This is deeply disturbing.
About three months ago, quietly and without anyone noticing, the Obama regime’s Department of Defense (DoD) gave itself the authority to use U.S. military troops to police America without permission from the President of the United States (POTUS) or state or local government.
The U.S. military is prohibited from intervening in domestic affairs, a prohibition codified in two laws:
- The Insurrection Act of 1807 is the set of laws that govern the ability of POTUS to deploy troops within the United States to put down lawlessness, insurrection and rebellion. The laws are chiefly contained in 10 U.S.C. § 331 – 10 U.S.C. § 335. The general aim is to limit Presidential power as much as possible, relying on state and local governments for initial response in the event of insurrection.
- The Posse Comitatus Act (PCA), a U.S. federal law (18 U.S.C. § 1385) passed after the end of Reconstruction on June 18, 1878, and updated in 1981 to refer specifically to the U.S. Armed Forces, makes unauthorized deployment of federal troops a punishable offense, thereby giving teeth to the Insurrection Act. The PCA does not apply to the U.S. Coast Guard (because the Coast Guard operates under the authority of the Dept. of Homeland Security instead of the Pentagon), nor does the PCA apply to the National Guard (because the National Guard is under state authority and can act in a law enforcement capacity within its home state or in an adjacent state if invited by that state’s governor).
The only exception to the deployment of U.S. military troops within the United States is provided under Section 4 of Article IV of the U.S. Constitution, which says: “and [the United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” In other words, Article IV requires the U.S. government to protect each state from invasion and, upon the application of the state legislature (or executive, if the legislature cannot be convened), from domestic violence.
Together, these laws limit executive authority over domestic military action.
About three months ago, however, as reported by Jed Morey for the Long Island Press, the Department of Defense (DoD) unilaterally made a few subtle changes to a regulation in the U.S. Code titled “Defense Support of Civilian Law Enforcement Agencies” and in so doing, granted itself the authority to police America’s streets without obtaining prior presidential, state, or local consent, thereby upending a precedent that has been in place for more than two centuries.
Pursuant to those changes, the DoD issued a 42-page Department of Defense Instruction (DODI), No. 3025.21, February 27, 2013. (Click here or here for the PDF version of DODI.)
DODI no. 3025.21′s subject is “Defense Support of Civilian Law Enforcement Agencies.” Its purpose, “In accordance with the authority in DoD Directive (DoDD) 5111.1 and Deputy Secretary of Defense Memorandum (References (a) and (b)), is to establish “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, including the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any territory or possession of the United States or any other political subdivision thereof in accordance with DoDD 3025.18 (Reference (c)).
The most disturbing part of the DODI no. 3025.21 begins on page 15: “Enclosure 3: Participation of DoD Personnel in Civilian Law Enforcement Activities.”
On page 16, under Section 1b’s “Permissible Direct Assistance” is a subsection (3), which states:
When permitted under emergency authority in accordance with Reference (c), 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:
(a) 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,
(b) When duly constituted Federal, 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 Federal military forces, is authorized when necessary to protect Federal property or functions.
Jed Morey of the Long Island Press cites Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, who calls the DODI rule, “a wanton power grab by the military,” which is “quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”
Afran points out that Section 1b(3) of the DODI not only fails to define what circumstances would be so severe that the president’s authorization is “impossible,” it also grants full presidential authority to “Federal military commanders” who have the same power to authorize military force as the president when the latter’s authorization is “impossible” — whatever that means.
As Afran puts it, “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.”
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.”
Afran reminds us that, unlike the military, “the police operate under civilian control. 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.” Afran is considering amending his NDAA complaint currently in front of the court to include this regulatory change.
Jed Morey concludes: “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. [...] 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.”
H/t Washington’s Blog
~Eowyn
