A soldier's-eye view of the homefront: examining domestic military laws through the lens of military doctrine.

• Author: Florczak, Joseph

INTRODUCTION

The military's domestic law enforcement role creates intense debate over United States law and policy. Some scholars argue for only limited use and strict control over domestic use of force and military law enforcement, arguing that such usage impinges upon important civil rights and carries too high a risk of tragedy or abuse. (1) They propose substantial checks on this executive power similar to those present upon civilian law enforcement agencies. (2) In the opposing camp, commentators argue that abstract concerns over civil rights fail to respond to real-world emergencies and threats. (3) They point to natural disasters and looming terrorist threats as situations ill-suited to burdensome safeguards. (4) Often these arguments call for lifting restrictions on the executive branch to enable both rapid action and full application of military capability to meet exigent circumstances. (5)

Likewise, commentators debate over the desired means of domestic military control. Some insist that careful and clear language from Congress will serve as the best safeguard. (6) A few voices in the debate discuss the role of state authority on the issue. (7) Others insist that judicial restrictions are the most appropriate. (8)

These debates lack substantial reflection on how these various compromises translate into successful execution of these policy goals. The ideas governing the military forces are more fluid than the forces themselves. Successful military operations almost always adhere to classic "doctrinal" military principles--principles that often determine whether the military aims can be achieved, as distinguished from whether the aims should be achieved. (9)

This Note aims to explore this gap in the current discussion. It seeks to illustrate what "right" looks like in protecting individual liberties alongside the common welfare. It evaluates the current alignment of laws and policies against principles of military doctrine and determines how well they work together to facilitate success. Finally, it proposes that use of state-federal controls on domestic military use, along with some limitations on the existing federal role, would strike a better balance than the current and proposed federal-only controls.

Part I of this Note begins by defining what "right" looks like in finding a proper balance between protecting individual liberties from military incursion and protecting the common security by maximizing military options. Part II examines the instruments of that social policy and will highlight important differences in the capability and domestic authority of U.S. federal and state military forces. (10) It will also introduce the doctrinal principles critical to their ability to succeed. Part III evaluates whether current federal laws implement sound policy and whether they facilitate doctrinally-sound military operations. Part IV explores some alternate views, proposed changes to federal laws, and how successfully they balance social policy and enable military success. Part V concludes that state-federal controls and some federal limitation might bring about the best three-way balance between liberty, common welfare, and military success.

1. BALANCING LIBERTY AND SECURITY INTERESTS: WHAT RIGHT Loom LIKE

   Commentator debates over the military's proper domestic role fracture along lines similar to debates on traditional law enforcement functions. The essential arguments contrast individual liberty with collective security, and various commentators place differing normative value on each. (11) Though the requirements of each can be at odds, common ground can be found between them.

   Recent history provides illustrative examples of the domestic military playing the role of both hero and villain. The military might readily abuse individual civil rights by using excessive lethal force, interfering with freedoms of expression or assembly, or conducting unmonitored, intrusive surveillance. Moreover, combined military and law-enforcement training may "leak" these undesired attributes into the organizations focused on routine law enforcement. Nevertheless, the military has superior capabilities to address certain types of emergencies and incidents. Suppressing insurrection, enforcing federal law in the face of state opposition, restoring order to cities torn by man and nature, and countering criminal use of military technology are tasks where no other government agency can respond as rapidly and effectively. A proper balance depends upon preventing unwanted abuses without crippling needed capabilities.

   1. Civil Rights Concerns

      1. Military Use of Lethal Force

         One of the most obvious risks in domestic military interventions is that of excessive lethal force. Military formations are built to inflict maximum lethal force in the shortest time possible. (12) The prospect of sudden, violent, and summary execution is directly at odds with constitutional guarantees of due process. (13) Such incidents damage government credibility and leave lasting impressions on the public. (14) The Kent State Massacre grimly illustrates this danger. (15) In that 1970 incident, Ohio National Guard troops shot and killed a number of unarmed college students while responding to campus protests against the Vietnam War. (16) In 1993, military armored vehicles breached and rubbled the Branch Davidian compound in Waco, Texas while acting under the direction of the Bureau of Alcohol, Tobacco, and Firearms (ATF). (17) The ensuing fire and violent chaos killed numerous men, women, and children. (18) These deaths occurred without the intense due process that accompanies ordinary use of the death penalty. (19)

         Amplifying this danger, such lethal force may arise because of the fundamental mismatch in the organization and training between the military and law enforcement. An anecdotal example illustrates the point: during the 1992 riots in Los Angeles, Marines escorted a police officer to the scene of a domestic disturbance. (20) After someone in the house shot at them, the officer called for the Marines to "cover him" as he approached the house. (21) In law enforcement training, "to cover" is to point a weapon towards an area and to fire if necessary. (22) In Marine Corps training, "to cover" is to saturate an enemy position with a large amount of gunfire to prevent accurate enemy return fire. (23) The Marines "covered" the officer according to the latter definition, firing nearly 200 bullets into the house before the police officer could stop them. (24) Though no injuries resulted, the dangers of miscommunication in such an environment are obvious. (25)

      2. Military Intrusion on Individual Civil Liberties

         Both intentional and incidental suppression of the freedoms of speech and assembly by the military are concerns. Freedom from such assertions of governmental power was a core concern of the Constitution's framers, and these concerns continue to be relevant. (26) The internment of Japanese and Japanese-American citizens during the Second World War aptly illustrates the dangers of routine domestic military law enforcement. (27) Military restrictions escalated from nightly registrations and curfews to forcible relocation of families based merely on the threat of military sabotage. (28)

         The Reconstruction period following the American Civil War illustrates the danger of incidental rights suppression by a constant military law enforcement presence. (29) Tensions over the South's military occupation peaked when federal troops protected presidential polling sites, and the perceived effect on voters in a close presidential election angered citizens. (30) More recently, President Bush considered using military members to arrest members of a suspected terrorist cell, and raised the possibiliy of abuse to politically unpopular, vulnerable groups. (31)

         Hidden or covert military presence may endanger civil liberties as much as an oppressive, overt presence. Law enforcement agencies focus on gathering evidence for use in later judicial actions. Military intelligence assets focus on gathering relevant information as completely as possible for operational use. (32) Military electronic eavesdropping and other surveillance devices can intrude substantially into civilian privacy and constitute unreasonable searches and seizures. (33) Recent incidents highlight these risks. In 2002, the Secretary of Defense authorized domestic military electronic surveillance to assist in the capture of the "D.C. sniper," (34) and controversy ensued after military intelligence agents questioned members of an Islamic law symposium at the University of Texas. (35) Court reluctance to impose an "exclusionary rule" on evidence gathered by unauthorized military participation in law enforcement exacerbates the concerns. (36)

      3. Military Influence on Law Enforcement

         Military threats to civil liberties do not come solely from military forces. Such threats can exist where the military merely extends influence. (37) Close cooperation and shared training between military and law enforcement members can result in undesired military attributes crossing over to law enforcement agents. (38) For example, police S.W.A.T. teams are often composed of former military members, carry weaponry and protective gear similar to military forces, and employ variations of military tactics. (39) Though some of these techniques may be necessary to deal with certain dangerous or violent criminals, creation of such a "paramilitary" organization may undermine the American civil law enforcement tradition. (40) The 1993 Waco siege is again instructive. In that incident, federal law enforcement agents served a "search warrant" with dozens of agents and military air support, and the agents used military rifles, grenades, and vehicles to lay siege to the compound. (41) The ensuing violence claimed many lives without the protections of due process. (42) Extensive training in military tactics necessarily makes...