SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 2
January 6, 2016

Secrecy News Blog: http://fas.org/blogs/secrecy/

THE DOMESTIC ROLE OF THE AMERICAN MILITARY

The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.

A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book "Soldiers on the Home Front: The Domestic Role of the American Military" by William C. Banks and Stephen Dycus (Harvard University Press, 2016).

The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution "knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when."

And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.

"In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters."

The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law-- each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.

One of the surprising themes that emerges from "Soldiers on the Home Front" is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:

"Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene." (p. 116)

"Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial." (p. 167)

"The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so." (p. 211)

"Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process." (p. 249)

"The rules, in other words, are a mess." (p. 263)

More fundamentally, "Soldiers on the Home Front" reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.

DOD SEEKS FOIA EXEMPTION FOR MILITARY DOCTRINE

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified "military tactics, techniques and procedures." The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that "could reasonably be expected to risk impairment of the effective operation of the armed forces" and that had not already been publicly disclosed.

"The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used," DoD stated in its justification for the exemption. "Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized."

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy "significantly narrowed" the scope of FOIA Exemption 2. "This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives."

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD "tactics, techniques and procedures" are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

"The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the 'High 2' exemption," the DoD proposal explained. "The Administration believes that, following the Supreme Court's decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap."

Both DoD FOIA proposals -- the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision -- were excluded by Congress from the FY 2016 defense authorization act "due to jurisdictional concerns and process issues (but not content issues)," according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milner amendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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