On May 13, a “Final Rule” on “Defense Support of Civilian Law Enforcement Agencies,” according to the Office of the Secretary of Defense, took effect. I became aware of it today after a retired U.S. Navy SEAL friend sent me a note containing this link to a Government Printing Office web page on which the rule was published online April 12. His note appears below:
“I had to contact my lawyer to translate this,” he wrote, “but in a nutshell, our liberty is shrinking faster than most folks think and this regime is setting itself up to subjugate us all… Please read and forward to anyone who you think gives a shit about losing this country to socialists.”
Anytime someone like this, a guy who’s “been there and done that,” uses this kind of pointed language to describe something he finds troubling, I tend to pay attention and take his advice.
The main portions of the published language of this Final Rule appear below, modified only slightly in format and accompanied by the language of two published comments as well as DoD’s responses to those comments:
I. Purpose of the Regulatory Action
a. The purpose of this rule is to implement the statutory requirements for the Department of Defense support of civilian law enforcement agencies. This rule provides specific policy direction and assigns responsibilities to Department of Defense key individuals providing support to Federal, State, Tribal, and local law enforcement agencies, including response 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.
b. The legal authority for this rule is 10 U.S.C. 375, “Restriction on participation by Military Personnel.”
II. Summary of the Major Provisions of the Rule
a. Support in Accordance With the Posse Comitatus Act — The primary restriction on DoD participation in civilian law enforcement activities is the Posse Comitatus Act. It 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. Section 182.6 (a) describes in detail the assistance that the Department of Defense may and may not provide civilian law enforcement agencies.
b. Support During Civil Disturbances — The President is authorized by the Constitution and laws of the United States to employ the Armed Forces of the United States to suppress insurrections, rebellions, and domestic violence under various conditions and circumstances. Planning and preparedness by the Federal Government, including the Department of Defense, for civil disturbances is important due to the potential severity of the consequences of such events for the Nation and the population. The employment of Federal military forces to control civil disturbances shall only occur in a specified civil jurisdiction under specific circumstances as authorized by the President, normally through issuance of an Executive order or other Presidential directive authorizing and directing the Secretary of Defense to provide for the restoration of law and order in a specific State or locality.
III. Costs and Benefits
This rule does not have a significant effect on the economy. However, the Department of Defense may provide support to civilian law enforcement entities on either a reimbursable or non-reimbursable basis depending on the authority under which the support is provided. The benefit to the elements of the Department of Defense providing such support may include a benefit that is substantially equivalent to that derived from military operations or training. Additionally, the recipient civilian law enforcement agencies benefit from the Department of Defense’s substantial capabilities when those capabilities are not needed for Department of Defense missions.
On Tuesday, December 28, 2010, the Department of Defense published a proposed rule (75 FR 81547) requesting public comment. Two comments were received. Below are the comments and responses.
Comment #1. Comment on Proposed Rule: 32 CFR Part 182 DOD-2009-OS-0038. The definition given in Sec. 182.3 of “civil disturbance” is overly broad and encompasses any number of situations that the Legislature and DOD entities might not have in mind at the time of drafting this rule. It is my recommendation that specific reference be made to DOD Directive 3025.12 within Sec. 182.3 to allay any possible misreading of 32 CFR part 182. If Posse Comitatus is going to be suspended in times other than those specifically authorized by the Constitution, Congress must act to make the language clear and unambiguous. In addition, the definition of “Emergency Authority” in Sec. 182.3 and DOD 3025.12 is unclear. In what sort of a civil emergency can prior Presidential authorization be “impossible” to obtain. These two definitions read together give an extraordinary degree of latitude to DOD entities within the borders of the United States. Finally, I question whether a rule is the appropriate venue for an expansion of this nature. Perhaps this is a task best left to congress for full public scrutiny and debate. Should this really be a task left to the DOD to make a rule essentially gutting 10 U.S.C.A. 331-4? Despite the fact that this rule has received certification by the Office of Information and Regulatory Affairs (OIRA), I seriously question whether there are not significant implications for its enactment under Executive Order 13132 (Federalism). If it is left to the DOD to determine when force is necessary, absent a Presidential order and absent the cooperation of local authorities, Posse Comitatus is for all intents and purposes at an end.
DoD Response: No action required. This instruction cancels DoD Directive 3025.12. “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.”
Comment #2. The Posse Comitatus Act, 18 U.S.C. 1385, clearly applies to National Guard troops which have been federalized and are deployed under Title 10 authority within the United States. However, the courts have not definitively ruled on whether the Act applies to troops deployed under Title 32, and generally it is assumed that the act does not apply under those circumstances. If Sec. 182.4(b) of this rule is meant to clearly state that the National Guard is, in fact, to act in compliance with the restrictions of the Posse Comitatus Act while in support of civilian law enforcement officials while deployed under Title 32 authority as well as Title 10, then this is a welcome clarification of DoD policy.
DoD Response: No action required. National Guard forces operating under Title 32 are under State control, and the Posse Comitatus Act would not apply. State law governs what actions State officials and State National Guard forces may take.
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Bob McCarty is the author of Three Days In August (Oct ’11) and THE CLAPPER MEMO (May ’13). To learn more about either book or to place an order, click on the graphic above.