War Plans Drafted To Counter Terror Attacks in U.S.

Legal Questions

Civil liberties groups have warned that the military's expanded involvement in homeland defense could bump up against the Posse Comitatus Act of 1878, which restricts the use of troops in domestic law enforcement. But Pentagon authorities have told Congress they see no need to change the law.

According to military lawyers here, the dispatch of ground troops would most likely be justified on the basis of the president's authority under Article 2 of the Constitution to serve as commander in chief and protect the nation. The Posse Comitatus Act exempts actions authorized by the Constitution.

"That would be the place we would start from" in making the legal case, said Col. John Gereski, a senior Northcom lawyer.

But Gereski also said he knew of no court test of this legal argument, and Keating left the door open to seeking an amendment of the Posse Comitatus Act.

One potentially tricky area, the admiral said, involves National Guard officers who are put in command of task forces that include active-duty as well as Guard units -- an approach first used last year at the Group of Eight summit in Georgia. Guard troops, acting under state control, are exempt from Posse Comitatus prohibitions.

"It could be a challenge for the commander who's a Guardsman, if we end up in a fairly complex, dynamic scenario," Keating said. He cited a potential situation in which Guard units might begin rounding up people while regular forces could not.

The command's sensitivity to legal issues, Gereski said, is reflected in the unusually large number of lawyers on staff here -- 14 compared with 10 or fewer at other commands. One lawyer serves full time at the command's Combined Intelligence and Fusion Center, which joins military analysts with law enforcement and counterintelligence specialists from such civilian agencies as the FBI, the CIA and the Secret Service.

A senior supervisor at the facility said the staff there does no intelligence collection, only analysis.

He also said the military operates under long-standing rules intended to protect civilian liberties. The rules, for instance, block military access to intelligence information on political dissent or purely criminal activity.

Even so, the center's lawyer is called on periodically to rule on the appropriateness of some kinds of information-sharing. Asked how frequently such cases arise, the supervisor recalled two in the previous 10 days, but he declined to provide specifics.