The Role of Military Intelligence in Homeland Security
| Author | Stephen Dycus |
| Position | Professor at Vermont Law School |
| Pages | 77-807 |
Page 779
The author is a Professor at Vermont Law School. Special thanks are due to Edward Demetriou, Emily Wetherell, Matthew Einstein, and Byron Kirkpatrick, all students at Vermont School, for their assistance with research for this article.
If, God forbid, the American homeland is struck by another major terrorist attack, military forces will very likely be involved in the response. There can be little doubt, for example, that if pneumonic plague bacilli are released in Chicago and infections result,1 the entire city will have to be quarantined as soon as the contagion is detected. Nor is there any doubt that troops will be used to enforce the quarantine. Only the Pentagon and National Guard units have the personnel, equipment, and training to do the job.
Military forces also may be able to help prevent another attack or at least reduce its impact. On September 11, 2001, for instance, Air Force and Air National Guard jets were sent aloft in an unsuccessful effort to intercept and perhaps shoot down the civilian airliners that had been commandeered by terrorists.2
Whether in the response to a terrorist attack or in its interdiction, military intelligence services will directly support the military's use of force at home, just as they provide information and analysis for other military activities around the world. But these same military intelligence services appear poised to assume a much broader responsibility for domestic counterterrorism. A recent Pentagon report on the military's role in homeland security notes that while Page 780 "terrorism that targets the homeland is fundamentally a law enforcement matter that is best addressed by domestic law enforcement entities with DoD in a supporting role during crises, the Department has a responsibility to protect its forces, capabilities, and infrastructure within the United States."3 It then goes on to suggest, however, that "Service and DoD law enforcement/counterintelligence organizations and NORTHCOM . . . have leading roles in collecting and analyzing information and intelligence, and in conducting investigations and operations to prevent or preempt terrorist attacks."4This view reflects a dramatic change in what we have understood-;at least for the last three decades-;to be the "normal" relationship between the military and the rest of American society.
Before we agree that military intelligence services should play a more expansive role in our domestic life, several practical questions need to be addressed. One of the most important questions is whether such a change would actually make us more secure. Would a more aggressive use of military intelligence at home make a uniquely valuable contribution to current counterterrorism efforts of the FBI, local law enforcement, and other civilian agencies? Or would it be merely redundant, wasteful, and perhaps even counterproductive?
Another key question is how more expansive military intelligence activities would affect Americans' privacy and related liberties. If sacrifices were required, would improvements in security make those sacrifices worthwhile? If the balance did not clearly favor security, should the military intelligence services perhaps be barred from actions that do not directly support the use of military force? If they are not barred, are there clear legal limits on their activities inside the United States? Should there be?
These questions are presented in the midst of an unprecedented effort to organize and harmonize this nation's homeland security activities. They also arise against the background of a deep-seated American tradition of avoiding military entanglement in civilian affairs.
A little history and a brief look at recent developments may help to provide some answers. In this article we first briefly review the deeply enshrined antipathy toward involvement of the military in any aspect of American life. Then we consider the domestic use of military intelligence services from the American Revolution to the Vietnam era, when their extensive deployment for political purposes Page 781 provoked a public outcry and congressional, as well as executive, actions to curb them. Next we review legal authorities bearing on this use, and we trace the development since the mid-1990s of special measures to prevent or respond to a terrorist attack on the American homeland. We then consider several current initiatives, responsive to the ongoing terrorist threat, that may invite or at least permit new military intelligence intrusions into domestic affairs. Finally, we take up a modest proposal for new measures that could help strike the right balance between liberty and security-;leaving military intelligence services free to support the Pentagon's homeland defense mission, but consigning other aspects of domestic counterterrorism to non-military parts of the law enforcement and intelligence communities.5
In a 1972 case, the Supreme Court referred to the "traditional and strong resistance of Americans to any military intrusion into civilian affairs."6 Since the earliest days of the Republic, in fact, Americans have worried about the risks associated with maintaining a standing army and more generally with giving the military a prominent role in civilian life. These concerns were summed up in a 1985 judicial decision:
Civilian rule is basic to our system of government . . . . [M]ilitary enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces.
The interest of limiting military involvement in civilian affairs has a long tradition beginning with the Declaration of Page 782 Independence and continued in the Constitution, certain acts of Congress, and decisions of the Supreme Court. The Declaration of Independence states among the grounds for severing ties with Great Britain that the King "has kept among us, in times of peace, Standing Armies without Consent of our Legislature . . . [and] has affected to render the Military independent of and superior to the Civil power." These concerns were later raised at the Constitutional Convention. Luther Martin of Maryland said, "when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army."7
To avoid the military excesses spelled out in the Declaration of Independence, the Framers took care to place overall control of military forces in the hands of a civilian Commander in Chief. Yet at the end of the Civil War the Supreme Court warned that even this precaution might not always suffice:
This nation . . . has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.8
The intervention of the judiciary was needed, the Court said, to preserve a proper balance between the political branches and to protect the values set out in the Bill of Rights from improper domestic uses of the military.9
Despite all these misgivings, military forces, and in particular military intelligence personnel, have been actively involved in homeland security from the very beginning. General George Washington was America's first spymaster. He made extensive use of espionage, counterintelligence, surveillance, and cryptography during the Revolutionary War.10 These efforts led, for example, to Page 783 the unmasking of General Benedict Arnold.11 President Lincoln also relied heavily on military intelligence during the Civil War.12
Throughout Reconstruction and afterward, military intelligence gathering continued at home. Such efforts were not for homeland defense in the traditional sense, however, but for law enforcement and political purposes. During the Hayes administration, for example, Army Signal Corps weather observers collected information on labor agitators.13 In World War I the military conducted extensive domestic surveillance, ostensibly in search of German spies and saboteurs, although ordinary citizens who objected to wartime policies or to the war itself were also targeted.14 Later the focus shifted to communists, socialists, and pacifists, while the military gradually began to share its domestic surveillance responsibilities with the FBI.15
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