According to an article published on Tuesday in the Long Island Press, the Pentagon has "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 story, by Jed Morey, refers to recent changes made by the Department of Defense to a U.S. Code titled "Defense Support of Civilian Law Enforcement Agencies." The changes, Morey argues, are the latest in what he calls the "militarization of domestic law enforcement" and further blur the lines between police SWAT teams and the military.
These changes, which have attracted media little attention, bring with them the worrying potential for greater involvement by the U.S. military in domestic affairs.
The changes clarify the rule for the involvement of military forces in civilian law enforcement and establishes "DoD policy, assigns responsibilities, and provides procedures for DoD support to Federal, State, tribal, and local civilian law enforcement agencies, including responses to civil disturbances within the United States." According to Morey, the most worrying part of the recent changes is the inclusion of vague-sounding language which permits temporary military intervention in the event of "civil disturbances":
"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 because:
(1) Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order; or
(2) Duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions."
According to Morey, the military is currently "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." Morey labels the recent changes as a "game-changer," given that they undermine existing limits to military intervention in domestic affairs. Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, is concerned about the lack of definition contained in the rule, including what constitutes "wanton destruction," or under what circumstances prior authorization of the President would be considered "impossible." "These phrases don’t have any legal meaning," he say. "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."
Civil disturbances are defined in the regulation as "Group acts of violence and disorder prejudicial to public law and order." While Morey quotes an unnamed defense official who claims that the authorization has existed for over 100 years and just has not been exercised before, legal experts are concerned by the changes.
Afran argues that the rule is "a wanton power grab by the military. It's quite shocking actually," he continues, "because it violates the long-standing presumption that the military is under civilian control." Furthermore, he argues that the definition of civil disturbances is broad and vague enough that "all of the Vietnam protests would meet this description. We saw Kent State. This would legalize Kent State." Eric Freedman, a constitutional law professor from Hofstra University, also labelled the rule "an unauthorized power grab."
Morey notes that although the outcomes of previous domestic military interventions in the U.S. 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."
Freedman points out that the "The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute." Meanwhile, Morey argues that this is exactly what is has just done, and that it is not the first time the Department has attempted to expand its domestic authority.
So is this a unilateral power grab by the Pentagon that has potentially worrying implications for the future, or is it simply a necessary precaution in case of a legitimate emergency that domestic law enforcement is unable to handle?
Let me know what you think in the comments below: