Military and Civilian Law Enforcement

excerpted from the book

Inside the Shadow Government

National Emergencies and the Cult of Secrecy

by Harry Helms

Feral House, 2003, paper

The Military and Civilian Law Enforcement

In late July of 2002, proposals came from both Republicans and Democrats to give the U.S. military a larger and more active role in civilian law enforcement in order to battle terrorism. In an interview televised on Fox News Sunday, Senator Joseph Biden (D-Delaware) said that the Posse Comitatus Act of 1878, which prohibits the U.S. military from civilian law enforcement within the United States, "has to be amended." Senator Biden said, "We're not talking about general police power," but also said he was concerned about what the military could do if they found terrorists in the United States with chemical, biological, or nuclear weapons. "The military would not be able to shoot to kill if they were approaching the weapons," Biden said, nor could they arrest any of the terrorists. Tom Ridge, the homeland security director, echoed Biden's concerns later that day on CNN. "We need to be talking about military assets in anticipation of a crisis event," Ridge said. "And clearly if you're talking about using the military, then you should have a discussion about Posse Comitatus. It's not out of the question when, in support of civilian authorities, we would | give the National Guard or troops arrest ability."


From 1878 to World War II, the military kept out of domestic law | enforcement, except for President Wilson's use of Army troops in a mining labor dispute in Colorado. That changed after Pearl Harbor. For example, the forced relocation of Japanese Americans to detention centers was carried out by Army soldiers. On occasion, federal troops were used to close public highways to permit military traffic to pass or to close off public lands, normally open to everyone, where drills and exercises were being conducted. The degree of restraint shown in domestic use of military forces was remarkable, considering the tenor of the times and the threat facing the United States. After World War II, the domestic use of regular federal soldiers became extremely rare.

But that started to change in the 1960s with Operation Garden Plot, which is still the basic plan for using U.S. military forces domestically.


The summer of 1967 was a violent one in cities such as Detroit, Newark, Cleveland, Seattle, Cincinnati, and Milwaukee, as angry blacks took to the streets and rioted. Over one hundred cities reported riots that summer, including small cities such as Augusta, Georgia. The riots were especially violent in Detroit and Newark, where civil government, for all intents and purposes, broke down for several days. Twenty-seven people died in Newark, and forty-three died in Detroit. The riots continued in both cities for six days before finally being brought under control. Their effect on the nation's psyche was shattering. In response to the riots President Lyndon Johnson issued Executive Order 11365 on July 29, 1967. This established the National Advisory Commission on Civil Disorders, chaired by Illinois governor Otto Kerner. The "Kerner Commission" was directed to investigate the causes of the riots and possible measures to prevent future ones.

On March 1,1968, the Kerner Commission presented its report, which included the memorable observation that "we live in two increasingly separate Americas." The Kerner Commission recommended improved educational opportunities, social services, housing, and economic development in the areas hardest hit by the riots. Because of such recommendations, the Kerner Commission report today is remembered mainly as a statement of social conscience and government responsibility toward America's underclass. But a close reading of the full report reveals something else: the Kerner Commission also recommended an expanded role for the military in dealing with extraordinary events like the 1967 riots. In the section headed "Army Response to Civil Disorders," the report includes such statements as "the Department of the Army should participate fully in efforts to develop nonlethal weapons and personal protective equipment for use in civil disorders," and "the Army should investigate the possibility of using psychological techniques to ventilate hostility and lessen tension in riot control." The report recommended improved riot control training for National Guard troops and that the Army investigate the possibility of special riot training for its troops.

The Army liked the Kerner Commission's suggestions. Beside the threat of more riots in black urban areas, protests against the Vietnam War were growing larger and more militant. In June 1968 a "Directorate of Military Support" had been established at the Pentagon under the Department of the Army. According to James Button, author of Black Violence: The Political Impact of the 1960s Riots, the Directorate had 150 officers who monitored domestic civil disturbances around the clock, much as their colleagues at Cheyenne Mountain maintained a constant vigil for Soviet attack. Sophisticated computer systems were installed to store and analyze all public displays of political dissent. Over 20,000 troops were made available for riot control duty. And the Directorate developed policies and advice for handling domestic situations, much as other Army officers at the Pentagon developed plans for repelling a Warsaw Pact attack.

Somewhere along the line, the plans produced by the Directorate acquired the name "Operation Garden Plot," first publicly uttered in 1971 when Senator Sam Ervin (D-North Carolina), chair of the Senate Subcommittee on Constitutional Rights, held hearings about allegations of Army spying on U.S. civilians. The hearings revealed that the Army had indeed been keeping records on hundreds of thousands of American citizens connected with antiwar and radical politics, and that such activities were part of Operation Garden Plot. The Subcommittee also found that the Army had trained civilian law enforcement workers with simulated battles against rioters and large groups of protesters. It also found that Army units went on alert in May 1970 for possible response to campus demonstrations in the wake of the Kent State shootings.

There is a large gap from 1971 to 1984 in our knowledge of Operation Garden Plot. While it was apparently still operational in those years, information about it either remains classified or has yet to be uncovered through Freedom of Information Act (FOIA) requests. But Operation Garden Plot was active in 1984-an understatement. A document titled "United States Air Force Civil Disturbance Plan 55-1, Garden Plot" was obtained in 1990 by researchers under a FOIA request. Dated July 11, 1984, the document is over 200 pages (although the pages are not numbered) and was not classified. The opening of Plan 55-1 noted, however, "Although it is unclassified, it is for official use only as directed by AFR 12-30. This plan contains information that is of internal use to DOD and, through disclosure, would tend to allow persons to violate the law or hinder enforcement of the law." It also said, "operations orders and operating procedures must be designed to provide the highest degree of security possible" and "in the event of organized opposition some sort of advisory intelligence gathering capability should be assumed."

It can be safely assumed that the Army and Navy/Marine Corps have similar Operation Garden Plot planning documents, and that a master plan belongs to the Department of Defense. It is also safe to assume that FEMA and other civilian agencies have planning documents for their participation in Operation Garden Plot, although repeated FOIA requests to those agencies have produced no comparable documents to the Air Force's Plan 55-1. Many believe that the release of Plan 55-1 was inadvertent and the document should have been classified; the Operation Garden Plot documents at other agencies are believed classified and thus exempt from release under FOIA.

Plan 55-1 says the Air Force's role in Operation Garden Plot would include "aerial resupply, aerial reconnaissance, airborne psychological operations, command and control communications systems, aeromedical evacuation, helicopter and weather support." As an example of the Air Force's role, Plan 55-1 includes this remarkable statement: "In response to the US invasion of Cambodia, student unrest broke out. Under Operation Garden Plot, from April 30 through May 4, 1970 9th Air Force airlift units transported civil disturbance control forces from Ft. Bragg to various locations throughout the eastern US." This confirmed the findings of the 1971 Ervin Subcommittee.

Plan 55-1 specifies the targets of Operation Garden Plot as "disruptive elements, extremists or dissidents perpetrating civil disorder." "Civil disorder" is defined as "riot, acts of violence, insurrections, unlawful obstructions or assemblages, or other disorders prejudicial to public law and order." It also defines "civil disturbance" as "all domestic conditions requiring the use of federal forces pursuant to the provisions of Chapter 15, Title 10, United States Code." When will Operation Garden Plot be put into effect? When situations exist "that threaten to reach or have reached such proportions that civil authorities cannot or will not maintain public order." The authority for putting it into effect will be "the Presidential Proclamation and Executive Order in which the Secretary of Defense has been directed to restore law and order" with additional details "further defined by the Letter of Instruction issued to Task Force Commanders by the Chief of Staff, US Army."

Plan 55-1 states, under the heading "Force Requirements," that "US Army and Marine Corps units designated for civil disturbance operations will be trained, equipped and maintained in readiness for rapid deployment, ten brigades, prepared for rapid deployment anywhere in CONUS. A Quick Reaction Force (QRF) will be considered to be on a 24 hour alert status and capable of attaining a CIDCON 4 status in 12 hours." Under the heading "Summary of the Counterintelligence and Security Situation," it adds, "spontaneous civil disturbances which involve large numbers of persons and/or which continue for a considerable period of time, may exceed the capacity of local civil law enforcement agencies to suppress. Although this type of activity can arise without warning as a result of sudden, unanticipated popular unrest (past riots in such cities as Miami, Detroit and Los Angeles serve as examples) it may also result from more prolonged dissidence. . . if military forces are called upon to restore order, they must expect to have only limited information available regarding the perpetrators, their motives, capabilities, and intentions."

Another FOIA request turned up United States Army field manual 19-15, dated November 1985 and titled "Civil Disturbances." The introduction says that the purpose of the manual is to provide "guidance for the commander and his staff in preparing for and providing assistance to civil authorities in civil disturbance control operations" and notes, "the DA Civil Disturbance Plan, known as Garden Plot, provides guidance to all DOD components in planning civil disturbance missions."

Field manual 19-15 further states, "the president can employ armed federal troops to suppress insurrection, domestic violence, unlawful assemblies, and conspiracy if such acts deprive the people of their constitutional rights and a state's civil authorities cannot or will not provide adequate protection . . . federal intervention in civil disturbances begins with the issuance of a presidential proclamation to the citizens engaged in the disturbance."

Some of the most eye-opening sections of field manual 19-15 discuss actions the Army could take if ordered by the president to intervene in a civil disturbance. For example, "when at all possible, civil law enforcement agents are integrated with the military control force team making apprehensions," but "if police are not available, military personnel may search people incident to an apprehension." Further, "authorities must be prepared to detain large numbers of people. . . if there are more detainees than civil detention facilities can handle, civil authorities may ask the control forces to set up and operate temporary facilities. . . These temporary facilities are set up on the nearest military installation or on suitable property under federal control. . . supervised and controlled by MP officers and NCOs trained and experienced in Army correctional operations. Guards and support personnel under direct supervision and control of MP officers and NCOs need not be trained or experienced in Army correctional operations. But they must be specifically instructed and closely supervised in the proper use of force." The manual includes information on processing detainees and says, "release procedures must be coordinated with civil authorities and appropriate legal counsel." In an echo of Lincoln's suspension of the writ of habeas corpus during the Civil War, it further states that if a state court issues a writ of habeas corpus demanding a detainee be charged or released, the local Army commander should "respectfully reply that the prisoner is being held by authority of the United States." Concerning training for Operation Garden Plot the manual says that the objective is to "develop personnel who are able to perform distasteful and dangerous duties with discipline and objectivity. . . every member of the control force must be trained to use his weapon and special equipment, riot batons, riot control agent dispersers and CS grenades, grenade launchers, shotguns, sniper rifles, cameras, portable videotape recorders, portable public address systems, night illumination devices, firefighting apparatus, grappling hooks, ladders, ropes, bulldozers Army aircraft, armored personnel carriers, and roadblock and barricade materials."

Field manual 19-15 also touches on the uses of martial law. It says "martial rule is based on public necessity. Public necessity in this sense means public safety." The manual continues, "If the need for martial rule arises, the military commander at the scene must so inform the Army Chief of Staff and await instructions. If martial rule is imposed the civilian population must be informed of the restrictions and rules of conduct that the military can enforce." What are these "restrictions and rules of conduct"? According to the manual, "during a civil disturbance, it may be advisable to prevent people from assembling. Civil law can make it unlawful for people to meet to plan an act of violence, rioting, or civil disturbance. Prohibitions on assembly may forbid gatherings at any place and time. . . making hostile or inflammatory speeches advocating the overthrow of the lawful government and threats against public officials, if it endangered public safety, could violate such law."

That section of field manual 19-15 raises the question of what exactly constitutes martial law. Interestingly, there appear to be no federal statutes defining "martial law," so presumably we are left with its common law definition as control of a civilian population by military forces and the suspension of civil law in favor of direct military orders. The clearest statement about martial law in federal law is in the Code of Federal Regulations, Title 32 (National Defense), Subtitle A (Department of Defense), Chapter V (Department of the Army), Subchapter A (Aid of Civil Authorities and Public Relations), Part 501 (Employment of Troops in Aid of Civil Authorities). The relevant section is 501.4, and here it is in its entirety:


It is unlikely that situations requiring the commitment of Federal Armed Forces will necessitate the declaration of martial law. When Federal Armed Forces are committed in the event of civil disturbances, their proper role is to support, not supplant, civil authority. Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time. In most instances the decision to impose martial law is made by the President, who normally announces his decision by a proclamation, which usually contains his instructions concerning its exercise and limitations thereon. However, the decision to impose martial law may be made by the commander on the spot, if the circumstances demand immediate action, and time and available communications facilities do not permit obtaining prior approval from higher authority (§ 501.2). Whether or not a proclamation exists, it is incumbent upon commanders concerned to weigh every proposed action against the threat to public order and safety it is designed to meet, in order that the necessity therefore may be ascertained. When Federal Armed Forces have been committed in an objective area in a martial law situation, the population of the affected area will be informed of the rules of conduct and other restrictive measures the military is authorized to enforce. These will normally be announced by proclamation or order and will be given the widest possible publicity by all available media. Federal Armed Forces ordinarily will exercise police powers previously inoperative in the affected area, restore and maintain order, insure the essential mechanics of distribution, transportation, and communication, and initiate necessary relief measures.

From the wording of 501.4, it seems that "martial law," like "national emergency," can mean almost anything the president wants it to mean.

... the Clinton administration showed a surprising willingness to expand the role of the military in civilian law enforcement. For example, during the 1993 siege of the Branch Davidian complex in Waco, Texas, the Bureau of Alcohol, Tobacco, and Firearms (BATF) requested military support, including tanks and training sessions by Green Berets, basing their request on a single drug charge pending against one of the Davidians. Military lawyers blocked the request on grounds that it would be a clear violation of the Posse Comitatus Act.

Inside the Shadow Government

Index of Website

Home Page