Tag Archives: armed forces

Retired Navy SEAL Fears Loss of Liberty

EDITOR’S NOTE: Two years ago this week, I shared the piece below under a headline similar to the one above. In light of the continuing assaults on individual freedoms of Americans, I decided to share it again and hope you will, too.

New York Army National Guard Sgt. Adama Ilbouda, left, and NY Air National Guard Tech. Sgt. David Tayler distribute fuel at the Staten Island Armory during the Hurricane Sandy response, Nov. 3, 2012. U.S. Army photo by Sgt. 1st Class Jon Soucy.

New York Army National Guard Sgt. Adama Ilbouda, left, and NY Air National Guard Tech. Sgt. David Tayler distribute fuel at the Staten Island Armory during the Hurricane Sandy response, Nov. 3, 2012. U.S. Army photo by Sgt. 1st Class Jon Soucy.

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:

Executive Summary

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.

Public Comments

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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Thirty-Six Reasons Why You Should Read The Clapper Memo

Sometimes, people ask me why they should read my second nonfiction book, The Clapper Memo. For them, I offer the 36 reasons below:

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Click image above to order a copy of The Clapper Memo.

1. If you have ever had to submit to a polygraph examination in order to land or keep a job, you should read The Clapper Memo.

2. If you hold a security clearance and are subject to periodic polygraph examinations, you should read The Clapper Memo.

3. If you are now serving in any branch of the Armed Forces of the United States, you should read The Clapper Memo.

4. If you are a veteran who served in any branch of in the Armed Forces of the United States, you should read The Clapper Memo.

5. If you know someone who has served in any branch of the Armed Forces of the United States, you should read The Clapper Memo.

6. If you are considering joining the Armed Forces of the United States, you should read The Clapper Memo.

7. If you have ever been subjected to a polygraph examination as part of a criminal investigation, you should read The Clapper Memo.

8. If you expect to undergo a polygraph examination as part of a criminal investigation, you should read The Clapper Memo.

9. If you know someone who was convicted of a crime based upon the results of a polygraph examination, you should read The Clapper Memo.

10. If you have ever wondered about the validity of the polygraph, you should read The Clapper Memo.

11. If you are interested in learning about countermeasures that enable anyone to beat the polygraph, you should read The Clapper Memo.

12. If you are interested in reading details of what I learned about a non-polygraph credibility assessment technology for which no countermeasures exist, you should read The Clapper Memo.

13. If you are interested in what I learned during my exclusive interview with the man who interrogated Tariq Aziz and other members of Saddam Hussein’s infamous “Deck of Cards,” you should read The Clapper Memo.

14. If you are interested in what I learned during my exclusive interview with the former Army Green Beret who set the record for the most interrogations (500+) of enemy combatants in Iraq, you should read The Clapper Memo.

15. If you are interested in what I learned during my exclusive interview with a man who has used covert interrogation methods to help resolve more than 300 kidnapping cases in Mexico and send 450 criminals to prison, you should read The Clapper Memo.

16. If you are interested in what I learned by reading hundreds of email messages exchanged between top Justice Department officials and the academics they paid to conduct taxpayer-funded studies, you should read The Clapper Memo.

17. If you are interested in understanding one of the root causes of the deadly “Green-on-Blue” attacks against American warfighters in Afghanistan, you should read The Clapper Memo.

18. If you are interested in reading about apparent conflicts of interest and ethical lapses by some of our nation’s top intelligence officials, you should read The Clapper Memo.

The Clapper Memo Info & Endorsements

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19. If you are interested in reading an example of why ABC News’ Chief Investigative Correspondent Brian Ross has been labeled “America’s Wrongest Reporter,” you should read The Clapper Memo.

20. If you are interested in reading what I learned about how U.S. Government agencies made a mockery out of the Freedom of Information Act during the four years I spent conducting research for my book, you should read The Clapper Memo.

21. If you are interested in reading what I learned about how U.S. Government agencies dole out research dollars in the form of non-competitive grants to academics, you should read The Clapper Memo.

22. If you are interested in learning about a non-polygraph technology that, despite being embraced by more than 1,800 local and state law enforcement agencies is banned for use by Department of Defense personnel, you should read The Clapper Memo.

23. If you are interested in reading about how a top Department of Defense counterintelligence official used his position to promote his private investigation business, you should read The Clapper Memo.

24. If you are interested in reading about a non-polygraph technology proven to accurately detect stress in the human voice, you should read The Clapper Memo.

25. If you are interested in what senior interrogation officials at Guantanamo Bay had to say about the non-polygraph technology that was taken away from them after proving very successful, you should read The Clapper Memo.

26. If you are interested in what several members of our nation’s Special Forces community (i.e., Navy SEALs and Army Green Berets) had to say about the non-polygraph technology that was taken away from them after proving very successful, you should read The Clapper Memo.

27. If you think the United States should use the best technology available to interrogate detainees being held at Guantanamo Bay, you should read The Clapper Memo.

28. If you think the United States should use the best technology available to interrogate enemy combatants, you should read The Clapper Memo.

29. If you think the United States should use the best technology available to interrogate suspected terrorists, you should read The Clapper Memo.

30. If you think the United States should use the best technology available to interrogate criminal suspects, you should read The Clapper Memo.

31. If you think the United States should stop relying upon century-old polygraph technology, you should read The Clapper Memo.

32. If you find it difficult to believe members of the American Polygraph Association are objective in their criticism of non-polygraph technology, you should read The Clapper Memo.

33. If you want to read the bloody details of a technological “turf war” that’s been raging quietly for more than 40 years between backers of the polygraph and those behind competing technologies, you should read The Clapper Memo.

34. If you trust people who put their lives on the line for their fellow citizens more than you trust academics, bureaucrats and politicians, you should read The Clapper Memo.

35. If you appreciate thorough investigative reporting that relies upon one-on-one interviews, thorough research and thousands of documents obtained via the Freedom of Information Act and various state “sunshine” laws, you should read The Clapper Memo.

36. If you want to find out why the face of Director of National Intelligence James R. Clapper Jr., our nation’s top intelligence official, appears on the cover of this book and why his name appears in the title of this book, you should read The Clapper Memo.

To find out what all of the fuss is about, order a copy of The Clapper Memo today!

UPDATE 4/19/2015 at 1:24 p.m. Central: Check out the limited-time free-books offer here.

For links to other articles of interest as well as photos and commentary, join me on Facebook and Twitter.  Please show your support by buying my books and encouraging your friends and loved ones to do the same.  To learn how to order signed copies, click here. Thanks in advance!

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Sexual Assault Problem in Military Exaggerated by Journalists

Read Jill Filipovic’s latest Esquire article about sexual assault in the U.S. military, and you might conclude that a woman in uniform can’t take two steps on a military installation without being sexually assaulted. And, of course, you would be wrong.

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Click image above to link to article.

Michael Waddington, a military defense lawyer and former judge advocate in the Army, told Military.com two years ago he estimated that ninety percent of the sexual assault cases taken to court-martial would be thrown out of civilian courts due to lack of evidence. And he’s not the only person to offer views that run counter to those being pushed on the American public by journalists like Filipovic and left-leaning politicians like Sen. Claire McCaskill (D-MO).

Washington Times’ journalist Rowan Scarborough offered several noteworthy findings in his April 6 article, Doubts on military’s sex assault stats as numbers far exceed those for the U.S. Among them are those shown in the paragraph below:

Critics of the Pentagon survey say its 20 percent response rate for 2012 may include a disproportionate number of those who are motivated to participate. This might produce a higher number because the response did not capture a true scientific sample of the total female active-duty force, they say.

Likewise, Lindsay L. Rodman authored a well-written piece, Fostering Constructive Dialogue on Military Sexual Assault, that was published in Joint Force Quarterly 69 by National Defense University Press. The abstract appears below:

Click image to link to article.

Click image to link to article.

Unrealistically high estimates by DOD officials of sexual assaults in the military, along with hazy definitions and methodologies, have fueled the public discourse on this emotional issue, making it unnecessarily hysterical and obscuring the military’s search for solutions. While the military is expected to maintain a higher standard than society at large, the experience of colleges and universities, whose demographic is roughly the same age as the military’s, should be drawn on. Moreover, an understanding of the strengths and weaknesses of criminal law will help draw the debate about the military sexual assault problem away from blaming commanders because they are not always obtaining convictions. The educational and military communities should combine their efforts to find a more holistic solution.

Is sexual assault a real problem in the Armed Forces? Of course, it is, just like it is in society at large. And those actually guilty of these crimes must be punished. Unfortunately, it is not only the guilty who are being swept up by the Defense Department’s out-of-control dragnet.

The mere mention of a man’s name in the same breath as a sexual assault allegation — whether or not a shred of evidence exists — seems enough to convict a serviceman of a sex crime these days. During “He said, she said” court-martial trials, everyone involved — convening authorities, judges and members of the court-martial panel — faces extreme pressure to convict, regardless of whether any physical evidence or eyewitnesses exist to prove guilt. Those who don’t follow the party line face dire consequences. For proof, see this article and this article.

To learn about a military justice case which resulted in an elite Green Beret being convicted and sentenced to eight years in prison based solely on the testimony of his accuser, read Three Days In August.

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New York Times best selling author Richard Miniter described this way:

“Well-written and thoroughly researched, Three Days In August paints a convincing portrait of a military justice process that appears to have lacked one essential element – justice.”

Click here to order a copy of my book, Three Days in August.

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