Sledgehammers and Peanuts: Military assistance to civilian law enforcement post-9/11

Kendra Eyben, J.D./M.A. in International Affairs Candidate at the University of Ottawa and the Norman Patterson School of International Affairs 

The first rule of a military coup is that it must be done in the name of democracy – but any functioning democracy will strictly limit the involvement of the military in civilian affairs. In Canada, high-profile intervention by the Forces are history textbook moments: October 1970, Oka 1990 and (often ridiculed) Toronto 1999 during a particularly bad snow storm. Lesser known involvements include assistance to the police during the G20 summit. In the United States, there have been more incidents of the military assisting civilian law enforcement: Hurricane Katrina in 2005, Wounded Knee in 1973, enforcing desegregation in Arkansas in 1957.

The mentioned incidents are known as “civil support operations”. In an operation of this type, the military assists law enforcement in the performance of its normal duties. Although these operations are considered extraordinary, there has been a gradual erosion on the norm of military non-intervention since September 11, 2001 in both the United States and Canada. Through the Civil Assistance Plan of 2008 (renewed in 2012) both countries now even have a framework to facilitate the military of one nation to become involved in the civil assistance mission of the other. Although no one will dispute that there are times in which military involvement in domestic affairs is necessary, it should be limited to truly extraordinary situations. Furthermore, cross-border operations should continue to expand only with great caution.

Military assistance to civil authorities is controversial in both countries since it risks subverting fundamental democratic principles and rights. The taboo traces back to the Magna Carta and the people’s struggle against absolute monarchy in Great Britain. The Magna Carta, which proclaimed that “no man shall be … imprisoned or … harmed … save by the law of the land”, first subordinated the king’s military authority to the power of the law. The American Revolution further cemented a strong and traditional resistance to military intrusion in civil life. Canada’s resistance to military intrusion mirrors that of the United States, although it is worth noting that we maintain the Queen as our commander-in-chief. The exclusion of the military in domestic affairs is based on the military’s traditional role, which is the elimination of an enemy. That purpose is inherently inapplicable to domestic situations.

Although there are legal prohibitions in both countries, the federal government has significant discretion to deploy the military in domestic situations. In the United States, the Insurrection Act permits the president to call in the military when the federal law is “impracticable to enforce”. There is no statutory guidance for this phrase. Similarly, in Canada, the National Defence Act the federal government can authorize the Canadian Forces to provide assistance to civilian law enforcement if that assistance is in the “national interest” and if the matter cannot be “effectively dealt with” otherwise. The phrase “national interest” is also undefined. The vagueness of the terms means that citizens must rely on the best judgement of the federal government. Historically, the judgement has erred on the side of caution and limited involvement, but that judgement is dependent on context. The continued erosion of the norm of non-intervention calls for stricter legal definitions.

Since 9/11 both countries have emphasized the involvement of the military in domestic protection. After the attacks on the World Trade Center, the United States and Canada started viewing the homeland as a new front for engaging the enemy. Terrorism was not viewed as a law enforcement issue, but one that potentially required a national defence response. Furthermore, the “war on terror” was not only to be fought in the mountains of Afghanistan, but also in the streets of New York and Toronto.

As a consequence of this view, the United States established the Northern Command (NORTHCOM) in 2002 to defend the homeland. Canada established Canada Command (CANCOM) in 2008 with the same purpose (which is now integrated into Canada Joint Operations Command (CJOC) after our 2012 Force reorganization). Both countries issued policy documents describing domestic security as a primary focus for the military.

The dangers of this approach are clear. Fifteen years after the attacks, the United States and Canada are still engaged in a “war on terror” against an ill-defined enemy. In our uncertainty, we have seen an increase in the “securitization” of our society; areas such as immigration and refugees, natural disasters, health, infrastructure, the internet are all increasingly being viewed under the lens of national security. While more and more areas become relevant to “national security” we maintain a blurry distinction between that concept and “national defence” in the collective consciousness and in policy documents. One involves fighting a war on domestic soil, the other is a purely civilian response. If everything is national security, and national security is treated interchangeably with national defence, then it becomes easier and easier to justify the involvement of the military in domestic affairs.

Another risk that must be considered is the rise in social tensions since 9/11, particularly in the United States. The 2008 Financial Crisis saw the rise of the Occupy Movement, which was rooted in complaints of economic inequality. Black Lives Matter sprung from continued tensions between police and the black community. The Anti-Dakota Access Pipeline movement shows the continued resistance of American-Indians. The continued polarization of political life in America has only intensified with the election of Donald Trump in November 2016. Canada’s social climate has been milder, but many issues such as income inequality, racial discrimination, aboriginal rights and xenophobia are present.

Civil protest and disobedience are vital in democracies and part of the legitimate political process. However, the current erosion on our prohibition of military interference in civilian affairs raises concerns that, eventually, the armed forces may be turned onto protesters. The Civil Assistance Plan compounds the issue by facilitating the augmentation of military forces. We already have conversations about the negative impact of militarizing the police, we now need to consider the increased dangers of our military acting as the police.

Proactive steps should be implemented to roll back the erosion. First and foremost, the civilian assistance plan between the United States and Canada should be limited to natural disasters and explicitly prohibited in instances where the military is assisting law enforcement in dealing with civil dissent. Secondly, both countries should clearly articulate what situations are acceptable for military assistance. Clearer definitions will lead to more accurate decision making. Finally, we need to stress the importance the separate functions of police and military. This means not invoking the military in domestic contexts unless absolute necessary. It also means ensuring that the police continue to look and act like law enforcement, and not our armed forces.

Democratic institutions rely on minimal interference by the coercive power of the military. In our rush to ensure we are safe, we must not forget that security is based first on fidelity to our fundamental values.

Air Force Conducts Spray Mission Over Louisiana After Hurricane Ike” by Chuck Simmins is licensed under CC BY 2.0

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