Pentagon Unilaterally Grants Itself Authority Over ‘Civil Disturbances’
(Long Island Press) -
The manhunt for the Boston Marathon bombing suspects offered the nation a window into the stunning military-style capabilities of our local law enforcement agencies. 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 military.
The lines blurred even further Monday as a new dynamic was introduced to the militarization of domestic law enforcement. 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.
The most objectionable aspect of the regulatory change is the inclusion of vague language that permits military intervention in the event of “civil disturbances.” According to the rule:
Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.
Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, calls the rule, “a wanton power grab by the military,” and says, “It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”
A defense official who declined to be named takes a different view of the rule, claiming, “The authorization has been around over 100 years; it’s not a new authority. It’s been there but it hasn’t been exercised. This is a carryover of domestic policy.” Moreover, he insists the Pentagon doesn’t “want to get involved in civilian law enforcement. It’s one of those red lines that the military hasn’t signed up for.” Nevertheless, he says, “every person in the military swears an oath of allegiance to the Constitution of the United States to defend that Constitution against all enemies foreign and domestic.”
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: “Somebody who’s in the position of command, has the title commander. And most of the time they are centrally selected by a board, they’ve gone through additional schooling to exercise command authority.”
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.”
“These phrases don’t have any legal meaning,” says Afran. “It’s no different than the emergency powers clause in the Weimar constitution [of the German Reich]. It’s a grant of emergency power to the military to rule over parts of the country at their own discretion.”
Afran also expresses apprehension over the government’s authority “to engage temporarily in activities necessary to quell large-scale disturbances.”
“Governments never like to give up power when they get it,” says Afran. “They still think after twelve years they can get intelligence out of people in Guantanamo. Temporary is in the eye of the beholder. That’s why in statutes we have definitions. All of these statutes have one thing in common and that is that they have no definitions. How long is temporary? There’s none here. The definitions are absurdly broad.”
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.
Together, these laws limit executive authority over domestic military action. Yet Monday’s official regulatory changes issued unilaterally by the Department of Defense is a game-changer.
The stated purpose of the updated rule is “support in Accordance With the Posse Comitatus Act,” but in reality it undermines the Insurrection Act and PCA in significant and alarming ways. 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.
To wit, the relatively few instances that federal troops have been deployed for domestic support have produced a wide range of results. Situations have included responding to natural disasters and protecting demonstrators during the Civil Rights era to, disastrously, the Kent State student massacre and the 1973 occupation of Wounded Knee.
Michael German, senior policy counsel to the American Civil Liberties Union (ACLU), noted in a 2009 Daily Kos article that, “there is no doubt that the military is very good at many things. But recent history shows that restraint in their new-found domestic role is not one of them.”
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 “in the event of chemical, biological, radiological, nuclear, or high yield explosive (CBRNE) incidents.” 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 this story.)
But while outcomes of military interventions have varied, the protocol by which the president works cooperatively with state governments has remained the same. The president is only allowed to deploy troops to a state upon request of its governor. Even then, the military—specifically the National Guard—is there to provide support for local law enforcement and is prohibited from engaging in any activities that are outside of this scope, such as the power to arrest.
Eric Freedman, a constitutional law professor from Hofstra University, also calls the ruling “an unauthorized power grab.” According to Freedman, “The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute.” 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.
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