Few constraints, if any, remain on what terrorists are capable of and willing to do. In the past decade terrorists have released sarin gas on a Tokyo subway, buried radiological materials in a Moscow park, delivered anthrax through the US mail, and killed thousands in a well-coordinated suicide attack on the World Trade Center and the Pentagon. Terrorists have proven themselves to be both more bloodthirsty and more innovative than previously imagined. The possibility that state sponsorship of these groups could include providing them with weapons of mass destruction (WMD) cannot be ignored. In such a world it no longer seems implausible to discuss the terrorist use of nuclear weapons.
The federal government recognizes the threat of WMD terrorism within the United States and has been earnestly preparing to combat it since at least 1995. However, many questions remain regarding the military's role in domestic terrorist incidents--the current debate over instituting a commander-in-chief (CINC) for homeland security is only one example. As long as the federal bureaucracy defines terrorism as a law enforcement issue rather than a national security issue, the Department of Defense faces considerable legal limits on its ability to act to counter domestic terrorism. While these restraints are significant impediments to DOD's response, the principles enshrined in Posse Comitatus and in the federalist system are, nevertheless, necessary guarantors of American democracy that should not--and need not--be violated, even in a national emergency.
The likely federal response to a nuclear incident currently suffers from conflicting and confusing guidance that is dependent on too many external factors to be timely and therefore effective. In the end, however, the federal response would be almost totally dependent on the Defense Department for its resolution. Given the legal limits placed on DOD's actions, this situation is a disaster waiting to happen. As Juliette Kayyem, executive director of Harvard's Executive Session on Domestic Preparedness, has remarked, "In a terrorist attack, this confusion could produce at least two unwanted outcomes. First, it could cause institutional inertia, leading ultimately to more deaths and even greater destruction. Second, it could give rise to overreaction and fear, resulting in unnecessary uses of power." (1)
Although it may be possible to improve the response capabilities of civilian agencies (for example, the FBI's Critical Incident Response Group), the reality of a military response in an emergency cannot be denied. Therefore, it is necessary to expand DOD's legal authority to act in a domestic nuclear terrorist incident, but without violating important American principles of government. The best way to accomplish this is through an expansion of DOD's ability to declare a National Defense Area (NDA) in dealing with nuclear incidents.
Constitutional and Legal Limitations
The most fundamental limitation placed on the military's actions in domestic affairs is the well known but poorly understood Posse Comitatus Act of 1878. (2) Originally intended "to end the use of federal troops to police state elections in former Confederate states," (3) this Reconstruction Era law is used today to keep the military out of domestic law enforcement. This restriction was one of the principal issues in the investigation of the military's involvement in the Waco disaster and continues to bedevil DOD domestic counterdrug and counterterrorist operations.
However, Posse Comitatus is not the absolute prohibition that many consider it to be. (4) A rather significant loophole is written directly into the law:
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 not more than $10,000
or imprisoned not more than two years, or both. …