By Donna Miles
American Forces Press Service
PETERSON AIR FORCE BASE, Colo., Jan. 23, 2013 – Every time U.S. Northern Command and North American Aerospace Defense Command get involved in a mission, a team of lawyers here pays extra close attention.
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Connors oversees a staff of 17 active-duty and 15 reserve lawyers -- the most assigned to any U.S. combatant command. Their job is to advise Army Gen. Charles H. Jacoby Jr., the NORAD and Northcom commander, to ensure the commands remain squarely within the law as they operate in the homeland.
With a homeland defense mission that crosses every domain -- air, land, space, maritime and cyber -- and support roles when needed during domestic disasters and to conduct theater security cooperation assistance, the commands’ activities fall within a huge body of law.
These laws dictate what military forces can and can’t do inside the United States, Connors explained. They also differentiate between missions federal forces can conduct and those reserved for National Guardsmen operating in a state capacity.
Northcom uses military assets to watch outward for threats headed toward the country, but largely plays a support role for those already within its borders. Military members can support civilian law enforcement for counterdrug operations within the United States, but can’t get directly involved in law enforcement activities. They can perform designated missions such as delivering fuel and distributing supplies following a natural disaster, but can’t do jobs that would take revenue from private companies.
Simply put, many of the missions that U.S. forces conduct every day outside the United States can’t be done within Northcom’s area of responsibility.
“Something might sound like a great use of Department of Defense assets, but things can get very complicated when you look at them from a legal standpoint,” Connors said. “There’s a robust system of laws, policies and regulations that define exactly what is an appropriate use of DOD forces. … So our job is to ensure that in everything we as a command do, we are operating within that framework.”
It all stems back to 1878, when the United States enacted the Posse Comitatus Act.
As the decade of Reconstruction following the Civil War drew to a close, Congress passed the landmark legislation to prevent the federal government from using federal troops to enforce state laws, explained Lance Blythe, command historian for Northcom and NORAD.
The years leading up to passage of the Posse Comitatus Act had been challenging for the United States, Blythe said. Some of the new legislators elected in the former Confederacy were turning a blind eye to new laws designed to institute political reforms and protect former slaves. Concerned that the federal government would dispatch troops to enforce these laws, they pressed for a statute to prohibit the federal government from imposing federal troops in any U.S. state.
More than 100 years since its enactment, the Posse Comitatus Act continues to guide everything the military does while operating in the homeland. “Basically, it means that you won’t have a posse of Department of Defense people going out and providing law enforcement,” Connors said. “That is not their role.”
Posse Comitatus does not limit the military’s role in military operations against external threats and in defense of the United States, Connors said. But it draws a clear line within U.S. borders, recognizing that law enforcement responsibility belongs to federal, state and local law enforcement, including the National Guard.
“This is important, because you want the military doing military operations,” Connors said. “It keeps defenders focused on defense, and security [experts] focused on security.”
Although initially written to prevent military forces from enforcing state laws, the Posse Comitatus Act has been extended by policy to prohibit direct military involvement in all law enforcement activity, Connors said.
But recognizing the military’s special capabilities, Congress has authorized specific exceptions in which military forces can be used domestically -- as long as they operate within strict compliance with the Constitution and U.S. laws, he said.
That generally confines them to a supporting role: typically for the Federal Emergency Management Agency during a natural disaster and, in other cases, for the Justice Department or other civilian law enforcement agencies.
Congress, for example, specifically authorized the use of military forces to support counterdrug operations, to assist the Justice Department in crimes involving nuclear materials and in emergencies involving chemical or biological weapons of mass destruction.
With growing awareness of the capabilities the Defense Department has to offer, and proven performance of U.S. forces to support domestic operations, Connors said he anticipates greater demand for them in the future.
“That is why we need to have a robust legal staff in a place like this,” he said. “In everything we do, there’s a line we need to walk. And when things start to move closer to that line, that’s when the lawyers get more and more involved.”
One example of a particularly difficult legal scenario is the Insurrection Act. That law predates Posse Comitatus, authorizing the president to use U.S. military personnel to suppress an insurrection. The last time that law was invoked was during the Los Angeles riots in 1992, and Connors said he envisions few circumstances when it might be used again.
“It would have to be the most complex of catastrophes,” he said.
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