In theory, the Posse Comitatus Act of 1878 adopted in the wake of the US civil war, prevents the military from intervening in civilian police and judicial functions. This law has been central to the functioning of constitutional government.
Although the Posse Comitatus Act is still on the books, in practice the legislation is no longer effective in preventing the militarization of civilian institutions. (See Frank Morales, Global Research, September 2003)
Legislation inherited from the Clinton administration, not to mention the post 9/11 Patriot Acts I and II, "blurs the line between military and civilian roles", it allows the military to intervene in judicial and law enforcement activities even in the absence of an emergency situation.
In 1996, legislation was passed which allowed the military to intervene in the case of a national emergency (e.g.. a terrorist attack). In 1999, Clinton's Defense Authorization Act (DAA) extended those powers (under the 1996 legislation) by creating an "exception" to the Posse Comitatus Act, which would allow the military to be involved in civilian affairs "regardless of whether there is an emergency". (See ACLU)
Under this 1999 provision, "the mere threat of an act of terrorism would justify calling in military units. That represents a loophole large enough to drive a battalion of army tanks through." (Ibid)
In other words, the Clinton era legislation had already laid the legal and ideological foundations of the "global war on terrorism".
While NSPD 51 is a significant and timely landmark, it is broadly consistent with the pre-existing legislation, with one important exception. NSPD 51 confirms that "Continuity in Government" (COG), while suspending the Constitution, would be carried out under the control of the Presidency.
This distinction is important, in view of mounting opposition within the Armed Forces to the possible use of a "false flag" terrorist attack as a justification for the launching of a broader Middle East war, in which nuclear weapons could be used against Iran.
NSPD 51 largely confirms the "legitimacy" of preexisting procedures and legislation, while also stipulating a central and critical role for the presidency in the case of a "Catastrophic Emergency". In fact, NSPD 51 thwarts the possibility of discretionary actions taken unilaterally by the Military in the case of a national emergency. Broadly speaking, NSPD 51 reinforces the control exerted by the White House, its civilian apparatus as well as its corporate lobby groups.
While COG would result in the militarization of civilian institutions, this process would be under the control of civilian policy-makers, acting on behalf of their corporate sponsors. This civilian policy apparatus, made up of senior NeoCon advisers, with links to the Washington think tanks, Wall Street and the oil giants, is slated to play a key role in the case of martial law.
Whereas the militarization of justice and law enforcement would proceed, the Military would, nonetheless, remain subordinate to a "civilian dictatorship".
War Games and the Militarization of National Emergency Preparedness
Another relevant dimension of the militarization of civilian institutions pertains to interagency collaboration between the Federal Emergency Management Agency (FEMA) and the Pentagon in the conduct of military style "catastrophic emergency response" exercises .
This "interagency collaboration" was endorsed in 2006 by the US Congress. FEMA (under the jurisdiction of the Department Homeland Security) was given exceptional powers. A significant budget was also provided to finance an ongoing partnership between FEMA and the US Military.
Northern Command was responsible for establishing links with civilian agencies involved in emergency preparedness (operating under the Defense Support of Civil Authorities (DSCA)).
What has unfolded is an integrated military/civilian outlook on emergency preparedness. A number of civilian agencies now actively participate in the conduct of Pentagon war games. In 2006, FEMA's "catastrophic disaster response" exercise was integrated into the conduct of US Northern Command's "Operation Vigilant Shield 07":
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