Can the Military spy on Civilians?

A few months ago I found myself at the center of a storm. All the right conditions had aligned themselves- patriotic army reservists, FUSION Centers, terror suspicion driven law enforcement mentality, and a inquisitive journalist. The following is a REALLY LONG POST, begin with caution.

Two weeks before my departure for Pakistan, the news broke via San Diego Union Tribune that individuals at Camp Pendletons' uber top secret terrorism data facility had "stolen" information and fed it to the Los Angeles Joint Terrorism Task Force. An individual also might have shared information with a private security consulting firm in order to seek a future position at the firm.

This revelation through several things at me. The one I want to address is this idea of the military, the Marines, conducting domestic investigations, surveillance and holding that information. It reeked of civil rights violations. However, I was at a loss as to whether it was unconstitutional or illegal for the Military to be doing such things.


My intuition told me that the responsibility to conduct domestic spying operations (investigations) was the sole responsibility given to the Federal Bureau of Investigations. In fact, I recall the severe penchant for states for law enforcement to not be a federal mandate, as it would give the state (federal government) to much power over the states.

After some casual researching, I found Posse Comitatus, and recently I got a chance to read up on the subject. The federal government is limited in how armed forces can be used at home. It seems that its not Constitutional but rather a historical development through the Civil War. The law passed immediately after Reconstruction, however, its roots seemed to be quite "dirty".

Relevant Historical Background

This bill was a (Southern) Confederate construction in order to keep the Federal government from policing within the United States. It sounds wonderful now, but the historical background actually relates how it was used to subjugate African Americans to sub citizen standards- Jim Crow Laws- effectively ending "equality" that was brought about through the Civil War and specifically reconstruction.

Many will point out that President Lincoln didnt want to set the slaves free, that it became a cause celebre as the North kept loosing, being a political move. I think we can look beyond that by turning the "Leftist filters" off just for a moment. Slavery was an issue divideing the US- North and South. The US government functioned only through compromises and leading up to the Civil War the Southern (slave) states saw their compromising position diminish as more states entered the Union as slave-free states. When the south split creating the Confederation, Northern troops marched down south, destroying swaths of areas.

After the war ended, the period of reconstruction began where Federal troops administered reconstruction and also protected the newly freed slaves from Southern repression. This continued until the election of 1876 when there was a close call with 20 votes determining the President of the US. The Republican in the lead, brought in Southern States electoral votes to take the Presidency, by withdrawing all federal troops from the south, effectively ending reconstruction and the protection of African Americans.

Troops administered and maintained order. Part of that responsibility meant overseeing elections, during Reconstruction. This reassurance got significant African Americans into office and to the polling booths to vote, empowering them to the dislike of the up until recently "owners" of this group of people. The military got involved with what had up until then been local law enforcement responsibilities. The military's involvement beyond defending the borders of the US and into civilian law enforcement was a huge step beyond its role.

Immediately after the withdrawal of troops, southern legislators effectively stopped protection of polling sites, allowing riots, attacks and fears to block the African American vote and then legislated Jim Crow Laws (separating blacks from whites). Congressional delegates from the South rushed to Washington DC and began drafting legislation to ensure that Federal troops would not be used for domestic enforcement of the law giving us Posse Comitatus, which in Latin means Power of the county.

What is it?

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

-Title 18, U.S. Code, Section 1385

According to John Brinkerhoff, in "The Posse Comitatus and Homeland Security"(I highly recommend the reading the historical development of Posse Comitatus found in this article), it is often cited "as a major constraint on the use of the military services to participate in homeland sercurity, counter terrorism, civil disturbances, and similar domestic duties. It is widely believed that this law prohibits (armed forces)...from performing any kind of police work or assisting law enforcement agencies to enforce the law. In Brinkerhoff's anaylsis he suggests that:

It was enacted to prevent the Army from being abused by having its soldiers pressed into service as police officers (a posse) by local law enforcement officials in the post-Reconstruction South.

Major Craig Trebilcock (dont laugh) is a member of the Judge Advocate General's Corps in the US Army reserves, who states in "The Myth of Posse Comitatus" that

The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.”[4,5] Execution of the laws is perceived to be a civilian police function, which includes the arrest and detention of criminal suspects, search and seizure activities, restriction of civilian movement through the use of blockades or checkpoints, gathering evidence for use in court, and the use of undercover personnel in civilian drug enforcement activities.[6]

While this interpretation is based on the standard of "homeland" security found in the post-reconstruction era, Major Trebilcock and Brinkerhoff argue that the set of new realities that exist today due to the war on terror should allow for a revaluation of the act, if not a complete scrapping and creation of a new law in its place.

Personally I find that dealing with the FBI and DHS on issues of "investigations" is quite difficult and complicated, dealing with a military conducting such activities would make it near impossible to maintain respect for the civil rights and liberties of civilians. The military functions on a different level and are not trained nor expected to maintain the civilian law enforcement limits and regulations.

I might cry out against law enforcement agencies, but in honesty, I admire the ability of our law enforcement officers to function with all these limits, especially when voluntarily putting their lives in harms way day in, day out. To have our armed forces involved in such activities however is quite a different story, one that does not change whether or not the realities of "war and homeland security" have altered.

However, Major Trebilcock points out that in the past ten years Congress has effectively eroded the limitations placed on the President and the military in regards to this, so it offers no hindrance. Which to me was a revelation given that the San Diego Union Tribune story reflects some sort of involvement in domestic survielence by the military.
Posse Comitatus and Civil Rights

While I feel that both of these articles focus on the involvement of the military response or with regards to issues relating to keeping "law and order" only Trebilcock points out my concern which is "Execution of the laws is perceived to be a civilian police function...(such as) search and seizure activities...gathering evidence for use in court, and the use of undercover personnel"

Soldiers are trained to be soldiers, which to me is the ability to search and destroy (kill), to work in large groups and amass toward some definitive objective. Police work is based on slowly amassing (around the donut shop, no just kidding) and they are trained to work on searching, investigating and capturing.

Just remember back to the last time where Civil Rights and Freedoms came head to head with the military, the Kent State Massacre. Granted the armed forces are/can be better trained, but that doesn't give me reassurance when at the Repbulican National Convention this year civilian law enforcment made 300 arrests during three days which the vast majority of cases being droped, leaving close to 21 cases that were being prosecuted.

Going back to the Joint Terrorism Task Forces. During that same Vietnam war era, protestors and anti-war organizers, including Martin Luther King Jr. were being investigated and survieled by the government. This was a clear curtailment of freedoms and I am skeptical that government, those in power, would not want to put this practice in place again. With these Joint Terrorism Task Forces it effectively brings together all agencies that could essentially be used like "Big Brother".

Christopher Pyle, a former investigator for Senator Frank Church's Select Committee on Intelligence, in the 1970s, and currently a professor of politics at Mount Holyoke College. "But operating today through the JTTFs and the combined intelligence and fusion centers, which join military analysts with law enforcement specialists, they are all part of one big club, effectively destroying the Fourth Amendment against unlimited search and seizure."

From an article by Thomas Friedmen in "The Nation" in September of 2005:

Several months ago the Army's inspector general and the California State Senate launched investigations of a California National Guard intelligence unit that had "monitored" an antiwar demonstration at the state capitol this past Mother's Day, partly organized by Cindy Sheehan's Gold Star Families for Peace. A report not yet publicly released by the inspector general found that there were other cases of domestic intelligence activity by the California Guard. Democratic State Senator Joseph Dunn, whose budget subcommittee oversees funding for the California Guard and who is conducting the state investigation, said financial improprieties may have occurred, as state and federal laws forbid such activities. Dunn told The Nation that he is looking into reports that the Guard in some ten other states, including New York, Colorado, Arizona and Pennsylvania, may have set up its own intelligence units and conducted similar monitoring of antiwar groups. Such controversial directives could be coming from the Pentagon, he speculated.

Using the Joint Terrorism Task Force inappropriately is not surprising, when given power, power corrupts, in this case to intimidate and coerce political views:

The few documents received to date shed light on the FBI's misuse of the JTTFs to engage in political surveillance. For example, FBI documents obtained by the Colorado ACLU reveal that in July 2004, FBI agents and members of the Denver Police Department, dressed in SWAT gear, questioned 21-year-old Sarah Bardwell, an American Friends Service Committee intern who was also active in Food Not Bombs, at her home "to conduct pretext interviews to gain general information." These documents, said Mark Silverstein, Colorado ACLU legal director, "confirm that the FBI was more interested in intimidation than in trying to gather information." In another example a student and two former students at Truman State University in Kirksville, Missouri, who were planning to go to the Democratic convention last summer, were questioned by the FBI and subpoenaed by a grand jury. Although never charged with any crime, they were under twenty-four-hour FBI surveillance for almost a week afterward. "The subpoenas and surveillance were not to get information but to harass and intimidate them," said Denise Lieberman, former ACLU legal director in eastern Missouri. "It worked. It was very frightening."

It goes on:

an FBI agent and plainclothes officers from the Raleigh, North Carolina, police department came to the residence of Brad Goodnight, a 21-year-old student majoring in computer science and psychology at North Carolina State University. He went with them to police headquarters, where he was asked about specific friends, about his role in Campus Greens, Food Not Bombs and other organizations, and whether he recognized photos of people in the audience at a local punk rock concert. His interrogation was apparently related to an earlier protest rally near Republican headquarters, where vandalism had occurred and three people were arrested. Goodnight said he was told, "We have paid informers and treat them well." He was warned that if he didn't agree to cooperate he would face continued scrutiny. He refused. He had not committed any crime, was not charged with any offense and was soon released. Besides interrogating Goodnight, the FBI knocked on dorm-room doors, and campus police increased their presence at peace vigils, all of which "definitely had a chilling effect," said Elena Everett, a recent NCSU graduate and chair of the North Carolina Green Party. "People, especially international students, didn't feel comfortable speaking out anymore."

Given these historical circumstances and the governments constant erosion of individual rights to think as they wish, I find it hard to want to expand the ability of the military to conduct any form of investigation, search and seizure, in fact they should remain on their bases until such extreme disaster strikes to call for their assistance.

What gets me though is that we really need to do a FOIA to find out what exactly the military was doing with the information on local Muslim organizations, leaders and mosques.