A Soldier's-Eye View of the Homefront: Examining Domestic Military Laws through the Lens of Military Doctrine

INTRODUCTION The military's domestic law enforcement role creates intense debate over United States law and policy. Some scholars argue for only limited use and strict control over domestic use of force and military law enforcement, arguing that such usage impinges upon important civil rights and carries too high a risk of tragedy or abuse. (1) They propose substantial checks on this executive power similar to those present upon civilian law enforcement agencies. (2) In the opposing camp, commentators argue that abstract concerns over civil rights fail to respond to real-world emergencies and threats. (3) They point to natural disasters and looming terrorist threats as situations ill-suited to burdensome safeguards. (4) Often these arguments call for lifting restrictions on the executive branch to enable both rapid action and full application of military capability to meet exigent circumstances. (5) Likewise, commentators debate over the desired means of domestic military control. Some insist that careful and clear language from Congress will serve as the best safeguard. (6) A few voices in the debate discuss the role of state authority on the issue. (7) Others insist that judicial restrictions are the most appropriate. (8) These debates lack substantial reflection on how these various compromises translate into successful execution of these policy goals. The ideas governing the military forces are more fluid than the forces themselves. Successful military operations almost always adhere to classic "doctrinal" military principles--principles that often determine whether the military aims can be achieved, as distinguished from whether the aims should be achieved. (9) This Note aims to explore this gap in the current discussion. It seeks to illustrate what "right" looks like in protecting individual liberties alongside the common welfare. It evaluates the current alignment of laws and policies against principles of military doctrine and determines how well they work together to facilitate success. Finally, it proposes that use of state-federal controls on domestic military use, along with some limitations on the existing federal role, would strike a better balance than the current and proposed federal-only controls. Part I of this Note begins by defining what "right" looks like in finding a proper balance between protecting individual liberties from military incursion and protecting the common security by maximizing military options. Part II examines the instruments of that social policy and will highlight important differences in the capability and domestic authority of U.S. federal and state military forces. (10) It will also introduce the doctrinal principles critical to their ability to succeed. Part III evaluates whether current federal laws implement sound policy and whether they facilitate doctrinally-sound military operations. Part IV explores some alternate views, proposed changes to federal laws, and how successfully they balance social policy and enable military success. Part V concludes that state-federal controls and some federal limitation might bring about the best three-way balance between liberty, common welfare, and military success. I. BALANCING LIBERTY AND SECURITY INTERESTS: WHAT RIGHT Loom LIKE Commentator debates over the military's proper domestic role fracture along lines similar to debates on traditional law enforcement functions. The essential arguments contrast individual liberty with collective security, and various commentators place differing normative value on each. (11) Though the requirements of each can be at odds, common ground can be found between them. Recent history provides illustrative examples of the domestic military playing the role of both hero and villain. The military might readily abuse individual civil rights by using excessive lethal force, interfering with freedoms of expression or assembly, or conducting unmonitored, intrusive surveillance. …