ACLU'S TIMOTHY EDGAR
Sept. 27, 2002

Civil libertarians and others have expressed concern that the military's new Northern Command may involve the Department of Defense too much in law enforcement and intelligence gathering. The ACLU's Legislative Counsel Timothy Edgar discusses his concerns with the NewsHour's Kwame Holman on Sept. 13, 2002.

Online Special Report: The U.S. War on Terrorism Sept. 27, 2002: U.S. unveils a new command aimed at bolstering domestic defense.

KWAME HOLMAN: Thank you, Tim. Tim, if any - what role should the active duty military have in homeland security? TIMOTHY EDGAR: That's a very important role. The civil authorities are unable to respond to an absolutely catastrophic attack and the only possible way to prevent that attacker to deal with the aftermath is for the military forces to be involved. And that's when the military should be involved; they have the role of defending our country. The concern we have is over making sure that doesn't seep into more routine police activity, the kind of searches, the investigative active that really is the role of our domestic police forces. KWAME HOLMAN: Does the advent of Northern Command add to that concern? TIMOTHY EDGAR: It does because we don't have in place clear guidelines of when the military should or should not be involved in counterterrorism activity on the basis of what I just said their role would be. The Posse Comitatus Act and other laws have a number of exceptions in them, and those exceptions can permit the military to be involved in law enforcement with creative legal interpretation, and that's not the kind of thing we want. We need guidelines that are based on function and that will prevent the military from being involved in those routine activities. KWAME HOLMAN: What needs to happen either legislatively or within the Defense Department or however you perceive it to make you comfortable prior to Northern Command's becoming fully operational? TIMOTHY EDGAR: Well, the Command is going to become operational very soon, and what's needed is for these clear guidelines to be in place to make sure that this basic principle of American governance - that the military is not involved and our domestic police activity is upheld. That could happen through the Defense Department guidelines or legislation. What's important is that that principle be upheld. KWAME HOLMAN: Have you -- I wonder if you've imagined the scenario there -- I'm also thinking is there something in history that gives - U.S. history - that gives you this kind of pause. TIMOTHY EDGAR: Well, sure. I mean, the reason the Posse Comitatus Act arose was because the military was being used inappropriately for police activities, both before and after the Civil War. It was being used, for example, to hunt down fugitive slaves when the local authorities didn't want to do that because the local populace didn't agree with that. And that was really a violation of the basic way in which our Constitution is structured. We're supposed to have a civilian, local, and state police force. When they are unable to handle the situation because it's so grave, then we move up to the militia, what today is the National Guard and then only after those forces are totally unable to handle the situation, such as might happen with a weapon of mass destruction attack, would you get the military involved. KWAME HOLMAN: Are there examples in history other than post Civil War where -- TIMOTHY EDGAR: Sure. More recently in the war on drugs there was more use of the military to patrol our southern border with Mexico. And as a result of that inappropriate use of the military for what is really a civilian law enforcement task, which is border control -- unfortunately there was an incident in 1997 where a young Marine shot and killed a student who was herding his family of goats out on the border. That's not the kind of position we want to put our troops in. We want to make sure our troops are fighting wars - that they're not put in the position of having to make those kinds of judgments that are better left to police departments that have the kind of training to respect constitutional rights and to use minimum force, rather than overwhelming force to defeat the enemy. KWAME HOLMAN: That deployment, that use of the military there - to the border with Mexico was legal, permissible under current rules. TIMOTHY EDGAR: That's a perfect illustration of why current rules aren't strong enough. The basic idea of the current rules is a good one. It's a democratic ideal that civilian agencies should be involved in police functions. We send our troops to countries all around the world to put the military of those countries out of the business of civilian police enforcement, and so we need to make sure that we're holding fast to that principle even if we can look to a particular loophole for exception or interpretation of the law that permits a use of the military, we should say is this consistent with our values, is it consistent with the overall principle of the democratic society, not just is it consistent with the letter of the law. KWAME HOLMAN: What would the law or regulation say in its essence? TIMOTHY EDGAR: Well, I think it would, again, be based on the functional reason why the military might be involved in terrorism, which is that when an attack, something like happened on September 11, for example, is so catastrophic, it is really after the police had failed to do its job, after the FBI or the Border Patrol or the civilian agencies have failed to detect and investigation and prevent the attack through police structure. We hope that that will never happen, but if it does happen, if a terrorist group is using a plane or something else that can't be stopped by any conventional, civilian means, then the military can step in. But before that happens, there needs to be, as I said, this hierarchy - first civilian police, then National Guard, and then only the military, if those agencies are unable to handle it. KWAME HOLMAN: We keep hearing - we heard from a longtime federal civil servant, one of the people who was there at the beginning of FEMA and has worked with DOD, is retired military, that that is the hierarchy, that is the understanding; that's - the fact that -- the apparent fact that that's the practice and what people would expect is not good enough. TIMOTHY EDGAR: Well, no because really what's kept the military out of civilian policing has not been these legal restrictions, but it's been this general reluctance on the part of military commanders to get involved. And a lot of that has to do with the way the bureaucracy is structured. But now we are going to restructure the - We're going to have a new commander and part of the mission of that commander is going to be counter terrorism. Is that going to change these institutional barriers? Maybe it will; maybe it won't, but I think that there's that danger, and I think that because that danger exists, we need to have a dialogue with the new commander and say, look, this isn't just about the law; it's about a basic principle, and we want to make sure that there are clear rules in place to protect against these kinds of incursions on civil liberty. KWAME HOLMAN: What could you envision Terry doing improperly? TIMOTHY EDGAR: Again, I don't know that it would be useful to speculate on that. Obviously if the military's mission is to use overwhelming force to defeat a foreign enemy, which is its general mission, that's just not the same mission as the civilian police. And so it's important that we don't use that blunt instrument or that different tool for something that needs the tool of the police agency. It's not that it has anything to do with the bad faith of anyone in the military. It has to do with the basic structure and overall mission of that organization. KWAME HOLMAN: There will be an intelligence function in the Northern Command. Do you have a sense of what they would be doing and how they would relate to existing domestic security and intelligence agencies? TIMOTHY EDGAR: Well, it raises a lot of questions. There was a program during the '50s and '60s where the Pentagon was involved in receiving information about protestors. It was called Continental United States - based on some of our exaggerated fears of leftist movements in the U.S. That's not the kind of thing we would want to have our military to be involved in. They obviously need to have access to the information which is important for them to do their job. But we don't want the military certainly to be spying on Americans for their political activities. We don't want any one in the federal government to do that, but we certainly don't want that to be a job which is primarily assigned to the military, as opposed to domestic law enforcement. KWAME HOLMAN: Your organization and plenty of other people have raised questions about the U.S.A. Patriot Act and what Mr. Ashcroft is doing - terry tribunals - I got what the Pentagon calls it for a moment - detentions without trial - there's a FISA court -- this sort of thing - do those concerns impact on your feeling about the Northern Command? TIMOTHY EDGAR: Well, I think they do. Again, it's not really fair to the Northern Command to put the blame on them for these decisions that were made by the President or at the highest levels of the Administration, but certainly one fear about the involvement of the military in domestic law enforcement is the arrest power - the power to put a person in prison. And with the government asserting a power to do that without review, when a person is labeled an enemy combatant, without review, without charge, and without meaningful access to counsel, it certainly makes - it makes us raise our eyebrows a bit at the notion that we would be using the military again in an area where civilian agencies have always functioned adequately, for example, to arrest and to imprison terrorists. KWAME HOLMAN: Do you have - by the way, Tim, I don't - just remind you that there's no constraint on you in terms of the length of your answers. TIMOTHY EDGAR: Okay. KWAME HOLMAN: Feel free to go as long as you want. It's not your job to write the regulations inside the Pentagon or to write the legislation in Congress. Are you understanding that people are considering - I mean, we've heard a lot about people saying let's look again at posse comitatus and let's write something. Do you have the feeling that members of Congress and/or unelected officials are going to lay down new language as respects what the military can do? TIMOTHY EDGAR: Well, it depends on what the new language would be. I think it's been clear because of the many exceptions in the Posse Comitatus Act for many different things that supplying assistance to the law enforcement agencies and dealing with serious problems and breakdown of public order that most thoughtful observers are saying that doesn't need to be weakened, it doesn't need to be amended in order to permit activities that are barred, but instead are saying maybe if we're going to take a look at this, we should clarify those exceptions to make sure they don't swallow up the rules, and I would hope that if members of Congress and the Administration are looking at posse comitatus, they keep those things in mind. KWAME HOLMAN: You know we were just, again, Colonel Brinkerhoff is a retired military person we were just talking to, and he talked about - I know you're aware of this -- the fundamental makeup of the military person is first and foremost to submit to civilian control, and that it's so much a part of what they do from the beginning of boot camp or whatever that people should be comforted by that. TIMOTHY EDGAR: Certainly our military is under civilian control, and our military men understand that. But the question involved in policing is really which civilian. If the military is involved, for example, in a particular area, ultimately if you go up the chain of command, you get to the President of the United States. And there is no role in that chain of command for the mayor, the governor, and there's other civilian agencies that normally handle law enforcement. Now, we hope they work together cooperatively, but that kind of tension can create problems, and it's one of the reasons that we don't generally involve the military in civilian police activity. KWAME HOLMAN: General Brinkerhoff talked about the need for a massive evacuation, he said that there were just plans here in Washington - I hadn't heard about this - that - got together and was talking about how to move ½ million people into the suburbs and the hinterlands and so forth, and that the military has the discipline and communications, the infrastructure to help make that happen. You don't doubt that there are roles for large numbers of active duty military who are disciplined and can communicate well. TIMOTHY EDGAR: Well, again, if you're trying to evacuate all of Washington, D.C., or a major city, if it comes to that, that is part of the important role, whereas the military is the only agency to do that that, if the National Guard can't do that, if the local police can't do that because it's too massive a task. Now it is the sort of thing that would be part of the mission, but it's important that we not allow that to become mission creep or to replace the need for long-term solutions, the greater civilian, greater civilian security. For example, if the military is going to be called in to deal with the Super Bowl or with something like that, I mean, that is a recurring event; it happens every year. We need to make sure that our civilian police agencies, border agencies, their security agencies are capable of providing adequate - if they're not, then we need to train them and get more of them, rather than to try to fit the square peg of military into the round hole of civilian enforcement. KWAME HOLMAN: Maybe - trying to imagine a nightmare scenario - and ask you a scenario in which you would welcome the military's involvement. TIMOTHY EDGAR: Well, again, you know, on September 11, for example, once those planes were heading to the buildings, unfortunately, that was perhaps the only way to stop that, would be through the military - the example that you gave: If there was a catastrophic use of chemical or biological weapons and there was a total breakdown of order because there needed to be an evacuation or quarantine, I mean, there are these situations. And what's necessary is to make sure that there isn't mission creep, that the military isn't, you know, planning on these situations; they don't happen and then we turn to them as a convenient way out of our problems of beefing up our civilian security. KWAME HOLMAN: What would be the short-term, medium-term, long-term harm of that happening? TIMOTHY EDGAR: Again, the importance of civil liberties is when you walk down the street, you have a right, for example, to be searched only if there is reasonable suspicion; you have a right to be put in prison only if the government has probable cause to detain you. These are basic rights that are inherent in the 4th Amendment, basic rights that are inherent in the 5th Amendment. And so the police forces of this country are really the ones that have been trying to apply the minimal force needed to ensure public safety in the area of crime… The military involved really - when the military gets involved, those rights are not the primary concern. The primary concern is to protect the security of the nation, to destroy an enemy that's unable to be taken down or handled with those - with those rights in mind, and so that's why we don't want the military to be involved in those routine functions. Again, we send our troops to other countries to get the militaries out of those nations out of the business of policing their citizenry, of providing internal security, and back into the business of providing for national defense of that country - and that's because again it's - it's not just an outdated law that's sat on the books for a hundred years - it's a basic principle of democracy and it's something that we need to uphold. KWAME HOLMAN: Make sure I got the phrase right that you said to Dan - what you referred to, what you told Dan is respect for civilian principles. TIMOTHY EDGAR: Right. KWAME HOLMAN: That military is not constructed to do that. TIMOTHY EDGAR: It's not its mission in the sense that I don't doubt that every member of the military has deep and abiding respect for the Constitution and their job is to defend the nation but it's to defend the nation in a different way. It's to defend it using the power of the military. It's one of the most awesome powers the President has. It's the reason Congress needs to authorize military force. It's the reason that it's such a grave matter, and so it's important that those - for institutional reasons -- that those principles be respected. KWAME HOLMAN: Is there - are there other things that concern you as - the Northern Command and the sort of - I was watching General Eberhardt on videotape - engaging -- I mean, they are -- for the first time there will be this command that will be in control of missile defense ultimately and the air defense system, satellite, whatever - and Canada, the United States, the lower 48 - I don't know about Hawaii - Mexico and out into the Caribbean and so forth - is it a good idea just to have that kind of force, or would your - do your concerns about it mean that maybe the military shouldn't even put an umbrella over the Continental United States? TIMOTHY EDGAR: Well, I think those questions are really ones the military needs to determine about how it's going to create greater coordination in the armed forces. Our concern has been that in the past there has been this institutional and perhaps bureaucratic reluctance to get involved with some of these matters. If the creation of the Command is going to overturn that reluctance, is going to channel that military in a way that hasn't been used before, what's going to replace that? And our answer to that is that it should be a renewed commitment to the principles of using civilian police in charge of domestic enforcement as a first - as first - the first line of response - that those principles in the Posse Comitatus Act that have been eroded over the years because of these exceptions need to be renewed, and so that's our answer. One way of doing it is to not have the command at all, but if they think the command is so essential to our national security, then this is another option that we think would help protect American civil liberty. KWAME HOLMAN: To state clearly what they would be doing. TIMOTHY EDGAR: That's right. If there's concern, for example, I've hard Douglas Kmiec, for example, say, well, we need to have clear guidelines because we don't want the military to be sent to do something and then be told that they can't do the job, that they can't investigate or they can't arrest, or they can't do the things that are necessary to do the job - and my answer to that is maybe they shouldn't be doing that job. That has to be one of the things that's considered. We shouldn't simply say, well, the problem is that these military officers don't have these powers because those are police powers. We should say if that's the problem, maybe the solution is to beef up the civilian security, rather than use the military in that kind of a situation. And the example I gave you is from when the military was sent to the northern border after 9/11; I mean, that's an example of a stopgap measure. If we need greater security on the northern border, then we need it, but that doesn't mean we should erode the basic principles of our democracy by putting military officers in charge of something that is a civilian task. KWAME HOLMAN: So you might favor if it's deemed by the new homeland security director and in liaison with the rest of security aspects of the government that you need somebody to go up to the northern border or the coast or whatever - that rather than have the military do that, let's create or bolster our civilian forces. TIMOTHY EDGAR: That's right. If our civilian security agencies are unable to handle the threat, then they should be bolstered, but that should be the long-term solution If there's a need for more Coast Guard or for more Border Patrol or for more FBI agents, then that's the solution The solution is not to try to fit the military into those gaps in a way that, that they don't fit. KWAME HOLMAN: I want to ask you again, Tim, about - I mean, if you would not have them be involved in like on the ground drug interdiction such that they're not shooting the wrong person and you wouldn't have them going up to the border as prevention, prevention against some perception that something is going to happen - what would they do -- TIMOTHY EDGAR: Again, you have to ask yourself the question, is this a job that the civilian agencies can handle, not whether there are enough of them, whether they hired enough officers, that sort of thing, but in principle is it something that a civilian police agency can handle, and if the answer to that is yes, then the military doesn't get involved, but if the answer is no, as it might be in the case of evacuating an entire major city or in the case of dealing with the aftermath of a weapon of mass destruction or preventing a particular sort of plane from creating havoc, then that is the role of the military to be involved, because they do have this; they're the ultimate guardians, if you will, of public safety when everything else fails. And I guess my concern is that current guidelines lack that basic idea and it's saying - military for police except - boom, boom, boom, boom, and all those exceptions added together could be used to permit the military to be involved in many more situations than what I've outlined. KWAME HOLMAN: And might not police departments in big cities welcome them, might not - you know, city councils and budgeters at state and local levels welcome the opportunity to have this provided for them? TIMOTHY EDGAR: Well, again, it's an easy out. It's a short-term solution, so for example when the Posse Comitatus Act was first being considered, that was the problem. Local sheriffs would say we don't have enough men; we'll go down to the barracks and get a bunch of troops out, and it just doesn't - it doesn't work in a democratic society. It puts - it puts the citizenry too much in contact with their military not for the purpose of fighting wars and it's bad for the military because it erodes their basic role, their important role in homeland security and in fight external threats. KWAME HOLMAN: Colonel Brinkerhoff - again - he talked about going back to the inception of the country and of the British Quartering Act and the founding fathers wrote no standing army into the early document. There's a feeling about - about military people in contact with civilians. TIMOTHY EDGAR: I mean, that's right. I mean, obviously the framers understood that the military was a tremendous instrument of power, that it had its uses but that it needed to be controlled, and so one of the complaints against King George was that he had made the military independent of the civilian power, and many of the elements of the Constitution reflect that basic judgment; the Quartering Act - and the requirement that appropriations be made only for two years, for example, was to prevent a permanent standing army. Now obviously in our modern world we have a military and we need a military to defend the country and to defend its interests abroad, but those basic principles of democracy haven't changed. And the fact that it's possible that these nightmare scenarios we're discussing may seem more likely to us doesn't change the basic principle of when the military can and should not be involved. It just changes, you know, our conception of how likely it might be that it would happen. KWAME HOLMAN: A lot of people we've talked to have suggested bolstering the National Guard and Colonel Brinkerhoff suggested going back he said only 17 states have really a functional state guard in and out of over the last four years. Would you like to see - and then he talked about the hierarchy - the local state - the state guard under the control of the governor and then the military. Would you like to see the National Guard controlled by the states increased? TIMOTHY EDGAR: Well, that's one other solution; that's sort of an intermediary between police and the military. You know, certainly if the National Guard is given the same exact military mentality as the Army, that could also create problems. I mean, it shouldn't get involved again unless the local and state police are unable to handle it. But it is sort of an intermediary between the police force and the actual U.S. Army, and so that would be one thing that could be looked at in terms of bolstering… KWAME HOLMAN: As Dan said, Colonel Brinkerhoff, we were talking about those people who haven't even heard of posse comitatus as preventing the military from being on street corners, but that was-any concern about the military being on street corners wasn't the reason that posse comitatus was put into place. TIMOTHY EDGAR: Well, I don't think that's quite right. I mean, it is true that posse comitatus was enacted in part to prevent the military from being misused by civilian authorities, in other words being used to supplement their budget or to put them in command of military forces, but it's also true that the history of the Act makes it very clear, that people wanted to make sure that this military was not involved in domestic law enforcement, so that was an additional purpose for the Act being passed. It was passed shortly after Reconstruction, and in that period in our history both the North and the South had suffered - you know - had seen in their daily lives the military being involved, and the North had before the Civil War, with the hunting down of fugitive slaves in a way that they found to be just total violation of their basic understanding of how things would look and the South of course had seen it during the military occupation of the former confederate states. So although I understand that that is part of the reason the Act was passed, it's not the only reason for it, and it's not the only reason that it's relevant today. Again, we send our troops to other countries to get their militaries out of the business of internal security, and we do that because it's a basic principle of democracy. It's reflected in many of our constitutional provisions and our laws, not just in one law that was passed a century ago. KWAME HOLMAN: All right. The Marine Corps' Chemical, Biological Incident Response Force is up and running; apparently there are going to be some more and they've been criticized by some analysts as being, you know, there are few of them - they're not going to be there in the fire department or in the police department - that maybe it would be better to spend that money and have that equipment at the local level. But they also were at this exercise and their security, the security they bring with them was part of the exercise and the fire chief did say he kind of liked the fact that here they are, they're military, they're trained, they're in the martial arts, and they have weapons, they can help us out with a little crowd control. TIMOTHY EDGAR: Well, I think that just shows the potential dangers for mission creep, that once you've trained people within the military agencies, rather than spending those resources on civilian policing agencies and other fire departments and other response teams, then the obvious question is well, why wouldn't we want to use this force that we spent taxpayer dollars to create and so it's important that at the outset, when we make those decisions about what we're going to beef up, we think about the basic principles and say to ourself does it make sense to put in place these dollars and training into a part of our government that we have always felt should only be used in the most catastrophic of circumstances if we think and realize that those forces would be used more routinely? It's exactly the kind of foresight that needs to happen before we've spent that money or created that kind of agency, because then it's very difficult to change. And the temptation to use it is of course very great. KWAME HOLMAN: Okay. Thanks, Tim; I really appreciate it