Widespread civil violence inside the United States would force the defense establishment to reorient priorities in extremis to defend basic domestic order and human security. Deliberate employment of weapons of mass destruction or other catastrophic capabilities, unforeseen economic collapse, loss of functioning political and legal order, purposeful domestic resistance or insurgency, pervasive public health emergencies, and catastrophic natural and human disasters are all paths to disruptive domestic shock.1
KNOWN UNKNOWNS: UNCONVENTIONAL “STRATEGIC SHOCKS” IN DEFENSE STRATEGY DEVELOPMENT, NOVEMBER 2008
The executive agents who have decided that the Constitution is an impediment have shown great awareness of the fact that, at the end of the day, the primary tool for ensuring their preferred outcomes is the military. The evolution of the internal (as opposed to foreign) role of federal troops is complex and often intentionally confusing. One way to obscure who’s in control is to make certain it is obscure who’s in control.
On August 25, 2005, when Hurricane Katrina was just crossing the state of Florida, four days before it made landfall in Louisiana, while the Bush administration was still on vacation, the 3rd Brigade of the 82nd Airborne Division at Fort Bragg received a warning order: be prepared to move to New Orleans.2
The selection of the “All-Americans” wasn’t by chance, and it had nothing to do with President Bush’s later call for them to take up humanitarian duties. Since the Korean War, the 82nd has been designated the vanguard of a “strategic reserve,” the force that would be called out in a crisis or for missions other than big wars, which it was: in the Dominican Republic, Nicaragua, Grenada, Panama.
The 82nd was also part of a very special quick-reaction force with unique duties on American soil.3 Known as the Civil Disturbance Task Force,4 over the years it has also gone by the names Joint Task Force 250, Joint Task Force 140, Task Force Washington, and Joint Task Force MACDIS, the last an entity with an inscrutable acronym standing for “Military Assistance for Civil Disturbances.” The task force has no permanent headquarters and formalizes and expands as the situation demands. Furthermore, the Civil Disturbance Task Force is actually five task forces: one responsible for maintaining two federal brigades in readiness for an incident in the continental United States; one responsible for action solely in the nation’s capital; a third held in reserve for both reinforcements and the possibility of multiple events occurring at the same time;5 and two additional and separate task forces, one each for Alaska and Hawaii.6 Under this arrangement, a domestic quick-reaction force has been on 24/7 alert every day of the year for more than five decades, with a subunit of 300 to 500 men required to move in less than six hours if a civil disturbance seems likely.7
Today, the 82nd isn’t the only active-duty military unit assigned this mission—other brigades and battalions from the XVIII Airborne Corps at Fort Bragg; from the III Corps at Fort Hood, Texas; and from the marine corps8 are also assigned task force duty,9 but the 82nd—“America’s 911 Force,” as they’ve dubbed themselves—is the unit that is most widely known and visible, and one of the few that speaks openly of its otherwise sensitive tasking. Like all of the units earmarked for action under the Civil Disturbance Task Force—and completely contrary to the utterances of Donald Rumsfeld and others during Hurricane Katrina—the 82nd receives specialized civil disturbance training and is issued special equipment to carry out its domestic mission, from nonlethal weapons to pepper spray and tear gas.10 These are hardly just nineteen-year-old marines with guns.
The task force is also completely lawyered up. As duty in New Orleans approached, specialized attorneys drafted the language of the 82nd Airborne’s formal orders so that the mission, regardless of any confusion in Washington or fighting between the president and the governor, would fully comply with the Constitution and the law. “The situation in the areas affected by Hurricane Katrina has exceeded the capabilities of State and Local Authorities,” the unit’s orders said, creating the conditions to preempt a state request and providing the legal wording that might accompany a presidential decision. Justifying self-defense, the orders added, “Civil unrest/disorder presents a clear and present threat to troops deploying into the area of operations.” And the Fourth Amendment was covered as well: Paragraph 3.E.1.M of the orders made it crystal clear that: “Unless specifically authorized, personnel will not participate in activities that constitute search, seizure or arrest of individuals, participation in pursuit or surveillance activities, investigation, interrogation, evidence collection and/or security functions or crowd control.”11
General Honoré added his own admonition in a fragmentary order (“FRAGO”) that made it clear that forced evacuation of anyone from their home, if they didn’t want to leave, was a law enforcement action and thereby prohibited: “No JTF Katrina task force service member will perform or assist with any type of forced evacuation of any citizen in the AO [area of operations].”12
National security was covered, too: use of force was authorized to protect and defend the full panoply of assets designated by the president as “vital to the national defense,” including the vague catch-all of critical infrastructure.13 The orders also required every battalion to deploy an antiterrorism officer just in case they encountered al Qaeda in New Orleans.14
The modern-day civil disturbance mission emerged in 1967, when domestic orders for federal troops shifted from enforcing legislation—as they had done from 1957 to 1963 in the South, forcing states to implement decisions made by federal courts—to, at least in theory, protecting states against internal domestic violence, which was the constitutional justification to call out National Guard and federal troops.
Organizationally, the army, as the dominant military service, had been assigned “primary responsibility” for the United States as a theater of war in 1956. In what was probably one of the strangest bureaucratic moves ever to happen in Washington, where claiming control is as involuntary as breathing, the Joint Chiefs as a body even expressly “dealt themselves out of a role” in domestic matters, giving the army as executive agent wide military latitude, no small expression of an attitude among the other services—and of plenty within the army—that policing America was beneath the modern fighting man.15 The secretary of the army was designated the “executive agent” for domestic missions and given overall Defense Department responsibility, despite contrary fighting doctrine, retaining that power even after the service secretaries were stripped of their operational duties in the 1958 statutory reorganization of the department, retaining the function even after passage of the 1986 Goldwater-Nichols act, which required all military forces to fall under a joint combatant commander. In the early years, the four-star army vice chief of staff was personally engaged as the “action agent” for the executive agent, a man of sufficient rank to deal with his civilian counterparts in government. The army created a Directorate for Civil Disturbance Planning and Operations to handle the mission, an organization renamed the Directorate of Military Support on September 1, 1970.16 Though the name change was intended to make the organization seem more innocuous, DOMS, as it became known, sounded suspiciously domestic, maybe even a bit taboo.
The military plan for quelling civil disturbance was originally Operations Plan 563, which was issued soon after military commanders sent to Mississippi reported back that they were blindsided by a lack of intelligence (or indeed a lack of plans) when they were ordered to take up arms in support of civil rights. OPLAN 563 was replaced by a second plan, nicknamed Steep Hill, which was approved on September 4, 1963, creating a standard for having specialized units, rather than the nearest unit to any event, assume the job as civil disturbance first responder. The Steep Hill plan was refined and renamed Garden Plot in June 1967.17
The Detroit riots of 1967 were the transitional point,18 “the first time that federal troops were deployed to assist in a racially motivated disturbance outside the South in a quarter century,”19 the first time a governor had requested federal troops since 1943.20 The riots broke out in the early-morning hours of July 23 following a Saturday-night police raid on a black club. Michigan’s Republican governor (and presidential hopeful) George Romney brought in state troopers and mobilized the state’s 46th Infantry Division to augment the police. Romney instructed the Michigan National Guard to use whatever force was necessary to restore order. As one study recounts:
Guardsmen were issued ammunition and were ordered to fire when fired upon and to shoot looters if they could not find an alternate means of stopping them.… As instructed, the untested and fearful soldiers of the Michigan National Guard took to the streets and, literally, executed their orders. Detroit was soon a veritable battle ground in which supposed representatives of law and order—the Michigan National Guard—acted as if looters were a foreign enemy. What transpired was comparable to the legendary vigilantes of Dodge City of the 1860s—lawlessness, chaos, and a total disregard for restraint by the National Guard.21
There was considerable back-and-forth between Michigan and Washington over the deployment of federal troops to stabilize a situation evidently made worse by the police and the National Guard. President Johnson finally agreed to call in the 82nd Airborne Division and federalized the Michigan Guard under the provisions of the Insurrection Acts, but not without considerable hesitation. The combat-experienced troops of the 82nd Airborne immediately proved far more capable than their National Guard counterparts, who also happened to be 98.7 percent white, compared to the (relatively) integrated active force.22
Garden Plot (like DOMS, its name could be interpreted as homey or as a grand conspiracy) emerged just a month before the riots in Detroit, defining every this and that of who was responsible and making it clear that the military was always subordinate to civil authority, going into details on who would pay for what and what reports needed to be submitted. As for what the troops would do on the ground, well, it was a plan but not a military strategy, because, well, there was no military strategy.
Detroit made that clear. From the very beginning of deliberations, President Johnson set up his own command structure and ordered minimal force, selecting Lieutenant General John L. Throckmorton, commander of the XVIII Corps at Fort Bragg, because, as he put it, he did not want a “hero” of the Douglas MacArthur type “riding… on [a] white horse.”23 Throckmorton also had the most unusual chain of command, reporting to the president through his explicit and direct representative on the ground—Cyrus Vance, the future secretary of state who was former general counsel at the Pentagon, secretary of the army in the Kennedy administration, and deputy secretary of defense in the Johnson administration. Executive agent Vance was a private citizen, having left government service a month earlier, before being recalled to XYZ service, now officially called the “presidential emissary.”24
When Throckmorton arrived in the Motor City, he immediately ordered the National Guard to unload its weapons and only fire if ordered to by an officer (an order that met considerable resistance from local police and Michigan guard leadership). It was better to let a looter get away with some goods than to shoot a man, the general said. It was clear right from the beginning that reports of snipers were wildly exaggerated, and every random shot or car backfire had provoked a fusillade from the police and National Guard. Throckmorton’s cool head and the 82nd troopers’ restraint stabilized the situation, that is, after the rioting exhausted itself.
Throckmorton later had to defend his approach of maximum restraint to members of Congress, many defending the Guard and bellowing that soldiers should never be put in a position where they are left defenseless, that they were trained to kill. The general responded that the situation in Detroit had not been, contrary to media reports, “red hot” and that he had no intention of “having any of those soldiers shoot innocent people, or small children,” describing the very nonmilitary bearing of the Michigan guardsmen and justifying his decisions. “I considered the best way to handle the situation, which to my mind was not red hot at all—was to have them not load their rifles.”25 In the end, the expenditure of bullets was 700 shots fired by National Guardsmen to every one shot by the regular army, a number that speaks volumes.26
Every potential and actual domestic use of federal troops over the next four years of racial and political unrest was equally adhoc and equally charged,27 especially because the performance of the Vietnam-era Guard left so much to be desired. “After the Guard’s poor showing in Newark and Detroit during the summer of 1967 numerous questions arose about the professionalism of the National Guard,” one scholar says. “It was believed that not only were they poorly trained, but they were also too close to the problem to be separated from it. In other words, they, for the most part, shared the prejudices and discriminatory practices of the local populace. Thus, they were an extension of the segregated society, with vast arsenals and permission to impose as much force as was deemed necessary.”28
As the Vietnam War waned, though, the regular army started an important transition to professionalism and an all-volunteer force; for the professional fighting man, that meant an increasing wariness of anything that might tarnish the image. Not much was heard again about the domestic role for almost a decade—that is, until 1981, when Congress passed the Military Cooperation with Civilian Law Enforcement Agencies Act, stating that “the rising tide of drugs being smuggled into the United States… presents a grave threat to all Americans,” one that civilian law enforcement could not effectively deal with.29 Caspar Weinberger, then secretary of defense, opposed Pentagon involvement, arguing that drugs were not a vital American interest—that is, that they didn’t threaten the common defense in the way the framers of the Constitution meant when consenting to a federal military—and additionally making the war-fighting argument that conducting such operations would diminish the military’s ability to provide for the common defense. “Reliance on military forces to accomplish civilian tasks is detrimental to both military readiness and democratic process,” he said, succeeding in at least imposing some resource limits on the extent of Defense Department participation but overall losing the war.30 Over time, Paul McHale has said, “Many senior DOD leaders—civilian and uniformed military alike—believed that providing support to civilian authorities was a mission of secondary importance. Yes, it had to be done, but only if forces could be spared from more important overseas combat missions, and even then with remaining doubt that DOD should be doing it at all.”31
Fully embracing the so-called Weinberger doctrine, the Defense Department fenced off drug missions and the residual Garden Plot tasking as a special and separate activity, establishing a Joint Task Force solely responsible for lending counterdrug support and segregating civil disturbance and other domestic intervention missions. (These would, not surprisingly, be the very organizations, and the very people, who would take up the homeland defense and domestic involvement flag after 9/11.)
From the early 1960s through 9/11, there were five different domestic “joint” commands, every one headed by an army general, but every one also so anomalous and controversial with the military at large that each lasted no more than a few years.32 The composition and flowchart placement of the various army organizations responsible for the domestic missions also shifted and changed, almost as if those directing the effort needed to burrow underground to survive.
But while the Big Army generally distanced itself from domestic duty, it was also big enough that a domestic-oriented constituency separately developed. By the time terrorists struck the World Trade Center and the Pentagon, the army had plans and units to provide civil support to states when requested, to support the war on drugs, to assist with emergency federal needs and continuity of government efforts, and to provide “consequence management” and emergency civil defense in the aftermath of a disaster. The employment of special operations forces to thwart the use of weapons of mass destruction on domestic soil was part of a search for a way to competently conduct missions that inevitably would be ordered, while at the same time adhering to the ideal of making certain that the federal military did not have undue influence over domestic affairs.
The terminology used to describe such missions evolved and devolved countless times, from insurrection to rebellion and unlawful obstructions, to domestic violence, to riots and disorders, to violence and disorder, to obstruction (in the case of a recalcitrant state), back to domestic violence and to civil disturbance again.33 There was the mission of disaster relief34 and military assistance to safety and traffic35 and military support to civil defense,36 which begat cooperation with civilian law enforcement,37 which begat civil emergency assistance38 and then support to disasters39 and then civil emergency management40 and then domestic support operations41 and then national security emergency preparedness,42 only to beget military support to civil authorities43 and then military assistance to civil authorities44 and then military assistance to domestic consequence management45 and then military support to civilian operations46 and then defense support of civil authorities. Dealing with civil disturbances47 begat employment of military resources in the event of civil disturbances,48 which begat defense support for civil disturbances49 and finally settled at civil disturbance operations. Each riot, each natural disaster, each new piece of legislation, each new administration, each new secretary, each new commission—all of them added to an alphabet soup of diverse missions and doctrines—CAAP, MACA,50 MAST, MSCA, MSCD, MACDIS, and MSCLEA—on and on, each with its own regulations and specialized training and its own plan (in the stovepipe, as the military likes to say) separate and coequal, known and understood only by those tasked to do each obscure job and ultimately fully overseen and controlled only by executive agents.
In the immediate aftermath of 9/11, Rumsfeld designated Secretary of the Army Thomas White as the “interim executive agent for homeland security” to extend his duties.51 Of the mission, White said: “I define and view homeland security as having two principal elements. First there is homeland defense, a Department of Defense–led task involving protection of the United States in every dimension—land, sea, aerospace and protection from computer network attack. Second is civil support, where DOD provides assistance to a lead federal agency, which can range from the FBI for domestic counter-terrorism tasks to [the Department of] Health and Human Services for biological attacks.”52
Though the Pentagon didn’t yet have an officially approved definition of “homeland defense,”53 later elaborations made it clear that the phrase meant defending the United States against external threats.54 As for the second mission, White was referring to those XYZ circumstances in which ground operations might be required for homeland defense inside the United States as well, but still it was against external attack. So in fact his description “civil support” was completely mistaken: the use of federal troops as a backup when state and local capabilities are overwhelmed—officially called military support to civil authorities (MSCA) and renamed defense support to civil authorities (DSCA) after 9/11 to obscure the word “military”—is an ABC mission within the legitimate confines of the Constitution, requiring either a state governor or a legislature to make a formal request for help. Secretary White, though, was talking about something else, where different rules applied. Homeland defense thus acquired a dual—and rather unfortunate—connotation, amalgamating the actual defense of the United States against an external enemy with the various and confusing internal XYZ tasks, some of which fell under Garden Plot, some of which did not.55
When the joint Northern Command was activated in 2003 to tend to the new homeland defense mission, it began the long process of bringing the Garden Plot plan 56—along with a slew of obsolete defense policy directives on ABC and XYZ military intervention relating to domestic law enforcement, spying, and command—up to date.57 A newly created assistant secretary of defense for homeland defense in the Pentagon at the same time took over executive agent duties from the secretary of the army; and DOMS became JDOMS, the Joint Director of Military Support, moving to the Joint Staff.58 The army’s long traditional connection and responsibility were officially severed, except that almost every aspect of the doing fell back upon the army, just where it had always been.
A year before Katrina, NORTHCOM held a planners’ workshop to discuss Military Assistance for Civil Disturbances (MACDIS), the central question being how to harmonize the decade-old Garden Plot plan with the public’s “recently acquired” reluctance to use troops for law enforcement.59 Even after 9/11, none of the basic precepts were in question: MACDIS was still predicated as support of civil authority, and the lead federal agency in law enforcement was considered to be the Department of Justice (which had designated the FBI for terrorism-related matters). The participants of the workshop weren’t afraid to address the post-9/11 conditions and the “twenty-first-century” challenges they now faced: what to do if there was a large-scale anti-Muslim backlash in America, or violence directed against the population along the Mexican border, or civil disobedience or domestic violence following a quarantine of nuclear or biologically infected areas. The clear consensus was that the National Guard would be the first responder and that federal troops would only step in when the National Guard was inadequate or exhausted. Strategies were openly discussed for how to minimize armed confrontation with the civilian population. In one presentation, “old think” was labeled as “stomp and drag, confrontation, intimidation and pursue.” “New think,” forged by 9/11 and the transformation of the professional force as well as years of combat experience, was defined as “stand-off (shape battlespace), avoid confrontation, security, and cordon.” Other new terminology was batted about: “containment” over “quarantine,” “preresponse” to describe sensitive actions, the more neutral “civilian response” instead of “civil disturbance.”
The workshop participants concluded that MACDIS now encompassed four specific and separate contingencies: unplanned response to domestic civil disturbances, heavily prepared actions during special events (i.e., protests), actions during domestic terrorist events, and protection of “DOD Key Assets,” both on and off military bases. MACDIS would exist within a hierarchy of sorts: non–law enforcement and pure civil support duties one step below, pandemics and maritime security in the middle, and the full-blown homeland defense mission triggered by an invasion or during any of the lesser missions if “enemy forces” appeared.60
That November, NORTHCOM issued its Planning Order for MACDIS. The stated mission was:
Military support to the Department of Justice, enforces federal authority, suppresses in a State, any insurrection, civil disorder, domestic violence, obstruction, unlawful combination, or conspiracy, and assists civil authorities to restore law and order as directed by the Secretary of Defense in consult [sic] with the Attorney General.
Deployment of federal troops would “deter opportunistic terrorist attacks” during domestic crises, the order declared. Under “Commander’s Intent,” it said that the military should deploy and enforce civil law, all while maintaining public trust and confidence in the armed forces.61 Involving federal forces in thwarting an armed invasion—“homeland defense”—was undoubtedly an ABC mission; the fine print was what and when a terrorist attack (or even a threat) crossed that threshold, and how much XYZ preparations were needed in day-to-day America. The three missions of counterdrugs (law enforcement), civil disturbance, and counterterrorism overlapped, the sequential steps undertaken to deal with each—and stay within legal and constitutional constraints on the role of the military—becoming the American Coup.
The following July, a month before Katrina, Secretary Rumsfeld signed new Standing Rules for the Use of Force (SRUF)—consolidated rules of engagement for domestic contingencies—canceling the Rules for the Use of Force (RUF) contained in the old Garden Plot plan and other previous plans and regulations.62 The new Joint Chiefs of Staff order covered “fundamental policies and procedures,” from routine military functions of antiterrorism and force protection, to counterdrug operations, to military assistance to civil authorities in nonthreatening environments, to Civil Disturbance Operations (CDO)63—another proposed name change for MACDIS—and extending all along the spectrum of domestic missions through protection of critical infrastructure and “land homeland defense.” A series of classified appendices dealt with specific actions to take under different circumstances.64 And the directive made clear that despite its comprehensiveness, it negated none of the mission-specific rules for the use of force that had already been established for special operations, all of which continued to exist between the lines.65
There was a significant internal debate regarding the wisdom of combining the “permissive” overseas rules with the “restrictive” domestic ones, the danger being that the latter’s restrictions on the use of deadly force—indeed, the overall concept of applying “minimum force”—might lead to overcompensation on the part of commanders—and thus added dangers—in universal situations of self-defense.66 Dense and impenetrable, the rules were exactly the opposite of what was intended through their rewriting.67
As a result, after so much careful consideration, the basic conundrum of martial life could not be resolved. Rules of engagement for combat overseas were the military bread and butter of how to fight and kill the enemy, based on the Law of Armed Conflict and common international law. Rules for the use of force against civilians on US territory, on the other hand, were based on domestic law, specifically the Fourth Amendment.68 Whatever the Standing Rules for the Use of Force said, whatever operations plans said, whatever special directives from the secretary or even from the president himself, even whatever was in the most secret of envelopes, federal troops had to be “grounded in the Constitutional role of the Executive Branch of government, and tempered by the constitutionally protected civil rights as listed in the Bill of Rights,” as one military officer wrote.69
The most confusing element of the new Standing Rules for the Use of Force inside the United States was the decision by the Pentagon lawyers to apply the language of international law to the domestic mission.70 Such was the product of decades of debate and intrusions, the path trod from the Detroit riots to the present day. And the major obstacles to this subversion of the Constitution had been cleared away by the constant, increasingly loud blaring of alarm Klaxons by the executive agents of the national security community. An urban riot was a problem, but more or less a local one, containable. But a terrorist attack that caused massive damage—well, that was a different story, at least to them. In a matter of decades, America had literally become an undifferentiated battlefield. The forever war had arrived.