justice William H. Rehnquist, writing about the Japa nese American internment cases, failed even to mention the later decision.88 On the fiftieth anniversary of the internments, Fred Korematsu remarked, “The constitutional violations that were committed have been cleared. This will never happen again.”89 Korematsu was wrong. ENEMY SOLDIERS ON THE HOME FRONT

The case for soldiers acting as jailors inside the United States seemed stronger when the prisoners were admittedly acting on behalf of an enemy nation in the midst of war. In 1942, for example, eight German marines, one of them claiming to be a U.S. citizen, were landed on East Coast beaches by submarines in the dead of night. They were equipped with explosives and bent on sabotage of war industries. When they were captured by the FBI, they were turned over to the army, which quickly put them on trial before a military commission for war crimes and espionage. Their convictions and death sentences were upheld by the Supreme Court in Ex parte Quirin.90 The Court refused the prisoners’ petition for a writ of habeas corpus, saying their detention and military trial were justified. According to the Court, “the detention and trial of petitioners— ordered by the President in

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the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger—are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.”91 The Court went on to find positive, albeit not explicit, statutory authority in the Articles of War (now Uniform Code of Military Justice) to try the prisoners before a military commission and—again implicitly—to detain them for that purpose. Characterizing the prisoners as “unlawful combatants,” the Court sought to distinguish its 1866 decision in Ex parte Milligan.92 Despite the fact that civilian courts were open and operating in both instances, Lambdin Milligan, in contrast to the German saboteurs, “had never been a resident of any of the states in rebellion, [and] was not an enemy belligerent.” The Quirin Court regarded the earlier decision as “having par ticular reference to the facts before it.” 93 The Court seemed to ignore the fact that the defendants in both cases were charged with violating the laws of war. In In re Territo, a U.S. citizen fighting as a soldier in the Italian army was captured on the battlefield in Europe and transported to a POW camp in the United States.94 A lower court found that without regard for citizenship, “[i]n war, all residents of the enemy country are enemies” and may be held as prisoners.95 The court in neither Quirin nor Territo, however, addressed the important question whether an individual captured in the United States in peacetime, who was regarded as a threat to national security but not fighting for an enemy state, could be confined by the military, with or without a military trial.

So far, the military has been used to imprison civilians only in the midst of great national crises. In some cases the very survival of the Republic may have depended on such extreme measures. At other times these actions were clearly unnecessary and profoundly unjust. But in each instance an acute sense of danger led civilians in power to employ the military to sacrifice familiar civil liberties in the interest of safety. They construed the laws and the Constitution to justify their actions, or they changed existing law to address the immediate threat. Or they simply ignored the law. We will not fight another revolutionary war, with large numbers of enemy civilians living among us. We hope the United States will not be invaded

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again by another sovereign nation. And no civil war seems likely to justify another massive military imprisonment of civilians in this country any time soon. But we will face existential threats in the future, whether by terrorist attack, pandemic disease, cyber weapons, or some agency not yet imagined. When the next great threat arises, we may once again be tempted to circumvent constitutional freedoms for the sake of security. The law, unfortunately, will provide scant guidance for soldiers acting as jailors. The history recounted here suggests that the legitimacy of their actions may depend on the existence of a war, declared or undeclared, the gravity of the threat, the existence of statutory authority, the citizenship of a prisoner, whether he was captured on the battlefield, the nature of any charges against him, even a prisoner’s race (or perhaps religion or ethnicity). It is also impossible to predict the response to the next crisis by the president (who may be motivated primarily by cowardice or political ambition), the reaction of Congress (whose members’ motives also are sometimes suspect), or the willingness of courts to question the actions of either. We do know that history has a way of repeating itself, however. In Chapter 8, we return to the story of soldiers as jailors after 9/11. There we will try to determine whether we have learned anything from our experience.

CHAPTER FIVE

Soldiers as Judges

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ost Americans could hardly imagine standing trial before a military court staffed by military officers sitting as judge and jury. Yet throughout our history civilians have been tried by such courts from time to time. Some of these trials were justified by great domestic crises. Others were not. Partly in response to abuses by British military forces in the colonies, the Constitution promises a variety of protections for individuals accused of criminal wrongdoing. These include a presumption of innocence, indictment by a grand jury, trial by a civilian judge and a jury of peers, freedom from unreasonable searches and seizures, and rights to due process and confrontation of accusers. These familiar guarantees were understood to apply in civilian courts, but not necessarily in military tribunals. Soldiers know that they may be treated differently in the military’s criminal justice system than they would in a civilian court. The differences are grounded in practical necessity—in the special circumstances of military life and the military’s uniquely difficult mission of providing for the nation’s defense. The Supreme Court has repeatedly expressed serious reservations, however, about subjecting civilians to military justice. A decade after World War II ended it reminded us that “the business of soldiers is to fight and prepare

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to fight wars, not to try civilians for their alleged crimes. Traditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. . . . [T]here has always been less emphasis in the military on protecting the rights of the individual than in civilian society and civilian courts.”1 Nevertheless, civilians occasionally have, for good reason, been hauled before military tribunals. At other times our political leaders have, for political reasons, subjected civilians to military trials precisely to avoid constitutional and statutory limits applicable in civilian courts. Congress has at times even authorized military trials of civilians when civilian courts were open and operating. And civilian courts have not always been willing to interfere to say what the law requires. This chapter examines the law on court-martial and military commission trials of civilians, drawing on the Constitution, statutes, executive orders, a few key judicial decisions, and the laws of war. While the major events in this brief history date from the War of 1812, the Civil War, and World War II, the subject remains highly controversial in the wake of 9/11. As elsewhere, we are reminded that the ideal of perfect individual liberty must sometimes be tempered by the imperative of national security. So here we depend on the law to help strike the right balance and then maintain it.2 SORTING THE TRIBUNALS

Most of us have at least a colloquial understanding of civilian criminal trials. Trials in the military’s criminal justice system are less familiar. We are concerned here mostly with two kinds of military trials, courtsmartial and military commissions.3 There are important differences. The main purpose of courts-martial is prosecution of armed forces personnel for violation of laws related to military ser vice, such as insubordination, desertion, or conduct unbecoming an officer, plus a variety of offenses, such as theft, that have civilian analogues. By contrast, with few exceptions military commissions have been used to try enemy aliens, including those who spy or engage in guerrilla activities or sabotage, and any belligerent, citizen or alien, who violates the laws of war. They have also been used in connection with the military occupation of conquered territory, or when martial law has been declared and civilian courts are closed.4

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The jurisdiction of courts-martial is strictly prescribed by statute, the Uniform Code of Military Justice (UCMJ).5 That jurisdiction includes authority to try active- duty ser vice personnel, prisoners of war, anyone serving with or accompanying the armed forces in the field in time of declared war or “contingency operation,” and certain “individuals” accused of violating the laws of war.6 Congress has long recognized the authority of military commissions, although it has not expressly authorized them except for limited purposes.7 Under the UCMJ, a court-martial is initiated by a convening authority, generally a commander in the field. Some courts-martial are presided over by a specially trained and certified military judge, who is both a lawyer and a commissioned officer, and who may in some instances act alone.8 In other cases, members of a court-martial may be chosen by the convening authority from among the uniformed ranks to sit, somewhat like a civilian jury, to determine the guilt or innocence of the accused.9 The organization of military commissions is not prescribed by statute, except for those authorized in 2006 to try “alien unprivileged enemy belligerents.”10 Presidents have occasionally ordered the creation of military commissions, dictated their structure and procedures, and even named the commission members. Today statutes authorizing both courts-martial and military commissions emphasize procedural fairness for the accused. Some statutory courtmartial provisions, including protection against self-incrimination and the right to assistance of counsel, actually predate their introduction into civilian trials. Trial procedures and rules of evidence for courts-martial are essentially the same as those used in federal criminal prosecutions. Military commissions may or may not follow the same rules. In either case the president appears to have considerable discretion to change the rules if he or she decides that they are not “practicable.”11 Neither courts-martial nor military commissions are courts within the meaning of Article III of the Constitution. Neither provides for the right to a jury trial otherwise guaranteed by the Sixth Amendment. Military commission decisions are also distinguished in two other important ways. They are not memorialized in public records, in contrast to those in civil courts and courts-martial. And they are subject to review in federal courts only through the habeas corpus process, and then only to test the jurisdiction of the commission.

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MILITARY JUSTICE FOR CIVILIANS BEFORE THE REVOLUTION

Rules for the conduct of soldiers and sailors were first set out in British articles of war in the middle of the seventeenth century.12 These articles named specific crimes, established procedures for trial by court-martial, and prescribed punishments. While the British articles were initially issued by the army and admiralty at the behest of the king, based on his royal prerogative powers, they were later codified by Parliament. By the eighteenth century, they included an instruction that the articles applied “as well in time of peace as in time of war.”13 The court-martial was central to enforcement of the articles. Trials were conducted by several officers who listened to the interrogation of a prisoner and to the prisoner’s defense. Each officer then offered his judgment, and guilt and sentence were determined by a plurality. When the king attempted to expand the jurisdiction of courts-martial to reach civilians, however, Parliament acted to prevent it.14 In the colonies the conduct of the British military was governed by colonial legislation. As a Virginia militia officer during the French and Indian War, George Washington complained that these local laws, unlike the British articles, failed to offer basic protections for individuals charged with crimes. In Great Britain courts-martial denied trial by jury, but at least the government was required to specify charges against an accused and to follow written procedures. The Continental Congress elected Washington to command all the continental forces in 1775, conferring on him “full power and authority to act as you shall think for the good and welfare of the [military] ser vice,” but admonishing him to conduct himself “by the rules and discipline of war” and such direction as he was given by Congress.15 It also adopted the comprehensive 1775 Articles of War, which borrowed heavily from the British articles.16 General Washington was thus constrained in disciplining his troops. The following year the Founding Fathers’ commitment to civilian control of military justice was reflected in the Declaration of Independence, which complained that King George III had “made Judges dependent on his Will alone . . . affected to render the Military independent of and superior to the Civil Power . . . [and] depriv[ed] us in many cases, of the Benefits of Trial by Jury.”17 Then, under the Articles of Confederation, agreed to by Congress in 1777 and ratified by the states in 1781, the first national legislature was given

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power to make “rules for the government and regulation of the said land and naval forces, and directing their operations.”18 In other words, changes in the military’s criminal code required congressional approval. GENERAL WASHINGTON SHAPES THE LAW

The 1775 Articles of War gave the army jurisdiction to conduct courtsmartial of soldiers charged with mutiny, sedition, or aiding the enemy.19 Three years later Congress enacted legislation directing the trial by courtmartial and execution as “traitor, assassin, and spy” of any individual found aiding the enemy within seventy miles of an army headquarters.20 With this authority, General George Washington shaped the boundaries of military law for the duration of the Revolutionary War and set the tone for civilmilitary relations in the early United States.21 Initially there was no general understanding about what soldiers should do about disloyal or disobedient civilians. Exhibiting caution along with compromise in dealing with congressional and state leaders, Washington kept his primary focus on defeating the British army. Meanwhile, he exercised restraint mixed with harsh discipline in ferreting out spies and traitors. In 1780, General Benedict Arnold, the commandant at West Point, sought to betray his country and surrender control of the fort to the British in exchange for a cash payment. He would have been subject to court-martial and execution if he had not defected. But General Arnold did not act alone. A British officer, Major John André, aided by a local citizen named Josiah Hett Smith, conspired with Arnold to infi ltrate American lines and obtain plans for the defense of West Point. André was captured in disguise carrying the incriminating plans, and Smith was arrested at his home. Washington had the two prisoners taken to West Point for trial. André argued that as a military officer he should be treated as a prisoner of war and thus given additional protections. Washington, however, ordered the military trial to proceed on a charge of espionage, noting that André was captured wearing civilian clothing and traveling under an assumed name. The British major was found guilty by a board of general officers. Washington approved the board’s findings and ordered André hanged within a few days. Smith claimed that as a citizen he was not amenable to military jurisdiction. He was, he said, neither a traitor like Arnold nor a spy like André.

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Congress’s instructions to General Washington gave him considerable discretion to act on his own. Yet Washington knew that summary military proceedings against Smith would have riled federal and state civilian leaders, even if it did not violate explicit legal strictures. Whatever Smith’s motives (and they have never been clear), he was a civilian. Washington had earlier shown his sensitivity to the political and legal risks of prosecuting civilians by military trial. For example, when a civilian named Samuel Carter was tried by the military for supplying arms to the enemy, Washington ordered him delivered to civilian authorities in New Jersey, because he was “not fully satisfied of the legality of trying an inhabitant of any State by Military Law, when the Civil authority of that State has made provision for the punishment of persons taking Arms with the Enemy.”22 Smith eventually benefitted from Washington’s ambivalence. Smith argued that a New York treason statute trumped the federal law that would have permitted his trial and execution by the army. Not only would a military trial override New York’s constitutional protections for an accused, he insisted, it would also effectively render civilian authority subordinate to the military. When Washington finally convened a court-martial to try Smith, the court declined to convict him. Washington then delivered Smith to a New York sheriff to be tried for treason in state courts. In the end, a state grand jury declined to indict Smith, who lived to tell his story from Great Britain. On the eve of the Constitutional Convention, the United States thus had a system of military justice inherited from the British, but revised to account for the unique experiences of the Revolutionary War. Still, the boundaries between civilian and military justice were far from clear. FROM THE FRAMING TO THE CIVIL WAR

With a general consensus and little debate, the Framers agreed in Philadelphia that Congress would have power to “make Rules for the Government and Regulation of the land and naval Forces.”23 This was understood to include authority to dictate procedures for trials of military personnel. Executive officials and military officers retained some flexibility to deal with unforeseen emergencies, but Congress could overrule such initiatives with new legislation. The Constitution itself, however, says nothing about the military trial of civilians, who are not part of “the land and naval Forces.”

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The Bill of Rights, ratified in 1791, provides critical protections for individuals charged with crimes. The Fifth Amendment requirement of indictment by grand jury does not apply “in cases arising in the land or naval forces, or in the Militia, when in actual ser vice in time of war or public danger.”24 No other distinction is made, however, between civilian and military defendants. And early on, no one knew whether or to what extent the protections of the Bill of Rights extended to civilians brought before military courts.25 Incorporating standards established by the Continental Congress in 1775, the first Congress enacted legislation in 1789 stating that the military “shall be governed by the rules and articles of war which have been established by the United States in Congress assembled.”26 Revised articles of war were then adopted in 1806 to further define procedures and punishments for courtsmartial. Inspired by the Benedict Arnold incident, they also provided that noncitizen spies or anyone who gave intelligence or other assistance to the enemy could be tried by the military and sentenced to death.27 The 1806 code remained in place, with various amendments, for more than a century. Andrew Jackson’s Trials

Andrew Jackson was the commander of American troops in New Orleans during the last stages of the War of 1812.28 Fearing imminent attack from a large British force nearby, Jackson declared martial law on December 16, 1814, and assumed full control of the city and its civilian population. When the British invaders were defeated in the storied Battle of New Orleans a short time later, the war had already formally ended, although official word of the Treaty of Ghent would not reach the city for another two months. Until it did, Jackson refused to lift martial law in the city. State senator Louis Louallier wrote a letter, unsigned but published widely, objecting to the continuation of military rule, which he described as “no longer compatible with our dignity and our oath of making the Constitution respected.” In par ticular, he argued that persons accused of a crime in New Orleans should be tried in civilian court, not by military tribunals.29 Jackson had Louallier arrested on the pretextual charge of spying and other offenses. Federal Judge Dominick Augustin Hall then issued a writ of habeas corpus for Louallier, after finding that local conditions no longer justified martial

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law. Unbowed, Jackson defiantly ordered the judge arrested and detained in the same barracks as Louallier, on grounds that Judge Hall had aided and abetted Louallier in inciting mutiny in the army. The general also ordered the U.S. marshal not to interfere. At Jackson’s direction, a court-martial was convened to try Louallier. The military judges acquitted Louallier, concluding that the military court had no jurisdiction to try someone who was not a member of the militia or the army, and that there was no evidence to support the charge of spying. Jackson ignored the acquittal and kept Louallier in confinement. Anticipating that a court-martial would also acquit Judge Hall, he then ordered soldiers to remove the judge from the city. The general continued martial law until he was officially notified of the proclamation of peace on March 13. Judge Hall immediately returned to New Orleans and cited the celebrated general for contempt of court. Jackson argued that martial law gave him the right to control both the military and civilian functions of the city. Yet even if his conduct was technically unlawful, Jackson insisted, necessity “may, in some cases, justify a departure from the constitution.”30 The district attorney responded that while necessity might justify extraconstitutional measures, the record showed clearly that there was no necessity during the period when Jackson ordered the military trial of Louallier. Following a hearing in which Jackson appeared in civilian clothes, Judge Hall held Jackson in contempt and fined him $1,000. Jackson submitted to civilian authority in a dignified manner and insisted on paying the fine himself. When word of these developments reached Washington, President Madison wrote to Jackson that he was relieved that the general had based his actions “exclusively” on the ground of necessity, “without which the country must have been conquered, and the Constitution lost.”31 The president did not question the factual premise of Jackson’s actions and merely accepted the general’s assertions. Three years later, in 1818, General Jackson led U.S. troops in Florida during the undeclared Seminole War. He ordered two British civilians, Alexander Arbuthnot and Robert Christy Ambrister, arrested and charged with inciting and aiding the Seminole to war against the United States. A “special court” of eleven military officers convicted both men. Arbuthnot was hanged, following a two-thirds majority verdict, and Ambrister was shot on Jackson’s orders, although the court had ordered a lesser sentence.

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President Monroe criticized these trials in his State of the Union message, and a House committee report concluded that “no law of the United States” authorized such trials in this setting. The same report also found no military necessity for the trials, much less the death sentences. Yet Jackson’s enduring popularity won out. The full House rejected a resolution to censure Jackson, and voted instead by a wide margin to support the trial and execution of both men. A similarly critical Senate report was debated on the floor, but the Senate adjourned without acting on it. A quarter- century later an aging Andrew Jackson, seeking to redeem his legacy, traveled to Washington to lobby Congress for a rebuke of Judge Hall’s contempt ruling in New Orleans. After an intensely partisan debate between Democrats and Whigs that stretched over two years, Congress finally obliged in 1844 by voting to refund the $1,000 fine to Jackson, with interest. In effect, it retroactively ratified Jackson’s imposition of martial law, as well as the military trial of civilians who criticized the military operation. It also cast serious doubt on the nation’s commitment to the primacy of civilian authority over the military. General Scott Takes the Field

Military commissions were first introduced in the United States by General Winfield Scott, who coined the term and ordered their creation in 1847 during the war with Mexico.32 Ironically, although his order applied to all offenders, Scott was not looking for a forum to try captured Mexicans, military or civilian. He was worried about his own troops, in par ticular members of the militia and volunteers, who reportedly committed the worst atrocities—including murder, rape, and theft— against Mexican civilians. Scott recognized that the existing Articles of War did not apply extraterritorially and in any case failed to address many of these offenses, so he laid the groundwork for the extraordinary tribunals by declaring martial law in occupied areas. Scott acknowledged the authority of Congress to control his actions, and he invited legislation to approve the formation of military commissions. But when Congress failed to do so, the general acted on his own. In the period before the Civil War, military commissions thus became a sort of stop-gap measure, allowing occasional trials by soldiers outside the bounds established for courts-martial.

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THE CIVIL WAR Ground Rules for Military Trials

The backdrop for President Lincoln’s extensive use of military trials was, of course, the unprecedented crisis facing the nation during the Civil War.33 In the Confederacy and in border states there was considerable doubt that the civilian courts could continue to do their job. Yet as the Supreme Court put it in a landmark decision a year after the war ended, “When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion—if the passions of men are aroused and the restraints of law weakened, if not disregarded—these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws.”34 That “watchful care” included a determination of the timing, location, and other preconditions for military trials of civilians. More than 4,000 military tribunals were convened during the Civil War,35 a majority in the border states of Missouri, Kentucky, and Maryland. Some of these tried civilian defendants for a variety of offenses. Many of the trials were approved by the executive alone. A presidential proclamation on September 24, 1862, authorized “trial and punishment by courts martial or military commissions” for “all rebels and insurgents, their aiders and abettors . . . and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States.”36 Other military trials were approved by Congress, at times retrospectively, in a series of measures enacted between 1862 and 1864.37 None of the statutes expressly conferred military tribunal jurisdiction over civilians, however, except for one that authorized court-martial or military commission trial and the death penalty for “all persons, in time of war or rebellion against the United States, found lurking as spies.”38 An 1864 act also directed military commanders to execute the sentences of military commissions “against guerilla marauders for . . . violation of the laws and customs of war, as well as sentences against spies, mutineers, deserters, and murderers.”39 In 1863, the army adopted a set of legal guidelines written by Professor Francis Lieber. General Orders No. 100, more commonly referred to as the Lieber Code, was approved by President Lincoln and covered a range of

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topics, including martial law, military jurisdiction, and prisoners of war. Although Lieber’s prescriptions were not approved directly by Congress or the courts that eventually reviewed military commission decisions, his categorical distinctions probably influenced the decisions of each branch. He recognized, for example, that prisoner- of-war status attached to captured regular soldiers serving in a hostile army, but not to irregular fighters, such as guerillas, spies, and saboteurs. Lieber declared that courts-martial should try crimes defi ned by statute, while cases based on law- of-war violations ought to be tried by military commissions. Lieber’s code did not, however, address the precise limits of military commission jurisdiction. Lieber’s commitment to justice tempered by necessity is reflected in his response to a question from General John Dix, who in 1864 headed a military tribunal reviewing the detention of blockade runners. Asked whether such a tribunal could try a civilian for a law- of-war violation in an area not under martial law, Lieber replied that “undoubtedly a citizen under these conditions can, or rather must, be tried by military courts, because there is no other way to try him and repress the crime which may endanger the whole country.”40 Wartime Military Commissions

Civil War military commissions provided some important protections for defendants’ rights. They consisted of at least three and often more officers. A defendant had to be present at trial and was allowed to be represented by counsel. Prosecution witnesses had to confront the accused; evidence collected by affidavit outside the commission was not allowed. Records were kept of all proceedings, sentences were reviewed by a more senior officer, and capital sentences had to be approved by the president.41 Particularly in areas along the Union/Confederate border, military commissions arguably benefitted the accused where martial law might otherwise have degenerated into military-style summary justice for Southern sympathizers. Even with these procedural guidelines, however, convening officers worked in largely uncharted legal waters. Only the broad proscriptions described earlier indicated what offenses were triable by military commission. While many defendants were convicted based on evidence that they had burned bridges or destroyed railroad and telegraph lines, crimes clearly related to prosecution of the war, others were charged more vaguely with

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“horse stealing,” “assuming an attitude of open rebellion against the Federal Government,” or simply “being a bad and dangerous man.”42 Some of these defendants had their convictions reversed or sentences suspended by senior officers. President Lincoln personally intervened in some cases.43 Where military commissions were convened, it is not clear that they were always needed. In Missouri, for example, civilian courts remained open throughout the war. General John C. Fremont nevertheless proclaimed martial law there in August 1861, and four months later President Lincoln approved martial law and the suspension of habeas corpus in the state. While in theory military commissions could not decide matters within the civil courts’ jurisdiction, another army general characterized those courts as “generally unreliable. There is no alternative but to enforce martial law.”44 It is impossible to say how often military commissions abused their authority. But of 101 such commission trials officially recorded in Missouri between September 1861 and June 1862, at least one appeared to be deliberately aimed at suppressing free expression. Edmund  J. Ellis, editor of the Boone County Standard, was accused of publishing information that would benefit the enemy and encourage resistance to the federal government. The only evidence introduced by the army prosecutor was articles that appeared in Ellis’s paper. The military commission that convicted Ellis ordered his expulsion from the state and seizure of his newspaper’s press and equipment.45 In only two cases did the Supreme Court squarely face the question whether military courts could try Confederate sympathizers away from the battlefield. The Court answered the question squarely in neither case. Clement Vallandigham and a Reluctant Court

Clement Vallandigham—Valiant Val to his supporters—was a prominent former Democratic congressman from Ohio.46 He was also a racist and a persistent critic of President Lincoln’s war policy. After the Ohio legislature redrew his district, Vallandigham lost his seat in Congress in 1862, and the following year he prepared to run for governor of Ohio. On May 5, 1863 Vallandigham gave a public speech at a political rally expressing sympathy for the South and, according to the Supreme Court’s later account, uttered “disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts for the suppression of an unlawful rebellion.” He described the Civil War as “wicked, cruel, and unnecessary,”

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waged not to preserve the Union but “for the purpose of crushing our liberty and to erect a despotism,” to free blacks and enslave whites.47 Only days before Vallandigham’s speech, General Ambrose Burnside, sent by Lincoln to the relative quiet of Ohio after failing miserably as a battlefield commander, had issued a general order warning that prosecution by military commission and the death penalty would be imposed on those who gave aid to the Confederacy, including any who expressed “sympathies” for the enemy.48 Neither disloyal words nor disloyal acts would be tolerated. In response to Vallandigham’s fiery rhetoric, 150 soldiers under Burnside’s command forced their way into the Democrat’s Dayton home, arrested him, and put him on a train for Cincinnati. His trial before a military commission of seven officers appointed by Burnside began the next day. A seasoned trial lawyer, Vallandigham called his own witnesses, crossexamined government witnesses, and also had the assistance of other counsel. He challenged the authority of the military commission to try him, since he was not part of any military, and pointed out that the Constitution permitted his arrest only following an indictment or presentment of a grand jury. He demanded to be tried in a civil court, where he would be accorded a public trial by an impartial jury. Vallandigham also maintained that because his speech was delivered at an open and public meeting, his remarks were expression protected by the First Amendment, intended to change government policy by persuasion and free elections, not by force. Before the military commission reached its verdict, President Lincoln sent a telegram to Burnside expressing doubt that it was necessary to arrest Vallandigham, but promising to support the prosecution since it had already begun. In a letter a few weeks later, Lincoln defended Vallandigham’s prosecution, because “he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, to leave the rebellion without an adequate military force to suppress it.” In effect, he was “damaging the military power of the country.” 49 The military tribunal convicted Vallandigham. His sentence, approved by General Burnside, was detention in a federal fort for the duration of the war. A short time later President Lincoln commuted the sentence and instead banished Vallandigham to the Confederacy. While the military commission trial was still underway, Vallandigham sought a writ of habeas corpus in federal court. The government relied on Lincoln’s September 1862 proclamation authorizing the military trial of

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persons “discouraging volunteer enlistments, resisting militia drafts, and guilty of any disloyal practices, affording aid and comfort to Rebels against the authority of the United States,” and suspending the writ for such persons.50 Even though civilian courts remained open, it said, the trial was justified by the president’s constitutional war powers and the law of war. In the continuing insurrection neither habeas corpus nor free expression that aids or attempts to aid the enemy could be tolerated. As counsel for the government put it, no man can “throw off his allegiance, defy the government, make war upon it, and, at the same time, claim its protection. When he lifts his arm against the constitution, the arm may be cut off, without giving him a right to complain of cruel and unusual punishment.”51 The circuit court denied habeas: “The Court cannot shut its eyes to the grave fact that war exists . . . threatening the subversion and destruction of the Constitution itself. . . . Self-preservation is a paramount law.” Although the Constitution “does not specify the powers [the president] may rightfully exercise in this character,” they were “very high powers, which it is well known have been called into exercise on various occasions during the present rebellion.” On the facts, in Ohio “a class of mischievous politicians had succeeded in poisoning the minds of a portion of the community with the rankest feelings of disloyalty. . . . The evil was one of alarming magnitude, and threatened to seriously impede the military.”52 The court did not, however, rule on the validity of the military commission trial. Vallandigham did not seek review from denial of his habeas petition, likely because his banishment to the Confederacy made such an appeal practically moot. Instead, he appealed his military commission conviction directly to the Supreme Court. On February 15, 1864, the high Court ruled against Vallandigham on jurisdictional grounds. Such direct review was not listed among the grants of appellate jurisdiction to the Supreme Court by the Constitution. Similarly, it concluded, judicial review of the actions of a military tribunal was not contemplated by either Article III of the Constitution or the Judiciary Act of 1789.53 In a dictum, however, the Court implied that the trial was lawful, based on the application of law of war principles to those engaged in the rebellion.54 Lincoln was unapologetic. When Democrats protested that Vallandigham should not have been arrested or tried behind the lines of military occupation and insurrection, the president sent them an open letter declaring, “I am unable to see that there is any such constitutional distinction. . . . [T]he class

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of arrests complained of . . . are constitutional wherever the public safety does require them, as well in places to which they may prevent the rebellion extending, as in those where it may be already prevailing. . . . Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? . . . I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.”55 Lincoln went on to explain that even though civilian courts were open and operating, they had no jurisdiction to try the offenses with which Vallandigham was charged. Vallandigham soon made his way to Canada, where for the balance of the war he supported the Confederate cause as best he could. Lambdin Milligan’s Trial

We first met Lambdin Milligan, a Southern sympathizer residing in Indiana, in Chapter 4, where we considered his imprisonment by the army. His military trial and its review by the Supreme Court merit separate treatment here, because a majority of the justices appeared to foreclose the use of military commissions to try citizens where civilian courts were open and operating.56 Milligan belonged to a secret society called the Order of the Sons of Liberty, part of a vigorous antiwar movement in Indiana that reportedly was financed by a Canadian group led by the exiled Clement Vallandigham. A growing sense of danger there, following a brief incursion by guerillas under the command of Confederate General John Morgan,57 prompted organization of the state into a military district in March 1863. The stage was set for Milligan’s arrest and trial. In August 1864, military intelligence agents raided a printing shop where the Sons of Liberty met, and found boxes of arms and ammunition. Milligan and five other men were arrested and charged with conspiracy against the government of the United States, giving aid and comfort to rebels, inciting insurrection, disloyal practices, and violating the laws of war. The government alleged that they were part of a conspiracy to seize a federal arsenal and provide weapons to Confederate prisoners.58 The six defendants were brought before a military commission consisting of eleven army colonels and one general. Their trial started in late October 1864 and lasted through early December. The evidence against Milligan was

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circumstantial, primarily testimony that he had a military title in the Sons of Liberty and had been present at meetings where military plans might have been discussed. Milligan denied any knowledge of a title in an organization he viewed as purely political. Each of the defendants was found guilty of all charges. Milligan and two others were sentenced to death by hanging. Counsel for Milligan and his codefendants pleaded for leniency before President Lincoln. While there is evidence that Lincoln might have commuted the death sentences, he was assassinated before he could act. President Johnson approved Milligan’s execution. Shortly before he was scheduled to be hanged, Milligan sought a writ of habeas corpus from a federal circuit court in Indianapolis. He also argued that the military court lacked jurisdiction to try him and that he was entitled to a jury trial in a civilian court. The case was immediately transferred to the Supreme Court, and upon the recommendation of the Indiana governor President Johnson commuted the death sentences to life imprisonment at hard labor. The fact that the war was over by the time the case reached the Supreme Court appeared to free the justices to consider the merits of Milligan’s case. Two years earlier, with the war still raging, the Court had dismissed Clement Vallandigham’s similar appeal on a technicality, perhaps fearing that judicial intervention would weaken the military. On April 3, 1866, the justices unanimously granted Milligan’s petition for habeas corpus and ordered him discharged from military custody.59 They all agreed that the 1863 Habeas Corpus Act required his release. That statute directed the government to furnish a list of civilian prisoners to the civilian court each month. If a list was not provided, or if a grand jury meeting at the time failed to indict a prisoner, the prisoner had to be released after taking an oath of loyalty to the United States. The statutory procedure was ignored in Milligan’s case. The Court rejected the government’s assertion that Milligan was a prisoner of war to whom the Habeas Corpus Act was inapplicable.60 The justices also agreed that because Milligan’s military trial took place where civil courts were open, outside “the theatre of active military operations,” the president as commander in chief lacked authority to establish the military commission. “From what source,” they asked, “did the military commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them; because the Constitution

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expressly vests it ‘in one supreme court and such inferior courts as the Congress may from time to time ordain and establish,’ and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is ‘no unwritten criminal code to which resort can be had as a source of jurisdiction.’ ” 61 Even the unprecedented crisis of the Civil War did not justify the president’s actions, said the Court: “No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.”62 Neither, according to the Court, could the military commission be justified as an exercise of martial law, for martial law was not— and could not have been— declared in Indiana. Indiana was not actually invaded by enemy forces at the time of Milligan’s arrest, courts were open, and civilian government remained in full control. The court that should have heard his appeal “needed no bayonets to protect it, and required no military aid to execute its judgments.”63 The Court’s majority maintained in a broad dictum that Congress was powerless to authorize military commissions in circumstances like those existing in Indiana. Four justices disagreed. In their view, civilian courts might be “open and undisturbed in the execution of their functions, and yet wholly incompetent to avert the threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators.” 64 Speaking through Chief Justice Chase, the minority concluded in effect that the Bill of Rights could be suspended in war time by legislation: “The Constitution itself provides for military government as well as for civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former. . . . We think, therefore, that the power of Congress, in the government of the land and naval forces and of the militia, is not at all affected by the fifth or any other amendment. . . . [W]e are unwilling to give our assent by silence

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to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government, and to augment the public dangers in times of invasion and rebellion.”65 The four concurring justices then suggested in their own dictum that the president might, on his own initiative, approve the trial of a civilian by military commission “in cases of a controlling necessity, which justifies what it compels,” although Milligan’s was not such a case.66 In June 1865, a year before the Milligan case was decided, a military commission appointed by President Andrew Johnson tried eight civilians accused of conspiring with John Wilkes Booth in the assassination of Abraham Lincoln. All were convicted, and four were sentenced to death.67 Concerning the propriety of military commissions, Attorney General James Speed wrote that “Congress may prescribe how all such tribunals are to be constituted,” but if it fails to do so “they must be constituted according to the laws and usages of civilized warfare.” According to the attorney general, “secret active public enemies” like John Wilkes Booth and his associates “may be tried, and tried lawfully, [even] when and where the civil courts are open and transacting the usual business.” Responding to the complaint that military tribunals are not limited by the Bill of Rights, Speed noted that as an alternative to summary killing of suspected enemy prisoners, they “exist under and according to the laws and usages of war in the interest of justice and mercy. They are established to save human life, and to prevent cruelty as far as possible.”68 One of the defendants, Dr. Samuel Mudd, who set Booth’s broken leg after the assassination, was sentenced to life in prison. After the Supreme Court handed down its decision in Ex parte Milligan, Mudd petitioned for a writ of habeas corpus, arguing, like Milligan, that the military commission lacked jurisdiction to try him. A district court denied the writ, distinguishing Milligan on grounds that in 1865 Washington was a fortified city, headquarters of the nation’s military, and that “[i]t was not Mr. Lincoln who was assassinated, but the Commander in Chief of the army for military reasons.” The court ruled that Mudd’s military trial was justified, and it refused the writ.69 Then before Mudd could appeal, President Johnson pardoned him.70 For all its soaring rhetoric, some feel that the Milligan decision does not express “the realities of American constitutional law” either then or now.71 Nevertheless, it has not been overruled, and in the last century and a half it has been cited repeatedly not only as reflecting the ideals of a constitutional

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government of separated powers, but also as authoritative in describing the military’s role in that government. Even its dicta about Congress’s inability to authorize military commissions under conditions like those prevailing in Indiana, and about prerequisites for martial law, have not been tested. The Milligan Court did leave many important questions unanswered, but it can hardly be faulted for that, given the tradition of American courts to address only legal matters squarely facing them, and to avoid constitutional issues whenever possible. Precisely when might Congress approve military commission trials of civilians? Could the president ever authorize such a trial on his own initiative? If military trials are barred when civil courts are open, must those courts be able to act independently and enforce their judgments? Does the liability of a civilian to military justice depend upon his citizenship or residence? Answers to some, but not all, of these questions would come in the fullness of time from each of the three branches of government. FROM RECONSTRUCTION TO WORLD WAR II

Military trials of civilians continued in the occupied South during Reconstruction, although civilian courts were functioning and habeas corpus was generally available. In 1867 Congress enacted a measure that purported to authorize military commanders to conduct courts-martial or military commission trials whenever, in their judgment, “it may be necessary.”72 The Supreme Court’s analysis in Milligan suggests that those trials may have been unlawful. Yet in a practical sense the war had not really ended in parts of the South, where white political leaders refused to protect the lives and liberties of black citizens and Unionists. Of some 1,400 military commissions between 1865 and 1870, most targeted members of groups like the Ku Klux Klan, which waged a campaign of violence against blacks, union members, federal officials, and occupying troops.73 Whatever the legitimacy of the military trials of civilians as such, not many apparently were deliberately aimed at suppressing constitutional freedoms. In one notorious case, however, when a newspaperman in Vicksburg, Mississippi, William McCardle, published “incendiary and libellous” articles attacking Union generals in the area, one of the generals had him arrested and tried by a military commission for obstructing Reconstruction. McCardle was denied habeas corpus when a civilian court held that Congress could use such military means to enforce Reconstruction. McCardle’s

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appeal to the Supreme Court was then thwarted when Congress passed a new law denying the high Court appellate jurisdiction in cases like his.74 Some lower court judges found that the Constitution’s Guarantee Clause enabled Congress to authorize military commissions in the South.75 But the Supreme Court did not reach the merits in any other Reconstruction- era challenges to military trials. There were few pertinent developments between Reconstruction and World War II. During World War I, however, at the beginning of the first Red Scare, military officials testified in support of legislation that would have provided for trial by court-martial of anyone who spread “false statements and propaganda” or otherwise interfered with the war effort.76 The head of military intelligence, Ralph Van Deman, declared that “[w]e have got to have summary justice in order to meet the kind of thing we are up against in this country. . . . The ordinary courts are tied up with form and red tape and law which they cannot get around.”77 Civil courts, he complained, require more evidence than a military tribunal. But President Woodrow Wilson called the bill unconstitutional and “altogether inconsistent with the spirit and practice of America,” and that was the end of it.78 One military trial during this period attracted considerable attention. When a purported Russian national calling himself Pablo Waberski entered the United States at the Mexican border, he was detained by army officers in Nogales, Arizona, then brought to Fort Sam Houston in Texas.79 Waberski was alleged to be a German spy sent to sabotage American military installations, and he was charged with violating an article of war that permitted trial by court-martial or military commission and the death penalty upon conviction by two-thirds of the tribunal for “[a]ny person who in time of war shall be . . . acting as a spy.”80 He was tried by a military commission of five officers and found guilty. Two attorneys general offered starkly different opinions on the lawfulness of the military commission. Thomas Gregory wrote in 1918 that when Waberski was detained by military personnel at Nogales, there had been no declaration of martial law and the civilian courts were operating in that area. Based in part on Milligan, Gregory declared that military commissions could not try persons charged with crimes “outside of the field of military operations or territory under martial law . . . except members of the military or naval forces or those immediately attached to the forces such as camp followers.”81 A year later Attorney General Mitchell Palmer reversed Gregory’s opinion, citing a new factual determination that Waberski was

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in fact a German citizen and spy named Lothar Witzke, not a Russian national, and was thus amenable to trial by military commission for violating the Articles of War.82 In 1920, President Wilson commuted Witzke’s death sentence to life imprisonment at hard labor. When Germany sought his release as a prisoner of war, the judge advocate general recommended his repatriation, and Witzke returned to Germany in 1923.83

WORLD WAR II The German Saboteurs

Just six months after the United States entered World War II, in the midst of a U-boat offensive off the U.S. coasts, eight German marines trained in the techniques of military and industrial sabotage were put ashore by submarines on beaches in New York and Florida. They carried plans for a two-year campaign to blow up railroads, bridges, factories, and other defense targets inside the United States.84 One group of four landed at Amagansett, Long Island, under cover of darkness on June 12, 1942, then quickly changed from their uniforms into civilian clothes. Just as the rubber boat that brought them ashore pushed off to return to the submarine, the leader of the shore team, George Dasch, saw a dark silhouette approach in the fog. Twenty-one-year-old Coast Guardsman Frank Collins was on beach patrol from a nearby station house. Collins stopped Dasch and questioned him. Dasch told the guardsman that he and his friends were lost fishermen who would find their bearings once the sun came up. After a ner vous conversation in which Dasch gave Collins $260, the young guardsman returned to his station to report what had happened, including the apparent bribe. When Collins and other guardsmen returned to the beach, they found military uniforms and explosives the Germans had haphazardly buried in the sand. The combination of the lucky intercept by Collins, sloppy work by the Germans, and a decision by two of the saboteurs to turn themselves in led to the arrests of all of the Germans within weeks, before any sabotage was attempted. Newspapers printed exaggerated accounts by FBI Director J. Edgar Hoover of “brilliant” police work by his G-men, virtually ignoring the roles of the Coast Guard and the main German informant, George Dasch. The Roosevelt

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administration worried that if Dasch told his entire story in open court, neither the administration nor Hoover’s FBI would be seen as deserving credit for the capture, and the American public would learn how easily the German saboteurs had reached our shores undetected. A military trial offered one way to avoid such unwanted publicity, while also promising a speedy resolution. Perhaps more important, government lawyers advised that sentences in a civilian court might be no more than two years and a fine if the Germans were simply found guilty of conspiring to commit sabotage. President Roosevelt wanted the death penalty for the saboteurs, which could only be ordered by a military commission.85 On July 2, 1942, the president, acting “by virtue of the authority vested in me by the Constitution and statutes of the United States,” issued a proclamation declaring that alien enemies who entered the United States and were charged with “sabotage, espionage, hostile or warlike acts, or violations of the law of war” could be tried by military tribunals.86 The same day he created a military commission to try the eight Germans “in accordance with the law of war,” and he appointed seven generals as judges, two prosecutors (the attorney general and judge advocate general), and two colonels as defense counsel, all subordinates of the president.87 The commission was ordered to “make such rules for the conduct of the proceeding, consistent with the powers of military commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it.” It also could admit such evidence “as would, in the opinion of the President of the Commission, have probative value to a reasonable man.”88 A two-thirds vote could convict and sentence the accused to death. Sole reviewing authority was reserved by the president, and no judicial intervention was allowed. Each of these provisions departed significantly from the procedures established by Congress in the Articles of War for courts-martial. Although the Constitution gives Congress the power to “defi ne . . . Offences on Land and Water,” and while Congress had done so in the Articles of War, the president relied instead on the law of war and his own constitutional war powers to create this military commission. In charging the eight German marines he also blended statutory offenses (aiding the enemy and espionage) with crimes under the law of war (entering the United States “through coastal . . . defenses . . . to commit sabotage”).89 The tribunal met in secret from July 8 to August 1, 1942. On the twelfth day of the trial, July 21, defense counsel Colonel Kenneth Royall challenged

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the jurisdiction of the commission in federal court, defying the president’s order foreclosing judicial involvement. Before he filed the claim in civil court, however, Royall advised Attorney General Francis Biddle and President Roosevelt of his plans. Royall then took the extraordinary step of meeting ex parte with individual Supreme Court justices to let them know of his highly unusual case. One of these meetings with Justices Roberts and Black took place at Roberts’s Pennsylvania farm. After a phone conference with Chief Justice Stone, the Court agreed to hear an argument on Royall’s jurisdictional challenge. Before the Supreme Court could act, however, Royall had to petition a district court for habeas corpus, the denial of which could then be appealed to the high Court. The lower court concluded that because the defendants were citizens or residents of a nation at war with the United States, according to the terms of the president’s proclamation they could not obtain any remedy in the courts of the United States.90 In an unprecedented midsummer session, the Supreme Court held nine hours of oral argument on July 29 and 30 in which government lawyers questioned the authority of the Court to review the jurisdiction of the commission and the availability of habeas corpus for the accused. The justices could not have been well prepared. They were dealing with law of war and Articles of War questions that rarely came before them, and the parties’ briefs arrived at the Court on the same day that arguments began. There were also possible grounds for disqualification of up to five of the justices because of various connections each had to the military or to the executive branch, not to mention ex parte contacts with counsel for the petitioners. Based on the Constitution and the Court’s 1866 decision in Ex parte Milligan, Royall argued that it was for Congress, not the president, to make rules for military tribunals. Accordingly, he argued, any aspect of the president’s order that was inconsistent with the Articles of War was unlawful. Because the military commission was instructed to prescribe its own rules of procedure—making them up along the way if it so chose—the commission violated an article that directed the president to set the procedures of military commissions. Moreover, Royall pointed out, instructions that this commission’s verdict and sentence could be reviewed only by the president were inconsistent with other articles.91 Attorney General Biddle began for the government by arguing that, unlike the accused Germans, Lambdin Milligan never wore the uniform of armed forces at war with the United States. In contrast to Indiana at the time

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of Milligan’s arrest, he noted, the theater of operations in 1942 certainly extended to the U.S. East Coast, as evidenced by the submarine landings there. In any event, Biddle argued, the 1866 decision was such bad law that the Court should use this occasion to overrule it. While this case could be won without disturbing Milligan, he insisted, it would be better to repudiate it altogether. Although the Court did not go so far as Biddle requested, the government won its case. The Court issued a short per curiam decision on July 31, upholding the jurisdiction of the military commission and denying the defendants’ petition for habeas corpus relief.92 The Court did not, however, explain its reasoning. The commission reconvened and completed its work on August 1, finding all eight defendants guilty and sentencing six of them to death. The two who cooperated with investigators would serve life prison terms. The other six were executed on August 8, 1942. It is hardly surprising that the Court would uphold the military commission’s jurisdiction while the United States remained locked in a horrific war against German and Japanese aggression, even though civilian courts were open and operating normally, and the trial was conducted far from any battlefield. Public opinion at the time was captured by a Detroit Free Press editorial: “Realism calls for a stone wall and a firing squad, and not a lot of silly holier-than-thou eyewash about extending the protection of civil rights to a group that came among us to blast, burn, and kill.”93 When the Court issued its full opinion in Ex parte Quirin on October 29, it found that Congress had “authorized” the trial of offenses against the law of war before military commissions.94 Far from explicitly authorizing such commissions, however, Article 15 of the Articles of War provided merely that the “provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions.”95 But the Court’s reading of the statute enabled it to conclude that in creating the commission the president was exercising “the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief,” thus avoiding the need to say whether the president could have acted alone.96 The Court then concluded that according to the laws of war the accused were unlawful belligerents, because they entered the United States in civilian

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dress with the aim of committing sabotage. Unlike uniformed soldiers who, once detained, become prisoners of war, these eight could be tried and punished by a military commission. Citing Revolutionary War history and the 1806 Articles of War, the Court explained that enemies of the United States were never intended to have access to civilian courts or to enjoy the protections of the Constitution, including the right to a jury trial. The fact that one of the Germans was apparently a U.S. citizen was of no consequence: that status “does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.”97 Unlike Lambdin Milligan, a citizen who had resided in Indiana for twenty years and had never lived in a Confederate territory or worn the rebel uniform, the Quirin defendants were German marines on a sabotage mission directed by the German government. Regarding alleged procedural inconsistencies with the Articles of War, the Court found that the statutory procedures either did not apply to military commission trials of defendants like these, or that the procedures prescribed by the president and followed by the commission had not violated the articles. Thus, it did not have to decide “whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents.”98 The Court explained that it had agreed to hear the defendants’ extraordinary appeal “[i]n view of the public importance of the questions raised by their petitions and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.”99 Symbolically, the Court sent the important message that it would exercise its independent judicial powers in the face of the president’s attempt to deny any access to civil courts, even in the darkest days of a declared general war. Practically speaking, however, there was probably no chance that the Court would second-guess the president’s actions, either by transferring the case to a regular federal court or by closely reviewing the commission procedures or its record in this proceeding. Justice Frankfurter later called Quirin “not a happy precedent,”100 while Chief Justice Stone and Justice Douglas lamented that taking and deciding the case did not excuse the weaknesses in the Court’s opinion.101 As Justice Scalia put it many years later, Quirin “was not [the Court’s] finest hour.”102 Despite the government’s urging, the Quirin Court did not repudiate its 1866 decision in Ex parte Milligan. In fact, it cited that decision with approval several times. Yet the two cases are difficult to reconcile. The Quirin Court’s

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distinction of Milligan as involving a civilian noncombatant seems unconvincing, since Lambdin Milligan might have posed as great a danger to national security as the eight German marines, and like them he was charged with violating the laws of war. Moreover, both military trials were conducted outside “the theatre of active military operations.” The Milligan Court concluded that the president was powerless to approve a military commission where civilian courts were still open and operating, even during the unprecedented crisis of the Civil War. The clearest distinction, of course, was that while both cases concerned actions in the middle of a great war, only one was decided after the fighting had stopped. Thus, the Court’s fear that its ruling might imperil the nation appeared to make it more willing in Quirin to side with the executive. The result in the 1942 case might thus be viewed as aberrational—a product of the unhappy circumstances in which it was decided—and not likely to furnish a broader precedent for military trials of civilians. When a second group of German military personnel came ashore from a submarine in Maine in November 1944, the FBI had advance notice of their arrival. The two Germans (one of whom claimed  U.S. citizenship) were carry ing concealed side arms, forged credentials, and other paraphernalia for spying. They were quickly apprehended, detained by the military, and tried by a military commission. Once again, Roosevelt approved the commission, but this time he did not name the members or counsel, and he directed a review of its proceedings through the military chain of command. In other words, the president’s second military order called for procedures more or less equivalent to those used in courts-martial. The trial took place at Governor’s Island in New York City. Both defendants were convicted of violating the law of war by passing through military lines in disguise to commit sabotage, espionage, and other hostile acts.103 They were sentenced to death by hanging. Roosevelt died before the executions could be carried out, and after the war ended President Truman commuted the sentences to life in prison. Military Trials in Paradise

Well in advance of the Japanese attack on Pearl Harbor, the army had drawn up plans for military government in Hawaii.104 When the attack came on December 7, 1941, the commander of U.S. forces in the islands, Lt. Gen. Walter C.

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Short, persuaded a reluctant Governor Joseph B. Poindexter to immediately issue a proclamation declaring martial law and suspending the writ of habeas corpus. The governor acted under a 1900 federal statute, the Hawaii Organic Act, which authorized him to adopt these drastic measures “in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it.”105 The very same day General Short declared himself military governor of Hawaii and announced that he had “taken charge of the government of the Territory.” In his initial public statement, he warned that “good citizens will cheerfully obey this proclamation and the ordinances to be published; others will be required to do so. Offenders will be severely punished by military tribunals or will be held in custody until such time as the civil courts are able to function.”106 Upon the general’s orders the Hawaii Supreme Court closed all civil courts the next day. They were replaced by two kinds of military courts: provost courts for relatively minor criminal offenses and military commissions for serious crimes, including those that could be punished by the death penalty. Grand juries were eliminated. Civilian courts were later allowed to continue hearing most civil cases, but jury trials and subpoenas for witnesses were forbidden. The army took over civilian courtrooms and offices. The military courts heard all cases involving violations of federal, Hawaii, or military law, regardless of whether they had any bearing on the prosecution of the war. According to the Hawaii attorney general, trials were conducted by army officers “largely untrained in the law,” and defendants who pleaded “not guilty” could expect to receive harsher sentences than others. The accused were not given a copy of charges against them, witnesses were brought into court to testify in groups, and acquittals were rare. In one provost court, for example, of 22,480 persons arrested during 1942 all but 359 were found guilty.107 In other words, many familiar protections for defendants in civilian courts were abandoned. Military control of both criminal and civil courts was lifted in March 1943, except for proceedings against members of the armed forces for acts performed in the line of duty. Habeas corpus, however, remained suspended.108 Martial law fi nally ended and habeas corpus was restored on October 24, 1944, by a proclamation from President Roosevelt.109 The suspension of habeas corpus was challenged in several cases. In the first of these the federal district court judge wrote that he felt powerless to

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issue the writ because he was “under duress by reason of the [military] order.”110 The court of appeals, however, found the suspension justified by the circumstances.111 The day before an appeal was lodged in the Supreme Court, the defendant was transferred to the mainland and released, rendering his case moot. The same district court judge then apparently had a change of heart and issued the writ in two later cases. When the military governor refused to produce the bodies of the prisoners, a melodrama ensued that was reminiscent of the clash between General Andrew Jackson and a federal judge in New Orleans more than a century earlier. The judge in Hawaii cited the military governor for contempt and fined him $5,000. The general responded with a new military order specifically forbidding the judge to interfere, and threatening him with a $5,000 fine and five years’ imprisonment if he did.112 Once again, however, the defendants were released before the legal issues could be fully resolved. The government then followed the same procedure—releasing the defendant in the midst of an appeal—in one other case, each time in an apparent effort to avoid a defi nitive ruling by the nation’s highest court.113 Late in the war, however, the government inexplicably failed to free two additional prisoners whose petitions for habeas corpus had been denied by the Ninth Circuit Court of Appeals. Because the petitioners remained in confinement, the legality of their military trials could be decided by the Supreme Court. Lloyd C. Duncan was a civilian shipfitter at Pearl Harbor who got into a fight with two marine guards on his way to work. He was convicted by a provost court of violating a military order that forbade assaults on military personnel. Harry E. White was a stockbroker convicted of embezzlement in another provost court. Their cases were combined in the Supreme Court’s cautious decision in Duncan v. Kahanamoku, issued more than half a year after the war ended.114 As in Ex parte Milligan, this timing probably made the Court’s job easier. According to the Court, these cases involved “the rights of individuals charged with crime and not connected with the armed forces to have their guilt or innocence determined in courts of law which provide established procedural safeguards, rather than by military tribunals which fail to afford many of these safeguards.”115 Following tradition, however, the Court avoided the constitutional issues and instead held narrowly that the Hawaii Organic Act of 1900 simply did not authorize the military trials in question.

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The Court reasoned that Congress “had in mind and did not wish to exceed the boundaries between military and civilian power, in which our people have always believed, which responsible military and executive officers had heeded, and which had become part of our political philosophy and institutions prior to the time Congress passed the Organic Act.”116 These longstanding boundaries did not allow substitution of military for civilian rule except in narrow circumstances, such as in “occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function.”117 The Court noted that the case before it did not involve military jurisdiction “over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war.”118 Citing its 1866 decision in Milligan with approval, the Court concluded that “[t]he phrase ‘martial law’ as employed in [the Hawaii Organic] Act, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.”119 So saying, it ordered the release of both prisoners. AFTER WORLD WAR II

A handful of court decisions since World War II have helped round out our understanding of when and how civilians may properly be tried by courtsmartial. While all involved trials overseas, what the courts said in these cases applies with equal, perhaps greater, force inside the United States. A 1955 case, United States ex rel. Toth v. Quarles, involved a former airman who had been honorably discharged from the air force and was working at a steel mill in Pittsburg when he was arrested by military police. Robert W. Toth was charged with murder during his ser vice in Korea and sent back to that country for trial by court-martial. According to the Supreme Court, the provision of the Uniform Code of Military Justice that purported to authorize Toth’s post- discharge trial “cannot be sustained on the constitutional power of Congress ‘To raise and support Armies,’ ‘To declare War,’ or to punish ‘Offenses against the Law of Nations.’ And this assertion of military authority over civilians cannot rest on the President’s power as commander-in- chief, or on any theory of

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martial law.” Here the Court once again cited its 1866 decision in Ex parte Milligan.120 The government asserted instead that the statutory provision was justified by Congress’s power to “make Rules for the Government and Regulation of the land and naval Forces,” as supplemented by the Necessary and Proper Clause. But a natural reading of that language, the Court said, would “restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.” Otherwise, court-martial jurisdiction would “necessarily encroach[] on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals.”121 “[C]onceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have,” the Court continued, “it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.”122 Because Toth was, at the time of his arrest, a civilian, he was entitled to trial before a civilian court. Two years later, in 1957, the Court decided Reid v. Covert, a case involving civilian wives of military personnel stationed abroad who killed their husbands.123 Each defendant was a U.S. citizen. Each was charged with murder and placed on trial before a court-martial overseas. The UCMJ provided that pursuant to treaties or executive agreements like those existing with Great Britain and Japan, where the killings occurred, “all persons serving with, employed by, or accompanying the armed forces” abroad could be tried by court-martial.124 The Court described the case as presenting “basic constitutional issues of the utmost concern.”125 The right to “trial before a civilian judge and by an independent jury picked from the common citizenry,” it said, was “fundamental.”126 As in the Toth case, the government argued that Congress could authorize the trials pursuant to its power to “make Rules for the Government and Regulation of the land and naval Forces.” A plurality of four justices flatly rejected that argument: “[T]he Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were ‘necessary and proper’ for the regulation of the ‘land

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and naval Forces.’ Such a latitudinarian interpretation of these clauses would be at war with the well- established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority.”127 Two concurring justices responded more narrowly that the Make Rules Clause could not justify the trial by court-martial of civilian dependents of military personnel for capital offenses in peacetime. But it was enough to order the defendants’ release. Finally, in 1960, a majority of the justices made clear in a trio of cases that all court-martial trials of civilians for both capital and noncapital offenses during peacetime are unconstitutional. Each involved either a civilian contractor or a spouse accompanying U.S. forces overseas, and in each the military asserted court-martial jurisdiction under the same statute challenged in Reid.128 As in Reid, the Court rejected the government’s argument that such individuals are realistically part of the military establishment, and that military commanders needed the sort of disciplinary control over them that only courts-martial could provide. At least in the context of these cases, the Court concluded, the right to a jury trial was more important. Again the justices cited Ex parte Milligan with approval. One additional loose end was addressed in a Vietnam War era case. Raymond G. Averette, a civilian employee of an army contractor, was tried by a court-martial in Vietnam and convicted of conspiring to steal 36,000 government- owned batteries. Jurisdiction was predicated on a provision of the UCMJ that subjected “persons serving with or accompanying an armed force in the field” to court-martial jurisdiction “in time of war.” Without directly addressing the constitutionality of the statute, the U.S. Court of Military Appeals construed the provision narrowly to say that “in time of war” meant a war formally declared by Congress.129 “We emphasize our awareness that the fighting in Vietnam qualifies as a war as that word is generally used and understood. By almost any standard of comparison— the number of persons involved, the level of casualties, the ferocity of the combat, the extent of the suffering, and the impact on our nation— the Viet namese armed confl ict is a major military action. But such a recognition should not serve as a shortcut for a formal declaration of war, at least in the sensitive area of subjecting civilians to military jurisdiction.”130 Thirty-six years later, Congress responded by amending the UCMJ to read “[i]n time of declared war or a contingency operation.”131 The amended

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statute was upheld in 2012 as applied to a noncitizen civilian contractor court-martialed for offenses committed in Iraq.132

According to one view, “the underlying goals of the civilian and military justice system[s] differ. Unlike the punitive and rehabilitative goals undergirding civilian criminal justice, ‘military justice has traditionally been viewed as partly judicial and partly disciplinary,’ as existing as much to preserve ‘good order and discipline’ within military units as to punish and rehabilitate individual offenders.”133 The Supreme Court has pointed out the “need for special regulations in relation to military discipline, and the consequent need and justification for a special and exclusive system of military justice . . . ; no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting.”134 Moreover, “[m]ilitary law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms. It emphasizes the iron hand of discipline more than it does the even scales of justice.”135 Military trials of civilians, of course, have nothing to do with “good order and discipline.” They must be based, instead, upon an urgent need to protect national security when, for practical reasons, civilian courts are unavailable. The Founding Fathers were committed to this reliance on the civilian justice system whenever possible, and with some important exceptions noted here we have honored that commitment since the Revolution. Yet a number of critically important issues remain unresolved. The law seems to prohibit court-martial trials of civilians in most instances, and to restrict military commissions to trials for spying, aiding the enemy, and violations of the law of war. Yet while the Supreme Court has ruled that civilians may not be tried by court-martial in “peacetime,” it has observed that “[f]rom a time prior to the adoption of the Constitution the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules.”136 In other words, it has not flatly ruled out all court-martial trials of civilians. Courts and scholars alike have long assumed that the president or perhaps even subordinate officers may convene military commissions to try civilians on the battlefield or where martial law has properly been declared, and that

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the writ of habeas corpus may likewise be suspended. First introduced without legislative approval during the Mexican War, these extraordinary tribunals were later recognized by refi nements to the Articles of War and subsequently the UCMJ for trials of enemy agents accused of violating the law of war. Away from the field of battle, such tribunals are harder to justify. The World War II case of the German saboteurs established that military commission trials could be held far from the battlefield, even where civilian courts are open and operating. Whether the Supreme Court’s decision in that case was merely aberrational—a product of the exceptional circumstances in which it was handed down—remains to be seen. The Court has not decided whether the president may authorize such tribunals without congressional approval. Neither has it indicated whether Congress may regulate them. Also difficult to rationalize on grounds of military necessity are military commission trials of civilians for offenses covered by parallel civilian criminal laws, such as espionage and aiding an enemy. Civilian courts have always proven perfectly capable of dispensing justice in such cases, while also protecting national security. If and when these questions are raised in the future, we hope that Congress will honor the Framers’ commitment to allowing military justice for civilians only under the most extraordinary conditions, when no reasonable alternative exists. We also hope the judiciary will help preserve the same tradition, for as the Milligan Court pointed out, it involves “the very framework of the government and the fundamental principles of American liberty.”137 The terrorist attacks of 9/11 presented new opportunities to address some of these questions. Answers from all three branches of government are assessed in Chapter 8.

CHAPTER SIX

Soldiers as Investigators

I

t should come as no surprise that the Defense Department conducts criminal and security clearance investigations of its own personnel in the United States. What is not generally known is that soldiers sometimes collect personal data about civilians, as well. This collection may be related to the military’s occasional role in combating civil unrest. At other times the information is “foreign intelligence” pertaining to international terrorism or espionage. President Barack Obama has noted that in this capacity military personnel perform “an extraordinarily difficult job— one in which actions are second-guessed, success is unreported, and failure can be catastrophic.”1 Sometimes military personnel investigate civilians suspected of violating criminal laws. Some of those laws relate to national security, some do not. Either way, superior numbers, equipment, communications, and technology may give military investigators an edge over their civilian counterparts at the FBI or on local police forces. Yet they lack both the training and experience that professional cops have to uphold the constitutional rights of citizens. A soldier’s main job, after all, is to use force. Military personnel have also been used occasionally to gather information about citizens and organizations that oppose official U.S. government policies. Such use holds the potential—indeed, may have been intended—

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to suppress the expression of dissenting views protected by the First Amendment, with dire consequences for representative democracy. This chapter presents a brief history of the military’s collection and use of information about civilians in America. With only a handful of notable exceptions, civilian and military leaders have avoided casting soldiers in the role of detective when civilians could do the job as well. They have generally been faithful to our tradition of preventing military entanglement in civilian affairs whenever possible. Yet even after more than two centuries of experience, appropriate limits on military investigations of civilians are illdefined and controversial. Some of the relevant history is classified. Some military intelligence activities have simply not been recorded, or the records have been destroyed to prevent their disclosure. Records that do exist sometimes seem to present these activities in the most favorable light. It is therefore important to understand that the account presented here is to some degree necessarily incomplete or perhaps inaccurate. The public history is, to paraphrase former defense secretary Donald Rumsfeld, filled with “unknown unknowns.” Even such a fragmentary record, however, may help us strike a proper balance between freedom and security.2 GENERAL WASHINGTON’S SPIES

Military surveillance of civilians has actually been a part of American life from the very beginning. General George Washington was America’s first spymaster. He made extensive use of espionage, counterintelligence, and cryptography during the Revolutionary War, employing both army agents and a large cadre of paid infor mants. Their work was critical to the war effort, especially given the large number of British sympathizers among the colonial population. “The necessity of procuring good Intelligence is apparent and need not be further urged,” Washington wrote to one of his officers.3 These efforts led, for example, to the unmasking of turncoat General Benedict Arnold in 1780. Perhaps the most famous military spy of that era was Nathan Hale, a twenty- one-year- old captain in the Continental army. Hale was recruited by Washington in September 1776 to travel to New York in disguise and report on British troop movements. He was captured, taken before British General

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William Howe, condemned, and hanged the very next day in Manhattan. A British officer who witnessed the execution recalled that Hale’s last words were, “I only regret that I have but one life to lose for my country.” With the end of the Revolutionary War, military intelligence activities largely ended as well. During the War of 1812, intelligence failures were blamed for losses to the British of Fort Detroit and the capital in Washington. Later, however, the fabled Western expeditions of the early nineteenth century—Lewis and Clark, Fremont, Bonneville, and Pike—were all led by military officers who were ordered to make maps of routes and terrain that might later prove useful in the young nation’s defense. But in the Mexican War of 1846–1848, the army relied for tactical intelligence mainly on a band of paid Mexican brigands labeled the Spy Scout Company. When President Lincoln took office in 1861, the United States had no intelligence ser vice, military or otherwise. Astonishingly, several states had already seceded from the Union, adopted a constitution for the Confederate States of America, elected Jefferson Davis as president, and formed an army—all without any organized effort on the Union’s part to collect information about these developments. That soon changed. Once the Civil War began, Union intelligence efforts were led in part by a famous Chicago private detective, Allan Pinkerton. Another network of military spies was managed by the colorful and very controversial Colonel Lafayette C. Baker. Both reported their findings to Secretary of War Edwin Stanton, as well as to Secretary of State William H. Seward and to Lincoln himself. In 1863 the Army of the Potomac formed the Bureau of Military Information. Other intelligence duties fell to the newly created  U.S. Army Signal Corps and a rival organization called the U.S. Military Telegraph.4 These various sources, military and civilian, served as the main eyes and ears of the Union army during the war. Their job was to ferret out subversive Northerners and bring news of Confederate troop movements. They gathered information from opened mail, balloon reconnaissance, telegraph intercepts, prisoner interrogations, and old-fashioned espionage—in one instance even placing an agent posing as a housemaid in Jefferson Davis’s home. Early in the war, intelligence reports prompted the arrests of thousands of civilians suspected of disloyalty, who were held incommunicado in military stockades for extended periods without charges or access to counsel. Such excesses were entirely predictable in the atmosphere of shared danger. In

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February 1862, however, Lincoln sharply limited this practice when he ordered the release of all political prisoners on condition that they offer no aid or comfort to the enemy. The order did not apply to suspected spies and others whose release could be “deemed incompatible with the public safety.”5 These extraordinary military intrusions into civilian life, not directly related to battlefield operations, were said to be justified by war time necessity. Colonel Baker once wrote, “War is a last and terrible resort in the defense of even a righteous cause, and sets at defiance all of the ordinary laws and customs of society.”6 Up to this point military surveillance of civilians was largely confined to war time and was related to ongoing armed confl icts. With General Lee’s surrender at Appomattox even these operations came to an end, at least for a time. MILITARY INVESTIGATORS IN WAR AND PEACE

In America’s second century, the military’s intelligence role increased dramatically, both in peacetime and in war. This growth was spurred in part by the nation’s rapid urbanization and industrialization, as well as by its expanding involvement in world affairs. Between the Civil War and World War I, U.S. military intelligence efforts were principally focused overseas, not domestically. But there were exceptions. In 1877, for example, during the Hayes administration, U.S. Army Signal Corps observers collected information on labor unrest that allowed soldiers to act as strikebreakers. In 1885 the War Department created what soon became the Military Information Division (MID) to collect information about foreign military organizations. This new organization, along with the signal corps, was active abroad during the Spanish-American War of 1898. Military officials also arrested several suspected spies in the United States during the war. But MID did not play a significant internal security role until the beginning of World War I. World War I

When the United States entered the war in Europe in 1917, military intelligence operatives began to infiltrate alien communities in major U.S. cities,

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monitor and censor the mails, and work undercover to protect defense plants. They were aided by networks of private agents—the largest called the American Protective League (APL), with perhaps 250,000 volunteers— who reported on suspicious persons and activities. Some of the volunteers were equipped with official-looking badges suggesting federal authority.7 The ostensible purpose of all this activity was detection of German spies and saboteurs. But MID, the Office of Naval Intelligence, and APL volunteers also targeted labor leaders, Bolshevists, anarchists, feminists, and ordinary citizens who objected to war time policies or to the war itself. They wiretapped phones, planted bugs, and photographed suspected subversives. They also burglarized the offices and disrupted the meetings of dissident organizations. And they pursued draft-dodgers and deserters. The ominously named Negative Branch was charged with “trac[ing] enemy and disloyal activity among civilians in the United States and abroad.”8 In the words of MID, it was “necessary that we throw every possible safeguard about our own preparations for war and discourage enemy agents who may in one way or another attempt to lower our morale, damage our industries, or debauch our soldiers. We must look to the foe within as well as to the foe without.”9 During the war, according to one historian, “Army intelligence defined its own mission with little control by the civilians and began a practice that was to become a pattern: evading control by civilians and refusing to curtail surveillance of civilian political activities when asked to do so by civilian superiors.”10 Moreover, the very existence of the Military Intelligence Division was largely unknown to the public. It was “the most secret of all the so- called secret ser vices of the federal government.”11 For all its trouble the army caught exactly one German spy.12 The Red Scare

After the Armistice in November 1918, one might have expected the military intelligence ser vices to resume their peacetime role of policing their own personnel. Instead, they shifted their focus to communists, socialists, and pacifists, as well as labor groups. As news spread of the recent revolution in Russia, a “Red Scare” gripped the country. The director of the army’s War Plans Division wrote that in the United States there existed a “well organized movement for the overthrow of the Government” numbering more than 600,000 persons.13 According to the head of MID in 1919, “Military intelli-

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gence officers of the army are keeping under surveillance the activities of all Reds and other radicals in all the large cities of the country.”14 Universities were viewed as hotbeds of radicalism, and faculty members came in for special scrutiny. In response to growing racial violence around the country, MID also collected information about black activists and organizations such as the National Urban League. Ostensibly in anticipation of possible public unrest, a new, secret program entitled Emergency Plans—White directed troops to “take cognizance of the situation in your corps area with special reference to the economic, industrial, and radical conditions and to carefully observe incidents and events which may develop into strikes, riots, or other disorders and by investigations and other means at your disposal inform yourself and the War Department of the situation when it appears probable that the Federal Government may be required to act.”15 In the prevailing atmosphere of hysteria and xenophobia, the result was unprecedented, massive surveillance of Americans at home in peacetime. Not everyone agreed with these activities. One intelligence insider, Major General Johnson Hagood, wrote that “in time of peace in America, radicalism, communism, and efforts to overturn the existing form of government are political questions with which the Army should in no way concern itself.”16 Nevertheless, the surveillance continued throughout the period between the wars. In the mid-1920s, military officials began to collaborate with the Justice Department’s recently formed Bureau of Investigation, led by J. Edgar Hoover, and with local and state police to collect and share information on “subversives.” When the nation plunged into economic depression, and fears of domestic unrest mounted, Army Chief of Staff Douglas MacArthur directed commanders around the country to submit monthly reports of subversive activities. They created fi les on thousands of organizations viewed as threats to the military or the government, including the American Federation of Labor and the ACLU. To be sure, military force might have been needed to keep the peace at home. Yet military intelligence had never before become so deeply involved in the daily lives of so many Americans. No reliable records exist of how the information collected during this period was actually used. But some of it was preserved in the files of the FBI and California officials a quarter of a century later.17

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World War II

In 1939, in the run-up to World War II, President Roosevelt placed the FBI in charge of investigating all espionage and sabotage in the United States.18 The following year the FBI, MID, and the Office of Naval Intelligence entered into a Delimitation Agreement giving the FBI exclusive responsibility for counterintelligence investigations (roughly, catching spies) involving civilians, leaving to the military ser vices only surveillance of their own personnel.19 This division of labor was refined in a 1942 agreement, signed by the president, that gave the FBI control of all investigations “involving civilians in the United States,”20 presumably including civilian employees of the War Department. The army was supposed to rely on the FBI for information about threats of subversion. Yet in defiance of these strictures the army quietly continued to collect its own information about civilians and “communistic” groups such as the ACLU and the NAACP. And in the midst of the greatest war ever, no one seriously challenged the army’s efforts.21 After the attack on Pearl Harbor, the army was principally responsible for protection of industrial plants. Secretary of War Henry Stimson nevertheless approved an order for monthly reports on “subversive cases.”22 The army’s Counter Intelligence Corps (CIC) gathered data on labor unions, communists, civil libertarians, and Nazi sympathizers pursuant to Emergency Plans—White. Thousands of CIC agents reportedly “pushed nearly a billion doorbells, making more than two and a quarter million background investigations and running down leads for thousands of complaint[s about suspected subversives].”23 They censored all the mail entering and leaving the country, and they investigated a large number of individuals thought to harbor a “disaffection” for the U.S. government—usually ethnic Germans, Italians, or Japanese.24 Some of their reports were distinctly racist or anti-Semitic. They even conducted surveillance of First Lady Eleanor Roosevelt for a time. As in earlier wars, doubts about the legality of military investigations of civilians were resolved in favor of security. The first director of censorship wrote, “Any approach to censorship in a democratic country is fraught with serious difficulties and grave risks . . . . The word itself arouses instant resentment, distrust, and fear among free men. Everything the censor does is contrary to the fundamentals of liberty. He invades privacy ruthlessly, delays and mutilates the mails and cable, and lays restrictions on public expressions in the press. All of this he can continue to do only so long as an always-skeptical

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public is convinced that such extraordinary measures are essential to national survival. The censor’s house is built on sand, no matter what statutes may be enacted or what the courts declare. The first and last principle to be remembered, then, is that censorship should come into being solely as an instrument of war.”25 No record exists of the number of blameless Americans who lost jobs or reputations because of the military investigations. Perhaps their unwitting sacrifices were justified by the greater public good. Perhaps not. All we know for sure is that some were condemned without any legal process whatever, on the basis of vague or unknown criteria, and in secret. Their fates were determined by soldiers, however well-intentioned, who were not trained in the law, and whose actions went largely unchallenged by politicians or judges. Meanwhile, throughout both world wars and in between, the criminal justice system continued to function normally, and civilian courts remained open and operating. Traitors, spies, and saboteurs were arrested by Justice Department officials, tried, and punished. There was never any reason to suppose that civilian agents could not have collected and analyzed all the intelligence gathered by soldiers at home. But military intelligence activities during this period established a precedent for extensive peacetime domestic snooping in the years ahead. COLD WAR ON THE HOME FRONT

Congress ordered a massive reorganization of military and intelligence services when it passed the National Security Act of 1947.26 The act “provided no explicit charter for military intelligence,” and while it required the secretary of defense to be a civilian, “the intelligence activities of the Department of Defense remained with the military rather than with the new Defense Department civilians.”27 Over time, agencies controlled by the Pentagon have come to represent by far the largest part of the intelligence community, in terms of budget and personnel.28 The largest of these, like the National Security Agency, are now overseen by a director of national intelligence, and for the most part their work product is commissioned by and delivered to nonmilitary members of the intelligence community, such as the CIA and the FBI.29 Nevertheless, much of their surveillance is conducted inside the United States, and much of the information they collect ends up in military files.

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An updated Delimitations Agreement in 1949 provided (again) that the FBI would be responsible for all investigations of “espionage, counterespionage, subversion and sabotage” involving civilians in the United States, while the army would be limited to investigating its own active and retired personnel.30 The FBI was also to inform military intelligence agencies about the activities of “subversive” civilian groups. Yet the interagency agreement apparently did little to curtail the army’s continuing collection of personal information about Americans at home. FBI Director J. Edgar Hoover, in league with the House Un-American Activities Committee, private groups such as the Christian Anti- Communist Crusade, and later Senator Joseph McCarthy, ramped up investigations of individuals and organizations suspected of involvement in a perceived growing domestic threat of communism. Military intelligence officials joined in this effort, gathering and sharing data on labor organizations and groups promoting racial equality, and on Communist party members. A new Red Scare was underway. The army’s renewed focus on subversion influenced its planning for military support of civil authorities to suppress domestic violence. Revised plans were based on the premise that any unrest would be the product of communist conspiracies— organized, directed, and financed from abroad. This groundless focus on external threats left the army ill-prepared to deal with some of the most important outbreaks of violence that actually occurred during this period. It also invited extensive violations of civil liberties in the name of security. When troops were called out in the 1950s and 1960s to help local law enforcement officials suppress race-based violence, intelligence assets served as their eyes and ears. Before soldiers from the 101st Airborne Division arrived in Little Rock in 1957 to enforce the court- ordered desegregation of Central High School, for example, they were preceded by Counter Intelligence Corps personnel, who were assigned to keep an eye on the nine black students there, as well as to report on activities of the Ku Klux Klan and other troublemakers. But there was never any indication of foreign influence; the unrest in Little Rock was entirely homegrown. Five years later, when Governor Ross Barnett refused to allow the integration of Ole Miss, army intelligence agents were sent to Oxford, Mississippi to gather information about student activists and other “extremists.” But army and National Guard troops arriving there nearly two weeks later to

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quell rioting on the campus lacked the tactical intelligence they needed to navigate around the community and communicate with local officials. Again, there was no evidence of conspiracy or outside influence. Army intelligence personnel were also active when federal troops helped control race-based rioting in Detroit in 1967 and in other cities the next year, following the assassination of Dr. Martin Luther King Jr. In each case the riots were spontaneous and disorganized, so information in army fi les about politically active individuals and community groups was unhelpful. Likewise, data collected by the army on individual incidents of violence revealed no patterns or trends indicating any conspiracy. Once again, what the troops needed, but lacked, were good maps, radio frequencies for local police and firefighters, and real-time information about the activities of rioters. When 10,000 army and National Guard forces deployed in Detroit, for example, they were reportedly led by a general who had only a filling station map to guide him. Massive demonstrations for civil rights presented different challenges. In the 1963 March on Washington for Freedom and Jobs, which culminated in Dr. King’s “I Have a Dream” speech, military planners collaborated with civilian officials to help prevent peaceful protests from turning violent. At least 200,000 people turned out, far outstripping the capabilities of local police. Yet the violence anticipated by military planners never occurred. Similarly, the Poor People’s Campaign and the March on the Pentagon ended in massive protests in Washington, DC. They, too, were infiltrated by soldiers acting as spies. But again there was no evidence whatever of any foreign influence. MILITARY SURVEILLANCE DURING THE VIETNAM WAR: THE “WORST INTRUSION”

With the dramatic increase in commitment of U.S. troops to combat in Vietnam after 1964, accompanied by growing protests against the war, the army stepped up its efforts to collect personal information about politically active civilians. One congressional committee reported that “any organization or individual that exercised the constitutional right to criticize the established order automatically was marked for monitoring.”31 Another described the army’s program as “the worst intrusion that military intelligence has ever made into the civilian community.”32

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Collection and Storage of Personal Information

After the 1967 ghetto riots and the March on the Pentagon later that year, the army developed several new “collection plans.”33 Like earlier civil disturbance plans, these were based on the assumption that demonstrations against the war and the draft were the products of a communist conspiracy and foreign subversion. This mindset was reflected in instructions from General William  P. Yarborough, the army’s assistant chief of staff for intelligence, in the wake of the 1967 Detroit riot: “Start gathering biographical data on every name that comes up in these things. Get his picture—his background. When the picture starts to develop, we will find they were tied in with each other—they were trained in Havana or Peking or some damned place.”34 No evidence of any such conspiracy, foreign or domestic, was ever found, however.35 Ignoring the 1949 Delimitations Agreement, which assigned responsibility for investigating any such threat to the FBI, army intelligence agents were instructed to gather personal information about protest leaders, followers, and even bystanders. They were also directed to investigate “[m]inority, racist, terrorist, left-wing, right-wing, and/or other dissident organizations of possible future intelligence interest which may be potentially detrimental to national defense or public order.”36 They were, in short, given nearly boundless discretion to decide what kind of information to collect, how to collect it, and from whom. The collection plans were circulated widely among civilian leaders and agencies, including the secretary of the army, the National Security Council, the CIA, and the Justice Department’s Civil Rights Division. Astonishingly, there were few objections. Much of the data on civilians was compiled from open sources, such as newspapers. But some was gathered covertly. At least 1,500 plainclothes agents assigned to 300 military intelligence units around the country watched demonstrators and infi ltrated organizations. They took photographs and posed as journalists. They monitored marches, teach-ins, and prayer vigils. They even shot live closed- circuit TV from helicopters circling above the crowds. Soldiers eventually collected biographical data on 100,000 Americans, including their age, ethnicity, economic status, political views, and education, with par ticular emphasis on women. Their targets included clergy,

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lawyers, professors, reporters, factory workers, state governors, members of Congress, and even one Supreme Court justice. They created files on Arlo Guthrie, Jesse Jackson, and Yale chaplain William Sloane Coffin. Universities cooperated by providing detailed records on student activists. Military personnel also carried out surveillance on organizations as diverse as the Southern Christian Leadership Conference, the American Friends Ser vice Committee, Clergy and Laymen Concerned About Vietnam, the NAACP, and the National Organization for Women. In the words of one congressional committee, “No individual, organization, or activity which expressed ‘dissident views’ was immune from such surveillance and, once identified, no information was too irrelevant to place on the Army computer.”37 Belying the army’s assertion that its intelligence collection was related to planning for the suppression of domestic violence, the committee found that “[l]ittle distinction was made between peaceful and non-peaceful groups. Protests and demonstrations of a peaceful, non-violent nature, which have come to be recognized as significant parts of this country’s legitimate political process, were all targets for the Army’s agents.”38 In other words, no apparent effort was made to confine investigations to unrest that exceeded the capabilities of local police. Soldiers also received information from civilian infor mants, the FBI, campus police, and local law enforcement agencies. They shared data with the same agencies, in probable violation of the Posse Comitatus Act, which generally prohibits the use of military forces to enforce the law. As for the provenance of the information, which might have reflected both its credibility and the legality of its collection, the army’s general counsel, Robert Jordon, later testified, “We weren’t concerned about the sources.”39 Perhaps nothing better illustrates the irrelevance of this surveillance to the army’s domestic peacekeeping mission than actual weekly intelligence reports from the field. In one week in March 1968, for example, it was reported that “[a]pproximately 20 persons picketed outside the U.S. Federal Building” in Hartford, Connecticut carry ing “placards denouncing the war in Vietnam and the payment of income tax” associated with the war. Two days later, about 35 persons protesting the draft in Buffalo, New York, were observed distributing leaflets and flowers. Meanwhile, army agents reported, students and faculty at the University of Pennsylvania staged a “sleep-in” to protest campus recruiting by Dow Chemical Company (maker of Agent Orange), the Women’s Strike for Peace sponsored a rally attended by

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200 persons at the First Unitarian Church in Philadelphia to protest the draft, and 36 striking members of the Sanitation Union in Memphis were arrested for disorderly conduct. These and twenty-four other similarly banal “items of intelligence interest” were entirely peaceful.40 Nevertheless, the information was stored in scores of army computers around the country. Civilian leaders at the Defense Department reportedly were unaware of the full extent of the abuses. But they surely should have known. One congressional study described a “runaway intelligence bureaucracy unwatched by its civilian superiors, eagerly grasping for information about political dissenters of all kinds and totally oblivious to the impact its spying could have on the constitutional liberties it had sworn to defend.” 41 Whoever inside the government knew about this activity, the public was mostly kept in the dark until a year after President Richard M. Nixon took office. Christopher Pyle’s Story

The story was broken in January 1970 by a former army intelligence captain named Christopher H. Pyle. In an article in Washington Monthly Pyle reported that “the Army maintains files on the membership, ideology, programs, and practices of virtually every activist political group in the country.”42 The files were stored on computers at Fort Holabird, Maryland. Some of the information found its way into “blacklists”—profiles of people and organizations that might “cause trouble for the Army.”43 Pyle also revealed that “every major troop command in the United States [received] daily and weekly reports on virtually all political protests occurring anywhere in the nation.” These intelligence activities were, he noted, “[u]ninhibited by Congressional or Presidential oversight.”44 According to Pyle, “the Army has gone far beyond the limits of its needs and authority in collecting domestic political information. It has created an activity which, by its existence alone, jeopardizes individual rights, domestic political processes, and even the national security it seeks to protect.” 45 Pyle pointed out that the only plausible reason for compiling personal information on suspected subversive individuals was to help round them up if civil unrest broke out. But of course the army had and still has no power to arrest civilians generally, absent invocation of the Insurrection Act or a

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declaration of martial law. That job falls to the FBI or local law enforcement authorities. The army’s creation of dossiers on “the politics of law abiding citizens and groups,” Pyle asserted, made even less sense. And why, he asked, should intelligence commands in Hawaii and Alaska be informed about a peaceful antidraft demonstration by students at the University of Miami? Pyle went on to argue that people “undoubtedly” would be inhibited in their exercise of First Amendment rights of free expression and association by “knowledge that reports of individual participation in public demonstrations are being made daily to the Pentagon, selected troop units, and an interagency data bank at Fort Holabird.” No so apparent, he wrote, were threats to jobs and privacy. Current or potential employers might be swayed by “unverified and potentially erroneous and irrelevant reports.” In any event, citizens, politically active or not, should not have to expect “a military surveillance which specializes in keeping permanent records of lawful political activity.”46 In Pyle’s view, the likely effects of the army’s surveillance would be to “enhance the power of demagogues . . . who would misuse security files for partisan or personal purposes,” and to encourage citizens simply to withdraw from politics at all levels of government. Such depletion in the ranks of political moderates, in par ticular, would “strengthen the influence of the extremists, polarize debate, increase animosities, and decrease tolerance.” Finally, Pyle warned, “[t]he United States may be able to survive the centralization of intelligence files without becoming totalitarian, but it most certainly cannot become totalitarian without centralized intelligence files.”47 Pyle’s disclosures prompted a storm of protests on Capitol Hill and across the nation. They set in motion developments that would fundamentally change both the way military intelligence ser vices go about their work at home, and the way they are regarded by the American people. A “Chilling” Supreme Court Decision: Laird v. Tatum

A few weeks after Christopher Pyle’s article was published, Frank Askin, a Rutgers law professor, and the ACLU filed a class-action lawsuit on behalf of individuals and organizations opposed to the Vietnam War.48 The plaintiffs in Laird v. Tatum claimed that the army’s surveillance of their “lawful and peaceful civilian political activity” was unconstitutional, and they asked for an injunction to stop it. They also sought an order directing the destruction of dossiers, blacklists, and other records of their lawful protests.

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Drawing on Pyle’s revelations, they alleged that the army had deliberately sought to harass, intimidate, and deter them from exercising their rights by playing on justifiable fears that the data collected would be used to damage their reputations or opportunities for employment. The organizations worried especially that members would quit or that potential new members would be dissuaded from joining. The army’s efforts had both the purpose and the effect, the plaintiffs asserted, of “chilling” their freedom of speech, as well as their rights peaceably to assemble and petition the government for redress of grievances, all guaranteed by the First Amendment. In the words of one amicus curiae, the army’s actions created “an atmosphere of official repression.” 49 Dissident views and the people who held them were tainted with “official disapproval and suspicion,” which “encourage[d] the public to regard them as somehow disloyal.”50 This taint in turn caused dissenters to censor themselves in order to avoid social ostracism, loss of employment, and potential trouble with the government. The plaintiffs insisted that they were not questioning the army’s authority to collect intelligence needed to help civilian authorities quell domestic violence. Instead, they objected to the surveillance of peaceful political activity having no relation to the army’s peacekeeping duties. But they never got the chance to show that much of the personal data in army files served no legitimate military purpose. The Supreme Court’s 5–4 majority accepted the army’s assurances that most of the information came from newspapers and other open sources, or was gathered by soldiers who attended meetings open to the public. It clearly was skeptical of the plaintiff’s claims regarding both the army’s objectives and the extent of its collection efforts. It also failed to remark on the inconsistency of army assertions that, on the one hand, the collection program was critical to its domestic peacekeeping mission, while on the other hand personal information related to the lawsuit was “found unnecessary and . . . destroyed.”51 Needless to say, the destruction of the records made them unavailable for discovery in the litigation. The Court decided that while “governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights,” in order to obtain judicial relief an individual “must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action.”52 “Allegations of a subjective ‘chill,’ ”

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the Court ruled, “are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”53 While plaintiffs produced army records showing that they had been targeted, none could clearly demonstrate in advance of a trial that they had lost their jobs or suffered any other “cognizable injury,” either from the surveillance or from the use of the information collected, although they clearly had been frightened. Without such proof they lacked standing to sue, and their case was dismissed.54 Given the destruction of relevant records while the lawsuit was pending, no plaintiff could have been expected to be able to demonstrate the content of personal information about herself in army fi les, much less the use to which it was put. To this reality the Court responded that “what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross- examination, to probe into the army’s intelligence-gathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army’s mission.”55 This, the Court declared, is a role for Congress, not the judiciary, in the absence of “actual present or immediately threatened injury resulting from unlawful governmental action.”56 But the plaintiffs were denied an evidentiary hearing at which they might have been able to show such injury. Justice Douglas, writing for himself and three other justices, dissented vehemently: “The act of turning the military loose on civilians even if sanctioned by an Act of Congress, which it has not been, would raise serious and profound constitutional questions. Standing as it does only on brute power and Pentagon policy, it must be repudiated as a usurpation dangerous to the civil liberties on which free men are dependent.”57 In Douglas’s view, the plaintiffs had standing to sue: “One need not wait to sue until he loses his job or until his reputation is defamed.”58 This case involves a cancer in our body politic. . . . Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the

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press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government.59

“There can be no influence more paralyzing of that objective than Army surveillance,” Douglas wrote. “When an intelligence officer looks over every nonconformist’s shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed.”60 The case might have come out differently. Justice William H. Rehnquist, who cast the deciding fi fth vote with the majority, was appointed to the Supreme Court by President Richard Nixon while the Laird case was on appeal from the DC Circuit Court. Rehnquist’s impartiality was immediately called into question. As assistant attorney general heading the Justice Department’s Office of Legal Counsel, he had defended the legality of army surveillance in testimony before a Senate committee the previous year. He also revealed an intimate knowledge of the Laird litigation, declaring that no “action will lie by private citizens to enjoin the gathering of information by the executive branch where there has been no threat of compulsory process and no pending action against any of those individuals on the part of the government.”61 This was, of course, precisely the ground on which the Supreme Court later dismissed the case. But Rehnquist refused to recuse himself. Without his participation, a tie vote in the Court would have left the lower court ruling for the plaintiffs undisturbed, allowing the case then to be tried on its merits.62 While the Laird case was pending, the ACLU filed a second suit to stop the army surveillance.63 After four and one-half days of testimony, the court found no violation of any constitutional rights. In a decision brimming with sarcasm, the district court judge called the plaintiff’s members “thinskinned,” and described military intelligence as “the Army’s WPA, its leafrakers, its shovelleaners, and paper-shufflers. . . . Special Operations Officer Fumbles and uncontrollable special agents Bumbles.”64 The court of appeals affi rmed the dismissal, but on standing grounds, relying on the Supreme Court’s Laird decision, without addressing the merits. Both cases challenging the army’s surveillance program were therefore found to be nonjusticiable. Neither court ruled directly on the constitution-

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ality of the program. If it had, it might have found violations of not only the First but also the Fourth Amendment, which bars most warrantless and all unreasonable searches. It also might have concluded that army intelligence agents had violated the Posse Comitatus Act, because the information they gathered was used in law enforcement. But the practical effect of halting further judicial inquiry was to allow the program to continue. Senator Ervin’s Committee

Christopher Pyle’s article also triggered an investigation by a Senate committee headed by North Carolina Senator Sam Ervin.65 The army was remarkably uncooperative. It simply refused to turn over many documents, or it denied access to many witnesses requested by the committee, or it dragged its feet in complying. More troubling, while the committee continued its investigation, the army claimed that it had destroyed many records that might have shed light on its domestic investigations. Doubts remained, however, that the files really were destroyed. In any event, the committee was unable to form a complete picture of the army’s activities. Yet the information that did emerge sent shock waves through the body politic. Responding to the army’s claim that possible excesses were justified by the political tumult surrounding the war, the committee noted that “the rights guaranteed by the Constitution are constant and unbending to the temper of the times.”66 It quoted the Supreme Court’s decision in the Civil War– era case Ex parte Milligan: “The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times under all circumstances.”67 The committee reported a serious breakdown in civilian control of the military. Yet it appears that the secretary of defense, the attorney general, and White House officials were well aware of the army’s surveillance activities.68 The army’s official response was that a few bad apples in the uniformed ranks deliberately misled their superiors. But reforms came only after several years of congressional hearings, direct orders from the president and the secretary of defense, reprimands of senior officers, and surprise inspections. The committee found the resistance to change among military personnel especially troubling. It now appears that uniformed military leaders acted to the very limits of their authority—and beyond—not out of a desire to intervene in civilian

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politics, and certainly not to seize control of the government. Rather, they felt they needed the information they collected to be able to defend the homeland and prevent domestic violence. In Christopher Pyle’s words, “all of the evidence indicates a good faith effort to prepare the army for its civil disturbance mission.”69 For military officers who had taken an oath to “support and defend the Constitution of the United States,” however, good intentions could not excuse abuses of power. The Supreme Court majority in Laird v. Tatum expressed no opinion about the constitutionality of the army’s surveillance program. But the Ervin Committee did. It concluded that in the absence of an explicit constitutional or statutory mandate for the army’s surveillance of civilian political activities, it would not imply one, given the “historical tradition of limited intervention of the military in civilian affairs, and the subordination of the military to civilian control.” 70 The narrow statutory authority for use of troops to suppress domestic violence, it wrote, also belied any assertion of broad intelligence powers to support that use. In the committee’s view, those powers were limited to collecting logistical information needed to “move troops, quarter them, and deploy them.”71 In any event, that statutory authority was never invoked by the president. Moreover, the committee observed, civilian agencies can and do perform exactly the same domestic intelligence functions, negating any claim that the government has a compelling interest in using soldiers as spies. Finally, the committee decided, the army violated the First Amendment, because its intelligence activities inhibited the exercise of constitutionally guaranteed rights of free expression and association. The Supreme Court’s decision in Laird, it insisted, was simply wrong: “It is difficult to perceive a more effective method of stifling the public willingness to engage in controversial public debate than by the specter of military surveillance.” 72 The Army’s Response

Another response to Christopher Pyle’s Washington Monthly article came from the army itself. It quickly directed the removal of all the records at Fort Holabird mentioned by Pyle, and it ordered intelligence operations centers around the country to hide, but not destroy, any such records until the controversy had blown over. Meanwhile, it publicly—and falsely— declared that

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it did not maintain blacklists or computerized dossiers on individuals who might become involved in civil disturbances.73 Civilian leaders at the Pentagon had actually begun to try to rein in army surveillance of civilians in late 1968, but these efforts were resisted by some uniformed officers, who did not trust the FBI to supply data they felt they needed to carry out their civil disturbance mission. A proposal to shift all responsibility for collection against civilians to the FBI (consistent with the earlier Delimitations Agreements) was also rejected by Justice Department officials early in the Nixon administration, because they wanted whatever additional information military agents could supply.74 In March 1970, Army Secretary Stanley R. Resor ordered a halt to “intelligence data bank operations” and directed the destruction of any data bank not approved by the secretary and the chief of staff. The order did not apply to noncomputerized fi les. An instruction from the adjutant general three months later was supposed to stop army covert operations without approval from the FBI and army undersecretary. Other directives barred collection against civilians unless it concerned direct threats to military personnel, installations, or operations.75 Later in the year President Nixon declared that he opposed domestic spying by the military and that it would not take place in his administration. Nevertheless, the army’s surveillance of civilians opposed to the war continued unabated. In March 1971, on the very day that Senator Ervin’s committee was to begin hearings on army surveillance, the Pentagon issued yet another directive, this one stating that information about “unaffiliated” individuals could be collected only when it concerned a direct threat to the military itself or was “essential . . . to assist civil authorities in dealing with civil disturbances” because there was a “distinct threat” exceeding the capabilities of those authorities.76 On its face this new directive appeared to return military intelligence to its historical roots. In fact, collections against civilians continued for a while longer, and army and navy agents covertly penetrated antiwar groups viewed as “threats” for several more years. CONGRESS WEIGHS IN

Seeking to head off legislative efforts to regulate military intelligence collection, Assistant Attorney General William Rehnquist testified before Senator

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Ervin’s committee that “self- discipline on the part of the executive branch will provide an answer to virtually all the legitimate complaints of excesses of information gathering.”77 Congress was not appeased. Members recognized that the newly revealed abuses were made possible in part by a lack of effective congressional oversight. They also knew that reforms reflected in newly announced DOD directives could be erased by the stroke of a defense secretary’s pen. Assistant Secretary of Defense Robert F. Froehlke acknowledged this possibility: “[W]hen you get crisis situations, you need information. Responsible officials fear cities are going to burn. Where do they look? They look to that unit of Government that has the resources available, and it is always the Army.” 78 In the wake of the Watergate scandal and President Richard M. Nixon’s resignation in disgrace in 1974, new congressional investigations revealed that not only the army but also the CIA, NSA, and FBI had illegally spied on Americans at home and abroad. They had opened mail, listened in on overseas phone calls, and conducted “black bag” break-ins without warrants. Government agents had also engaged in dirty tricks to stifle political dissent— disrupting and discrediting civil rights groups and Vietnam War protesters. The best known of these investigations, led by Senator Frank Church of Idaho, covered much of the ground reviewed earlier by Senator Ervin’s committee. It recommended legislation barring military ser vices from engaging in any domestic security activities concerning nonaffiliated civilians, except in connection with civil disorder. Even then, it concluded, such investigations should be permitted only after troops had actually been deployed to the site of a disturbance, and then only to the extent that the FBI could not supply the information needed to perform the military’s peacekeeping mission. Under no circumstances should military forces employ covert techniques, such as secret penetration of organizations, to target unaffiliated Americans at home.79 These recommendations echoed earlier ones from the Ervin Committee that would, with certain exceptions, have criminalized the use of military or National Guard personnel to investigate or maintain files on “the beliefs, associations, or political activities of any person not a member of the Armed Forces . . . or of any civilian organization.”80 In the face of strenuous opposition from the Pentagon, however, Congress failed to enact any bill squarely addressing the military’s domestic intelligence role. It also refused to pass a proposed comprehensive legislative

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charter for the entire intelligence community. 81 The House and Senate did, however, establish intelligence oversight committees to monitor government spying and other covert actions at home and abroad. In the end, Congress enacted only limited statutory constraints on certain specific intelligence activities. But these measures apply to the military ser vices the same way they do to other government agencies. The Privacy Act

Prompted in part by the revelations of the Ervin Committee, Congress passed the Privacy Act in 1974 to protect the personal information of U.S. citizens and permanent resident aliens.82 In 1976, the Church Committee called its impact on military investigations “uncertain.”83 Today, the Justice Department calls it “a difficult statute to decipher and apply.”84 The Privacy Act bars any agency from collecting or retaining personal information not “relevant and necessary to accomplish a legal purpose of the agency.” 85 The practical significance of this restriction is far from clear. Soldiers may, for example, collect intelligence needed to carry out a domestic peacekeeping mission under the Insurrection Act. But whether par tic u lar information about individuals and organizations is “relevant and necessary” may be debatable, as we have seen, and in any case will be highly fact- dependent. Another Privacy Act provision important here generally prohibits the transfer of personal information among agencies except for a “routine use” by the transferee agency that is “compatible with the purpose for which it was collected” by the transferring agency.86 The routine use exception is interpreted quite flexibly, however. Thus, according to the Office of Management and Budget, “compatible” uses include (1) functionally equivalent uses, and (2) other uses that are necessary and proper. 87 If, for example, the Department of Veterans Affairs collects information from an individual to determine whether she is entitled to medical benefits, but discovers in the process that she is planning an attack on an aerospace company in the United States, the VA may turn that information over to the Defense Department pursuant to the latter’s mission to protect the nation’s defense industrial base. Or if the army learns in the course of a routine personnel evaluation that a soldier is an agent of a foreign power, that information will be turned over to the FBI. Transfers within the Department of Defense

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are permitted; for this purpose the department and all of its component parts are regarded as one big “agency.” Information also may be shared with another agency for a “civil or criminal law enforcement activity.”88 Data collected by military intelligence personnel for force protection purposes, for example, might be handed over to the FBI for use in a criminal prosecution for terrorism. In any event, the act forbids all federal agencies, including both active- duty military and the National Guard, from collecting, retaining, or sharing information about “how any individual exercises rights guaranteed by the First Amendment . . . unless pertinent to and within the scope of an authorized law enforcement activity.”89 Members of Congress believed that agency collection of personal data should be linked to a limited, legitimate end use, lest the government compile enormous databases containing the most intimate details of Americans’ private lives. But the Church Committee thought the Privacy Act did not bar soldiers from directly gathering intelligence for a “purpose” not related to a military mission in order to supply it to other agencies.90 In fact, later legislation and agency practice have rendered this statutory constraint on interagency sharing of personal data largely meaningless. The Foreign Intelligence Surveillance Act

In 1978 Congress moved to restrict the domestic collection of intelligence relating to foreign-based or international threats to national security.91 The Foreign Intelligence Surveillance Act, commonly known as FISA, requires any government agency, including the military, seeking such information to obtain an order from the largely secret Foreign Intelligence Surveillance Court. With these qualifications, the act permits military personnel to gather data about electronic communications—phone calls, emails, Internet searches—and to conduct physical searches without the knowledge of the person targeted. A 2001 amendment also allows the collection of business records held by third parties, such as banks, phone companies, and Internet ser vice providers. In 2007 the army was reported to have relied on this authority to accumulate bank records on large numbers of Americans, for reasons never revealed.92 Any other kind of domestic surveillance that implicates a target’s reasonable expectation of privacy under the Fourth Amendment requires the same sort of judicial warrant needed in any crim-

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inal case.93 The exact extent to which military intelligence components rely on FISA is unknown. THE EXECUTIVE SEIZES THE INITIATIVE

Following passage of the Privacy Act in 1974, President Gerald Ford sought to head off further congressional inroads into what he regarded as executive prerogatives. In February 1976, he issued an executive order to regulate the entire intelligence community.94 Five years later, President Ronald Reagan issued a similar order that, with various amendments, continues in effect today.95 Meanwhile, the Defense Department adopted several directives and regulations to curtail some of the military intelligence ser vices’ worst domestic abuses. Executive Order No. 12,333

Executive Order No. 12,333, published in 1981, directs all federal departments and agencies to “obtain reliable intelligence information to protect the United States and its interests.”96 It specifically instructs the Defense Intelligence Agency to “[c]ollect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national and departmental missions.” 97 More broadly in one sense, but more narrowly in another, intelligence and counterintelligence elements of the military ser vice branches are given the same responsibilities regarding “defense and defense-related intelligence and counterintelligence.”98 Even more broadly, the secretary of defense is directed to collect, analyze, produce, and disseminate “information and intelligence,” without specific limitation.99 The term “national and departmental missions” is not defined. The definition of “defense and defense-related” is left for DOD regulations, although it presumably includes only investigations properly performed by defense agencies. Collection for the suppression of domestic violence, for example, is not mentioned, but neither is it excluded. Practical constraints come instead in descriptions of the purposes of par ticular missions and in the application of DOD and ser vice branch regulations to those missions. The Department of Defense regards the order as applicable only to its intelligence components or to nonintelligence personnel performing intelligence functions.

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“Twelve triple-three,” as intelligence professionals refer to the order, contains only very general restrictions on targets and techniques. For example, nonconsensual collection of nonpublic information about  U.S. persons is authorized not only for foreign intelligence or counterintelligence, but also “to protect the safety of any persons or organizations.”100 Soldiers are not authorized to conduct physical searches or physical surveillance of U.S. persons not affiliated with the military,101 however, and any domestic collection must employ the “least intrusive collection techniques feasible, following procedures approved by the Attorney General.”102 Clandestine collection of foreign intelligence using human sources, as well as counterintelligence actions generally, must be coordinated by the FBI when conducted inside the United States.103 The order does stress civilian control of the military, and it appears to bar at least some of the worst abuses of the Vietnam era. Yet it also leaves many questions unanswered. Defense Department regulations, which purport to require strict compliance with 12,333, supply some of those answers. Department of Defense Regulations

The revelations by Christopher Pyle and the Ervin Committee spurred the promulgation of DOD internal controls designed to enforce the selfdiscipline touted by Assistant Attorney General Rehnquist. A directive adopted in early 1971 and still in effect today generally prohibits military personnel from “collecting, reporting, processing, or storing information” about persons or organizations not connected in any way with the Defense Department.104 An exception is made for surveillance to protect DOD personnel, activities, and installations, however.105 Soldiers may investigate “direct” threats to DOD personnel or possible “[s]ubversion of loyalty, discipline, or morale” of troops.106 Another exception permits collection when military officials perceive “a distinct threat of civil disturbance exceeding the law enforcement capabilities of State and local authorities,” presumably even before the president issues a public proclamation invoking the Insurrection Act.107 The Church Committee later noted that the directive could be and was used to allow collection for the purpose of justifying further collection.108 And because terms such as “loyalty” and “morale” are not defined in the directive, it might allow the investigation of “any form of protest activity against the established order.”109

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The 1971 directive specifically bars surveillance of persons and organizations “solely because of lawful advocacy of mea sures in opposition to Government policy.”110 Surveillance partly or even mostly based on such advocacy apparently is acceptable, however. The directive also prohibits covert activities, such as wiretaps or penetration of civilian organizations, unless the secretary of defense or his designee approves, or unless a local commander perceives a “direct and immediate” threat.111 In short, the exceptions appear to swallow the general rule. Remarkably, the directive does not apply to DOD intelligence components, which were responsible for much of the abuse chronicled by the Ervin Committee.112 Only after the reports of the Church Committee did the Pentagon issue a directive that would.113 The newer directive, like the earlier one, is cast in such broad terms that, in the words of one critic, it “appear[s] to support collection of information on U.S. persons for almost any purpose.”114 It was and still is concerned solely with foreign intelligence and counterintelligence— information having a foreign or international connection. Yet given the well- documented assumption by army intelligence officials several decades ago that every peaceful demonstration against racial discrimination or the Vietnam War was the product of a foreign conspiracy, this restriction is hardly reassuring. No limits are prescribed for surveillance of non-U.S. persons, such as foreign students or aliens with temporary work permits. More recent directives are more specialized. They cover terrorism information, assistance to civil authorities, support for civilian law enforcement, natural disasters, counternarcotics, and weapons of mass destruction. But they also overlap the older ones. Related DOD and ser vice branch procedures and instructions are even broader than the directives they purport to implement. One, for example, approves collection of foreign intelligence and counterintelligence, as well as any sort of publicly available information, along with data relating to communications security; the physical security of DOD employees, installations, and operations; narcotics; and threats to the “safety of any person or organization.”115 Covert methods may be employed to collect foreign intelligence when overt means will not “reasonably” suffice, when the foreign intelligence sought is “significant,” and when that information is not about the “domestic activities” of any U.S. person.116 Domestic activities are those having no “significant” foreign connection.117 Military intelligence personnel also may provide “assistance” to the FBI and other law enforcement authorities

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in conducting physical searches.118 More ambiguous constraints are hard to imagine. It is hardly surprising that even experienced military intelligence officers express frustration over these instructions. Notwithstanding at least some of these regulatory constraints, the Pentagon may furnish “defense support” for domestic emergencies, law enforcement, and “other domestic activities” when requested by other federal, state, or local officials, or when directed by the president.119 Without waiting for approval of such a request, military commanders may provide immediate, temporary support to “save lives, prevent human suffering, or mitigate great property damage within the United States.”120 And even without a request a commander may act on his or her own initiative in “dire” circumstances to quell large-scale civil disturbances that are beyond the control of local authorities and that threaten “significant loss of life or wanton destruction of property,” federal property, or federal functions.121 In each instance the defense support includes collection and sharing of related intelligence—what the Department of Defense calls incident awareness and assessment.122 This rabbit warren of interconnected directives, procedures, instructions, and regulations plainly reveals a sensitivity to the threats posed by military intrusions into civilian life. The rules describe formal limits to some domestic military intelligence activities, and they call for closer civilian controls. Still, in order to preserve the flexibility military personnel need in responding to unpredictable threats they are couched in very broad terms and riddled with exceptions. Some of the rules bear functional titles: intelligence activities, counterintelligence, support of civil authorities, support of civilian law enforcement agencies. Others describe targets, such as unaffi liated persons or  U.S. persons. But the rules interact, overlap, and sometimes seem to conflict. The resulting complexity and ambiguity could make it difficult for soldiers acting as investigators to know how to carry out their missions lawfully.123 In light of this complexity, military intelligence personnel are trained intensively and often, to help them navigate the rules. But reliance on this training would be unnecessary if the rules were clearer. Compliance is monitored internally by inspectors general for the Department of Defense and each of its component parts. A current army regulation requires reporting of “questionable intelligence activities” directly through command or inspector general channels or to the Defense Department’s general counsel.124 These reports also go to the Intelligence Oversight

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Board, an agency within the Executive Office of the President, and to the Office of the Director of National Intelligence. Oversight from outside the executive branch comes, to some unknown degree, only from the intelligence, armed ser vices, and appropriations committees of Congress.125 Yet aside from occasional public hearings by these committees, the public really has no way of confirming directly that all of the “worst intrusions” of several decades ago will not be repeated. POSSE COMITATUS REDUX

The Church Committee noted that the Posse Comitatus Act of 1878126 was passed to “prevent federal marshals from commandeering military troops to help enforce the law, and not to prohibit investigations of civilians by the military.”127 But military leaders have always read the act more broadly, as restricting the involvement of troops in law enforcement.128 And law enforcement typically involves investigation. Not spelled out in any statute but accepted in case law, soldiers may act as detectives if the primary purpose is to enforce the Uniform Code of Military Justice or to achieve some other distinctly military goal, and the benefits to civilian authorities are merely incidental—the so- called military purpose doctrine. For example, soldiers may collect and share information about a civilian drug suspect obtained in an investigation aimed at a soldier.129 A DOD instruction says, however, that this doctrine cannot be used as a “subterfuge” for getting around the Posse Comitatus Act.130 Several statutory exceptions to the Posse Comitatus Act are relevant here. The most important is the Insurrection Act, which gives the president wide latitude in deploying troops to help enforce state or federal laws.131 Once invoked, it permits military personnel to collect whatever information they need to carry out their statutory duties, subject only to constitutional constraints. On the other hand, the military’s collection of information about civilians in anticipation of civil unrest, before the president issues a proclamation invoking the Insurrection Act, may violate the Posse Comitatus Act. According to the Supreme Court in Laird v. Tatum, when the army does this it acts essentially as “a police force or the back-up of a local police force.”132 The Court sought to justify this practice, declaring in a dictum that “[w]hen force is employed it should be intelligently directed, and this depends upon having

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reliable information—in time. . . . So we take it as undeniable that the military, i.e., the Army, need a certain amount of information in order to perform their constitutional and statutory missions.”133 The Court failed even to mention the Posse Comitatus Act, however. It also failed to indicate just how much information constitutes the “certain amount” needed. Judicial interpretations of the Posse Comitatus Act in the wake of the 1973 Wounded Knee incident, limiting its application to exercises of military power that are “regulatory, proscriptive, or compulsory in nature,”134 did little to clarify permissible limits on intelligence collection. Statutory exceptions to the act in 1981, on the other hand, passed in response to the War on Drugs, dramatically loosened the reins on military sleuthing.135 One allows soldiers to give law enforcement officials “any information collected during the normal course of military training or operations” if it might be “relevant to a violation of any Federal or State law.” And in planning and conducting their training and operations, troops must consider the “needs of civilian law enforcement officials for information . . . to the maximum extent practicable.”136 By encouraging soldiers to investigate at the request of the police, this measure appears to run contrary to the original purpose of the Posse Comitatus Act, which was to stop civilian law enforcement officials from recruiting military assistance. It also seems inconsistent with the Privacy Act, which bars the transfer of personal information among agencies except for “routine use” that is “compatible with the purpose for which it was collected.”137 More nearly in keeping with the Posse Comitatus Act, another of the 1981 statutes directs the secretary of defense to adopt regulations to bar troops from “direct participation” in a “search . . . or other similar activity.”138 According to current DOD internal guidance, the forbidden direct participation includes, but is not limited to, searches, evidence collection, surveillance of individuals, and undercover work.139 The 1981 law also authorizes the loan of military equipment, and soldiers to operate it, to help enforce federal drug, immigration, smuggling, and antiterrorism laws. In this capacity the domestic involvement of military personnel is largely limited, however, to aerial surveillance and to the detection of air and sea traffic.140 The military apparently relied on this authority in 2002, when it deployed aircraft with high- tech sensors over the nation’s capital to hunt for the perpetrator of multiple sniper shootings. Military pilots flew the planes

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and monitored the surveillance equipment, although FBI agents on board actually collected the information. According to one expert, however, without evidence of any connection to terrorism the direct military aid violated both the 1981 statutes and the Posse Comitatus Act, as well as DOD regulations.141 Two other statutory exceptions to the Posse Comitatus Act are geared to the special expertise and equipment that military forces could bring to an emergency response. They allow searches for weapons of mass destruction, or related to explosive, chemical, biological, or radiological materials.142 Finally, while the Constitution says nothing about the use of troops for law enforcement, the Defense Department has long claimed authority “based upon the inherent legal right of the U.S. Government—a sovereign national entity under the Federal Constitution—to insure the preservation of public order and the carry ing out of governmental operations.”143 In extreme circumstances this claim could be read to provide unbounded approval for investigations of civilians that otherwise might violate the Posse Comitatus Act.

This long, tangled story of domestic military intelligence is fi lled with good news and bad news. The good news is that soldiers acting as investigators have helped keep us safe from both external and internal threats. Their contributions to our security cannot be overstated. They have been able to do this because of their unique orga nization, training, equipment, and discipline. The bad news is that these same qualities have sometimes allowed them to threaten the very liberties they are sworn to defend. Before the development of a robust civilian internal security apparatus in the early twentieth century, army intelligence agents collected information about our enemies during three wars fought on home soil. Later on they helped protect critical defense industries in war time. They also gathered data needed to police their own forces and keep those forces safe from harm. And when they were called on to help enforce the law and suppress domestic violence, as they were in Little Rock and Washington, DC, they provided vital information not otherwise available. At other times in the past, however, military personnel were deployed to do jobs assigned to civilian agencies like the FBI. These deployments were

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not only unauthorized, they also betrayed our long-held tradition of barring military intrusions into civilian life except in the most extraordinary circumstances. Sometimes these soldiers operated under strict civilian leadership, sometimes not. They often were wasteful, as well, duplicating the efforts of the FBI and other law enforcement agencies. More disturbing, soldiers were sometimes used as investigators for blatantly political purposes—to thwart labor movements, resist advances in civil rights, and suppress peaceful protests against government policies. These actions would have been illegal and unconstitutional no matter which government agencies carried them out. But employment of military forces was especially contemptible. Some of these unwarranted intrusions might have been avoided had the law provided clearer guidance for military intelligence personnel. Yet political and military leaders who ordered them sometimes seemed determined to act in secret and avoid accountability. When the abuses came to light, the Defense Department and its supporters blocked congressional efforts to establish broad statutory limits. They did this, they said, in the interest of national security, in order to preserve flexibility for military forces to respond to unpredictable future threats. The Pentagon also resisted efforts to establish more rigorous outside oversight, insisting that the military could be trusted to police itself. Following the Iran/Contra scandal in the Reagan administration, Congress enacted legislation requiring the head of each federal agency to keep the congressional intelligence committees “fully and currently informed of all intelligence activities.”144 No information is publicly available, however, about reports to the committees on military collection of intelligence about civilians in the United States. Whether we have struck the right balance between security and liberty remains to be seen. Today there is no evidence of military intelligence abuses anything like those seen during the Vietnam War era. Current military regulations seem intended to prevent, albeit clumsily, many of the very worst offenses. The terrorist attacks of 9/11, however, provoked new efforts to carve out a larger domestic intelligence role for the armed forces. These developments are explored further in Chapter 8.

CHAPTER SEVEN

Soldiers in Charge

I

n 1955, early in the Cold War, the federal government conducted a civil defense drill called Operation Alert. The premise of the exercise was that a Soviet atomic attack on sixty- one U.S. cities had just killed 8 million people. To the utter astonishment of everyone involved, President Eisenhower’s very fi rst act was to proclaim martial law “throughout the United States, its territories and possessions.”1 Carefully rehearsed response plans for federal agencies were ignored. The president is reported to have concluded that “all the ordinary processes by which we run this country simply will not work under the circumstances we have assumed here.”2 Forty- three years later martial law was declared in Brooklyn by Army Major General William Deveraux (played by Bruce Willis) in the movie The Siege.3 His declaration followed a series of terrorist bombings. Some 10,000 army troops cordoned off the borough, Arab- speaking men between the ages of fourteen and thirty were required to turn themselves in for interrogation, and hundreds were detained. “I am the law,” insisted the general. Fortunately, the United States, unlike many nations, has actually experienced martial law only rarely, and even then only on a limited basis. Yet it is not hard to imagine scenarios in which the ability of civilian government to function normally might be seriously tested. A pandemic of some contagious disease, manmade or otherwise, or a cyber attack that shut down a regional

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electric grid for an extended period are among the most likely. Martial law is the predictable response to such a worst- case scenario, because only troops might be thought capable of maintaining some semblance of order. But martial law also is a worst- case scenario. It is the product of a failure of planning—when conditions allow the use of force to replace the rule of law. The result may be utterly unpredictable and even unprincipled. Government is conducted ad hoc by a military commander based entirely upon his or her opinion of what is needed to meet the emergency, with no transparency or public participation, and perhaps no accountability afterward. By “martial law” we mean here the displacement of ordinary domestic civilian government by military forces. We do not mean “military law,” which refers to rules for the behavior of military personnel (for example, the Uniform Code of Military Justice), or “military government,” which applies to the military’s occupation of conquered territory.4 This chapter is about our experience with martial law— circumstances for its proclamation, and consequences of its implementation. It also is, more importantly, about how to avoid martial law in the future.5 BLACKSTONE’S “NO LAW”

Early in the seventeenth century, in the midst of the Thirty Years War, Charles I quartered troops in homes along England’s southern coast and declared martial law to quell civilian protests. Parliament reacted by adopting the Petition of Right in 1628, which included a prayer that “Martiall Lawe” not be used to punish subjects.6 The great English jurist Sir Edward Coke, principal author of the petition, asserted that Magna Carta and earlier parliamentary acts, which guaranteed due process for subjects accused of crimes, also impliedly forbade martial law in peacetime, when “courts of justice be open, and the judges and ministers of the same may by law protect men from wrong and violence, and distribute justice to all.”7 Charles’s reluctant assent to the petition marked the beginning of the British law’s concern with this extraordinary institution. A century after that, shortly before the American Revolution, William Blackstone described martial law as “temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is . . . in truth and reality no

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law, but something indulged, rather than allowed as a law.”8 His characterization then remains true today. MARTIAL LAW ARRIVES IN AMERICA

Martial law made its first appearance in America in 1775. Parliament had declared the colonies to be in a state of rebellion, and after the clashes at Lexington and Concord colonial forces had laid siege to the City of Boston. On June 12 of that year, just five days before the Battle of Bunker Hill, British General Thomas Gage proclaimed martial law in the city.9 Later the same year, Virginia’s colonial governor, Lord Dunmore, declared martial law throughout the Commonwealth. The Virginia Assembly responded that he had assumed a power “which the King himself cannot exercise,” because it “annuls the law of the land, and introduces the most execrable of all systems, martial law.”10 America’s early leaders declined to follow the British example. The First Continental Congress gave General George Washington very broad powers to manage the Revolutionary War, including the authority to arrest and punish disloyal civilians. He exercised this authority often. Yet even in the most dangerous of times, as when a large British invasion force threatened to capture the seat of government in Philadelphia, the nation’s first general never sought to substitute military for civilian government. If the Framers in Philadelphia discussed martial law, no record of it exists, and the institution of martial law is not mentioned in the Constitution. Neither was it referred to in any of the Federalist papers. As we saw in Chapter 2, the first Congress adopted measures for the deployment of militias to help execute the laws, suppress insurrections, repel invasions, and quell domestic violence, but there is no evidence that the wholesale displacement of civilian government by military forces was contemplated. Rather, it was understood that soldiers would do only what civilian officials could not do for themselves, and that their role in those circumstances was to be strictly limited in every respect by necessity. The delicate balance between civilian and military rule was nevertheless tested a number of times in the young nation’s turbulent early years. In 1806, for example, Aaron Burr traveled down the Ohio and Mississippi rivers with a plan, it was believed, to invade Mexico, which was then a Spanish possession, and establish a new nation that included some western U.S. territories. President Jefferson instructed the army to oppose this plan. In

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New Orleans, General James Wilkinson, Burr’s one-time collaborator, received word that Burr would soon arrive there with several thousand armed men, and would “seize” money and military stores to support his expedition. But the territorial governor and legislature refused Wilkinson’s pleas to declare martial law in the city, and Burr was arrested by federal forces before he could reach New Orleans.11 Later, President Jefferson remarked that while “Burr’s accomplices were calling in the aid of the law to enable them to perpetrate its suppression,” there are nevertheless “extreme cases where the laws become inadequate even to their own preservation, and where, the universal resource is a dictator, or martial law.”12 Andrew Jackson in New Orleans

Late in the War of 1812, General Andrew Jackson took command of about a thousand regular army troops and several thousand poorly equipped militiamen in New Orleans.13 Faced with imminent invasion by a British force of more than 14,000 men, Jackson declared martial law in the city on December 16, 1814. By way of justification, he advised local citizens to “look to your liberties, your property, the chastity of your wives and daughters; take a retrospect of the conduct of the British army . . . where it has entered our country; and every bosom which glows with patriotism and virtue will be inspired with indignation, and pant for the arrival of the hour when we shall meet and revenge those outrages against the laws of civilization and humanity.”14 Jackson later explained his authority this way: The Constitution of the United States secures to the citizen the most valuable privileges; yet that Constitution contemplates the necessity of suspending the exercise of the same, in order to secure the continuance of all. If it authorizes the suspension of the Writ of Habeas Corpus in certain cases, it thereby implicitly admits the operation of martial law, when, in the event of rebellion or invasion, public safety may require it. To whom does the declaration of this law belong? To the guardian of the public safety, to him who is to conduct the operations against the enemy, whose vigilance is to destroy danger, and whose arms are to repel it. He is the only authority present to witness and determine the emergency which makes such a resort necessary, and possessed of the means to make suitable provision for it. For the correctness of his conduct, under the circumstances which influenced him, he stands responsible to his government.15

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“[L]aws must sometimes be silent,” he wrote, “when necessity speaks.”16 Jackson’s reading of the Constitution as impliedly authorizing martial law was controversial. One of his lawyers advised him that no such authority existed, and that he was acting entirely on his own initiative and at his risk. There was no question, however, that the city was in grave danger. British troops were orga nizing for attack, and skirmishes with American forces began a week later. This time the governor approved Jackson’s actions. Martial law in New Orleans meant that all who entered or departed the city were required to report to military officials. A 9:00 p.m. curfew was imposed. Able-bodied men under the age of fifty who failed to enlist in the militia were imprisoned. Every horse, ox, wagon, slave, gun, shovel, pickax, and hoe in the city was requisitioned for use by troops. Miles of fencing and many structures were torn down for fuel and fortifications. The decisive Battle of New Orleans, fought on the Chalmette Plain south of the city, came on January 8, 1815. The British were overwhelmingly defeated, and the remaining British forces finally withdrew to their ships in late January. Jackson, however, fearing another attack that never came, refused to suspend martial law until official word of a peace treaty arrived on March 13, 1815. Martial Law in the States and Territories

On several occasions in the early days of the Republic, state or territorial, rather than federal, officials declared martial law. The first such case to be addressed by the Supreme Court was Luther v. Borden, which grew out of the so- called Dorr Rebellion in Rhode Island in 1842.17 The legislature there declared martial law in the face of a full-fledged revolt against the established state government. When state troops broke into the house of one of the rebels, the Court said this: “If the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition.”18 According to the Court’s majority, it was not necessary to inquire “to what extent, nor under what circumstances that power may by exercised by a State.”19 The decision was later interpreted by the Court as revealing nothing about martial law under the U.S. Constitution.20

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Reviewing both English and American history up to that point, Justice Woodbury dissented vehemently and at length. In the absence of an invasion or domestic violence sufficient to trigger federal intervention, he wrote, the declaration of martial law in Rhode Island was not warranted. It exposed the whole population, not only to be seized without warrant or oath, and their houses broken open and rifled, and this where the municipal law and its officers and courts remained undisturbed and able to punish all offences, but to send prisoners, thus summarily arrested in a civil strife, to all the harsh pains and penalties of courts-martial or extraordinary commissions, and for all kinds of supposed offences. By it, every citizen, instead of reposing under the shield of known and fi xed laws as to his liberty, property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp- post, under the sentence of some drum-head court-martial. . . . [I]n every country which makes any claim to political or civil liberty, “martial law,” as here attempted and as once practised in England against her own people, has been expressly forbidden there for near two centuries, as well as by the principles of every other free constitutional government.21

An even more remarkable saga unfolded in 1856 on the shores of Puget Sound, when Washington Territory was engaged in a “war against Indian murderers and marauders.” The territorial governor, Isaac Stevens, ordered the arrest of several settlers, some with Indian wives, who were suspected of “giving aid and comfort to the enemy,” and he directed their trial by military commission. Governor Stevens then sought to prevent the settlers’ application for habeas corpus by proclaiming martial law in the county where they were held. When federal judge Edward Lander defied the proclamation and convened court there, a body of volunteer troops burst into his courtroom with loaded weapons, forcibly removed the judge from the bench, and imprisoned him with his clerk. Meanwhile, the community was otherwise entirely peaceful. Lawyers and other local citizens complained directly to President Franklin Pierce of what they called “an outrage . . . entirely subversive of our liberties.”22 A short time later Judge Lander was released from custody, whereupon he immediately convened court in a different county and issued a writ of habeas corpus for the settlers. The governor responded by declaring martial law in the second county and ignoring the writ. Lander then found the governor in con-

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tempt and ordered his arrest. Instead, the judge was arrested once again, this time in his chambers, by troops acting on orders from the governor. A different judge then took the bench and, surrounded by a posse of fifty armed civilians, issued habeas writs for all the prisoners, including Judge Lander, proclaiming that only Congress could provide for martial law. The writ was refused by the local military commander, who was himself then taken into custody by a U.S. marshal upon the judge’s order. The standoff eventually ended quietly. The military commission appointed by Governor Stevens decided that it lacked jurisdiction to try the settlers, and after a civil court hearing on their habeas writ they were released. The governor rescinded his martial law proclamations. Judge Lander and the military commander were released, and Lander fi ned the governor $50. Finally, when Stevens sought to pardon himself, prompting much discussion and derision, the fine was paid by his friends. President Pierce found the governor’s actions unjustified. The following year Attorney General Caleb Cushing was asked for his opinion in the matter. The nation’s top lawyer replied that Governor Stevens had no authority to impose martial law, although he failed to say who did. Like General Jackson before him, Cushing then went on to suggest that martial law could be declared only under the conditions specified in the Constitution for suspension of habeas corpus, “when in case of rebellion or invasion the public safety may require it.” Otherwise, he wrote, “the Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is . . . . In this country it is still worse.”23 In this state of indeterminacy the United States entered the Civil War four years later. FROM THE CIVIL WAR TO THE MODERN ERA

President Lincoln was well aware of Andrew Jackson’s protracted imposition of martial law in New Orleans. In the middle of the Civil War he remarked that “we had the same constitution then, as now. . . . [T]he permanent right of the people to public discussion, the liberty of speech and the press, the trial by jury, the law of evidence, and the Habeas Corpus, suffered no detriment whatever by that conduct of Gen. Jackson.”24 The violations of constitutional rights were, in other words, temporary. On September 24, 1862, Lincoln issued a proclamation directing that “all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or

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guilty of any disloyal practice, affording aid and comfort to rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by courts-martial or military commissions.”25 In practical terms this meant that anyone determined by military authorities to be guilty of any of the offenses named could be arrested and tried by a military court. The same proclamation authorized suspension of the writ of habeas corpus, but it did not extend military rule to other aspects of civilian life. At about the same time, a case arose in federal district court in Vermont involving the arrest of a civilian named Anson Field upon orders from military authorities who accused him of “disloyal practices”—in this instance, discouraging military enlistments.26 The prisoner argued that Vermont was “a loyal state, more than five hundred miles from the seat of war; that the people are patriotic and law abiding; that the enforcement of civil law has not been interfered with within her borders; and that, therefore, there is nothing to justify martial law.”27 The court, however, referring to Lincoln’s proclamation, declared in a dictum that “the president has the power, in the present military exigencies of the country, to proclaim martial law, and, as a necessary consequence thereof, the suspension of the writ of habeas corpus in the case of military arrests.”28 Echoing the Supreme Court’s earlier decision in Luther v. Borden, the court concluded that “this is a question for the president, not for the court, to determine.”29 President Lincoln imposed martial law in the border state of Kentucky late in the war, and army commanders did the same in South Carolina, Georgia, Florida, and Kansas. Several cities around the country were placed under martial law as well, including St. Louis, Baltimore, New Orleans, Cincinnati, and Washington, DC. But aside from the selective application of martial law to prisoners under Lincoln’s September 24, 1862 order, martial law was never proclaimed nationwide during the war. And where it was proclaimed its effect was different in different places. Press censorship was occasionally imposed, but in most instances civilian government was allowed to continue normally, as long as it did not interfere with military operations. The Supreme Court did not address the subject of martial law again until the war was over. Lambdin Milligan Again

The Supreme Court’s 1866 decision in the remarkable case of Lambdin Milligan was discussed at length in Chapters 4 and 5.30 Recall that Milligan, a

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Confederate sympathizer and rabble-rouser, was arrested by soldiers at his Indiana home in 1864 and tried by a military commission for various offenses related to the ongoing war. Martial law had not been declared in Indiana, and the civilian courts were never closed. The government argued, however, that Milligan was subject to martial law and therefore to military trial under the terms of President Lincoln’s proclamation of September 24, 1862. The Court responded: It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of the military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fi xed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the “military independent of and superior to the civil power”—the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.31

The Court nevertheless recognized that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity

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to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.32

Neither, said the Court, can martial law be justified merely by “a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”33 Because no Confederate troops were in Indiana at the time of Milligan’s arrest, and the state was not a battlefield, his military trial could not be justified by martial law. Some experts believe that as a practical matter the Court went too far when it ruled that martial law could not be justified by a merely threatened invasion. According to one, martial law may be proclaimed under circumstances like those that would allow suspension of the writ of habeas corpus—in a time of “Rebellion or Invasion” when “the public Safety may require it”—even at a time of merely impending hostilities or internal disorder.34 The Court apparently failed to consider the possibility that civilian courts might be closed by military order, thereby satisfying one of the criteria for martial law, rather than by invasion. In such a case, of course, no one would be left to judge the legitimacy of the military’s actions.35 The Supreme Court majority also neglected to indicate who could proclaim martial law. But in a concurring opinion Chief Justice Chase suggested that it could be “called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.”36 Ten years after the war ended the Court faced a case in which martial law had actually—and properly—been declared locally. United States v. Diekelman was a suit for damages by a shipowner whose vessel was detained by Union forces in New Orleans in September 1862.37 Echoing its earlier decision in Milligan, but without citing it, the Court dismissed the suit with this state-

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ment: “Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary; but it must be obeyed. New Orleans was at this time the theatre of the most active and important military operations. The civil authority was overthrown. General Butler, in command, was the military ruler. His will was law, and necessarily so.”38 The objective criteria set out by the Court in the two cases—the presence of war, actual insurrection or invasion, effective closure of courts, displacement of civil authorities, and no alternative to protect the army and society—left plenty of room for judgment about when martial law could be proclaimed. Yet even these incomplete guidelines were sometimes ignored in the decades that followed. Martial Law in the Industrial Revolution

Martial law was declared a number of times in the late nineteenth and early twentieth centuries by state governors acting as commanders in chief of their militias or National Guard. Most often the declarations resulted from labor disputes.39 The first of these cases to reach the Supreme Court was Moyer v. Peabody in 1909.40 In the midst of a dispute between miners and mine owners, Colorado Governor James Peabody declared martial law in San Miguel County, where Telluride is located. He closed the saloons, imposed a curfew, censored the press, shut down nonunion mines, collected guns, and suspended habeas corpus, although the civil courts remained open. He also ordered state troops to arrest and detain Charles Moyer, president of the Western Federation of Miners, whom he described as “the leader of a band of lawless men engaged in acts of insurrection.” 41 The governor maintained that the military was acting in “strict subordination to the civil power,” and that “in employing the militia to suppress an insurrection, [he was] merely acting in his capacity as the chief civil magistrate of the state.”42 Moyer complained that there was no insurrection, and that his extended imprisonment without charges violated the Due Process Clause of the Fourteenth Amendment. The Supreme Court, in an opinion written by Justice Holmes, ruled against him. Citing its decision sixty years earlier in Luther v. Borden, the Court found that “the governor’s declaration that a state of insurrection existed is conclusive of that fact.”43 Moreover, it wrote, “what is due

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process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation.”44 The Court concluded that as long as the governor ordered Moyer’s arrest “in good faith and in the honest belief that [it was] needed in order to head the insurrection off, the governor is the final judge. . . . When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.”45 Because it was then willing to assume the governor’s good faith, it left no role for courts to play, echoing Chief Justice Taney’s very deferential dictum in Luther. This apparent free rein for governors did not last long. In 1931, Texas Governor Ross Sterling declared martial law in several counties for the stated purpose of curtailing “insurrection, tumult, riot, and a breach of the peace.”46 In fact, there was no insurrection or domestic violence whatever. National Guard troops were deployed instead to halt the production of oil and gas wells, in order to curtail an oversupply of petroleum and falling prices. With no apparent sense of irony, the governor directed the guard’s commanding general to “take such steps as he might deem necessary in order ‘to enforce and uphold the majesty of the law.’ ”47 Sterling asserted that “the court was powerless . . . to intervene, and that the Governor’s order had the quality of a supreme and unchallengeable edict.” 48 In Sterling v. Constantin, a unanimous Supreme Court responded, “If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land . . . . Under our system of government, such a conclusion is obviously untenable.”49 Without describing the precise limits of martial law, the Court reclaimed its authority to determine the legitimacy of the governor’s actions: “It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a par ticular case, are judicial questions.”50 The Court then exercised its authority to strike down Governor Sterling’s resort to martial law.

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The question of martial law would reach the Supreme Court just one more time, after the end of World War II. BAYONETS AND LEIS: MARTIAL RULE IN HAWAII

On December 7, 1941, just hours after the Japanese attack on Pearl Harbor, Hawaii Governor Joseph  B. Poindexter cited an ongoing “danger of invasion” when he declared martial law throughout the territory.51 He acted under the explicit authority of a federal statute, the Hawaii Organic Act of 1900.52 The governor’s proclamation authorized the commander of U.S. forces in the islands, Lt. Gen. Walter C. Short, to “exercise all the powers normally exercised by me as Governor.” General Short immediately appointed himself military governor of Hawaii, an office for which there was no basis in either military or civilian law, and announced that he had “taken charge of the government of the Territory.” The troops under his command would, he proclaimed, put down any rebellion or disorder (there was never any credible threat of either), prevent any aid to an invader, and “act with such fi rmness and vigor and . . . use such arms as the accomplishment of their task may require.”53 As an added precaution, he ordered the immediate closure of all “saloons” and prohibited all sales of alcoholic beverages—a wildly unpopular measure that was quickly revoked. In the days that followed, General Short exercised his authority to close the civilian courts, although those courts were always perfectly capable of operating normally. They were soon allowed to resume hearing most civil cases. The criminal trials of civilians in military courts during this period are recounted in Chapter 5. Short also closed all schools on the islands, froze wages, suspended labor contracts, and imposed censorship of newspapers, radio, and civilian mail. A curfew and blackout were enforced from 6:00 p.m. to 6:00 a.m. All but infants were fingerprinted. Additional military regulations concerned traffic, vaccinations against contagious diseases, collection of rent and eviction of tenants, price controls, door-to-door salesmen, garbage collection, and many other aspects of daily life in Hawaii. The Supreme Court later observed that military authorities “could and did, by simply promulgating orders, govern the day to day activities of civilians.” There was “no specialized effort by the military . . . to enforce orders which related only to military functions.”54

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One extraordinary order provided that no “place of amusement” could allow “any speech to be made, words uttered, gestures made, songs sung, music played, plays performed, pictures, banners, or placards exhibited expressing hostility or disrespect to the United States,” the armed forces, or the military governor.55 The First Amendment implications of this regulation were not tested. After the Battle of Midway in early June 1942, there was never any realistic threat of Japanese invasion, aside from a possible landing of saboteurs from submarines or subversive acts by disloyal islanders. The New York Times reported that the residents of Hawaii “felt they were being deprived of constitutional rights for no good reason.”56 Martial law apparently was nevertheless continued for another two years chiefly out of concern that some members of the large Japanese-American population—who were not interned like their counterparts on the mainland—would commit acts of espionage or sabotage.57 A new territorial governor, along with officials at the Justice Department and Department of the Interior, lobbied hard to restore constitutional government to the islands. Interior Secretary Harold Ickes wrote, “The idea that restoring the responsibility of civil government and the jurisdiction of the court would hamper the defense of the territory by the Army and Navy is repugnant of every concept of American democracy.”58 Over the strenuous objection of the military governor, civilian authority was substantially restored in March 1943. In early 1944 a federal district court ruled that “martial law depends for its creation and existence upon a condition of disorder so great as to disrupt the orderly perfor mance of civil government.” That condition no longer existed. “[A]ll grounds of necessity in public safety had passed.”59 Nevertheless, martial law was not formally lifted until October 24, 1944.60 In 1946, after the war ended, the Supreme Court decided Duncan v. Kahanamoku, a case involving the military trials of two civilians. The phrase “martial law” as employed in the Hawaii Organic Act, said the Court, “while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.”61 According to the Court, “People of many ages and countries have feared and unflinchingly opposed the kind of subordination of executive, legisla-

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tive and judicial authorities to complete military rule” championed by the government in this case. “In this country that fear has become part of our cultural and political institutions.”62 The Court also repeatedly cited its earlier decision in Ex parte Milligan with approval. But it failed to provide further guidance about the circumstances that would justify a declaration of martial law, or about the consequences of such a declaration. The Supreme Court has not decided another case involving martial law since Kahanamoku in 1946. But the subject was mentioned in passing in two more recent cases. In one of these the Court ruled that President Truman lacked authority to take control of the nation’s steel mills to avert a strike during the Korean War. While Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure Case)63 did not squarely concern military control of civilian government functions, it found that the president’s domestic emergency powers as commander in chief were distinctly limited in the midst of an undeclared war far from American shores. In a famous concurrence in that case, Justice Jackson intimated that those limitations might not apply to the establishment of martial law, which he described as “in a very limited category by itself.” 64 Then in Laird v. Tatum, a 1972 case involving army surveillance of Vietnam War protestors, Justice Douglas remarked that the Milligan Court “would have been horrified at the prospect of the military— absent a regime of martial law— establishing a regime of surveillance over civilians.” 65 The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so. It is hardly surprising, then, that the military has adopted its own protocols for responding to worst- case scenarios. LAW FOR “NO LAW”

Defense Department and ser vice branch regulations are probably the best predictors of the military’s behavior in the next great emergency. After all, soldiers fight the way they are trained. These rules provide additional guidance based on the decisional law just reviewed, American political history, two centuries of practical experience, and the views of scholars in the field, as well as the military’s own sense of its obligation to protect the

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nation and its people. Like the underlying judge-made law, however, the Pentagon’s rules are in many respects incomplete. The Defense Department’s Own Martial Law Rules

Martial law was mentioned briefly in the 1923 Emergency Plans—White, which offered guidance for deployment of military forces in domestic crises. The need for martial law should be “very rare,” it stated, especially because the deployment of troops under the authority of the Insurrection Act probably permits curfews, the collection of firearms, closure of places of amusement, and regulation of traffic, as well as the arrest and detention of civilians and their trial by military courts.66 A 1941 War Department field manual declared that martial law could be invoked only when “the machinery of the civil government has broken down, and the courts are no longer properly and unobstructedly exercising their jurisdiction.” When it is invoked, “the civil and criminal laws continue in force, except insofar as their actual enforcement may be suspended for the time being by inability of the civil authorities to function, or in specific particulars, as a matter of military necessity, by order of the President or of the military commander acting by authority of the President.”67 A 1956 army regulation added that “[w]hen Federal Armed Forces have been employed in an objective area in a martial law situation, the population of the affected area will be informed of the rules of conduct and other restrictive measures the military is authorized to enforce. These normally will be announced by proclamation or order and will be given the widest possible publicity by all available media. Federal Armed Forces ordinarily will exercise police powers previously inoperative in the affected area, restore and maintain order, insure the essential mechanics of distribution, transportation, and communications, and initiate necessary relief measures.”68 The regulation did not say that a “martial law situation” can exist only following an actual invasion, the closure of courts, or the complete overthrow of civil authority. In an apparent effort to offer more detailed practical guidance to field commanders, the army issued a series of lectures in 1960 on martial law. The first lecture seemed to paraphrase the Declaration of Independence: “It is repulsive to the American concept of government that the military should ever be superior to the civil authorities. Nevertheless, as we reflect on the pa-

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rade of historical events that cemented our people into a great nation, we are reminded that on numerous occasions extraordinary executive action was required to preserve the rule of law as a vibrant force in shaping the destiny of our country. Incongruous as it may seem, this extraordinary executive action required that the military assume the noncombat role of displacing the civil authorities until such time as ‘necessity’ could no longer support such action. This is not a desirable arrangement.” 69 When martial law is proclaimed, it said, restrictions on travel and assembly, including curfews, might be imposed, private property may be appropriated for public use (with compensation to follow), and “troublemakers” might be imprisoned without trial. But “courts are the final arbiters” of whether any of these measures were necessary.70 A still more recent DOD regulation stated, “Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time. In most instances the decision to impose martial law is made by the President. . . . However, the decision to impose martial law may be made by the local commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority.”71 This regulation was inexplicably removed in 2008 and not replaced with another that expressly addresses martial law.72 Current DOD rules and regulations for martial law, if any, are not publicly known. But the rules that existed until very recently were notable in several ways. Perhaps most important, they repeatedly stressed the need for fidelity to the law, so far as it is known, and to the American tradition of avoiding military entanglement in civilian affairs. They also avoided prescribing too much detail, instead preserving for the president and local commanders flexibility to respond to dangerous, unpredictable developments. Yet they invariably characterized martial law as something to be avoided whenever possible. More limited applications of military force are always preferable.

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“Immediate Response” and “Emergency” Authority

The Insurrection Act, described in detail in Chapter 3, gives the president enormous latitude in deploying National Guard and regular troops to deal with domestic emergencies, including civil unrest, when civilian authorities need help maintaining order or enforcing the law. It neither anticipates nor authorizes a proclamation of martial law. But it does require a personal decision by the president and a public proclamation when it is invoked.73 Some crises are too urgent for such a deliberate process. A DOD regulation thus provides “immediate response authority” for a local commander to respond quickly, upon the request of a civilian official, without relying on the Insurrection Act or waiting for approval from her chain of command, in order to “save lives, prevent human suffering, or mitigate great property damage.”74 The response may not, however, “subject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or compulsory”— that might, in other words, violate the Posse Comitatus Act. This authority was cited when the army furnished medevac aircraft, ambulances, bomb detection dog teams, and various personnel to assist civilian officials following the Oklahoma City bombing in 1995.75 Another regulation provides for “emergency authority” to act without either presidential approval or a request from civilian officials, to “quell large-scale, unexpected civil disturbances” that threaten “significant loss of life or wanton destruction of property,” in order to “restore governmental function and public order,” or to protect “Federal property or Federal governmental functions.”76 This regulation would apparently allow troops to help enforce the law, in spite of the strictures of the Posse Comitatus Act. These regulations are not based on any statute. But they are said to have deep historical roots. In the 1906 San Francisco earthquake, for example, the local army general immediately dispatched troops to protect federal buildings, including the post office and the U.S. Mint, to fight fires, and to prevent looting—all without waiting for orders from Washington.77 The DOD regulations also echo two broad Pentagon claims of domestic authority based on “the inherent legal right of the U.S. Government—a sovereign national entity under the Federal Constitution—to insure the preservation of public order and the carry ing out of governmental operations within its territorial limits, by force if necessary.” 78 One is said to authorize “prompt and vigorous Federal action, including use of military forces, to pre-

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vent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situations.”79 The other claim concerns the protection of “Federal property and Federal governmental functions when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection.”80 A commander’s reliance on any of these authorities presumably would be short-lived, only until instructions were received from her superiors, or until she determined that civilian officials could safely reassume control. In the meantime, her power apparently would be limited only by necessity as she determined it. Even in the most compelling circumstances, however, she might be reluctant to use this power, knowing that she would later have to justify her actions. Unfortunately, she would find no additional guidance in military protocols. Continuity of Government

In very nearly the worst possible case, the president and other government leaders would be killed or rendered powerless (or perhaps merely incommunicado) by a terrorist attack, contagious disease, or some great natural disaster. In such a catastrophe, the civilian government would be severely compromised, and without a viable response plan confusion and chaos would likely ensue. Until recently, plans for “continuity of government” in this kind of existential crisis have been among this nation’s most closely guarded secrets. A 2007 presidential directive, however, spelled out “a cooperative effort among the executive, legislative, and judicial branches of the Federal Government . . . to preserve the constitutional framework under which the Nation is governed and the capability of all three branches of government to execute constitutional responsibilities and provide for orderly succession . . . during a catastrophic emergency.”81 The secretary of homeland security is designated as “lead agent for coordinating overall continuity operations and activities of executive departments and agencies.”82 The only role specifically assigned to the military is provision of secure communications to various government entities. Martial law is not mentioned in the portions of the document available to the public.

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So far, interruptions of civilian government by martial law have been temporary, although they sometimes have clearly lasted longer than necessary, as in New Orleans in 1815 and in Hawaii during World War II. In every instance, furthermore, military control of the civilian population has been limited, not absolute. Even in President Eisenhower’s notional proclamation of nationwide martial law in 1955, for example, habeas corpus was suspended only as to federal offenses, and civilian courts could continue to operate so long as they did not “materially affect the war effort.”83 Future prospects for martial law are unknown and, possibly, unknowable. Throughout the Cold War, the president was rumored to carry with him at all times a comprehensive secret plan, called “Plan D,” for responding to the threat of a nuclear attack. One element of that plan, Presidential Emergency Action Directive No. 21, apparently included a draft executive order declaring martial law, ready for the president’s signature on a moment’s notice. But the very existence of Plan D was a closely guarded secret. In 1987, the Miami Herald reported that Lt. Col. Oliver North (remembered now for his role in the Iran- Contra affair) and FEMA had drafted a new emergency plan calling for suspension of the Constitution, imposition of martial law, appointment of military commanders to run state and local governments, and detention of dissidents and Central American refugees.84 North denied it. It is possible, of course, that in the next great domestic crisis the president or a military commander will, like Lincoln or Jackson, decide to take matters into her own hands, ignore the law, do whatever she thinks is necessary to protect the nation and its people, and face the legal or political consequences later. Any court test of her actions will almost certainly be retrospective. And even if courts remain open and operating during military rule, judges have always been reluctant to second-guess the military, especially during war time. Not long ago, Deputy Secretary of Defense John Hamre declared, “Our goal is not to declare martial law and take control. Our goal is to avoid that at all costs.”85 His statement reflects the understanding that military control of government poses serious risks to civil liberties and perhaps to democracy. Nevertheless, military forces may be uniquely able to help restore order in a domestic crisis that overwhelms civilian government.

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The challenge is to minimize the likelihood that martial law will be declared when it is not absolutely necessary. One way to do that is through indoctrination of both civilian and military leaders in the deep-seated American tradition of resisting military intrusion into civilian affairs whenever possible. Another is to create viable alternatives. Careful planning for recovery from catastrophic emergencies, and repeated rehearsal of the plan, may help demonstrate that it is likely to be effective if it has to be implemented. And if the president believes in the plan, she will be less likely to conclude, as Eisenhower did in 1955, that “all the ordinary processes by which we run this country simply will not work.”86 Whether current recovery plans— developed chiefly by the Department of Homeland Security, the Pentagon, and the Justice Department after the terrorist attacks of 9/11—would inspire such confidence in the president is unclear. The military’s part in those plans, including prospects for martial law, is considered in Chapter 8.

CHAPTER EIGHT

Soldiers at Home in the Age of Terrorism

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he cliché that “everything changed after 9/11” says as much about a mind-set as it does about actual changes in Americans’ daily lives. We suddenly began to worry more about domestic than foreign attacks, internal rather than external threats. Riveted by images of the collapsing icons of American strength, we dreaded the next act of terrorism. It is hardly surprising that we asked the Defense Department to provide additional security on the home front. In the years since, the role of the military in America has been transformed, partly by the enactment of new laws and sometimes by presidential fiat. Whether that transformation is fundamental and enduring, or merely temporary, remains to be seen. Also unclear at this point is whether this change has actually made us safer and how, precisely, it has affected cherished civil liberties. But for now, military forces have become much more deeply involved in countering terrorism at home— aiding civilian law enforcement, gathering intelligence, even imprisoning terrorist suspects. These developments raise several important questions, both practical and philosophical: • Can the Department of Defense really improve the internal security already provided by civilian agencies— chiefly the Department of Homeland Security, FBI, and state and local law enforcement—and if so, how?

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• Does the Pentagon’s increased involvement in domestic counterterrorism require the sacrifice of interests protected by the Bill of Rights? • Does any added security justify such sacrifices? • How does all of this relate to our deep-seated tradition of avoiding military involvement in American society whenever possible? In this chapter we briefly review this newest interaction of soldiers and civilians, and seek answers to these questions. THE MILITARY’S DOMESTIC ROLE RECONSIDERED

When President George  W. Bush learned of the terrorist attacks on the morning of September 11, 2001, he reportedly remarked to Vice President Dick Cheney that the United States was “at war.”1 This characterization of events suggested an expanded role for troops on an expanded battlefield, which now included the American heartland. Indeed, while the attacks were still underway the Pentagon scrambled fighter jets in a vain attempt to intercept the hijacked airliners, then established combat air patrols over Manhattan and Washington, DC, with orders to shoot down any aircraft that posed new threats.2 National Guard and Reserve personnel rushed to Lower Manhattan to help care for the injured, assist local police, and provide logistical support. And in Virginia, military police from the Maryland National Guard arrived to help with security at the Pentagon. Three days later, President Bush declared a national emergency, enabling him to expand the numbers of active duty military personnel.3 On the same day, Congress passed the Authorization for the Use of Military Force (AUMF), authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] attacks or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.”4 This statute would be cited as authority for a variety of domestic military activities in coming months. Within days National Guard troops were deployed to provide additional security along U.S. borders and at more than 400 airports around the country. Additional guard and Reserve forces were ordered to protect critical civilian infrastructure such as bridges and power plants, and to guard large public gatherings. The Coast Guard was quickly transformed from a law enforcement agency—normally part of the Department of

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Transportation focused on smugglers, drugs, and maritime safety—into an antiterrorism military force charged with providing security to ports and coastal waters. Nearly a year after 9/11, even as the president proposed the creation of a new civilian-led Department of Homeland Security, he declared a need to “update plans to provide military support to domestic civil authorities in response to natural and man-made disasters.”5 Meanwhile, the Pentagon had already begun reorganizing for greater involvement in domestic security efforts. Defense Secretary Donald Rumsfeld announced the formation of a new Northern Command (NORTHCOM) to protect the United States, and he lobbied hard for congressional approval of two new military secretariats, an under secretary of defense for intelligence6 and an assistant secretary of defense for homeland defense. When the government’s new color- coded threat level reached “code orange” in February 2003, Air Force Secretary James Roche, describing military efforts to prevent another terror incident, told an audience, “Ladies and gentlemen, it’s our future. It’s never going away.”7 Two years later, the Pentagon concluded that a “new kind of enemy requires a new concept for defending the US homeland. . . . The [Defense] Department can no longer think in terms of the ‘home’ game and the ‘away’ game. There is only one game.”8 As for the presumption against military involvement in civilian law enforcement, a retired army officer wrote that “[p]resent policies and attitudes on the use of federal military forces to enforce the law in the United States are inappropriate for the Global War on Terrorism. What was done in earlier times is unlikely to be a good way to assure the security of the homeland against terrorist attacks.”9 A SECRET LAW FOR DOMESTIC MILITARY OPERATIONS?

Six weeks after 9/11, a secret legal opinion from the Justice Department’s Office of Legal Counsel (OLC) described circumstances inside the United States as “unprecedented in recent American history . . . [with] attacks on this scale and . . . consequences . . . ‘more akin to war than terrorism.’ ”10 As a consequence, authors John C. Yoo and Robert J. Delahunty concluded, military forces could play an expanded domestic role for which there was no recent precedent. Moreover, soldiers could operate without constraints imposed by either statutes or the Constitution.

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According to the Yoo/Delahunty opinion, Article II of the Constitution “directly authorizes use of the Armed Forces in domestic operations against terrorists.”11 Although that authority is not enumerated in the text, they wrote, it has long been recognized as an aspect of the president’s implied power to repel attacks on the homeland. They went on to assert that such a deployment would be unreviewable by the courts. Thus, the president would be empowered to use troops however he saw fit for as long as he alone thought appropriate. The OLC opinion also asserted that the Authorization for Use of Military Force (AUMF), passed by Congress three days after the 9/11 attacks, provides statutory authority to use troops at home to fight terrorism: “this legislation recognizes that the President may deploy military force domestically and to prevent and deter similar terrorist attacks.”12 It even described the AUMF as a statutory exception to the Posse Comitatus Act. But the statute makes no reference to domestic deployments, and there is no evidence that in its haste to pass this measure Congress even considered such a possibility. Yoo and Delahunty also claimed that the Insurrection Act provides general authority to use troops to prevent future terrorist attacks. The statute clearly states, however, that military forces may be deployed only when the president finds an obstruction to the execution of federal laws and issues a public proclamation.13 President Bush did neither. Regarding the protections of the Bill of Rights, the authors of the secret opinion wrote that the Fourth Amendment is “focused on police activity,” so its demands are not well suited to conditions of war and military necessity; it simply “does not apply to domestic military operations designed to deter and prevent further terrorist attacks.”14 The same rationale was used to justify the infamous general warrants, so despised by the Framers, that were exploited by the English Crown in colonial America to ransack homes and intimidate political dissidents. The founding era history and more than two centuries of judicial interpretation make it clear that the Fourth Amendment protects against all “unreasonable” searches and seizures undertaken by government personnel—civilian or military—at all times. But Yoo and Delahunty insisted that “[t]he Government’s compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.”15 Similarly, the 2001 opinion indicated that “First Amendment speech and press rights may . . . be subordinated to the overriding need to wage war

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successfully.”16 The First Amendment contains no war time exception, however, although its protections may, like those of the Fourth Amendment, be calibrated to accommodate exigent circumstances. The authors of the opinion would simply have placed constitutional protections for free expression and the media on indefinite hold. The opinion also argued that statutory limits on domestic military activities would not apply. Citing a DOD regulation indicating that the Posse Comitatus Act bar against military involvement in law enforcement is inapplicable when troops act “for the primary purpose of furthering a military or foreign affairs function,”17 Yoo and Delahunty concluded that the “domestic deployment of the Armed Forces to prevent and deter terrorism is fundamentally military, rather than law enforcement, in character.”18 But while military and law enforcement activities may sometimes blend or merge, particularly in a fast-moving crisis, the statute continues to operate. In the absence of a specific statutory or constitutional exception, military personnel are forbidden to help “execute the laws”—for example, by conducting searches or arrests pursuant to the prosecution of terrorismrelated criminal offenses. That is the job of civilian law enforcement officials. In 2004, the Supreme Court unequivocally rejected the notion that the military could conduct domestic operations freed from the strictures of the Constitution and laws. Hamdi v. Rumsfeld was a case involving the capture in Afghanistan and military imprisonment in the United States of a terrorism suspect without charges. A plurality of the nation’s highest court declared, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. . . . [W]hile we do not question that our due process assessment must pay keen attention to the par ticular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge.”19 The secret 2001 Yoo/Delahunty opinion was repudiated in substantial part by a 2008 opinion written by a different OLC lawyer, Steven G. Bradbury.20 “[C]aution should be exercised before relying in any respect” on the earlier opinion, Bradbury wrote. He described the 2001 opinion as “the product of an extraordinary—indeed, we hope, a unique—period in the his-

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tory of the Nation: the immediate aftermath of the attacks of 9/11,” then went on to identify several of its provisions as “either incorrect or highly questionable.” Neither the deeply flawed 2001 opinion nor the 2008 renunciation of it was made public until March 2009, after the Obama administration took office. We simply do not know the extent of its influence on military planning or policy during the Bush administration. We hope it was dismissed as a hyperbolic overreaction to the 9/11 attacks. All we know for sure is that in the years following the terrorist attacks the military began to play a significantly expanded role at home. EMERGING THREATS AT HOME

If, in the words of the 9/11 Commission, the terrorist attacks reflected a “failure of imagination” on the part of government planners,21 those attacks certainly prompted us to try to imagine new threats. Yet planning for the next attack, like planning for natural disasters, is complicated enormously by the impossibility of predicting its exact form, timing, and effect. In an effort to prepare for the worst, the Department of Homeland Security, working with other federal agencies, including the Department of Defense, has developed a series of fifteen nightmare scenarios to simulate both kinds of crises.22 These include terrorist attacks using nuclear or conventional explosives, biological or chemical agents, contamination of food supplies, and cyber weapons, as well as major hurricanes, earthquakes, and pandemic influenza. The results are truly horrifying, in no small part because they seem credible. In one scenario terrorists disperse pneumonic plague bacilli using an agricultural sprayer in a major city.23 This form of plague is highly contagious, and untreated it may kill most of those infected. Hospitals and pharmacies are overwhelmed, and government officials urge members of the public to stay at home, while supply chains for food and other necessities quickly fail. Many flee the city, and the disease spreads widely. The FBI and even the United Nations World Health Organization become involved. Some 9,500 people die, and another 28,000 are sickened. It is not hard to imagine an outbreak of civil unrest exceeding the capabilities of local law enforcement personnel. A quarantine of the entire city also seems likely, a drastic measure that only soldiers could implement.

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Some of the events outlined in the fifteen scenarios might be handled by state or local civilian officials, and should be, depending on where they occurred and on their nature and severity. Others could not. A wildfi re in Southern California, for example, is now a familiar occurrence for which federal intervention usually is not needed. A terrorist explosion of a large radiological weapon in an urban area, on the other hand, would call for technical expertise and equipment that only federal military forces possess, while as a matter of national security the federal government would want to interdict the perpetrators and prevent another attack. A former assistant secretary of defense for homeland defense described some of the ways troops could help in the aftermath of a major terrorist attack: Roads are buried or destroyed, bridges are dropped, homes and commercial buildings are severely damaged. Deaths and casualties are numerous, the injured are often buried in the rubble, local hospitals are unable to function, and special-needs patients . . . are trapped. First responders are often among the fi rst casualties. Highway systems are clogged, and transportation nodes (airports, train stations, and port facilities) may be inoperable. Under such circumstances, the demand for unique military capabilities is almost limitless, including helicopters, high-wheeled vehicles, transport planes, aerial observation platforms, communications equipment, mobile medical personnel and emergency treatment facilities, veterinary care, fi refighting equipment, search and rescue capabilities, mortuary ser vices, . . . assessment and decontamination [of the effects of a weapon of mass destruction], and local security.24

According to another expert, military assistance might not be limited to physical recovery from a terrorist attack. The “new threat to civil order is not only the terrorists themselves, but also criminal elements that will take advantage of panic and confusion.” Federal troops might have to “stop, search, apprehend, and detain looters and rioters, sometimes in direct support of police officers but sometimes not.” Soldiers also might be called on to repel “by force groups or individuals that attack key facilities”25 — critical infrastructure “so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, [or] national public health or safety.”26

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TAKING ON NEW ASSIGNMENTS AND REFINING OLD ONES

Military assistance to civil authorities in responding to natural disasters is nothing new, but the military taking a significant role in fighting international terrorism at home is new. In writing the script for this role we need to determine whether the threat justifies the commitment of military resources that are partly duplicative of existing civilian ser vices, like the FBI, and partly unique. Only the Defense Department, after all, has so many personnel so widely dispersed. Troops are in principle highly disciplined, and they have considerable relevant training. The Pentagon also has a reliable nationwide communications network, a dedicated rapid transportation system, technical capabilities not available outside the military, and equipment that could be especially helpful. These special qualities might be indispensable in responding to a terrorist attack. But our experience with the domestic use of soldiers suggests caution. We should rely on them only when civilian personnel cannot keep us safe, and even then only when the security they provide clearly outweighs any necessary sacrifices of liberties those soldiers are pledged to protect. We need to be very clear about the trade- offs. And in this democracy troops always need to remain under civilian control. An Expanding Military Role

Three weeks after the terrorist attacks, Defense Secretary Donald Rumsfeld presented his 2001 Quadrennial Defense Review to Congress. In it he called on the Pentagon to engage in “enhanced inter-agency processes and capabilities to effectively defend the United States against attacks.”27 Military leaders would “institutionalize definitions of homeland security, homeland defense, and civil support and address command relationships and responsibilities within the Defense Department.”28 Shortly thereafter, President Bush established a new position, assistant to the president for homeland security, a sort of domestic security czar, and created a Homeland Security Council (HSC), a mirror image of the National Security Council.29 Not everyone in uniform was enthusiastic about the Pentagon’s new homeland security role. Some senior military leaders worried that assigning new domestic duties to soldiers would divert limited military resources

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from the overseas fight against the Taliban and Al Qaeda terrorists. They also expressed concern about a possible erosion of the Posse Comitatus Act’s presumption against military involvement in law enforcement. Support of civilian authorities was, they insisted, “a mission of secondary importance.”30 Delivering food and medical supplies, clearing fallen trees and power lines, and patrolling neighborhoods were not jobs for those trained to fight wars. The Defense Department’s civilian leaders decided otherwise, however. In April 2002 the president approved the creation of NORTHCOM, a new combatant command whose head would be the first military leader since the Civil War charged exclusively with protecting the U.S. homeland.31 Headquartered in Colorado Springs, NORTHCOM’s job is distinctly domestic. It includes “homeland defense,” which for this purpose means protection of all U.S. territory except Hawaii and other Pacific islands. NORTHCOM acts as lead agency to safeguard “U.S. sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression or other threats as directed by the President”32—in other words to fight wars on U.S. soil. Its responsibilities also encompass “defense support for civil authorities,” an element of “homeland security” wherein military forces act in a subordinate role to furnish personnel, equipment, and/or advice in various crises. Such support, which usually requires approval from the president or the secretary of defense, does not normally involve the use of force, and it is most likely to be provided when the president declares a “major disaster” under the Stafford Act. NORTHCOM initially had no military forces of its own to command, other than its headquarters personnel. When troops were needed for a domestic assignment, it sought the approval of the secretary of defense, then drew them from Joint Forces Command, a functional rather than geographic unified command staffed primarily by National Guard and Reserve personnel, or from other commands.33 NORTHCOM was, in other words, a modestly sized management team, not a large standing army. Fortunately, in the years since 9/11 NORTHCOM has not had to engage directly in fighting inside the United States. But in supporting civil authorities it has deployed troops to help respond to the loss of the Space Shuttle Columbia in 2003, the collapse of the Interstate 35 bridge in Minneapolis in 2007, and the Deepwater Horizon oil spill in the Gulf of Mexico in 2010. It has sent personnel and equipment to help fight wildfires and recover from

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floods and hurricanes. Most significantly, NORTHCOM directed the deployment of more than 22,000 troops to assist in the recovery from Hurricane Katrina in 2005. A Parallel Civilian Response

While the military was gearing up for a fight on home ground, elaborate plans were underway for a huge new civilian organization with the ambitious title, Department of Homeland Security (DHS). Congress created the cabinet-level department in late 2002 by merging all or portions of twentytwo existing federal agencies with 180,000 employees.34 Among its primary responsibilities are to “prevent terrorist attacks within the United States, . . . minimize the damage, and assist in the recovery, from terrorist attacks that do occur, . . . [and] ensure that the civil rights and civil liberties of persons are not diminished by efforts, activities, and programs aimed at securing the homeland.”35 Within DHS, the Federal Emergency Management Agency (FEMA) is charged with building “a comprehensive national incident management system with Federal, State, and local government personnel, agencies, and authorities, to respond to [terrorist] attacks and [natural] disasters,” based on a “single, coordinated national response plan.”36 If an attack or disaster occurs, FEMA is responsible for managing the federal response.37 Directives from two presidents have ordered the homeland security secretary to develop response plans for “the threats that pose the greatest risk to the security of the Nation, including acts of terrorism, cyber attacks, pandemics, and catastrophic natural disasters.”38 Additional directions are contained in the Post-Katrina Emergency Management Reform Act of 2006, enacted in the wake of the deeply flawed federal response to the 2005 hurricane.39 The most recent plan is set forth in the National Response Framework, updated by FEMA in 2013, and a constellation of supporting annexes.40 The Framework describes in very broad terms federal responses to “all types of disasters and emergencies . . . to save lives, protect property and the environment, stabilize communities, and meet basic human needs following an incident.”41 Echoing the language of the Homeland Security Act, it declares that “the Secretary of Homeland Security . . . provides the Executive Branch with an overall architecture for domestic incident management and coordinates the Federal response, as required.”42

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Other DHS planning documents offer some details.43 They give the FBI lead agency responsibility for domestic intelligence and counterterrorism investigations. They also indicate that the secretary of defense “provides defense support to civil authorities for domestic incidents, as directed by the President, or when consistent with military readiness and appropriate under the circumstances and the law.”44 The Department of Defense is specifically charged with, for example, gathering relevant geospatial data, providing medical and public health care, and search and rescue. Lines of communication among agencies are also described in some detail. Planning and coordination of responses to emergencies by authorities at all levels of government, as well as by nongovernmental organizations and members of the private sector, are the responsibility of the National Incident Management System (NIMS) operating through the Incident Command System.45 NIMS is designed to provide a standardized, predictable, yet flexible, response to crises, while the Incident Command System furnishes an organizational structure for managing the response. While all agencies are supposed to “cooperate” with the DHS secretary, military forces may be committed only with the approval of the secretary of defense or the president. And when they are, they serve exclusively within the military’s chain of command.46 There is, in short, no guarantee that troops will necessarily work in harmony with other agencies, or even that soldiers will be part of the response. More detailed guidance about interactions between civilian and military agencies may be contained in DHS documents not available to the public.47 SHARED RESPONSIBILITY FOR PROTECTING THE HOMELAND

For its part, the Defense Department is fully committed to doing whatever it can to help out in a great emergency. “Defending U.S. territory and the people of the United States is the highest priority of the Department of Defense (DoD), and providing appropriate defense support of civil authorities (DSCA) is one of the Department’s primary missions.” 48 Yet while the military has always taken the lead role in homeland defense, “[t]he Department of Homeland Security is the lead Federal agency for homeland security.” 49 The risk of confusion about responsibilities here is considerable. It is also dangerous.

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Who’s in Charge?

Even before 9/11 it was suggested that the Department of Defense should be prepared to assume a leadership role in the federal response to any great emergency: “The Department of Defense’s ability to command and control vast resources for dangerous, unstructured situations is unmatched by any other department or agency. . . . [I]n extraordinary circumstances, when a catastrophe is beyond the capabilities of local, state, and other federal agencies . . . the president may want to designate DoD as lead federal agency.”50 One study called the department’s primacy inevitable: “[I]f some agency of the U.S. government learned that a large scale attack might actually be imminent, threatening tens of thousands of lives, we expect that [existing plans] for responding would almost instantly be pushed aside. The White House would . . . seek to use every bit of power at America’s disposal in order to avert or contain the attack. . . . In this situation, the Defense Department’s capabilities would immediately become paramount.”51 But another national commission argued that the president should “always designate a Federal civilian agency other than the Department of Defense (DoD) as the Lead Federal Agency.” It worried that “[m]any Americans will not draw the technical distinction between the Department of Defense— the civilian entity— and the U.S. Armed Forces— the military entity,” leading to the perception that “the military” is in charge.52 Unstated, yet palpable, was a reluctance to place the military in a position from which it could, on its own initiative, assume a lead role. Officially, the Pentagon has never publicly claimed more than a supporting role,53 except under circumstances that would justify the invocation of martial law or the claimed immediate response or emergency authorities described in Chapter 7. The Pentagon’s 2013 Strategy for Homeland Defense and Defense Support of Civil Authorities emphasizes its “go big, go early, go fast” approach to saving lives and protecting property in the homeland. But it also stresses its role as supporting, rather than leading, in that effort.54 Nevertheless, in 2005, Admiral Timothy J. Keating, head of NORTHCOM, remarked that in the event of a “biological, a chemical or nuclear attack in any of the 50 states, the Department of Defense is best positioned—of the various eight federal agencies that would be involved—to take the lead.”55 A more recent instruction from the DOD Joint Chiefs of Staff declares that in any incident involving weapons of mass destruction, “the military must be

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prepared to support or lead domestic CM [consequence management] operations, as directed by the Secretary of Defense or President.”56 Thus, while the Homeland Security Act directs the administrator of FEMA to “lead the Nation’s efforts to prepare for, protect against, respond to, recover from, and mitigate against the risk of natural disasters, acts of terrorism, and other man-made disasters, including catastrophic incidents,”57 uncertainty persists about leadership for the military’s role in both the anticipation of and response to the next great emergency. The failure of DHS and Pentagon planners to provide greater clarity in this matter is dangerous, for in a crisis government personnel in and out of uniform need to know where to look for authoritative direction. Equally important, every citizen must know that the recovery effort will be led by officials who are both authorized and accountable. The National Guard

The National Guard plays a key role in plans for a military response to a great emergency, when state and local civilians are unable to keep the peace or enforce the law. Guardsmen typically are among the first responders, not least because they are so widely dispersed and therefore close to the scene of any disaster. They are therefore mentioned prominently in the National Response Framework, as well as in various DOD planning documents. When called into ser vice by a state or territorial governor acting as their commander in chief, guard personnel ordinarily act in what is known as “state active duty” status. If they are deployed in a “homeland defense activity”— one undertaken for the protection of U.S. territory, the domestic population, infrastructure, or other assets deemed critical to national security by the secretary of defense—a governor may ask for federal support. If the secretary approves, these state troops are said to serve in Title 32 status, referring to the federal statute that governs the guard when its personnel are commanded by the governor but paid by the federal government.58 This statutory arrangement may be especially helpful in supporting federal military response operations, because state forces are not subject to the Posse Comitatus Act and thus may provide direct support for local law enforcement. All fifty states, three U.S. territories, and the District of Columbia have entered into the congressionally approved Emergency Management Assistance Compact (EMAC), which requires them to lend guard troops and

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equipment to each other in a natural or man-made disaster, civil disorder, insurgency, or enemy attack.59 Forces on loan are commanded by the governor requesting them. In this role state forces may perform not only traditional military functions, but also fight fires, enforce the law, provide medical care, and carry out search-and-rescue missions.60 The assisted state reimburses the assisting state for most expenses, unless the guardsmen are serving in Title 32 status or funding is provided by FEMA. Some 65,000 EMAC troops were deployed in 2005 to provide assistance to Gulf Coast states in the aftermath of hurricanes Katrina and Rita. Even before 9/11, National Guard troops were given a critical counterterrorism role. In 1998 the Pentagon ordered them to create special teams to evaluate terrorist attacks involving chemical, biological, radiological, nuclear, or explosive weapons—weapons of mass destruction, or WMD for short—and help treat victims.61 At least one of these specialized twenty-twoperson WMD civil support teams now exists in every state, the District of Columbia, and three territories, ready with mobile analytical laboratories and reliable communications gear to deploy on a moment’s notice to the scene of an attack. Although these teams are trained and paid for by the federal government, they operate initially under local control. National Guard troops may be called into federal ser vice by Congress when they are “needed for the national security,” 62 or they may, as we have seen, be federalized by the president in a domestic emergency. When they are, they, like active- duty military forces, serve under the national military chain of command for all purposes, although their operations may be coordinated by a civilian agency like FEMA.63 NORTHCOM’s Plans

In the midst of a crisis, the distinction between homeland defense and homeland security operations—the one led by the Defense Department, the other by FEMA—may be very difficult to make. In principle, the “characterization of a par ticular threat, and the designated response agencies and modes, ultimately rests with the President.” 64 Yet military forces might have to carry out their mission in a “simultaneous, near-simultaneous, or sequential fashion, across the threat spectrum, within or near the homeland. A full range of threats and hazards confronts the homeland.”65 For example, a terrorist attack may require the interdiction and defeat of continuing national

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security threats, while at the same time overwhelming the capabilities of civilian authorities to restore order, save lives and property, and begin the process of recovery. The Pentagon has developed separate rules for each type of operation. Knowing which ones to apply, and when to apply them, may not be easy. Similarly, the Defense Department has drawn up separate rules for what it calls “support of civil authorities” and for “civil disturbance” operations. Any catastrophe that justifies military intervention, because civilian officials cannot cope, may lead to domestic violence, just as any civil unrest—growing out of a political protest or a strike, for example—may surpass the abilities of civilian officials to contain it. Again, however, the military operates under two distinct sets of guidelines. Still other protocols exist for military support of law enforcement and for the use of force. This hodgepodge of rules may create confusion, which could lead to dangerous delays or duplication of effort. The risk of mistake is also very substantial. A brief review of current NORTHCOM plans illustrates these potential difficulties. Homeland Defense

The U.S. military has always been prepared to fight a war on its own territory. Today NORTHCOM is responsible for homeland defense, which, despite the name, may include distinctly offensive operations to counter threats and aggression inside the nation’s borders. It may involve the same kinds of combat operations that occur on any battlefield. Plans for these operations are publically available only in broad outline. 66 More detailed guidance is mostly secret.67 The Pentagon claims that “when directed by the President, the use of military operations for [homeland defense] is a constitutional exception to the Posse Comitatus Act.”68 In this role, presumably, troops could engage in law enforcement, such as arrests or investigations of crimes. The reference here may be to the president’s implied “repel-attack” power. But this claim is inconsistent with the act itself, which allows the use of troops only under “circumstances expressly authorized by the Constitution or Act of Congress.”69 Defense Support of Civil Authorities

DOD operations in support of civil authorities “make up the bulk of the Army’s contribution to homeland security.”70 Perhaps the most nearly co-

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herent publicly available description of these operations is prosaically labeled CONPLAN 3501.71 (CONPLAN stands for “contingency plan.”) Published in 2008, it bases deployment of troops on several preconditions: a. An incident severe enough to trigger a DSCA [Defense Support of Civil Authorities] response will occur with little to no warning and temporarily exceed local, state and tribal civil authorities response capabilities. b. Title 10 forces [i.e., active- duty military or federalized National Guard] in the vicinity of the incident will respond under immediate response authority. . . . c. The National Guard will normally respond [initially] in a State of Active Duty or Title 32 status. d. Agreements between and among the states, to include EMAC, will [first] be used for state to state assistance for large scale or catastrophic events.72 CONPLAN 3501 repeats the following critical instruction from the National Response Framework: “When directed by the President or SecDef . . . the military Ser vices provide forces . . . in support of requests from Federal Emergency Management Agency.”73 In other words, troops will assist only after the president, wearing his commander-in- chief hat, or the top civilian official in the Pentagon has approved their deployment. Once approval is given, regular army, National Guard, or Reserve personnel may be assigned to operate under NORTHCOM direction, depending on the scope of the mission and the nature of the situation.74 Within the category of support for civil authorities, special DOD protocols dictate responses to several par ticular kinds of disasters that seem most likely to occur. One concerns terrorist attacks or accidents involving chemical, biological, radiological, or nuclear (CBRN) materials.75 The National Guard’s twenty-two-member WMD civil support teams would be called out in any CBRN incident, as would one or more of seventeen regional CBRN Enhanced Response Force Packages, each including some 200 specially trained and equipped personnel. These troops, typically remaining under the control of state governors, could provide search-and-rescue, medical, and other mass casualty operations in a contaminated environment. In addition,

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ten 570-member Homeland Response Forces, one for each of FEMA’s ten geographical regions, stand ready to provide support, including command and control, for other CBRN units. They, too, would be drawn from National Guard forces in each region and operate under the command of state governors. In the event of a very large CBRN incident, perhaps involving simultaneous WMD attacks in different locations, the Department of Defense might also send in its brigade-size Defense CBRN Response Force, consisting of 5,200 individuals with special training and equipment, and operating under NORTHCOM command.76 Additional federalized guard troops or active- duty military personnel could be deployed, as well. These various forces would be joined, as appropriate, by elements of the American Red Cross, the Departments of Energy and Health and Human Ser vices, and other federal agencies. How long would a CBRN operation last? According to one DOD document, ending it would be “both a military and political decision.”77 Presumably, this means that civilian and military leaders would decide jointly. Other specialized DOD plans focus on nuclear weapons accidents,78 other incidents involving nuclear weapons or radiological materials,79 pandemic influenza,80 even smallpox.81 The last of these contemplates the use of troops to enforce quarantines. Either before or after a terrorist attack using nuclear or radiological weapons, troops might deploy to support the FBI in tracking down and neutralizing those responsible.82 In this role military personnel would carry out overlapping homeland defense and civil support missions. Finally, federal military forces may help out during special events, such as annual meetings of the U.N. General Assembly, the Olympics, and inaugurations, for example by providing bomb-sniffing dogs and other security.83 Or they may be assigned to do jobs normally performed by civilians, as when soldiers fi lled in for striking air traffic controllers in 1981.84 Civil Disturbance Plans

One predictable result of almost any catastrophic event, either natural or man-made, is a breakdown in law and order. If word gets out that plague has been released in a community, for example, we can expect some citizens to ignore official instructions to stay at home—probably breaking speed limits

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in the process. In the aftermath of hurricanes or floods, looting sometimes follows. The character and scale of the disorder will depend on the event. Unrest may also be the product of anarchy, political protests, or even efforts to overthrow the government—“unruly and violent crowds,” as the army puts it.85 The practical results—loss of life, property damage, and a general failure of the rule of law—may be the same in each case. So are the tactics that may be employed to prevent such a breakdown or restore order. The Pentagon recognizes the overlap between support of civil authorities, law enforcement, and civil disturbance operations (CDO): “The CDO mission is conducted to restore order or enforce federal law after a major public emergency (e.g., natural disaster, serious public health emergency, or terrorist attack) when requested by the state governor or when the President determines that the authorities of the state are incapable of maintaining public order.”86 It is therefore surprising that the Pentagon has developed entirely separate protocols for the three types of operations. Guidance for military responses to civil disturbances is contained in another CONPLAN that, after 9/11, replaced the decades- old contingency plan called GARDEN PLOT. 87 The current CONPLAN provides “the basis for all preparation, deployment, employment, and redeployment of Department of Defense component forces, including National Guard forces called to active federal ser vice, for use in domestic civil disturbance operations, in support of civil authorities as directed by the President.”88 This CONPLAN is classified “secret,” although some detailed instructions are set forth in an army field manual, which is available to the public. 89 Acting in a civil disturbance mode, troops may be used to “disperse unlawful assemblies and to patrol disturbed areas to prevent unlawful acts. They may be used to assist in the distribution of essential goods and the maintenance of essential ser vices. Soldiers may also establish traffic control points, cordon off areas, release smoke and obscurants, and serve as security or quick reaction forces.”90 Statutory authority for their use may be found in the Insurrection Act, an exception to the Posse Comitatus Act. On paper at least, the Justice Department is the lead federal agency for coordinating the federal government response to restore law and order, and for advising the president on the use of troops.91 Yet here as elsewhere military forces in federal ser vice remain under the command of the president and the secretary of defense at all times.

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Support to Civilian Law Enforcement

Pentagon rules for military support to law enforcement have not changed significantly since 9/11, although they now include special instructions for terrorist incidents.92 While these rules continue to stress the importance of Posse Comitatus Act limitations on soldiers’ actions, they also declare that “active participation in direct law- enforcement-type activities (e.g., search, seizure, and arrest)” is permitted “for the primary purpose of furthering a DoD or foreign affairs function of the United States, regardless of incidental benefits to civil authorities.” 93 This presumably means that troops may assist civilian law enforcement officials whenever they are deployed on a homeland defense mission, or to support civil authorities or abate a civil disturbance, or in the exercise of its “immediate response” or “emergency” authority—all DOD “functions.” Such a crabbed interpretation of the scope of the act is not supported by the statutory language, however. It also is at odds with other Pentagon guidance, which frees soldiers from the constraints of the act only when a statutory or constitutional exception is invoked.

Rules for the Use of Force

How much force may soldiers use in discharging their domestic duties? The answer is found in standing rules for the use of force, which apply to all active- duty or federalized troops engaged in either homeland defense or support of civil authorities, or in mission-specific rules.94 Unfederalized National Guard personnel are governed by state rules.95 According to the standing rules, troops may use force generally to defend their units or themselves against hostile acts or demonstrated hostile intent. They may use deadly force to defend others as part of their assigned missions, to prevent the theft or sabotage of assets vital to national security (such as nuclear weapons), to protect inherently dangerous property (such as explosives), or to prevent the destruction of national critical infrastructure (such as public utilities). Ordinarily, soldiers may use lethal force under the same circumstances that cops may—for example, to interrupt a murder or armed robbery, or to stop a dangerous fleeing prisoner. But force is normally used “only as a last resort, and the force used should be the minimum necessary. . . . Deadly force is to be used only when all lesser means have failed or cannot be reasonably employed.” When force is used,

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it must be “reasonable in intensity, duration and magnitude” under the circumstances.96 Courts, however, have ruled that the use of lethal force should be “reasonably necessary.” A verbal warning may be required before shots are fired. In practical terms, soldiers conducting homeland defense may shoot to kill any identified enemy soldier or a terrorist. When they operate in support of civil authorities, however, they may not use lethal force except to prevent the loss of life or property as outlined above. They may not, for example, shoot protestors or unarmed looters. Whether they may kill civilians trying to break through a cordon surrounding a city quarantined with pneumonic plague is unclear. Rehearsing for the Worst Case

Since 9/11 the Pentagon has participated in a series of complex annual training exercises, code-named Ardent Sentry, each based on one or more of the fi fteen disaster scenarios developed by FEMA and described above. These drills are led by FEMA and include the FBI, the Coast Guard, the Department of Energy, and other agencies. In 2013 the exercise included three notional hurricanes, a theft of nuclear weapons, a train derailment, a tornado, the collapse of a high-rise building, and a federal call-up of National Guard troops.97 Ardent Sentry is in turn part of a larger set of biennial exercises conducted by FEMA to test emergency-response planning.98 In 2005 NORTHCOM reportedly also began a series of secret military exercises, code-named Vital Archer, at least some of which have involved active- duty military in lead roles. These exercises are said to rehearse classified war plans for confronting fifteen attack scenarios that may or may not relate to the DHS scenarios, although some of them apparently contemplate simultaneous terrorist strikes in different locations. Military responses range from modest crowd- control missions to an assumption of total control if civilian resources are overwhelmed—if, say, a large radiological weapon is used. As many as 3,000 quick-reaction ground troops might be deployed to the site of each attack. The plans are said to include preventive as well as responsive measures.99 Details are set forth in two documents that have not been made public.100 Because these plans remain secret, it is not possible to assess either their legality or their practical implications.

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Legal Justifications

The Constitution includes clear textual authority for Congress to provide for military forces to repel an invasion or suppress domestic violence.101 Congress has done so, giving the president “broad powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order.”102 The most important of these statutory authorities are the Insurrection Act and the Stafford Act. No statute tells the Department of Defense when and how it may deploy troops domestically in advance of authorization from the president or secretary of defense. The fear of showing up too late to help in an emergency has prompted the Pentagon to assert a nonstatutory “immediate response” or “emergency” authority for troops in the field to act quickly without approval from the chain of command, but only for a limited time, in order to save lives or property, or to restore governmental function and public order. A similar claim is said to be based inherently in the Constitution.103 It is generally agreed that the president may exercise inherent power, using troops, to repel attacks on the United States, although the precise scope and limits of this power are unknown. Some say the president has even broader, unspecified powers as commander in chief to use troops at home in emergencies. Such a sweeping claim, echoed in the OLC opinion by John Yoo and William Delahunty outlined above, is based on no clear judicial precedent, and is legally extremely doubtful. And because it would involve an arrogation of power with no discernable limits, it is also dangerous.104 More importantly, except in a repel-attack scenario (and maybe even then), congressional acts in this area have the effect of limiting the president’s power, either directly, as the Posse Comitatus Act does, or by implication. Thus, preconditions for the deployment of troops spelled out in the Insurrection Act also prevent deployments without first satisfying those conditions, unless permitted by another statute. What should be clear from this brief description is that existing laws are at once both broad and narrow. The Insurrection Act, for instance, grants the president extremely broad powers to use military force domestically. But it conditions that use on the existence of certain specified criteria. And while it gives the president considerable latitude in interpreting those conditions,

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it imposes a deliberative process for invoking its authority, and it makes him politically accountable for the decision to do so. What is not so clear in reviewing the various Defense Department protocols is which, if any, of these statutory authorities the president would feel bound to follow in the next great domestic crisis. Neither is it certain which of the welter of overlapping Pentagon regulations, directives, instructions, contingency plans, and manuals would guide military officials in a given emergency. A New Functional Approach

We believe that Congress should prescribe the military’s domestic emergency powers with much greater clarity, following the example of the fi rst Congresses, and in keeping with the American tradition of avoiding the involvement of troops in civilian affairs except in cases of urgent necessity, when no viable alternative exists. In the current political climate of the nation, however, we regard such a legislative initiative as unlikely. The Pentagon, meanwhile, could eliminate much of the existing uncertainty by rewriting its own plans and rehearsing them extensively. Instead of pigeonholing crises by applying decades- old labels, we think a better approach would be to focus on the practical effects of a given crisis and on the ability of various government agencies to respond. If terrorists release pneumonic plague in a large city, for example, military leaders might be tasked in advance to dispatch specially trained CRBN units immediately to work closely with officials from the Centers for Disease Control and the FBI to assess the damage, limit the spread of disease, and track down those responsible. They should not have to choose among varying protocols for homeland defense or civil support or law enforcement, and they should be directed by just one boss, not two. This potentially simpler process could preserve the flexibility needed to adapt to a highly unpredictable and dynamic threat, all the while maintaining ultimate civilian control of the troops. FEMA has pointed the way toward this kind of functional approach with its recent development of overlapping Federal Interagency Operational Plans (FIOPs).105 Each plan is directed at a mission area identified in PPD-8, the president’s National Preparedness directive: prevention, protection, mitigation, response, or recovery. Each one describes “a detailed concept of operations

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for Federal entities to integrate and synchronize national-level Federal capabilities” in implementing emergency plans.106 Each federal agency is supposed to develop operational plans to implement the FIOPs. The Prevention FIOP aims to “unif[y] the collective capabilities of the Federal Government to respond to an imminent threat, terrorist attack, and/or follow-on attack. In the instances of imminent terrorist threats and suspected acts of terrorism, prevention activities include the law enforcement response; public safety; crime scene security and preservation of evidence; render safe of chemical, biological, radiological, nuclear, or high-yield explosive (CBRNE) devices; tactical missions; and counterterrorism, counterintelligence, and criminal investigative activities.”107 It is concerned with what DHS insiders refer to as “left of boom.” The Mitigation FIOP seeks to reduce the loss of life and property by lessening the impact of a disaster after it occurs. The Recovery FIOP is designed to help communities affected by a catastrophe get back on their feet. The goal of the Protection FIOP is to protect people, communities, and vital facilities in the aftermath of a catastrophic incident. It is inextricably linked to the Response FIOP, the purpose of which is to “support[] local, state, tribal, territorial, and insular area efforts to save lives, protect property and the environment, and meet basic human needs following an emergency or disaster.”108 The Response FIOP is meant to implement the National Response Framework. These lengthy, ambitious plans focus on the practical functions of federal agencies in responding to great emergencies, rather than on the agencies themselves, and they acknowledge obvious overlaps in responsibilities, thus avoiding to some degree the balkanization that characterized earlier planning efforts. Still, they do not yet integrate or fully synchronize the actions of military forces, whether in a lead or supporting role, with those of other federal agencies. The Response FIOP notes that “[t]he President leads the Federal Government response effort to ensure that the necessary resources are applied quickly and efficiently to large-scale and catastrophic incidents. All Federal departments and agencies must cooperate with one another, and with local, state, tribal, territorial, and insular area governments, community members, and the private sector to the maximum extent possible.”109 Yet it also declares that for “non-Stafford Act incidents, Federal response or assistance may be led or coordinated by various Federal departments and agencies consistent with their authorities.”110 And while the Department of Homeland Securi-

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ty’s 2014 Quadrennial Homeland Security Review indicates that its “all-hazards” plans for keeping the nation safe require “unity of effort— both across every area of DHS activity and among the numerous homeland security partners”—it continues to treat the Defense Department as a largely autonomous agency.111 Whatever the aspirations of the Department of Homeland Security for seamless coordination of an efficient federal response to a great catastrophe, such a response can only become a realistic hope with a simplification and streamlining of DOD plans. But we should not expect any whole- government integration of emergency planning to win quick or easy acceptance at the Pentagon. The aphorism “old habits die hard” applies here. The army, for example, insists that “unity of command is potentially problematic due to split authorities, particularly when conducting simultaneous homeland defense and civil support missions.”112 If the greatest military force on Earth is to realize its full potential to keep Americans safe at home, it will need to abandon its old labels for organizations and missions, and work harder to collaborate with its civilian counterparts. The creation of NORTHCOM, with its distinctly domestic focus, and its close ties to the FBI, the Department of Homeland Security, and other agencies, is a big step in the right direction. MILITARY DETENTION AFTER 9/11

Two months after the terrorist attacks of 9/11, President George W. Bush issued a military order declaring that any non-U.S. citizen whom he determined to be a member of Al Qaeda or to have been involved in international terrorism was to be “detained at an appropriate location designated by the Secretary of Defense outside or within the United States.”113 That order was followed a short time later by an opinion from the Justice Department’s Office of Legal Counsel stating, with unwarranted confidence, that it was “settled beyond peradventure” that the president could seize and detain “enemy combatants” in the United States, without regard for their citizenship, in an armed conflict. The opinion also maintained that the Posse Comitatus Act did not, and indeed could not, limit the president’s exercise of such “plenary constitutional authority.”114 Yet the Supreme Court had declared less than a year earlier that without a “special justification, such as harm-threatening mental illness,” indefinite detention in the absence of a

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“criminal proceeding with adequate procedural protections” violates the Due Process Clause of the Fifth Amendment.115 Perhaps in reliance on such doubtful advice, several civilians were imprisoned without charges or legal process in a military jail for extended periods after 9/11. At no time, however, was the privilege of the writ of habeas corpus formally suspended. Yasir Hamdi

Yasir Esam Hamdi was taken into custody by the U.S. military in late 2001 when he was handed over by Northern Alliance forces in Afghanistan. According to an affidavit from a Pentagon official, Hamdi was captured on the battlefield armed with a Kalashnikov rifle as a member of a Taliban military unit.116 The affidavit was largely based on hearsay, however, and it offered few details. Initially confined at Guantánamo, Hamdi was transferred to navy brigs in Norfolk, Virginia, and Charleston, South Carolina, when it was discovered that he was a U.S. citizen. There he was held incommunicado and without charges for more than two years. His father, as next friend, fi led a habeas corpus petition in a federal district court seeking his release. The Supreme Court eventually ruled that Hamdi could be imprisoned as an “enemy combatant” pursuant to the Authorization for Use of Military Force (AUMF) passed shortly after 9/11. Although the statute does not explicitly mention “detention,” a plurality of the Court called the power to detain an “incident to war,” in order “to prevent captured individuals from returning to the field of battle and taking up arms once again.”117 It was clear enough, in the plurality’s view, to satisfy the 1971 Non-Detention Act, passed in response to the groundless World War II internment of Japanese Americans, which states that no citizen may be imprisoned except pursuant to an act of Congress. The Court was careful to base its holding on the assumption—never proved in Hamdi’s case—that the prisoner was “ ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there.”118 The Court also pointed out that his detention was authorized only “for the duration of the par ticular conflict in which [he was] captured,”119 although it must have recognized that the war in Afghanistan could drag on for many years. It took pains to distinguish Hamdi’s case from that of Lambdin Milligan, a civilian

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arrested at his home in Indiana, not on the battlefield, during the Civil War: “The [1866] Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.”120 Harkening back to the debate spurred by Chief Justice Taney in Ex parte Merryman, the Hamdi Court’s plurality indicated in a dictum that the power to suspend the writ of habeas corpus belongs to the legislative branch: “[U]nless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions.”121 Justice Scalia added, in a dissenting opinion, “The proposition that the Executive lacks indefinite war time detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal.”122 Although approving Hamdi’s continued imprisonment, the Court ruled that he had to be given a “fair opportunity” to demonstrate before a “neutral decisionmaker” that he was not a Taliban combatant fighting the United States.123 Before he received that “fair opportunity,” however, Hamdi was released when he agreed to return to Saudi Arabia, where his parents lived, and surrender his U.S. citizenship.124 José Padilla

The case of José Padilla was quite different. Padilla, another U.S. citizen, was a member of a Chicago street gang who traveled to the Middle East for what the government claimed was training with Al Qaeda. When he returned to the United States in May 2002, he was taken into custody by FBI agents at Chicago’s O’Hare Airport, then transferred to New York, where he was held for a month as a material witness in the inquiry into the 9/11 terrorist attacks. He was represented there by a public defender. Two days before a scheduled hearing on a habeas corpus petition, President Bush ordered the Justice Department to turn Padilla over to the secretary of defense. Padilla then was held in isolation for more than three years in the navy brig in South Carolina. The Second Circuit Court of Appeals concluded that Padilla could not be detained. The president lacked inherent constitutional authority to detain

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a U.S. citizen on American soil outside a combat zone, the court ruled, and the AUMF, said to justify Hamdi’s detention, did not provide statutory authority to detain a citizen seized on U.S. soil.125 The Supreme Court then reversed, not on the merits but on the ground that Padilla should have filed his habeas petition in a federal court in South Carolina, rather than in New York.126 In subsequent appeals the government insisted that Padilla represented “a continuing, present and grave danger to the national security of the United States.” Moreover, the argument went, his criminal prosecution for violating laws relating to terrorism might interfere with an ongoing effort to obtain terrorist information from him— even after years in custody—or might enable Padilla to communicate with confederates. The Fourth Circuit Court of Appeals agreed that continued military detention was necessary.127 Just before Padilla’s case could be heard once again in the Supreme Court, however, the government transferred Padilla back to civilian custody, where he was tried and convicted of criminal conspiracy to commit murder and other offenses, and of material support to terrorists, and he was sentenced to twenty- one years in prison. Ali Saleh Kahlah al-Marri

The third civilian taken into military custody after 9/11, Ali Saleh Kahlah al-Marri, was not a U.S. citizen, but a resident alien, a Qatari graduate student in Peoria, Illinois. Al-Marri was, like Padilla, initially arrested and held as a material witness. He was subsequently charged with credit card fraud and other financial offenses. Nearly a year and a half later, just before his trial was set to begin, the criminal charges were withdrawn and, as in Padilla’s case, al-Marri was delivered into military custody. He, too, ended up in the navy brig in South Carolina, where he was held for another four years without charges or trial. Like Padilla, al- Marri was said to represent “a continuing, present and grave danger to the national security of the United States.” Also like Padilla, he was neither captured on a battlefield nor involved directly in hostilities against U.S. forces. For the first sixteen months of his military confinement, al-Marri was unable to communicate with his family, and he was denied access to counsel.

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In 2008, six and a half years after he was arrested, a deeply divided Fourth Circuit Court of Appeals decided that al-Marri had not been given an adequate opportunity to challenge the factual allegations said to justify his detention, and it sent the case back to the district court.128 One appellate judge complained that the ruling allowed the president to “order the military to seize from his home and indefi nitely detain anyone in this country— including an American citizen— even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. . . . No existing law permits this extraordinary exercise of executive power. Even in times of national peril, we must follow the law, lest this country cease to be a nation of laws.”129 When al-Marri appealed to the Supreme Court for his release, the government delivered him instead to law enforcement officials, just as it had with Padilla. He then pleaded guilty to a single count of providing material support to a terrorist orga nization, and was sentenced to an additional eight years in prison. What’s Behind the Post-9/11 Cases?

More questions than answers remain about the Bush administration’s decision to consign the three civilians to military detention after 9/11. Here are a few: 1. Was Hamdi actually a Taliban soldier? Did Padilla and al-Marri really engage in planning for terrorist attacks in the United States? Without trials to establish the facts or public release of relevant intelligence documents, it is impossible to know. For now, we have only the assertions of government officials to go on. 2. Why were these three individuals not imprisoned by civilian authorities, who could have kept them just as securely as the military? None of the courts that reviewed their cases addressed this possibility. 3. Why were they not prosecuted initially in the criminal justice system? While the three languished in the navy brig in South Carolina, hundreds of terrorists were tried and convicted in criminal courts and sentenced to lengthy prison terms. Criminal prosecutions of these three individuals would not, so far as we know, have depended on the appearance in

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court of anyone in the military or had any effect on the ongoing military campaigns in the Middle East. Why were these individuals not tried before a military commission, where the rules of procedure and evidence would have been friendlier to the prosecution than in an ordinary criminal case? Why were the three not treated as prisoners of war? While there was some uncertainty about the applicability of the Geneva Conventions to asymmetric warfare with terrorists, the conventions allow enemy POWs to be held for the duration of an armed conflict, but they also require humane treatment and other protections.130 Who made the decisions to commit these civilians to military custody, when did they decide, what criteria did they apply, and how were their decisions documented? Finally, why did the government fight so hard for the prolonged military imprisonment of such apparently insignificant alleged foot soldiers for the Taliban and Al- Qaeda?

Answers are elusive. One possibility is that evidence was lacking to mount successful criminal prosecutions in civilian court. If evidence existed, it might have been too sensitive to risk its exposure, or it might have been tainted by abusive interrogation. Bush administration officials might have feared that a habeas corpus petition would be successful, or they might have wanted to deny the detainees a public forum for criticism of its Middle East policies or of the detainee’s treatment in custody. It seems more likely that those officials were determined to establish a clear legal precedent that would simply allow suspected terrorists to be detained indefinitely, without having to justify their imprisonment in court or prove that they were guilty of a crime. Indeed, there were calls for new legislation to permit “preventive detention” without specific charges or trial.131 Still another possibility is that these three individuals were imprisoned by the military to make a dramatic statement about the ongoing threat to national security, and to cultivate public support for other extraordinary measures. For example, when José Padilla was transferred from civilian to military custody more than a month after his arrest in Chicago, Attorney General John Ashcroft interrupted a trip to Moscow to proclaim the elimination of “a serious and continuing threat to the American people and our national security.”132

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Without access to records about decision making within the Bush administration, we cannot be sure what prompted these military detentions. Neither can we fairly judge the wisdom or legality of the detentions, or hold the responsible officials accountable. Lawsuits by José Padilla, claiming damages for wrongful imprisonment and mistreatment, might have provided some of those records. But they were dismissed on grounds of judicial deference to “the Constitution’s parallel commitment of command responsibility in national security and military affairs to the President as Commander in Chief,” or lack of judicial competence,133 or because the defendants were entitled to qualified immunity from liability in the per for mance of their official duties.134 Congress Gets Involved

President Obama abandoned the Bush administration’s claim of inherent Article II power to detain terrorist suspects in the United States, relying instead on the 2001 AUMF invoked by the Supreme Court in Hamdi.135 In response, and in the midst of a tough presidential reelection campaign, Congress enacted new legislation in late 2011 that explicitly approves the detention of terrorist suspects “without trial until the end of the hostilities” authorized by the 2001 law.136 The new law applies differently to two kinds of “covered persons.” The fi rst group includes individuals who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” This language mirrors that of the AUMF. The first group also includes anyone who “was a part of or substantially supported al- Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”137 Anyone in this group may be held in a military prison. A second group is a subset of the first. It includes noncitizens (perhaps including lawful resident aliens) who are determined “(A) to be a member of, or part of, al- Qaeda or an associated force that acts in coordination with or pursuant to the direction of al- Qaeda; and (B) to have participated in the course of planning or carry ing out an attack or attempted attack against the United States or its coalition partners.”138 Members of this group are required

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to be confined by the military, unless the president waives the requirement “in the national security interests of the United States.”139 There is no indication of who should make the determination that a person is covered by the statute or what proof is needed to do so. Nor does the 2011 law resolve doubts about whether, without regard for the statute, individuals captured inside the United States, like Padilla and al-Marri, may be held by the military indefinitely without trial.140 In signing the legislation, President Obama announced that he would never authorize the indefi nite military detention of American citizens without trial.141 But of course another president might. The president then waived the part of the law that mandates military detention of the second group of terrorist suspects, declaring that such a “rigid, inflexible requirement . . . would undermine the national security interests of the United States.”142 But his waiver applies only when military detention would interfere with counterterrorism efforts, or when the attorney general determines by “clear and convincing evidence” that an individual is not subject to the provision. In other words, even with the waiver a terrorist suspect, unlike a criminal defendant, is presumed guilty until proven innocent. Needless to say, the waiver may be revoked by another president. The provision authorizing military detention of the fi rst group was immediately challenged in court by journalists and political activists, who claimed that it violated their First Amendment rights of free speech and association, as well as their Fifth Amendment right to due process. The district court enjoined enforcement of the law, expressing concern that some legitimate political speech, especially that expressing extreme or unpopular views, might be condemned by it. The court also found the terms “substantially supported,” “associated forces,” and “directly supported” to be unconstitutionally vague, because they do not allow “the average citizen, or even the Government itself” to understand what conduct is forbidden.143 The district court’s decision was reversed on appeal, not on any of the constitutional grounds just mentioned, but because the appellate court found that the plaintiffs lacked standing to sue, and the Supreme Court refused to hear the case.144 In 2008, the nation’s highest court decided an important case involving military prisoners at Guantánamo. In Boumediene v. Bush, the Court emphasized that any prisoner within the jurisdiction of the federal courts, even one held by the military, must be allowed to seek judicial relief by applying for a

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writ of habeas corpus or a reasonable alternative.145 In accordance with the Court’s ruling, Congress passed a measure in 2013 stating that the 2011 statute does not “deny the availability of the writ of habeas corpus or . . . any constitutional rights” in an Article III court for anyone inside the United States who otherwise would be entitled to them.146 The specter of indefinite imprisonment without any process whatever thus appears to have receded. But ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process. Clarification may have to wait until the statute is invoked to confine someone in a military prison without charges or trial. In the meantime, the actual chilling effect of the statute, if any, on reporters or on individuals protesting government policies will be very difficult to judge. MILITARY TRIALS OF TERRORIST SUSPECTS

Military commissions largely fell into disuse after the end of World War II.147 The horrific events of 9/11, however, prompted a move to create new military commissions for the trial of terrorist suspects who could be characterized as unlawful enemy combatants. Vice President Dick Cheney called these suspects (even before they were tried) “the worst of the worst.”148 On November 13, 2001, President George W. Bush issued a military order authorizing a military commission trial of any noncitizen if the president determined that there was “reason to believe” he was a member of Al Qaeda; that he had “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor” that harmed United States interests; or that he had harbored such a person.149 Although the Bush order does not extend to U.S. citizens, in several other respects it closely tracks President Roosevelt’s 1942 order authorizing the military commission trial of eight German marines. Two-thirds of the commission members can convict and sentence the accused, evidentiary standards are reduced, and judicial review is foreclosed. President Bush did not seek congressional authorization for these military commissions. The Justice Department’s Office of Legal Counsel advised that military commission trials could be lawfully conducted incident to the president’s commanderin- chief power, as well as the same statutory language relied on by the Supreme Court in its 1942 Quirin decision.150 It also maintained that terrorist suspects not believed to be acting on behalf of a sovereign state who were

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on trial for law- of-war violations need not receive law- of-war protections, particularly those found in the Geneva Conventions, because the defendants were unlawful belligerents (again, presuming guilt before trial). In 2004 Salim Hamdan was referred to a military commission at Guantánamo Bay Naval Base, charged with one count of conspiracy to commit various offenses based on his role as Osama bin Laden’s driver and bodyguard. Hamdan sought habeas corpus, arguing that the military commission process would not afford him a fair opportunity to contest his designation as an enemy combatant. When the government claimed that Congress had authorized military commissions in the UCMJ, Hamdan responded that the Bush commissions fell short of UCMJ and international law requirements. The Supreme Court reviewed his habeas petition in 2006. In Hamdan v. Rumsfeld,151 the Court assumed without deciding that authority for military commissions might be found in the UCMJ. The Court went on to rule, however, that the Bush military order was at least partly unlawful, because its provisions deviated too far from the UCMJ’s rules for courts-martial, which it said included the protections of Common Article 3 of the Geneva Conventions.152 These protections include judgment by a “regularly constituted court,” a requirement that a plurality of the Supreme Court construed to mean that a military commission must, at a minimum, generally follow UCMJ procedures for courts-martial. The Bush military commissions also violated Common Article 3, the Court found, because they failed to operate independently of the president, and because an accused could be excluded from portions of his trial or prevented from hearing all of the evidence against him. A plurality of the Court decided that even if the president possessed independent authority to create the commissions without congressional authorization, he had to comply with existing statutory limitations. Concurring separately, Justice Kennedy emphasized the critical role of the separation of powers in assuring personal liberty, in this instance requiring regularized procedures that check against executive overreach: “Trial by military commission raises separation- of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review. Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid. It is imperative, then, that when military tribu-

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nals are established, full and proper authority exists for the Presidential directive.”153 Within a few months of the Court’s decision in Hamdan, the Bush administration persuaded Congress to approve the Military Commissions Act of 2006, which authorized military commissions to try “unlawful enemy combatants” for “violations of the law of war and other offenses triable by military commission.”154 The same measure amended the UCMJ to establish procedures and rules of evidence for military commissions. In effect, Congress authorized what the Court struck down in its Hamdan decision. In 2009, Congress made procedural enhancements to the 2006 legislation.155 President Barack Obama declared early in his presidency that he intended to close the Guantánamo Bay prison facility and to prosecute several prisoners held there in civilian courts in the United States. Congress responded by enacting funding restrictions that bar any noncitizen Guantánamo detainee from being transferred into the United States for any purpose.156 The Obama administration then announced that it would try at least some of those prisoners by military commission instead, and commission proceedings have since been instituted against several additional suspected unlawful enemy combatants at Guantánamo. Meanwhile, several hundred other persons accused of terrorism-related offenses have been arrested inside the United States or brought here from other overseas locations for trial in civilian courts. Thus far, an overwhelming majority of those indicted for such offenses have been convicted on at least one charge.157 Administration officials claim, however, that it may not be possible to prosecute some individuals in civilian courts, because the evidence against them may be inadmissible in such courts (perhaps because it is based on hearsay or was obtained by torture), or because that evidence is classified. For some others, they say, military commissions are the proper forum for prosecution of war crimes. The newly reimagined commissions have so far sat exclusively at Guantánamo. But the Bush military order permits military commissions to “sit at any time and any place,”158 and they could be relocated to the U.S. mainland at any moment. And while the Bush order, as written, applies only to noncitizens, it might be reissued by another president in a form that would satisfy the Supreme Court’s holding in Hamdan, to expose U.S. citizens to prosecution. Recall that U.S. citizenship was no bar to military commission

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trial in Ex parte Quirin, although in that case the citizen- defendant was associated with “the military arm of the enemy government.”159 At this writing, courts are wrestling with the question of whether military commission jurisdiction must constitutionally be limited to international war crimes.160 But Congress might expand the jurisdiction of military commissions to include other offenses or other accused offenders. If it did, courts might refuse to entertain a challenge to the expansion on standing or political question grounds. Even if a court were willing to consider the merits of a prisoner’s habeas petition, the outcome is far from certain. In its 2004 Hamdi decision, the Supreme Court ruled that a prisoner characterized by the executive as an “enemy combatant” need only be given a “fair opportunity” to prove otherwise, even in an Article III court, and that other familiar guarantees of the Bill of Rights could be truncated.161 Before a military commission a prisoner might enjoy fewer protections still. None of these developments is implausible in the current atmosphere of anxiety about the threat of another terrorist attack at home. Any of them would, however, signal a new military intrusion into civilian affairs at a time when civilian courts are perfectly capable of determining the guilt of terrorist suspects and protecting society from those convicted—all while upholding fundamental individual rights guaranteed by the Constitution. A LARGER INTELLIGENCE ROLE FOR SOLDIERS?

With the terrorist attacks of 9/11, the Defense Department sought to expand its role in internal security. It reorganized itself to place a greater emphasis on homeland defense, and it created new tools for intelligence collection inside the United States. The efficacy of these efforts is uncertain. It also is unclear that nonmilitary agencies could not have accomplished as much. What is clear is that these activities raise important new legal and policy questions about the military’s involvement in civil society. Reorganizing for a New Intelligence War at Home

The 9/11 Commission recommended that the activities of all U.S. intelligence ser vices be planned and overseen by a new civilian director of national intelligence.162 According to the commission, such a realignment would en-

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able better coordination among all members of the intelligence community, with common standards and priorities, and it would reduce wasteful redundancies and interagency rivalries. That recommendation was adopted in part when Congress enacted the Intelligence Reform and Terrorism Prevention Act in 2004.163 At the insistence of Secretary of Defense Rumsfeld, however, direct dayto- day management of DOD intelligence elements— especially the National Security Agency, National Geospatial-Intelligence Agency, and National Reconnaissance Office—remained with the Pentagon. This arrangement also protected the turf of the House and Senate armed ser vices committees, whose members were eager to maintain control of such economically important activities.164 As future defense secretary Robert Gates observed at the time, “In the real world of Washington bureaucratic and Congressional politics, there is no way the secretary of defense or the armed ser vices committees of Congress are simply going to hand those agencies over to an intelligence czar sitting in the White House.”165 Rumsfeld also persuaded Congress to approve the creation of a new under secretary of defense for intelligence. This civilian official is responsible for coordinating and managing all DOD intelligence elements under what is now called the Military Intelligence Program.166 The under secretary oversaw the creation of several important new military programs with significant domestic impacts—amidst a flurry of acronyms and abbreviations. The Joint Intelligence Task Force for Combating Terrorism

The Joint Intelligence Task Force for Combating Terrorism (JITF- CT) actually predates 9/11. It was created by the Defense Intelligence Agency in the wake of the October 2000 bombing of the USS Cole. This new program was designed to produce daily assessments of terrorist threats to DOD personnel, facilities, and interests around the world—for force protection—and to serve as the central repository for all DOD terrorism-related intelligence. After 9/11 Secretary Rumsfeld sought unsuccessfully to have it become the “fusion center” for the entire intelligence community, collecting information from every possible source at home and abroad, then turning that information into “actionable intelligence.”167 That job was eventually taken over by the National Counterterrorism Center (NCTC), which is located within the Office of the Director of National Intelligence.168 The center is responsible for “analyzing and integrating all

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intelligence . . . pertaining to [foreign-based] terrorism and counterterrorism,” and it serves as the “central and shared knowledge bank” for such information.169 The center is staffed by representatives of the various intelligence agencies, civilian and military. Turf battles over intelligence functions continued, however. In 2005, for example, the Defense Department announced plans to “reorient[] its intelligence capabilities” to allow it to “[c]ollect homeland defense threat information from relevant private and public sector sources, consistent with US constitutional authorities and privacy law.” It also said it intended to develop “automated tools to improve data fusion, analysis, and management, to track systematically large amounts of data, and to detect, fuse, and analyze aberrant patterns of activity.”170 No details were offered. The following year, in an effort to impose greater order on otherwise chaotic counterterrorism efforts, the president reportedly issued a still-secret National Implementation Plan aimed at eliminating waste and duplication. The extent to which the president’s plan has succeeded is unclear.171 Today JITF- CT remains “the focal point for DoD’s outreach and sharing of intelligence and information” with the FBI, NCTC, and other members of the intelligence community.172 Representatives from a number of nonmilitary law enforcement and intelligence organizations serve at JITF- CT, and JITF- CT personnel are deployed with those same organizations. NORTHCOM

Shortly after the Pentagon created its new domestic Northern Command in 2002, its fi rst commander, General Ralph Eberhart, insisted that while NORTHCOM would compile and share data, “we are not going to be out there spying on people trying to get information on people, that’s not our mission . . . . [W]e get information from people who do.”173 Civil liberties advocates nevertheless expressed concern when he declared that the military and civilians needed to collaborate to develop “actionable intelligence.” It is important, Eberhart said, to “not just look out, but we’re also going to have to look in. . . . [W]e can’t let culture and the way we’ve always done it stand in the way.”174 He did not indicate how existing rules or procedures for domestic intelligence collection might change. In fact, they didn’t. More recently, NORTHCOM announced that it would “[w]ork at the leading edge of visionary, predictive intelligence fusion and analysis; stay ahead of adaptive, evolving threats; and facilitate seamless information

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sharing with partner organizations.”175 What this means in practical terms has not been publicly revealed, beyond repeated declarations that NORTHCOM will cooperate closely with the FBI, CIA, Secret Ser vice, and other agencies to share data on various threats. Total Information Awareness

Another surveillance program that grabbed headlines shortly after 9/11 was not strictly military, but was developed by the Pentagon’s Defense Advanced Research Projects Agency, or DARPA. The Total Information Awareness program was supposed to capture vast amounts of personal information from the Internet, including credit card purchases, web browsing histories, bank deposits, medical records, even DNA profiles. It would then mine those data to help predict future terrorist attacks. Headed by John Poindexter, one of the principals in the Iran- Contra scandal, its official motto was scientia est potentia, which means “knowledge is power.”176 The program never became operational, but its goals and potential pervasiveness frightened many, and Congress shut it down less than a year after it came to light. Nevertheless, its “processing, analysis and collaboration tools” reportedly were allowed to continue under other unspecified programs, possibly for domestic use by the army.177 Counterintelligence Field Activity

In February 2002 the Pentagon created the Counterintelligence Field Activity, or CIFA. Its announced mission was protection of military forces against foreign threats by coordinating and overseeing all DOD counterintelligence activities. CIFA was also directed to operate as a “law enforcement activity” within DOD, but forbidden, confusingly, to investigate “individuals suspected . . . of criminal offenses.” It was never clear, in other words, whether CIFA should be governed by Pentagon rules for collecting information about “non-affiliated persons” or by rules for intelligence components.178 CIFA interpreted its ambiguous mandate broadly, with results that sometimes echoed the abuses of the Vietnam era. It came to the public’s attention in 2004 when the Wall Street Journal revealed that an army intelligence agent sought to identify three “Middle Eastern men” who made “suspicious remarks” at a University of Texas Law School seminar.179 The following year NBC News reported on a secret CIFA database that tracked hundreds of “suspicious incidents” across the country. One such incident involved a small

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group of Quaker activists planning a protest of military recruiting at high schools in Florida. Another concerned an antiwar demonstration at Hollywood and Vine in Los Angeles featuring an effigy of President Bush.180 In Houston CIFA agents conducted surveillance of ten individuals wearing paper hats and handing out peanut butter and jelly sandwiches to protest overcharges by Halliburton, Inc. for military food ser vices in Iraq.181 Despite concerns about the worth and legality of such activities, a presidential commission recommended in 2005 that CIFA be given new powers to “investigate national security matters and crimes including treason, espionage, foreign intelligence ser vice or terrorist- directed sabotage, [and] economic espionage.”182 CIFA attracted more media attention than it might otherwise have because it was linked to bribes paid by a defense contractor, MZM Inc., to a California congressman named Randy “Duke” Cunningham. For the fi rst year of its existence, for example, when CIFA lacked a general counsel, it relied instead on MZM for legal advice. CIFA’s top two officials resigned suddenly in 2006 in the midst of the scandal. Cunningham went to jail. CIFA was finally shut down in 2008, largely through the efforts of lawyers inside the Pentagon. In other words, internal oversight worked. Neither CIFA’s exact size nor its budget was ever revealed. Its responsibility for countering foreign-based intelligence threats to the military, but not its law enforcement and counterespionage duties, was taken over by the new and still largely secret Defense Counterintelligence and Human Intelligence Center managed by the Defense Intelligence Agency.183 The Threat and Local Observation Notice

CIFA roughly coincided with another new program called Threat and Local Observation Notice, also created in 2002. TALON, as it was ominously referred to, was designed to accumulate “raw information reported by concerned citizens and military members about suspicious incidents” suggesting possible terrorist threats.184 In fact, despite TALON’s characterization as a “neighborhood watch” program, almost all of the information submitted to it came from military personnel. The information received by TALON was “not validated,” might be “fragmented and incomplete,” and might or might not have related to an “actual threat.” It could nevertheless be retained “as necessary” to allow various DOD components to “conduct their analysis missions”—maybe longer than the

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ninety days permitted by rules for information about nonaffi liated persons.185 Reports from the program were compiled in a CIFA database to which JITF- CT had access. TALON reports were supposed to reflect a threat to military forces or facilities. Given the program’s broad sweep and lack of standards, however, it is hardly surprising that it also accumulated extensive data about individuals and organizations involved in peaceful protests against the Iraq War and the Pentagon’s don’t- ask- don’t- tell policy.186 One report, for example, based on intercepted email, concerned plans for a demonstration at a recruiting office in New York’s Times Square that would include peaceful civil disobedience, chants, distribution of leaflets, and a display of banners, followed by a march with coffi ns to Central Park. Another noted “suspicious activity by U.S. persons . . . affi liated with radical Moslems” in Big Bend National Park. Still others targeted Quakers reading the names of war dead in a park in Akron, Ohio, an Atlanta news conference by Iraq Veterans Against the War, and veterans planting hundreds of white crosses in a field in Las Cruces, New Mexico.187 None of the reports made available to the public indicate that local police could not have controlled any possible violence. The TALON program was narrowed in 2006 to collect only information relating to international terrorism, then terminated in 2007. Its results, said one Pentagon official, did not merit continuing the program “as currently constituted, particularly in light of its image in the Congress and the media.”188 But at least some of the TALON reports were retained in DOD databases. The Joint Protection Enterprise Network

TALON reports were distributed through the Joint Protection Enterprise Network, or JPEN. Adapted from a commercial database and operated by NORTHCOM, JPEN was located in facilities belonging to defense contractor Booz-Allen Hamilton. It was an “integrated, cross- domain, information sharing program” that allowed military, intelligence, and law enforcement agencies to share raw, unvalidated, unclassified data related to force protection and terrorist threats.189 The chairman of the Joint Chiefs of Staff called it “too good to be true. . . . The beauty of it is, you can link anybody, and everybody can put in data.”190 The Pentagon’s official announcement of JPEN was more circumspect: Information could be shared outside the Department of Defense

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only for the purpose of force protection, and only when “required in order for the receiving agency to discharge its assigned responsibilities.” When CIFA closed in 2008, JPEN did, too. The Joint Regional Information Exchange System

The Joint Regional Information Exchange System or JRIES, established by the Department of Defense in 2002, appears to have overlapped JPEN to some unknown degree. It is an online database designed to facilitate the exchange of terror-related data with civilian law enforcement agencies nationwide. Now operated by the Department of Homeland Security and renamed the Homeland Security Information Network, it allows military personnel to ask cops for personal information about specific individuals, although they cannot require compliance.191 New Tools for Soldiers as Investigators National Security Letters

After 9/11 the Pentagon ramped up its use of so- called national security letters in counterintelligence and counterterrorism investigations. These are documents delivered to nongovernment institutions to collect information about individuals without a court order.192 Unlike the FBI, which has statutory authority to compel the surrender of such data, military intelligence agencies may only request it. The requests are written on official stationery, however, and because they indicate no grounds for refusal, almost all recipients apparently have complied.193 The letters warn recipients not to reveal the requests to anyone.194 The letters may be directed to banks, brokers, credit card companies, travel agents, car dealers, pawnshops, or any business whose cash transactions might be deemed to have “a high degree of usefulness in criminal, tax, or regulatory matters.”195 The Defense Department says it needs the information to pursue counterintelligence targets who use nontraditional means to transfer money. Vice President Dick Cheney called the collection “perfectly legitimate.”196 It is not known how extensive this practice was or is. Targets are said to have included a military contractor with unexplained wealth and a Muslim chaplain at Guantánamo suspected—wrongly, as it turned out—of aiding prisoners there. But they have also reportedly concerned individuals not af-

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filiated with the Defense Department. The collected records may be maintained in a Pentagon database for years. Eyes in the Sky

Both the National Geospatial-Intelligence Agency (NGA), part of the Department of Defense, and the military ser vice branches collect imagery from drones operating in civilian airspace.197 Some overhead surveillance is intended to support civil authorities, as in spotting New Orleans citizens clinging to rooftops to escape flooding in the wake of Hurricane Katrina. The secretary of defense must approve drone use in such missions or in any overhead reconnaissance directed at specific  U.S. persons, however. As with other surveillance methods, information may be shared with a civilian law enforcement agency only if its collection was “incidental” to a legitimate military mission. Thus, surveillance by a drone diverted from a planned military mission to loiter over suspected criminal activities would not be incidental and could violate the Posse Comitatus Act.198 While no detailed public information is available about the extent of the Pentagon’s current domestic use of drones, military leaders have sought approval from the Federal Aviation Administration to significantly expand that use in the future.199 The military uses satellites to collect intelligence worldwide. It also provides images from space to nonmilitary consumers to create maps, monitor volcanoes and wildfi res, measure glaciers, and perform other peacetime tasks. We do not know how much the military relies on satellite imagery to target civilians. Critics suggest that satellite surveillance by the Pentagon’s National Reconnaissance Office (NRO), which supplies data to a variety of government consumers, may violate the Posse Comitatus Act.200 Are images from space “collected during the normal course of military training or operations” if they are routinely shared with law enforcement officials?201 No official legal analysis of this question has come to light.202 Ears to the Ground

Another one of the Pentagon’s constellation of intelligence organizations, the National Security Agency (NSA), has attracted fierce controversy in recent years. Shortly after 9/11, the NSA began to collect and store email and telephone records on millions of Americans without judicial warrants, secretly, and, for a time, probably in violation of the law. Whether any of the information has found its way into military intelligence files is unknown. In 2015

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Congress limited the NSA’s collection authority, and at this writing challenges are underway in the courts to have at least some of the agency’s domestic targeting of civilians declared unconstitutional. The NSA controversy is complicated by the growing prospect—some say the greatest threat currently facing the United States—of a cyber attack. Such an attack might, for example, shut down the Northeast electrical power grid for an extended period. In response, the Pentagon has organized a new Cyber Command, or CYBERCOM, which is involved with other government agencies in defending against electronic intrusions. According to the Department of Defense in 2014, “[a]s the frequency and complexity of cyber threats grow, we will continue to place high priority on cyber defense and cyber capabilities.”203 These military efforts could depend to some unknown degree on the monitoring of civilian Internet traffic inside the United States. Outsourcing

The military, beginning with General George Washington, has always purchased some of its intelligence from private sources.204 Spending on outside contractors by military intelligence elements mushroomed after 9/11, however, although it is impossible to say precisely by how much, because details are classified. But at one point seven of every ten individuals working for the Counterintelligence Field Activity reportedly were contract employees.205 The Department of Defense claims that it needs contractors to help make up for critical shortages of uniformed intelligence personnel, as well as to perform highly specialized tasks such as translation and cyber operations. Most intelligence contractors are analysts or technicians, not collectors. But what could be wrong with “outsourcing” intelligence collection, either foreign or domestic? Advocates of privatization insist that contractors can perform the same tasks more effectively and inexpensively than government employees, but these claims are widely disputed and impossible to verify. What is clear is that while private firms are bound by their contract obligations, their staffs may not be subject to the same kind of training, supervision, and discipline as their public sector counterparts. These private employees also are answerable only to their private employers. As individuals they operate entirely outside of any chain of command and out of the public eye. A notorious example is Edward Snowden, an employee of NSA contractor Booz-Allen Hamilton who used his insider access to steal and publicize massive data about U.S. electronic intelligence methods.

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Partly out of concern for their lack of accountability, government contractors are not supposed to perform “inherently governmental” functions.206 Unfortunately, the term “inherently governmental” is, according to one military insider, “open to broad interpretation.”207 Information Sharing

The terrorist attacks of 9/11 were blamed in part on the intelligence community’s failure to “connect the dots.”208 While various agencies had bits of information about the attackers— dots—no one had enough of the data to be able to recognize the coming catastrophe. Or perhaps the dots simply were not connected in a meaningful way. Still another possibility is that there were not enough dots. Although Executive Order 12,333 had long instructed all federal agencies to facilitate the “full and free exchange of information,”209 pressure mounted for military intelligence elements to expand their reliance on nonmilitary sources inside and outside of the federal government for information about terrorist threats, and to share information in military files as widely as possible. The Pentagon’s JPEN, TALON, and JRIES programs were direct results. In 2005 the Department of Defense announced that it had made great strides in reducing “existing cultural, technological, and bureaucratic obstacles to information sharing.” 210 A 2007 DOD directive provides that defense intelligence and counterintelligence components have “an affirmative responsibility to share collected and stored information, data, and resulting analysis with other Defense Intelligence and CI Components, the Intelligence Community (IC), other relevant Federal agencies, and civilian law enforcement officials, as appropriate.”211 Independently, the 2002 Homeland Security Act provided a legislative mandate for interagency cooperation in sharing data.212 The Department of Homeland Security’s Office of Intelligence and Analysis receives and processes data about possible domestic terrorist threats, then distributes that information to other federal agencies; to state, local, tribal, and territorial governments; and to private entities—but only information relating to the mission of the recipient.213 A military liaison serving in this office is both a supplier and a recipient of information. The real push to share terrorism and homeland security information, regardless of its source, came from the Intelligence Reform and Terrorism Prevention Act of 2004, with the ungainly acronym IRTPA.214 That measure

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directed the president to ensure that such information be shared “among all appropriate Federal, State, local, and tribal entities, and the private sector.”215 It also provided a statutory charter for the National Counterterrorism Center, described above, where, according to the Department of Defense, information sharing is “aggressive and unprecedented.”216 Here again, military officers sit side-by- side with agents from the FBI, Treasury, State, and other departments to exchange threat data. As recently as 2013 the Pentagon declared its intention to ensure the “seamless flow of intelligence and actionable information among DoD and national security, intelligence, and law enforcement partners.”217 Although IRTPA makes no distinction between military and nonmilitary agencies, it includes this important qualification: Information sharing must be consistent with “applicable legal standards relating to privacy and civil liberties.”218 One set of legal standards is found in the 1974 Privacy Act, which forbids any federal agency to share Americans’ personal information except for a “routine use” that is “compatible with the purpose for which it was collected.”219 DOD rules implementing the Privacy Act, however, allow such sharing more broadly whenever it is “relevant and necessary to accomplish a lawful DoD purpose.”220 These rules also describe disclosures of law enforcement or counterintelligence data to agencies outside of the department as “routine uses.”221 Even though the Privacy Act contemplates the transfer of personal information for “civil or criminal law enforcement activity,” regardless of the purpose for which it was collected,222 that transfer could be regarded as “execut[ing] the law,” in violation of the Posse Comitatus Act.223 Transfers to the FBI might be complicated further by the fact that the bureau performs both law enforcement and intelligence functions, and it might not be apparent why the bureau seeks certain information.224 Clarification of the rules is urgently needed to show what kinds of information may be shared, by whom, with whom, and under what circumstances. These rules could then be more readily enforced if each entry in DOD and civilian databases were tagged to show its source and the purpose for which it was collected. Such tags could allow the erection of virtual walls to prevent DOD users from accessing information unrelated to their military mission and bar nonmilitary users from purely military data. The potential for misuse of information would be further reduced, as one military intelligence insider suggests, if each item in a database were marked to show

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the date of its collection and whether its accuracy had been verified.225 These procedures would create a record of personal accountability and leave an audit trail for improved oversight. Work is currently under way throughout the intelligence community to create procedures like these. In the view of one knowledgeable commentator, restrictions on sharing are not justified by concerns that the military might assume too large a role in civilian government: “The potential harms are both slight and unlikely to materialize.”226 History teaches that his optimism may not be justified.227

No one suggests that the government as a whole should not use all reasonable efforts—within bounds set by the Fourth Amendment, statutes, and agency regulations—to detect terrorist threats. And if one government agency possesses information about a threat, it would be madness to prevent that agency from sharing it with another in order to stop an attack. The difficulty comes in describing the military’s proper role in this intelligence process. Some advocate an expansion of the Defense Department’s role.228 Others say the military has already gone too far. The policy issues are both formal and practical. According to two longtime intelligence insiders, “The current state of DoD counterintelligence is one of dystopic evolution. . . . The operational culture . . . has assimilated the imperatives of force protection, homeland defense, and information fusion, but the legal culture that would balance these imperatives with the protection of civil liberties remains a pastiche of unintegrated authorities.”229 The rules, in other words, are a mess. Uncertainty about the law is dangerous here, as in other contexts. Current DOD contingency plans, for example, say that the use of military intelligence assets for nonintelligence purposes, as in a mission in support of civil authorities in the wake of a suspected terrorist WMD attack, requires the specific approval of the secretary of defense.230 But the distinction between civil support and other kinds of missions may, as we have seen, be very difficult to make. And different missions evoke different authorities. A 2006 manual for military lawyers puts it this way: Military commanders’ need for information and intelligence within the homeland is on the rise—they expect force protection information and

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counterintelligence to be integrated into domestic and domestic support operations due to a heightened awareness of potential terrorist threats. . . . DoD intelligence components are subject to one set of rules referred to as intelligence oversight. Everyone else in DoD [is] subject to a different set of rules . . . . Therefore, the commander must direct his need for information or intelligence to the right component . . . . Intelligence is the domain of the DoD intelligence component; information comes from non-intel DoD components. Figuring out the nature of the data and the right unit to gather it are areas that often require judge advocate input.231

According to one authority, however, “from a practical point of view, this seldom happens.”232 Faced with such ambiguous or conflicting instructions, an overly cautious soldier might hesitate to conduct surveillance or report discoveries that could help keep us safe, or to share them. Or she might interpret her authority too broadly, violating the fundamental rights she has sworn to defend.

Has the military’s increased involvement in American society since 9/11 actually made us safer? The assistant secretary of defense for homeland defense during the George W. Bush administration recently asked, rhetorically, “Does NORTHCOM have the capacity to deliver support to civil authorities in response to natural disasters and CBRNE attacks in a manner consistent with the rhetoric of the department’s own strategy and, more importantly, consistent with the reasonable expectations of the American people? Are sufficient forces available to NORTHCOM? Are they properly trained? Are they properly equipped? Can they be rapidly deployed?”233 His answer was that changes initiated by the Obama administration have left the U.S. homeland “dangerously vulnerable to catastrophic attack.”234 The former assistant secretary did not ask whether nonmilitary government agencies might provide any needed protection as well as the armed forces. Nor did he ask whether increased reliance on the Defense Department for domestic security was consistent with the deep-seated American tradition of avoiding military entanglement in civilian affairs whenever possible. He also failed to inquire whether any reductions in danger were worth any trade- offs in civil liberties that might be required.

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These questions would have been difficult to answer, but they are important for us to ask—and ask repeatedly. The growth in the military’s domestic role since 9/11 demonstrates what we have observed again and again since the earliest days of the Republic, that in times of great crisis we have looked to the armed forces to help keep us safe at home. But it also reminds us that we should learn from our experience, and experience has taught us that troops, once deployed, may not always remain firmly in civilian control, that they may be misused for political purposes, and that they may sometimes forget their oath to uphold and defend the Constitution and the laws of the United States. One lesson, then, is that the law really matters. Even though the law may not always be followed to the letter, it affects the way important decisions are made and how people behave. Another lesson from experience is that rules need to be as clear as they can be, taking into account the need for flexibility to meet unpredictable challenges. Both lessons urgently need to be rehearsed in considering the domestic role of the military in the age of terrorism.

CHAPTER NINE

The Military in Twenty-FirstCentury America: Leaning Forward

I

n a report entitled Global Trends 2030: An Alternative World, the National Intelligence Council provides a framework for thinking about possible futures and their implications for national security.1 It describes megatrends and tectonic shifts that the council believes may shape what the world will look like a decade and a half on. It also cautions readers to be alert for potential “black swans”— outlier events beyond the realm of regular planning that might cause large- scale disruptions to American society. The September 11, 2001, terrorist attacks were a black swan. A future black swan might take the form of an assault on the homeland using an electromagnetic pulse (EMP) or a bioengineered viral pandemic. It might come as a crippling cyber attack on the electric grid or water supply. Or we might be struck by unprecedented storms or earthquakes rippling across the Midwest.2 Experts say that black swan phenomena are occurring more often of late, likely due to a combination of rapid technological advances, wider access to lethal and disruptive weapons, and climate change. The arrival of the next one is nearly impossible to predict. When it comes, however, our capacity for resilience and recovery will be severely tested. City, state, and federal civilian authorities alone will most likely be unable to bring needed relief to victims, to keep the peace, or to re-

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store civil society. Military forces will have to lend a hand. No other institution has the same depth and variety of relevant resources or more personnel distributed so widely across the nation, particularly when active- duty, Reserve, and National Guard troops are considered together. Meanwhile, we can expect to continue to rely on military personnel to respond to lesser, more familiar emergencies at home. Experience teaches us, however, that any military involvement in civilian affairs carries risks to civil liberties, perhaps even to democratic government itself. The Framers of the Constitution took steps to minimize these risks. Courts and Congress have also tried to limit the domestic role of troops. Despite their efforts, in great crises in the past—in an atmosphere of fear and uncertainty—the law has sometimes failed to provide clear guidance for the military responses that followed. At other times a civilian commander in chief, a quiescent Congress, or a deferential judiciary has allowed troops to stray far beyond the limits established by the law. Because we know that history has a way of repeating itself, we now face three fundamental challenges in shaping the future domestic role of the U.S. military. First, in response to black swans and other more nearly predictable crises, troops will be asked to perform new missions. Contemporaneous events will dictate the nature and scope of their assignments; the complexity and practical implications of each one will require careful, real-time evaluation. But in anticipation of those events, military forces at all levels must be given practical, adaptable legal guidance, and those forces may need to be reconfigured or realigned. Second, the Defense Department may not always be the best government agency to help out in a crisis, and when it does it will rarely act alone. If troops do become involved, they should serve in a supporting, rather than a leading, role whenever possible. The Department of Defense must continue to cooperate with states in staffing, training, and equipping National Guard units. It should also redirect Reserve components and Coast Guard personnel to prepare for a variety of domestic missions. Equally important, it will need to improve coordination within the federal military, between federal and state troops, and between the military and various civilian agencies in order to ensure an effective, efficient military response. Finally, our celebrated system of civilian control of the military needs fundamental reform. The military forces themselves require few additional restraints: soldiers and their commanders normally exercise consummate

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professionalism and appropriate respect for civilian authority. Better controls are needed, however, for the military’s civilian controllers. The Framers’ worry that a large standing military might on its own initiative overwhelm and undermine democratic government has, fortunately, not been borne out. But civilian leaders have sometimes used the military to subvert democratic government and the rule of law, and they might again. If these recommendations seem impractical or even perhaps impossible, many will recall that some of the reforms implemented after 9/11 would have seemed farfetched or even outlandish before the attacks. In retrospect, those changes were obviously needed. So now we have an opportunity to improve our responses to future crises by improvements in the law, in order to preserve both our security and the blessings of liberty.3 ANTICIPATING BLACK SWANS AND LESSER CRISES

The president takes an oath to “preserve, protect, and defend the Constitution of the United States.”4 A similar oath for commissioned military officers binds them to “protect and defend the Constitution of the United States against all enemies, foreign and domestic.” Just what does it mean for the military to defend against “domestic enemies”? What could troops do to “protect and defend the Constitution” without undermining its core protections for citizens? These questions have been addressed only rarely, and never comprehensively, by the nation’s courts. And Congress has responded only episodically and in very general terms. The military’s answer comes in part in the Pentagon’s 2014 Quadrennial Defense Review, which states that the Defense Department’s first priority is to deter and defeat attacks on the United States. But it does not say precisely to what lengths it might go in defending the homeland. Nor does it indicate what the military would do if such an attack succeeded.5 President Obama’s 2015 National Security Strategy acknowledges a variety of par ticular security threats—weapons of mass destruction, cyber attacks, and pandemics.6 It too, however, fails to describe possible military responses. For additional insights we must consult a welter of overlapping DOD and ser vice branch rules and regulations. A 2013 DOD strategy document mentions one possible black swan: the “convergence of a large-scale natural disaster and a resulting manmade crisis or technological failure” that could “overwhelm national response and re-

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covery capabilities.” 7 A 7.7 magnitude earthquake along the New Madrid fault in the Midwest, for example, could cause massive casualties across several states, with cascading critical infrastructure failures of the electric grid, water supplies, and public health and transportation systems. A different kind of catastrophe is spelled out in a 2012 National Level Exercise sponsored by FEMA.8 The exercise simulated a major cyber attack on key components of the electric grid and other critical infrastructure. An after-action review found that responders took too much time to make decisions, and that they had a hard time generating viable, prioritized action plans. Reviewers also found ambiguities in the roles and responsibilities of various agencies, as well as a lack of detail in their assignments. Government officials operated under a cyber response plan different from the National Response Framework and other crisis recovery plans.9 The cyber plan almost entirely bypassed state governors, and it failed to prescribe the military’s role in keeping the peace and enforcing the laws in the midst of a predictable breakdown in civil order. Nor did it anticipate the second- and third- order consequences of such an attack. So far as we know, there is no coherent game plan for the military’s response to such massive calamities. Neither the Pentagon’s immediate response or emergency authority nor the National Response Framework, reviewed in preceding chapters, anticipates such a dramatic and perhaps sustained domestic military mission. Nor do the various CONPLANs appear to provide adequate guidance. Given the near certainty of future catastrophes, large and small, and the consequent need for military assistance, we must plan now in as much detail as possible, consistent with the need to be able to adapt to unforeseeable circumstances. Comprehensive plans, based on sound legal advice, should clearly describe triggering conditions for military involvement, operational guidelines, and instructions for coordination across the military force and with civilian agencies. The plans also must include a process for returning fully to civilian government when the crisis is over. Since 9/11 both civilian and military authorities have made significant progress in this kind of planning. But much work remains to be done. RECONFIGURING THE DOMESTIC FORCE

The traditional conception of the soldier as war-fighter no longer captures the realities of military ser vice. Overseas deployments require military

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personnel not only to prepare for the use of force, but also to engage in the nonkinetic aspects of counterinsurgency, peacekeeping, nation-building, and confl ict stabilization. A soldier’s duties may be as much constabulary as martial. Future domestic operations may see soldiers performing an even wider range of tasks, including • • • •

tactical combat against terrorists or insurgents, protection of critical infrastructure facilities, logistical support in disaster response, enforcing quarantines and providing triage care in a pandemic or bioterrorist attack, • supporting civilian agencies in any of the above, and • quelling civil disturbances or enforcing the laws when civilian institutions are unable to do so. Army planning doctrine recognizes the “very different operational environments” in domestic missions, owing mostly to the relationships between troops and civilians.10 The Defense Department notes that its homeland defense, homeland security, and civil support missions “could be conducted in a simultaneous, near-simultaneous, or sequential fashion, across the threat spectrum, within or near the homeland.”11 Adding to the complexity, different, overlapping military rules may apply to a single mission, based on the label attached to the mission. Uniformed officers may thus not know how to react. The potential for confusion and delay is further increased by the fact that military rules may be different from those that govern civilian agencies responding to the same crisis. Moreover, in the words of a recent army publication, “Because local, state, and federal civil authorities and state and federal military forces serve under their respective chains of command, true unity of command in incident response is not possible.”12 So troops deployed domestically may fi nd themselves working at cross-purposes with civilian officials in an emergency operation. Both civilian and military protocols for responses to catastrophic incidents must do a far better job of prescribing the scope and limits of soldiers’ domestic authority, based both on practical needs for their involvement and on the functions they perform.

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Along with improved legal guidance, troops must be better organized and equipped to respond to black swans as well as to less urgent emergencies. Existing state and federal rapid-reaction forces might be augmented by additional guard troops specially trained to perform discrete or multiple missions— counterterrorism, emergency response, public health protection, critical infrastructure support, and perhaps others. Guard personnel with relevant experience in their private lives, such as cyber security or firefighting, should be assigned to similar military duties. Reserve forces could join National Guard units in responding to crises. Like members of the guard, reservists are widely dispersed in communities around the country. The two forces are also trained, equipped, and organized the same way, and all of their personnel are local citizens who may train together periodically. The Reserves are a federal force, subject to federal command and control. But Congress could authorize Reserve units to serve under state control during an emergency. Even greater efficiencies might be achieved by the politically contentious but potentially helpful merger of the Army National Guard and the U.S. Army Reserve into one force, integrating Reserve personnel into the guard of the reservists’ residence states. Combining the forces would increase the number of troops available for domestic missions by 70 percent. Reserve brigades that specialize in medical and dental care, civil affairs, support hospitals, and medical supplies could be especially helpful. The Army Reserve is currently subordinate to the army chief of staff, while the chief of the National Guard Bureau is part of the Joint Chiefs of Staff. A merger would bring considerable cost savings and could produce a larger and more versatile domestic force for governors and, on occasion, for the president. Because of maritime threats and other risks to coastal areas, both natural and manmade, Congress might also create a new Navy National Guard. Several states, including New York, already have state naval militias. The new naval guard would focus on state maritime security when not in federal service, leaving the Coast Guard to focus on federal needs. The Coast Guard might be strengthened further as a domestic security resource. As part of the Department of Homeland Security, it operates as both a military force and a law enforcement agency. At least until the Coast Guard is called into service as a part of the navy, its mix of duties makes it an ideal provider of support to civil authorities, because it can use force and also enforce the laws. Like the National Guard, the Coast Guard has national strike force

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teams with CBRNE detection capabilities, personnel protection and decontamination equipment, and mobile command posts. And like the other military services, the Coast Guard has its own Ready Reserve, which may be ordered to active duty by the DHS secretary in a domestic emergency.13 COORDINATION, COMMAND, AND CONTROL

Coordinating civilian and military responses to the next great crisis will present special challenges. Soldiers may serve alongside personnel from as many as thirty different federal agencies, as well as state, local, and tribal officials, in responding to the same incident. The potential for confusion from overlapping or inconsistent protocols, and from different chains of command, is clear. Even within the military, the command and control of troops may be hard to predict. National Guard troops operate under the direction of state governors unless they are federalized by the president. Federal status officers ordinarily may not command state National Guard personnel, nor may state-status guard officers command federal troops. Nevertheless, army and air force personnel may be subject to state guard command with the permission of the president and consent of the governor.14 In the alternative, a National Guard officer may serve in both federal and state statuses while in active command of a National Guard unit if the president and the governor approve,15 and a 2011 law declares that appointment of a dual status commander should be the “usual and customary” arrangement for command and control.16 Consider one nightmare scenario rehearsed repeatedly by federal officials. It involves a terrorist release of pneumonic plague in a major U.S. city.17 Troops almost certainly would be called out to help enforce a quarantine of the entire city as soon as the contagion was discovered. Only the military, after all, has the personnel, organization, communications, and discipline required for such a massive and dangerous job. The quarantine might be ordered by either state or federal officials, with or without a federal disaster declaration under the Stafford Act. So long as National Guard troops were deployed in active state or Title 32 status, they could take any actions reasonably necessary to secure the cordon. Federalized guard units or activeduty military could also be deployed under one of the statutory exceptions to the Posse Comitatus Act. Or a local commander might simply order her troops to circle the city upon the strength of the military’s claimed consti-

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tutional or immediate response authority.18 Meanwhile, federal, state, and local civilian officials on the scene would be pursuing their own agendas as instructed by their own chains of command. In such a catastrophe, troops at all levels should be poised to respond, lines of command should be clear, and every soldier, like every civilian official, should know exactly what is expected of him. Many lives could hang in the balance. Yet existing regulations and plans (at least the ones available to the public) fail to provide for a prompt, predictable response even to such a plausible scenario. And while we applaud recent progress in clarifying the responsibilities of each part of the government in a variety of crises, the potential for confusion, mistake, and waste remains high so long as command structures remain separated. CONTROLLING THE CONTROLLERS

From the beginning of the Republic we have struggled to maintain a military that could keep us safe at home without jeopardizing fundamental freedoms, and without surrendering civilian control of the troops. In this new age of terrorism, however, some say the military’s domestic role is due for reassessment. One near constant throughout this history has been the military’s determination to respect civilian authority and respond to civilian orders. Only rarely have military officers acted on their own domestically. While some observers caution that “today’s armed ser vices are professional and increasingly disconnected, even in some ways estranged, from civilian society,”19 the U.S. military’s continuing commitment to civilian leadership is steadfast and remarkable. Yet the military’s civilian leaders have not always remained so committed to the principle that troops should only be called out when civilian authorities are unable or unwilling to ensure the safety of Americans at home. Even before the Civil War, presidents yielded to the temptation to deploy military personnel for blatantly political purposes, something the Framers never imagined. Meanwhile, with the decline in importance of the citizen-soldier and the professionalization and growth of the standing army, military perspectives have gained greater influence in setting domestic policy. The concern is not that there will be a coup d’état. It is rather what former career military officer Andrew Bacevich calls “militarized civilians, who conceive of the world as

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such a dangerous place that military power has to predominate, and constitutional constraints on the military need to be loosened.”20 In other words, the Commander in Chief Clause has been interpreted ever more broadly to allow presidents to act unilaterally in using troops to meet domestic security objectives, or even to achieve goals having nothing to do with domestic security. In the wake of the 9/11 terrorist attacks, for example, President George W. Bush relied on his commander-in- chief power to arrest and detain suspected terrorists without charges, access to counsel, or other due process protections. His military order of November 13, 2001, was designed to prevent imprisoned suspects from seeking relief in  U.S. courts. He also ordered the National Security Agency, part of the Defense Department, to intercept domestic telephone and email traffic without judicial warrants. These actions almost surely violated constitutional guarantees of habeas corpus, free expression under the First Amendment, privacy under the Fourth Amendment, and due process under the Fifth Amendment. The president also threatened the separation of powers by ignoring express statutory limits on surveillance and detention, and by denying the right of courts to examine the legality of his actions. To be sure, the courts and Congress are far from blameless here. While President Bush suffered several stunning setbacks in the Supreme Court,21 lower courts have more often followed the long tradition of judicial deference to the executive in cases implicating national security, and Congress has enacted measures giving the military unprecedented powers of doubtful constitutionality.22 These actions appear to send a message that the military does not labor under the same legal obligations that other government actors do. So far, the Defense Department’s planning, directives, and exercises generally describe a military respectful of civilian authority, and of statutory and constitutional limits on its domestic operations. But without the clear commitment of civilian leaders to the same limits, we cannot be sure that military forces will not be used in the future to sacrifice fundamental liberties unnecessarily in the name of security. LESSONS LEARNED

The laws that prescribe the military’s domestic role are far from perfect. Even the Constitution, which strikes a prescient and fairly durable balance

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between the powers of the national and state governments, and between the branches of the federal government, while subordinating the military to civilian authority, codifies ambiguities that may invite domestic excesses. In the more than two centuries since the Declaration of Independence, we have observed an iterative process—recognizing our necessary reliance on soldiers to keep us safe in great emergencies, while at the same time exercising care to avoid making the military “superior to the Civil Power.” Shortly after ratification, the Calling Forth Acts implemented basic constitutional principles and provided a template for presidents and governors to decide when troops should get involved in civilian affairs. Civil War era legislation expanding that potential involvement survives today in the modern Insurrection Act. Such measures have served reasonably well to provide a political framework for civilian leaders to decide whether and how to use troops in responding to varying crises. Other statutes, most notably the Posse Comitatus Act, have imposed limits on domestic military actions, creating a default firewall between soldiers and civil society. These laws have sought to preserve the martial orientation of soldiers, so they can do what they are mainly trained and equipped to do. Like the measures creating domestic military authority, these need to be reexamined and possibly adjusted to enable a practical, response flexible response to future black swans and other crises.23 U.S. military forces review every major action by developing a list of “lessons learned.” The idea is to avoid repeating the same mistakes over and over again. In considering the military’s domestic role, experience has taught us that while troops may be able to keep us safe at home when no one else can, they are not as well equipped as others to fight crime or collect intelligence or perform a host of more mundane government functions. We also have learned that a mission- oriented military force may feel that it needs to cut constitutional corners to get its job done, and that troops may be employed by civilian leaders to do what they otherwise could not do. But the most important lesson of all is that we are a nation of laws, and that the laws—albeit far from perfect—profoundly influence the way we provide security for the homeland and also safeguard the American values that our men and women in uniform have pledged to protect. History leaves no doubt that the rule of law is worth fighting for.

Notes

1. THE MILITARY AT HOME IN AMERICA

1. National Security Decision Directive 238, Basic National Security Strategy, Sept. 2, 1986, available at http://www.reagan.utexas.edu/archives/reference /Scanned%20NSDDS/NSDD238 .pdf. 2. William Shakespeare, The Tempest, act 2, scene 1. 3. Letter from Samuel Adams to James Warren (Jan. 7, 1776), available at http://www. samuel-adams-heritage.com/documents/samuel-adams-to -james -warren-1776.html. 4. Rebecca Riffkin, Public Faith in Congress Falls Again, Hits Historic Low: Of Major U.S. Institutions, Americans Most Confident in the Military, Gallup, June 19, 2014, available at http://www.gallup.com/poll/171710/public-faith- congress-falls-again -hits-historic-low.aspx; James Fallows, The Tragedy of the American Military, The Atlantic, Jan./Feb. 2015. 5. Russell Jacoby, The Terror from Within, N.Y. Times, July 25, 2011; Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined (New York: Viking, 2011). 6. Michael Head and Scott Mann, Domestic Deployment of the Armed Forces: Military Powers, Law and Human Rights (Surrey, UK: Ashgate Publishing, 2009). 7. Raymond v. Thomas, 91 U.S. 712, 716 (1875). 8. Throughout this book we use the generic term “soldiers” to refer to members of each ser vice branch—the U.S. Army, Navy, and Air Force—as well as the Coast Guard, National Guard troops, and Reserves called to active duty. All play an important domestic role.

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9. Dow v. Johnson, 100 U.S. 158, 169 (1879). 10. Remarks by the President on Review of Signals Intelligence, Washington, DC (Jan. 17, 2014). 11. Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 182, 193 (1962). 12. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 602 (1952) (Frankfurter, J., concurring). 2. THE ORIGINS

1. Sources for this brief summary of events include A Short Narrative of the Horrid Massacre in Boston, 1770 (originally printed by order of the Town of Boston, 1770; reprint, Freeport, NY: Books for Libraries Press, 1971); Richard Archer, As If an Enemy’s Country: The British Occupation of Boston and the Origins of Revolution (New York: Oxford University Press, 2010); Russell Bourne, Cradle of Violence: How Boston’s Waterfront Mobs Ignited the American Revolution (Hoboken, NJ: John Wiley & Sons, 2006); The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961); Peter Karsten, ed., The Military in America: From the Colonial Era to the Present (New York: Free Press, 1980); Richard H. Kohn, Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783–1802 (New York: Free Press, 1975); Neil L. York, The Boston Massacre: A History with Documents (New York: Routledge, 2010); Hiller B. Zobel, Boston Massacre (New York: W. W. Norton & Co., 1970). 2. John Adams, Speech at the Boston Massacre trial (Dec. 4, 1770), reprinted in Trial of the British Soldiers of the 29th Regiment of Foot (Boston: Belcher and Armstrong, 1807), 99, available at http:// babel.hathitrust.org/cgi/pt?id= pst .000001933130;view=1up;seq=3. Adams was a lawyer for British soldiers involved in the violent incident that followed. 3. Sources for this part of the chapter include Anthony Babington, Military Intervention in Britain: from the Gordon Riots to the Gibraltar Incident (London: Routledge, 1990); Christopher Hibbert, King Mob: The Story of Lord George Gordon and the London Riots of 1780 (Cleveland: World Publishing Company, 1958); William Howitt and John Cassell, John Cassell’s Illustrated History of England, ed. John Frederick Smith (Oxford University: W. Kent and Co., 1857); Michael Mendle, Henry Parker and the English Civil War (London: Cambridge University Press, 1995); David Ogg, England and the Reigns of James II and William III (London: Oxford University Press, 1957); Steve Pincus, 1688: The First Modern Revolution (New Haven, CT: Yale University Press, 2009); Nicholas Rogers, Crowds, Culture, and Politics in Georgian Britain (Oxford: Oxford University Press, 1998); Lois G. Schwoerer, The Declaration of Rights, 1689 (Baltimore: Johns Hopkins University Press, 1981); Arthur E. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas

NOTES TO PAG ES 15–21

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(New York: Blaisdell Publishing Company, 1965); Edward Vallance, The Glorious Revolution: 1688: Britain’s Fight for Liberty (New York: First Pegasus Books, 2008); Gary S. De Krey, The Glorious Revolution and Its Aftermath, in Restoration and Revolution in Britain (New York: Palgrave Macmillan, 2007); David E. Engdahl, Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders, 57 Iowa L. Rev. 1 (1971); William C. Fields and David T. Hardy, The Militia and the Constitution: A Legal History, 136 Mil. L. Rev. 1 (1992); W. S. Holdsworth, The Power of the Crown to Requisition British Ships in a National Emergency, 35 L.Q. Rev. 12 (1919); D. L. Keir, The Case of the Ship Money, 52 L.Q. Rev. 546 (1936). 4. Magna Carta, ch. 39 (1215), available at http://www.britannia.com/history /docs/magna2 .html. See generally William F. Swindler, Magna Carta: Legend and Legacy (Indianapolis: Bobbs-Merrill, 1965). 5. 28 Edw. 3, c. 1 (1354), reprinted in Statutes of the Realm, vol. 1, 345. 6. William Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford: Clarendon Press, 1765), 398. 7. 3 Car. (1627), reprinted in Statutes of the Realm, vol. 5, 23. 8. The Case of Ship Money, Rex v. Hampden, 13 Car. I, 3 State Trials 825 (1637), available at http://babel.hathitrust.org/cgi/pt?id= inu.30000022548576;view =1up;seq= 421. 9. Ibid., 928 (argument by Sir Edward Littleton). 10. Ibid., 844. 11. 16 Car., c. 14 (1640), reprinted in Statutes of the Realm, vol. 5, 116. 12. John Locke, Two Treatises of Government (London: Whitmore et al., 1821), 328. 13. Michael Mendle, Henry Parker and the English Civil War (London: Cambridge University Press, 1995), 44–46. 14. 12 Car. 2, c. 15 (1660), reprinted in Statutes of the Realm, vol. 5, 238. 15. 13 Car. 2, c. 6 (1661), reprinted in Statutes of the Realm, vol. 5, 308. 16. 14 Car. 2, c. 3 (1662), reprinted in Statutes of the Realm, vol. 5, 358. 17. 1 W. & M., sess. 2, c. 2 (1688), reprinted in Statutes of the Realm, vol. 6, 142. 18. 1 Geo. 1, stat. 2, c. 5 (1714) (“Riot Act”). This measure is the apparent source of the expression “Read them the riot act!” See Engdahl, Troops in Civil Disorders, 16. 19. Blackstone, Commentaries, vol. 1, 400. 20. Ibid., 401. 21. Ibid., 400. 22. 18 Geo. 3, c. 60 (1778). 23. See Ian Haywood and John Seed, eds., The Gordon Riots: Politics, Culture and Insurrection in Late Eighteenth- Century Britain (Cambridge: Cambridge University Press, 2012). 24. Rex v. Kennett, 5 Car. & P. 282, 294, 172 Eng. Rep. 976, 983–984 (1781). 25. William Cobbett, ed., Parliamentary History of England, vol. 21 (London: T. C. Hansard, 1814), 696.

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26. In addition to sources cited earlier, this part is based on Fred Anderson, Crucible of War: The Seven Years’ War and the Fate of Empire in British North America, 1754–1766 (New York: Alfred A. Knopf, 2000); Russell Bourne, Cradle of Violence: How Boston’s Waterfront Mobs Ignited the American Revolution (Hoboken, NJ: John Wiley & Sons, 2006); Carl J. Friedrich, From the Declaration of Independence to the Constitution (New York: Liberal Arts Press, 1954); Leonard W. Levy, ed., Essays on the Making of the Constitution (New York: Oxford University Press, 2d ed. 1987); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985). 27. The Charter of Massachusetts Bay (1691), available at http://avalon.law.yale .edu/17th _century/mass07.asp. 28. James Otis Jr., Argument before the Superior Court of Massachusetts, (Feb. 24, 1761), available in part at http://www.nhinet.org/ccs/docs/writs.htm. Writs of assistance were fi rst approved by Parliament in the reign of Charles II. 12 Car. 2, c. 19 (1660); 14 Car. 2, c. 11 (1662). They were specifically authorized in the colonies by later acts. 7 & 8 W. 3, c. 22 (1695); 7 Geo. 3, c. 46 (1767). 29. 4 Geo. 3, c. 15; 5 Geo. 3, c. 12 (1765). 30. Declaration of Rights, Oct. 19, 1765, in Journal of the First Congress of the American Colonies, in Opposition to the Tyrannical Acts of the British Parliament. Held at New York, October 7, 1765 (New York: E. Winchester, 1845), 27, available at http://www.constitution.org/ bcp/dor_ sac.htm. 31. 6 Geo. 3, c. 12 (1766). 32. 5 Geo. 3, c. 33 (1765). 33. 14 Geo. 3, c. 54 (1774). 34. 14 Geo. 3, c. 45 (1774). 35. 14 Geo. 3, c. 39 (1774). 36. Letter from the Massachusetts Provincial Congress to the American Continental Congress (May 3, 1775), available at http://www.loc.gov/teachers /classroommaterials/presentationsandactivities/presentations/timeline/amrev /shots/province.html. 37. Proclamation by Governour Gage (June 12, 1775), available at http:// amarch.lib.niu.edu/islandora/object/niu-amarch%3A89683. 38. Letter from George Washington to the President of Congress (Sept. 24, 1776), in The Writings of George Washington from the Original Manuscript Sources, 1745–1799, vol. 6, ed. John C. Fitzpatrick (Washington, DC: U.S. Government Printing Office, 1932), 106. 39. Alexander Hamilton, Federalist No. 25. 40. Additional sources for this part include Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878 (Washington, DC: U.S. Government Printing Office, 1988); Hezekiah Niles, Principles and Acts of the Revolution (New York: A.S. Barnes & Co., 1876), 201.

NOTES TO PAG ES 27–31

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41. Declaration and Resolves of the First Continental Congress, Oct. 14, 1774, available at http://avalon.law.yale.edu/18th _century/resolves.asp. 42. Additional sources for this part include Andrew McLaughlin, The Articles of Confederation, in Leonard Levy, ed., Essays on the Making of the Constitution (New York: Oxford University Press, 1969). 43. Articles of Confederation and Perpetual Union between the states of New Hampshire, Massachusetts Bay, Rhode Island and Providence plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, Mar. 1, 1781, available at http:// avalon.law.yale.edu/18th _century/artconf. asp. 44. Ibid., art. II. 45. Ibid., art. III. 46. Ibid., art. VI. 47. Ibid., art. IX. 48. Ibid. 49. Ibid., art. VIII. 50. Ibid., art. XIII. 51. Michael Hattem, Newburgh Conspiracy (n.d.), available at http://www .mountvernon.org/research- collections/digital- encyclopedia/article/newburgh - conspiracy/. 52. An addres[s] from the United States in Congress assembled to the legislatures of the several states, June 1786, available at http://memory.loc.gov/cgi -bin/query/r?ammem/ bdsdcc:@field%28DOCID + @lit%28bdsdcc20201%29%29. 53. James Wilson, Speech at the Pennsylvania ratification debates (Oct. 6, 1787), available at http://www.constitution.org/afp/jwilson0.htm. 54. Articles of Confederation, art. VI. 55. Ibid., art. IX. 56. Additional sources for this part include David Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980); Robert A. Feer, Shay’s Rebellion, 1786–1787 (New York: Garland Publishing, 1988); Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002); Robert J. Taylor, Western Massachusetts in the Revolution (Providence, RI: Brown University Press, 1954). 57. Letter from George Washington to David Humphreys (Oct. 22, 1786), in The Writings of George Washington from the Original Manuscript Sources, 1745–1799, vol. 29, ed. John C. Fitzpatrick (Washington, DC: U.S. Government Printing Office, 1939), 27. 58. Debates in the Convention of the State of Pennsylvania (1787), in Jonathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution (Elliot’s Debates), vol. 2 (Washington, DC: Printed for the Editor, 1836), 521.

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59. Additional sources for this part include Merrill Jensen, The Documentary History of the Ratifi cation of the Constitution (Madison: Wisconsin Historical Society Press, 1976); Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1913); Richard Kohn, ed., The United States Military under the Constitution of the United States, 1789–1989 (New York: New York University Press, 1991). 60. Letter from George Washington to James Madison (Mar. 31, 1787), in Fitzpatrick, The Writings of George Washington, vol. 29, 190–191. 61. James Madison, Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1966), 131. 62. Hamilton, Federalist No. 16. 63. See Jonathan Turley, The Military Pocket Republic, 97 Nw. U. L. Rev. 1, 15–29 (2002). 64. See Michael Bahar, The Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several States, 5 Harv. Nat’l Sec. J. 537, 545–548 (2014). 65. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644 (1952) (Jackson, J., concurring). 66. Additional sources for this part include John Joseph Bagley and P. B. Rowley, A Documentary History of England: 1066–1540 (New York: Penguin Books, 1966); Jerry Cooper, The Rise of the National Guard—The Evolution of the American Militia 1865–1920 (Lincoln: University of Nebraska Press, 1997); Jim Dan Hill, The Minute Man in Peace and War: A History of the National Guard (Mechanicsburg, PA: Stackpole Company, 1964); John Listman Jr., Ranger’s Cradle, 57 National Guard 82 (April 2003); John K. Mahon, History of the Militia and the National Guard (New York: Macmillan Publishing Company, 1983); Allan R. Millett, The Constitution and the Citizen Solder, in Kohn, The United States Military; William S. Fields and David T. Hardy, The Militia and the Constitution: A Legal History, 136 Mil. L. Rev. 1 (1992); Saul Cornell, Mobs, Militias, and Magistrates: Popular Constitutionalism and the Whiskey Rebellion, 81 Chi.-Kent L. Rev. 883 (2006). 67. Thomas Jefferson to Thomas Cooper (Sept. 10, 1814), quoted in Robert D. Heinl, ed., Dictionary of Military and Naval Quotations (Annapolis, MD: U.S. Naval Institute Press, 1966), 192. 68. Niccolò Machiavelli, The Prince and the Discourses (1513) (New York: Modern Library, 1950), 44–45. 69. Thomas Jefferson to Thomas Cooper (Sept. 10, 1814). 70. U.S. Const., art. I, §8, cl. 15. 71. Ibid., art. I, §8, cl. 16. 72. Ibid. 73. U.S. Const., amend. II.

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74. Additional sources for this part include Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L. J. 149 (2004); Stephen I. Vladeck, The Calling Forth Clause and the Domestic Commander-in- Chief, 29 Cardozo L. Rev. 1091 (2008). 75. James Madison, Vices of the Political System of the U. States (Apr. 1787), para. 6, in The Papers of James Madison, vol. 9, ed. Robert A. Rutland et al. (Chicago: University of Chicago Press, 1975), 350. 76. Madison, Notes of Debates, 321. 77. Farrand, Records of the Federal Convention, vol. 2, 47–49. 78. Ibid., 317. 79. Ibid., 188. 80. Madison, Vices of the Political System of the U. States, para. 6. 81. Additional sources for this part include William C. Banks, Providing “Supplemental Security”—The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 J. Nat’l Security L. & Pol’y 39 (2009); and Jason Mazzone, The Commandeerer in Chief, 83 Notre Dame L. Rev. 265 (2007). 82. Farrand, Records of the Federal Convention, 182. 83. U.S. Const., art. I, §8, cl. 15. 84. 1 Geo. 1, Stat. 2, ch. 5 (1714). 85. James Madison, Federalist No. 45, 288. 86. Elliot’s Debates, vol. 3, 309. 87. Ibid., 408–410. 88. Madison, Federalist No. 43. 89. Ibid. 90. Hamilton, Federalist No. 29. 91. Elliot’s Debates, vol. 3, 423 (statement of Patrick Henry). 92. Ibid., 424. 93. Ibid., 441 (statement of Edmund Pendelton). 94. In addition to sources cited earlier, this part relies on Samuel J. Newland, The National Guard: Whose Guard Anyway?, 18 Parameters 40 (June 1988). 95. 1 Stat. 95, 96 (1789). 96. 1 Stat. 271 (1792). 97. 1 Stat. 264 (1792). 98. Ibid., §2. 99. Ibid., §3. 100. Ibid., §2. 101. 1 Stat. 424 (1795). 102. 2 Stat. 443 (1807).

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3. SOLDIERS AS PEACEKEEPERS, SOLDIERS AS COPS

1. Sources for this chapter include William C. Banks, Providing “Supplemental Security”—The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 J. Nat’l Security L. & Pol’y 39 (2009); Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789–1878 (Washington, DC: U.S. Government Printing Office, 1988); Charles Doyle and Jennifer K. Elsea, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law (Cong. Res. Serv. R42659), Aug. 16, 2012; Jackie Gardina, Toward Military Rule? A Critique of Executive Discretion to Use the Military in Domestic Emergencies, 91 Marq. L. Rev. 1027 (2008); Bennett Milton Rich, The Presidents and Civil Disorder (Washington, DC: Brookings Institution, 1941); Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L. J. 149 (2004); Frederick T. Wilson, Federal Aid in Domestic Disturbances, 1787–1903, S. Doc. No. 57-209 (1903); Frederick T. Wilson, Federal Aid in Domestic Disturbances, 1903–1922, S. Doc. No. 67-263 (1922); University of Colorado Law Revision Center, A Comprehensive Study of the Use of Military Troops in Civil Disorders with Proposals for Legislative Reform, 43 U. Colo. L. Rev. 399 (1972); Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee), Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755 (1976), available at http://www.intelligence. senate.gov/churchcommittee.html. 2. Additional sources for this part of the chapter include Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986); Saul Cornell, Mobs, Militias, and Magistrates: Popular Constitutionalism and the Whiskey Rebellion, 81 Chi.-Kent L. Rev. 883 (2006). 3. Letter from George Washington to Alexander Hamilton (Sept. 16, 1792), in The Writings of George Washington from the Original Manuscript Sources, 1745–1799, vol. 32, ed. John C. Fitzpatrick (Washington, DC: U.S. Government Printing Office, 1931–1944), 153. 4. George Washington, Proclamation (Aug. 7, 1794), in The Writings of George Washington, vol. 33, 457. In a report to Congress, Washington also stated that the federal judiciary had been “stripped of its capacity to enforce the laws.” Washington’s Sixth Annual Address to Congress (Nov. 19, 1794), in Messages and Papers of the Presidents, vol. 1, ed. James D. Richardson (Washington, DC: U.S. Government Printing Office, 1899), 162, 164. 5. George Washington, Proclamation (Sept. 25, 1794), in The Writings of George Washington, vol. 33, 507–509. 6. Alexander Hamilton, Instructions from President Washington (Oct. 20, 1744), in American State Papers: Miscellaneous, vol. 1 (Washington, DC: Gales and Seaton, 1834), 112–113. 7. Rich, The Presidents and Civil Disorder, 20.

NOTES TO PAG ES 52–62

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8. Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions, §2, 1 Stat. 264 (1792). 9. The current version of the Neutrality Act is codified at 18 U.S.C. §960 (2012). 10. An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections, 2 Stat. 443 (1807). 11. Op. of Justices, 8 Mass. 548 (1812). 12. Martin v. Mott, 25 (12 Wheat.) U.S. 19 (1827). 13. Ibid., 29 (emphasis added). 14. Ibid., 30. 15. Ibid., 32. 16. Order from the Adjutant General to an Army officer (Jan. 29, 1834), quoted in Coakley, The Role of Federal Military Forces, 105 n.49. 17. An Act to enforce and make more effectual an act intituled [sic] “An act laying an embargo on all ships and vessels in the ports and harbors of the United States,” and the several acts supplementary thereto, 2 Stat. 506 (1809). 18. An Act in addition to the “Act for the punishment of certain crimes against the United States,” and to repeal the acts therein mentioned, 3 Stat. 447 (1818). This measure expressly authorized the use of troops to enforce it. 19. Luther v. Borden, 48 U.S. 1, 39–40 (1849). 20. Quoted in Coakley, The Role of Federal Military Forces, 140. 21. We mention only in passing here the deployment in 1857–1858 of several thousand regular army troops in a confrontation with Mormon officials over federal government control of the Utah Territory. That domestic use of military forces, conducted without reliance on the authority of the 1795 or 1807 acts, was motivated by religious and political forces unique in our history and unlikely, we hope, to recur. See Coakley, The Role of Federal Military Forces, 194–226. 22. In addition to sources cited earlier, this section relies in part on Jane H. Pease and William H. Pease, The Fugitive Slave Law and Anthony Burns: A Problem in Law Enforcement (New York: J. B. Lippincott Co., 1975); Albert von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston (Cambridge, MA: Harvard University Press, 1998). 23. An Act further to provide for the collection of duties on imports, 4 Stat. 632 (1833). 24. Letter from Secretary of War Jefferson Davis to army officers (Feb. 15, 1856), quoted in Coakley, The Role of Federal Military Forces, 150. 25. Instructions from Secretary of War John B. Floyd to troops in Kansas (Apr. 1, 1857), quoted in Coakley, The Role of Federal Military Forces, 176. 26. Ibid. (emphasis added). 27. An Act respecting fugitives from justice, and persons escaping from the ser vice of their masters, 1 Stat. 302 (1793).

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28. U.S. Const. art. IV, §2, cl. 3. This provision was repealed by the Thirteenth Amendment. 29. An Act to amend, and supplementary to, the Act entitled “An Act respecting Fugitives from Justice, and Persons escaping from the Ser vice of their Masters,” approved February twelfth, one thousand seven hundred and ninetythree, §5, 9 Stat. 462 (1850). 30. S. Rep. No. 31-320 (1851). 31. Caleb Cushing, Extradition of Fugitives from Ser vice, 6 U.S. Op. Atty. Gen. 466 (1854). 32. President Franklin Pierce to Watson Freeman (May 27, 1854), reproduced in Charles Emery Stevens, Anthony Burns: A History (Boston: John P. Jewitt and Co., 1856), 273. 33. Ibid., 141; see Von Frank, The Trials of Anthony Burns, 198–199. 34. Coakley, The Role of Federal Military Forces, 137. Boston residents raised funds and purchased Burns’s freedom in 1855. Burns returned to Boston, studied at Oberlin College, and became a minister in Canada. 35. Additional sources for this part include Eric Foner, Reconstruction: America’s Unfinished Revolution (New York: Harper & Row, 1988); James Sefton, The United States Army and Reconstruction (New York: Greenwood Press, 1980); Xi Wang, The Making of Federal Enforcement Laws, 1870–1872, 70 Chi.-Kent L. Rev. 1013 (1995). 36. An Act to provide for the Suppression of Rebellion against and Resistance to the Laws of the United States, and to amend the Act entitled “An Act to provide for calling forth the Militia to execute the Laws of the Union,” &c., passed February twenty- eight, seventeen hundred and ninety-five, 12 Stat. 281 (1861). 37. The corresponding provision of the current Insurrection Act is10 U.S.C. §332 (2012). 38. The first such law, passed in July 1862, actually specified that when state militias were called into federal ser vice under the 1795 Calling Forth Act, they could be held to serve for up to nine months. It also allowed the president to adopt “all necessary rules and regulations” to provide for enrollment into the state militias of “all able-bodied male citizens between the ages of eighteen and forty-five.” An Act to amend the Act calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions, approved February twenty- eight, seventeen hundred and ninety-five, and the Acts amendatory thereof, and for other Purposes, 12 Stat. 597 (1862). It was interpreted by Lincoln to allow conscription to fi ll state-by-state quotas not met by volunteers. In 1863, Congress enacted the fi rst true draft law, making almost all able-bodied men between 20 and 45 years of age subject to the draft. This statute also made interference with the draft process a crime. An Act for enrolling and calling out the national Forces, and for other Purposes, 12 Stat. 731 (1863). 39. Coakley, The Role of Federal Military Forces, 268.

NOTES TO PAG ES 69–72

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40. An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication, 14 Stat. 27 (1866). 41. An Act to continue in force and to amend “An Act to establish a Bureau for the Relief of Freedmen and Refugees,” and for other Purposes, §14, 14 Stat. 173 (1866). 42. An Act to provide for the more efficient Government of the Rebel States, 14 Stat. 428 (1867); An Act supplementary to an Act entitled “An Act to provide for the more efficient Government of the Rebel States,” passed March second, eighteen hundred and sixty-seven, and to facilitate Restoration, 15 Stat. 2 (1867); An Act supplementary to an Act entitled “An Act to provide for the more efficient Government of the Rebel States,” passed on the second day of March, eighteen hundred and sixty-seven, and the Act supplementary thereto, passed on the twenty-third day of March, eighteen hundred and sixty-seven, 15 Stat. 14 (1867). 43. 14 Stat. 428, §3. 44. Attorney General William W. Evarts, quoted in Coakley, The Role of Federal Military Forces, 300. 45. An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes, 16 Stat. 140 (1870); An Act to amend an Act approved May thirty- one, eighteen hundred and seventy, entitled “An Act to enforce the Rights of Citizens of the United States to vote in the several States of this Union, and for other Purposes,” 16 Stat. 433 (1871); An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes, 17 Stat. 13 (1871). 46. 17 Stat. 13, §3 (1871). 47. 16 Stat. 140, §§6, 10, 13; 17 Stat. 13, §§2, 3. The “in disguise” provision of the Ku Klux Act was declared unconstitutional in United States v. Harris, 106 U.S. 629 (1883). 48. Ulysses S. Grant, Proclamation (May 3, 1871), in Messages and Papers of the Presidents, vol. 7, ed. James D. Richardson (Washington, DC: U.S. Government Printing Office, 1899), 134. 49. Ibid.; see Coakley, The Role of Federal Military Forces, 310. 50. This episode is recounted in detail in Coakley, The Role of Federal Military Forces, 315–340. 51. Additional sources for this part include Vincent DeSantis, Rutherford B. Hayes and the Removal of the Troops and the End of Reconstruction, in J. Morgan Kousser and James M. McPherson, eds., Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward (New York: Oxford University Press, 1982); Paul Leland Haworth, The Hayes-Tilden Disputed Presidential Election of 1876 (Cleveland: Burroughs Brothers Company, 1906). 52. Michael Trinkley, South Carolina African Americans—Major Events in Reconstruction Politics (n.d.), available at http://www.sciway.net/afam/reconstruction/major events.html.

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53. An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes, §15, June 18, 1878, 20 Stat. 145, 152 (1878) (codified as amended at 18 U.S.C. §1385 (2012)). In its current form the act states, “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 fi ned not more than $10,000 or imprisoned not more than two years, or both.” The Posse Comitatus Act was amended to include the air force in 1956. DOD regulations make it applicable to the navy and the Marine Corps, as well. 54. The act does not, by its terms, apply to federalized militia, although it has long been thought to do so, and several modern cases so hold. See, e.g., United States v. Gilbert, 165 F.3d 470 (6th Cir. 1999); Doyle and Elsea, The Posse Comitatus Act and Related Matters, 58. 55. For a long list of other statutory exceptions, including the authority to use troops to protect Yellowstone National Park, see Doyle and Elsea, The Posse Comitatus Act and Related Matters, 30 n.165. 56. War Department General Order No. 49, July 7, 1878. 57. U.S. Grant to the House of Representatives (Jan. 22, 1877), quoted in G. Norman Lieber, Use of the Army in Aid of the Civil Power 8 (Washington, DC: Government Printing Office, 1898). 58. Sources for this part include Charles Dick, When General Dick Took a Look at the Dick Act, 34 National Guard 23 (1980); Samuel J. Newland, The National Guard: Whose Guard Anyway?, 18 Parameters 40 (1988); Frederick B. Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 193 (1940). 59. Militia Act of 1903 (Dick Act), 32 Stat. 774 (1904). 60. Militia Act of 1908, 35 Stat. 399 (1909). 61. The legal authority to deploy National Guard troops abroad was disputed by the army judge advocate general in 1912, E. H. Crowder, Digest of the Opinions of the Judge Advocate General of the Army 1912–1917 (Washington, DC: U.S. Government Printing Office, 1917), 644, and by the attorney general in 1913, Opinion of the U.S. Attorney General, No. 322 (1913). 62. National Defense Act of 1916, §75, 39 Stat. 202 (codified as amended at 32 U.S.C. §307 (2012)). 63. Additional background for this section is provided in part by Clayton D. Laurie and Ronald H. Cole, The Role of the Federal Military in Domestic Disorders, 1877–1945 (Washington, DC: Government Printing Office, 1997), 7–255. 64. In re Debs, 158 U.S. 564, 582 (1895). 65. Indeed, the Court’s broad endorsement of emergency powers in the context of labor strikes was undercut by its 1952 decision in The Steel Seizure Case. In that case, President Truman sought without statutory authority to seize the

NOTES TO PAG ES 77–82

289

nation’s steel mills to stop a labor dispute during the Korean War. The Court declared his action unconstitutional. 66. Proc. No. 366, Law and Order in the State of Illinois (July 8, 1894), available at http://www.presidency.ucsb.edu/ws/index.php?pid=70908; Proc. No. 367, Law and Order in Parts of the States of North Dakota, Montana, Idaho, Washington, Wyoming, Colorado, and California and the Territories of Utah and New Mexico (July 9, 1894), available at http://www.presidency.ucsb.edu/ws/index.php?pid=70909. 67. See, e.g., Christopher S. Yoo, Steven G. Calabresi, and Laurence Nee, The Unitary Executive During the Third Half- Century, 1889–1945, 80 Notre Dame L. Rev. 1, 12–16 (2004). 68. Dep’t of the Army, Army Regulations of 1895, sec. 491, General Order 23, July 9, 1894 (Washington, DC: U.S. Government Printing Office, 1895). 69. Coeur D’Alene Labor Troubles, H.R. Rep. No. 56-1999 (1900), 132. 70. War Department, Adjutant General’s Office, Emergency Plan White, June 8, 1923, available at http://www.alternatewars.com/Interwar/ White/EP_White.htm. 71. War Department, Military Law: Domestic Disturbances (FM 27-15) (1941), available at https://www.hsdl.org/? view&did= 461469. 72. An Act Making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes, 39 Stat. 619, 645 (1916). 73. Exec. Order No. 8972, Authorizing the Secretary of War and the Secretary of the Navy to Establish and Maintain Military Guard and Patrols, and to Take Other Appropriate Measures, to Protect Certain National-defense Material, Premises, and Utilities from Injury or Destruction, 6 Fed. Reg. 6420 (Dec. 12, 1941). 74. War Labor Disputes Act, 57 Stat. 163 (1943). 75. Laurie and Cole, The Role of the Federal Military, 420 (quoting Army Regulation 500-50, para. 5b). 76. Additional sources for this part include Robert W. Coakley, Federal Use of Militia and the National Guard in Civil Disturbances: The Whiskey Rebellion to Little Rock, in Robin D. Higham, ed., Bayonets in the Streets (Lawrence: University Press of Kansas, 1989); Elizabeth Huckaby, Crisis at Central High (Baton Rouge: Louisiana State University Press, 1980); Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945–1992 (Washington, DC: U.S. Government Printing Office, 2005); Dwight D. Eisenhower Presidential Library & Museum (hereinafter Eisenhower Library), Civil Rights: The Little Rock School Integration Crisis (n.d.), available at http://www.eisenhower. archives.gov/research/online _ documents /civil _ rights _ little _ rock .html. 77. The military’s role in integrating Little Rock’s Central High School is detailed in Scheips, The Role of Federal Military Forces, 27–68. 78. Handwritten notes by President Eisenhower on decision to send troops to Little Rock, September 1957, in Eisenhower Library.

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79. Proc. No. 3204, Obstruction of Justice in the State of Arkansas, 72 Stat. C8 (Sept. 23, 1957). 80. Press release, containing speech on radio and tele vision by President Eisenhower, September 24, 1957, in Eisenhower Library. 81. Exec. Order No. 10,730, Providing Assistance for the Removal of an Obstruction of Justice Within the State of Arkansas, 22 Fed. Reg. 7628 (Sept. 24, 1957). 82. Those measures are currently codified at 10 U.S.C. §§332, 333 (2012). 83. The correspondence between the president and Senator Russell may be found in Eisenhower Library. 84. President’s Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders—Little Rock, Arkansas, 41 U.S. Op. Atty. Gen. 313, Nov. 7, 1957. 85. Events surrounding the use of troops in Oxford are described in detail in Scheips, The Role of Federal Military Forces, 80–135. 86. Meredith v. Fair, 305 F.2d 343, 306 F.2d 374 (5th Cir. 1962), cert. denied, 371 U.S. 828 (1962). 87. Ross R. Barnett, “Mississippi Still Says Never,” quoted in 108 Cong. Rec. H. 19737, Sept. 13, 1962. 88. Proc. No. 3497, Obstructions of Justice in the State of Mississippi, 27 Fed. Reg. 9681 (Sept. 30, 1962). 89. Exec. Order No. 11053, Providing Assistance for the Removal of Unlawful Obstructions of Justice in the State of Mississippi, 27 Fed. Reg. 9693 (Sept. 30, 1962). 90. U.S. Senate Comm. on Government Operations, Permanent Subcomm. on Investigations, Staff Study of Major Riots and Civil Disorders, 1965 Through July 31, 1968 (Washington, DC: U.S. Government Printing Office, 1968). 91. See Governor’s Commission on the Los Angeles Riots (McCone Commission), Violence in the City: An End or a Beginning?, Dec. 2, 1965, available at http://www .usc.edu/libraries/archives/cityinstress/mccone/contents.html. 92. Quoted in Scheips, The Role of Federal Military Forces, 170. 93. McCone Commission Report. 94. The portion of the Insurrection Act relevant here is 10 U.S.C. §331 (2012), which reads, “Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal ser vice such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.” 95. Proc. No. 3795, Law and Order in the State of Michigan, 81 Stat. 1119 (July 24, 1967); Exec. Order No. 11,364, Providing for the Restoration of Law and Order in the State of Michigan, 32 Fed. Reg. 10,907 (July 24, 1967). 96. Report on the National Advisory Committee on Civil Disorders (Kerner Commission) (Washington, DC: U.S. Government Printing Office, 1968), 1.

NOTES TO PAG ES 88–100

291

97. Ibid., 2. 98. Ibid., 17. 99. Ibid., 528 (Letter from Attorney General Ramsey Clark to the Governors, Aug. 7, 1967). 100. Dep’t of the Army, Civil Disturbance Plan (GARDEN PLOT) (Sept. 10, 1968), available at http://www.governmentattic.org/2docs/DA- CivilDisturbPlanGarden Plot _1968 .pdf. 101. Quoted in Paul Schwartzman and Robert E. Pierre, From Ruins to Rebirth, Wash. Post, April 6, 2008. 102. Proc. No. 3840, Law and Order in the Washington Metropolitan Area, 33 Fed. Reg. 5495 (Apr. 9, 1968). 103. Exec. Order No. 11,403, Providing for the Restoration of Law and Order in the Washington Metropolitan Area, 33 Fed. Reg. 5501 (Apr. 5, 1968). 104. Quoted in Scheips, The Role of Federal Military Forces, 286. 105. Proc. No. 6427, Law and Order in the City and County of Los Angeles, and Other Districts of California, 57 Fed. Reg. 19,359 (May 1, 1992); Exec. Order No. 12,804, Providing for the Restoration of Law and Order in the City and County of Los Angeles, and Other Districts of California, 57 Fed. Reg. 19,361 (May 1, 1992). 106. Additional sources for this part include David Farber, Chicago ’68 (Chicago: University of Chicago Press, 1988); Frank Kusch, Battleground Chicago: The Police and the 1968 Democratic National Convention (Chicago: University of Chicago Press, 2008); John Schultz, No One Was Killed: The Democratic National Convention, August 1968 (Chicago: University of Chicago Press, 2009). 107. Rights in Conflict: Convention Week in Chicago, August 25–29, 1968. A Report Submitted by Daniel Walker, Director of the Chicago Study Team, to the National Commission on the Causes and Prevention of Violence (New York: E. P. Dutton, 1968). 108. Stephen E. Ambrose, Nixon: The Triumph of a Politician, 1962–1972 (New York: Simon and Schuster, 1989), 348. 109. President’s Commission on Campus Unrest (Scranton Commission), Campus Unrest: The Report of the President’s Commission on Campus Unrest (1970), 289. 110. Editorial, Trashing the Record, N.Y. Times, Oct. 1, 1970. 111. Gilligan v. Morgan, 413 U.S. 1, 4 (1973). 112. Ibid., 5. 113. Ibid., 7. 114. Ibid., 10. 115. Ibid., 11–12. 116. Scheuer v. Rhodes, 416 U.S. 232 (1974). 117. Ibid., 246–247. 118. Ibid., 247–248. 119. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 120. Dep’t of the Army, Civil Disturbances (FM 19-15) (Mar. 1972).

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121. Art. I, §8, cl. 16. 122. United States v. Jaramillo, 380 F. Supp. 1375 (D. Neb. 1974). 123. United States v. Red Feather, 392 F. Supp. 916 (S.D. 1975). 124. United States v. McArthur, 541 F.2d 1275 (8th Cir. 1975). The appeals court found no violation of the act and upheld convictions for six of the ten defendants. 125. Bissonette v. Haig, 776 F.2d 1384, 1387–1389, aff’d, 800 F.2d 812 (8th Cir. 1986) (en banc), aff ’d, 485 U.S. 264 (1988). 126. Military Cooperation with Civilian Law Enforcement Officials, 10 U.S.C. §§371–382 (2012). See also 10 U.S.C. §124 (2012), naming the Department of Defense as lead agency for the detection and monitoring of aerial and maritime shipments of illicit drugs into the United States. 127. 10 U.S.C. §374. See Gary Felicetti and John Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief and Misunderstanding Before Any More Damage Is Done, 175 Mil. L. Rev. 86 (2003). 128. 10 U.S.C. §375. 129. 32 C.F.R. §182.6 (2014). 130. 14 U.S.C. §§1, 3 (2012). 131. United States v. Chaparro-Almedia, 679 F.2d 423 (5th Cir. 1982). 132. Unless otherwise noted, this case study relies on Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective, Global War on Terrorism Occasional Paper 14 (Ft. Leavenworth, KS: Combat Studies Institute Press, 2006), 63–70, available at http://permanent.access.gpo.gov/lps74761/lps74761.pdf. 133. Thomas R. Lujan, Legal Aspects of Domestic Employment of the Army, 27 Parameters 4 (Autumn 1997). 134. 42 U.S.C. §§5121–5207 (2012 & Supp. II 2014). 135. Ibid. 42 U.S.C. §§5122, 5170, 5191(a). 136. Ibid. 42 U.S.C. §5191(b). 137. Ibid. 42 U.S.C. §5170b(c). 138. See Jennifer K. Elsea and R. Chuck Mason, The Use of Federal Troops for Disaster Assistance: Legal Issues (Cong. Res. Serv. RS22266), Nov. 28, 2008, 7. 139. Oklahoma; Emergency and Related Determinations, 60 Fed. Reg. 22,579-02 (May 8, 1995). See also Oklahoma; Major Disaster and Related Determinations, 60 Fed. Reg. 21,819-02 (May 3, 1995). 140. New York; Major Disaster and Related Determinations, 66 Fed. Reg. 48,682-01 (Sept. 21, 2001); The White House, The Federal Response to Hurricane Katrina: Lessons Learned, Feb. 2006, 33. 141. Unless otherwise noted, this account is drawn from the following sources: Martha Derthick, Where Federalism Didn’t Fail, 67 Public Admin. Rev. 36 (Dec. 2007, Supplemental Issue); Select Bipartisan Comm. to Investigate the Preparation for and Response to Hurricane Katrina, A Failure of Initiative, H.R. Rep. No. 109-377 (2006), available at http://www.gpoaccess.gov/serialset/creports/katrina.html;

NOTES TO PAG ES 106–110

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William C. Banks, The Normalization of Homeland Security After September 11: The Role of the Military in Counterterrorism Preparedness and Response, 64 La. L. Rev. 735 (2004); William Banks, Who’s in Charge: The Role of the Military in Disaster Response, 26 Miss. C. L. Rev. 75 (2006); Letter from the National Governor’s Association to Senators Christopher Bond and Patrick Leahy (Feb. 5, 2007), available at http://www.nga.org/cms/home/federal-relations/nga-letters/archived-letters-2007 /col2- content/main- content-list/title _ february-5 -200.html#; The White House, The Federal Response to Hurricane Katrina: Lessons Learned (2006). 142. Eric Lipton, Eric Schmitt, and Thom Shanker, Political Issues Snarled Plans for Troop Aid, N.Y. Times, Sept. 5, 2005; see also John McQuaid and Mark Schleifstein, Path of Destruction: The Devastation of New Orleans and the Coming Age of Superstorms (New York: Little, Brown & Co., 2006), 276. 143. Rove Off the Record on Iraq, Huffi ngton Post, Sept. 17, 2005, available at http://www.huffi ngtonpost.com/2005/09/17/rove - off-the -record- on-ir_ n _ 7513 .html. 144. 10 U.S.C. §333 (2012). The president is also authorized by 10 U.S.C. §12,406 (2012) to call National Guard troops into federal ser vice to repel invasions, suppress insurrections, or execute the laws of the United States. 145. A Failure of Initiative, 218. 146. Address to the Nation on Hurricane Katrina Recovery from New Orleans, Louisiana, 40 Weekly Comp. Pres. Doc. 1405, 1408 (Sept. 15, 2005). 147. Admiral Timothy J. Keating, commander of NORTHCOM, quoted in Ann Imse, Proposal Would Use Military in Disasters, Rocky Mtn. News, Oct. 26, 2005. 148. Pub. L. No. 109-364, §1076, 120 Stat. 2083, 2404–2405 (2006). The quoted language appeared in a new 10 U.S.C. §333. 149. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, §1068(a)(1), 122 Stat. 3 (2008). 150. See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862) (in a crisis that “sprung forth suddenly” the president “was bound to meet it . . . without waiting for Congress”). 151. United States v. United States District Court, 407 U.S. 297, 310 (1972). 152. Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure Case), 343 U.S. 579 (1952). 153. See, e.g., United States v. United States District Court. 154. Doyle and Elsea, The Posse Comitatus Act and Related Matters, 26–27. 155. Employment of Military Resources in the Event of Civil Disturbances, 32 C.F.R. §215.4(c)(1)(i) (2014). 156. Ibid., §215.4(c)(1)(ii). 157. Dep’t of Defense Directive No. 3025.18, Defense Support of Civil Authorities (DSCA), §4(g) (Dec. 29, 2010, updated Sept. 21, 2012). 158. Ibid.

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159. 18 U.S.C. §1385 (2012). 160. DOD Instr. 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013), 23. 161. See, e.g., United States v. Chon, 210 F.3d 990, 993 (9th Cir. 2000); United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994). 162. See, e.g., Coakley, The Role of Federal Military Forces, 347. 163. See, e.g., Gilbert v. United States, 165 F.3d 470 (6th Cir. 1999); Steven B. Rich, The National Guard, Drug Interdiction and Counterdrug Activities, and Posse Comitatus: The Meaning and Implications of “In Federal Ser vice,” Army Law. (June 1994), 35. The legal consequences of shared federal and state control of National Guard forces in responding to disasters are explored in Chapter 8. 164. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994); Lamont v. Haig, 539 F. Supp. 552 (W.D.S.D. 1982). 165. See, e.g., United States v. Mendoza- Cecelia, 963 F.2d 1467, 1478 n.9 (11th Cir.), cert. denied, 506 U.S. 964 (1992). But see United States v. Dreyer, 767 F.3d 826, 836–837 (9th Cir. 2014) (applying the exclusionary rule where violations occurred “frequently and repeatedly”). 4. SOLDIERS AS JAILORS

1. Sources for this part of the chapter include Bruce Chadwick, George Washington’s War (Naperville, IL: Sourcebooks, 2004); Jennifer K. Elsea, Detention of U.S. Persons as Enemy Belligerents (Cong. Res. Serv. R42337), Apr. 11, 2012; Francis Vinton Greene, The Revolutionary War and the Military Policy of the United States (New York: Charles Scribner’s Sons, 1911); Gary B. Nash, The Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America (New York: Viking Penguin, 2005); and Matthew Warshauer, Andrew Jackson and the Politics of Martial Law (Knoxville: University of Tennessee Press, 2006). 2. Resolution of Dec. 27, 1776, Journal of the Continental Congress, 1774–1789, vol. 6, ed. Worthington Chauncey Ford (Washington, DC: Government Printing Office, 1906), 1045–1046. 3. Resolution of Aug. 26, 1777, Journal of the Continental Congress, 1774–1789, vol. 8, ed. Worthington Chauncey Ford (Washington, DC: Government Printing Office, 1907), 678–679. 4. Resolution of Oct. 8, 1777, Journal of the Continental Congress, 1774–1789, vol. 9, ed. Worthington Chauncey Ford (Washington, DC: Government Printing Office, 1907), 784–785. 5. An Act respecting Alien Enemies, 1 Stat. 577 (1798). The act, as amended, remains on the books today at 50 U.S.C. §21 (2012). 6. Ibid.

NOTES TO PAG ES 115–116

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7. See Gerald L. Neuman and Charles F. Hobson, John Marshall and the Enemy Alien: A Case Missing from the Canon, 9 Green Bag 2d 39 (2005), and sources cited therein; Stephen I. Vladeck, Enemy Aliens, Enemy Property, and Access to the Courts, 11 Lewis & Clark L. Rev. 963, 967–970 (2007). 8. Smith v. Shaw, 12 Johns. 257 (N.Y. Sup. Ct. 1815); In re Stacy, 10 Johns. 328 (N.Y. Sup. Ct. 1813); McConnell v. Hampton, 12 Johns. 234 (N.Y. Sup. Ct. 1815). In 2004, these three decisions were cited by Justice Scalia as confi rming “[t]he absence of military authority to imprison citizens indefi nitely in war time.” Hamdi v. Rumsfeld, 542 U.S. 507, 565–566 (2004) (Scalia, J., dissenting). His view was not shared either by the majority, ibid. at 522–523, or by Justice Thomas, ibid. at 593. A fourth citizen imprisoned by the military was released upon the order of President Madison. See Ingrid Brunk Wuerth, The President’s Power to Detain “Enemy Combatants”: Modern Lessons from Mr. Madison’s Forgotten War, 98 Nw. U. L. Rev. 1567, 1580–1585 (2004). 9. Smith v. Shaw, 12 Johns. at 266 (emphasis in original). 10. See Jonathan Lurie, Andrew Jackson, Martial Law, Civilian Control of the Military, and American Politics: An Intriguing Amalgam, 126 Mil. L. Rev. 133 (1989). This remarkable incident is recounted in further detail in Chapter 5. 11. See Amanda L. Tyler, The Forgotten Core Meaning of the Suspension Clause, 125 Harv. L. Rev. 901, 975–986 (2012). 12. This account is drawn in part from Daniel Farber, Lincoln’s Constitution (Chicago: University of Chicago Press, 2003); Benjamin A. Kleinerman, The Discretionary President: The Promise and Peril of Executive Power (Lawrence: University Press of Kansas, 2009); Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (Cambridge, MA: Harvard University Press, 2011); Mark E. Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991); William H. Rehnquist, All the Laws but One: Civil Liberties in War time (New York: Alfred A. Knopf, 1998); Geoffrey R. Stone, Perilous Times: Free Speech in War time from the Sedition Act of 1798 to the War on Terrorism (New York: W.W. Norton, 2004); David S. Heidler and Jeanne T. Heidler, eds., Encyclopedia of the American Civil War: A Political, Social, and Military History (New York: W.W. Norton, 2000); Curtis A. Bradley, The Story of Ex Parte Milligan, in Christopher H. Schroeder and Curtis A. Bradley, eds., Presidential Power Stories (New York: Foundation Press, 2009), 93; Andrew Kent, The Constitution and the Laws of War During the Civil War, 85 Notre Dame L. Rev. 1839 (2010); Stephen I. Vladeck, The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act, 80 Temple L. Rev. 391 (2007). 13. Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), in Don E. Fehrenbacher, ed., Abraham Lincoln: Speeches and Writings, 1859– 1865 (New York: Library of America, 1989), 456–457.

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14. Letter from Abraham Lincoln to Winfield Scott (Apr. 25, 1861), in Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 344. 15. Letter from Abraham Lincoln to Winfield Scott (Apr. 27, 1861), in Collected Works of Abraham Lincoln, vol. 4, 347. 16. 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487). 17. The Habeas Corpus Case of John Merryman, Esq., Baltimore Sun, May 29, 1861. The emphasis appears in the newspaper account. 18. 17 F. Cas. at 148. 19. One authority cited by Taney was Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), in which Chief Justice Marshall wrote, in a dictum, “If at any time the public safety should require the suspension of the powers vested . . . in the courts of the United States, it is for the legislature to say so.” Ibid., 101. 20. 17 F. Cas. at 152–153. Only a dozen years earlier Taney had declared in a dictum the power of the president to call out troops to arrest and detain persons “[w]hen citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws. . . . The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis.” Luther v. Borden, 48 U.S. 1, 44 (1849). Taney’s statement was based on the president’s authority under the Calling Forth Act of 1795, although that act says nothing explicitly about arrest or detention, and the militia were not called out in the earlier case. For an argument that Lincoln’s action in Merryman was implicitly authorized by the Calling Forth Act of 1795 and the related 1807 legislation, see Vladeck, The Field Theory. Professor Vladeck also suggests that suspension might have been justified by the fact that martial law, although not expressly declared, effectively existed in Baltimore from mid-May of 1861 onward. The fact that the Merryman court itself met in Baltimore during this time seems to cast doubt on this theory, however. 21. Collected Works of Abraham Lincoln, vol. 4, 430 (emphasis in original). 22. Act of Aug. 6, 1861, §3, 12 Stat. 326. 23. Proc. No. 1, Rebels and Their Abettors Within the United States to Be Subject to Martial Law, 13 Stat. 730 (Sept. 24, 1862). 24. An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases, 12 Stat. 755 (1863). 25. Proc. No. 7, 13 Stat. 734 (Sept. 15, 1863). 26. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 122 (1866) (emphasis in original). 27. Ibid. 28. Ibid., 109 (emphasis in original). 29. Ex parte Vallandigham, 68 U.S. 243 (1863). 30. 50 U.S.C §21 (2012). 31. In addition to sources cited earlier, the account here was drawn in part from Francis Biddle, In Brief Authority (Garden City, NY: Doubleday, 1962); Morton

NOTES TO PAG ES 120–122

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Grodzins, Americans Betrayed: Politics and the Japanese Evacuation (Chicago: University of Chicago Press, 1949); Peter Irons, Justice at War (New York: Oxford University Press, 1983); Peter Irons, ed., Justice Delayed: The Record of the Japanese American Internment Cases (Middletown, CT: Wesleyan University Press, 1989); Tetsuden Kashima, Judgment without Trial: Japanese American Imprisonment During World War II (Seattle: University of Washington Press, 2004); Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (Cambridge, MA: Harvard University Press, 2001); Clinton Rossiter, The Supreme Court and the Commander in Chief (Ithaca, NY: Cornell University Press, 1976); Geoffrey R. Stone, Perilous Times: Free Speech in War time from the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton, 2004); Jacobus tenBroek, Edward N. Barnhart, and Floyd W. Matson, Prejudice, War and the Constitution (Berkeley: University of California Press, 1954); Eric K. Yamamoto et al., Race, Rights and Reparation: Law and the Japanese American Internment (New York: Aspen Law & Business, 2001); Commission on War time Relocation and Internment of Civilians, Personal Justice Denied (Washington, DC: U.S. Government Printing Office, 1982–1983); Louis Fisher, Detention of U.S. Citizens (Cong. Res. Serv. RS22130), Apr. 28, 2005. Many of the documents referred to in these secondary sources may be found in the National Archives or in the Bancroft Library, University of California, Berkeley, where they are catalogued online at http:// content.cdlib.org/view?docId= tf5j49n8kh&chunk .id= c02-1.8 .5.4.7&brand= oac. 32. Proc. No. 2525, 55 Stat. 1700 (Dec. 7, 1941) (Japanese aliens); Proc. No. 2526, 55 Stat. 1705 (Dec. 8, 1941) (German aliens); Proc. No. 2527, 55 Stat. 1707 (Dec. 8, 1941) (Italian aliens). 33. 22 Stat. 58. 34. Immigration Restriction Act of 1924, 43 Stat. 153. 35. Editorial, Los Angeles Times, Jan. 28, 1942, quoted in Editorial, Another Day, Another Installment, Another Note from the Editor, Los Angeles Times, Dec. 14, 2007. 36. Walter Lippmann, Op-Ed. The Fifth Column on the Coast, Los Angeles Times, Feb. 13, 1942. 37. Westbrook Pegler, quoted in Biddle, In Brief Authority, 218. 38. Personal Justice Denied, 67. 39. Ibid., 81–82. 40. Biddle, In Brief Authority, 213. 41. Ibid. 42. Personal Justice Denied, 72–73. 43. Memorandum from Attorney General Biddle to President Roosevelt (Feb. 17, 1942), quoted in Personal Justice Denied, 83–84. 44. Personal Justice Denied, 79. 45. Ibid., 67, 91. 46. Memorandum for the Secretary of War, Evacuation of Japanese and other Subversive Persons from the Pacifi c Coast (Feb. 14, 1942), reproduced in J. L. DeWitt,

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Final Report: Japanese Evacuation from the West Coast, 1942 (Washington, DC: U.S. Government Printing Office, 1943), 33–38. 47. Ibid., 34. 48. Biddle, In Brief Authority, 217, 221. 49. Exec. Order No. 9066, Authorizing the Secretary of War to Prescribe Military Areas, 7 Fed. Reg. 1407 (Feb. 25, 1942). 50. See, e.g., Public Proc. No. 1, Military Areas Nos. 1 and 2 Designated and Established, 7 Fed. Reg. 2320 (Mar. 26, 1942). 51. See, e.g., Civilian Exclusion Order No. 34, Instructions to All Persons of Japanese Ancestry (May 3, 1942), available at http://www.hsp.org/fi les/030002 .jpg. As for the 40,000 or so Japanese citizens living on the West Coast, recall that the Alien Enemy Act provided separately that any citizen of a hostile nation above the age of fourteen could be “apprehended, restrained, secured, and removed” during a declared war. 52. An Act to provide a penalty for violation of restrictions or orders with respect to persons entering, remaining in, leaving, or committing any act in military areas or zones, Pub. L. No. 77-503, 56 Stat. 173 (1942). 53. Hirabayashi v. United States, 320 U.S. 81, 103 (1943). 54. See, e.g., Civilian Restrictive Order 1, Persons of Japanese Ancestry: Procedure for Departure from Assembly Centers, etc., 8 Fed. Reg. 982 (Jan. 21, 1943). The order was promulgated on May 19, 1942, but not published in the Federal Register until seven months later. 55. Exec. Order No. 9102, Establishing the War Relocation Authority in the Executive Office of the President and Defining its Functions and Duties, 7 Fed. Reg. 2165 (Mar. 18, 1942). 56. In a 1944 decision the Supreme Court wrote that internees were “detained by a civilian agency, the War Relocation Authority, not by the military.” Ex parte Endo, 323 U.S. 283, 298 (1944). But the statement vastly understates the army’s critical role. See TenBroek, Prejudice, War and the Constitution, 258 (pointing out that “the total program of exclusion and detention began with a military order, continued during the pleasure of the military, and was terminable at the will of the military”). 57. Japanese forces actually mounted a handful of attacks against targets in the continental United States, but none caused major damages or casualties. See Evan Andrews, 5 Attacks on U.S. Soil During World War II, History List, Oct. 23, 2012, available at http://www.history.com/news/history-lists/5 -attacks- on-u-s-soil - during-world-war-ii. 58. In addition to sources cited earlier, this part is drawn from Nanette Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions, 45 Colum. L. Rev. 175 (1945); Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945); Eric K. Yamamoto, Korematsu Revisited: Correcting the Injustice of Extraordinary Government Excess and Lax

NOTES TO PAG ES 124–129

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Judicial Review—Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L. Rev. 1 (1986). 59. Korematsu v. United States, 323 U.S. 214 (1944). 60. Brief of Appellant at 40, Korematsu, 323 U.S. 214 (No. 22). 61. Korematsu, 323 U.S. at 217. 62. Ibid., 218, quoting from its earlier opinion in Hirabayashi v. United States, 320 U.S. 81, 99 (1943), a case testing the validity of General DeWitt’s curfew program. 63. Korematsu, 323 U.S. at 223–224. 64. 71 U.S. at 120–121. 65. Korematsu, 323 U.S. at 224 (Frankfurter, J., concurring). 66. Ibid., 233–242 (Murphy, J., dissenting). 67. Ibid., 244, 248 (Jackson, J., dissenting). 68. Ibid., 245–246. 69. Ibid., 248. 70. Ibid., 221–223. 71. 323 U.S. 283 (1944). 72. Personal Justice Denied, 214–215. 73. Ibid., 15; see also Robinson, By Order of the President, 216–227. 74. See Personal Justice Denied, 283–293. 75. Biddle, In Brief Authority, 207. 76. Nearly 900 American Aleuts were also rounded up, removed from their homes, and imprisoned by military forces in southeastern Alaska during the war. Personal Justice Denied, 317–359; National Park Ser vice, Evacuation and Internment, 1942–1945 (n.d.), available at http://www.nps.gov/aleu/historyculture/unangan -internment.htm. 77. Pub. L. No. 81-831, §103(a), 64 Stat. 987, 1019–1030 (1950). 78. See Alan M. Dershowitz, The Role of Law During Times of Crisis: Would Liberty Be Suspended?, in Harry M. Cloor, ed., Civil Disorder and Violence: Essays on Causes and Cures (Skokie, IL: Rand McNally, 1972), 140–141. 79. Pub. L. No. 92-128, 85 Stat. 347 (1971); H.R. Rep. No. 92-116 (1971), 4. 80. 18 U.S.C. §4001(a) (2012). 81. Proc. No. 4417, An American Promise, 41 Fed. Reg. 7741 (Feb. 20, 1976). 82. Pub. L. No. 96-317, 94 Stat. 964 (1980). 83. Personal Justice Denied, 3, 10. 84. Brief for the United States at 11, Korematsu, 323 U.S. 214 (No. 22). 85. Memorandum from John L. Burling to Assistant Attorney General Herbert Wechsler (Sept. 11, 1944), quoted in Korematsu v. United States, 584 F. Supp. 1406, 1417 (N.D. Cal. 1984). 86. Neal Katyal, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases, The Justice Blog, May 20, 2011, available at

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http://www.justice.gov/opa/ blog/confession- error-solicitor-generals-mistakes - during-japanese -american-internment- cases. 87. Korematsu, 584 F. Supp. at 1420. The circumstances leading up to the 1984 decision are described in Irons, Justice at War. Documents and commentary on the later proceedings may be found in Irons, Justice Delayed. 88. Rehnquist, All the Laws but One. 89. Quoted in Katherine Bishop, Japanese-Americans Treat Pain of Internment in World War II, New York Times, Feb. 19, 1992. 90. 317 U.S. 1 (1942). The story of the eight German marines is retold in greater detail in Chapter 5. 91. Ibid., 25. 92. 71 U.S. (4 Wall.) 2 (1866). 93. 317 U.S. at 42. 94. 156 F.2d 142 (9th Cir. 1946). 95. Ibid., 145. 5. SOLDIERS AS JUDGES

1. Reid v. Covert, 354 U.S. 1, 35–36 (1957). 2. Background for this chapter is provided in part by Edward Corwin, Total War and the Constitution (New York: Alfred A. Knopf, 1947); Eugene Fidell and Dwight H. Sullivan, eds., Evolving Military Justice (Annapolis, MD: Naval Institute Press, 2002); Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence: University Press of Kansas, 2005); Louis Fisher, Military Tribunals: Historical Patterns and Lessons (Cong. Res. Serv. RL32458), July 9, 2004; David Glazier, Note, Kangaroo Court or Competent Tribunal? Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005 (2003); R. Chuck Mason, Military Justice: Courts- Martial, an Overview (Cong. Res. Serv. R41739), Aug. 12, 2013; Clinton Rossiter and Richard Longaker, The Supreme Court and the Commander in Chief (Ithaca, NY: Cornell University Press, 1976); Stephen I. Vladeck, Military Courts and Article III, 103 Geo. L.J. 933 (2015); William Winthrop, Military Law and Precedents (Washington, DC: U.S. Government Printing Office, 2d ed. 1920). 3. Later in the chapter we encounter the use of a third type, the provost court, to try civilians in Hawaii during World War II. A fourth kind of military court, the court of inquiry, is less important for our purposes. 4. In Hamdan v. Rumsfeld, 548 U.S. 557, 593–596 (2006), the Supreme Court recognized three types of military commissions—law of war commissions, martial law commissions, and occupation tribunals. 5. 10 U.S.C. §§801–946 (2012). See Joint Ser vice Committee on Military Justice, Manual for Courts- Martial, United States (2012 Edition) (2012).

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6. 10 U.S.C. §802(a). A “contingency operation” is broadly defi ned to include “an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force.” 10 U.S.C. §101(a)(13)(A) (2012). 7. A section of the UCMJ entitled “Jurisdiction of courts-martial not exclusive” states, “The provisions of this chapter . . . do not deprive military commissions . . . or other militarytribunals of concurrent jurisdiction with respect to offenders and offenses that by statute or by the law of war may be tried by military commissions . . . .” 10 U.S.C. §821. In the aftermath of 9/11, Congress enacted the Military Commissions Act of 2006, Pub. L. No. 109-266 (codified as amended at 10 U.S.C. §§948a–950t (2012)), providing for military commission trials of “alien unprivileged enemy belligerents.” 8. 10 U.S.C. §826. A qualified military judge is required for “general” courts-martial. A “special” or “summary” court-martial may be presided over by one or more commissioned officers without such qualifications. 10 U.S.C. §816. 9. 10 U.S.C. §§825, 851. 10. 10 U.S.C. §948c. 11. 10 U.S.C. §836. But see David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5, 64 (2005) (“The commonly expressed view that this article provides broad presidential rulemaking authority is . . . flatly contradicted by the initial legislative history.”). 12. Additional sources for this part of the chapter include Papers of George Washington, 1756, ed. W. W. Abbott (Charlottesville: University Press of Virginia, 1984); The Writings of George Washington from the Original Manuscript Sources, 1745–1799, ed. John C. Fitzpatrick (Washington, DC: U.S. Government Printing Office, 1931–1944). 13. Fisher, Military Tribunals and Presidential Power, 17. 14. Winthrop, Military Law and Precedents, 19–20. 15. Journals of the Continental Congress, 1774–1789, vol. 2 (June 17, 1775), ed. Worthington C. Ford et al. (Washington, DC: Library of Congress, 1905), 96. 16. Articles of War (June 30, 1775), in Journals of the Continental Congress, vol. 2, 111. 17. The Declaration of Independence, paras. 11, 14, 20 (U.S. 1776). 18. Articles of Confederation of 1781, art. IX. 19. Articles of War, arts. 5, 6, 27, 28. 20. Journals of the Continental Congress, vol. 10 (Feb. 2, 1778), 204–205. 21. Additional sources for this part include Joan M. Jensen, Army Surveillance in America, 1775–1980 (New Haven, CT: Yale University Press, 1991); Winthrop Sargent, The Life of Major John Andre (New York: Appleton and Co., 1871). 22. Letter from George Washington to William Livingston (Apr. 15, 1778), in The Writings of George Washington from the Original Manuscript Sources, 1745–1799, vol.

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11, ed. David Maydole Matteson (Washington, DC: U.S. Government Printing Office, 1934), 262. 23. U.S. Const. art. I, §8, cl. 14. 24. U.S. Const. amend. V. 25. Rights of defendants in courts-martial and civilian courts today are compared in Mason, Military Justice, 9–15. 26. Act of Sept. 29, 1789, ch. 25, §4, 1 Stat. 96 (1789). 27. Act of April 10, 1806, ch. 20, arts. 56, 57, §2, 2 Stat. 359, 366, 371 (1806). 28. Additional sources for this part of the chapter include John Spencer Bassett, The Life of Andrew Jackson (New York: Macmillan, 1925); The Correspondence of Andrew Jackson, ed. John Spencer Bassett (Washington, DC: Carnegie Institute of Washington, 1927); Burke Davis, Old Hickory: A Life of Andrew Jackson (Philadelphia: The Historical Society of Pennsylvania, 1977); Philo A. Goodwin, Biography of Andrew Jackson (New York: R. Hart Towner, 1833); Charles Gayarré, History of Louisiana (New York: William J. Widdleton, 1867); Marquis James, Andrew Jackson: The Border Captain (Indianapolis, IN: The Bobbs-Merrill Company, 1933); Robert V. Remini, Andrew Jackson and the Course of American Empire, 1767–1821 (New York: Harper and Row, 1977); Abraham D. Sofaer, Emergency Power and the Hero of New Orleans, 2 Cardozo L. Rev. 233 (1978); Matthew Warshauer, Andrew Jackson and the Politics of Martial Law (Knoxville: University of Tennessee Press, 2006). 29. Letter to “A Citizen of Louisiana of French Origin,” Louisiana Courier, Mar. 3, 1815, in James Parton, The Life of Andrew Jackson, vol. 2 (Boston: Houghton, Mifflin and Company, 1888), 311; Gayarré, History of Louisiana, vol. 4, 587. 30. Goodwin, Biography of Andrew Jackson, 181–183. 31. Letter from Alexander T. Dallas to Andrew Jackson (July 1, 1815), in Bassett, The Correspondence of Andrew Jackson, vol. 2, 212. 32. Glazier, Precedents Lost, 31–37; Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991), 40–41. 33. Additional sources for this part of the chapter include Daniel Farber, Lincoln’s Constitution (Chicago: University of Chicago Press, 2003); Richard Shelly Hartigan, Lieber’s Code and the Law of War (Chicago: Precedent Publishing, 1983); The Life and Letters of Francis Lieber, ed. Thomas Sergeant Perry (Boston: James R. Osgood and Company, 1882); Detlev F. Vagts, Military Commissions: The Forgotten Reconstruction Chapter, 23 Am. U. Int’l Rev. 231 (2007). 34. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123–124 (1866). 35. Neely, The Fate of Liberty, 168–173, 176–177 (documenting 4,271 military commission trials during the Civil War and 1,435 during Reconstruction). 36. Proc. No. 1, Rebels and Their Abettors Within the United States to Be Subject to Martial Law, 13 Stat. 730 (Sept. 24, 1862). 37. Militia Act of 1862, ch. 201, §5, 12 Stat. 597, 598 (1862); Act of Mar. 3, 1863, ch. 75, §30, 12 Stat. 736 (1863); Act of Mar. 3, 1863, ch. 75, §3, 12 Stat. 737 (1863);

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Act of July 2, 1864, ch. 215, §1, 13 Stat. 356 (1864); Act of July 4, 1864, ch. 253, §6, 13 Stat. 397 (1864). 38. Act of Mar. 3, 1863, ch. 75, §38, 12 Stat. 737 (1863). 39. Act of July 2, 1864, ch. 215 §1, 13 Stat. 356 (1864). 40. Letter from Francis Lieber to Henry W. Halleck (June 13, 1864), quoted in Perry, The Life and Letters of Francis Lieber, 347–348. 41. Neely, The Fate of Liberty, 164. 42. Offenses charged in military commission trials are catalogued in John W. Clampitt, Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States by the Best American and European Authors, vol. 2 (New York: Maynard, Merrill and Co., 1899), 838. 43. See, e.g., General Orders No. 230, July 23, 1863, in Thomas M. O’Brien and Oliver Diefendorf, General Orders of the War Department Embracing the Years 1861, 1862 & 1863, vol. 2 (New York: Derby and Miller, 1864), 265. 44. Letter from Maj. Gen. Henry W. Halleck to Thomas Ewing (Jan. 1, 1862), in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, vol. 1, ser. II (Washington, DC: U.S. Government Printing Office, 1894), 247. 45. Neely, The Fate of Liberty, 44, 167–175 (providing an overview of the Civil War commission trials). 46. Additional sources for this part include Michael Kent Curtis, Lincoln, Vallandigham, and Anti-War Speech in the Civil War, 7 Wm. & Mary Bill of Rts. J. 105 (1998); Frank L. Klement, Clement L. Vallandigham, in For the Union: Ohio Leaders in the Civil War, ed. Kenneth W. Wheeler (Columbus: Ohio State University Press, 1968); The Trial of Hon. Clement L. Vallandigham by a Military Commission (Cincinnati, OH: Rickey and Carroll, 1863). 47. Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 244 (1864). 48. Klement, Clement L. Vallandigham, 35–36. 49. Letter from Abraham Lincoln to Erastus Corning et al. (June 12, 1863), in The Collected Works of Abraham Lincoln, vol. 6, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 266. 50. Proc. No. 1, Rebels and Their Abettors Within the United States to Be Subject to Martial Law, 13 Stat. 730 (Sept. 24, 1862). 51. Ex parte Vallandigham, 28 F. Cas. 874, 902 (C.C.S.C. Ohio 1863). 52. Ibid., 921–923. 53. Ex parte Vallandigham, 68 U.S. at 251. 54. Ibid., 249. 55. Letter from Abraham Lincoln to Erastus Corning et al. (June 12, 1863) (emphasis in original). 56. Additional sources for this part include Curtis A. Bradley, The Story of Ex parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization, in Christopher H. Schroeder and Curtis A. Bradley, eds., Presidential Power Stories (New

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York: Foundation Press, 2009), 93; Samuel Klaus, ed., The Milligan Case (New York: A.A. Knopf, 1929); Andrew Kent, The Constitution and the Laws of War During the Civil War, 85 Notre Dame L. Rev. 1839 (2010); Oscar A. Kinchen, Confederate Operations in Canada and the North: A Little- Known Phase of the American Civil War (North Quincy, MA: Christopher Publishing House, 1970); Frank L. Klement, The Indianapolis Treason Trials and Ex parte Milligan, in Michal R. Belknap, ed., American Political Trials (Westport, CT: Praeger Publishers, 1994), 101; William Rehnquist, Civil Liberty and the Civil War: The Indianapolis Treason Trials, 72 Ind. L.J. 927 (1997); Kenneth M. Stampp, Indiana Politics During the Civil War (Indianapolis: Indiana Historical Bureau, 1949). 57. William Dudley Foulke, Life of Oliver P. Morton, vol. 1 (Indianapolis, IN: The Bowen-Merrill Co., 1899), 278–285. 58. Klaus, The Milligan Case, 67–73. 59. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 60. Letter from Judge Advocate General Joseph Holt to Secretary of War Edwin Stanton (June 9, 1863), in The War of the Rebellion, vol. 5, ser. 2, 765–766. 61. Ex parte Milligan, 71 U.S. at 121. 62. Ibid., 121. 63. Ibid., 122. 64. Ibid., 140–141 (Chase, C. J., concurring). 65. Ibid., 137–138, 142. 66. Ibid., 140. 67. See David Miller DeWitt, The Assassination of Abraham Lincoln and its Expiation (New York: The Macmillan Co., 1909); Michael W. Kaufman, American Brutus: John Wilkes Booth and the Lincoln Conspiracies (New York: Random House Trade Paperbacks, 2004); Elizabeth D. Leonard, Lincoln’s Avengers: Justice, Revenge, and Reunion After the Civil War (New York: W. W. Norton & Co., 2004); Edward Steers Jr., Blood on the Moon: The Assassination of Abraham Lincoln (Lexington: University Press of Kentucky, 2001); James L. Swanson, Manhunt: 12- Day Chase for Lincoln’s Killer (New York: HarperCollins Publishers, 2006). 68. 11 U.S. Op. Atty. Gen. 297 (July 1865). 69. Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868). 70. More than a century later Samuel Mudd’s descendants again challenged the military trial in an effort to have the apparently hapless doctor’s good name restored. Their suit failed. The entire saga is traced in Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001), appeal denied on other grounds, 309 F.3d 819 (D.C. Cir. 2002). 71. Rossiter and Longaker, The Supreme Court and the Commander in Chief, 36. 72. An Act to provide for the more efficient Government of the Rebel States, ch. 153, §3, 14 Stat. 428 (1867). 73. Neely, The Fate of Liberty, 176–177; Winthrop, Military Law and Precedents, 853 (reporting a lower number, but focusing on cases after legislation in 1867).

NOTES TO PAG ES 152–156

305

74. The Supreme Court acquiesced in the jurisdiction-stripping statute. Ex part McCardle, 74 U.S. (7 Wall.) 506 (1868). 75. Charles Fairman, History of the Supreme Court of the United States: Reconstruction and Reunion, ed. Paul A. Freund (New York: Macmillan, 1971), 1480; Vagts, Military Commissions, 252–254, 269. 76. Extending Jurisdiction of Military Tribunals: Hearings Before the S. Comm. on Military Affairs, 65th Cong. (1918). See Roy Talbert Jr., Negative Intelligence: The Army and the American Left, 1917–1941 (Jackson: University Press of Mississippi, 1991), 45–48. 77. Talbert, Negative Intelligence, 40–45. 78. Spies and Plotters, N.Y. Times, Apr. 28, 1918. 79. Henry Landau, The Enemy Within: The Inside Story of German Sabotage in America (New York: Van Rees Press, 1937), 112–127. 80. Articles of War, Art. 82, in An Act Making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes, §1342, 39 Stat. 619, 663 (1916). 81. 31 Op. Att’y Gen. 356, 361 (1918). 82. 40 Op. Att’y Gen. 561 (1919), released for publication July 29, 1942. 83. Fisher, Military Tribunals and Presidential Power, 89. 84. Sources for this part include Michal R. Belknap, The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case, 89 Mil. L. Rev. 59 (1980); Francis Biddle: In Brief Authority (New York: Doubleday, 1962); Myron C. Cramer, Military Commissions: Trial of the Eight Saboteurs, 17 Wash. U. L. Rev. & St. Bar J. 242 (1942); Michael Dobbs, Saboteurs: The Nazi Raid on America (New York: Vintage Books, 2004); Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law, 2d ed. (Lawrence: University Press of Kansas, 2005); Andrew Kent, Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex parte Quirin, the Nazi Saboteur Case, 66 Vand. L. Rev. 153 (2013); Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States, vol. 39 (Arlington, VA: University Publications of America, 1975); Alpheus Thomas Mason, Inter Arma Silent Leges: Chief Justice Stone’s Views, 69 Harv. L. Rev. 806 (1956). 85. Franklin D. Roosevelt, Memorandum for the Attorney General (June 30, 1942), Departmental File, Justice, 1940–44, Box 56, Franklin D. Roosevelt Library, available at http://www.fdrlibrary.marist.edu/_resources/images/psf/b-psfc000039.pdf. 86. Proc. No. 2561, 7 Fed. Reg. 5101 (July 7, 1942). 87. Appointment of a Military Commission, 7 Fed. Reg. 5103 (July 7, 1942). 88. Ibid. 89. Proc. No. 2561. 90. Ex parte Quirin, 57 F. Supp. 431 (D.D.C. 1942). 91. Act of June 4, 1920, ch. 227, arts. 38, 43, 46, 50½, 70, 41 Stat. 759, 794–797, 802 (1920). 92. Ex parte Quirin, 317 U.S. 1 (1942).

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93. Eugene Rachlis, They Came to Kill: The Story of Eight Nazi Saboteurs in America (New York: Random House, 1961), 249. 94. Ex parte Quirin, 317 U.S. 1, 29 (1942) (extended opinion). 95. Articles of War, Art. 15, Act of June 4, 1920, 41 Stat. 759, 790 (emphasis added). Articles 81 and 82 did authorize trial by military commission of anyone charged with aiding the enemy or with spying around military facilities. 41 Stat. 804. When Congress revised the Articles of War in 1950 to create the Uniform Code of Military Justice, former Article 15 was replicated in nearly identical language in UCMJ Article 21, 10 U.S.C. §821, arguably intending to approve implicitly the Supreme Court’s 1942 interpretation. Curtis A. Bradley and Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 Green Bag 2d 249, 253 (2002); Glazier, Precedents Lost, 76. 96. 317 U.S. at 28–29. 97. Ibid., 37. 98. Ibid., 46–48. 99. Ibid., 19. 100. See Kent, Judicial Review for Enemy Fighters, 66 Vand. L. Rev. 153, 156 n.6. 101. Ibid., 156 nn.7–8. 102. Hamdi v. Rumsfeld, 542 U.S. 507, 569 (2004). 103. Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957). 104. Sources for this part of the chapter include J. Garner Anthony, Hawaii under Army Rule (Stanford, CA: Stanford University Press, 1955); J. Garner Anthony, Martial Law in Hawaii, 30 Cal. L. Rev. 371 (1942); J. Garner Anthony, Martial Law, Military Government and the Writ of Habeas Corpus in Hawaii, 31 Cal. L. Rev. 477 (1943); Harry N. Scheiber and Jane L. Scheiber, Constitutional Liberty in World War II: Army Rule and Martial Law in Hawaii, 1941–1946, 3 West. Leg. Hist. 341 (1990). 105. Act of Apr. 30, 1900, ch. 339, §67, 31 Stat. 141, 153 (1900). 106. The governor’s proclamation and other key documents quoted here may be found in several appendices to Ex parte White, 66 F. Supp. 982 (D. Hawaii 1944). 107. Anthony, Hawaii under Army Rule, 38–39, 52. 108. Proclamations by the Governor and Military Governor, respectively, each dated February 8, 1943, are reproduced in ibid., 129–132. 109. Proc. No. 2627, Termination of Martial Law in the Territory of Hawaii, 59 Stat. 1158 (Oct. 19, 1944). 110. Quoted in Ex rel Zimmerman, 132 F.2d 442, 443–444 (9th Cir. 1942), cert. denied sub nom. Zimmerman v. Walker, 319 U.S. 744 (1943). 111. Ibid. 112. General Orders No. 31, Habeas Corpus Proceedings and Interference with Military in Perfor mance of Military Functions Prohibited (Aug. 25, 1943), reproduced in Anthony, Hawaii under Army Rule, 178.

NOTES TO PAG ES 160–165

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113. The entire saga is traced in Anthony, Hawaii under Army Rule, 64–77, 82. 114. 327 U.S. 304 (1946). 115. Ibid., 307. 116. Ibid., 324. 117. Ibid., 314. 118. Ibid., 313–314. 119. Ibid., 324. 120. Toth v. Quarles, 350 U.S. 11, 13–14 (1955). 121. Ibid., 15. 122. Ibid., 17. 123. Reid v. Covert, 354 U.S. 1 (1957). See Brittany Warren, The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and CourtsMartial, 212 Mil. L. Rev. 133 (2012). 124. Quoted in Reid v. Covert, 354 U.S. at 4. 125. 354 U.S. at 3. The Court’s initial focus was on the availability of constitutional protections abroad, but its conclusions about the court-martial trials of civilians would seem to apply equally inside the United States. 126. Ibid., 9. 127. Ibid., 30. 128. Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960); Grisham v. Hagen, 361 U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 234 (1960) (concurring and dissenting opinions for all three cases). There might be circumstances, however, in which a person could be treated as “ ‘in’ the armed ser vices for purposes of [the Make Rules Clause] even though he had not formally been inducted into the military,” as, for example, with a civilian paymaster serving aboard a navy ship. McElroy, 361 U.S. at 285 (quoting Reid v. Covert, 354 U.S. at 23). 129. United States v. Averette, 41 C.M.R. 363 (1970). 130. Ibid., 365–366. 131. John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, §552, 120 Stat. 2083, 2217 (2006) (codified at 10 U.S.C. §802(a) (10) (2012). 132. United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012). 133. Vladeck, Military Courts and Article III, 105 Geo. L.J. at 950 (quoting Edward F. Sherman, Military Justice without Military Control, 82 Yale L.J. 1398, 1402 (1973)). 134. Chappell v. Wallace, 462 U.S. 296, 300 (1983). 135. Reid v. Covert, 354 U.S. at 38 (plurality). 136. Ibid., 33. 137. Ex parte Milligan, 71 U.S. at 109.

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6. SOLDIERS AS INVESTIGATORS

1. President Barack Obama, referring to members of the intelligence community generally, in Remarks by the President on Review of Signals Intelligence, Jan. 17, 2014. 2. Sources for this chapter include Bruce W. Bidwell, History of the Military Intelligence Division, Department of the Army General Staff: 1775–1941 (Frederick, MD: University Publications of America, 1986); James P. Finley, ed., U.S. Army Military Intelligence History: A Sourcebook (Fort Huachuca, AZ: U.S. Army Intelligence Center & Fort Huachuca, 1995); John Patrick Finnegan, Military Intelligence (Washington, DC: Center of Military History, United States Army, 1998), available at http://www .history. army.mil/catalog/pubs/60/60 -13.html; Joan M. Jensen, Army Surveillance in America, 1775–1980 (New Haven, CT: Yale University Press, 1991); M. B. Powe and E. E. Wilson, The Evolution of American Military Intelligence (Fort Huachuca, AZ: U.S. Army Intelligence Center and School, 1973), available at http://www.fas .org/irp/agency/army/evolution.pdf; Frank J. Rafalko, ed., A Counterintelligence Reader (Washington, DC: National Counterintelligence Center, 1996), available at http://www.fas.org/irp/ops/ci/docs/; and reports of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee), S. Rep. No. 94-755 (1976): Book I, Foreign and Military Intelligence; Book II, Intelligence Activities and the Rights of Americans; Book III, Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans; and Book VI, Supplementary Reports on Intelligence Activities, available at http://www .intelligence. senate.gov/churchcommittee.html. 3. Letter from George Washington to Colonel Elias Dayton (July 26, 1777), in The Writings of George Washington From the Original Manuscript Sources, 1745–1799, vol. 8, ed. John C. Fitzpatrick (Washington, DC: U.S. Government Printing Office, 1933). 4. See generally Edwin C. Fishel, The Secret War for the Union: The Untold Story of Military Intelligence in the Civil War (New York: Houghton Mifflin, 1996). 5. Exec. Order No. 1, Relating to Political Prisoners (Feb. 14, 1862), available at http://www.presidency.ucsb.edu/ws/index.php?pid= 69792#axzz2fSRQryAl. 6. Quoted in Church Committee, Book VI, Supplementary Reports on Intelligence Activities, 38. 7. The organization and activities of the American Protective League are spelled out in Joan M. Jensen, The Price of Vigilance (Chicago: Rand McNally & Co., 1968). 8. Bidwell, History of the Military Intelligence Division, 190. 9. General Staff, Military Intelligence Division, The Functions of the Military Intelligence Division, Oct. 1, 1918, in U.S. Army Military Intelligence History, 108, 110. See generally Roy Talbert Jr., Negative Intelligence: The Army and the American Left, 1917–1941 (Jackson: University Press of Mississippi, 1991).

NOTES TO PAG ES 170–173

309

10. Prepared statement by Joan M. Jensen, in Military Surveillance: Hearings on S. 2318, 172. 11. Jensen, Army Surveillance in America, 173. 12. See MID and the German Spy in Nogales, Arizona, in Finley, U.S. Army Military Intelligence History, 130. 13. Quoted in War Department, Adjutant General’s Office, Emergency Plans— White, June 8, 1923, 11, available at http://www.alternatewars.com/Interwar/ White /EP_White.htm. 14. Army Has Charts of Red Activities, N.Y. Times, June 18, 1919. 15. Emergency Plans—White, Appendix E, ¶3(a). 16. Maj. Gen. Johnson Hagood, quoted in Jensen, Army Surveillance in America, 202. 17. See Church Committee, Book VI, Supplementary Reports on Intelligence Activities, 79 n.7. 18. Franklin D. Roosevelt, Statement Placing the Federal Bureau of Investigation in Charge of Espionage Investigation, Sept. 6, 1939, available at http://www.presidency .ucsb.edu/ws/index.php?pid=15804#axzz2fSRQryAl. 19. Delimitation Agreement, June 5, 1940, described in Talbert, Negative Intelligence, 257–259. The complex taxonomy of the term “counterintelligence” is outlined in Michael J. Woods and William King, An Assessment of the Evolution and Oversight of Defense Counterintelligence Activities, 3 J. Nat’l Security L. & Pol’y 169, 173–187 (2009). 20. Delimitation Agreement, Feb. 9, 1942, described in Talbert, Negative Intelligence, 259–260. 21. See Counter Intelligence Corps: History and Mission in World War II (Fort Holabird, MD: Counter Intelligence Corps School, n.d.). 22. Talbert, Negative Intelligence, 267. 23. Finley, U.S. Army Military Intelligence History, 160. 24. Counter Intelligence Corps: History and Mission in World War II, 14. 25. Byron Price, A Report on the Offi ce of Censorship (Washington, DC: U.S. Government Printing Office, 1945), 1. 26. Pub. L. No. 80-253, 61 Stat. 495 (1947) (codified as amended in scattered sections of 10 & 50 U.S.C.). 27. Church Committee, Book I, Foreign and Military Intelligence, 21. 28. Intelligence agencies controlled by the Pentagon today include the National Security Agency (NSA), National Geospatial-Intelligence Agency (NGA) (formerly National Imagery and Mapping Agency), National Reconnaissance Office (NRO), Defense Intelligence Agency, and the intelligence elements of the three military ser vice branches. Their functions are spelled out in James E. Meason, Military Intelligence and the American Citizen, 12 Harv. J.L. & Pub. Poly. 541, 547–554 (1989); Church Committee, Book VI, Supplementary Reports on Intelligence Activities, 265–271. See also 50 U.S.C. §3038 (2012).

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29. In a still- classified report, the 2001 Presidential Commission on Intelligence Reform, led by former national security advisor Brent Scowcroft, recommended that the NSA, NGA, and NRO be removed from Pentagon control and managed instead by a newly created national intelligence director. The recommendation was fiercely opposed by then secretary of defense Donald Rumsfeld and was not followed by the Bush administration. See Jennifer Kibbe, The Rise of the Shadow Warriors, 83 Foreign Affairs 102, Mar./Apr. 2004. 30. Delimitations Agreement between the FBI and US Military Intelligence Ser vices with Supplements, Feb. 23, 1949, available at http://www.fas.org/irp/ops /ci/docs/ci2/2ch1_ e.htm. 31. Subcommittee on Constitutional Rights, Senate Committee on the Judiciary, Military Surveillance of Civilian Politics: A Report (Ervin Committee Report), 93d Congress (1973), 42. The work of the Ervin Committee is also documented in Federal Data Banks, Computers and the Bill of Rights: Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, 92d Cong. (1971); Military Surveillance: Hearings on S. 2318 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 93d Cong. (1974); and Staff of the Subcomm. on Constitutional Rights, S. Comm. on the Judiciary, Army Surveillance of Civilians: A Documentary Analysis, 92d Cong. (Comm. Print 1972). 32. Church Committee, Book III, Supplementary Detailed Staff Reports, 792. Many of the Army’s domestic intelligence activities are detailed in Christopher H. Pyle, Military Surveillance of Civilian Politics 1967–1970 (New York: Garland Publishing, 1986). 33. Ervin Committee Report, 34–43. Three of the plans are reproduced in appendices to the 1973 report. 34. Quoted in Pyle, Military Surveillance of Civilian Politics, 47. 35. See ibid., 365–381. 36. USAINTC Collection Plan, Apr. 23, 1969, in Ervin Committee Report, 121, 125. 37. Ervin Committee Report, 4. Army intelligence reportedly kept records on the membership of a Unitarian church congregation in Houston attended by one of the authors. Ibid., 16. 38. Ibid., 4. 39. Robert Elijah Jordan III, quoted in Ervin Committee Report, 46. 40. USAINTC Weekly Intelligence Summary No. 68-12, Mar. 18, 1968, in Federal Data Banks, Computers and the Bill of Rights, 969–972. 41. Ervin Committee Report, 10. 42. Christopher H. Pyle, CONUS Intelligence: The Army Watches Civilian Politics, 1 Wash. Monthly 4 (1970), 5. 43. See Ervin Committee Report, 50–57, describing two blacklists, entitled Individuals Active in Civil Disturbances and Civil Disturbances and Dissidence. Each entry about an individual included a photograph, age, address, occupation, arrest record, organizational affi liations, political beliefs, and other personal data.

NOTES TO PAG ES 178–183

311

44. Pyle, CONUS Intelligence, 6–7. 45. Ibid., 7. 46. Ibid., 10–12. 47. Ibid., 10–13, 16. 48. Laird v. Tatum, 408 U.S. 1 (1972). 49. Brief for Unitarian Universalist Ass’n Council for Christian Social Action et al. as Amici Curiae Supporting Respondents, 15, Laird v. Tatum. 50. Laird v. Tatum, 408 U.S. at 16. 51. Ibid., 7. 52. Ibid., 12–13. 53. Ibid., 13–14. 54. For a thoughtful critique of the Court’s standing analysis, see Paul M. Peterson, Civilian Demonstrations Near the Military Installation: Restraints on Military Surveillance and Other Intelligence Activities, 140 Mil. L. Rev. 113, 146–154 (1993) (suggesting that no unconstitutional “chill” is possible if surveillance is entirely covert). 55. Laird v. Tatum, 408 U.S. at 14. 56. Ibid., 15. 57. Ibid., 23 (Douglas, J., dissenting). 58. Ibid., 26. 59. Ibid., 28. 60. Ibid., 28–29. 61. Federal Data Banks, Computers and the Bill of Rights, 864–865. 62. After the Supreme Court handed down its decision, the plaintiffs challenged Rehnquist’s involvement, arguing that he had prejudged the case and should have recused himself. In an unapologetic opinion rejecting their claim, the future chief justice declared simply that the federal statute governing judicial conduct did not require him to step aside. Laird v. Tatum, 409 U.S. 824 (1972). See Ralph Michael Stein, Comment, Laird v. Tatum: The Supreme Court and a First Amendment Challenge to Military Surveillance of Lawful Civilian Political Activity, 1 Hofstra L. Rev. 244, 267–271 (1973). 63. American Civil Liberties Union v. Westmoreland, 323 F. Supp. 1153 (N.D. Ill. 1971), aff ’d on other grounds sub nom. American Civil Liberties Union v. Laird, No. 71-1159 (7th Cir. July 12, 1972). 64. 323 F. Supp. at 1154. 65. See Ervin Committee Report. Senator Ervin is best remembered for his role in the Senate Watergate hearings three years later. 66. Ibid., 4. 67. 71 U.S. (4 Wall.) 2, 12 (1866). 68. Ervin Committee Report, 19; Robert E. Jordan III, Memorandum for the Secretary of the Army: Review of Civil Disturbance Intelligence History (n.d.), in Military Surveillance: Hearings on S. 2318, 287, 289.

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69. Pyle, Military Surveillance of Civilian Politics, 320. 70. Ervin Committee Report, 7. 71. Ibid., 106. 72. Ibid., 8. 73. Christopher Pyle, CONUS Revisited: The Army Covers Up, 2 Wash. Monthly 49 (1970). 74. Church Committee, Book II, Intelligence Activities and the Rights of Americans, 85. 75. Ervin Committee Report, 89–98. 76. DOD Dir. 5200.27, Acquisition of Information Concerning Persons and Organizations Not Affiliated with the Department of Defense, ¶4.3 (Mar. 1, 1971). 77. Federal Data Banks, Computers and the Bill of Rights, 603. 78. Asst. Sec. of Defense Robert F. Froehlke, testifying before the Ervin Committee, quoted in Federal Data Banks, Computers and the Bill of Rights, 436. 79. Church Committee, Book II, Intelligence Activities and the Rights of Americans, 311–312. A House committee, led by Otis Pike of New York, also recommended that military intelligence personnel be prohibited from engaging in covert activities within the United States. House Select Committee on Intelligence, U.S. Intelligence Agencies and Activities: Committee Proceedings— II, 94th Cong. (1976), 2302. 80. Freedom from Surveillance Act of 1973, S. 2318, 93d Cong. §2(a) (1973). 81. National Intelligence Reorganization and Reform Act of 1978, S. 2525, 95th Cong. (1978). 82. Pub. L. No. 93-579 (1974) (codified as amended at 5 U.S.C. §552a (2012)). 83. Church Committee, Book III, Supplementary Detailed Staff Reports, 788. Application of the Privacy Act to military intelligence activities is reviewed in Peterson, Civilian Demonstrations Near the Military Installation, 130–144. The Defense Department’s understanding of its responsibilities under the act is spelled out in DOD Proc. 5200.11-R, Department of Defense Privacy Program, May 1, 2007. 84. Dep’t of Justice, Overview of the Privacy Act of 1974: Introduction, June 17, 2014, available at http://www.justice.gov/opcl/introduction. 85. Dep’t of Justice, Overview of the Privacy Act of 1974: Conditions of Disclosure to Third Parties, June 17, 2014 (interpreting 5 U.S.C. §552a(e)(1)), available at http:// www.justice.gov/opcl/conditions- disclosure -third-parties. 86. 5 U.S.C. §552a(a)(7), (b)(3). 87. Office of Management and Budget, Privacy Act of 1974: Guidance, etc., 52 Fed. Reg. 12,990, 12,993 (Apr. 20, 1987), available at http://www.whitehouse.gov/sites /default/fi les/omb/assets/omb/inforeg/guidance _privacy_ act.pdf. 88. 5 U.S.C. §552a(b)(7). Moreover, according to the Justice Department, “agencies may routinely disclose any records indicating a possible violation of law (regardless of the purpose for collection) to law enforcement agencies for purposes of investigation/prosecution.” Dep’t of Justice, Overview of the Privacy

NOTES TO PAG ES 188–190

313

Act of 1974: Conditions of Disclosure to Third Parties, June 17, 2014 (emphasis in original), available at http://www.justice .gov/opcl/conditions - disclosure - third -parties. 89. 5 U.S.C. §552a(e)(7). Controversy surrounding this provision is described in Steven W. Becker, Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: The Law Enforcement Activity Exception to the Privacy Act, 50 DePaul L. Rev. 675 (2000). 90. Church Committee, Book III, Supplementary Detailed Staff Reports, 834. 91. Foreign Intelligence Surveillance Act, Pub. L. No. 95-511, 92 Stat. 1783 (1978), codified as amended at 50 U.S.C. §§1801–1885c (2012). 92. Eric Lichtblau and Mark Mazzetti, Military Expands Intelligence Role in U.S., N.Y. Times, Jan. 14, 2007. Controversy surrounding the army’s use of “national security letters” is described in Chapter 8. 93. United States v. United States District Court (Keith), 407 U.S. 297 (1972). 94. Exec. Order No. 11,905, United States Foreign Intelligence Activities, 41 Fed. Reg. 703 (Feb. 18, 1976). 95. Exec. Order No. 12,333, United States Intelligence Activities, 46 Fed. Reg. 59,941 (Dec. 1, 1981), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53,593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45,325 (July 30, 2008). 96. Exec. Order No. 12,333, as amended, §1.1(a). 97. Ibid., §1.7(b)(1). 98. Ibid., §1.7(f)(1). 99. Ibid., §1.10(a). The formal and practical distinctions between “foreign intelligence” and “counterintelligence,” the relation of each to law enforcement, and their reflection in the executive order and related DOD regulations, are detailed in Woods and King, An Assessment of the Evolution and Oversight of Defense Counterintelligence Activities, 3 J. Nat’l Security L. & Pol’y at 173–187. 100. Exec. Order No. 12,333, as amended, §2.3(b– d). 101. Ibid., §2.4(b), (c). 102. Ibid., §2.3. 103. Ibid., §1.3(b)(20)(A). This provision is reflected in the terms of a 1979 Delimitation Agreement between the FBI and the Department of Defense. DOD–Attorney General Formal Agreement, Agreement Governing the Conduct of Defense Department Counterintelligence Activities in Conjunction with the Federal Bureau of Investigation (Apr. 5, 1979) (reproduced in Dep’t of the Air Force, AF Reg. 1-24-11, Conducting Air Force Counterintelligence Activities with the Federal Bureau of Investigation (FBI), Oct. 8, 1980), available at https://archive.org/stream/CIADocuments/CIA -272 _ djvu.txt; and Memorandum between the FBI and the DoD, Supplement to 1979 FBI/DoD Memorandum of Understanding: Coordination of Counterintelligence Matters Between the FBI and DoD (June 20, 1996) (classified “Secret”). See Woods and

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King, An Assessment of the Evolution and Oversight of Defense Counterintelligence Activities, 3 J. Nat’l Security L. & Pol’y at 177, 183–184. 104. DOD Dir. 5200.27, Acquisition of Information Concerning Persons and Organizations Not Affiliated with the Department of Defense, §3.1 (Mar. 1, 1971), reproduced in Federal Data Banks, Computers and the Bill of Rights, 1253. For a critique, see George C. Christie, Government Surveillance and Individual Freedom: A Proposed Statutory Response to Laird v. Tatum and the Broader Problem of Government Surveillance of the Individual, 47 N.Y.U. L. Rev. 871, 878–885 (1972). References hereinafter are to the current version of the directive, which is dated January 7, 1980. 105. DOD Dir. 5200.27, §4.1. 106. Ibid., §4.1.1. 107. Ibid., §4.3. 108. Church Committee, Book III, Supplementary Detailed Staff Reports, 825–832. 109. Ibid., 827. 110. DOD Dir. 5200.27, §§5.2, 5.3 (emphasis added). 111. Ibid., §§5.4–5.6. 112. Ibid., §2.3. 113. DOD Dir. 5240.1, Activities of DOD Intelligence Components that Affect U.S. Persons (Nov. 30, 1979). The current version is DOD Dir. 5240.01, DOD Intelligence Activities (Aug. 27, 2007). 114. McKay M. Smith, Occupy Wall Street and the U.S. Army’s 82nd Airborne Division: A Hypothetical Examination of the Slippery Slope of Military Intervention During Civil Disturbance, 22 Geo. Mason U. Civ. Rts. L.J. 295, 319 (2012). 115. DOD Proc. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components That Affect United States Persons, §C2.3 (Dec. 1982). 116. Ibid., §C2.5. 117. Ibid., §C2.2.3. What makes an activity “significant” is not explained. 118. Ibid., §C7.1. Such assistance may take the form of sharing “incidentally acquired information” or “specialized equipment and facilities.” Ibid., §C12.2.2. 119. DOD Dir. 3025.18, Defense Support of Civil Authorities (DSCA) (Dec. 29, 2010, updated Sept. 21, 2012). 120. Ibid., ¶4.g. 121. Ibid., ¶4.i. 122. Authority to provide support does not, however, extend to intelligence and counterintelligence components. Ibid., ¶2.d.(6). 123. A very helpful recent effort to untangle and explain the rules is Kevin W. Kapitan, An Introduction to Intelligence Oversight and Sensitive Information: The Department of Defense Rules for Protecting Americans’ Information and Privacy, Army Law. (Apr. 2013), 3. See also Defense Intelligence Agency, Intelligence Law Handbook: Defense HUMINT Ser vice (Aug. 2004) (describing itself as “a handy reference tool for all military and civilian DIA and Defense HUMINT Ser vice (DHS) personnel”).

NOTES TO PAG ES 192–194

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124. Army Regulation 381-10, U.S. Army Intelligence Activities (May 3, 2007), ch. 15. Examples of such activities include “[g]athering information about  U.S. domestic groups not connected with a foreign power or international terrorism.” Ibid., ¶15-4.a(1). 125. The National Security Act of 1947 requires that the intelligence committees be kept “fully and currently informed of the intelligence activities of the United States.” 50 U.S.C. §413(a)(1). No corresponding statutory requirement exists for the armed ser vices committees. 126. 18 U.S.C. §1385 (2012). The act and its history are described in Chapter 3. 127. Church Committee, Book III, Supplementary Detailed Staff Reports, 788. See Charles Doyle, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law (Cong. Res. Serv. 95-964), June 1, 2000, 7–10. 128. See, e.g., Domestic Operational Law 2013 Handbook for Judge Advocates (DOPLAW Handbook) (Charlottesville, VA: Judge Advocate General’s Legal Center and School, 2013), 70; see generally Charles Doyle and Jennifer K. Elsea, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law (Cong. Res. Serv. R42659), Aug. 16, 2012. 129. See, e.g., Applewhite v. United States Air Force, 995 F.2d 997 (10th Cir. 1993); see Doyle and Elsea, The Posse Comitatus Act and Related Matters, 46–51. 130. DOD Instr. 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013), 15. See also DOPLAW Handbook, 81. 131. 10 U.S.C. §§331–335 (2012). The origins and application of these statutes are examined extensively in Chapters 2 and 3. 132. 408 U.S. at 5, quoting the court of appeals in Tatum v. Laird, 444 F.2d 947, 952 (D.C. Cir. 1971). 133. 408 U.S. at 5–6. 134. Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir. 1985), aff’d, 800 F.2d 812 (8th Cir. 1986) (en banc), aff’d, 485 U.S. 264 (1988), quoting United States v. Casper, 541 F.2d 1275 (8th Cir. 1976) (per curiam), cert. denied, 430 U.S. 970, 1278 (1977). The Wounded Knee incident is described at length in Chapter 3. 135. Pub. L. No. 97-86, §905(a)(1), 95 Stat. 1115 (1981) (codified as amended at 10 U.S.C. §§371–382 (2012)). It expressly denies any intent to limit existing authority for use of military personnel or equipment for civilian law enforcement. 10 U.S.C. §378. 136. 10 U.S.C. §371. 137. 5 U.S.C. §552a(a)(7), (b)(3). The draf ters of the 1981 law saw no inconsistency, however. See H.R. Rep. No. 97-71 pt. 2, at 1780–1781 (1981). 138. 10 U.S.C. §375. 139. DOPLAW Handbook, 80; DOD Instr. 3025.21, 17–18. 140. 10 U.S.C. §§372, 374. In 1989 it made the Department of Defense the lead agency for detecting and tracking the import of illegal drugs by sea or air. 10 U.S.C. §124 (2012).

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141. Elaine M. Grossman, Former JAG: Military Aid in D.C. Sniper Pursuit May Have Broken Law, Inside the Pentagon, Nov. 14, 2002 (quoting former Coast Guard Judge Advocate General Eugene Fidell), available at http://www.fas.org/sgp/news/2002 /11/itp111402 .html. 142. 10 U.S.C. §382, 18 U.S.C. §831(e) (2012). 143. 32 C.F.R. §215.4(c)(1) (2014). Claimed constitutional exceptions are analyzed in Chapter 7. 144. 50 U.S.C. §413a(a)(1) (2012). 7. SOLDIERS IN CHARGE

1. Proclamation Declaring Limited Martial Law, June 16, 1955, reproduced in B. W. Menke, Martial Law—Its Use in Case of Atomic Attack (Washington, DC: Industrial College of the Armed Forces, 1956), 81. See Matthew L. Conaty, The Atomic Midwife: The Eisenhower Administration’s Continuity-of- Government Plans and the Legacy of “Constitutional Dictatorship,” 62 Rutgers L. Rev. 627 (2010); Anthony Leviero, Mock Martial Law Invoked in Bombing Test Aftermath, N.Y. Times, June 17, 1955. 2. Conaty, The Atomic Midwife, 643. 3. The Siege (20th Century Fox, 1998). 4. This taxonomy was set forth in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 142 (1866) (Chase, C.J., concurring). 5. Sources for this chapter include Kirk L. Davies, The Imposition of Martial Law in the United States, 49 A.F. L. Rev. 67 (2000); George M. Dennison, Martial Law: The Development of a Theory of Emergency Powers, 1776–1861, 18 Am. J. Legal Hist. 52 (1974); Charles Doyle and Jennifer K. Elsea, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law (Cong. Res. Serv. R42659), Aug. 16, 2012; David Engdahl, Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders, 51 Iowa L. Rev. 1 (1971); Robert S. Rankin, When Civil Law Fails: Martial Law and Its Legal Basis in the United States (Durham, NC: Duke University Press, 1939); Jacobus tenBroek, Edward N. Barnhart, and Floyd W. Matson, Prejudice, War and the Constitution (Berkeley: University of California Press, 1954); Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 Yale L.J. 149, 174 (2004); Frederick Bernays Wiener, Martial Law Today, 49 Mil. L. Rev. 89 (1970); William Winthrop, Military Law and Precedents (Washington, DC: Government Printing Office, 2d ed., 1920). 6. The Peticion Exhibited to His Majestie by the Lords Spirituall and Temporall and Co[m]mons in this p[re]sent Parliament assembled conc[er]ning divers Rights and Liberties of the Subjects: with the Kings Majesties Royall Aunswere thereunto in full Parliament, 3 Car. (1627), reprinted in Statutes of the Realm, vol. 5, 23. 7. Edward Coke, The First Part of the Institutes of the Laws of England, vol. 1, §412, ed. Francis Hargrave and Charles Butler (Philadelphia: Robert H. Small, 1853).

NOTES TO PAG ES 199–202

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8. William Blackstone, Commentaries on the Laws of England, bk. 1 (Oxford: Clarendon Press, 1765), 400. 9. Proclamation by General Gage, declaring the Province of MassachusettsBay in a state of actual Rebellion, offering pardon to all who lay down their Arms, excepting only from the benefit of pardon Samuel Adams and John Hancock, suspending the Civil Law, and establishing Martial Law throughout the Province, June 12, 1775, available at http://lincoln.lib.niu.edu/cgi-bin/amarch/getdoc.pl?/var /lib/philologic/databases/amarch/.3723. 10. Quoted in Luther v. Borden, 48 U.S. 1, 65 (1849) (Woodbury, J., dissenting). 11. Walter Flavius McCaleb, The Aaron Burr Conspiracy (New York: Dodd, Mead and Co., 1903), 205–241. 12. Letter from Thomas Jefferson to Doctor James Brown (Oct. 27, 1808), in The Works of Thomas Jefferson, ed. Paul Leicester Ford, vol. 11 (New York: G. P. Putnam’s Sons, 1905), 52, 53. 13. Additional sources for this part of the chapter include Charles Gayarré, History of Louisiana (New York: William J. Widdleton, 1867); Philo A. Goodwin, Biography of Andrew Jackson (New York: R. Hart Towner, 1833); Jonathan Lurie, Andrew Jackson, Martial Law, Civilian Control of the Military, and American Politics: An Intriguing Amalgam, 126 Mil. L. Rev. 133 (1989); Abraham D. Sofaer, Emergency Power and the Hero of New Orleans, 2 Cardozo L. Rev. 233 (1978); Matthew Warshauer, Andrew Jackson and the Politics of Martial Law (Knoxville: University of Tennessee Press, 2006). Some of the events described here are also analyzed in Chapter 5. 14. Address of Thomas L. Butler, aide- de- camp to General Jackson (Dec. 16, 1815), in Gayarré, History of Louisiana, vol. 4, 403–404. 15. General Order, Mar. 1, 1815, in Gayarré, History of Louisiana, vol. 4, 607–608. 16. Andrew Jackson to Fellow Soldiers (Mar. 16, 1815), in Gayarré, History of Louisiana, vol. 4, 614. 17. 48 U.S. (7 How.) 1 (1849). We fi rst encountered this case in Chapter 3. 18. Ibid., 45. 19. Ibid. 20. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130 (1866). One expert today believes instead that “[a]t its core, Luther stood for the proposition that the power to impose martial law was a valid constitutional grant, one that the President, by virtue of the Militia Acts, was lawfully authorized to execute and carry out.” Vladeck, Emergency Power and the Militia Acts, 174. 21. 48 U.S. at 62 (Woodbury, J., dissenting). 22. Documents describing the entire episode may be found in Message of the President of the United States to the Senate of the United States (Aug. 4, 1856), S. Ex. Doc. No. 98, 34th Cong. (1856), available at http://www.secstate.wa.gov/history /publications_detail.aspx?p = 68; and Message from the President of the United

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States to the Senate of the United States (Feb. 9, 1857), available at http://www.sos.wa .gov/legacy/images/publications/SL _piercemessage/SL _piercemessage.pdf. See also Samuel F. Cohn, Martial Law in Washington Territory, 27 Pacific Northwest Q. 195 (Jul. 1936); Roy N. Lokken, The Martial Law Controversy in Washington Territory, 1856, 43 Pacific Northwest Q. 91 (Apr. 1952); The Troubles in Washington Territory: The Military Against the Courts, N.Y. Times, Aug. 7, 1856. 23. 8 Op. Atty. Gen. 365, 367–368 (1857). 24. Letter from Abraham Lincoln to Erastus Corning et al. (June 12, 1863), in Collected Works of Abraham Lincoln, vol. 6, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 261, 268. 25. Proclamation No. 1, 13 Stat. 730 (1862). 26. Ex parte Field, 9 F. Cas. 1 (C.C. Vt. 1862). 27. Ibid., 8. 28. Ibid. 29. Ibid. 30. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 31. Ibid., 124–125 (emphasis in original). 32. Ibid., 127 (emphasis in original). 33. Ibid. (emphasis in original). 34. See, e.g., Winthrop, Military Law and Precedents, 818. 35. Vladeck, Emergency Power and the Militia Acts, 193. 36. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 142 (1866) (Chase, C.J., concurring). 37. 92 U.S. 520 (1875). 38. Ibid., 526. 39. These cases are analyzed in Rankin, When Civil Law Fails, 65–172. 40. 212 U.S. 78 (1909). 41. Ex parte Moyer, 91 P. 738, 740 (Colo. 1905). 42. In re Moyer, 85 P. 190, 193 (Colo. 1904). 43. 212 U.S. at 83. 44. Ibid., 84. 45. Ibid., 85. 46. Sterling v. Constantin, 287 U.S. 378, 387 (1932). 47. Ibid. 48. Ibid., 397. 49. Ibid., 397–398. 50. Ibid., 400–401. In a similar vein, in a case growing out of the killing of student protestors by Ohio National Guard troops at Kent State University in 1970, the Court ruled that “a declaration of emergency by the chief executive of a State is entitled to great weight but it is not conclusive.” Scheuer v. Rhodes, 416 U.S. 232, 250 (1974). 51. The governor’s proclamation and other key documents may be found in several appendices to Ex parte White, 66 F. Supp. 982 (D. Hawaii 1944). Other

NOTES TO PAG ES 209–214

319

sources for this part of the chapter include J. Garner Anthony, Hawaii under Army Rule (Stanford, CA: Stanford University Press, 1955); Harry N. Scheiber and Jane L. Scheiber, Bayonets in Paradise: A Half- Century Retrospect on Martial Law in Hawai’i, 1941–1946, 19 U. Haw. L. Rev. 477 (1997). 52. Act of Apr. 30, 1900, ch. 339, §67, 31 Stat. 141, 153 (1900). 53. Proclamation of Lt. Gen. Walter C. Short (Dec. 7, 1941). 54. Duncan v. Kahanamoku, 327 U.S. 304, 309, 314 (1946). 55. Territory of Hawaii, Office of the Military Governor, General Orders No. 42, Dec. 24, 1941. 56. Military Law in Hawaii, N.Y. Times, Feb. 27, 1946. 57. Scheiber and Scheiber, Bayonets in Paradise, 490–497. 58. Letter from Harold L. Ickes, Secretary of the Interior, to Leslie A. Hicks, President of the Honolulu Chamber of Commerce, Jan. 9, 1943, in Anthony, Hawaii under Army Rule, 29–30. 59. Ex parte Duncan, 66 F. Supp. 976, 980–981 (D. Haw. 1944). 60. Proclamation No. 2627, Termination of Martial Law in the Territory of Hawaii, 59 Stat. 1158 (Oct. 19, 1944). 61. 327 U.S. 304, 324 (1946). 62. Ibid., 319. 63. 343 U.S. 579 (1952). 64. Ibid., 650 n.19 (Jackson, J., concurring) (citing Ex parte Milligan and Duncan v. Kahanamoku). 65. 408 U.S. 1, 17 (1972). 66. War Department, Adjutant General’s Office, Emergency Plan—White, June 8, 1923, 7–8, available at http://www.alternatewars.com/Interwar/White/EP_White.htm. 67. War Department, Military Law: Domestic Disturbances (FM 27-15) (1941), 9–10, available at https://www.hsdl.org/? view&did= 461469. 68. Army Regulation 500-50, Civil Disturbances: Emergency Employment of Army and Other Resources (April 21, 1972), ¶2–7. 69. Dep’t of the Army, Lectures on Martial Law (DA Pam. 27-11), Apr. 28, 1960, 1. The lectures are believed to have been produced by the army’s Judge Advocate General’s Legal Center and School. 70. Ibid., 10–11. 71. 32 C.F.R. §501.4 (2007). 72. Dep’t of the Army, Employment of Troops in Aid of Civil Authorities, 73 Fed. Reg. 23350-01 (Apr. 30, 2008). 73. Similarly, 10 U.S.C. §12,406 (2012) authorizes the president to call National Guard troops into federal ser vice to repel invasions, suppress insurrections, or execute the laws of the United States. 74. 32 C.F.R. §185.4(g) (2014). See also DOD Dir. 3025.18, Defense Support of Civil Authorities (DSCA) (Dec. 9, 2010, with Sept. 21, 2012 change), ¶4(g); Mary J. Bradley

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and Kathleen V. E. Reder, They Asked, But Can We Help? A Judge Advocate’s Guide to Immediate Response Authority (IRA), Army Law. (Feb. 2007), 30. 75. See Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority and Other Military Assistance to Civil Authority (MACA), Army Law. (July 1997), 3. 76. 32 C.F.R. §185.4(i) (2014). See also DOD Dir. 3025.18, ¶4(i). 77. Winthrop, The Oklahoma City Bombing, 4–5. 78. 32 C.F.R. §215.4(c)(1) (2014). These are set forth as exceptions to the Posse Comitatus Act’s ban on the use of troops for law enforcement. 79. Ibid., §215.4(c)(1)(i). 80. Ibid., §215.4(c)(1)(ii). 81. National Security Presidential Directive NSPD-51/Homeland Security Presidential Directive HSPD-20, National Continuity Policy, May 4, 2007 (with classified annexes), 2. 82. Ibid., 5. 83. Menke, Martial Law, 82. 84. Alfonso Chardy, Reagan Advisors Ran “Secret” Government, Miami Herald, July 5, 1987. See Jules Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385, 1420 (1989). 85. Deputy Secretary of Defense John J. Hamre, Remarks at a Council on Foreign Relations luncheon, Washington, DC (Sept. 23, 1999). 86. Conaty, The Atomic Midwife, 643. 8. SOLDIERS AT HOME IN THE AGE OF TERRORISM

1. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (Washington, DC: U.S. Government Printing Office, 2004), 39. 2. Ibid., 20–46. 3. Proclamation No. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks, 66 Fed. Reg. 48199 (Sept. 14, 2001). 4. Pub. L. No. 107-40, §2(a), 115 Stat. 224 (2001). 5. Office of Homeland Security, National Strategy for Homeland Security (July 16, 2002), 45. 6. Janet A. McDonnell, The Offi ce of the Under Secretary of Defense for Intelligence: The First 10 Years, 59 Studies in Intelligence 9 (Mar. 2014). 7. The Sound of Freedom: Everlasting, Inside the Pentagon, Feb. 20, 2003. 8. Dep’t of Defense, Strategy for Homeland Defense and Civil Support (June 2005), 40. 9. John R. Brinkerhoff, The Role of Federal Military Forces in Domestic Law Enforcement, Civil Support and the U.S. Army Newsletter, Dec. 2009, 63, http:// usamars.us/pdf/10 -16 _Civil _ Support _ and _the _US _ Army-Dec09.pdf.

NOTES TO PAG ES 220–226

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10. Memorandum from Deputy Assistant Attorney General John C. Yoo and Special Counsel, Department of Defense Robert J. Delahunty to Counsel to the President Alberto R. Gonzales and General Counsel, Department of Defense William J. Haynes II, Authority for Use of Military Force to Combat Terrorist Activities within the United States (Oct. 23, 2001), 2, available at http://www.justice.gov/olc /docs/memomilitaryforcecombatus10232001.pdf. 11. Ibid., 4. 12. Ibid., 1. 13. 10 U.S.C. §§333, 334 (2012). 14. Authority for Use of Military Force, 23, 25 (emphasis in original). 15. Ibid., 2. 16. Ibid., 24. 17. The current version of the regulation is 32 C.F.R. §182.6(a)(1)(ii)(A) (2014). 18. Authority for Use of Military Force, 16. 19. Hamdi v. Rumsfeld, 542 U.S. 507, 536–537 (2004). 20. Memorandum for the Files from Principal Deputy Assistant Attorney General Steven G. Bradbury, October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (Oct. 6, 2008), available at http://www .justice.gov/olc/docs/memoolcopiniondomesticusemilitaryforce10062008.pdf. 21. The 9/11 Commission Report, 336. 22. Dep’t of Homeland Security/Homeland Security Council, National Planning Scenarios (Version 21.3 Final Draft, Mar. 2006), available at http://info.publicintelli gence . net/ DHS%20 -%20National%20Planning%20Scenarios%20March%20 2006 .pdf. 23. Ibid., 4-1 to 4-8. 24. Paul McHale, Critical Mismatch: The Dangerous Gap between Rhetoric and Readiness in DOD’s Civil Support Missions, Heritage Foundation (Aug. 13, 2012), 12. 25. Brinkerhoff, The Role of Federal Military Forces, 65. 26. This definition of “critical infrastructure” is set forth at 42 U.S.C. §5195c(e) (2012). 27. Dep’t of Defense, Quadrennial Defense Review Report (Sept. 30, 2001), vi, available at www.defense.gov/pubs/qdr2001.pdf. 28. Ibid., 19. 29. Exec. Order No. 13, 228, Establishing the Offi ce of Homeland Security and the Homeland Security Counsel, 66 Fed. Reg. 51812 (Oct. 8, 2001). 30. See, e.g., McHale, Critical Mismatch, 5. 31. U.S. Northern Command, Office of History, A Short History of United States Northern Command (Dec. 31, 2013), available at http://www.northcom.mil/Portals /28/Documents/A%20Short%20History%20of%20USNORTHCOM%20(current %20as%20of%20March%202014).pdf; William Knight, Homeland Security: Roles

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and Missions for United States Northern Command (Cong. Res. Serv. RL34342), June 3, 2008. Northern Command is one of ten unified combatant commands established by the president, with the advice of the chairman of the Joint Chiefs of Staff. Each of these commands is made up of forces from various military departments, which train and equip them. Each is governed by a unified command plan produced by the Department of Defense and regularly reviewed and approved by the president. The chain of command runs from the president to the secretary of defense to the combatant commander. The president and secretary normally interact with the commander through the chair of the joint chiefs. 10 U.S.C. §§161–164 (2012); Andrew Feickert, The Unifi ed Command Plan and Combatant Commands: Background and Issues for Congress (Cong. Res. Serv. R42077), Jan. 3, 2013. 32. Under Secretary of Defense for Policy, Protected Critical Infrastructure Program (n.d.), available at http://policy.defense.gov/OUSDPOffices/ASDforHomelandDe fenseAmericasSecurityAffa/PCII/FAQ. aspx. 33. Knight, Homeland Security, 2. 34. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified as amended at 6 U.S.C. §§101–557 (2012) and scattered sections of other titles). See Harold C. Relyea, Homeland Security: Department Organization and Management—Implementation Phase (Cong. Res. Serv. RL31751), Jan. 3, 2005. 35. 6 U.S.C. §111(b)(1). 36. Ibid., §314(a)(5), (6). 37. Ibid., §314(a)(3)(A). 38. The quoted language is from Presidential Policy Directive/PPD-8, National Preparedness (Mar. 30, 2011), 1, available at http://www.dhs.gov/xlibrary/assets /presidential-policy- directive - 8 -national-preparedness.pdf. PPD-8 complements an earlier directive by President Bush, Homeland Security Presidential Directive/ HSPD-5, Management of Domestic Incidents (Feb. 28, 2003), available at http://www .dhs.gov/sites/default/fi les/publications/Homeland%20Security%20Presidential %20Directive%205.pdf. A pandemic might involve a disease affecting humans, animals, or crops. 39. Department of Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, §§601–614, 120 Stat. 1355 (2006). 40. Department of Homeland Security, National Response Framework (2d ed., May 2013), available at http://www.fema.gov/media-library- data/20130726 -1914 -25045 -1246/final _ national _ response _ framework _ 20130501.pdf. 41. Ibid., 1. 42. Ibid., 16. 43. Many of the publicly available documents may be found at http://www .fema.gov/national-preparedness-resource -library.

NOTES TO PAG ES 228–230

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44. Dep’t of Homeland Security, Response Federal Interagency Operational Plan (July 2014), C-7. 45. See Dep’t of Homeland Security, National Incident Management System (Dec. 2008), available at http://www.fema.gov/pdf/emergency/nims/NIMS _core.pdf. 46. The military command of troops deployed in support of civil authorities is spelled out in Dep’t of the Army, Defense Support of Civil Authorities (ADRP 3-28) (June 2013), 1-25 to 1-26. 47. For example, “A more detailed and operationally specific National Response Framework Catastrophic Incident Supplement (NRF- CIS) is published independently of the NRF and annexes.” Department of Homeland Security, National Response Framework, Catastrophic Incident Annex (Nov. 2008), CAT-1, available at http://www.fema.gov/pdf/emergency/nrf/nrf_CatastrophicIncident Annex .pdf. 48. Dep’t of Defense, Strategy for Homeland Defense and Defense Support of Civil Authorities (Feb. 2013), 1. 49. Ibid. 50. National Commission on Terrorism (Bremmer Commission), Countering the Changing Threat of International Terrorism (June 2000), 28. See also Fred C. Icklé, Defending the U.S. Homeland: Strategic and Legal Issues for DOD and the Armed Ser vices (Washington, DC: Center for Strategic and International Studies, 1999). 51. Ashton B. Carter, John M. Deutch, and Philip D. Zelikow, Catastrophic Terrorism: Elements of a National Policy (Oct. 1998). 52. Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (Gilmore Commission), Toward a National Strategy for Combating Terrorism (Dec. 15, 2000). 53. Plans for military support of civil authorities “shall be compatible with . . . the National Incident Management System.” DOD Dir. 3025.18, Defense Support of Civil Authorities (DSCA) (Dec. 29, 2010, with Sept. 12, 2012 change), ¶4(f). “When requested, and upon approval of the Secretary of Defense, DOD provides DSCA during domestic incidents. In the context of the [interagency response plan], DOD is considered a support agency.” Department of Homeland Security, National Incident Management System, Critical Infrastructure and Key Resources Support Annex, Jan. 2008, 34. 54. Dep’t of Defense, Strategy for Homeland Defense, 6–7. 55. Bradley Graham, War Plans Drafted to Counter Terror Attacks, Wash. Post, Aug. 8, 2005. 56. Chairman of the Joint Chiefs of Staff Instr. 3125.01B, Defense Support of Civil Authorities (DSCA) for Domestic Consequence Management (CM) Operations in Response to a Chemical, Biological, Radiological, Nuclear, or High-yield Explosive (CBRNE) Incident (Aug. 19, 2009), A-8. 57. 6 U.S.C. §313(b)(2)(A) (2012).

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58. 32 U.S.C. §§901–908 (2012). 59. Emergency Management Assistance Compact, Pub. L. No. 104-321, 110 Stat. 3877 (1996). See EMAC: Emergency Management Assistance Compact, available at http://www.emacweb.org. 60. Assisting forces may not, however, perform arrests unless specifically authorized by the assisted state to do so. Emergency Management Assistance Compact, Art. IV. 61. The National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, §1414, 110 Stat. 2422 (1996), directed the Department of Defense to develop one or more domestic terrorism rapid response teams equipped to detect, neutralize, contain, dismantle, and dispose of WMD containing chemical or biological agents. 62. 32 U.S.C. §102 (2012). 63. Dep’t of the Army, Defense Support of Civil Authorities (ADRP 3-28), 1-7 to 1-9. 64. Dep’t of Defense, Joint Publication 3-27, Homeland Defense (July 29, 2013), A-1. 65. Ibid. 66. Dep’t of Defense, Joint Publication 3-27. We omit here any discussion of planned defenses against attacks from abroad using aircraft, cruise or ballistic missiles, warships, or cyber weapons, although all are addressed by the Pentagon as aspects of homeland defense. 67. U.S. Northern Command, CONPLAN 3400, Homeland Defense (date unknown), is apparently classified “Secret.” 68. Dep’t of Defense, Joint Publication 3-27, I-6. 69. 18 U.S.C. §1385 (2012) (emphasis added). Other DOD claims of constitutional exceptions to the Posse Comitatus Act are analyzed in Chapter 7. 70. Dep’t of the Army, Defense Support of Civil Authorities (ADRP 3-28), 2-2. 71. U.S. Northern Command, CONPLAN 3501-08, Defense Support of Civil Authorities (DSCA) (May 16, 2008), available at http://www.northcom.mil/Portals /28/ Documents/ FOIA/Con%20Plan%203501- 08%20DSCA .pdf. See also DOD Dir. 3025.18, Defense Support of Civil Authorities; Dep’t of Defense, Joint Publication 3-28, Defense Support of Civil Authorities (July 31, 2013); Dep’t of the Army, Defense Support of Civil Authorities (ADRP 3-28). 72. CONPLAN 3501-08, x. 73. Ibid., 7. 74. Ibid., A-1. 75. Dep’t of Defense, Joint Publication 3-41, Chemical, Biological, Radiological, and Nuclear Consequence Management (June 21, 2012). 76. This large force includes active- duty, Guard, and Reserve members from each ser vice branch, as well as civilian contractors. Joint Task Force Civil Support, JTFCS (n.d.), available at http://www.jtfcs.northcom.mil/JTFCS.aspx. 77. NORAD- USNORTHCOM, CBRNE Overview (Mar. 3, 2009), 17, available at http://info.publicintelligence.net/USNORTHCOM- Overview.pdf.

NOTES TO PAG ES 234–237

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78. Dep’t of Defense Manual 31150.08, Nuclear Weapon Accident Response Procedures (NARP) (Aug. 22, 2013). U.S. Northern Command, FUNCPLAN 3505, Nuclear Weapon Accident Response Plan (date unknown), has not been made available to the public. 79. DOD Dir. 3150.08, DOD Response to Nuclear and Radiological Incidents (Jan. 20, 2010). 80. See U.S. Northern Command, CONPLAN 3591-09, USNORTHCOM Response to Pandemic Influenza (Aug. 13, 2009) (partly redacted). 81. Dep’t of Defense, Smallpox Response Plan (Sept. 29, 2002). 82. 18 U.S.C. §831(d) (2012). 83. Dep’t of Defense Instr. 3025.20, Defense Support of Special Events (Apr. 6, 2012). 84. Robert Pear, More Controllers from the Military Called Up by U.S., N.Y. Times, Aug. 8, 1981. 85. Dep’t of the Army, FM 3-19.15, Civil Disturbance Operations (Apr. 18, 2005), iv. 86. DOPLAW Handbook, 98. 87. GARDEN PLOT is described in Chapter 3. 88. DOPLAW Handbook, 98 (presumably referring to U.S. Northern Command, CONPLAN 3502, Civil Disturbance Operations (date unknown)). 89. Dep’t of the Army, FM 3-19.15. General instructions may be found in DOPLAW Handbook, 89–103. 90. Dep’t of the Army, FM 3-19.15, B-11. 91. DOPLAW Handbook, 95–96. 92. See DOD Instr. 3025.21, Defense Support of Civilian Law Enforcement Agencies (Feb. 27, 2013). 93. Ibid., 15. 94. The rules are outlined in DOPLAW Handbook, 175–190; Dep’t of Defense, Joint Publication 3-28, B-1 to B-4. More detailed guidance is set forth in Chairman of the Joint Chiefs of Staff Instr. 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces (June 13, 2005), reprinted in Judge Advocate General’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook 84 (2013). See generally Daniel J. Sennott, Interpreting Recent Changes to the Standing Rules for the Use of Force, 2007 Army Law. (Nov. 2007), 52. 95. DOPLAW Handbook, 191–206. 96. Ibid., 182 (quoting Instr. 3121.01B). 97. Donna Miles, Ardent Sentry Preps Northcom, First Responders for Disasters, American Forces Press Ser vice, May 9, 2013, available at http://www.defense.gov /News/NewsArticle. aspx?ID =119981. 98. See, e.g., FEMA, National Exercise Program (NEP)— Capstone Exercise 2014 (July 24, 2014), available at http://www.fema.gov/national- exercise -program-nep - capstone - exercise -2014.

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99. See Bradley Graham, War Plans Drafted to Counter Terror Attacks, Wash. Post, Aug. 8, 2005. 100. U.S. Northern Command, OPLAN 2002-05: Homeland Defense Plan (2005); U.S. Northern Command, CONPLAN 0500-03, Military Assistance to Domestic Consequence Management Operations in Response to a Chemical, Biological, Radiological, Nuclear or High Yield Explosive (CBRNE) Situation or Event (Mar. 2003). Later versions of both documents may exist. 101. U.S. Const. art. I, §8, para. 15, art. II, §2, and art. IV, §4. 102. Homeland Security Act of 2002, 6 U.S.C. §466(a)(5) (2012). 103. Both claims of inherent authority are analyzed in Chapter 7. 104. See Graham, War Plans Drafted (quoting a senior NORTHCOM lawyer). This claim was disputed most famously by Justice Jackson in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646–653 (1952). 105. Federal Emergency Management Agency, Federal Interagency Operational Plans (Aug. 12, 2014), available at http://www.fema.gov/federal-interagency- oper ational-plans. 106. Ibid. The fi rst of these has not been made available to the public; the second has not been completed. The other three are relevant here, because each contemplates a prominent role for the military. 107. Dep’t of Homeland Security, Response Federal Interagency Operational Plan (July 2014), 4. 108. Ibid., 1. 109. Ibid., 16. 110. Ibid. (emphasis added). 111. Dep’t of Homeland Security, 2014 Quadrennial Homeland Security Review (June 18, 2014), 14. 112. Dep’t of the Army, TRADOC Pam 525-3-1, United States Army Operating Concept (Aug. 19, 2010), 28. 113. Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non- Citizens in the War against Terrorism, 66 Fed. Reg. 57,833, §3(a) (Nov. 13, 2001). 114. Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to the Attorney General, Determination of Enemy Belligerency and Military Detention (June 8, 2002). 115. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 116. See Declaration of Michael H. Mobbs, July 24, 2002, available at http:// www.cbsnews.com/htdocs/pdf/hamdimobbs2 .pdf. 117. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). 118. Ibid., 516. 119. Ibid., 518. 120. Ibid., 522. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), is described in Chapters 4 and 5.

NOTES TO PAG ES 243–248

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121. 542 U.S. at 536. Justice Scalia, dissenting, shared this view: “Although [the Suspension Clause] does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I.” Ibid., 562. 122. Ibid., 568 (Scalia, J., dissenting). 123. Ibid., 533. 124. See Motion to Stay Proceedings, Hamdi v. Rumsfeld, No. 2:02CV439 (E.D. Va. Sept. 24, 2004), available at http://notablecases.vaed.uscourts.gov/2:02- cv - 00439/docs/70223/0.pdf. His release was reminiscent of the government’s freeing of civilians convicted by military tribunals in Hawaii during World War II, in order to prevent Supreme Court review of their cases. 125. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003). 126. Rumsfeld v. Padilla, 542 U.S. 426 (2004). 127. Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), cert. denied, 547 U.S. 1062 (2006). 128. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc), vacated and remanded sub nom. Al-Marri v. Spagone, 555 U.S. 1220 (2009). 129. 534 F.3d at 217–218 (Motz, Circuit Judge, concurring in the judgment). 130. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3317. 131. See, e.g., Jack Goldsmith and Eric A. Posner, Op-Ed., A Better Way on Detainees, Wash. Post, Aug. 4, 2006; John P. McLoughlin, Gregory P. Noone, and Diana C. Noone, Security Detention, Terrorism and the Prevention Imperative, 40 Case W. Res. J. Int’l L. 463 (2009); Detention of Enemy Combatants Act, H.R. 1076, 109th Cong. (2005). 132. Attorney General Announces Dirty Bomb Arrest, CNN.com, June 10, 2002, available at http://transcripts.cnn.com/TRANSCRIPTS/0206/10/ bn.06.html. 133. Lebron v. Rumsfeld, 670 F.3d 540, 549, 552–556 (4th Cir. 2012), cert. denied, 132 S. Ct. 2751 (2012). 134. Ibid., 670 F.3d at 556–560; Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012). 135. See Jennifer K. Elsea and Michael John Garcia, War time Detention Provisions in Recent Defense Authorization Legislation (Cong. Res. Serv. R42143), June 23, 2014, 7–11. 136. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, §1021(c)(1), 125 Stat. 1298, 1562 (2011). 137. Ibid., §1021(b). 138. Ibid., §1022(a)(2). 139. Ibid., §1022(a)(1), (4). 140. These doubts were raised by the Second Circuit decision in the Padilla case and by statements of various justices in the Supreme Court’s Hamdi decision. See Jennifer K. Elsea, Detention of U.S. Persons as Enemy Belligerents (Cong. Res. Serv.

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R42337), Jan. 23, 2014, 2–7. The 2011 statute declares, “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Pub. L. No. 112-81, §1021(e). 141. Statement by the President on H.R. 1540, Dec. 31, 2011. 142. Presidential Policy Directive/PPD-14, Procedures Implementing Section 1022 of the National Defense Authorization Act for Fiscal Year (FY) 2012, Feb. 28, 2012. 143. Hedges v. Obama, 890 F. Supp. 2d 424 (S.D.N.Y. 2012). The difficulty in applying such standards, or any others advanced so far, and doubts about their constitutional sufficiency, are spelled out in Robert M. Chesney, Who May Be Held? Military Detention through the Habeas Lens, 52 B.C. L. Rev. 769 (2011). 144. Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013), cert. denied, 134 S. Ct. 1936 (2014). 145. 553 U.S. 723 (2008). 146. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, §1029, 126 Stat. 1632, 1917 (2013). See Elsea and Garcia, War time Detention Provisions, 40. 147. Two notable exceptions, both growing out of World War II, are In re Yamashita, 327 U.S. 1 (1946), and Johnson v. Eisentrager, 339 U.S. 763 (1950). Both involved enemy soldiers. 148. Cheney: Gitmo Holds “Worst of the Worst,” Associated Press, June 1, 2009. 149. Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non- Citizens in the War against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). 150. Legality of the Use of Military Commissions to Try Terrorists, 25 Op. O.L.C. 238 (Nov. 6, 2001). 151. 548 U.S. 557 (2006). 152. Treaty Protecting War Victims and Prisoners of War, Aug. 13, 1955, 6 U.S.T. 3316. Common Article 3 applies to conflicts “not of an international character,” and the Court found the United States and Al Qaeda to be engaged in such a conflict (interpreting the phrase to mean “not between two nation-states”). 153. Hamdan, 548 U.S. at 638 (Kennedy, J., concurring). 154. Military Commissions Act of 2006, Pub. L. No. 109-366, §3, 120 Stat. 2600. 155. Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190 (codified at 10 U.S.C. §§948a–950t (2012)). 156. The funding restrictions appeared in various forms (see, e.g., Ike Skelton National Defense Authorization Act for FY 2011, Pub. L. No. 111-383, §1032) and remained in effect at least through 2015. Conference committees for the 2012 and 2013 NDAAs eliminated a provision adopted by the House that would have required that a foreign national alleged to have engaged in terrorism against a U.S. target be charged before a military commission rather than in federal court. Elsea and Garcia, War time Detention Provisions, 39.

NOTES TO PAG ES 251–254

329

157. See Laura K. Donohue, Terrorism Trials in Article III Courts, 38 Harv. J. L. & Pub. Pol’y 105 (2015). 158. Military Order of November 13, 2001, §4(c)(1). 159. Quirin, 317 U.S. at 37. 160. Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc) (remanding this question, among others, to a lower court). 161. Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). 162. The 9/11 Commission Report, 407–415. 163. Pub. L. No. 108-458, 118 Stat. 3638 (2004). 164. See Implications for the Department of Defense and Military Operations of Proposals to Reorganize the United States Intelligence Community: Hearing Before the S. Comm. on Armed Ser vices, 108th Cong. 91 (Aug. 16–17, 2004) (statement of Donald H. Rumsfeld); Richard A. Best Jr., Intelligence Community Reorganization: Potential Effects on DOD Intelligence Agencies (Cong. Res. Serv. RL32515), Feb. 11, 2005; William T. Wilburn, The Under Secretary of Defense for Intelligence: Posturing Authorities to Complement Intelligence Community Reform (June 10, 2011) (unpublished master’s thesis, U.S. Army Command and General Staff College). 165. Robert M. Gates, Op-Ed., Racing to Ruin the C.I.A., N.Y. Times, June 8, 2004. Gates had been CIA director and would soon become secretary of defense. 166. Pub. L. No. 107-314, §901(a)(2), 116 Stat. 2619 (2002) (codified at 10 U.S.C. §137 (2012)). See DOD Dir. 5143.01, Under Secretary of Defense for Intelligence (USD(I)) (Nov. 23, 2005); DOD Dir. 5205.12, Military Intelligence Program (Nov. 14, 2008). 167. Memorandum from Donald Rumsfeld to George Tenet, JITF- CT, Sept. 26, 2001. 168. Exec. Order No. 13,354, National Counterterrorism Center, 69 Fed. Reg. 53589 (Aug. 27, 2004); Pub. L. No. 108-458, §1021, 118 Stat. 3638 (2004) (codified as amended at 50 U.S.C. §3056 (2012). See generally Richard A. Best Jr., The National Counterterrorism Center (NCTC)—Responsibilities and Potential Congressional Concerns (Cong. Res. Serv. R41022), Dec. 19, 2011; Office of the Director of National Security, National Counterterrorism Center (n.d.), available at http://www.nctc.gov. 169. 50 U.S.C. §3056(d)(1), (d)(6) (2012). 170. Dep’t of Defense, Strategy for Homeland Defense and Civil Support (June 2005), 20–21. 171. Karen DeYoung, A Fight Against Terrorism—and Disorganization, Wash. Post, Aug. 9, 2006. 172. Dep’t of Defense, Strategy for Homeland Defense and Defense Support of Civil Authorities (Feb. 2013), 12. 173. Air Force General Ralph Eberhart, PBS Online NewsHour, Sept. 27, 2002, available at http://911research.wtc7.net/cache/post911/aviation/PBS _ eberhart .html.

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174. Robert Block and Gary Fields, Is Military Creeping into Domestic Spying and Enforcement?, Wall St. J., Mar. 9, 2004. 175. Devin Fisher, USNORTHCOM Vision Focuses on Defending Homeland, USNORTHCOM Public Affairs, Aug. 4, 2005. 176. See, e.g., Jeffrey Rosen, Total Information Awareness, N.Y. Times, Dec. 15, 2002. 177. Carl Hulse, Congress Shuts Pentagon Unit over Privacy, N.Y. Times, Sept. 26, 2003. 178. DOD Dir. 5105.67, Department of Defense Counterintelligence Field Activity (DoD CIFA) (Feb. 19, 2002), ¶¶3, 4.2, 6.2.17. CIFA’s history and functions are described in Jeffrey Richelson, ed., The Pentagon’s Counterspies: The Counterintelligence Field Activity (CIFA) (Washington, DC: National Security Archive, Sept. 17, 2007), available at http://www2 .gwu.edu/~nsarchiv/NSAEBB/NSAEBB230; Michael J. Woods and William King, An Assessment of the Evolution and Oversight of Defense Counterintelligence Activities, 3 J. Nat’l Security L. & Pol’y 169, 208–216 (2009). 179. Block and Fields, Is Military Creeping into Domestic Spying and Enforcement? 180. NBC News, Is the Pentagon Spying on Americans?, Dec. 14, 2005. 181. 152 Cong. Rec. S1338 (daily ed. Feb. 15, 2006) (statement of Sen. Robert Byrd). 182. Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (Robb-Silberman Commission) (Mar. 31, 2005), 494. 183. See Dep’t of Defense News Release, DOD Activates Defense Counterintelligence and Human Intelligence Center (Aug. 4, 2008); Memorandum from the Deputy Secretary of Defense, Establishment of the Defense Counterintelligence and Human Intelligence Center (July 22, 2008), available at http://www.fas.org/irp/doddir/dod /dchc.pdf. 184. See Memorandum from Deputy Secretary of Defense Paul Wolfowitz to Secretaries of the Military Departments et al., Collection, Reporting, and Analysis of Terrorist Threats to DoD within the United States (May 2, 2003), available at http:// www2 .gwu.edu/~nsarchiv/NSAEBB/NSAEBB230/04.pdf. 185. Ibid. The ninety- day limit on retention is set forth in DOD Dir. 5200.27, Acquisition of Information Concerning Persons and Organizations Not Affiliated with the Department of Defense, §6.4 (Jan. 7, 1980). 186. See, e.g., Walter Pincus, Protestors Found in Database, Wash. Post., Jan. 17, 2007; Samantha Henig, Pentagon Surveillance of Student Groups as Security Threats Extended to Monitoring E- Mail, Reports Show, Chron. of Higher Education, July 6, 2006; Dep’t of Defense, Inspector General, Threat and Local Observation Notice (TALON) Report Program (June 27, 2007), ii. 187. Examples of TALON reports may be found at National Security Archive, The Pentagon’s Counterspies: The Counterintelligence Field Activity (CIFA) (Sept. 17, 2007), available at http://www2 .gwu.edu/~nsarchiv/NSAEBB/NSAEBB230/#doc4. 188. Threat and Local Observation Notice (TALON) Report Program, 14.

NOTES TO PAG ES 257–259

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189. See Joint Staff, Dep’t of Defense, Notice to Add a System of Records, 68 Fed. Reg. 55,593 (Sept. 26, 2003); Cheryl Lilie, Multiforce Protection in a Portal, Signal Online, Oct. 2004, available at http://www.afcea.org/content/?q = node/418. 190. U.S. Northern Command News Release, JPEN Shares Antiterrorism Information across Nation (Mar. 3, 2004), available at http://www.northcom.mil/Newsroom /tabid/3104/Article/2000/jpen-shares-antiterrorism-information-across-nation . aspx. 191. See generally Office of Inspector General, Dep’t of Homeland Security, Homeland Security Information Network Improvements and Challenges (June 2013). 192. Eric Lichtblau and Mark Mazzetti, Military Expands Intelligence Role in U.S., N.Y. Times, Jan. 14, 2007. The letters are authorized by 12 U.S.C. §3414 (2012), 15 U.S.C. §1681v (2012), and 50 U.S.C. §3162 (2012). See generally DOD Instr. 5400.15, Guidance on Obtaining Information from Financial Institutions (Dec. 2, 2004, with July 3, 2007 change); Counterintelligence Field Activity, Action Memo: Program Review on DoD Use of National Security Letters (NSLs) (Mar. 1, 2007), available at https://archive.org/download/NationalSecurityLetters/07F0792 _concern _ natsec let.pdf. 193. Examples of letters issued by the army may be seen at https://archive.org /download/NationalSecurityLetters/07-F- 0792INSCOM .pdf. 194. After lengthy litigation, Congress changed the law to allow a recipient to challenge a letter in court. USA Patriot Improvement and Reauthorization Act of 2005, §§115–116, Pub. L. No. 109-177, 120 Stat. 192 (2006). One court has held the nondisclosure and judicial review provisions of the amended law unconstitutional. In re National Security Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013). 195. DOD Instr. 5400.15, 5–7. 196. Mark Mazzetti and Eric Lichtblau, Pentagon Review Faults Bank Record Demands, N.Y. Times, Oct. 14, 2007. 197. See DOD Dir. 5105.60, National Geospatial- Intelligence Agency (NGA) (July 29, 2009); Army Dir. 2012-02, Supplemental Policy for Operations of Unmanned Aircraft Systems in the National Airspace System (Jan. 13, 2012); Dep’t of the Army, Airspace Control (FM 3-52) (Feb. 8, 2013). Legal authorities are reviewed in Dawn M. K. Zoldi, Protecting Security and Privacy: an Analytical Framework for Airborne Domestic Imagery, 70 A.F. L. Rev. 1 (2013). 198. DOPLAW Handbook, 168. 199. See W. J. Hennigan, Pentagon Working with FAA to Open U.S. Airspace to Combat Drones, L.A. Times, Feb. 13, 2012. 200. See Robert Block, U.S. to Expand Domestic Use of Spy Satellites, Wall St. J., Aug. 15, 2007. 201. Eric Schmitt, Liberties Advocates Fear Abuse of Satellite Images, N.Y. Times, Aug. 17, 2007; Dep’t of Homeland Security, Press Release, Secretary Napolitano Announces Decision to End National Applications Offi ce Program (June 23, 2009).

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202. See Patrick Korody, Note, Satellite Surveillance within U.S. Borders, 65 Ohio St. L.J. 1627 (2004). 203. Dep’t of Defense, Quadrennial Defense Review 2014 (Mar. 4, 2014). 204. See Glenn J. Voelz, Managing the Private Spies: The Use of Commercial Augmentation for Intelligence Operations (Washington, DC: Joint Military Intelligence College, June 2006), 5–11, available at http://www.fas.org/irp/eprint/voelz.pdf. 205. Walter Pincus, Lawmakers Want More Data on Contracting Out Intelligence, Wash. Post, May 7, 2006. 206. The quoted language appears in §5(2) of the Federal Activities Inventory Reform (FAIR) Act of 1998. Pub. L. No. 105-270, 112 Stat. 2382, 2384–2385 (1998) (codified at 31 U.S.C. §501 note (2012)); OMB Circular A-76 Revised, Perfor mance of Commercial Activities, May 29, 2003, at Attachment A, ¶B.1.a. 207. Voelz, Managing the Private Spies, 23. 208. The 9/11 Commission Report, 400. 209. Exec. Order No. 12,333, as amended, §1.1(g). See also §1.10(f), directing the Secretary of Defense to “[p]rovide for the timely transmission of critical intelligence . . . within the United States Government.” 210. Dep’t of Defense, Strategy for Homeland Defense and Civil Support, 23. 211. DOD Dir. 5240.01, DOD Intelligence Activities (Aug. 27, 2007), ¶4.5. 212. Homeland Security Act of 2002, Pub. L. No. 107-296, §891(c), 116 Stat. 2135, 2252 (2002) (codified at 6 U.S.C. §481(c) (2012)). 213. Dep’t of Homeland Security, Offi ce of Intelligence and Analysis (Mar. 2, 2011). 214. Pub. L. No. 108-458, 118 Stat. 3638 (2004) (codified as amended at 6 U.S.C. §§101–557 (2012) and scattered sections of other titles). 215. 6 U.S.C. §485(b)(2). 216. Dep’t of Defense, Strategy for Homeland Defense and Civil Support, 23. See Exec. Order No. 13,388, Further Strengthening the Sharing of Terrorism Information to Protect Americans, 70 Fed. Reg. 62,023 (Oct. 25, 2005), implementing the IRTPA mandate. Overall national planning for information sharing is described in National Strategy for Information Sharing: Successes and Challenges in Improving Terrorism- Related Information Sharing (Oct. 2007). 217. Dep’t of Defense, Strategy for Homeland Defense and Defense Support of Civil Authorities, 22. 218. 6 U.S.C. §485(b)(1)(A). 219. 5 U.S.C. §552a(a)(7), (b)(3). The operation of the Privacy Act is described in Chapter 6. 220. DOD Dir. 5400.11, DoD Privacy Program, ¶3(k)(1) (Oct. 29, 2014). 221. DOD Reg. 5400.11-R, Department of Defense Privacy Program, ¶AP3.14 (May 14, 2007). 222. 5 U.S.C. §552a(b)(7).

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223. See Daniel J. Sennott, How the Posse Comitatus Act Restricts Department of Defense Information Sharing, Nov. 6, 2010 (unpublished master’s thesis, U.S. Army Command and General Staff College). 224. See Nathan Sales, Mending Walls: Information Sharing after the USA Patriot Act, 88 Tex. L. Rev. 1795, 1824–1828 (2010). 225. Sennott, How the Posse Comitatus Act Restricts Department of Defense Information Sharing, 105. 226. Sales, Mending Walls, 1798. 227. See generally John Rollins, Fusion Centers: Issues and Options for Congress (Cong. Res. Serv. RL34070), Jan. 18, 2008; American Civil Liberties Union, What’s Wrong with Fusion Centers? (Dec. 2007), available at http://aclu.org/pdfs/privacy/fusion center_ 20071212 .pdf. 228. See, e.g., Richard A. Posner, Op-Ed., Our Domestic Intelligence Crisis, Wash. Post, Dec. 21, 2005 (arguing that the Department of Defense should fi ll “gaps in our defenses against terrorism”). 229. Woods and King, An Assessment of the Evolution and Oversight of Defense Counterintelligence, 217. 230. U.S. Northern Command, CONPLAN 3501-08, 13. 231. Center for Law and Military Operations, Domestic Operational Law (DOPLAW) Handbook for Judge Advocates, vol. 1 (July 18, 2006), 182–183. 232. Kevin W. Kapitan, An Introduction to Intelligence Oversight and Sensitive Information: The Department of Defense Rules for Protecting Americans’ Information and Privacy, Army Law. (Apr. 2013), 3, 18. 233. McHale, Critical Mismatch, 1–2. 234. Ibid., 2. 9. THE MILITARY IN TWENTY- FIRST- CENTURY AMERICA

1. National Intelligence Council, Global Trends 2030: An Alternative World (Dec. 2012). 2. In 2012, the Defense Threat Reduction Agency wrote that “surprise from biological and chemical threats is inevitable.” Defense Threat Reduction Agency, RD Enterprise CB Directorate Strategic Vision (2012), 16. 3. Sources for this chapter include Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge, MA: Harvard University Press, 2010); Bipartisan Policy Center, Cybersecurity and the North American Electric Grid: New Policy Approaches to Address an Evolving Threat (Washington, DC: U.S. Government Printing Office, 2014); Joel Brenner, America the Vulnerable: Inside the New Threat Matrix of Digital Espionage, Crime, and Warfare (New York: Penguin Press, 2011); Domestic Operational Law Handbook 2013 for Judge Advocates (Charlottesville, VA: Judge Advocate

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General’s Legal Center and School, 2013); Lynn E. Davis et al., Army Forces for Homeland Security (Santa Monica, CA: RAND Corporation, 2004); Charles J. Dunlap, The Police-ization of the Military, 27 J. Political and Military Sociology 397 (1999); Kathleen S. Swindiman and Nancy Lee Jones, The 2009 Influenza A (H1N1) Outbreak: Selected Legal Issues (Cong. Res. Serv. R40560), May 4, 2009; Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable, 2d ed. (New York: Random House, 2010). 4.  U.S. Const. art. II, §1. 5. Dep’t of Defense, Quadrennial Defense Review 2014 (Mar. 2014). 6. The White House, National Security Strategy 2015 (Feb. 2015). 7. Dep’t of Defense, Strategy for Homeland Defense and Defense Support of Civil Authorities (Feb. 2013). 8. Dep’t of Homeland Security, National Level Exercise (NLE) (May 2012). 9. Exec. Order No. 13,636, Improving Critical Infrastructure Cybersecurity, 78 Fed. Reg. 11379 (Feb. 19, 2013); Dep’t of Homeland Security, National Cyber Incident Response Plan, Interim Version (Sept. 2010). 10. Dep’t of the Army, ADP 3-28, Defense Support of Civil Authorities (July 26, 2012), 5. 11. Dep’t of Defense, Joint Publication 3-27, Homeland Defense (July 29, 2013), A-1. 12. Dep’t of the Army, Defense Support of Civil Authorities (ADRP 3-28) (June 2013), v. 13. 14 U.S.C. §712 (2012). 14. 10 U.S.C. §315 (2012). 15. 32 U.S.C. §325 (2012). 16. National Defense Authorization Act of 2012, Pub. L. No. 112-81, §515(c), 125 Stat. 1298, 1395 (2011). 17. In the first of these exercises, in 2000, plague was notionally released in Denver, with chaotic consequences. See Thomas V. Inglesby, Rita Grossman, and Tara O’Toole, A Plague on Your City: Observations from TOPOFF, 32 Clinical Infectious Diseases 436 (2001). 18. See James Balcius and Bryan A. Liang, Public Health Law & Military Medical Assets: Legal Issues in Federalizing National Guard Personnel, 18 Ann. Health L. 35 (2009). 19. Richard H. Kohn, The Erosion of Civilian Control of the Military in the United States Today, 55 Naval War College Rev. 8, 22 (Summer 2002); see also Thomas E. Ricks, Making the Corps (New York: Scribner, 1997); Andrew J. Bacevich, Whose Army?, 140 Daedalus 122 (Summer 2011). 20. Bill Wasik et al., Coup d’Etat: Military Thinkers Discuss the Unthinkable, Harper’s Magazine, Apr. 2006; see also Ackerman, The Decline and Fall of the American

NOTES TO PAG ES 274–275

335

Republic, 45–61; Bacevich, Whose Army?, 132–133 (the “American military belongs to . . . civilian leaders.”). 21. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008). 22. See Diane H. Mazur, A More Perfect Military: How the Constitution Can Make Our Military Stronger (New York: Oxford University Press, 2010). 23. Some proposed reforms are analyzed in Jessica DeBianchi, Military Law: Winds of Change—Examining the Present- Day Propriety of the Posse Comitatus Act After Hurricane Katrina, 17 U. Fla. J. L. & Pub. Pol’y 473 (2006); Joseph Florczak, A Soldier’s- Eye View of the Homefront: Examining Domestic Military Laws Through the Lens of Military Doctrine, 87 Notre Dame L. Rev. 2191 (2012); Sean J. Kealy, Reexamining the Posse Comitatus Act: Toward a Right to Civil Law Enforcement, 21 Yale L. & Pol’y Rev. 383 (2003); John R. Longley III, Military Purpose Act: An Alternative to the Posse Comitatus Act—Accomplishing Congress’s Intent with Clear Statutory Language, 49 Ariz. L. Rev. 717 (2007); Sean McGrane, Katrina, Federalism, and Military Law Enforcement: A New Exception to the Posse Comitatus Act, 108 Mich. L. Rev. 1309 (2010).

Acknowledgments

This book grew out of our collaboration over a quarter century on several projects that required our deeper understanding of the legal aspects of the domestic role of the American military. The more questions we asked of current and former members of the defense and intelligence communities, the more we realized that the legal architecture for the military’s involvement in domestic affairs was neither as clear nor as fully formed as it needs to be. We kept asking questions and began writing. Along the way, the coauthors of our national security law and counterterrorism law texts did more than they know to shape our thinking and correct our early mistakes. Peter Raven-Hansen helped us see the overarching themes that animate our book, and Steve Vladeck gave us generous and constantly helpful feedback, especially on our chapter on military courts. We are deeply in their debt. As the book took shape, we benefited tremendously from insightful reviews of select chapters by leading experts in their fields, including Susan  S. Gibson, Judith K. Boyd, David Graham, Elizabeth Rindskopf Parker, and William Wiecek. We also thank the anonymous reviewers who commented on the draft manuscript for Harvard University Press, and a succession of law students who provided research support along the way, including Egon Donnarumma, Jessica Trombetta, Erin Lafayette, Elizabeth Platt, Jennifer Camillo, Brian Kraemer, and Haley Parsons. Special thanks are due to the marvelous team at Harvard University Press. Elizabeth Knoll showed early enthusiasm for our project and provided sage advice on the first chapters. Elizabeth’s successor, Thomas LeBien, masterfully helped us steer our book toward publication, with dedication and grace. The production teams

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at Harvard and at Westchester Publishing Ser vices, including Amanda Peery and John Donohue, did impeccable work and managed somehow to meet all the deadlines. We would also like to express our gratitude to dozens of current and former members of the defense and intelligence communities who have shared their expertise, insights, criticisms, and frustrations with us over the many years that we have been students of the domestic role of the military. Finally, Steve Dycus would like to thank Elizabeth R. Dycus, without whose patience and good humor this work could not have been completed. Bill Banks knows that he could not have written this book without Cheryl Ficarra, who always seemed to know when to look over his shoulder and ask about progress and when instead to clear out and let him suffer through those tough passages on his own.

Index

Adams, John, 13, 52 Adams, Samuel, 5, 24, 25 Agnew, Spiro, 97 Alien Enemy Act (1798), 115, 120 Al-Marri, Ali Saleh Kahlah, 244–245 American Civil Liberties Union (ACLU), 124–125, 171, 172, 179–183 American Federation of Labor, 171 American Protective League, 170 André, John, 137 Ardent Sentry exercises, 237 Arnold, Benedict, 137, 139, 167 Articles of Confederation, 28–30, 31, 32, 33, 36, 136–137 Articles of War, 131, 136, 137, 141, 153–157, 165 Ashcroft, John, 246 Askin, Frank, 179 Attucks, Crispus, 14 Authorization for the Use of Military Force (AUMF): military detention after 9/11 and, 242, 244, 247–248; Office of

Legal Counsel’s opinion on, 220–222; passage of, 219 Averette, Raymond G., 163 Bacevich, Andrew, 273–274 Baker, Lafayette C., 168, 169 Baker, Newton D., 78 Barbour, Haley, 106 Barnett, Ross R., 84, 174 Biddle, Francis, 121–122, 123, 155–156 Bill of Rights, in Great Britain, 19, 27 Bill of Rights, U.S. See Constitution, U.S. Black, Hugo, 155 Blackstone, William, 19–20, 27, 198–199 Black swan event: need to anticipate and plan for future, 267, 268–269; 9/11 attacks as, 266 Blanco, Kathleen, 105–106 Booth, John Wilkes, 150 Border protection, law enforcement and, 57–58 Boston Massacre, 13–14, 24 Boumediene v. Bush, 248–249

340 Bradbury, Steven G., 222–223 Bradley, Tom, 92 Branch Davidians, 103–104 Brownell, Herbert, 82, 83 Brown, John, 62 Bureau of Alcohol, Tobacco, and Firearms (ATF), 103–104 Burns, Anthony, 64–66 Burnside, Ambrose, 145 Burr, Aaron, 52–53, 199–200 Bush, George H. W., 92 Bush, George W.: Hurricane Katrina and, 105–107; post-9/11 military intelligence and detentions and, 2, 219, 221, 223, 225, 241, 243, 245–247, 274; military commissions and, 249–251 Cadwalader, George, 117 California gold rush, peacekeeping and law enforcement and, 59–60 Calling Forth Act (1792), 43–44, 50–52, 63 Calling Forth Act (1795), 44–45, 52–54, 56–60, 63, 69, 72, 74; amended as “Lincoln Law,” 67–68, 77 Catholic Relief Act, in Great Britain, 20–21 Central Intelligence Agency (CIA), 173, 176, 186, 255 Charles I, king of England, 16–18, 198 Charles II, king of England, 18 Chase, Salmon P., 149, 206 Chemical, biological, radiological, or nuclear (CBRN) units, 233–234 Cheney, Dick, 249, 258 Church, Frank, and congressional committee of, 186–188, 190, 191 Civilian control, of British military, 19–21 Civilian control, of U.S. military, 5, 7, 14–15, 17–18, 27, 29, 34–35; need for reforms of, 11, 267–268, 273–274 Civil Rights Act (1866), 69, 71, 73 Civil rights movement: intelligence collection about civilians during,

IND E X

174–175; peacekeeping and law enforcement and, 82–85 Civil War: intelligence collection about civilians during, 168–169; martial law and, 203–207; military commissions, 143–150; peacekeeping and law enforcement during, 67–69; peacekeeping and law enforcement prior to, 60–66; suspension of habeas corpus during, 113, 115–120; Vallandigham and, 119–120, 144–147, 148. See also Milligan, Lambdin P. Clark, Ramsey, 87, 95 Clay, Henry, 61 Cleveland, Grover, 76–77 Clinton, Bill, 105 Coast Guard: Posse Comitatus Act and, 103, 110; reform proposals for, 267, 271–272; roles at time of 9/11 attacks, 219–220 Coke, Edward, 198 Cold War, intelligence collection about civilians during, 173–175 Commission on War time Relocation and Internment of Civilians (1980), 128 Congress: intelligence gathering about civilians and, 183–189; military detentions and, 247–248; military justice and, 137, 141, 142, 151–152, 162–163. See also Civilian control, of U.S. military; specifi c legislation CONPLANs, 233–234, 235, 269 Constitution, U.S.: clarifications in Bill of Rights, 42–43; Congress and “calling out” of state militias, 43–45; domestic security and, 33–40, 45–46, 274–275; habeas corpus and, 116, 117; incomplete guidance about military as domestic peacekeepers, 47–49; military and rule of law, 4; military justice and, 133, 135, 138–139, 145, 148–149, 154, 163; ratification debates, 40–42; separation

I NDEX

of powers in, 32–33. See also Civilian control, of U.S. military Constitution, U.S., amendments to: First, 145, 167, 179–182, 184, 188, 210, 221–222, 248, 274; Second, 42; Third, 42; Fourth, 23, 101–102, 118, 124, 183, 188–189, 221–222, 263, 274; Fifth, 42, 118, 124, 139, 242, 248, 274; Sixth, 124, 135; Eighth, 124; Thirteenth, 124; Fourteenth, 70, 207; Fifteenth, 71 Constitutional Convention, Philadelphia (1787), 5, 27, 31–40 Continental Congress, 24–31, 114 Continuity of government plans, 215 Contractors, and military intelligence tasks, 260–261 Counter Intelligence Corps (CIC), 172 Counterintelligence Field Activity (CIFA), 255–256, 257, 258, 260 Courts-martial. See Tribunals and trials, civilians and Cushing, Caleb, 59–60, 64, 70, 72, 203 CYBERCOM, 260 Davis, Jefferson, 168 Dawes, William, 25 Debs, Eugene V., 76 Declaration of Independence: Great Britain’s meddling in civilian affairs reflected in, 5, 14, 114; military and, 26–28, 136, 275 Defense Advanced Research Projects Agency (DARPA), 255 Defense Intelligence Agency, 189, 253, 256 Defense Support of Civil Authorities (DSCA), 226, 228, 232–234 Defense, U.S. Department of: domestic role after 9/11, 218–265; domestic threat scenarios and, 223–224; as lead federal agency, 229–230; martial law rules, 10, 211–215; military intelligence regulations and, 186, 189, 190–193, 195; need

341 for coordination with Homeland Security, 11; post-9/11 military intelligence and, 252–264; War on Drugs and, 103. See also NORTHCOM (Northern Command) Delahunty, Robert J., 220–222, 238 Delimitation Agreements, 172, 174, 176, 185 Democratic Convention (1968), 95–96 DeWitt, John L., 122–124, 129 Dick, Charles, 74 Dickinson, John, 37 Domestic security, in age of terrorism, 218–265; AUMF and, 220–222; civilian organizations and, 227–228; legal justifications, 238–239; military and civilian shared responsibilities, 228–236; military detentions and, 113, 241–249; military’s domestic role expanded after 9/11, 218–220, 225–227; military’s increased intelligence roles, 252–263; military trials and, 249–252; need for greater clarity of responsibilities, 239–241, 263–264; threat scenario planning and rehearsal for, 223–224, 237; use of force rules, 236–237 Domestic security, origins of military’s role in: in colonial America, 13–15, 21–26; in early United States, 26–31; in Great Britain, 15–21 Domestic security, provided for in Constitution, 33, 45–46; federal responsibility for security of states, 36–38; standing army’s role, 33–34; state militias’ role, 33–36, 39–40 Domestic security, reform proposals for: black swan event anticipation, 266, 267, 268–269; civilian control of military and, 11, 267–268, 273–274; domestic force reconfiguration, 267, 269–272; lessons learned from past, 274–275 Dorr Rebellion, 58–59, 201–202 Dorr, Thomas W., 58

342 Douglas, William O., 157, 181–182, 211 Draft Riots, Civil War and, 67–68 Drones, domestic military intelligence and, 259 Duncan, Lloyd C., 160 Duncan v. Kahanamoku, 160–161, 210–211 Eisenhower, Dwight D.: martial law and 1955 civil defense drill, 197, 216, 217; peacekeeping and law enforcement and, 82–83 Emergency Detention Act (1950), 128 Emergency Management Assistance Compact (EMAC), 106, 230–231, 233 Emergency Plans—White, 79, 171, 172, 212 Enforcement Acts (1870–1871), 71. See also Ku Klux Act Ervin, Sam, and congressional committee of, 183–186, 191 Executive Order No. 9066, 123, 128 Executive Order No. 12,333, 189–190, 261 Ex parte Endo, 127 Ex parte Merryman, 116–118, 243 Ex parte Milligan, 118–119, 124–125, 131, 147–151, 204–206; influence of, 152, 155–156, 157–158, 160, 161, 162, 163, 165, 183, 211, 242–243 Ex parte Quirin, 130–131, 153–158, 249, 252 Faubus, Orval, 82 Federal Bureau of Investigation (FBI): counterterrorism investigations, 228, 234; Delimitation Agreements and military investigations, 172, 174, 176, 185; formation of, 171; intelligence collection about civilians and, 186; military deployed to do jobs of, 176–178, 179 Federal Emergency Management Agency (FEMA), 105, 216, 227, 230, 231, 234, 237, 269 Federal Interagency Operational Plans (FIOPs), of FEMA, 239–240

IND E X

Federalist papers, 40–41 Field, Anson, 204 Fillmore, Millard, 63 Ford, Gerald, 128, 189 Foreign Intelligence Surveillance Act (FISA) (1978), 188–189 Frankfurter, Felix, 12, 125–126, 157 Franklin, Benjamin, 28 Freedman’s Bureau Act, 69 Fugitive Slave Act (1793), 62 Fugitive Slave Act (1850), 62–66, 70 Gage, Thomas, 24–26, 199 GARDEN PLOT, 89–91, 97; replaced, 235 Gates, Robert, 253 George III, king of England, 14, 21, 23, 27, 136 Germans, in United States during World War II, 127–128, 130–131, 153–158, 249 Gerry, Elbridge, 37 Gilligan v. Morgan, 97–98 Grant, Ulysses S., 70–71, 74 Great Britain: colonial standing army and, 5, 13–15, 21–26; history of military role in, 15–21 Guantánamo Bay prison, 242, 248–249, 250, 251, 258 Habeas corpus: military detentions and, 242–243, 249; military justice and, 135, 139–140, 144, 145–146, 148–149, 150, 151–152, 155; as restraint on military power, 43; suspension of, 113, 115–120, 204 Habeas Corpus Act (1863), 118, 119, 148 Hale, Nathan, 167–168 Hall, Dominick Augustin, 139–140 Hamdan, Salim, 250 Hamdan v. Rumsfeld, 250, 251 Hamdi v. Rumsfeld, 222, 242–243, 247, 252 Hamdi, Yasir Esam, 242–243, 244 Hamilton, Alexander, 26, 29, 33, 40, 41, 46, 50

I NDEX

Hampden, John, 16 Hamre, John, 216 Hancock, John, 24, 25 Hawaii: martial law in, 209–211; military tribunals in, 159–161 Hawaii Organic Act (1900), 159, 160–161, 209, 210 Hayes, Rutherford B., 71, 72, 75, 169 Henry, Patrick, 41 Holmes, Oliver Wendell, 207 Homeland Security Act (2002), 227, 230, 261 Homeland Security Council (HSC), 225 Homeland Security, U.S. Department of: creation of, 220; intelligence sharing and, 261–263; need for coordination with Defense Department, 11; responsibilities of, 227–228; threat scenarios and, 223–224 Honoré, Russell, 105 Hoover, J. Edgar, 121, 153–154, 171, 174 Howe, William, 167–168 Hurricane Katrina, 1–2, 105–108, 227, 231, 259 Ickes, Harold, 210 Immediate response authority, of military, 109–110, 214, 233, 273 Imprisonment, of civilians, 8, 113–132; after 9/11 attacks, 113, 241–249; during Civil War, 113, 115–120; of Germans and Italians during World War II, 127–128, 130–131; of Japanese Americans during World War II, 113, 120–130, 242; during Revolutionary War, 113, 114–115 In re Debs, 76–77, 83 In re Territo, 131 Insurrection Act, 45, 86, 87, 90, 92, 178, 187, 193, 214, 221, 235, 238; amended by “Lincoln Law,” 67–68, 77; amended in 2006, 107–108; Calling Forth Act (1795), 44–45, 52–54, 56–60, 63, 69, 72, 74; 1807 legislation regarding domestic

343 use of regular military forces, 45, 53, 60, 64, 66, 72–73, 78; Ku Klux Act, 71–72, 73, 83, 88, 107 Intelligence collection, about civilians, 9, 166–196; during Civil War, 168–169; during Cold War, 173–175; Congress and, 183–189; Department of Defense rules regarding, 189, 190–193, 195; Posse Comitatus Act and, 177, 183, 193–195; post-9/11 programs and agencies, 252–258; post-9/11 tools for, 258–263; presidents and, 189–190; during Revolutionary War, 167–168; during Vietnam War era, 175–185; during War of 1812 and Mexican War, 168; during World War I, 169–171; during World War II, 172–173 Intelligence Oversight Board, 192–193 Intelligence Reform and Terrorism Prevention Act (IRTPA) (2004), 253, 261–262 Investigations. See Intelligence collection, about civilians Irons, Peter, 129 Italians, interned during World War II, 127–128 Jackson, Andrew, 57, 61, 115, 139–141, 160, 200–201, 203 Jackson, Robert, 34, 126 Jailors. See Imprisonment, of civilians James II, king of England, 18–19 Japanese Americans, imprisoned during World War II, 113, 120–130, 242; Fred Korematsu and, 124–130 Jefferson, Thomas, 27, 34–35, 53, 57, 199–200 Johnson, Andrew, 69, 70, 148, 150 Johnson, Lyndon, 87, 88, 90, 109 Joint Intelligence Task Force for Combating Terrorism (JITF- CT), 253–254, 257 Joint Protection Enterprise Network (JPEN), 257–258, 261

344 Joint Regional Information Exchange System (JRIES), 258, 261 Judges. See Tribunals and trials, civilians and Judiciary Act (1789), 146 Kansas- Nebraska Act (1854), 61–62 Keating, Timothy J., 229 Kennedy, Anthony, 250 Kennedy, John F., 84–85 Kennett, Brackley, 20–21 Kent State University shootings, 96–100 Kerner Commission, 88–89 Kerner, Otto, 88 King, Martin Luther, Jr., 90, 93, 109, 175 King, Rodney, 91 Kleindienst, Richard, 101 Korematsu, Fred, 124–127, 129–130 Korematsu v. United States (1944), 124–127 Korematsu v. United States (1984), 129–130 Ku Klux Act, 71–72, 73, 83, 88, 107 Ku Klux Klan, 69–72, 151, 174 Labor disputes: martial law and, 207–209, 211; peacekeeping and law enforcement and, 75–79 Laird v. Tatum, 179–183, 184, 193–194, 211 Lander, Edward, 202–203 Law enforcement. See Peacekeeping and law enforcement Lee, Richard Henry, 35 Lexington and Concord, battles of, 25 Lieber, Francis, 142–143 Lincoln, Abraham: martial law and, 203–204, 205; military trials and, 143–150; peacekeeping and law enforcement and, 68–69; suspension of habeas corpus, 115–120 Lincoln Law (1861), 67–68, 70–71, 73, 77, 82–83 Lippmann, Walter, 121 Locke, John, 17, 32 Los Angeles riots, 85–86, 91–92 Louallier, Louis, 139–140

IND E X

Luther, Martin, 58 Luther v. Borden, 58–59, 71, 201–202, 204, 207–208 MacArthur, Douglas, 171 Machiavelli, Niccolò, 35 Madison, James, 36, 38, 40–41, 42, 54, 115, 140 Magna Carta, 14–16, 198 Mansfield Doctrine, 21, 40 March on the Pentagon (1967), 93–95, 175, 176 Martial law, in Great Britain, 16, 19, 20, 198–199 Martial law, in United States, 149, 197–217; in Civil War era, 203–204; declared by Gage, 25; Department of Defense rules regarding, 10, 211–215; in early republic, 199–203; in Hawaii in World War II, 159, 209–211; labor disputes and, 207–209, 211; ways to avoid, 217 Martin, Luther, 37 Martin v. Mott, 54–55 McCardle, William, 151–152 McCarthy, Joseph, 174 McKinley, William, 77 McNamara, Robert S., 84 Meredith, James, 84–85 Merryman, John, 116–118 Mexican War (1846–1848), 141, 168 Military Commissions Acts, 251 Military Information Division (MID), of U.S. Army, 169, 170–172 Military purpose doctrine, intelligence gathering and, 193 Militia Act (1792), 43, 74 Militia Act (Dick Act) (1903), 74 Militia Acts, in Great Britain, 18 Militias: Constitutional role of state militias, 33–36, 39–42, 43–44; in early United States, 22–26, 30–31, 199 Milligan, Lambdin P., 118–119, 131, 147–151, 155–156, 157, 158, 204–206, 242–243

I NDEX

Minkins, Shadrach, 63 Monroe, James, 141 Mott, Jacob E., 54 Moyer, Charles, 207–208 Moyer v. Peabody, 207–208 Mudd, Samuel, 150 Murphy, William Francis, 126 National Counterterrorism Center (NCTC), 253–254, 262 National Defense Act (1916), 74–75 National Defense Authorization Act for FY 2012, 247–249 National Geospatial- Intelligence Agency (NGA), 253, 259 National Guard: civil rights movement and, 174–175; domestic threats and, 230–231, 233–234, 235; emergence of, 74–75; Posse Comitatus Act and, 110; proposals for, 267, 271, 272; racial unrest and, 80–93; roles at time of 9/11 attacks, 219–220; Title 32 status, 230–231, 233, 272; twentieth- century domestic incidents and, 101, 105–108; Vietnam War era protest and, 94–100; WMD civil support teams, 233 National Incident Management System (NIMS), 228 National Reconnaissance Office (NRO), 253, 259 National Response Framework, 227, 230, 233, 240, 269 National Security Act of 1947, 173 National Security Agency (NSA), 173, 186, 253, 259–260, 274 National security letters, 188, 258–259 National Security Strategy (2015), 268 Nat Turner’s Rebellion, 56 Necessity principle, in British law, 16–18 Neutrality Act (1794), 53 Neutrality Act (1818), 57 Nixon, Richard M., 96, 101, 178, 182, 185, 186

345 Non-Detention Act (1971), 128, 242 NORTHCOM (Northern Command): creation of, 220, 241; data sharing and, 254–255; homeland defense and homeland security roles, 231–237; responsibilities of, 226–227 North, Oliver, 216 Nullification Crisis, 60–61 Obama, Barack, 12, 166, 223, 247, 248, 251, 268 Office of Legal Counsel (OLC), of Justice Department, 220–222 Oklahoma City bombing, 105 Otis, James, 23 Outsourcing, of military intelligence tasks, 260–261 Padilla, José, 2, 243–244, 246–247 Palmer, Mitchell, 152–153 Parker, Henry, 17 Patel, Marilyn, 129–130 Peacekeeping and law enforcement, 47–112; blurred lines and incomplete Constitutional guidance about, 47–49; before Civil War, 60–66; during Civil War, 67–69; in early nineteenth century, 56–60; in early republic, 49–56; labor unrest and, 57, 75–79; National Guard’s emergence, 74–75; Posse Comitatus Act’s lingering uncertainties, 108–111; racial unrest and, 56, 80–93; during Reconstruction, 69–74; twentieth- century domestic violence and, 100–108; during Vietnam War era, 93–100 Petition of Right (1628), in Great Britain, 16, 27, 198 Pierce, Franklin, 59, 61–62, 64, 65, 66, 202–203 Pinckney, Thomas, 37 Pinkerton, Allan, 168 Poindexter, John, 255 Poindexter, Joseph B., 159, 209

346

IND E X

Policing. See Peacekeeping and law enforcement Posse comitatus (civilian law enforcement): in Great Britain, 21, 39–40; in United States, 41, 45, 56, 62–66, 70–71, 73, 94 Posse Comitatus Act (1878): AUMF and, 221; domestic role of military and, 222, 226, 232, 235, 236, 238; drones and, 259; emergency authority and, 214; imprisonment and, 241; intelligence collection about civilians and, 176–177, 183, 193–195; passage of, 72–73, 76; peacekeeping and law enforcement and, 92, 101, 102–103, 104–105; Privacy Act and, 262; questions about use of, 108–111, 275; state forces and, 230; statutory exceptions to, 103, 193–195 Prerogative power, 17 Presidential Emergency Action Directive No. 21, 216 Privacy Act (1974), 187–188, 189, 194, 262 Protestant riots, in Great Britain, 20–21 Pyle, Christopher H., 178–179, 180, 183, 184, 190

Reserves, 106, 219, 226, 233, 267, 271–272 Resor, Stanley R., 185 Revere, Paul, 14, 25 Revolutionary War: beginning of, 25; imprisonment of civilians during, 113, 114–115; intelligence collection about civilians during, 167–168; martial law and, 199; military justice and, 137–138 Rhodes, James A., 96 Riot Act (1714), in Great Britain, 19, 20–21, 39–40 Roberts, Owen J., 155 Romney, George W., 87 Roosevelt, Eleanor, 172 Roosevelt, Franklin D., 79, 81, 120–121, 123, 127, 154–155, 158–159, 172, 249 Roosevelt, Theodore, 120 Rove, Karl, 106 Royall, Kenneth, 154–155 Rule of law, generally, 1–8, 12 Rules for the use of force, 236–237 Rumsfeld, Donald, 167, 220, 225, 253 Russell, Richard, 83 Rutledge, John, 37

Quartering Acts, in British colonies, 23–24 Quasi-War with France, 52, 115

Satellites, domestic military intelligence and, 259 Scalia, Antonin, 243 Scheuer v. Rhodes, 98–99 School integration, peacekeeping and law enforcement and, 82–85 Scott, Winfield, 116, 141 Seminole War, 140–141 September 11, 2001 attacks. See Domestic security, in age of terrorism Seward, William H., 168 Shays’ Rebellion, 30–31, 33 Sherman, William Tecumseh, 59 Ship Money Case, in Great Britain, 16–17 Short, Walter C., 158–159, 209 Smith, Josiah Hett, 137–138 Snowden, Edward, 260 Spanish-American War, 74, 169

Racial violence, peacekeeping and, 56, 69–74, 80–93, 109; GARDEN PLOT and, 89–91; Kerner Commission and, 88–89; public school integration and, 82–85; riots in urban areas, 80–82, 85–88, 90–92 Randolph, Edmund, 37 Reagan, Ronald, 3–4, 189 Reconstruction Acts (1867), 70 Reconstruction period, 69–74, 151–152 Red Scares: intelligence collection about civilians and, 170–171, 174; military trials and, 152 Rehnquist, William H., 130, 182, 185–186, 190 Reid v. Covert, 162–164

I NDEX

Speed, James, 150 Stafford Act, 104–105, 226, 238 Stamp Act (1765), in British colonies, 23 Standing armies: Blackstone on, 19–20; British, in colonies, 5, 13–15, 21–26, 27; Constitutional role of, 33–34, 40–41; Framers’ concerns about, 5–7, 47 Stanton, Edwin, 168 States: federal responsibility for security of, 36–38; militias of, 33–36, 39–42, 43–45 Sterling, Ross, 208 Sterling v. Constantin, 208 Stevens, Isaac, 202–203 Stimson, Henry, 122, 127, 172 Stone, Harlan F., 155, 157 Strikes. See Labor disputes Sugar Act (1764), in British colonies, 23 Supreme Court, U.S., 6, 11–12; domestic role of military and, 222; imprisonment of civilians and, 113, 119, 123–127, 129–131, 241–244, 247; intelligence gathering and, 179–183, 184, 193–194; martial law and, 201–202, 204–209, 210–211; military justice and, 133–134, 144–151, 155–158, 160–162, 164; military trials and, 250–252; peacekeeping and law enforcement and, 51, 54–55, 58–59, 71, 76–77, 83, 97–99, 108–109 Taney, Roger B., 117, 208, 243 Terrorism. See Domestic security, in age of terrorism Threat and Local Observation Notice (TALON), 256–257, 261 Title 32 status, of National Guard, 230–231, 233, 272 Toth, Robert W., 161–162 Tribunals and trials, civilians and, 8, 133–165; after World War II, 161–164; civilian and military differences, 133–134, 164–165; Civil War and, 142–151; courts-martial and military

347 commission differences, 134–135; Mexican War and, 141; military commissions after 9/11, 249–252; Reconstruction and, 151–152; Revolutionary War and, 136–138; Vietnam War and, 163; War of 1812 and, 139–141; World War II and, 153–161 Truman, Harry, 128, 158, 211 Turner, Nat, 56 Tyler, John, 58, 59 Uniform Code of Military Justice (UCMJ), 131, 135, 161–162, 165, 193, 250–252; amended, 163–164 United States ex rel. Toth v. Quarles, 161–162 United States v. Diekelman, 206–207 Vallandigham, Clement, 119–120, 144–147, 148 Van Buren, Martin, 57–58 Vietnam War era: intelligence collection about civilians during, 175–185; martial law and, 211; military justice and, 163; peacekeeping and law enforcement and, 93–100 Vital Archer exercise, 237 War Labor Disputes Act (1943), 79 War of 1812: imprisonment of civilians and, 115; intelligence collection about civilians during, 168; martial law and, 200–201; peacekeeping and law enforcement and, 54–55; tribunals and trials and, 139–140 War on Drugs, 102–103, 194 War Relocation Authority (WRA), 124 Warren, Earl, 12 Washington, George, 11, 32, 33, 114; intelligence gathering and, 167–168, 260; martial law and, 199; military justice and, 136, 137–138; peacekeeping and law enforcement and, 50–52; Revolutionary War and, 26, 28–29, 114

348 Whiskey Rebellion, 50–52 White, Harry E., 160 Wilkinson, James, 200 Wilson, James, 29, 31, 37, 51 Wilson, Pete, 92 Wilson, Woodrow, 152 Woodbury, Levi, 202 World War I: intelligence collection about civilians during, 169–171; peacekeeping and law enforcement and labor unrest, 78–79 World War II: imprisonment of Germans and Italians during, 127–128, 130–131;

IND E X

imprisonment of Japanese Americans during, 113, 120–130, 242; intelligence collection about civilians during, 172–173; marital law in Hawaii, 209–211; military justice and, 153–161; peacekeeping and law enforcement and labor unrest, 79 Wounded Knee uprising, 100–102, 111, 194 Writs of assistance, in British colonies, 23 Yoo, John C., 220–222, 238 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 12, 211