Pentagon Engaging in a Power Grab Against the Civilian Leadership
Military Tries to Take More Power Away from Civilian LeadershipThe Long Island Press reports:
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” [See p. 16 (3) here] 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.”
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.”
“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.
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.”
“This is where journalism comes in,” says Freedman. “Calling attention to an unauthorized power grab in the hope that it embarrasses the administration.”
Interview with Constitutional ExpertWe contacted professor Freedman and asked him six follow-up questions.
[Washington's Blog] Are reports that the revisions to the Defense Support of Civilian Law Enforcement Agencies Code allow military commanders to deploy – without any input from the President, state, local government or other civilian authorities – military resources in order to “quell large-scale, unexpected civil disturbances” accurate?
[Professor Freedman] Yes. But it’s an incremental change to regulations that have existed since the mid-90’s, and those were probably more problematical because they expanded the bounds of the situations in which the military could be used. I commend to your attention the comprehensive 2012 report by the Congressional Research Service: https://www.fas.org/sgp/crs/natsec/R42659.pdf
[WB] Could something akin to the Occupy Wall Street protests, the Tea Party protests or the protests against the Iraq war in San Francisco be labelled in the future as “large-scale, unexpected civil disturbances” under these revisions?
[Freedman] Not if accurately applied. The DoD regulations contemplate that local law enforcement can’t handle it and that the functioning of federal or state institutions is affected by the disturbances. Besides, as the story accurately indicates, local police forces are so heavily militarized today that there would be no reason for the military to take the heat.
[WB] Do the revisions violate Posse Comitatus?
[Freedman] It would seem that they go a bit beyond the current version of the statute, which is why [Senator] Leahy is looking into it.
[WB] Do the revisions violate normal Continuity of Government protocols, if the President is unavailable?
[Freedman] That is probably the most significant part. The delegation to local commanders if the President is unavailable without reference to the rest of the civilian chain of command is, if not an oversight, a serious expansion of military power. If deliberate, I would say that in this respect the regulations are in violation of statute.
[WB] Are expansions of power by the government always limited to their original, stated purpose … or do they tend to be used for additional reasons at some point in time?
[Freedman] As all history shows – and the Framers were well aware - government power tends to expand until it runs into some obstacle to stop it from expanding.
The “forever war” is an example. [See this, this and this].
[WB] Constitutional lawyer Bruce Afran – who is representing Pentagon Papers whistleblower Daniel Ellsberg, Pulitzer-prize winning journalist Chris Hedges and others in the lawsuit challenging the governments claim that it can indefinitely detain journalists without trial or access to an attorney – says:
“These phrases don’t have any legal meaning. 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.”Do you agree?
[Freedman] No, that’s an overblown comparison. What you have at worst is someone in DoD pushing beyond the bounds of statute in a situation in which there are ample means – public pressure, legislation, executive action – to fix the situation and no reason to doubt that any resulting correction will work. Part of the Nazi problem was abusing the existing legal framework but another major part of it was running their own armed forces independent of the official ones.
The President Does Have a Private ArmyWhile we understand professor Freedman’s last point, we would point out that the Joint Special Operations Command (JSOC) is not accountable to Congress … let alone the public:
JSOC operates outside the confines of the traditional military and even beyond what the CIA is able to do.More importantly for American citizens living on U.S. soil, the same unaccountable government agency which spies on all Americans also decides who gets assassinated by drones.
But it goes well beyond the war zones. In concert with the Executive’s new claims on extra-judicial assassinations via drone strikes, even if the target is an American citizen, JSOC goes around the world murdering suspects without the oversight of a judge or, god forbid, granting those unfortunate souls the right to defend themselves in court against secret, evidence-less government decrees about their guilt. As Pulitzer Prize winning journalist Seymour Hersh said at a speaking event in 2009:
Congress has no oversight of it. It’s an executive assassination ring essentially, and it’s been going on and on and on.***
There are legal restrictions on what the CIA can do in terms of covert operations. There has to be a finding, the president has to notify at least the “Gang of Eight” [leaders of the intelligence oversight committees] in Congress. JSOC doesn’t have to do any of that. There is very little accountability for their actions. What’s weird is that many in congress who’d be very sensitive to CIA operations almost treat JSOC as an entity that doesn’t have to submit to oversight. It’s almost like this is the president’s private army, we’ll let the president do what he needs to do.