The study, "U.S. Armed Forces and Homeland Defense: The Legal Framework," published by the Center for Strategic and International Studies, describes the president's authority in times of crises as defined by the Constitution and existing statutes like the Insurrection Act, Posse Comitatus Act, and the Stafford Act.
The report's author, attorney Paul Schott Stevens, believes these laws give the president broad powers during a national emergency like the recent terrorist attacks on Washington and New York. Stevens -- a partner in the Washington office of Dechert, an international law firm -- served as chief of staff for Colin Powell at the National Security Council in the administration of Ronald Reagan, and as executive assistant to Secretary of Defense Dick Cheney in the first Bush administration.
The report specifically examines the nature and extent of the president's authority to entrust the Department of Defense with a role in domestic defense, and considers the legal issues that arise whenever the military is involved in homeland defense.
Stevens came to several conclusions. "These statutes specifically authorize the president to call upon the armed forces to help restore public order, and they anticipate the large role that the Department of Defense may play by virtue of the array and depth of resources it could bring to bear to save lives and protect public health and safety," he writes. He says that the recent terrorist attacks have proven how necessary presidential authority is to protect public safety.
"We never thought that we'd have to have fighter aircraft doing combat air patrols over major cities or sporting events or things of that nature, but it's a new reality that we face and it's indicative of one of the many, many ways which the Department of Defense may be called upon to defend against an attack domestically or to respond in the event of an attack," says Stevens.
"Under certain circumstances state and local law enforcement may not be enough to protect the homeland."
Stevens says that many people on the more liberal side of the political spectrum are concerned about traditional civil liberties being compromised when armed forces are used in a domestic role to enforce the laws or to keep public order. That's one of the reasons that the Department of Defense has been reluctant to push itself into this type of role.
Stevens says that current law does impose checks and balances on the president's actions during a national emergency.
"The Supreme Court says that the president does have certain emergency powers and the Constitution is the supreme law of our land in war as well as in peace," says Stevens. "Governmental actions are always subject to judicial review in the courts and any compromise of fundamental civil liberties are simply impermissible absent the most compelling circumstances."
Dan Fisk, senior fellow in international studies at the Heritage Foundation, agrees that there could be a series of attacks on the United States that would make it necessary for the president to use the military as law enforcement. He says that there are no definite criteria in the Constitution or written law that dictate when the president is allowed to use this authority.
"There is no definition in the Constitution of what commander in chief authority is -- there's this tension between Article I, the power to declare war, and his commander-in-chief authority," says Fisk. " There's clearly a belief that when the United States is attacked or when American lives or property are at risk overseas, the president has the ability under his commander in chief authority to respond. He can take military action without specific authorization to defend life, property and the homeland."
Fisk says that historically the United States has used the military to maintain public order in controversial situations.
"In the 1950's Eisenhower deployed federal troops to suppress resistance to the enforcement of court-ordered desegregation of Little Rock, Arkansas," he says. "At that time you had an issue that the President deemed to be of such importance that he took this step."
Will Marshall, president of the Progressive Policy Institute, says that the Constitution bars the use of the armed forces for keeping domestic order. He thinks that the only time it is necessary to use the military domestically is to police our borders.
"If the United States were invaded by a foreign army I think that he (the president) would have all the authority he needed to use every tool at his disposal -- including the military -- to repel a foreign invader, but that's not the situation. We are talking about terrorists, we are talking about infiltrators, people who come and hide in the population and then surface long enough to commit a terrorist act," says Marshall. "It doesn't make any sense to use our military to deal with sleeper agents in the United States-that ought to be handled by the FBI and other law enforcement agencies."
Tim Lynch, director of the Cato Institute's Project on Criminal Justice, says that this is the one area where the institute believes that the federal government should be active and vigorous. He says that the primary responsibility of the federal government and the president is to protect citizens against foreign attacks, but that the military should only be used for law enforcement as a last resort.
"The military is ill-suited for law enforcement responsibility, and that idea has been vindicated time and again by tragic shootings and killings where the military is thrust into that role," says Lynch. "We've pointed out that the disaster at Waco was in a large part because the FBI and the BATF were being trained by military personnel. They tended to view the standoff as a military type situation rather than a domestic law enforcement situation."
David Siegrist, a research fellow for the Potomac Institute for Policy Studies, says that current laws do allow the president to use the military for law enforcement, but that it would be better to use it for logistics and to guard the borders.
"According to the Stafford Act, local resources would have to be depleted before the federal government can step in," says Siegrist. "I wouldn't recommend using the military but if it's needed it's there."
All sides seem to agree that using the military as law enforcement in times of national emergency should be a last resort.
PPI's Marshall takes this a step further and says that the military should be used domestically only if the United States is attacked by a foreign army. Terrorists living within our borders, he says, should be handled by domestic policing agencies, and these agencies need to get more coordinated to handle the new challenges.
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