Not In Our Own Backyard: 

Posse Comitatus and the 

Challenge of Government Reorganization 

by 

James P. Harvey 

The Counterproliferation Papers 

Future Warfare Series No. 42 

USAF Counterproliferation Center

Air University 

Maxwell Air Force Base, Alabama 

Not In Our Own Backyard: 

Posse Comitatus and the 

Challenge of Government Reorganization 

James P. Harvey 

September 2007 

The Counterproliferation Papers Series was established by the USAF 

Counterproliferation Center to provide information and analysis to assist 

the understanding of the U.S. national security policy-makers and USAF 

officers to help them better prepare to counter the threat from weapons of 

mass destruction. Copies of No. 42 and previous papers in this series are 

available from the USAF Counterproliferation Center, 325 Chennault 

Circle, Maxwell AFB AL 36112-6427. The fax number is (334) 953-

7530; phone (334) 953-7538. 

Counterproliferation Paper No. 42 

USAF Counterproliferation Center

Air University 

Maxwell Air Force Base, Alabama 36112-6427

The Internet address for the USAF Counterproliferation Center is: 

http://cpc.au.af.mil/

Contents 

 Page 

Disclaimer................................................................................................... ii 

The Author................................................................................................. iii 

Introduction..................................................................................................1 

Background..................................................................................................5 

Terrorism Defined ..............................................................................8 

Warfare and Crime ....................................................................................11 

Terrorism in America .......................................................................12 

The Posse Comitatus Act of 1878 ....................................................13 

The Federal Military.........................................................................15 

Law Enforcement .............................................................................16 

War Versus Crime ............................................................................17 

A “New” Kind of War ...............................................................................21 

Confusion and Delayed Response ....................................................23 

The Gray Area ..................................................................................29 

Just the Beginning?...........................................................................31 

Scenarios...........................................................................................37 

Context and Oversight ...............................................................................41 

Options and Recommendation...................................................................51 

Conclusion .................................................................................................55 

Notes..........................................................................................................59 
ii 

Disclaimer 

The views expressed in this publication are those of the author and do 

not reflect the official policy or position of the U.S. Government, 

Department of Defense, or the USAF Counterproliferation Center. 
iii 

The Author 

Lieutenant Colonel James P. Harvey is currently the Commander of the 

25th Intelligence Squadron, Hurlburt Field, Florida. He is responsible for 

more than one hundred and seventy personnel delivering real-time direct 

threat warning and enhanced situational awareness to AFSOC and joint 

special operations forces’ aircrews and ground elements conducting high-risk 

missions worldwide for the Secretary of Defense and USSOCOM. He also 

directs an $85 million threat warning system’s program development, testing, 

and maintenance requirements for all AFSOC platforms. 

Previous assignments include serving as a pilot, 55th Special Operations 

Squadron; Assistant Professor, U.S. Air Force Academy; Branch Chief, 

JCS/J2; Flight Commander, Deployable Ground Station Two, 13th 

Intelligence Squadron; Division Chief, National Reconnaissance Office; and 

Special Assistant to the PACAF Director of Intelligence. He was Honor 

Graduate of the Intelligence Officer’s Course, and an in-residence graduate of 

Squadron Officers School, the College of Naval Command and Staff, and the 

Air War College. Lt Col Harvey was the recipient of the Air War College 

Wright Brothers Award and the USAF Counterproliferation Center’s Air 

Force Homeland Security Award. 

1 

Not In Our Own Backyard: 

Posse Comitatus and the 

Challenge of Government Reorganization 

James P. Harvey 

Introduction 

The world changed on September 11, 2001. We learned 

that a threat that gathers on the other side of the earth can 

strike our own cities and kill our own citizens. It’s an 

important lesson; one we can never forget. Oceans no 

longer protect America from the dangers of this world. 

We’re protected by daily vigilance at home. And we will be 

protected by resolute and decisive actions against threats 

abroad. 

-- President George Bush 

 Strategy for Homeland Security 

 and Civil Support 

Historically, Americans tend to view the United States as a sanctuary, 

free from the influence of terrorists and international criminals. 

International organized crime is thought of as something that happens in 

Russia, Italy, or the Balkans, and it is something to read about it while 

sipping coffee and perusing the Sunday paper. Acts of terrorism 

committed on U.S. soil were unthinkable. After all, assassinations, 

bombings, and hijackings are activities that occur only in certain parts of 

the world: the Middle East, Europe, and South and Central America. 

Beyond that, most citizens might very well have told you that terrorism 

was on the decrease and that certainly we heard more about these sorts of 
2 . . . Not in Our Own Backyard

things in the 1980s than we do today. The world, however, is not as it 

appeared and in fact it has changed. 

Today many refer to the September 11, 2001, attacks on the U.S. 

homeland as the turning point, believing that something changed on that 

day. This paper argues that in fact September 11th was merely an acute 

symptom of changes that have been underway for well over a decade—

changes that are firmly anchored in extremism and fueled by the dramatic 

capabilities and advances realized through modern globalization. These 

changes have enabled business and commerce, education and diplomacy, 

governments, private organizations, and charities. As globalization and all 

that it represents is amoral, these same changes have granted equivalent 

capability to the malicious—especially criminals and terrorists—now 

empowered to act and influence globally in concert with, or in spite of 

legitimate and licit organizations and governments. These organizations 

have no burden or obligation to regard traditional state definitions of the 

rule of law and sovereignty. 

With the advent of and increase in modern transnational activity, 

specifically violent activity, the United States is facing an increased risk of 

experiencing political and criminal violence within our own borders. This 

paper focuses on various aspects of unconventional warfare and terrorism. 

The arguments made here, however, are applicable across the broader 

spectrum of what is generally referred to as “Transnational Warfare.” 

Furthermore, this threat calls into question a line—or “seam”—that in 

most American’s minds traditionally divides jurisdictions over domestic 

and foreign “threats.” This seam is now blurring, and arguably in some 

cases has disappeared for our transnational enemies. This currently results 

in confusion within the United States Government as to which element or 

agency is best suited to specifically detect and subsequently counter or 

defeat these threats, who should legally respond to them, and how. The 

confusion is primarily driven by clinging to a geographic view of threats 

and the resultant clinging to a construct that requires the existence of the 

seam. Unfortunately, this remains true even with the advent of the 

Department of Homeland Security (DHS). Due to this confusion and the 

delays in response it causes, both foreign-based and domestic “powers” 

which are national, international, or transnational in nature are learning to 

attack the U.S. along this seam. The enemy who understands that such a 

seam exists can anticipate and even use to his advantage the resulting 
Not in Our Own Backyard . . . 3 

delayed, insufficient, or incomplete responses required to counter the 

threat and provide for the common defense of the American people. 

The challenge to our government is to attempt organizational reform, 

or even innovation, to best counter this new, non-traditional class of 

warfare. This requires the U.S. to abandon affinity for legacy definitions 

of threats to the state, to review its history and reasons for why it has 

embraced those various definitions, and to reconsider how it should best 

handle threats as they exist today and into the future. This paper argues 

that the Department of Defense (DoD) must resume its historic role as 

defender of the homeland, resuming equivalent responsibilities and 

authorities it once held that over time have slowly been relegated to the 

law enforcement community. In this broad context, current distinctions 

between homeland defense and security must be readdressed as hindrances 

to a proper defense. Finally, this in no way suggests the abandonment of 

proper oversight and governance to assure and preserve the liberties at the 

heart of the United States and all that it stands for. Nor does this paper 

argue that the modern transnational threat posed by terrorism should be 

addressed only by one element of governmental power. DoD and other 

federal agencies must continue to develop robust coordination and 

information sharing capabilities. 

Traditional and classic military threats to national security will endure, 

as will traditional criminal threats to domestic law and order. Those general 

areas are not the focus of this paper. The rapidly emerging and exceedingly 

capable new class of transnational threats that do not neatly fit into either of 

these categories are a new class of non-state threats that show all the ability 

to challenge the very literal security of the state as if they were an 

equivalent or greater opposing military force. This paper will describe the 

nature and character of this threat and posit in the modern context the 

Department of Defense is best suited to serve as lead federal agency to 

address this global threat, regardless of former geography-based definitions 

anchored to domestic and foreign, national and international, etc. 

As a nation, we must fight to preserve and protect the civil liberties 

that make the U.S. great, and do so in a way that does not cling to our 

memory of a comfortable past. New threats require new strategies, 

ironically firmly anchored to the most basic foundation set in place by the 

nation’s Founding Fathers. From that point of departure, we can continue 

to address legacy threats as we have while credibly and responsibly 
4 . . . Not in Our Own Backyard

addressing modern/emerging threats that presents itself as able to attack 

with a level of violent and non-violent actions far exceeding any 

reasonable definition of mere criminal conduct. The entire government 

must move forward, depending on the strength of its genesis documents, 

and equally employing the benefits of globalization along side government 

reform and reorganization. It is dangerous and trite to cling to an old view 

of the world while simply invoking the language of globalization to claim 

a new remedy—the most often of which are simplistic and overly 

optimistic claims of remedy brought through exceedingly important but 

insufficient capabilities such as “information sharing.” Government 

reorganization must occur in a way to actually apply all of the nation’s 

strength anew against a very real and new threat rather than in a way that 

simply works to preserve old definitions that suggest we cling to a 

comfortable past. Reorganization must properly and maturely include 

both word and deed. 
Not in Our Own Backyard . . . 5 

Background 

The West, the principle target of international terrorism, 

must organize itself for battle. It must, and can, adopt a 

variety of means—political, economic, and military—with 

which to fight back. But underlying them all must be the 

moral understanding that terrorism, under whatever guise 

or pretext, is an inexcusable evil, that it obliterates the 

political and moral distinctions which are the foundations 

of humane and free life under the rule of law; that the West, 

in short, must resist terrorism and ultimately defeat it. 

-- Benjamin Netanyahu 

 Terrorism: How the West Can Win 

Several disturbing trends are causing concern across the federal 

government. These trends begin to shake the framework upon which we 

hang our traditional American view of the world and our related view of 

threats, both internal (crime) and external (defense). This paper will 

demonstrate that the lines between types of domestic crime are blurring 

and the past several decades demonstrate new levels of criminal violence. 

Some of these activities more resemble acts of war than traditional crime, 

essentially blurring the line between these as well. This blurring is an 

international problem as well, as crime transcends state borders and is 

increasingly committed by non-state actors without regard for state 

sovereignty. The debate is open whether these acts are best addressed as 

crimes, acts of war, or both.1

“Realism” remains the predominant view held by most western 

democracies, seeing all primary and credible actors as sovereign states, 

and placing political interests supreme. The trends mentioned above, 

however, give increasing credibility to “pluralism” or “liberalism.” 

Multinational, transnational, and non-governmental organizations may 

assume roles and wield power rival to states. “Liberalism” purports that 

everything is not always held in submission to politics, and not all primary 

actors are states.2
6 . . . Not in Our Own Backyard

This leads to emerging diplomacy, security policy, and subsequent 

governmental structuring challenges and opportunities for the United 

States. The U.S. has a solid history of clearly distinguishing between 

domestic criminal activity, federally under the jurisdiction of the 

Department of Justice, and foreign-based threats to our nation’s security, 

under the jurisdiction of the Department of Defense. Additionally, 

criminal activity originating in other states directed toward or involving 

U.S. persons or property also usually falls within the realm of law 

enforcement. Historically it has been easy to distinguish between the two. 

Even with the advent of the Department of Homeland Security this 

traditional division of responsibility has been generally preserved resulting 

in this convenient distinction growing blurry. A significant gray area has 

emerged resulting in increasing confusion over federal roles and 

jurisdictions, when jurisdiction is shared, which organization has lead, and 

increased confusion over whether actions are criminal, martial, or both. 

Traditional definitions of crime and war, and terms commonly used by one 

department or another have lost clarity. For example, uncertainty exists 

today about the true nature of terrorism.3

 Related, the traditional and 

commonly accepted definition of a “weapon of mass destruction” (WMD) 

within the defense world revolving around the use of chemical, biological, 

and/or nuclear weapons has relatively recently been adopted and used by 

the Department of Justice in a manner inconsistent with traditional use.4 

The point is not to argue that these various definitions cannot or should 

not evolve over time. Rather, it is to emphasize that the murk and 

confusion over how to define these emergent activities related to war, 

crime, WMD, etc., indicates a need for change to ensure clarity in 

understanding and action. 

The reasons and consequences of misusing these terms are varied. 

The public language describing both war and terrorism is often 

emotionally loaded. This language is often (with the best of intentions) to 

impassion, enrage, anger, and attempt to build consensus against a 

criminal or enemy rather than to make unemotional and concise 

statements. The broad reason for this is the blurring of lines within the 

world of crime, and between criminal activities and the activities of war. 

This misuse of language demonstrates our extant formal framework for 

viewing these activities is failing at some level. When criminal activity 

approaches a level of violence only previously seen in war, or individual 
Not in Our Own Backyard . . . 7

and non-state actors truly threaten national security through means and 

ways only previously possessed by sovereign states, the tendency is to use 

language consistent with that level of violence, and previously only used 

for war.5

 These threats have emerged with sufficient speed so as to not 

allow time to accurately clarify the new gray area activities, and as a 

nation, to adjust to meet the new threats in a calculated way. The attack 

on September 11, 2001, drove this home. The reflexive establishment of 

the Department of Homeland Security, arguably necessary in function, 

may not have been the form chosen if addressed proactively rather than 

reactively, resulting in a rapid attempt to bridge traditional views of justice 

and defense by bringing formerly disparate elements of the government 

together.6 

When laws are broken, the goal of justice is to investigate and bring 

to trial those whom the evidence suggests are culpable. The result of the 

process is a trial. The Department of Defense, however, is not an 

instrument of law enforcement. The military is an instrument of policy 

and generally operates under different guidelines toward a related but 

different end—military victory as defined by policy makers. As these two 

areas grow more similar in character, but remain different in nature, to 

keep the American way of addressing them intact the U.S. needs an 

organization able to seamlessly place one foot in law enforcement and the 

other in defense. Currently we attempt to accomplish this by straddling 

the seam through the mechanism of the Department of Homeland 

Security. 

There are generally five categories of activity that can fall into the 

broad category of Transnational Warfare. These are terrorism, 

information warfare, criminal drug activity, WMD, and mass migrations. 

Each of these activities can occur in a purely domestic setting; however, 

the transnational element is introduced when the traditional state takes a 

back seat or is not a component in the activity at all. The perpetrator 

either operates across traditional political boundaries freely, identifies with 

an organization or cause that is non-national/non-state by nature, or is a 

rogue in that he has no state affiliation or sponsor or state-based motive 

behind his activity. This is to say the motive for the violence transcends 

established political geography. Transnational violence often includes 

primary motivators such as religion, non-state or anti-state political 

ideology, or even simple hatred. In the list of things a given transnational 
8 . . . Not in Our Own Backyard

criminal or warrior identifies with, the state is often low on the list and in 

some cases, not on the list at all. 

Terrorism Defined 

Of all the areas generally included in the concept of transnational 

warfare, the one familiar to most people is probably terrorism. Beginning 

in the late 1970s, talk of terrorism was in vogue. Government officials 

and organizations, scholars, and Hollywood spend a great deal of time and 

money on the subject. Even recently, Hollywood produced a movie 

focusing on an upswing of international terrorist incidents committed 

within the United States. The violence increased to a point that it 

overwhelmed the law enforcement community’s ability to counter it. The 

public demanded action. The subsequent result was a presidential 

declaration of martial law in New York City, the introduction of the U.S. 

Army into the fight, and the establishment of racial, ethnic, and religious 

profiling criteria, and internment camps in an effort to stop the violence.7

Terrorism may be like good art. With the exception of a select group 

who deal with art for a living, very few people can give a technical 

definition of what constitutes “good art.” Nonetheless, almost everyone 

will tell you that they know it when the see it. So it goes for terrorism. 

Just as there are probably as many definitions of what constitutes good art 

as there are art scholars, communities of experts within the U.S. 

Government and internationally have yet to agree on a concise, single 

definition for terrorism and terror-related phenomena. Below are several 

definitions. All are drawn from Title 22 United States Code, Section 

2656f(d) and have been used by the U.S. Government for statistical and 

analytical purposes since 1983, and are documented in the State 

Department’s annual publication Patterns of Global Terrorism:8

Terrorism: premeditated, politically motivated violence 

perpetrated against noncombatant targets by sub-national 

groups or clandestine agents, usually intended to influence 

an audience.9

International Terrorism: terrorism involving citizens or the 

territory of more than one country. 
Not in Our Own Backyard . . . 9 

Terrorist Group: any group practicing, or that has 

significant sub-groups that practice, international terrorism. 

These definitions are used throughout this paper when referring to 

terrorism, international terrorism, or terrorist groups unless otherwise 

specified. Note that the focus or specialty of every organization within the 

U.S. Government that deals with terrorism drives the nuances of the 

definition. For example, the Department of Defense uses similar 

definitions to the ones above, but may add or subtract from it to reflect the 

military’s mission. Likewise, the Department of Justice and its Federal 

Bureau of Investigation will adjust the definition to better reflect their 

criminal prosecution concerns and jurisdictions. Regardless, all 

definitions accepted by elements of the U.S. Government include a 

common core, that is, that terrorism is political violence. 

As much debate exists over a single, solid definition for terrorism, it 

is murkier when authors discuss “transnational terrorism.” The word 

“transnational” is currently used prolifically in writings and discussions 

about crime, terrorism, networks, business, etc., however, there is no clear, 

commonly agreed to definition which is distinct from the current meaning 

of “international,” especially in the context of terrorism. For example, the 

Oxford American Dictionaries defines transnational as “extending or 

operating across national boundaries” and “a large company operating 

internationally; a multinational.”10 No distinction is made between 

international, multinational, and transnational. The most useful definition 

is used by Dr. Phil Williams in his writings, a definition originally offered 

by Robert Keohane and Joseph Nye. Williams suggests a definition that 

“delineates transnational activity in terms of the movements of 

information, money, physical objects, people or other tangible or 

intangible items across state boundaries, when at least one of the actors 

involved in this movement is non-governmental.”11 

This definition is modified here to reflect transnational terrorism as 

international terrorism committed by an individual or group whose 

political motive is not nationalistic. This is to say their allegiance to a 

country, if it exists at all, is not the primary motive for their activity. For 

example, a terrorist group may be composed of international/multinational 

members, however the group’s motive for political violence is rooted in an 

idea that transcends members’ ties to their parent nations. The group, and 

potentially its members, are non-state actors. Williams discusses this 
10 . . . Not in Our Own Backyard

attribute further when he states, “although non-state actors lack the 

attributes of sovereignty this is often an advantage rather than a 

constraint—they are sovereignty free rather than sovereignty bound. They 

are important not because of ‘their legal status, capabilities or sovereignty’ 

but because of their ‘capacity to initiate and sustain actions that are outside 

the bounds of state activity, and that challenge the traditional dominance 

of states’. Many of these sovereignty free organizations have managed to 

‘obfuscate, even elude, the jurisdiction’ either of a single state or of the 

state system as a whole.”12 This highlights the distinction between 

international and transnational, and the emerging problem that 

transnational terrorism poses to the state. 
Not in Our Own Backyard . . . 11 

Warfare and Crime 

Few criminal gangs, even in the third generation, have 

become full-fledged terrorist organizations as well, but 

there is some convergence occurring in terms of 

organizational designs and strategies and tactics. Thus, it 

behooves an analyst concerned about the future evolution 

of gangs to be cognizant of trends in the world of terrorism 

that could lead to imitation by criminal gangs, or worse 

yet, to links and alliances with terrorist organizations, 

whether as proxies or partners. 

-- John P. Sullivan 

 Urban Gangs Evolving As Criminal 

 Netwar Actors 

When I first entered military service, terrorism was typically defined 

as an event that fell in the low intensity portion of the spectrum of conflict. 

Although it was considered an act of political violence then as now, it was 

also considered an act of war—a form of combat or war-like behavior. 

Countering acts of terror was often viewed as a military function, and 

discussed as such. This is not to say that there was not an element of law 

involved in countering acts of terrorism, or that terrorist activities were not 

illegal by definition. Rather, not only in America, but also across the 

globe, the average citizen considered countering terrorism as a military 

function. 

In the United States, this was not a real problem until the volume of 

international terrorism focused on U.S. citizens and property required the 

activity to fall entirely into the realm of law enforcement. The dilemma 

arises when an act of terror is committed within the United States given 

the historical apprehension against having federal troops operate within 

the borders of the U.S. Additionally, there are two philosophical reasons 

for defining terrorism as criminal activity instead of classifying it as a 
12 . . . Not in Our Own Backyard

form of warfare. First, many, if not all terrorists view themselves as 

patriots, freedom fighters, or as soldiers fighting for some other legitimate 

and possibly oppressed cause. If the U.S. Government defines terrorism 

as military behavior, it implies some level of legitimacy. On the other 

hand, if terrorism is by definition criminal activity, then terrorists are 

criminals and can in no way receive credit for their bad behavior. Second, 

when acts of terror occur on U.S. soil, the issues of the Posse Comitatus 

Act and the use of federal military forces domestically do not surface. 

Countering terrorism falls into the realm of law enforcement rather than 

the military. Additionally, when terrorists are caught, they can be 

prosecuted.13

Defining terrorism as criminal activity has also created problems. 

Although the numbers of terrorist acts have generally decreased of late, 

they have become increasingly more violent. According to the U.S. 

Department of State, “[t]here were 273 international terrorist attacks 

during 1998, a drop from the 304 attacks we recorded the previous year 

and the lowest annual total since 1971. The total number of persons killed 

or wounded in terrorist attacks, however, was the highest on record: 471 

persons died, and 5,952 persons suffered injuries.”14 Of note is that 40 

percent of these attacks (111) were directed at what are classed as U.S. 

targets, resulting in 12 U.S. citizens’ deaths. Not to let the statistics 

deceive, all of the fatalities occurred as a result of the bombing of the U.S. 

embassy in Nairobi. There were no international acts of terror conducted 

on U.S. soil in 1998 that met the State Department’s criteria for reporting. 

They do, however, acknowledge “there were several successful efforts to 

bring international terrorist suspects to justice.”15

Terrorism in America 

It is also important to consider that many acts of international terror 

occur on U.S. soil each year, most of which are never chronicled as such. 

The reasons for this are many. The two most probable reasons are that 

law enforcement never recognizes the crime scene they are investigating is 

a result of terrorism, or, they determine well after the crime it was actually 

an act of terror. In some cases, while suspicion remains, they never 

conclusively determine an act of terror occurred even if it was suspected 

early on. 
Not in Our Own Backyard . . . 13 

Louis R. Mizell, Jr., is a former State Department employee who 

worked as a Special Agent and Intelligence Officer for the Diplomatic 

Security Service his entire career. His focus was on conducting 

counterterrorism operations worldwide.16 Having retired from 

government service, he now heads a private organization dedicated to 

producing terrorism databases. In a recent book, he reports that 

“[b]etween January 1, 1977, and Jan 1, 1998, [he] recorded 3,150 

incidents of political violence in the United States perpetrated by at least 

128 domestic and international terrorist groups.”17 Elsewhere in his book 

he writes: 

...the particulars are not widely known. The primary 

reason: a lot of terrorism is invisible. The police and the 

press record and report as so-called common crimes the 

hundreds of incidents each year that domestic and 

international terrorist groups perpetrate in this country. 

When terrorists don’t claim responsibility for a shooting, a 

robbery, or a bombing, as often happens, it appears that we 

have less terrorism than is actually occurring. The public 

may hear a news story about the incident but they do not 

associate the crime with terrorism, especially long after the 

fact.18

The result is that the American public remains somewhat complacent 

about terrorism. To the average citizen, who may never travel overseas 

where, in his mind, the “real terrorists” operate, terrorism and 

counterterrorism are primarily the things good action movies are made of. 

This same average American probably believes he will never experience 

the results of an act of terror. Mizell comments on this when he writes, 

“Good security, good intelligence, aggressive law enforcement, and a lot 

of luck have prevented hundreds of terrorist incidents over the years. If 

the perpetrators had been more successful, the public would have an 

entirely different perception of the terrorist reality in the United States.”19

The Posse Comitatus Act of 1878 

The Posse Comitatus Act (PCA) of 1878 restricts the use of federal 

troops in a civil law enforcement capacity.20 This is the act most often 
14 . . . Not in Our Own Backyard

referred to when questions arise over whether or not to allow the military 

to operate domestically. It is important to understand, however, that this 

act was designed to literally prevent the use of the military in a law 

enforcement capacity. The family of modern terrorist activities and its 

transnational variants such as narco-terrorism, cyber-terrorism, etc., were 

not the kinds of activities federal troops were improperly dispatched to 

address when the act was drafted and enacted. The DOPLAW Handbook 

states: 

The PCA was enacted in 1878, primarily as a result of the 

military presence in the South during Reconstruction 

following the Civil War. This military presence increased 

during the bitter presidential election of 1876, when the 

Republican candidate, Rutherford B. Hayes, defeated the 

Democratic candidate, Samuel J. Tilden, by one electoral 

vote. Many historians attribute Hayes’ victory to President 

Grant’s decision to send federal troops to be used by U.S. 

Marshals as a Posse Comitatus at polling places in the 

states of South Carolina, Louisiana, and Florida. Hayes 

won the electoral votes of these three hotly contested states, 

possibly as a result of President Grant’s use of the military 

in these states. This use of the military in this manner by a 

sitting President during a presidential election led Congress 

to enact the PCA.21

Although international and transnational political violence clearly contains 

criminal elements, federal, state, and local domestic law enforcement 

agencies are not and cannot be best trained or equipped to handle a level 

or scale of violence that bears a closer resemblance to combat than crime. 

The Department of Defense stands as the best equipped and trained line of 

defense against such violence, and the best for countering such violence 

when deemed appropriate politically. 

This in no way suggests DoD should operate within this domain 

independently. Rather, the military, while remaining under the 

Constitutional and professional control of civil authorities, should serve as 

the lead agency/organization within the Government to execute 

counterterrorist operations to protect U.S. interests both within and outside 
Not in Our Own Backyard . . . 15 

of the United States. Other federal agencies would continue to work in 

conjunction with the Department of Defense. What this suggests is a 

change in which government agency leads the fight, and makes it 

standard, regardless of political boundaries or domestic policies. While 

the U.S. military will assume primary responsibility for this mission area, 

the changes it would require to existing laws do not demand we throw the 

baby out with the bath water. This policy change in no way suggests the 

military begin to execute traditional law enforcement functions. An 

adjustment/addendum/amendment to Posse Comitatus, or a strong 

reaffirmation of the original intent is called for, allowing this law to 

accommodate both the criminal and military threats of today rather than 

those of 1878, and permit the best comprehensive application of 

government assets relative to the types of threats they are trained and 

equipped to handle. Modern terrorism is both more complex and violent 

than ever before. Although it clearly involves criminal activity, it truly 

possesses the character and nature of warfare, even by Carl von 

Clausewitz’s definition—“an act of force to compel our enemy to do our 

will,” “an act of policy,” or simply “a true political instrument, a 

continuation of political intercourse, carried on with other means.”22

The Federal Military 

All officers of the U.S. Armed Forces take the following oath of 

office: 

I [full name], having been appointed a [grade], United 

States [branch of Service] do solemnly swear (or affirm) 

that I will support and defend the Constitution of the United 

States against all enemies, foreign and domestic; that I will 

bear true faith and allegiance to the same; that I take this 

obligation freely, without any mental reservation or 

purpose of evasion; and that I will well and faithfully 

discharge the duties of the office upon which I am about to 

enter, SO HELP ME GOD.23

The military and its officers have a clear and historic charter to 

defend against all enemies, foreign and domestic. Often times, 

discussions regarding this oath suggest that the concept of domestic threats 
16 . . . Not in Our Own Backyard

simply gives the President permission to declare martial law if need be. 

Additionally, some argue that should an enemy’s military enter the United 

States, this language allows the Armed Forces to fight against that threat 

domestically. Although these are both true, this was not the sole intent 

behind the language of the oath. Domestic threats are just that, threats to 

the U.S. Constitution that present themselves from within the country. 

Modern terrorism and certain other forms of transnational warfare are 

within the scope of the oath, and constitute just such an enemy today. 

Over the course of our nation’s history, we have seen the likelihood of a 

literal, physical invasion by a foreign military diminish, resulting in a 

general complacency about the need for proper military activity within the 

States. The threat has resurfaced, however, and it has taken a new form. 

Terrorism either as a tactic or as a strategy is as ancient as mankind. 

Today, it has become a sort of warfare for the weak, and due to 

technology, has become extremely lethal. Moreover, we now fight 

enemies that are not always the governments and militaries of traditional 

nation-states. As Louis Mizell puts it, “Terrorism, the new warfare, is 

here to stay. To defeat the enemy, the public will have to strive for higher 

levels of cooperation with the police and develop an educated eye for 

deception. Underestimating the terrorist threat in the United States would 

be a tragic mistake.”24 Mr. Mizell is correct in his assessment, however 

the police are often not trained or equipped to recognize and lead this 

fight, or to essentially fight this threat alone. This is all the more true and 

highlighted when international and transnational terrorism is considered. 

Law Enforcement 

The U.S. military has had troops assigned to facilities in Middle East 

since Operations Desert Shield and Desert Storm. These combat 

operations were classic in that they pitted one nation’s military against 

another’s, to resolve a political disagreement. With an approximate pause 

of 12 years at the conclusion of Desert Storm, major combat operations 

resumed during Operation Iraqi Freedom, with that traditional combat 

ending on May 1, 2003.25 Although the political fight with the former 

government of Iraq has ended, the political fight with Al Qaeda and its 

related organizations has not. For Al Qaeda and others who are like-
Not in Our Own Backyard . . . 17

minded the war is not over, and a “new” form of warfare is pursued—

terrorism. 

That terrorism continues today, however a turning point came during 

the 12-year pause in the war when American military members, 

businessmen, etc., remained in the region and became convenient targets. 

The inevitable happened on June 25, 1996. A truck full of explosives 

detonated beside the U.S. Khobar Towers compound, killing 21 airmen 

and wounding many others.26 At the time, I was assigned to the Joint 

Chiefs of Staff, J2 organization and was selected to begin working as a 

military liaison to the Federal Bureau of Investigation. The purpose was 

to facilitate information sharing as the Bureau was tasked to put agents on 

the ground in Saudi Arabia and assume lead agency status for 

investigating the bombing. 

From a military perspective, this was a predictable form of attack by a 

frustrated enemy who had his conventional capability taken from him. We 

had a significant number of troops in the theater, and in this case 

compelled them to remain together in a compound without adequate 

protection. The military did the best it could given the circumstances, 

providing the best organic defenses possible without insulting the host 

nation. The result was an attack on that compound by disgruntled 

members of a culture who opposed the sustained U.S. presence in the host 

nation and in the region—specifically the military presence. This was a 

military attack on a military target, using unconventional assets. For our 

enemy, the war simply continued by other means.27

War Versus Crime 

The Bush administration declared the devastating terrorist 

attacks of September 11 to be an act of war—not crime.28 

In this case the “clear distinction” between military and criminal 

activity is clear only in our minds, and is based on culture. The Khobar 

Towers bombing was criminal simply because we defined it as such. 

Interestingly enough, the Israelis made the same mistake when dealing 

with the Palestinian threat. Their failure, according to some scholars, was 

one of policy relative to the occupied territories. When Palestinian 

terrorists struck, the problem was dealt with as crime. The failure of the 
18 . . . Not in Our Own Backyard

military governors as well as Shin Bet officials was in not recognizing that 

the Palestinians were a political people, and that their actions were 

politically motivated and justifiable.29 This is not to condone the actions 

of either the Palestinians or the Israelis. Rather, the illustration serves to 

highlight the very real differences between violent crime—even when it is 

excessively violent—and political violence. Although there are shared 

characteristics, these activities are very different and require different 

solutions. 

Unfortunately the U.S. Government responded to the Khobar 

bombing by charging the FBI with responsibility for leading the 

investigation of the bombing. The justification for this was the bombing 

occurred at a U.S. military compound, albeit overseas, and therefore on 

U.S. soil, and was directed against U.S. non-combatants30 and property. 

Therefore, the bombing was a criminal act. The mission of the Bureau 

was to determine what happened, who was responsible or involved, and to 

attempt to bring the perpetrator(s) to justice. The military was to support 

FBI efforts on the scene as required. My role was to aid the lead agents at 

FBI headquarters by providing any information possible that the 

Department of Defense may have on foreign terrorists or terrorist groups 

that made claims of responsibility. This arrangement was professional but 

awkward. The Bureau was not prepared to handle such a case. The agents 

at the headquarters did not have the tools at their disposal to execute the 

task efficiently. Nor did they have the contacts and training overseas for 

this kind of work.31 Tools were provided, however, facilitating DoD 

sharing critical information with FBI headquarters and to subsequently 

foster passing related information to and receiving it from FBI field agents 

working the case. Issues of security clearances and access to U.S. 

facilities required attention in order to use the DoD provided equipment 

and networks. Regarding individuals and groups claiming responsibility 

for the bombing, DoD possessed relevant information the Bureau needed 

and did not know existed. Additionally, FBI possessed information that 

they were reluctant or even refused to share out of concern that it might 

jeopardize future, yet still undetermined, legal cases against yet unknown 

perpetrators. 

The list goes on. Intelligence oversight requirements and concern 

over multiple interpretations on the limits of Posse Comitatus were issues 

for DoD and FBI Offices of General Councils as they struggled to ensure 
Not in Our Own Backyard . . . 19 

laws were not broken. Specific concern revolved around access to law 

enforcement information as DoD support was provided—whether 

intentional or inadvertent—as it pertained to the investigation and case 

development. The working environment, although professional and 

friendly, was generally maladroit as two skilled and professional 

organizations attempted to cooperate across the seam that academically 

separates foreign and domestic, war and crime, and effectively prohibited 

a seamless and fully-functioning focus on the marriage between the two. 

What is most troubling about this process is that it occurred in response to 

a foreign terrorist organization attacking a U.S. military facility in a 

foreign country in the context of combat operations. And yet, Posse 

Comitatus and intelligence oversight became the driving issue as if the 

effort was actually toward something grayer—a foreign terrorist 

organization attacking the U.S. homeland. The primary concern for DoD 

was to understand what information and intelligence the Bureau had and 

to reconcile that with what DoD could provide. Any remaining gaps could 

then be rapidly identified and addressed. Intentions were honorable, 

laudable and flawless—application of that same intent was immediately 

frustrated and remarkably slow due to enduring confusion over the law as 

well as deeply entrenched legacy guardianship of roles and responsibilities 

rooted in dated definitions of threats. Today the focus of attention is 

terrorist operations in and against the homeland and yet the current system 

established since the September 11th attacks still does not address the 

fundamental problems that dictate the nature of interagency cooperation 

and information sharing, while the modern context of the problem has 

dramatically changed. 

Not in Our Own Backyard . . . 21 

A “New” Kind of War 

Nevertheless, it must be obvious to you that, due to the 

imbalance of power between our armed forces and the 

enemy forces, a suitable means of fighting must be adopted 

i.e., using fast moving light forces that work under 

complete secrecy. In other word to initiate a guerrilla 

warfare, were [sic] the sons of the nation, and not the 

military forces, take part in it. 

-- Osama bin Laden 

 Declaration of War against the Americans 

The cliché “one man’s terrorist is another man’s freedom fighter” is 

unfortunate because it is all too true. The definition truly does depend 

upon where you stand. In the industrialized and “civilized” West, we have 

come to agree that war will only fit the Westphalian context perhaps best 

expressed by Prussian military theorist Carl von Clausewitz through the 

concept of his “paradoxical trinity.” This is no surprise since Clausewitz 

essentially experienced only this kind of warfare. As the theory goes, this 

trinity is composed of the three elements of violence or passion, chance or 

uncertainty, and reason. He goes on to say that they are embodied in a 

nation’s people, military, and political leadership respectively.32 

Additionally, as Clausewitz discusses war, he submits that war is always 

subject to policy.33 

Some argue since terrorists and their groups—at least those not acting 

on behalf of a nation, or some recognized nation’s interests—are not states 

and do not manifest the traditional elements of Clausewitz’s trinity of war, 

their behavior is not and cannot be war. It is violent crime. Others make a 

convincing case that the true elements of Clausewitz’s trinity—passion, 

chance and reason—are indeed very present in any terrorist group; they 

just do not fall neatly into distinct elements of a society belonging to a 

traditional state as we have come to regard it in Western culture. With the 

terrorist group and the warfare it wages, much as with classic tribal or clan 
22 . . . Not in Our Own Backyard

warfare, the modern and clear distinction between the society’s people, 

government and professional military does not exist, at least in a form we 

are comfortable recognizing. Nonetheless, the Clausewitzian elements are 

there and so to speak, we have possibly focused on and confused the 

clothing of the threat with the actual person wearing them. Moreover, 

even the U.S. Government defines and acknowledges terrorism is political 

violence. With the advent of transnational terrorism though, acts of terror 

truly take on a character more akin to tribal warfare than the more 

comfortable conduct of war by a modern state. 

We have come full circle. A time existed when most warfare was 

tribal in character. As societies changed, the character of war changed. 

War became an act of the modern state, prosecuted by its military. 

Consider these observations from The Transformation of War by Martin 

van Creveld: 

That organized violence should only be called ‘war’ if it 

were waged by the state, for the state, and against the state 

was a postulate that Clausewitz took almost for 

granted...war was an affair for sovereign princes and for 

them only.34

Whether it was intended or not, one result of these 

agreements [that Princes settle their disputes with armies, 

and do so in a way so as to minimize harm to their soldiers 

and civilian population, who in return did not interfere with 

the quarrels of the sovereigns] was that non-European 

populations that did not know the state and its sharplydrawn division between government, army, and people 

were automatically declared to be bandits.

35 (Emphasis 

added.) 

It is worth pointing out that tribal societies, which do not 

have the state, also do not recognize the distinction between 

army and people. Such societies do not have armies; it 

would be more accurate to say that they themselves are 

armies, in which respect they are not so different either 

from the Greek city-state or, to select a contemporary 
Not in Our Own Backyard . . . 23 

example, the various terrorist organizations at present

fighting each other in places such as Lebanon, Sri Lanka, or 

Aberdjan. Nor, in their case, would it be correct to speak 

of soldiers. What they have is warriors [sic], with the result 

that there are many languages—Masai, for example, or 

North American Indian languages—where the term for 

‘warrior’ simply means ‘young man’. As the comparison 

with terrorist bands already shows, the rudimentary 

nature of tribal organizations does not mean that they are 

irrelevant to the present. Instead, they may point to the 

future, perhaps more so than the world of states from 

which we seem to be emerging.

36 (Emphasis added.) 

Judged by the ordinary standards of trinitarian war, none of 

these movements stood the slightest chance of success. 

Often the economic resources at their disposal were nil. 

Some had to resort to bank-robbing or drug-dealing, 

causing the distinction between war and crime to become 

blurred.

37 (Emphasis added.) 

Often, crime will be disguised as war, whereas in other 

cases war itself will be treated as if waging it were a 

crime.

38 (Emphasis added.) 

Confusion and Delayed Response 

The U.S. Government’s response to the consequences of Hurricane 

Katrina has unfortunately been caught in a partisan battle within the 

media, and even used to misrepresent the government’s effective 

capability to respond to similar but legally very different disasters—

specifically acts of terrorism involving weapons of mass destruction or 

effect within the United States. Although limited in the scope of 

application, there are nonetheless specific issues that serve very well to 

illustrate there is a growing family of problems in terms of a federal 

capability to seamlessly respond to similar effects in a comprehensive 

manner; responses that involve multiple departments such as DoD, DHS, 
24 . . . Not in Our Own Backyard

and the related use of the National Guard operating as either State Active 

Duty or Title 32 forces. 

The current construct, growing out of the response to Katrina has in 

fact added complexity and bureaucracy to the coordination process rather 

than reducing it. In spite of the best of intentions, this effort actually 

reinforces the seam. Specifically, the advent of a new, complex body of 

procedures typified in the concept of “dual status command”39 is now 

maturing in an effort to address new problems while preserving the 

definition set discussed earlier and the current interpretation of Posse 

Comitatus. When applied outside the context of natural disaster response, 

this construct continues to force a new family of non-state national 

security threats into a system designed to respond to legacy threats that fell 

neatly into either “foreign” or “domestic” categories. 

By September 7, 2005, U.S. Northern Command (NORTHCOM) 

reported the DoD response to Hurricane Katrina included approximately 

60,000 military members, with 18,000 coming from the active duty 

component and almost 43,000 from the National Guard.40 The September 

19, 2005, Congressional Research Report entitled “Hurricane Katrina: 

DoD Disaster Response” documented the efforts to coordinate the 

relationship between military forces operating under multiple titles of the 

U.S. Code. The report detailed: 

Congress revised the statutes governing National Guard 

officers called into federal service in the National Defense 

Authorization Act for FY2004 (P.L. 108-106). Prior to this 

revision, all National Guard personnel called to full-time 

duty in the active military service of the United States were 

automatically relieved from duty in the National Guard of 

their state. Section 516 provided an exception to this 

general rule for certain National Guard officers called to 

active duty. As the conference report explained, the 

provision would: 

...allow officers of the Army or Air National 

Guard, called to active duty for the purpose 

of commanding a unit composed of both 

active duty and reserve component 
Not in Our Own Backyard . . . 25 

personnel, to retain and exercise their Army 

or Air National Guard state commissions if 

authorized by the President and the 

governor. Such National Guard officers 

would have the authority to command 

subordinate active duty personnel by virtue 

of their own active duty status and also 

retain the authority to command National 

Guard personnel in a nonfederal status. 

In testimony before the House Armed Services 

Subcommittee on Terrorism, Unconventional Threats and 

Capabilities last March, Assistant Secretary of Defense for 

Homeland Defense Paul McHale described how this 

authority had been used: 

But utilizing a recent statutory provision, 

beginning at the G-8 summit, but then again 

at the Democratic convention, the Republican 

convention, and Operation Winter Freeze 

along the Canadian border, a single National 

Guard officer—one man—was given a dualhatted command. He was placed in Title 32 

status to command the Title 32 forces. He 

was placed simultaneously in Title 10 status 

under the command and control of the 

combatant commander so that unity of effort 

could be achieved, even though we 

maintained the distinction in terms of unity of 

command. 

According to one report, a variation of this model—with an 

active duty officer being sworn into the Louisiana Guard, 

rather than a Louisiana National Guard officer being called 

to active duty—was advanced by the Administration in its 

discussions with the governor of Louisiana but she rejected 

it. “In a separate discussion last weekend,” the article 

stated, “the governor also rejected a more modest proposal 
26 . . . Not in Our Own Backyard

for a hybrid command structure in which both the Guard 

and active-duty troops would be under the command of an 

active-duty, three-star general — but only after he had been 

sworn into the Louisiana National Guard.” It is not yet 

clear whether the lack of a unified command over both 

National Guard and DoD active duty personnel has affected 

Katrina-related military operations.41

The critical point illustrated here is a genuine effort to address the 

problem while attempting to preserve the status quo with regards to the 

extant legal construct. The complexity of the military response alone is 

incredible. Furthermore, in spite of the demanding coordination required, 

the final sentence in the reference above is telling, “It is not yet clear 

whether the lack of a unified command... has affected Katrina-related 

military operations.” Regardless of how effective the work was, it seems 

inconceivable that the system detailed above can ever be more efficient or 

effective than the de facto establishment of true unified command. 

Military history tells us this, and there is no current evidence suggesting 

anything to the contrary whether in a military context, or in the context of 

civil support and response to manmade or natural disasters. It is also 

noteworthy that the Katrina discussion only involves U.S. military forces, 

and not an enemy. When this kind of effort is considered in the context of 

homeland defense and/or civil support, the complexity grows and the 

opportunity for confusion and delay increases with the addition of multiple 

non-DoD federal and local activities, the potential for allied/coalition 

contributions, non-governmental organization contributions, and an enemy 

which may choose to strike multiple locations simultaneously or nearly 

simultaneously. In this context, the added bureaucratic requirements that 

may provide some level of distinction and clarity during peacetime and in 

an administrative context will only serve to clutter and confuse when the 

call for the practice of homeland defense occurs. 

Katrina was clearly seen by the involved state governments, and the 

federal government, as a federal problem, based primarily on the scale of 

destruction and human toll, and the resultant impact on the local and 

national economies. Yet, the response did not fully reflect this in that it 

remained a combined state and federal response (an attempted unity of 

effort, with at best a tenuous unity of command and control). The effort 
Not in Our Own Backyard . . . 27

resembled the 1991 Desert Storm command and control construct and not 

a truly unified and singular response. Consider the following from the 

U.S. Army War College publication Parameters: 

The operation to liberate Kuwait, Operation Desert Storm, 

achieved a marked improvement on the command 

arrangements for Vietnam, but still did not achieve unity of 

command. Instead, the theater commander, CINCENT, 

strove to achieve unity of purpose and unity of effort. An 

interesting hybrid command relationship was established 

which was both parallel and lead nation, the United States 

leading the forces of the Western nations, and Saudi Arabia 

leading those of the Arab nations.42

This in no way suggests Desert Storm was a failure, nor does it argue 

that by default, the federal government should overshadow the primacy of 

the states within a domestic context in the future. This does argue, 

however, that once a natural or man-made disaster dictates a 

comprehensive federal response and a federal government lead, the federal 

government should: (1) be structured to provide a singular response 

regardless of lead agency and the number of federal entities involved, and 

(2) should not look like a coalition assembled with foreign states, driven 

by political sensitivities and personalities, and encumbered with the 

associated complexity and resultant room for error. 

In a presentation to the USAF Air War College, a senior defense 

official involved with Joint Task Force Katrina briefly discussed the “dual 

command structure” described above and its impact on relief operations. 

The system was complex and unwieldy. One chart depicting participating 

DoD and National Guard organizations showed at least 16 general officers 

involved in the response, with no single commander in charge. The 

burden of making it work ultimately depended upon personality and as the 

speaker stated, the willingness of those involved to put aside concern over 

what individuals and organizations would get credit. It was clear that in 

this case it was not efficient and that it worked in spite of the design, not 

because of it.43

In his speech to the 125th National Guard Association of the United 

States (NGAUS) General Conference about the role of the National Guard 
28 . . . Not in Our Own Backyard

in Civil Support—primarily natural disasters, as well as consequence 

management missions in response to chemical, biological, radiological, 

nuclear, and explosive (CBRNE) attacks within the United States—the 

Assistant Secretary of Defense for Homeland Defense quoted President 

Lincoln saying, “because our cause is new, we must think and act anew.”44 

This outstanding challenge is well advised, and should be applied more 

comprehensively to include the breadth of threats to the United States—

particularly at home—and should include the entire capability of the 

Department of Defense anchored to federal, active duty forces. The whole 

of the Department of Defense must think and act anew not only in 

response to attacks, but in advance of them. This new thought and action 

must reflect on the historic and Constitutional role and requirement for the 

federal military to serve as the primary tool in providing for the common 

defense, regardless of similar or even related law enforcement missions, or 

geographic borders. Otherwise with the advent of the new class of 

transnational threats, a more complex coordination environment exists, 

along with increased risk for sluggish and/or inadequate proaction against 

and reaction to the threat. As reaffirmed in the National Security Strategy, 

the best defense is a good offense, yet even in this document we have 

differentiated between more traditional threats to the state and this new 

class of threat, suggesting that homeland defense is somehow different 

than every other manifestation of the common defense provided for by the 

federal military.45 We must strive to remove functional and administrative 

obstacles that encumber that defense, its ability to react and more 

importantly, its ability to proact. Today one of the primary obstacles is a 

continued effort to preserve the academic seam between traditional foreign 

threats and these new transnational threats to our state. The result of the 

thoughts expressed in the 2002 National Security Strategy was a massive 

government reorganization and the creation of the Department of 

Homeland Security. In essence though, we have only reorganized to make 

the traditional way we view and address threats more efficient based on 

the existence of the seam, and so the reorganization is only partially 

complete. The same intent and energy must now be applied so as to 

eliminate the seam, primarily between this new department and the 

Department of Defense. 

Consider NORTHCOM’s mission statement: 
Not in Our Own Backyard . . . 29 

The command's mission is homeland defense and civil 

support, specifically: conduct operations to deter, prevent, 

and defeat threats and aggression aimed at the United 

States, its territories, and interests within the assigned area 

of responsibility; and as directed by the President or 

Secretary of Defense, provide defense support of civil 

authorities including consequence management 

operations.46 (Emphasis added.) 

This powerful statement appears to begin to undo the seam by 

suggesting two things: first, with regards to military threats NORTHCOM 

intends to operate within its area of responsibility no differently than any 

other combatant command; and second, based on the “lead” language of 

the Strategy for Homeland Defense and Civil Support, NORTHCOM will 

not fight a war (regardless of how it manifests—state, non-state, or 

transnational) in support of any other federal agency or organization. The 

Department of Defense is in fact the lead agency for national defense and 

should not be confused with what is currently called “homeland 

security”—arguably a distinction without a real difference in the context 

of history. 

The Gray Area 

Although significant gray areas continue to exist, in part due to the 

recent publication of the Strategy for Homeland Defense and Civil 

Support, limited clarity now exists on the periphery of this problem. Some 

previously unaddressed areas are now dealt with, specifically the U.S. 

military’s domestic roles as a lead, support, or enabling agency. Although 

this was a laudable and necessary first step, new clarity only resides in the 

area where it was easiest to establish—in general terms at the strategic 

level. The more important task ahead is to provide comparable or greater 

clarity at the operational and tactical levels—where threats are actually 

dealt with. Some of the best examples of these gray areas come from the 

new strategy itself. This is not necessarily a criticism of the strategy. 

Rather, the new clarity at the strategic level serves as a means to better 

identify additional areas now requiring attention. Consider the following 

from the June 2005 Strategy for Homeland Defense and Civil Support: 
30 . . . Not in Our Own Backyard

DoD leads military missions to deter, prevent, and defeat 

attacks on the United States, its population, and its defense 

critical infrastructure. This includes defending the 

maritime and air approaches to the United States and 

protecting U.S. airspace, territorial seas, and territory from 

attacks. The Department is also responsible for protecting 

DoD personnel located in U.S. territory.47

Page 16 includes the following statement, “Threat awareness includes the 

ability to obtain comprehensive, accurate, timely, and actionable 

intelligence and information; and making it available to the warfighters, 

policy makers and interagency partners responsible for identifying and 

responding to threats.”48

Primarily in the context of deterrence and prevention, but also in the 

context of defeating attacks on the U.S., there are significant and relevant 

families of functions performed by the military that are controversial when 

domestic operations are discussed. Intelligence operations are perhaps the 

greatest example. The nature of the new threat suggests it is prudent for 

the federal government to deliberately and proactively address how 

intelligence collection and analysis will best serve in its role contributing 

to the common defense, especially when we face an enemy that does not 

respect our preferences or desires to define various activities as either law 

enforcement or defense problems. At best it is awkward to require 

defense assets (e.g., military combatant commands such as NORTHCOM, 

or related defense organizations within the intelligence community) to 

hand a known foreign threat off to federal law enforcement simply 

because of geography—usually driven by an enemy combatant’s physical 

entry into the United States. As suggested in the National Strategy for 

Homeland Defense and Civil Support, DoD should properly serve as lead 

in this general context. This should also hold true for related intelligence 

activities, although the requirement for coordination with law enforcement 

due to the shared defense and criminal nature of these threats absolutely 

remains. Today, however, the rhetorical solution revolves around 

statements that the implicitly simple fix is a mandate to establish or 

improve information sharing. As previously discussed, declaring the very 

real benefit of information sharing, then encouraging or mandating it to 

occur without abundantly clear and specific changes to law, policy, and 
Not in Our Own Backyard . . . 31 

the associated definitions of the threat will result in the best intentions 

falling to the wayside as equally well intentioned and professional legal 

differences of opinion, and personalities, take the lead on stage. Just as 

dangerous as making a proper response dependent upon personality rather 

than clear command and control, is the danger associated with the 

necessary ad hoc interpretation of dated laws and policies in an effort to 

apply them to a new threat as that threat attacks. Simply trusting that the 

professionals involved will work it out is a recipe for failure at the worst 

of times. 

This reinforces the validity of the new strategy and the concept of 

“layered defense,” and does not suggest only one federal activity 

(specifically the DoD) serve as a singular responder. It does reinforce the 

multi/inter-agency approach while illustrating the requirement to change 

the declared and/or assumed lead agency in areas that are currently gray. 

The intent here is to encourage needed reform for dated and perhaps 

obsolete laws or policies in a way that maintains a viable and credible 

capability against extant legacy threats while fully addressing the 

emerging/developing prime threats to the U.S.—threats that do not fit 

neatly into past security constructs. 

Just the Beginning? 

The U.S. has identified the enemy that perpetrated the September 11, 

2001, attack as new in kind, and as the primary threat to U.S. national 

security. The National Security Strategy and other strategic documents 

bear this out. As catastrophic and barbaric as that attack was, it may only 

be one form of the emerging transnational threat. Although current policy 

reflects its emergence, we now run the risk of presuming all transnational 

threats manifest the same way—gathering outside the U.S. in order to 

strike us here. This may be an oversimplification. 

Indeed, we may only be seeing the tip of a proverbial iceberg. The 

very real potential exists for a nexus to form between transnational 

terrorist organizations such as Al Qaeda, and transnational criminal 

elements or even certain traditionally domestic criminal elements such as 

urban street gangs and radical militia groups. Some argue these kinds of 

associations already exist and are currently maturing. Regardless, it is 

clear the capacity is there based on a number of factors ranging from 
32 . . . Not in Our Own Backyard

common tactics techniques and procedures, shared tactical and operational 

interests, and on occasion, a shared strategic view that includes a hatred of 

the U.S. and/or its federal government. 

Dr. Phil Williams at the University of Pittsburgh has done some of the 

most extensive research into this phenomenon. His comments on 

networked criminal organizations are cause for pause, especially when 

considering the implications for national security and the networked 

nature of some terrorist organizations like Al Qaeda: 

Unfortunately, there is still a tendency in law enforcement 

circles and among some academic analysts to treat 

centralized hierarchies as synonymous with organized 

crime and to treat networks as disorganized crime. This is 

a mistake. A network is, in fact, a highly sophisticated 

organizational form. [This] new form of organization did 

not replace the previous one but surpassed it in terms of 

effectiveness and efficiency. Ronfeldt argues that society 

is now in a fourth stage in which networks are emerging as 

the predominant organizational form and one that has 

significant advantages especially over more traditional 

bureaucratic hierarchies.49

Later in the same article he states, “Two other points about markets and 

networks are worth adding. The first is that many illicit markets are now 

global in scope. The second point is that once a trafficking infrastructure 

is in place, the product line is virtually irrelevant.”50 Considering the 

already robust network of routes for the movement of money, drugs, arms 

and humans into the United States, primarily across the U.S. – Mexican 

border, it is plausible that networked terrorist organizations with direct or 

indirect relationships with these various criminal elements would use 

already proven paths in support of their own interests. 

Related to his perspective, Roy Godson writes: 

Why is the PCN [Political-Criminal Nexus] a transstate 

security threat and not simply a local law enforcement or 

policy problem? Security threats interfere dramatically 

with the functioning of society. Conditions that threaten 
Not in Our Own Backyard . . . 33 

the political, economic, social infrastructure of a system 

cannot be considered ordinary crime problems... Of the 

192 states in the world today, approximately 35 have 

characteristics that maintain strong governability and rule 

of law—and weak PCNs. On the other hand, 

approximately 120 states can be classified as medium to 

weak to failed states (zones with very weak to nonexistent 

infrastructures). They have medium to strong PCNs. In 

these states PCNs threaten the security of their own people 

as well as the security of people in other regions.51

In the context of his discussion about vulnerable political structures, he 

then states, “Even in the United States, there are particular regions where 

this condition appears to be present.”52 Finally, when he turns the 

discussion toward solutions, he observes that: 

The PCN itself has rarely been the focus, and when it has, 

governmental policy has addressed the political and 

institutional factors that facilitate organized crime, rather 

than the motivations of the establishment. So far, however, 

there have been only a few efforts to address the global 

challenge of the PCN. Moreover, in the main the problem 

has been viewed by governments and nongovernmental 

specialists from a criminal, law enforcement perspective, 

with supplementary assistance requested from diplomats 

and intelligence practitioners, and specialists in alternative 

developments.53

It would not be difficult to argue that in essence, this has been the 

response of the U.S. to transnational crime and terrorism in general, and 

Al Qaeda specifically, in the context of the domestic environment and its 

threat to national security. 

In his article “Urban Gangs Evolving as Criminal Netwar Actors” 

John Sullivan writes: 

This article examines the potential for certain small actors, 

in particular gangs operating in big cities, to embrace 

network forms of organization and doctrine and utilize 
34 . . . Not in Our Own Backyard

technology to wage netwar. This potential involves the 

blurring of crime and warfare, and threatens to change 

the faces of gangsterism and terrorism.

54 (Emphasis 

added.) 

Later in this same article Mr. Sullivan states, “Police, military and security 

forces must learn to integrate network forms into their hierarchical 

structures to enable rapid, robust and flexible response across 

organizational and political boundaries. Otherwise, networked 

adversaries may exploit the gaps and seams between governmental 

organizations.”

55 (Emphasis added.) 

Finally, Dr. Max Manwaring, a faculty member at the U.S. Army War 

College has researched this kind of nexus in the context of the advent of 

what he calls the new urban insurgency, posed by street gangs. He begins 

by stating: 

[T]he Western mainstream legally-oriented security dialog 

demonstrates that many political and military leaders and 

scholars of international relations have not yet adjusted to 

the reality that internal and transnational nonstate actors—

such as criminal gangs—can be as important as traditional 

nation-states in determining political patterns and outcomes 

in global affairs. Similarly, many political leaders see 

nonstate actors as bit players on the international stage. At 

best, many leaders consider these nontraditional political 

actors to be low-level law enforcement problems, and, as a 

result, many argue that they do not require sustained 

national security policy attention. Yet more than half of the 

countries in the world are struggling to maintain their 

political, economic, and territorial integrity in the face of 

diverse direct and indirect nonstate—including criminal 

gangs—challenges.56

Our government’s language and response to the specific threat of Al 

Qaeda makes it clear we generally do not simply and practically place 

transnational terrorist organizations into the category of a low-level law 

enforcement problem. We do, however, strive to continue to address Al 
Not in Our Own Backyard . . . 35 

Qaeda as well as related and similar organizations as law enforcement 

problems when it comes to the U.S. domestic context. Furthermore, we do 

not address the implications of recent U.S. Government reform decisions 

and the preservation of the seam on the future, especially if transnational 

terrorist organizations do attempt to merge with more traditional domestic 

criminal elements inside our borders. This may be folly, especially if the 

threat proves to present itself inside our borders as violently as it does 

externally and as violently as Al Qaeda did on September 11, 2001. Dr. 

Manwaring warns: 

As a result, nonstate conflict is too complex to allow a 

strictly military solution to a given national security 

problem. Likewise, it is too complicated to allow a strictly 

police solution to a law enforcement problem.... In this 

context, the harsh realities of the new world disorder are 

caused by myriad destabilizers. The causes include 

increasing poverty, human starvation, widespread disease, 

and lack of political and socio-economic justice. The 

consequences are seen in such forms as social violence, 

criminal anarchy, refugee flows, illegal drug trafficking and 

organized crime, extreme nationalism, irredentism, 

religious fundamentalism, insurgency, ethnic cleansing, and 

environmental devastation. These destabilizing conditions 

tend to be exploited by militant nationalists, militant 

reformers, militant religious fundamentalists, ideologues, 

civil and military bureaucrats, terrorists, insurgents, 

warlords, drug barons, and organized criminals working to 

achieve their own narrow purposes.57

These observations are interesting not only in light of Al Qaeda, but 

also in other events, such as the massive Muslim-based rioting in France, 

which began in the suburbs of Paris and rapidly spread to over 300 towns 

and cities state-wide. Furthermore, to a lesser extent, the riots spread to at 

least five other countries, including Belgium, Denmark, Germany, Greece, 

Portugal, and Spain. At the time of this writing and depending on media 

sources, the riots continue and have resulted in the destruction of tens of 
36 . . . Not in Our Own Backyard

thousands of vehicles and hundreds of buildings with a yet-to-bedetermined economic cost, and at least one death in France.58 

Interestingly, the violence in France is arguably a form of urban 

violence that has no direct ties to urban street gangs as described by Dr. 

Manwaring, nor are the violent apparently directly subject to the influence 

of a greater transnational threat like Al Qaeda, yet it validates some of his 

thoughts. If it is discovered later that in fact these influences were there 

and were a contributing factor to the violence, the implications are 

significant. Regardless, in light of the violence and destructiveness of 

these riots, and when applied specifically to organizations such as current 

transnational gangs like Mara Salvatrucha in the western hemisphere, or 

terrorist organizations like Al Qaeda globally, Dr. Manwaring’s 

assessment regarding the scale of the problem is alarming and strongly 

suggests the U.S. Government place the military in the status of lead 

federal agency domestically. 

To reiterate, this does not suggest this is a military problem alone. 

Instead, domestic law enforcement must participate, but must do so in a 

manner that supports the true nature, character, and significance of this 

threat to U.S. national security. If Dr. Manwaring and other scholars 

correctly identify the significance of this kind of new union of threats, we 

are responsible not only to construct a modern defense in depth against the 

transnational terrorist, but a defense that will also prove sufficient against 

the nexus of these kinds of new terrorist organizations and more 

traditional criminal elements. We must be on our guard, aware of the 

potential for the threat to manifest in this way. This adds weight to the 

argument supporting a controlled departure from our desire to fit the 

current threat into past legal and policy models. When addressing 

implications for his thoughts, Dr. Manwaring argues “because of their 

internal (intrastate) criminal activities and their international 

(transnational) commercial and political actions, they exacerbate the 

confusion regarding the traditional distinctions between police law 

enforcement functions and military national security or defense 

functions,”59 then later states: 

Thus, taking the activities of the gangs’ phenomena to their 

logical (and actual) conclusion can be a mix of possibilities 

only limited by the imagination and willingness to use 
Not in Our Own Backyard . . . 37

“unethical” ways and means to disrupt, control, or destroy a 

targeted nation-state. In this type of nonstate war, the 

traditional lines between civilian and military, lethal and 

nonlethal, and direct and indirect attack on the state are 

eliminated, and the “battlespace” is extended well beyond 

traditional military-police dimensions to relatively 

uncharted political, psychological, socio-economic, and 

moral dimensions.60 War or conflict, has changed.61

Scenarios 

There are several general scenarios that illustrate in a limited way the 

extent and complexity of the problem. Other factors are introduced into 

the terrorist equation. First, a known member of an overseas terrorist 

organization attacks the U.S. within our borders while remaining overseas. 

In the middle of winter, he “hacks” into a regional power company’s 

computer system and unleashes a disabling virus. The counties served by 

this company go without power for the better part of four days. Several 

deaths are attributed to the power outage, primarily elderly people living 

alone and now without heat, and a small number due to automobile 

accidents caused when traffic signals malfunction. DoD knows who the 

individual is, as well as his location. Due to U.S. policy, however, the FBI 

has jurisdiction. The long process begins to attempt to document the 

individual’s “criminal” activity, issue an indictment and attempt 

extradition. The military can essentially take no action other than to share 

information. Beyond this already complex set of problems, two separate 

offices work terrorism and information attacks within the FBI. An internal 

disagreement begins over which set of agents/office has jurisdiction. 

Additionally, within the Department of Defense, the same organizational 

problem exists in that terrorism and information warfare are functionally 

viewed as separate and distinct entities. Second, the same scenario occurs, 

originating overseas, with the target being a U.S. military facility overseas. 

Again, the FBI has jurisdiction over the “crime” committed by an 

individual or his group against a military target. 

Finally, consider two similar scenarios—one domestic and one 

foreign—where a known terrorist or group releases a biological agent into 

the water supply that feeds a military installation. Which federal agency 
38 . . . Not in Our Own Backyard

assumes lead agency responsibility? Regardless of policy, which is best 

suited? Against who or what was the attack actually directed: Is the 

military installation the primary target, part of a broad set of targets, or 

was it collateral damage? What were the intentions of the attackers? 

These are tough questions without simple answers that identify the gray 

area that will frustrate a credible response, and empower the enemy. 

Terrorism has served as a vehicle through this paper to convey an 

emerging threat as it pertains to legacy law and policy. To better 

understand the threat, consider that technology has equipped potential 

enemies both inside and outside the U.S. with tools to wage a much more 

damaging war against us: weapons based on information technology, new 

generations of explosives, hybrid viruses and diseases, chemicals, etc. 

Add to this the strength of illicit finances behind organized criminal 

activities such as drug, weapons, or human trafficking, and a more 

ominous picture forms. 

None of this suggests we are currently paralyzed or unable to respond 

to such threats. Rather, it appears we prefer to be reactive instead of 

proactive. The better organized we are, and therefore prepared for the 

inevitable, the better our response. With rare exception, the simpler 

solution is almost always the better solution. All federal agencies and 

organizations addressing the problem of terrorism are truly professional in 

their efforts, and no single organization, is fully equipped to address these 

new transnational threats alone across the political and geographic 

spectrum. It takes the entire toolset, and suggests the lead agency should 

be most capable of addressing the threat regardless of geography and level 

of violence. 

A significant question remains: What happens when terrorists choose 

to strike the U.S. homeland while the federal government is encumbered 

with other domestic troubles—an effort comparable to or greater than 

providing relief for Hurricane Katrina—and also a significant 

expeditionary activity overseas, similar to today’s commitments in 

Afghanistan and Iraq? Will the current system best facilitate a 

comprehensive federal response to defend the homeland, or will it actually 

further complicate a volatile and complex environment resulting in a less 

than sufficient response and an amplified effect benefiting the enemy? 

What happens when the overseas threat is tied to the domestic threat? 

Currently our policies appear to implicitly acknowledge we are a diverse 
Not in Our Own Backyard . . . 39 

and busy government, while specifically addressing problems in a way 

that assumes the largest issue at hand is really the only issue in town. The 

assumptions continue based on hope that requisite coordination will come 

smoothly and willingly. Again, this is potentially folly. Experience shows 

a prepared enemy will strike at the worst possible time, and plan on taking 

full advantage of obvious and existing commitments and burdens. After 

all, we would do the same. 

Not in Our Own Backyard . . . 41 

Context and Oversight 

An historic debate revolves around the presence of a standing 

federal army: the security it provides versus the possibility of its 

improper activity or misuse. Often times today, this debate surfaces in 

discussions of the domestic use of federal troops in the context of 

national defense/security, and seems most often to revolve around Posse 

Comitatus and its associated amendments. Almost as often, the 

argument harkens back to the Federalist Papers62 to support maintaining 

modern arguments restraining or prohibiting the use of federal troops 

domestically for national defense or security missions, usually in the 

context of preserving civil liberties and freedoms. 

The application of Federalist Papers’ principles today presumes a 

military threat to civil liberties and freedoms, as well as the validity, 

accuracy, and indisputability of the current definition/characterization of 

threats like Al Qaeda as a law enforcement problem, and then proceeds 

forward from that point. 

Although there are undoubtedly contemporary applications for the 

wisdom of the authors of the Federalist Papers, the context of their 

original arguments is critical when considering a proper modern 

application. Overall the context of the Federalist Papers with regards to 

threats to the then new United States is centered on the behavior of 

nation-states: nations ultimately become threats to one another due to 

either problems associated with treaties, or for other reasons resulting in 

direct, presumably bilateral state-on-state, violence. Federalist 2 through 

5 address “dangers from foreign forces or influence” while 6 through 8 

address the “dangers from dissension between states” and “the 

consequences of hostilities between the states.” Later in the Federalist 

Papers, it becomes clear that the authors attribute some of these same 

behaviors and the associated risk of threat to the states within the new 

union. This leads ultimately to two important discussions regarding the 

strength of the federal government: how to ensure the preservation of 

the union from internal unrest—wars between member states, or between 

member states and the greater United States, and the federal requirement 

to provide for a common defense. 
42 . . . Not in Our Own Backyard

Related, and perhaps most interesting in the context of the modern 

threat, Federalist 24 and 25 further consider “the powers necessary to the 

common defense.” It is here that some of the most compelling 

arguments are made with regard to a comprehensive and contemporary 

application of the Federalist Papers’ principles, while preserving the 

context of the concerns the authors dealt with as they wrote. Consider 

the following excerpts from the debate on these issues: 

Nothing is more certain than the indispensable necessity of 

government, and it is equally undeniable, that whenever 

and however it is instituted, the people must cede to it some 

of their natural rights in order to vest it with requisite 

powers. It is well worthy of consideration therefore, 

whether it would conduce more to the interest of the people 

of America that they should, to all general purposes, be one 

nation, under one federal government, or that they should 

divide themselves into separate confederacies, and give to 

the head of each the same kind of powers which they are 

advised to place in one national government.63

The JUST causes of war, for the most part, arise either 

from violation of treaties or from direct violence... It is of 

high importance to the peace of America that she observe 

the laws of nations towards all these powers, and to me it 

appears evident that this will be more perfectly and 

punctually done by one national government than it could 

be either by thirteen separate States or by three or four 

distinct confederacies... So far, therefore, as either 

designed or accidental violations of treaties and the laws 

of nations afford JUST causes of war, they are less to be 

apprehended under one general government than under 

several lesser ones, and in that respect the former most 

favors the SAFETY of the people... As to those just 

causes of war which proceed from direct and unlawful 

violence, it appears equally clear to me that one good 

national government affords vastly more security against 
Not in Our Own Backyard . . . 43 

dangers of that sort than can be derived from any other 

quarter.

64 (Emphasis added.)

It is too true, however disgraceful it may be to human 

nature, that nations in general will make war whenever they 

have a prospect of getting anything by it; nay, absolute 

monarchs will often make war when their nations are to get 

nothing by it, but for the purposes and objects merely 

personal, such as thirst for military glory, revenge for 

personal affronts, ambition, or private compacts to 

aggrandize or support their particular families or 

partisans... But whatever may be our situation, whether 

firmly united under one national government, or split into a 

number of confederacies, certain it is, that foreign nations 

will know and view it exactly as it is; and they will act 

toward us accordingly. If they see that our national 

government is efficient and well administered, our trade 

prudently regulated, our militia properly organized and 

disciplined, our resources and finances discreetly managed, 

our credit re-established, our people free, contented, and 

united, they will be much more disposed to cultivate our 

friendship than provoke our resentment. If, on the other 

hand, they find us either destitute of an effectual 

government (each State doing right or wrong, as to its 

rulers may seem convenient), or split into three or four 

independent and probably discordant republics or 

confederacies, one inclining to Britain, another to France, 

and a third to Spain, and perhaps played off against each 

other by the three, what a poor, pitiful figure will America 

make in their eyes!65

It is noteworthy, but not surprising, that transnational threats such as 

we see manifest today in Al Qaeda are not addressed either directly or 

indirectly in this body of writing. Nothing similar is suggested or 

implied. The specific concerns discussed fall into the context of a the 

post-Revolution formation of a new republic of sovereign states (the 

United States), one whose citizens were previously subject to an 
44 . . . Not in Our Own Backyard

oppressive and arguably immoral use and abuse of power through 

military force by the Crown of England. For this new United States of 

America, the discussion purposefully drove toward an agreed upon 

federal system of government that would best protect the citizenry 

against similar abuses by the new government, and yet establish a federal 

capability sufficient to stand against expected threats posed from outside 

the United States—a threat posed by other nations. 

Significantly, the Federalist authors also address internal threats and 

discuss them in the context of the possibility of a post-union conflict 

between the republic’s member states, either against each other, or in the 

form of a confederate aggression against the greater federal republic. 

Again, the discussion never presumes the kind of transnational threats 

we see today, especially a family of threats capable of emerging from 

within or without the state, and which are not states themselves. When 

domestic military operations are discussed (as in Federalist 8), they are 

referred to with phrases like “activity for interior defense.”66 It is 

important to reemphasize the context of the discussion: the emergence 

of hostility between states within the new union. 

The most interesting argument made in the context of Federalist 8 is 

not that the standing military force operating domestically poses a threat 

to civil liberties or freedoms. Instead, the concern is found in the 

following passage:

The perpetual menacings of danger oblige the government 

to be always prepared to repel it; its armies must be 

numerous enough for instant defense. The continual 

necessity for their services enhances the importance of the 

soldier, and proportionably degrades the condition of the 

citizen. The military state becomes elevated above the 

civil. The inhabitants of the territories, often the theatre of 

war, are unavoidably subjected to frequent infringements 

on their rights, which serve to weaken their sense of those 

rights; and by degrees the people are bright to consider the 

soldiery not only as their protectors, but as their 

superiors.”67
Not in Our Own Backyard . . . 45 

When Alexander Hamilton penned Federalist 8 this concern was, as 

stated by the author, “neither remote nor difficult.” His argument was 

vitally important and proper at that time as the various debates over the 

substance of the Constitution occurred. Students of history must also 

look at Hamilton’s other writings contained within the Federalist Papers, 

specifically Federalist 24 and 25. Here we find he provides a balance 

against his own argument made in Federalist 8 as he discusses the 

necessity to provide for the common defense of the entire union. It is 

noteworthy that these balancing thoughts were written only one month 

after Federalist 8.68 His concerns expressed in Federalist 8 must have 

still been fresh in his mind. 

The opening statement in Federalist 24 is remarkable: 

To THE powers proposed to be conferred upon the federal 

government, in respect to the creation and direction of the 

national forces, I have met with but one specific objection, 

which, if I understand it right, is this, that proper provision 

has not been made against the existence of standing armies 

in time of peace; an objection which, I shall now endeavor 

to show, rests on weak and unsubstantial foundations.69

The argument Hamilton is responding to is not simply one of 

finance: that standing armies are expensive. Rather, he responds to the 

premise that standing armies are dangerous and a threat to liberty and 

freedom. Hamilton counters the premise by stating it is “weak and 

unsubstantiated.” He explains his position based upon the fact that 

although the concern that standing armies can be such a danger, the 

proposed federal government is assembled in such a way as to prevent it. 

Later he writes, “...the whole power of raising armies was lodged in the 

LEGISLATURE, not in the EXECUTIVE; that this legislature was to be 

a popular body, consisting of the representatives of the people 

periodically elected.”70 Furthermore, he seems to feed off of the strong 

point he made in Federalist 9: 

The efficacy of various principles is now well understood, 

which were either not known at all, or imperfectly known 

to the ancients. The regular distribution of power into 
46 . . . Not in Our Own Backyard

distinct departments; the introduction of legislative 

balances and checks; the institution of courts composed 

of judges holding their offices during good behavior; the 

representation of the people in the legislature by deputies 

of their own election; these are wholly new discoveries, or 

have made their principal progress towards perfection in 

modern times. They are means, and powerful means, by 

which the excellencies of republican government may be 

retained and its imperfections lessened or avoided.71

(Emphasis added.) 

As strong as Hamilton’s argument was then, it is not unreasonable to 

offer that it is strengthened all the more today, after over 200 years of 

practicing the republican form of government he discussed and our 

Founding Fathers ultimately implemented. Although an important point 

of debate and discourse among this nation’s Founding Fathers, Hamilton 

and his peers who crafted the Constitution did not fear the misuse of the 

federal military as it is often described or characterized today. They 

acknowledged and discussed it as a possibility, determined that the 

republican government as they assembled it sufficiently addressed the 

problem through the separation of powers, and then they moved on. 

Furthermore, they directly addressed the argument that individual or 

collections of state militias (the National Guard today) should lead or 

serve as initial or primary responders led/directed by the Federal 

government when and if military force is called for. In the current 

context this would certainly fit the discussion on terrorism, and possibly 

even very unorthodox “threats” such as the need for a federal response to 

disasters such as Hurricane Katrina. In Federalist 25 Hamilton writes 

with incredibly strong language: 

IT MAY perhaps be urged that the objects enumerated in 

the preceding number [Federalist Number 24] ought to be 

provided for by the State governments, under the direction 

of the Union. But this would be, in reality, an inversion of 

the primary principle of our political association, as it 

would in practice transfer the care of the common defense 

from the federal head to the individual members: a project 
Not in Our Own Backyard . . . 47

oppressive to some States, dangerous to all, and baneful to 

the Confederacy.72

With equal strength of language and conviction, he continues his 

argument: 

...the liberty of the people would be less safe in this state of 

things [a federal force in the hands of the States, or the 

States leading the fight] than in that which left the national 

forces in the hands of the national government. As far as 

an army may be considered as a dangerous weapon of 

power, it had better be in those hands of which the people 

are most likely to be jealous than in those of which they are 

least likely to be jealous. For it is a truth, which the 

experience of ages has attested, that the people are always 

most in danger when the means of injuring their rights are 

in the possession of those of whom they entertain the least 

suspicion. The framers of the existing Confederation, fully 

aware of the dangers to the Union from the separate 

possession of military forces by the States, have, in express 

terms, prohibited them from having either ships or troops, 

unless with the consent of Congress.73

Note the remarkable assertion that the general populace is safer if 

federal forces are used for two reasons: first, the average citizen will 

trust his state government more than the federal, and will therefore 

handle the federal government more cautiously with regards to what it is 

allowed to do; and second, the mechanism to ensure that citizen’s ability 

to affect the federal government is in fact his representation through his 

state, resident in the federal legislature. The republic was deliberately 

built to ensure checks and balances to serve the common good. What is 

most interesting in the greater context is the fact that the very existence 

of the Posse Comitatus law is a demonstration that the system works that 

the Founding Fathers put in place. Congress passed Posse Comitatus 

after it was determined the President was misusing federal forces during 

Civil War reconstruction in the South. Specifically, federal military 

forces were put under the effective command and control of law 
48 . . . Not in Our Own Backyard

enforcement officials—a very different scenario than the modern debate 

with regards to terrorism and other transnational threats. 

The real issue and concern then was not standing armies in 

peacetime, nor was it concern the federal government would misuse 

federal forces domestically in the modern context. These were addressed 

and dealt with. Rather, the concern was ensuring the federal government 

had the ability to maintain preparedness and the ability to counter threats 

that emerged from outside or from within the United States. In the 

context of the common defense the response is presumed to be federal 

and the republic was designed accordingly. Likewise, this should not be 

the issue today—the debate should remain closed. In the genuine 

interest of national security, national leaders—political and military—

should communicate in a way that facilitates public understanding of the 

robust and historically proven checks and balances provided in the 

Constitution regarding the improper use of military forces rather than 

continuing a hypothetical, historically inaccurate and alarmist debate. 

Today the debate is more properly whether or not the threat posed by 

transnational entities such as Al Qaeda is primarily criminal or martial in 

nature: whether acts of terror are merely significant or even catastrophic 

criminal acts, or are in fact acts of war against the United States. In this 

specific regard the Federalist Papers are silent. They do not address a 

role for federal law enforcement, nor did the Founding Fathers envision a 

federal law enforcement community, as it exists today. Those who desire 

to apply the cautions offered by the authors of the Federalist Papers 

beyond their original context should also be aware that a similar 

application of those writings can properly result in an argument made 

that there is an equally minimal and limited place for federal law 

enforcement in the context of providing for the common defense. 

Neither of these positions are proper or prudent.74

In light of the Federalist Papers, it is not unreasonable to look at the 

emerging arrangement to respond to modern transnational threats to 

national security when those threats manifest domestically. Again, the 

federal response to Hurricane Katrina and the resultant discussions about 

that response serving as a model for future federal responses in the 

context of civil support and even consequence management may serve 

well. The blended and arguably bifurcated command and control 

structure which attempts to maintain distinctions between state and 
Not in Our Own Backyard . . . 49 

federal forces while awkwardly pushing them together, based on legacy 

threats seems well outside the intent of the Federalist authors. As 

arguments are made today, with references to the Federalist Papers, it is 

prudent to consider the whole of the arguments made by the authors in 

the context they were made. Then, attempts to apply them to today 

should be done so comprehensively to all sides of the argument, 

acknowledging for the most part the context today is dramatically 

different—the Union is mature, and the specific emergent threat was 

previously unforeseen and now exists along side legacy threats posed by 

other states and the related potential entanglements of treaties. 

Prior to discussing options it is prudent to state this paper does not 

suggest or recommend that any element of the federal government—law 

enforcement, defense, intelligence, etc.—should function without full 

and proper Constitutional oversight to ensure the preservation of the 

liberties that are truly central and precious to our nation. The argument 

is made, however, that the way we function to counter threats to the 

nation must change and if necessary, so must the mechanisms for 

oversight, in order to address the enemy of the state in the most refined 

and straightforward way; a way that is the most effective while being the 

least functionally and administratively complex. Those changes must 

rest on the foundation of the past but not tied to it, ensuring that threats 

today and tomorrow are viewed for what they are. We cannot afford to 

cling to a “comfortable” past hoping it will continue to serve us well 

against characteristically new threats. This argument applies the 

Federalist Papers to the other side of the current argument, to balance the 

usual one-sided application of this source and has hopefully successfully 

demonstrated that although they have value for today, even for this issue, 

they are ultimately limited in that value due to a dramatically different 

context. The warnings and cautions contained in the Federalist Papers 

highlight a proper tension. The government today must consider that 

wisdom as it pertains to protecting the rights of citizens, while balancing 

those rights against the related need for collective security and common 

defense, but only in order to ensure we continue to preserve that balance 

in the context of today’s threats. 

Not in Our Own Backyard . . . 51 

Options and Recommendation 

The discussion above has primarily focused on classic military 

operations and activities—the use of force, troops, etc.—in an effort to 

reduce the argument to a digestible form. As options are considered, 

however, the full spectrum of activities that enable such operations must 

also be considered. As previously mentioned, the most significant of 

these is the role of intelligence operations and analysis—activities that 

occur before, during, and after these classic operations in the greater 

context of national security. In terms of analysis, current efforts 

captured under the establishment of the Director of National Intelligence 

have placed a new and proper emphasis on information sharing across 

the participating members of the intelligence community. It is too early 

to determine the effectiveness of these changes, however, it is easy to 

argue that in the best of circumstances the mandate to share information 

does not eliminate the real problem—the seam—nor does it fully or 

effectively bride it. What follows are several general options that may 

serve to better our position in this new war on terrorism and extremism, 

as well as posture the U.S. to address other similar/related transnational 

threats. 

First, the government can maintain the current definition of 

terrorism as primarily a criminal act. Federal law enforcement always 

serves as the lead federal agency with other agencies serving in a 

supporting role—state and local law enforcement as well as the 

Department of Defense. This is similar to the current “Drug War” 

paradigm, with DoD providing support to the U.S. Coast Guard as a law 

enforcement activity. As a result, the federal government could/should 

to one of the following: First, modify national law enforcement doctrine 

and funding to allow the full organization, training, and equipping 

necessary to truly counter the modern threat, specifically transnational 

terrorism. In this context, the law enforcement community should truly 

lead the full effort globally, not just domestically as is currently the case. 

Second, create a new law enforcement agency/organization that 

specializes in counterterrorism policy, motives, strategy and tactics, etc., 

rather than continuing to have existing law enforcement activities 

assume these responsibilities in addition to their traditional tasks—this 
52 . . . Not in Our Own Backyard

includes but is not limited to the current responsibilities resident in the 

Federal Bureau of Investigation and Immigration and Customs 

Enforcement entities. 

Second, the government can establish the Department of Defense as 

lead federal agency for the new class of transnational threats. This 

includes several changes to law policy based on the nature and character 

of the threat. As a result, the federal government should do the 

following: First, redefine or strengthen the definition of terrorism to 

state it is primarily a form of warfare, with the view that terrorists are in 

fact combatants engaged in a political fight. They are subject to the use 

of deadly force or capture, detainment, and prosecution for crimes 

domestically or internationally as is appropriate. This does not eliminate 

the option to take legal action against terrorists who commit crimes in 

the context of the combat they wage. Second, update the Posse 

Comitatus Act of 1878, and its related family of laws, PDDs, Secretariatlevel policies, instructions, etc., that currently “prevent” the full 

operation of the U.S. military domestically in this regard. This must also 

eliminate the “jurisdictional” troubles encountered with the use of 

federal military within the United States. The Department of Defense 

would be charged as the lead federal agency, with an obligation to 

coordinate its activities to remain compliant with law, and to assure that 

the law enforcement community is able to fully benefit from DoD 

activities regardless of the level of law enforcement participation (e.g., 

access to captured/detained combatants to ensure they are not also 

wanted for related or unrelated criminal activities). The capability DoD 

brings in terms of domestic response to the threat would mirror the 

capability currently available outside the U.S. This will also preclude 

and possibly reduce accusations that the U.S. Government is willing to 

treat others differently than it does its own citizens. 

Finally, the government can establish a new and unique hybrid 

organization, perhaps comparable to Israel’s Shin Bet. This organization 

would always hold simultaneous and limited military and law 

enforcement authority and jurisdiction. It would house all required 

capabilities to serve as lead federal agency for conducting anti- and 

counterterrorism campaigns and activities. It would have authority to 

identify and investigate suspects, activities and organizations, pursue 

them globally and either combat them or bring them to justice. 
Not in Our Own Backyard . . . 53 

Recommendation 

This paper recommends the U.S. Government implement option 

two. The U.S. military has a clear and unblemished record of 

professionalism, restraint, and submission to civil authority and is best 

equipped and trained to serve as lead federal agency for all counterterror 

activities and operations within the United States, overseas, and 

transnationally. This is consistent with the U.S. Government language 

used to describe the current terrorist threat and related operations as a 

war, as well as other similar transnational threats to the U.S. The U.S. 

military should lead but not operate alone. Once captured, the U.S. still 

needs the legal grounds to prosecute and punish terrorists whether that 

prosecution happens within a military tribunal or a civil court. If 

desired, the law could reflect that a captured terrorist is not a prisoner of 

war in the traditional sense, just as the modern transnational terrorist 

threat to the U.S. is not the same as the “traditional” war waged between 

states. The government should retain laws regarding the illegality of 

aspects of terrorism, primarily tactical practices. A more comprehensive 

set of laws and policies addressing the threat in the clearest of terms, as 

well as define the roles and missions of the participating agencies may be 

called for. The magnitude of change required within our government to 

establish the best and most streamlined system for responding to the 

threat of terrorism is significant, but so is the threat. 

The Federal Government (through the Department of Defense) is 

constitutionally chartered to provide for the common defense.75 This 

Constitutional charter was written without any explicit or implicit 

exception based on the geographic location of the threat, or in today’s 

context, the practical hostile effects a transnational threat may produce. 

The increasing level of violence and destruction of terrorist acts—real or 

effective—in combination with the emerging willingness of terrorists to 

use weapons of mass destruction76 brings modern terrorism, especially 

transnational terrorism solidly into the category of threats that truly 

jeopardize national security. 

Not in Our Own Backyard . . . 55 

Conclusion 

The argument made here is ultimately about defining the threat. 

This paper does not argue the U.S. military should serve as a law 

enforcement entity, or that it should assume the practice of enforcing law 

within the U.S. Instead, the argument offered is that modern 

transnational terrorism—as well as facets of other transnational 

activities, alone or in combination with terrorism—is improperly 

defined. Although there are certainly criminal aspects to terrorism, it is 

not by nature or in its character primarily a criminal activity. It is 

modern combat, a martial activity and an act of war. The challenge is to 

reconsider this definition, change it accordingly, and then apply the most 

proper capabilities of the republic to the problem in the best 

combination. The point of emphasis is the modern enemy, not academic 

arguments based entirely on a legacy set of threats. That said, there is no 

advocacy for the reduction of the historic civil liberties, rights, and 

freedoms that were, and remain, the centerpiece of the foundation of the 

United States. A new enemy is manifest, calling for a new 

understanding and view of how to defeat it without losing sight of the 

precious things historically held most dear. 

The picture painted in the Hollywood movie The Siege is 

undesirable. Although it is highly unlikely such a scenario would unfold 

as depicted in this film, the possibility of something similar occurring in 

terms of the government’s struggle to respond is possible: The movie 

makes an important point about planning as well as practical preparation 

for eventual and significant situations. The government has a historic 

charter and obligation in the face of the new threat to provide for the 

common defense by empowering the military to counter this threat 

across the entire geographic playing field. This new threat clearly and 

reasonably calls for a common defense in the most historic of ways, and 

prepare to do so sooner rather than later. Although we will never enjoy 

perfect security living in an open society, the recommended option 

should proactively permit a robust and mature capability to be in place in 

advance—to be proactive rather than reactive again. When the 

regrettable does happen again, the U.S. will best posture itself to truly 

function on a playing field that favors providing for the common defense 
56 . . . Not in Our Own Backyard

by design—dealing the with the modern threat while preserving what the 

Founding Fathers held dear. The U.S. should never be in the business 

giving the enemy an advantage, or of setting the stage for a fair fight. 

The context should properly be justice, not a more relative standard of 

fairness. Instead, it should be clear to any enemy that to engage the U.S. 

is to engage in a fight that will not be fair, regardless of the means or 

location of the attack. At the same time we will clearly, confidently, and 

publicly demonstrate the advantage is ours as we continue to protect the 

liberty of all Americans, and our national interests at home and abroad. 

The risks associated with keeping the society open certainly outweigh 

the alternatives, but those risks should not include reducing the nation’s 

ability to fight any threat, current or emerging. 

Through consistent and uniform action domestically and abroad, the 

U.S. will also demonstrate to the world that we choose to hold dear for 

everyone those same things that we hold dear for ourselves. This 

ensures any potential enemy knows that there is no advantage to 

attacking the U.S. domestically or abroad. It makes no difference: The 

tools used to facilitate the response will be the same regardless of 

geography. The terrorist threat to the homeland will decrease as our 

preparedness to credibly counter that threat increases—perhaps a new 

form deterrence for a non-state threat that is not deterred by traditional 

means. 

Alternately, a strategy that prefers maintenance of the status quo by 

depending on a practical ability to react (even if that reaction is 

flawlessly planned and coordinated) gives the lead and advantage to the 

enemy, and places a greater chance of our own success on a healthy dose 

of luck. This is contrary to the premise the U.S. has always stated rests 

behind its strategy for defense in any other context—the best defense is 

in fact a good offense. The threat today is not deterred in the same way 

as a sovereign and belligerent state. We must be proactive, even 

preemptive at times as the National Security Strategy states77 to ensure 

U.S. interests clearly remain the proactive focus of our efforts and 

actions in peace rather than primarily a set of real or perceived reactions 

in war. Furthermore, as we see the reality of the danger of the nexus of 

radicalism and technology,78 especially as that enemy is arguably more 

rapidly and dramatically enabled by technological advances, we must 

assess whether or not we have the time to learn how to counter these 
Not in Our Own Backyard . . . 57

transnational threats in a reactive way, while we are rooted in a 

traditional/legacy mindset. In the meantime, expect the enemy to operate 

along the seam we have created and continue to maintain, with increased 

vigor and zeal. The U.S. should do all in its power to prevent the only 

option being the reactionary establishment of a national emergency, the 

need to invoke authority under the Insurrection Act79 or a declaration of 

martial law, along with the associated curtailment of civil rights in order 

to counter a threat we are already all to aware of today. 

59 

Notes 

1. James H. Anderson, James Madison University, William R. Nelson Institute 

for Public Affairs, International Terrorism and Crime: Trends and Linkages, 

http://www.jmu.edu/orgs/wrni/it5.html. 

2. Andrew L. Ross, “The Theory & Practice of International Relations: Contending 

Analytical Perspectives,” in Strategy and Force Planning, 3rd Ed., ed. Strategy and Force 

Planning Faculty (Newport: Naval War College, 2000), 67. 

3. Terrorism is currently defined as crime and not warfare, yet the term is used 

liberally by the justice and defense communities to connote more than the “official” 

definition allows. For definitions, see the U.S. Department of State, Patterns of Global 

Terrorism 2003, April 2004, xii, http://www.state.gov/s/ct/rls/pgtrpt/2003/. The U.S. 

Government currently uses several definitions for terrorism, each demonstrating an 

organizational perspective (see also Dr. Thomas R. O’Connor, North Carolina 

Wesleyan College, Department of Justice Studies & Applied Criminology, 

http://faculty.ncwc.edu/toconnor/429/429lect01.htm). Additionally, although most 

governmental definitions for terrorism equate it to political violence, at times both the 

Department of Justice and the media use the term “terrorism” to describe criminal acts 

that are not political in nature (e.g., the killings at Columbine High School in Colorado). 

4. Department of Defense Directive 5107.1, Enclosure 1, January 5, 2001, 7. 

Confusion exists with regards to the definition of what constitutes a weapon of mass 

destruction (WMD) between DoD (historically defining a WMD as a nuclear, chemical, 

biological or radiological weapon), and the Department of Justice (DoJ). DoJ indicted 

and convicted Timothy McVey for the use of a WMD in the bombing of the Murrah 

Federal Building in Oklahoma City, OK. The bomb was a large ammonium nitrate 

and fuel oil (ANFO) device—a crude and conventional weapon. (See 

http://www.tkb.org/KeyLeader.jsp?memID=4099) 

5. MIPT Terrorism Knowledge Base, http://www.tkb.org/KeyLeader.jsp?memID=4099. 

6. U.S. Department of Homeland Security, Securing Our Homeland: U.S. 

Department of Homeland Security Strategic Plan, 2004, inside front cover. 

7. The Siege, 20th Century Fox, released November 1998. 

8. U.S. Department of State. Office of the Coordinator for Counterterrorism. 

Patterns of Global Terrorism: 1998. Washington, D.C., 1999. 
60 . . . Not in Our Own Backyard

9. Ibid. Note that the term “noncombatant” includes in addition to civilians, military 

personnel who at the time of the incident are unarmed or not on duty. 

10. Oxford American Dictionaries, resident within Mac OSX, version 1.0.1. 

11. Phil Williams, “Organizing Transnational Crime: Networks, Markets and 

Hierarchies,” in Combating Transnational Crime: Concepts, Activities and Responses, 

eds. Phil Williams and Dimitri Vlassis (London: Frank Cass, 2001), 60. See also Robert 

O. Keohane and Joseph S. Nye Jr. (eds.), Transnational Relations and World Politics. 

(Cambridge, MA, Harvard University Press, 1972). 

12. Ibid., 67. Mr. Williams quotes James Rosenau, Turbulence in World Politics

(Princeton, NJ: Princeton University Press, 1989), 251. 

13. Terrorism per se is not illegal in the United States. The Department of Justice 

uses existing laws to prosecute terrorists based upon specific actions or activities already 

deemed illegal. The indictments against domestic terrorist Timothy McVey serve as an 

example. The eleven indictments against him included Conspiracy to Use a Weapon of 

Mass Destruction, Use of a Weapon of Mass Destruction, Destruction by explosive, and 

eight counts of First-Degree Murder. 

14. U.S. Department of State. Office of the Coordinator for Counterterrorism. 

Patterns of Global Terrorism: 1998. Washington, D.C., 1999. 

15. Ibid. 

16. Louis R. Mizell, Target U.S.A.: The Inside Story of the New Terrorist War (New 

York: John Wiley & Sons, Inc., 1998), flyleaf. 

17. Ibid., 179. 

18. Ibid., 12. 

19. Ibid., 16. 

20. The Domestic Operational Law (DOPLAW) Handbook states: “The primary 

statute restricting military support to civilian law enforcement is the Posse Comitatus Act 

(PCA).” See the Domestic Operational Law (DOPLAW) Handbook for Judge 

Advocates, Volume I, Center for Law and Military Operations, 17 February 2005, 12. 

21. Ibid., 12-13. 
Not in Our Own Backyard . . . 61 

22. Carl von Clausewitz, On War, trans. And ed. Michael Howard and Peter Paret 

(New Jersey: Princeton University Press, 1976), 75, 87. 

23. AF Form 133, Mar 92 (EF), Oath of Office (Military Personnel). 

24. Louis R. Mizell, Target U.S.A.: The Inside Story of the New Terrorist War

(New York: John Wiley & Sons, Inc., 1998), 175. 

25. President George W. Bush. Speech on board the U.S.S. Abraham Lincoln, 1 

May 2003, http://www.johnstonsarchive.net/terrorism/bushiraq4.html. 

26. SMSgt Jim Katzaman, “Secretary of Defense Issues Khobar Towers Findings”, 

Air Force News Service, Aug 97, http://www.af.mil/news/Aug1997/n19970801_970946.html. 

27. This is not to attribute the bombing to the government of Iraq. Rather, I am 

suggesting that there was no nation or assembly of nations with anti-American sentiment 

that could have conventionally countered us in the region. 

28. Shoon Kathleen Murray and Christopher Spinosa, “The Post-9/11 Shift in 

Public Opinion: How Long Will It Last?” in Eugene R. Wittkoph and James M. 

McCormick, Eds., The Domestic Sources of American Foreign Policy: Insights and 

Evidence, (Oxford: Rowman & Littlefield, 2004), 108. 

29. Dan Raviv and Yossi Melman, Every Spy a Prince: The Complete History of 

Israel’s Intelligence Community (Boston: Houghton Mifflin Company), 385. 

30. See note 12 above regarding the definition of “noncombatant.” 

31. Throughout the days I worked at the Bureau I often heard comments made in 

frustration to this effect. These comments came from senior leaders, a Supervisory 

Special Agent, as well a number of other Special Agents and analysts involved with the 

case. 

32. Carl von Clausewitz, On War, trans. And ed. Michael Howard and Peter Paret 

(New Jersey: Princeton University Press), 89. 

33. Ibid., 88. 

34. Martin van Creveld, The Transformation of War (New York: The Free Press, 

1991), 36-37. 

35. Ibid., 41. 
62 . . . Not in Our Own Backyard

36. Ibid., 56-57. 

37. Ibid., 59. 

38. Ibid., 204. 

39. This concept was discussed at length during the USAF JAG School’s Homeland 

Defense Course, and primarily addressed during the briefing entitled “N/NC and the NG” 

on 24 January 2006. 

40. Defense Link News, http://www.defenselink.mil/news/Sep2005/20050907_2633.html. 

41. CRS Report for Congress, “Hurricane Katrina: DoD Disaster Response” 

(September 19, 2005), 10-11. 

42. Anthony J. Rice, “Command and Control: The Essence of Coalition Warfare,” 

Parameters, 27, no. 1 (Spring 1997), http://carlisle-www.army.mil/usawc/Parameters/97spring/ 

rice.htm 

43. USAF Air War College Lecture, 31 Jan 2006. AWC lectures are conducted in a 

not-for-attribution environment. 

44. Hon. Paul McHale, Assistant Secretary of Defense, Homeland Defense. Speech 

on 16 September 2003, http://www.defenselink.mil/policy/sections/public_statements/speeches/ 

asd/homeland_defense/mchale/sept_16_03.html. 

45. National Security Strategy, September 2002, 6. 

46. U.S. Northern Command webpage, http://www.northcom.mil/index.cfm?fuseaction=s. 

who_mission. 

47. Strategy for Homeland Defense and Civil Support, June 2005, 14. 

48. Ibid., 16. 

49. Dr. Philip Williams, “Organizing Transnational Crime: Networks, Markets and 

Hierarchies,” 73. 

50. Ibid., 81. 

51. Roy Godson, “The Political-Criminal Nexus and Global Security” in Menace to 

Society: Political-Criminal Collaboration Around the World (New Brunswick: 

Transaction Publishers, 2003), 6. 
Not in Our Own Backyard . . . 63 

52. Ibid., 9. 

53. Ibid., 18. 

54. John P. Sullivan, “Urban Gangs Evolving As Criminal Netwar Actors,” Small 

Wars and Insurgencies 11, no. 1 (Spring 2000), 82. 

55. Ibid., 94. 

56. Dr. Max G. Manwaring, “Street Gangs: The New Urban Insurgency” (March 

2005), 1, http://www.carlisle.army.mil/ssi. 

57. Ibid., 5-6. 

58. See one set of summary statistics and charts provided by Wikipedia at: 

http://en.wikipedia.org/wiki/2005_Paris_suburb_riots#Summary_statistics. See also: 

The Guardian, http://www.guardian.co.uk/france/story/0,11882,1636656,00.html. 

59. Dr. Max G. Manwaring, “Street Gangs: The New Urban Insurgency” (March 

2005), 11, http://www.carlisle.army.mil/ssi. 

60. Ibid., 17. 

61. Ibid., 18. 

62. The Federalist Papers are a collection of 85 essays written by three authors: 

Alexander Hamilton, James Madison, and John Jay (who authored 52, 28 and five of the 

papers respectively). The Federalist Papers were published in New York under the full 

title of The Federalist: A Collection of Essays, Written in Favour of the New 

Constitution, as Agreed Upon by the Federal Convention, September 17, 1787, In Two 

Volumes. Note that some of the individual papers are dated, while others are not. The 

Federalist Papers are available on line at http://www.foundingfathers.info. 

63. Ibid. 

64. John Jay, Federalist Number 3. 

65. John Jay, Federalist Number 4. 

66. Alexander Hamilton, Federalist Number 8, November 20, 1787. 

67. Ibid. 
64 . . . Not in Our Own Backyard

68. Federalist 25 is dated December 21, 1787. 

69. Alexander Hamilton, Federalist Number 24. 

70. Ibid. 

71. Alexander Hamilton, Federalist Number 9. 

72. Alexander Hamilton, Federalist Number 25, December 21, 1787. 

73. Ibid. 

74. It is interesting that the Constitution is rarely mentioned in this debate today. 

Most arguments begin with the Posse Comitatus Act. Furthermore, although Congress 

identified the misuse of federal forces and remedied it through the PCA, contemporary 

arguments also never appear to address the related misuse of the U.S. Marshals under 

whose authority federal troops were placed. It can be argued that if the Marshals had 

sufficient resources, the election results would have been the same. Without keeping the 

argument properly tied to its historic context and misrepresent it is to suggest that the 

equally improper use of federal law enforcement was actually acceptable. It is implicit 

that PCA also protects against the misuse of an improperly empowered federal law 

enforcement capability as it existed in the U.S. Marshals office in 1876. PCA is a 

product of the Constitutional separation of powers and was designed to addressed the root 

of a problem—the Presidential abuse of power in a specific context. The law was not 

intended only to address only the symptoms of that problem—the abuse of federal 

military, or federal law enforcement. Arguments today must maintain intellectual 

integrity in this regard. 

75. U.S. Constitution, Preamble. 

76. Congress, Senate, Government Affairs Permanent Subcommittee on 

Investigation, Global Proliferation of Weapons of Mass Destruction: A Case Study on the 

Aum Shinrikyo (Introduction), 31 October 1995 Staff Statement, available from 

http://www.fas.org/irp/congress/1995_rpt/aum/part01.htm. The Aum Shinrikyo terrorist 

organization released Sarin gas in the Tokyo subway on 20 March 1995. This attack 

killed 12 and injured over 5,000 civilians. 

77. National Security Strategy, September 2002, 12, 19, 20. 

78. Ibid., 4, 17. 

79. The Insurrection Act (Title 10 USC, Sections 331-335). This act allows the 

president to use U.S. military personnel at the request of a state legislature or governor to 
Not in Our Own Backyard . . . 65 

suppress insurrections. It also allows the president to use federal troops to enforce federal 

laws when rebellion against the authority of the U.S. makes it impracticable to enforce 

the laws of the U.S. (http://www.northcom.mil/index.cfm?fuseaction=news.factsheets& 

factsheet=5). Wikipedia describes the Insurrection Act as “the set of laws that govern the 

President of the United States of America's ability to deploy troops within the U.S. to put 

down lawlessness, insurrection and rebellion. The laws are chiefly contained in 

10USC331-335. The general aim is to limit Presidential power as much as possible, 

relying on state and local governments for initial response in the event of insurrection. 

Coupled with the Posse Comitatus Act Presidential powers for law enforcement are 

limited and delayed.” (See: http://en.wikipedia.org/wiki/Insurrection_Act.) 
66 . . . Not in Our Own Backyard