Pentagon Unilaterally Grants Itself Authority Over ‘Civil Disturbances'

[appal_jack]

http://www.longislandpress.com/2013/05/14/u-s-military-power-grab-goes-into-effect/

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.”

This disturbs me so much more than the (regrettable) errors which occurred in Benghazi last year, or the blunders of some IRS Agents. The surveillance of the press that has also recently come to light, on the other hand, shows that this sort of power grab is not an anomaly, not the work of 'a few bad apples,' and most certainly not the baseless fears of paranoiacs. Fellow citizens, when Ben Franklin said we would have a Republic, 'if we could keep it,' I think he was envisioning these very types of circumstances.

I have tremendous respect for the men and women who answer our country's call to serve in the military, but bad and unconstitutional policies such as these endanger enlisted ranks and civilians alike, making civil conflict, escalation, treason, and tyranny too likely.

-app

[bowens43]

1. It is distrubing and people even here were cheering this on......you have no rights.

Police with military armor, military weapons and military vehicles shutting down a major American city in a few hours and entering home after home, building after building without warrants and without probable cause to think the suspect was in any particular location.

This should scare the hell out of everyone.

[snappyturtle]

26. +1000 ! nt

[struggle4progress]

33. The article confuses the USC with the CFR:

... By making a few subtle changes to a regulation in the U.S. Code titled “Defense Support of Civilian Law Enforcement Agencies” ... is nonsense that shows the reporter is merely serving as a stenographer for somebody else -- and not doing a very good job of it, either

The military does not modify the US Code (USC). The USC is a regularly-updated compilation of current Federal law, based on what Congress has passed and the President has signed, or on what Congress has passed over the President's veto

The military may sometimes, pursuant to Federal law, modify its regulations. The USC does not contain Federal regulations: regulations are typically compiled in the Code of Federal Regulations (CFR). Notices of changes and proposed changes to the CFR are typically published in the Federal Register (FR)

In the Federal Register (Volume 78, Number 71) for Friday, April 12, 2013, beginning at page 21827, you will find published a final rule “Defense Support of Civilian Law Enforcement Agencies” falling under 32 CFR Part 182. You can locate it by searching the FR site for the Agency docket number DOD-2009-OS-0038

It's really a great idea to read this stuff before making wild claims about it

[appal_jack]

34. Thanks for this useful info, s4p

Thanks for this useful info and distinction, struggle4progress.

Despite a change in regulations being different than a change in law in a legal sense, I think that the ominous implications of this policy stand. Continuity of Government plans seem to attract the worst types of authoritarians and anti-democratic types. That was true during the early years of the Cold War, it was true when Ollie North was drafting plans for martial law under Reagan, and it certainly seems to be true now. Despite what Ikonoklast says elsewhere in this thread, this long history and stamp of approval by various authoritarian judges and other officials does not render them any more compatible with a free and democratic society.

-app

[leveymg]

2. The link in the article is to US Code as of January 2012. Three things wrong with this:

1) The Pentagon doesn't make or change laws, just its own regulations and operating procedures

2) A change to the Act linked would have to come by an Act of Congress signed by the President.

3) If in fact there's been a change to the regulations, that needs to be linked.

[appal_jack]

5. See response #4

leveymg, I anticipated this critique of yours, and posted all I have been able to find about the article's assertions and background thus far in response #4 here in this thread. Let me know what you think about the possibility that this is a rule-making change, rather than an actual change of US Code.

I agree that a link from the author would add legitimacy to the article, but still think that the topic is worth discussing overall. I'd be happy to see proof that Posse Comitatus and civilian supremacy are as strong as ever here in the US.



-app

[Ikonoklast]

3. You must have missed this part...

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.

What they are talking about is if there is a massive natural disaster, or a scenario where the political leadership of this nation is decapitated leading to massive civil upheaval.

If there is no civilian government remaining, Professor Afran, who do you think will be left to maintain control?

What a steaming pantsload over absolutely nothing.

The military is not going to start patrolling the streets of this nation any time soon, if ever.

[appal_jack]

6. Right, because the gov't NEVER oversteps its authority.

Right, because the gov't NEVER oversteps its authority.

How's that PATRIOT Act working out for ya, Ikonoklast?

I hope your predictions are true, Ikonoklast, but I'd say that the militarization of our police forces indicate that the lines are thoroughly blurred here in the US, even if everything else in the article is wrong...

-app

[Ikonoklast]

8. Please show one, ONE time in this nation's history that the military arbitrarily decided to

start patrolling the streets of this country, without being ordered to muster by either the president or governor of a state.


And for the other part of your post, a Red Herring Alert :


The PATRIOT Act is the law of the land, adjudicated as such to be legal.

Don't like it? Get the Congress to change it.

You think it's "overstepping"?

Fine.

Do something about repealing it, but for now, it stands as the law.

The government is not overstepping it's legal authority by enforcing it, by definition, they are observing the law as written.

[appal_jack]

9. Unconstitutional laws are unconstitutional. n/t

[Ikonoklast]

14. You are correct.

Parts of the Act have been adjudicated as such, and are no longer enforceable.

The bulk of the Act is still law, under the Constitution.

That's how things work in this country.

Just because you disapprove of a law does not mean it is 'unconstitutional'.

Words have meanings.

[woo me with science]

15. Then why do they need this?

If it will never happen, why on earth do you defend the need for this?

The authoritarian propaganda and rationalizations around here are getting frankly bizarre, and disturbing as hell. You are willing to welcome government MILITARY responses in civil situations...because they won't happen!

We are living in very disturbing times.

[Ikonoklast]

16. There have been emergency plans in place that deal with a catastrophic event such as this since the

possibility of a civilian government decapitation during the Cold War by nuclear attack.

This is not anything new, it's just fear-mongering.

Were they all agog about this in 11956? 1962? 1971? 1983?

[woo me with science]

17. That's brazenly untrue, that nothing is new. Of course it's something new.

We are discussing a change in the code.

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.

You are the one defending the change here. So why the need for it?

[Ikonoklast]

18. OFFS. The military cannot *grant* itself anything.

Libertarian claptrap.

Laws passed by Congress that become part of the U.S Code are not arbitrary actions on the part of the military.

Any COG plan this country ever had placed the military in a primary law-keeping role if civilian authority failed or was rendered inoperable.


COG planning started under Eisenhower, and every administration has had and refined the plans ever since.

[woo me with science]

19. When you don't have an answer, cry "libertarian."

Of course it's not arbitrary. So why is this change needed? Usually when "refinements" are made, it is for a reason.

Why is it necessary *now* to allow military responses in civil situations if, as you claim, it will never be done anyway?

You are doing a lot of dancing here, but you are not making a coherent argument.

[Ikonoklast]

22. There have ALWAYS been plans that included the military in case of catastrophe.

Including a role in civil law-keeping duty.

You just choose to ignore that as fact.

Read up on the history of Continuity Of Government plans this country has had in place for sixty years or so now.

[woo me with science]

23. No, you are absurdly attempting to defend a change

while simultaneously claiming that no change has occurred.

You are attempting to deny the expansion of power and militarization this wording allows by ignoring the meaning of the term, "civil disturbance," and pretending that it's the same thing as, say, a nuclear catastrophe.

Your argument is defensive, authoritarian, and nonsensical. If this new delineation of powers is not really a change, then why on earth is it needed?

[Ikonoklast]

24. Read up on the history of the COG plans first.

Nationwide Martial Law is one contingency of those plans, yet you say this is worse.

Oy.

[woo me with science]

35. Your arguments here should embarrass you, but especially that last gem of a post.

Last edited Thu May 16, 2013, 04:40 PM - Edit history (3)

Let's review, because the twisting and sophistry here are instructive, and typical of Third Way authoritarian rhetoric.

First, you tried to defend this expansion of powers by claiming that it would never be invoked, an argument as silly as would be, say, advocating government cameras in every home because they would never actually be turned on.

Confronted with the absurdity of that defense, you shifted gears. You attempted to instruct me about the government's longstanding contingency plans for a nuclear catastrophe and suggested, absurdly, that because such plans exist, "this is not anything new."

I patiently cut and pasted the change we are talking about here, showing you that it is, indeed, a change to permit military responses to a broader, vaguer category of *civil disturbances.* I asked you again, why is the change needed, and why are you defending it?

You apparently did not like that question, so you responded with a familiar Third Way rhetorical tactic: namecalling any opposition to the change as "libertarian claptrap." Note: You could not explain why you vigorously defend the need for a change that you simultaneously claim is not a change at all, nor could you explain why questioning the change is "libertarian".....yet you show great defensiveness that anyone would question it.

Then, apparently aware of the thinness of that smearing response, you tried to flesh it out by solemnly lecturing me about Eisenhower and the existence of previous COG plans, as though the mere existence of previous emergency powers automatically justifies the *expansion* of such powers into new situations as a matter of routine.

I noted your smear, and I asked you again why you consider this change necessary, if it changes nothing or will never be invoked.

You repeated your irrelevant lecture about previous contingency plans, adding the condescending flourish of suggesting that I need to "read up" on them. Then, as a final embarrassment to your performance here, you finished with this gem:

Nationwide Martial Law is one contingency of those plans, yet you say this is worse.

"Yet you say this is worse." Did you really just write that?

What a predictable Third Way "lesser of two evils" canard. You put words in my mouth to pretend that we are arguing about the *severity* of government response, rather than the *justification* for government response. You actually try to suggest that, because some contingency plans (e.g., for nuclear holocaust) may allow for full national martial law, that we should not question or oppose any plans for military intervention in other situations, even though those situations are being expanded to include creepily vaguely defined "civil disturbances." You ignore and try to deflect from the point here: that excessively broad and vague wording is being added to justify military responses even in situations where military responses were not considered remotely acceptable before.

It's not as bad as nationwide martial law. Sheesh.

This is the authoritarian mindset. This is the justification of creeping militarization in this country. And this is the cynical, manipulative rhetoric we are fed to try to justify the authoritarian creep.

[aquart]

31. Well, if we get hit by an asteroid cluster...

Or a climate change tsunami wipes out the east coast from Florida to Maine....

Never say never. God can't resist a fool's dare.

[appal_jack]

4. Before posting this, I investigated whether it was nuttery or not. I think it's legit.

Before posting this, I investigated whether it was nuttery or not. I think it's legit.

This article had been posted to LBN last night, but was locked as off-topic there. The locking got me to dig-in deeper on the article to see whether it was legit or not, and here is what I've found so far:

Re-reading the article, the only current commentary seems to be coming from Bruce Afran. The other quotes from the ACLU, etc., are older. Googling for Mr. Afran reveals that he has a pretty solid civil rights & civil liberties record though. See, for example:

http://www.geocities.ws/onestudentus/BruceAfranProfile.pdf
&
http://en.wikipedia.org/wiki/Hedges_v._Obama

The only slight red flag I could find about him is that he describes himself as a 'Professor' at Rutgers on his Linked-In page, but Rutgers calls him an adjunct:
http://law.newark.rutgers.edu/home/adjunct-faculty

But in this day and age when we are all treated as disposable, is there really that much of a difference? It's not like he claims he's a tenured department head or anything.

The author of the article, Jed Morey, also seems like a solid progressive, if somewhat more libertarian (note the small 'l') than some here at DU would prefer. I could be lumped into the small 'l' libertarian camp too, fwiw. Jed Morey's Facebook page is pretty public (i.e- I am not a 'Friend' of his, but looked at his public profile), and a quick scan of it did not get my hackles raised-up. His other articles at the L.I. Press look interesting, but I have not read any in full yet. I'd wager that Mr. Morey & Mr. Afran correspond regularly, which is of course part of what good journalists and good activists should be doing.

There is some question about what the Military and Pentagon can do relative to the US Code, as asserted in the second paragraph of the article: "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." I agree that the Pentagon cannot change it (or, if they can, then the Republic is already lost), but Jed Morey's somewhat unclear wording may mean a rule-making and/or interpretation that is within the Pentagon's purview.

I'll be interested to see what other DU'ers can find on this story, and where the discussion goes from there.



-app

[byeya]

12. You're on the right track and thanks for posting. The militarization of the local police function is

worrisome enough. Injecting the military into localities is a recipe for disaster.

[woo me with science]

20. +1

[snappyturtle]

27. +1 nt

[geek tragedy]

7. The Pentagon issued the regulation pursuant to a federal statute

that got the Ron Paul crowd worked up about martial law.

This is old news. The regulation itself was issued in February, the statute was renewed within the last two years.


http://www.scribd.com/doc/108758792/US-Dept-of-Defense-Directive-3025-18-Defense-Support-of-Civil-Authorities-DSCA

[pinboy3niner]

10. The Final Rule was published in the Federal Register 4/12 with effective date of 5/13/13

Anyone interested can see the Final Rule text here:

http://docketwrench.sunlightfoundation.com/document/DOD-2009-OS-0038-0004

[leveymg]

11. Here's what appears to be the gist of it. Authorizes local commanders to take action without orders

in the event of emergencies:

g. Federal military commanders, Heads of DoD Components, and/or responsible DoDcivilian officials (hereafter referred to collectively as “DoD officials”) have IMMEDIATERESPONSE AUTHORITY as described in this Directive. In response to a request for assistancefrom a civil authority, under imminently serious conditions and if time does not permit approvalfrom higher authority, DoD officials may provide an immediate response by temporarilyemploying the resources under their control, subject to any supplemental direction provided byhigher headquarters, to save lives, prevent human suffering, or mitigate great property damagewithin the United States. Immediate response authority does not permit actions that wouldsubject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or compulsory.

I guess this, like anything, can be misconstrued, but the last sentence seems to suggest that any 2nd Lieutenant can't declare martial law and issue orders to civilians to do stuff they don't want to.

[AnotherMcIntosh]

13. The author of the article is wrong.

In his second paragraph, he wrote:

" 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.' "

To begin with, there is no such animal as "a regulation in the U.S. Code." There are regulations. And there is the U.S. Code. Congress passes statutes which, when codified, become part of the U.S. Code. The various administrative agencies, as authorized by Congress, adopt regulations. There are no regulations in the U.S. Code.

The actual language of the regulations being discussed can be found here at the GPO's web site:
http://www.gpo.gov/fdsys/pkg/FR-2013-04-12/pdf/2013-07802.pdf

The author of the article repeats what a limited number of people have said, that the phrase "civil disturbances" is too vague. He hints that the Posse Comitatus Act would be suspended. That Act provides that whoever willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute U.S. laws, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, shall be fined under title 18, U.S.C., or imprisoned not more than two years, or both.

The response by the DOD is that

"‘‘Civil disturbance’’ is an approved definition in the DoD Dictionary and makes no reference to the Posse Comitatus Act being ‘‘suspended.’’ Also this rule does not make reference to the suspension of Posse Comitatus Act. It lists those actions that are permissible and restricted under the Act. The author also recommends that Congress, rather than DoD, make the language ‘‘clear and unambiguous.’’ (under Comment #1, p. 21827)

http://www.gpo.gov/fdsys/pkg/FR-2013-04-12/pdf/2013-07802.pdf

[appal_jack]

25. I agree that the author's second paragraph is awkward.

I agree that the LI Press author's second paragraph is awkward. However, his points stand, especially given some of the truly Orwellian DoD language you cite. The idea that by not making "reference to the Posse Comitatus Act being ‘‘suspended,’’" military forces can legally operate in law enforcement and military capacities on American soil, without so much as a Presidential, Congressional, or even a local-mayor's 'if you please,' is terrifying.Heck, the Founders opposed a standing army in the first place, never mind the idea that such a standing army might 'legally' operate on American soil, entirely outside of Constitutional authority.

-app

[heaven05]

21. another

nail in our coffin of rights being abrogated.

[snappyturtle]

28. Succinct and to the point. I think that is exactly what has happened. nt

[defacto7]

29. At what times in modern history

has it been that "prior authorization by the President is impossible"?

And we are supposed to trust this?

[mwrguy]

30. We shouldn't even have a standing army

let alone one that can do this.

[muriel_volestrangler]

32. I think we can date this back to 1994, at least

Department of Defense

DIRECTIVE

NUMBER 3025.12

February 4, 1994

4.2.2. Military Forces shall not be used for MACDIS
unless specifically authorized by the President, except
in the following emergency circumstances. In these
circumstances, responsible DoD officials and commanders
will use all available means to seek Presidential authorization
through the chain of command while applying their emergency
authority under this Directive.

4.2.2.1. When the use of Military Forces is necessary
to prevent loss of life or wanton destruction of property,
or to restore governmental functioning and public order.
That "emergency authority" applies when sudden and
unexpected civil disturbances (including civil disturbances
incident to earthquake, fire, flood, or other such calamity
endangering life) occur, if duly constituted local authorities
are unable to control the situation and circumstances
preclude obtaining prior authorization by the President.

4.2.2.2. When duly constituted State or local authorities
are unable or decline to provide adequate protection
for Federal property or Federal Governmental functions,
Federal action (including the use of Military Forces)
is authorized, as necessary, to protect the Federal
property or functions.

http://www.au.af.mil/au/awc/awcgate/dod/d302512p.txt

It's hard to find out what the superseded text of the 1971 version of DoDD 3025.12 said. But we have these regulations from 1972, based on it:

2–4. Emergency
a. In cases of sudden and unexpected invasion or civil disturbance, including civil disturbances incident to earthquake,
fire, flood, or other public calamity endangering life or Federal property or disrupting Federal functions or the
normal processes of government, or other equivalent emergency so imminent as to make it dangerous to await
instructions from the Department of the Army requested through the most expeditious means of communications
available, an officer of the Active Army in command of troops may take such action, before the receipt of instructions,
as the circumstances of the case reasonably justify. However, in view of the availability of rapid communications
capabilities, it is unlikely that action under this authority would be justified without prior Department of the Army
approval while communications facilities are operating. Such action, without prior authorization, of necessity may be
prompt and vigorous but should be designed for the preservation of law and order and the protection of life and
property until such time as instructions from higher authority have been received, rather than as an assumption of
functions normally performed by the civil authorities. In the event of civil disturbances requiring action before the
receipt of instructions, the officer taking such action will report immediately his action, and the circumstances requiring
it, to the Director of Military Support (DOMS), Department of the Army (DACS-MSO-W), by the most expeditious
means of communication available, in order that appropriate instructions can be issued at the earliest possible time
(exempt report, para 7-2o, AR 335-15).

http://www.fas.org/irp/doddir/army/ar500-50.pdf

3025.12 seems to originally have been issued in 1968 - see https://bulk.resource.org/courts.gov/c/F2/490/490.F2d.372.72-1931.html