January 15, 2016

National security expert discusses role of military during domestic crises

When a crisis strikes somewhere in America – such as the recent terrorist attack in San Bernardino, Calif. – we usually rely on a combination of private security personnel and civil servants to do the important work of keeping the public safe. At times, the military gets involved – but that isn’t always the wisest decision. 

At a recent luncheon in Washington, D.C., sponsored by the ABA Standing Committee on Law and National Security, William C. Banks, co-author of “Soldiers on the Home Front: The Domestic Role of the American Military” explained why.

Author William C. Banks addressed a luncheon sponsored by the ABA Standing Committee on Law and National Security

Banks, who also serves as director of the Institute for National Security and Counterterrorism, said that in times of emergency, when confusion and chaos reign and decision-making authorities overlap, involvement by the military holds the potential for problems.

A recent post by Steve Aftergood in Secrecy News, a blog of the Federation of American Scientists, put it another way: “The role of the armed forces in an open society might be likened to a potent medicine that is life-saving in the proper dosage, but lethal beyond a certain proportion.”

Banks said that  except in extraordinary circumstances, “engaging the military in a domestic operation cuts against our cultural grain. The United States has been proudly unique in entrusting law enforcement to civilian forces, managed and controlled by civilians.” He added that our nation’s revolutionary and constitutional heritage, fed by experiences in England and with the English military in the colonies, led to the unequivocal subordination of the military to civilian authority.

“The Constitution anticipates that military forces may be required for domestic missions in extraordinary circumstances, including invasion, insurrection and other forms of domestic violence,” he said. “The framers of the Constitution knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”

Usually, state and local officials will deploy military personnel from their own communities, avoiding the need for a federal force. But Banks said this legal framework has been “stretched, violated or fecklessly amended,” more often than not by civilian leaders and sometimes by military commanders.

“Whether keeping the peace, enforcing the laws or responding to natural disasters, we argue that the military role requires refinements in law and vigorous civilian leadership and oversight to avoid a trend toward militarization of these bedrock civilian responsibilities,” he said.

Banks said that Americans have only cautiously embraced a military role at home.

Political leaders have in the past abused their legal authority, misusing the military for domestic assignments, and could again in the future, he said, citing the events in Waco, Texas, in 1992. In that case, the Bureau of Alcohol, Tobacco, and Firearms requested military support to execute a search warrant on the Branch Davidian compound, the headquarters for an obscure religious group that was suspected of stockpiling large quantities of weapons and black powder. The request for military support was denied after lawyers concluded the military was being asked to provide “active” participation in law enforcement, which is forbidden by the Posse Comitatus Act of 1878. Ultimately, four ATF agents were killed and 20 were wounded during the raid on Feb. 28, 1993. Six Branch Davidians also were killed. The ensuing 51-day siege ended when a fire swept through the compound, killing 74 more members of the cult.

Banks’ book delves into the use of the military by civilian leaders to conduct domestic operations that the law would not otherwise permit, such as in the aftermath of the terror attacks of 9/11, and looks ahead to a possible cyberattack of “significant consequence” on the homeland.

“We worry that the worst circumstances imaginable – a catastrophic terrorist attack at home, including cyberattack — might prompt the worst excesses: martial law and a military role in continuity of a decapitated government,” Banks said.

Banks says his book also points out instances when the military has promoted domestic tranquility, such as it did after Hurricane Katrina in 2005.

“Our goal is to help Americans recognize that, while homeland military forces play a critical role in keeping us safe, history demonstrates that expanded military involvement in civil affairs poses distinct risks to liberty and democracy,” Banks said.