Pentagon Unilaterally Grants Itself Authority
Over ‘Civil Disturbances’
U.S. Troops in Afghanistan (Photo: Senior Airman Sean Martin, U.S. Air Force)
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.”
...
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.”
...
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.”
...
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.
....
As far as what might qualify as a civil disturbance, Afran notes, “In
the Sixties all of the Vietnam protests would meet this description. We
saw Kent State. This would legalize Kent State.”
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, “The widening
use of militarized police units effectively nullifies the Posse
Comitatus Act of 1878.”
...
“Remember, the police operate under civilian control,” he says. “They
are used to thinking in a civilian way so the comparison that they may
have some assault weapons doesn’t change this in any way. And they can
be removed from power. You can’t remove the military from power.”
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.
“This is where journalism comes in,” says Freedman. “Calling
attention to an unauthorized power grab in the hope that it embarrasses
the administration.”
Afran is considering amending his NDAA complaint currently in front of the court to include this regulatory change.
As we witnessed during the Boston bombing manhunt, it’s already
difficult to discern between military and police. In the future it might
be impossible, because there may be no difference.
http://www.longislandpress.com/2013/05/14/u-s-military-power-grab-goes-into-effect/
in the reach of our own hands.