The Army is not composed of lawyers, capable of judging at a moment’s notice of just how far they can go in the maintenance of law and order.…
PRESIDENT ULYSSES S. GRANT, LETTER TO CONGRESS, JANUARY 13, 1875
In congressional hearings in May 2002, Secretary of Defense Donald Rumsfeld hinted at the secret hierarchy of government operations and plans, another continuum where the left side of the spectrum is “missions or assignments that are limited in scope” and the far right side of the spectrum is those missions pertaining to the most “extraordinary circumstances.”
The hearings’ context was discussion of a new homeland security department, and Rumsfeld—showing his reluctance to use the military for domestic tasks—instantly laid down the law regarding when the military—his Department of Defense—might be in charge in the United States, particularly given the new interloper. In “emergency circumstances of a catastrophic nature,” he said, the military would operate in support of civil agencies, but “under extraordinary circumstances,” those in which the department would execute what the secretary promiscuously labeled “its traditional military missions,” the military “would take the lead.” Rumsfeld called this “homeland defense” and included examples like “combat air patrols and maritime defense operations,” making the extraordinary sound wholly ordinary.1 In follow-up testimony, Rumsfeld elaborated that plans for extraordinary contingencies “would be coordinated, as appropriate, with the National Security Council and with the Department of Homeland Security…,” again creating a picture of normalcy but saying in effect that when inappropriate, they wouldn’t be.2
Deputy Secretary of Defense Paul Wolfowitz followed with testimony in July, adding vaguely that “the category of extraordinary circumstances are [sic] cases in which the President, exercising his Constitutional authority as Commander in chief and Chief Executive, authorizes military action. This inherent Constitutional authority may be used in cases, such as a terrorist attack, where normal measures are insufficient to carry out federal functions.”3
Normal measures, of course, stem from Posse Comitatus Act restrictions—the general prohibition on the use of the military for civil law enforcement—but it was Wolfowitz’s use of the inscrutable phrase “insufficient to carry out federal functions” that transcended emergency circumstances Rumsfeld had already referred to in which temporary conditions might demand military intervention. In fact, since the passage of an obscure 1996 law, if weapons of mass destruction actually were used in the United States, Posse Comitatus could lawfully be waived and the Defense Department could “take the lead” under statute anyhow.4
Almost nothing in the public domain discusses what would happen in a crisis involving a threat to use a WMD. “Under extreme circumstances,” a 2009 directive of the Joint Chiefs says, “the President may unilaterally direct the Department of Defense to assist State and local civilian authorities after a domestic CBRNE [chemical, biological, radiological, nuclear, or high explosive] incident, on or off a military installation.”5 Vice Admiral James A. Winnefeld wrote to Congress in 2010 in support of his nomination to be the next homeland defense commander that: “In certain rare circumstances, the NORTHCOM commander may be asked to assume overall command and control due to the nature or scope of an incident.”6 In both cases, though, the reference is to what happens after an incident, not to the extraordinary crisis management rules that would take effect during a terrorist threat and before a detonation.7
National Security Decision Directive 30, “Managing Terrorist Incidents,” signed by Reagan in April 1982 and the first presidential directive ever on counterterrorism, makes no mention of the Defense Department in discussing domestic responses. Even in this secret directive, now fully declassified, there is one sentence, without any elaboration, that hints of something that lurks in another realm: the “White House Operations Group,” chaired by the director of the White House Military Office, it says, has “responsibility for issues relating to threats or acts of terrorism directed against the President or the Vice President or senior US officials and protectees as directed by the President.”8
Two years later, President Reagan issued NSDD 138, a top secret/sensitive directive entitled “Combating Terrorism,” also now declassified. It stated: “Domestic programs to deal with terrorist activities in the United States must be continuously reviewed and assessed in order to identify useful improvements.” The secretary of defense was directed to “continue improvements in the US capability to conduct military operations to counter terrorism directed against US citizens, military forces, property, and interests,” but with no explicit discussion or direction whatsoever on the domestic mission or whether US citizens and interests extended to the United States proper. The attorney general was directed to develop “streamlined operational plans for deterring and responding to terrorist threats against prominent locations/events in the United States which could be likely targets for terrorist attack,” without any mention of the FBI, the national mission forces, or what is known by insiders as the “render safe” mission.9
Ever since the 1985 seizure of the Achille Lauro cruise ship, every theater military commander in the US military has developed an in extremis force, preferably a Green Beret or a marine corps special operations unit. In extremis—a Latin phrase that means “in the farthest reaches” or “at the point of death”—has a very particular meaning in the military, referring to the conditions in which a military man or woman would feel compelled to take grave risks in order to accomplish a critical mission or save lives: Medal of Honor territory.10 There is even an official Defense Department definition: “a situation of such exceptional urgency that immediate action must be taken to minimize imminent loss of life or catastrophic degradation of the political or military situation.”11 Such in extremis forces are commonly called CIFs (pronounced “sifs”), for the Commanders’ In-Extremis Force.12 Such 24/7 alert units are the first to arrive in almost every imaginable emergency situation, their quick-response duty to perform reconnaissance of the situation and to stabilize, isolate, and contain.13 The CIF might even take violent action if the circumstances demand, but in the most extreme cases—the takedown of terrorists involving civilian hostages or the defusing of a bomb suspected of being a weapon of mass destruction—the CIF, as elite as it is, waits until the national forces arrive.14 The national forces train for hostage rescue and the extraction of a downed airman in hostile territory, and would also assume, if time allows, the render safe mission from the normal CIF—a meticulously prepared extrajudicial mission, a ticking weapon of mass destruction always and forever the highest priority.
Nothing better exemplifies the very non–martial law conditions of our uniquely American Coup than the national in extremis forces, for they represent the disciplined yet reluctant assumption of power, rather than the four-star grab for it.
Less than a week after 9/11, the General Accounting Office released a report on general counterterrorism matters that stated: “If an exceptionally serious terrorist threat or incident is beyond the FBI’s capabilities to resolve, a military joint special operations task force may be established to respond in accordance with contingency plans developed by DOD.” Statutory exceptions to Posse Comitatus, the GAO said, “would require a request from the Attorney General and concurrence by the Secretary of Defense.” The report went on to say that “if military forces are required to restore order as a result of an act of domestic terrorism that renders ordinary means of enforcement unworkable or hinders the ability of civilian law enforcement authorities, the President must issue an executive order and a proclamation.” Such documents, the GAO said, were maintained in draft form and are ready for the president’s signature, if needed.15
A “military joint special operations task force” had never been acknowledged, and the GAO was not only referencing it but also making a rare allusion to the existence of prewritten extralegal directives: the envelopes. With 9/11 any public discussion or even hint of such a task force disappeared from public view, the potential for national mission forces to swing into action now a real possibility and a very active contingency.16
So what were the extraordinary missions or the “federal functions” that needed to be carried out beyond posse comitatus exemptions? The answer partly lies hidden decades earlier, when efforts on the part of the executive agents to increase the security and safety of US nuclear weapons (of which there were an obscene abundance located at hundreds of domestic and overseas sites) led to the predecessor units of today’s national mission forces that work on mechanisms to “render safe” a tampered, stolen, or lost nuclear weapon, as well as to ensure that the physical security of such weapons is sufficient. Military special operations forces established “red teams” to test and gauge such security, and the Departments of Defense and Energy put enormous effort into providing “technical expertise” on the design and workings of nuclear warheads and weapons.17 In fact, when the FBI was first assigned the counterterrorism mission in 1982, it depended completely on the military “to perform the render safe procedures on a nuclear device,” which was considered the ultimate in extremis mission.18 One reason for all the secrecy, then, is that it was not only foreign enemies that were contemplated in extremis when it came to weapons of mass destruction. Before 9/11, the exercise scenarios and contingency planning included rogue officers and antinuclear protestors getting their hands on a nuclear weapon, and many of the XYZ contingencies pit the in extremis force against American civilians.
It took five years after 9/11 for the Bush administration to formally replace PDD-39 with its own directive—called National Security Presidential Directive 46 (NSPD-46)—signed by the president in March 2006 and still classified top secret. That sweeping directive, “United States Policy and Strategy in the War on Terror,” changed little relating to domestic WMD, reaffirming the attorney general, acting through the FBI—“in cooperation with other federal departments and agencies”—as responsible for law enforcement activities to detect, prevent, preempt, and disrupt terrorist attacks against the United States.19 All of the previous exceptions of military takeover are included if the FBI is overwhelmed, but the Joint Special Operations Task Force was also given extraordinary “homeland defense” missions. According to Admiral Winnefeld, “the President may determine that a terrorist incident rises to the level of an armed attack against the United States and therefore direct that DOD take the lead in the defense of the Homeland.”20
Tom Ridge describes how when he was the first director of the new office of homeland security, even after he had been Pennsylvania governor and had dealt with nuclear threats, he learned of the national mission forces for the first time—something to do, he later wrote, with “Delta Force and Seal Team Six” involved in domestic nuclear weapons disablement.21 The work, according to Richard Clarke, linked up “the scientists at the department’s [Department of Energy] nuclear labs with the commandos of the Joint Special Operations Command, and focused on “what you do when you have to get a nuclear bomb away from terrorists.”22 Yet no one outside the circle of national mission forces executive agents quite knows for sure when they would be called forth, what they are, what authorities they truly have, let alone what they are supposed to do when confronted with a WMD.23 Amidst the seemingly endless bureaucratic thicket is a plan both for military special operations forces—special special operations forces—to step in when the executive branch determines that doing so is the best way to impose an adequate state of civil law enforcement, and for the command and control of such efforts to be willfully obscured not only from the public but from government officials at the most elevated levels.
Both Ridge and Clarke neglected to mention the FBI’s National Assets Response Unit (or NARU), the on-scene support headquarters of the national assets commander24 and the custodian of the highly classified national WMD plans.25 NARU is distinguished from other FBI units in that it is the coordinator of the overall national mission force, not the operational unit itself. Most in the know say on the simplest level that the military element of the national mission force is the elite special mission units of the Joint Special Operations Command (or “jay-sock”)—the so-called Tier 1 Delta Force or SEAL Team 6 units or others—but this characterization is too narrow, too obvious, and too broad all at the same time, ignoring the FBI’s authorities and the very extraordinary WMD mission; kind of like saying “army” in referring to all things military.26 In the same way, though, that the design for the operation to kill Osama bin Laden was highly irregular, with a hand-picked collection of black special operators nominally under the command of the CIA director, in the domestic world of weapons of mass destruction, the command relationships and the composition of the national mission force follow no known military doctrine or even legal framework: as the presidential directives say, “modules” are pulled together for specific circumstances under the FBI’s command and control, except when, under the most extraordinary circumstances—specified in the most highly classified and compartmented directives in existence—the White House Military Office or some other between-the-lines task force commander or executive agent takes over.
The national mission force, then, like the Program itself, predates 9/11; it shifts and expands to meet the imagined contingencies of the executive agents: one incident, two incidents at the same time, three simultaneous attacks, up and up, never down. Beyond the thousands of WMD-focused specialists in the ABC who effectively exist only as feel-good disaster response crossing guards,27 beyond the Domestic Emergency Support Team, is the true national mission force—the FBI and its various special units, the Joint Special Operations Task Force and its various specialized subunits or modules,28 the NEST of the Department of Energy and its various special units, specialized military and transport units that are not directly a part of the Joint Special Operations Task Force, and the tactical and technical units of other agencies, including the Department of Homeland Security, which has established what it claims to be its own classified “Tier 1” law enforcement unit.29
The national mission forces have domestically deployed countless times over the years, in preparation for—and response to—both the real and the trivial. They were there, secreted away in a Manhattan armory, to prepare to assault the New York offices of Aum Shinrikyo in 1995;30 they were standing by on 9/11;31 they deployed for the Palermo Senator incident in New York harbor in 2002; they’ve been there for all inaugurals since 2001 and for State of the Union addresses and summits and other national security special events when continuity of government has been at stake.
They have also been there just to practice, such as at the May 2004 National World War II Memorial dedication in Washington, a celebration that precipitated the activation of a Joint Task Force, mobilization of specialized ABC consequence management task forces, positioning of a domestic disturbance Garden Plot quick-reaction force, standby for continuity of government, and the national mission force to stop a terrorist attack, one involving WMD.32
The evidence also suggests that they were even there in New Orleans in the aftermath of Hurricane Katrina, ready, according to an FBI briefing, for potential “special missions.”33 Or maybe they weren’t there; for the enduring enforcers of XYZ governance, granted special authorities and an extraordinary status during an age of different danger, the point isn’t to be seen until there is a need to be seen—but the firm assumption, their guiding principle, is that the time is coming when the invisible will be the salvation of the visible.
Can the possibility of a terrorist attack with a weapon of mass destruction still justify all of this, a day-to-day existence now so normalized that it feeds even preemptive and accelerated preparations for martial rule? The army under Obama, in a 2010 manual, obediently issued an official definition of martial law for the first time in years, saying it “involves use of the military to exercise police powers; restore and maintain order; ensure essential mechanics of distribution, transportation and communication; and conduct necessary relief measures.” The manual continued, “In such cases, the ordinary law, as administered by the ordinary courts, is superseded for the time being by the order of a military commander.”34 Additionally, it cautioned that “federal military commanders shall not take charge of any function of civil government unless absolutely necessary under conditions of extreme emergency,” instructing its commanders who undertake such function to “strictly limit military actions to the emergency needs, and… facilitate the reestablishment of civil responsibility at the earliest time possible.”35 And in September 2012, the Defense Department issued a new directive on civil support, appearing to restore the post-Bush ABCs to legality.36 One regulation would replace those old ones feeding Garden Plot, all of the pre-9/11 regulations that lacked the “correct” language of terrorism, and all the pre-Katrina regulations that didn’t comport with the real-world possibility of disagreement between a governor and the federal government over what to do. Most important, though, the Defense Department needed to articulate policy in a world where relentless alerts and seemingly stratospheric stakes had made the prospect of military involvement in domestic matters the norm yet also red hot in terms of political and public sensitivity. For the bureaucrats at the Pentagon—they wouldn’t have to actually implement martial law; that was the army’s job if worst came to worst—any mention of martial law was to be avoided. Instead, the new directive explained that immediate-response authority “does not permit actions that would subject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or compulsory”; the military could never and would never push civilians around.
When martial law was twice imposed in America by the federal government during external wars (in 1815 and after Pearl Harbor), the courts later found that its application fundamentally infringed on the rights of the citizen. The litmus test in both cases related not to the declaration but to the length of time during which military authorities felt it necessary to impose it and the effects it had on enduring and immutable rights of the citizen. It was clear that martial law can be declared in America—if a number of theoretical and catastrophic circumstances are met—but that it also has the potential to destroy the most fundamental individual guarantees of the Constitution. It simply cannot exist as part of the ABCs of American governance. That’s why secret government preparations for martial law, while inevitably at the very heart of the XYZs, are a taboo gingerly avoided and so forbidden that even consideration of such contingencies cannot be hinted at. The terrified mayor of New Orleans can declare martial law when he doesn’t even have an army to enforce it, congressmen can pepper their speeches with the term when they really mean executive excess or just legislative displeasure, survivalists and “patriots” can warn that we are inches from tyranny or already deep in the muck, netizens and civil libertarians can decry its presence, but military rule, actual military rule à la Andrew Jackson New Orleans 1815, martial law in America today—no way. Martial life is the way of life, subtle and nonmenacing. The very triumph of governance by ABCs and XYZs is that the actual threat of martial law is literally ABC.