by Jed Morey
U.S. Troops in Afghanistan
(Photo: Senior Airman Sean
Martin, U.S. Air Force)
For the past 30 years, police departments throughout the United States have benefitted from the government’s largesse in the form of military weaponry and training, incentives offered in the ongoing “War on Drugs.”
For the average citizen watching events such as
the intense pursuit of the Tsarnaev brothers on television, it would
be difficult to discern between fully outfitted police SWAT teams and the
By making a few subtle changes to a regulation
in the U.S. Code titled “Defense
Support of Civilian Law Enforcement Agencies” the military has
quietly granted itself the ability to police the streets without obtaining
prior local or state consent, upending a precedent that has been in place
for more than two centuries.
According to the rule:
Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, calls the rule,
A defense official who declined to be named takes a different view of the rule, claiming,
Moreover, he insists the Pentagon doesn’t,
Nevertheless, he says,
One of the more disturbing aspects of the new procedures that govern military command on the ground in the event of a civil disturbance relates to authority.
Not only does it fail to define what circumstances would be so severe that the president’s authorization is “impossible,” it grants full presidential authority to “Federal military commanders.”
According to the defense official, a commander is defined as follows:
As it is written, this “commander” has the same power to authorize military force as the president in the event the president is somehow unable to access a telephone. (The rule doesn’t address the statutory chain of authority that already exists in the event a sitting president is unavailable.)
In doing so, this commander must exercise judgment in determining what constitutes, “wanton destruction of property,” “adequate protection for Federal property,” “domestic violence,” or “conspiracy that hinders the execution of State or Federal law,” as these are the circumstances that might be considered an “emergency.”
Afran also expresses apprehension over the government’s authority,
The U.S. military is prohibited from intervening in domestic affairs except where provided under Article IV of the Constitution in cases of domestic violence that threaten the government of a state or the application of federal law. This provision was further clarified both by the Insurrection Act of 1807 and a post-Reconstruction law known as the Posse Comitatus Act of 1878 (PCA).
The Insurrection Act specifies the circumstances under which the president may convene the armed forces to suppress an insurrection against any state or the federal government. Furthermore, where an individual state is concerned, consent of the governor must be obtained prior to the deployment of troops.
The PCA - passed in response to federal troops
that enforced local laws and oversaw elections during Reconstruction - made
unauthorized employment of federal troops a punishable offense, thereby
giving teeth to the Insurrection Act.
The most substantial change is the notion of
“civil disturbance” as one of the few “domestic emergencies” that would
allow for the deployment of military assets on American soil.
At the time German was referring to the military’s expanded surveillance techniques and hostile interventions related to border control and the War on Drugs.
And in fact, many have argued that these actions have already upended the PCA in a significant way.
Even before this most recent rule change, the ACLU was vocal in its opposition to the Department of Defense (DoD) request to expand domestic military authority,
The ACLU’s position is that civilian agencies
are more than equipped to handle such emergencies since 9/11. (ACLU
spokespersons in Washington D.C. declined, however, to be interviewed for
According to Freedman,
Yet that’s precisely what it did.
This wasn’t, however, the Pentagon’s first
attempt to expand its authority domestically in the last decade.
It specifically amended the Insurrection Act to expand the president’s ability to deploy troops domestically under certain conditions including health epidemics, natural disasters and terrorist activities, though it stopped short of including civil disturbances.
But the following year this language was
repealed under the National Defense Authorization Act of 2008 via a bill
authored by Vermont Senator Patrick Leahy (D-VT) who cited the
“useful friction” between the Insurrection and Posse Comitatus Acts in
limiting executive authority.
Senator Leahy’s office did not have a statement as of press time, but a spokesperson said the senator had made an inquiry with the DoD in response to our questions.
The defense official confirmed that he was indeed being called in to discuss the senator’s concerns in a meeting scheduled for today. But he downplayed any concern, saying,
Last year, Bruce Afran and another civil liberties attorney Carl Mayer filed a lawsuit against the Obama Administration on behalf of a group of journalists and activists lead by former New York Times journalist Chris Hedges.
They filed suit over the inclusion of a bill in the NDAA 2012 that, according to the plaintiffs, expanded executive authority over domestic affairs by unilaterally granting the executive branch to indefinitely detain U.S. citizens without due process.
The case has garnered international attention and invited vigorous defense from the Obama Administration.
Even Afran goes so far as to say this current rule change is,
For Hedges and the other plaintiffs, including Pentagon Papers whistleblower Daniel Ellsberg, the government’s ever-expanding authority over civilian affairs has a “chilling effect” on First Amendment activities such as free speech and the right to assemble.
First District Court Judge Katherine Forrest
agreed with the plaintiffs and handed Hedges et al a resounding victory
prompting the Department of Justice to immediately file an injunction and an
appeal. The appellate court is expected to rule on the matter within the
next few months.
For activists such as O’Brien, the new DoD regulatory change is frightening because it creates,
Knowing these sweeping powers were granted under a rule change and not by Congress is even more harrowing to activists.
As far as what might qualify as a civil disturbance, Afran notes,
But the focus on the DoD regulatory change obscures the creeping militarization that has already occurred in police departments across the nation.
Even prior to the NDAA lawsuit, journalist Chris Hedges was critical of domestic law enforcement agencies saying,
This de facto nullification isn’t lost on the
According to this official there has purposely been a,
Moreover, he says the military has learned from past events, such as the siege at Waco, where ATF officials mishandled military equipment.
But if the transfer of military training and technology has been so thorough, it boggles the imagination as to what kind of disturbance would be so overwhelming that it would require the suspension of centuries-old law and precedent to grant military complete authority on the ground.
The DoD official admits not being able to “envision that happening,” adding,
Afran, for one, isn’t buying the logic.
For him, the distinction is simple.
Despite protestations from figures such as Afran and O’Brien and past admonitions from groups like the ACLU, for the first time in our history the military has granted itself authority to quell a civil disturbance.
Changing this rule now requires congressional or judicial intervention.
Afran is considering amending his NDAA complaint
currently in front of the court to include this regulatory change.