The Militarization of Law Enforcement: Does the “Jade Helm 15 Operation” Violate Posse Comitatus?
Originally published by
WhoWhatWhy
Obscured by Jon Stewart’s well-publicized mockery of
Texans’ reaction to Jade Helm 15—the US Army’s two-month-long exercise
across nine states scheduled to begin in July—is the fact that the
criticisms may not all be deranged droolings.
The
Daily Show‘s Stewart made headlines earlier in May when he
ridiculed Texas Governor Greg Abbott’s decision ordering
the State Guard to “monitor” Jade Helm. The comedian-cum-newsman called
Jade Helm critics “Lone Star lunatics.” But are they? Or is there more
to the story? As always,
WhoWhatWhy has remained agnostic while asking questions. Now, we provide a few initial answers. More will undoubtedly come.
***
Jade Helm will be conducted in the states of Texas, New Mexico,
Arizona, California, Nevada, Utah, Mississippi, Florida and Louisiana.
One other state, Colorado, has dropped off the list, as have at least
two counties in Texas,
in response to the controversy.
Criticisms of the exercise range from panicked, extreme scenarios,
such as imminent martial law and mass arrests, to more nuanced
concerns—for example, that military exercises on this scale could
desensitize civilian populations to martial law tactics and governance.
The massive exercise, led by the US Army’s Special Operations Command
(USASOC) under Lt. General Charles T. Cleveland, will include
unconventional warfare units from all service branches, including US
Army Special Forces, US Navy SEALS, US Air Force Special Operations, and
USMC Marine Special Operations Command.
According to Jade Helm’s
official PowerPoint presentation,
other participating units are USMC Marine Expeditionary Units, the
Army’s 82nd Airborne, and last but not necessarily least, civilian
“Interagency Partners.” The latter refers to a range of domestic law
enforcement agencies including the FBI, Drug Enforcement Administration,
and Department of Homeland Security.
One contingent, Special Operations, is of particular interest.
Special operations units are highly trained elites that specialize,
among other things, in assassinations and “extractions” of human
targets. In a 2013 article titled
“5 Takeaways from the US Special Ops Raids in Somalia and Libya,” published by the Washington DC-based defense trade journal
DefenseOne.com,
an analyst heaped praise upon “small, multi-agency task forces led by
Joint Special Operations Command (JSOC) that target individual terrorist
and insurgent leaders for death or capture.”
“Infiltrating” Towns and Cities
Jade Helm presenters have stated that troops will “infiltrate” towns
and cities, and rove among the civilian population, both in uniform and
in civilian clothes. Roy Boyd, chief deputy of the Victoria County
Sheriff’s Office,
told the Houston Chronicle:
“They’re going to set up cells of people and test how well they’re able
to move around without getting too noticed in the community… They’re
testing their abilities basically [to] blend in with the local
environment and not stand out and blow their cover.”
Elaborating further, Thomas Mead, a contractor hired by USASOC, said in a
presentation to the Big Spring, Texas, City Council in
March that special forces “operators,” as Special Ops soldiers are
called, will enlist local roleplayers as informants. Mead told the City
Council that operators will be looking for “someone who gives a little
nugget of information for them to build an intelligence picture.”
It is these kinds of activities, resembling counter-insurgency, that
set Jade Helm apart from the previous exercises that the Army cites as
similar to Jade Helm. This argument hinges on what is meant by
“similar.” The scripts in those previous exercises called for Special
Ops “operators” to assist local insurgents or “freedom fighters” in
resisting tyrannical authorities. In Jade Helm, the US operators will
apparently be working to
suppress an insurgency. This will
involve activities more in keeping with law enforcement, such as
information-gathering from locals, moving about undercover in
communities, and assaults on selected “targets.” Residents have been
told to expect “increased aircraft in the area at night.”
Critics of Jade Helm note that the military is not intended nor
designed to function as a law enforcement body, and that soldiers are
not trained to evaluate the legal nuances of probable cause or to
safeguard the rights of civilian detainees.
Is This Something New?
Stewart, and other influential media figures, have assured the public
that there’s no basis for concern because “similar” exercises have been
conducted for years without any undue harm.
One exercise, just recently concluded in May, took place in Richland,
South Carolina. In it, the 3rd Special Forces Group out of Ft. Bragg,
North Carolina, trained with Richland County deputies for two weeks, in
“late-night and pre-dawn exercises.”
WLTX 19 News relayed
the Sheriff’s Department’s message that residents should not be alarmed
at hearing “ordnance being set off or shots being fired.”
Given that the South Carolina exercise passed virtually unnoticed,
why is Jade Helm setting off so many alarm bells? Is this business as
usual—or practice for martial law, as Jade Helm critics contend? What
makes Jade Helm different from previous military exercises carried out
on US civilian soil?
This is where the misinformation is flying fast and furious. In his
presentation in Big Springs, USASOC contractor Mead acknowledged that
the exercise is actually the first of its kind. He told the audience
that the closest he could come to identifying an operation somewhat
resembling Jade Helm is the Army’s much smaller, annual exercise known
as
Robin Sage.
In Robin Sage,
“The People’s Republic of Pineland” is
a fictitious country spanning 15 counties in North Carolina, where US
Special Forces soldiers seek out “insurgents” (played by actors) who,
for the purposes of the exercise, are treated as US-backed freedom
fighters. Special Forces set up “base camps” for these fighters, with
the goal of “liberating” Pineland. As such, Robin Sage is a proactive
insurgency exercise. Jade Helm seems to be precisely the opposite: a
counter-insurgency exercise.
Despite this difference, Robin Sage does offer a stark illustration
of what can go wrong when armies are set loose in a civilian
countryside. In 2002, one
soldier was killed and another wounded when a local police officer opened fire on them, not knowing they were part of the Robin Sage exercise.
Under the Pretext of Defending
A bedrock principle of American law since the Civil War, and even
prior, has been the clear prohibition against the use of federal
troops—as opposed to National Guard operating under the authority of the
various states—for domestic law enforcement. This dates back to the
Posse Comitatus Act, which in turn is grounded in the Founding Fathers’ warning against “standing armies.”
The
relevant text of the Posse Comitatus, which roughly means ‘deputized force,’ in 18 U.S.C. § 1385 reads (as amended in 1956):
“Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses any
part of the Army or the Air Force as a
posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
Posse Comitatus does not preclude the military from
conducting exercises on civilian soil, which, as detractors of
“paranoid” Texans point out, takes place all the time. The law
does however
prohibit the US military from engaging in direct law enforcement
activities. This would certainly include the capture on US soil of US
citizens suspected of breaking the law in any way, shape, or form.
Interestingly, as an institution, the US military seems to agree with and abide by the spirit of
Posse Comitatus. In a 2001 paper for the School of Advanced Military Studies at Ft. Leavenworth, Kansas,
“Posse Comitatus: A Nineteenth Century Law Worthy of Review For the Future?” the author notes:
“The desire to separate the military from policing
activities within the US can be traced to the very origins of the
republic itself. The perception is that a standing military force
attempting to enforce civil laws allows for despots to retain power by
force of arms rather than by the consent of the governed.”
The author, a US Army Major, concludes that: “There are still today, many good and valid reasons behind the
Po
sse Comitatus Act.”
In referring to the “origins of the republic,” the Major may have had
in mind James Madison, a Founding Father vociferously distrustful of
large “standing armies.” Madison wrote: “Throughout all Europe, the
armies, kept up under the pretext of defending, have enslaved the
people.”
In Jade Helm, a litmus test of success will be how well Special
Forces “operators” move about within civilian populations without being
noticed, or at least calling too much attention to themselves. “If
you’re able to notice our guys, we’re probably doing something wrong,”
Mead, the USASOC contractor, told the Big Spring City Council.
In the Big Spring City Council meeting, residents were told to expect
activity to occur “between 11p.m. and 4a.m.” During the
question-and-answer period, to a packed house, an assistant to Mead
revealed: “we come in doing the
hit, and
extracting. Time on the ground may be 15 to 20 minutes of exposure, then that’s it.” (
Emphasis added.)
The word “extracting” is critical. In special operations parlance,
extracting a “high value target” can mean to take that “target” (a
person) away from his home or location, willingly or unwillingly. Here’s
how Wikipedia, describes “military extraction”: “Essentially, it is
kidnapping by military or intelligence forces.”
How Real is Real?
To critics, one of the most disturbing aspects of the exercise is USA
SOC’s openly stated desire to conduct the exercise in a “realistic”
environment. In recent years hundreds of millions of dollars have been
spent creating realistic facsimiles of foreign towns and even small
cities on military bases in the US; the purpose of this program is to
give soldiers a taste of what they might encounter during urban warfare
operations overseas.
A new $90 million training center In Northern Virginia a boasts stores, a gas station, school, soccer field, church, mosque tunnels, and a subway platform.
But what might the military mean by “realistic environment” in the
context of Jade Helm? In terms of culture and physical setting, only
English-speaking America resembles English-speaking America. As a
concerned resident of one of the affected small towns in Texas
told a newspaper:
“What place looks like this—except this?” Put another way, if Special
Ops were to prowl the coffee shops of North Korea, Ukraine, or Tehran
questioning locals for information, they would be rounded up within an
hour. So, as Jon Stewart might have asked if he had looked a little
deeper into the Jade Helm scenario, whom is America fixing to invade?
Canada?
Are Texans Crazy?
Texas’s reticence is surprising. The state would seem to be last
place in the US to emerge as the center of “resistance” to Jade Helm.
Its gun-friendly culture is hardly averse to American militarism.The
state has one of the highest concentrations of military personnel in the
nation. Uniforms are everywhere, in the airports and in the towns. The
state hosts two of the largest military bases in the US: Ft. Hood and
Ft. Bliss. In Texas, everyone knows someone in the Army.
Those who mock the governor’s decision ordering the Texas State Guard
to monitor Jade Helm would
no doubt question the relevance of Madison’s warning about standing
armies or the cautionary language of the Posse Comitatus
Act—particularly in an era of endless war on terror.
But the very definition of tyranny is the deployment of the army,
intended only for foreign wars, against its own people. And if Jade Helm
is not a deployment but an exercise, then, critics legitimately ask,
what is an exercise for, except to prepare for some “realistic”
eventuality? Which raises an even more uncomfortable question: Should
practicing for something illegal in itself be illegal?
Face Page of US Army unclassified document on Jade Helm 15. Photo credit:
US Army
Page from US Army Jade Helm document showing “hostile” states in red. Photo credit:
US Army.
Mock Middle Eastern town set up in Ft. Irwin, VA, with actors.
The media have done a grave disservice by repeatedly
mischaracterizing Texan citizens as hysterically complaining of a
“takeover” of Texas. In fact, the video record shows questions from the
audience at the military’s city council presentations to be calm and
reasonable. At no point does anyone accuse the Army of plotting to “take
over Texas,” a recurring catchphrase in the mockery of Jade Helm
critics. At a Bastrup County meeting, one man expresses concern over
“increasing indications that the military is getting a little too
involved in civilian law enforcement.”
Most of the shouting about wilder scenarios originates from
unaccountable Internet sites, and is then picked up and magnified by
others in an echo chamber effect.
One recurrent theme links the recent sudden, simultaneous closing of
Walmarts in four states—two stores in Texas, one in California, Oklahoma
and Florida—to Jade Helm’s future need to secure large spaces for
allegedly nefarious purposes. But in none of the presentations before
city councils which are available for public viewing, has anyone asked a
single question about the Walmarts. In his
letter declaring that
he is ordering the Texas State Guard to “monitor” Jade Helm activities,
Texas Governor Greg Abbott asks , in language that is not especially
strident, that Texans’ “safety, constitutional rights, private property
rights, and civil liberties” not to be infringed.
Oath Keepers, an organization of present and former US military and law enforcement personnel whose mission statement is a vow
to disobey illegal and unconstitutional orders, casts
a wary eye upon Jade Helm. Oath Keepers is portrayed often as a
far-right group, although its declared goal is not aggression but
caution. Its founder and president,
Stewart Rhodes, is a former US Army Ranger who holds a law degree from Yale. Rhodes has repeatedly defended his group publicly, including on
Chris Matthews’ Hardball, and has surprised some viewers for his thoughtfulness.
Rhodes
said in an interview that
one purpose of Jade Helms may be the “vetting” of soldiers for their
willingness to go along with orders of dubious legality, as a prelude
to future unconstitutional incursions by the military into American
civil society. Another purpose, Rhodes worries, could be to condition
the public to hearing Blackhawk helicopters in their neighborhoods in
the middle of the night. It might be easier to dismiss the fears of
Rhodes and his colleagues were they not themselves former military.
Critics of expanding executive authority have noted that this
enhanced power will redound of course to presidents of either party.
They point out that target groups could change as the political winds
blow. For this reason, critics of Jade Helm say, concern over Jade Helm
should not be confined to “Obama-haters” or what is characterized as the
far-right. Were someone with, say, a strongly Christian-Right or
anti-union or “law and order” orientation to be elected, he or she would
wield the same powers—over Occupy Wall Street or police misconduct
protesters, gays, strikers, or other groups that might be perceived as a
menace to society. Rhodes predicts that new military powers would
invariably be tested on those who would garner little sympathy, such as a
“compound of skinheads.”
Shrill Alarmism? Or More Constitution-Shredding Come True?
The list of concerns over Jade Helm does not end with the perception
that the military is treading perilously close to traditionally
prohibited activities. Experts on
Posse Comitatus note that
even during more turbulent times, such as after the assassination of Dr.
Martin Luther King, when riots broke out in many major American cities
including Chicago, Detroit, and Washington DC, it was not the military
that responded but the National Guard, fulfilling its historic role of
restoring law and order amid chaos.
Environmental activist Carol Miller, founder of
Peaceful Skies,
sees Jade Helm as part of a wider recent pattern of the military
expanding its activities beyond military bases, across the nation.
Peaceful Skies is a non-profit group formed in 2010 to halt the
expansion of low altitude military training flights across the skies of
New Mexico. In an article “Why Are So-Called Progressives Defending
Special Ops Training?” Miller recounted her work as an organizer against
expanding militarization in the US, recalling:
“As community after community told their story we
realized that the situation was identical no matter where in the US the
military was expanding… The Pentagon wants to expand the boot-print not
only of its bases, but also to expand military activities across public
lands; national forests, national parks and Bureau of Land Management
(BLM.)”
Miller is aghast that the progressive Left was in the vanguard
ridiculing citizens concerned with Jade Helm, rather than asking
questions about the military operation.
Miller writes:
“Mock invasions, mock terrorist manhunts, shootouts, and roundups are not jokes.” In an interview with WhoWhatWhy,
she also addressed concerns that Jade Helm’s activities posed a risk
of sparking wildfires in the drought-stricken Southwest. Miller pointed
out that during summers, the worst of the drought season when Jade Helm
will take place, the “forest service does not let us drive vehicles in
the forest, smoke, operate chainsaws or even have a barbecue.” Of
particular concern is any role played by V-22 Osprey aircraft operating
out of Cannon, NM. The Osprey, a tilt-wing model which directs hot
exhaust onto the ground when it maneuvers, has already caused numerous
fires. Not amused by Jon Stewart’s light-hearted dismissal of concerns
over the exercises, Miller wrote of Jade Helm: “The last shreds of
democracy are at stake.”
Is it unreasonable to believe that elements in the US government
capable of playing fast and loose with freedom? What has the history of
civil liberties and the Constitution been for the last 14 years, since
9/11? We might recall Edward Snowden’s revelations on NSA domestic
eavesdropping, the continuing debate over the USA Patriot Act
controversy over Transportation Security Administration airport
policies, and the militarization of local police forces, all of which
have been constantly in the news.
This is not a matter of Left vs Right, or Democrat vs Republican. The
Bush administration trampled routinely on American freedoms, and Obama
has done the same. This is apparently too painful for his supporters to
contemplate. Years ago, Obama’s defenders mocked those who warned
that the NDAA(shorthand
for a new law purporting to allow the indefinite military detention of
US citizens without charges or trial),could be
applied to US citizens.
Obama partisans maintained that care was taken to specifically exclude
US citizens from being subject to indefinite military detention. But now
figures from the Left including
Noam Chomsky and Chris Hedges have
sued in federal court because—it turns out—the law indeed allows for US
citizens to be held without charge nor trial, by the military… forever.
Obama not only failed to oppose the provision which made it applicable
to US citizens on US soil:
according to US Senator Carl Levin (D-MI), it was Obama who insisted that it
must apply to US citizens as well.
The truth is, military policy is hardly crafted by the temporary
occupants of the White House. Long-term strategy is… long-term, and it
has institutional sponsors who prevail through presidency after
presidency.
An interesting glimpse into the mindset of the men behind Jade Helm
is an official document published in 2014, written by the commander of
USASOC and the prime mover of the operation, Lt. General Charles T.
Cleveland. The treatise, titled
“Operating Concept 2022,” is
nothing less than the general’s personal vision for the US military’s
largest and most prestigious group of special operations soldiers, the
US Army’s Special Operations Command, which includes the fabled Green
Berets.
Among the goals mentioned in the treatise, which is linked prominently on the homepage of the
command’s website, is safeguarding the “moral” security of the United States.
Cleveland also wrote, in the same paper, of the need to
“operationalize” the “CONUS” in the service of such goals. CONUS is
military jargon for the continental United States.
Exactly what the general, who commands 10,000 super-soldiers who
cannot be opposed by any civilian force, is thinking, is anyone’s guess.
Jade Helm emblem and motto: “Master the Human Domain.” Watch the
Army’s official Jade Helm presentation here.
