Tag Archives: Navy SEAL

CURTAIN CALL: Report Marks End of 10-Year Online Journey; Books Remain on Sale at Amazon With More to Follow

In contrast to my 2014 year-in-review piece in which I lamented the disappearance of more than 5,000 articles written and published on my site since October 2006, I’m sharing no news this year about suspected cyberattacks and other forms of online skulduggery. Instead, after writing and publishing more than 300 additional articles during the past 18 months, it’s time to say goodbye. Yes, this is the final curtain call on my 10-year career as an online purveyor of opinions, investigative reports and an occasional dose of humor.

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

Why the curtain call? Because I recently accepted a position with a Fortune 500 company and, due to time constraints, am no longer able to continue this endeavor. I must say, however, that it’s been an interesting ride since the days when my website was known as “BMW: The Ultimate Blogging Machine” and ranked #82 among the world’s Top 100 Conservative Blogs.

Original caricature by David Donar.

My cartoonist friend, David Donar, drew this for my use as the “Ultimate Blogging Machine.”

As the virtual fabric of this curtain call, I’d like to challenge other journalists — including those “citizen” journalists so often looked down upon by many of my college journalism-school brethren — to pick up the torch and keep the sunlight of disinfectant shining on a handful of topics (below) that deserve continued attention:

• THE PENTAGON’S SEXUAL ASSAULT WITCH HUNT

Click on graphic above to order a copy of Three Days In August by Bob McCarty.

Click on graphic above to order a copy of Three Days In August by Bob McCarty.

Since the October 2011 release of my first nonfiction book, Three Days In August: A U.S. Special Forces Soldier’s Fight For Military Justice, I’ve been contacted by hundreds of individuals in search of help after they or a loved one found themselves falsely accused of crimes — usually involving members of the opposite sex — and, too often, convicted of those crimes in the military justice system. The case I’ve followed most closely since late August involves Army Maj. Christian “Kit” Martin and will be, if I can possibly make it happen, the subject of my next book. It’s a big “IF” due to the career change, but I hope to make it happen nonetheless. My 49-minute Skype interview with Major Martin offers an overview of the people and allegations involved in this case prior to multiple dead bodies being discovered only a week ahead of the date on which the major’s court-martial was set to begin. It has now been pushed back to an as-yet-undetermined date in March 2016.

• INTERROGATION TECHNOLOGY

Click on image above to order a copy of The Clapper Memo by Bob McCarty.

Click on image above to order a copy of The Clapper Memo by Bob McCarty.

In April 2008, I wrote a short piece about the Pentagon’s plan to deploy portable polygraph technology to war zones, purportedly for use in interrogating terror suspects and others whose information might be valuable to our war effort. Twelve months later, I asked Pentagon officials a handful of questions about how well the portable polygraphs had worked during their first year of use. Unsatisfied with the answers I received which seemed to indicate the portable polygraph technology had failed miserably, I launched an investigation that would last more than four years and result in learning about an extremely accurate and effective interrogation technology that Department of Defense leaders had yanked from the “toolkits” of our warfighters.

Along the way, I interviewed men who had used that technology with much success. Among them, Defense Intelligence Agency contractors who interrogated members of Saddam Hussein’s “Deck of Cards” as well as al-Qaeda and Taliban terror suspects and Army Green Berets and Navy SEALs who had used that technology with much success on the battlefield. In addition, I obtained never-before-published copies of letters and reports written by men who had used that technology with much success to interrogate detainees at Guantanamo Bay during the early days of the Global War On Terror. In May 2013, I shared the results of my investigation in the form of my second nonfiction book, The Clapper Memo.

• The Oklahoma City Bombing Trial in Salt Lake City

Though many Americans don’t even realize it’s taking place, I’ve been writing about an Oklahoma City Bombing trial that’s been slogging its way through a federal court in Salt Lake City as part of a 19-year (so far) search for the truth. My most recent piece about the trial appeared under the July 1 headline, Pre-Blast Videotapes FBI Claims ‘Might Have Been Misfiled’ Remain at Center of Ongoing Oklahoma City Bombing Trial. Other recent pieces covered topics such as allegations of FBI witness tampering and the judge’s threat to slap FBI agents with contempt of court charges. In the interest of time and understanding what’s at stake, I recommend you watch this chilling one-hour video before you read my other posts about the Oklahoma City Bombing Trial.

Radiation Contamination in the St. Louis Area

In January 2012, I wrote my first report about radioactive waste issues in the St. Louis area. It had to do with a report about cancer concerns related to the Weldon Spring Site in St. Charles County, Mo., the county just west and northwest of St. Louis County (Mo.). Three years later, I offered an update under the headline, New Weldon Spring Cancer Report Due Out Early 2016. Sadly, state health department officials have refused to provide answers to my latest queries. As a result, the final word remains to be written on this subject.

There are, of course, many more topics I’d like to highlight, but I’ll let you peruse them via the drop-down menu of categories located just below the “SEARCH” block in the right sidebar.

Before closing, allow me to suggest you show any appreciation you might have for my decade of work by purchasing copies of my books as Christmas gifts for the readers in your life:

• Chronicling the life story and wrongful prosecution of an elite Army Green Beret, Three Days In August received endorsements from Pamela Gellar of Atlas Shrugs and Richard Miniter, New York Times’ best selling author and investigative reporter. For more details about the book, visit http://ThreeDaysInAugust.com.

• To read the list of high-power endorsements of my second nonfiction book, The Clapper Memo, visit http://TheClapperMemo.com.

Click on image above to order book.

Click on image above to order book.

• For pure entertainment value, I recommend you read about FBI Special Agent Joseph L. Wilson and his effort to solve the mystery behind the deaths of thousands of Americans during the Fourth of July weekend. The biggest challenge of his law enforcement career, the investigation becomes personal after Wilson realizes he shares one thing in common with those who died: The National Bet.

To learn how to order signed copies, click here.

Thanks for everything and Merry Christmas to you and yours! It’s been a great ride!

FYI: Because I might write a few more pieces before the end of the year, I’ll leave this as a “Featured Post” until then. And, oh yes, I will keep posting occasional thoughts on my Facebook page.

Bob McCarty Weekly Recap: Nov. 8-14, 2015

The past week was full of news about a multitude of events in which many of the participants attached themselves to their own definition of justice. In my weekly recap below, I offer a review of those events and how I followed them Nov. 8-14, 2015.

Mizzou Bowl-Eligible?

If resignations count as victories, does that mean the Missouri Tigers are bowl-eligible? Click on image above to read about political correctness on campus.

Sunday, Nov. 8

On my website, BobMcCarty.com, I shared nothing new. I did, however, share a few things on my Facebook page.

The week began with good news and bad news, depending upon who your favorite college football team is. For me, good news surfaced when my two favorite football teams, Oklahoma State and Oklahoma in that order, were ranked #8 and #12, respectively, in the college football playoff rankings for Week 11. For many of my neighbors, bad news surfaced when football players at the University of Missouri went on strike and prompted me — and many others in cyberspace — to ask, “Haven’t the Missouri Tigers been on strike all season? Ahem, 4-5?”

I also shared a few political points, including one aimed at Eric Greitens, a former Navy SEAL and Rhodes Scholar who’s running for governor as a Democrat Republican in Missouri. It seems he not only aligns with Al Gore and other liberals in promoting climate change propaganda, but he’s also a big fan of global governance. As a result, I’m siding with a trustworthy Marine, John Brunner, to be the Show-Me State’s next Republican governor.

On a more personal note, Sunday marked Day 100 of the fitness regimen I started Aug. 1, and I reported the loss of 17 pounds toward my goal of 30 that will bring me to the “ultimate fighting weight” at which I graduated from Air Force Officer Training School more than 30 years ago.

Monday, Nov. 9

My first article of the week appeared Monday under the headline, GREEN BERET: ‘The next thing you know, it felt like someone put lighter fluid on me and caught me on fire.’ An excerpt from my first nonfiction book, Three Days In August, it casts a light on details of an Army Special Forces Soldier’s brush with death following his conviction on bogus sexual assault charges.

Kelly Stewart returns from a mission in Iraq.

Kelly Stewart returns from a mission in Iraq.

Among the day’s updates on my Facebook page, I pointed to news about a Jordanian policeman waging an “insider attack” that killed two Americans as a stark reminder of some of the subject matter I covered in my second nonfiction book, The Clapper Memo. In addition, I dubbed The University of Missouri at Columbia “Ferguson West” as protests continued at the school with the football team that’s 4-5.

I also wondered, after reading an article about the Pentagon retracting a report on male-on-male sexual trauma, how long it will take before Defense Department leaders come clean and bring an end to the Pentagon’s insane efforts to convict men on sexual assault charges regardless of whether such assaults took place.

Tuesday, Nov. 10

My second article appeared Tuesday under the headline, Something’s Seriously Wrong When Military Justice System Sides With Psychics, Convicted Felons and Porn Queens. In it, I pointed readers to details about three cases that began with sexual assault allegations made against military men by three unique women: a self-described psychic, a convicted felon and a convicted felon. I couldn’t make this stuff up if I tried!

My third article appeared under the headline, Someone Else at Mizzou Should Resign or Be Fired ASAP, and actually produced results, though I’m not about to claim full credit.

Among the day’s updates on my Facebook page was one that featured a list of questions that came to mind after I read an article in The New York Times about the protests at Mizzou:

• What will happen when a journalist calls the campus police at the University of Missouri at Columbia to report students are trampling upon his freedom of the press?

• Will the campus police come to the aide of the journalist?

• What if the police don’t come to the aide of the journalist? That will make for some interesting reporting. It will also lead to some interesting explanations by the campus police.

• How long will it take for Reverend Al Sharpton and his gang of race hustlers to arrive on campus and begin stoking the fires of discontent?

• MOST IMPORTANT: Will Mizzou football fans stage a mass boycott of the team’s next home game or will it simply look as if they have taken the drastic step when so many stadium seats appear empty as the Tigers trudge through another forgettable season? So many questions. So little time.

Also on Facebook Tuesday, I managed to photograph members of an anarchist group appearing to break the law at my favorite St. Louis-area lake, and I asked a tongue-in-cheek question: Does notching two same-day victories (i.e., getting both the university system president and the chancellor to resign their positions), make the previously 4-5 University of Missouri Tigers football team bowl eligible? Inquiring minds want to know.

Wednesday, Nov. 11

On Veterans Day, I shared my fourth article under the headline, WW II Soldier About Brothers: ‘We All Came Home Alive!’ The piece includes some of my father’s reflections about his personal experiences during World War II.

Click on the image above to read my pieces about Veterans Day.

Click on the image above of my dad in his World War II Army uniform to read my pieces about Veterans Day.

I also shared two related pieces, Story of Four Not-So-Famous Brothers Inspires and V-MAIL: World War II Soldier Writes to Parents Back Home, on my Facebook page Wednesday.

And there was more:

• Related to the student protests at Mizzou, I shared a link to the abstract of the doctoral dissertation, “It’s ‘a good thing’: The commodification of femininity, affluence, and whiteness in the Martha Stewart phenomenon,” completed by Dr. Melissa Click at the University of Massachusetts-Amherst six years before she made headlines for all the wrong reasons at Mizzou;

• I observed how the folks at the state’s largest university had scheduled Mizzou Transgender Day of Remembrance on Veterans Day; and

• I reminded folks of how at least four Republican hopefuls are ineligible to serve as president, according to a man I trust who served twice as a member of the Electoral College.

Thursday, Nov. 12

My fifth article of the week, published Thursday, was more crass commercial message than news, because I asked people to do two things: 1) buy my books; and, afterward, 2) copy Steve Jennings’ example and send me photos of themselves holding copies of my books. Soon after, Ivan Nikolov took the bull by the horns and sent me a photo of himself holding up his copy of The Clapper Memo. Thanks, friend!

Facebook friend Ivan Nikolov holds a copy of The Clapper Memo.

Facebook friend Ivan Nikolov holds a copy of my second nonfiction book, The Clapper Memo.

On my Facebook page Thursday, I shared an excerpt from my first crime-fiction novel, The National Bet, after teasing it with the question, “Ever imagine how horrible it would be if President Obama hijacked your retirement savings?” I also mentioned speaking to an Air Force officer who found himself in the midst of the sexual assault scandal at the Air Force’s Basic Military Training Program and is working on a book about it that I can’t wait to read.

Finally, I shared a priceless video (above) that features Fox Business Channel‘s Neil Cavuto interviewing Keely Mullen, Million Student March National Organizer, about her group’s demand that rich people pay for everyone else’s college costs, that all student loan debt is cancelled and that the minimum wage be raised to $15 an hour for workers on college campuses. After watching it, you’ll understand why I prefaced it with the comment, “I thought I heard the wind whistling through her head, ear to ear, as she spoke.”

Friday, Nov. 13

On Friday, my final article of the week offered another excerpt from my book, Three Days In August. Appearing under the headline, TDIA Book Excerpt: ‘I Wasn’t Going To Be That Dog,’ it is much like the excerpt I shared Monday’ except for that it describes what went through the mind of the elite Green Beret, whose life is the subject of the book, after he was railroaded by the politically-correct military justice system.

Among the items on my Facebook page Friday, I saluted a Medal of Honor recipient, noted the announcement about Gary Pinkel’s plan to retire as the U of Missouri’s football coach (more bad news for Tigers fans) and commented on a variety of other matters, the most important among them being the terror attacks in Paris.

Another five-star review of Three Days In August appeared on Amazon Friday, but I didn’t come across it until today; hence, this is the first mention I’ve made of it. Regardless, the review (below) is a good one and appears to have been written by an attorney:

I had a court-martial at Fort Benning where the Military Judge was the same judge who was presided over US v. Stewart. Both my client and I bought this book to obtain some G-2 on him. It is a really quick read and an informative look on the evolution of military justice in regards to sexual assault prosecutions, which has only grown worse. Bob McCarty has a keen knack for writing about military justice, and this book is by no means dull, particularly if you are a military justice practitioner, or you would like some insight to what it’s like to be sitting in a chair next to your TDS counsel if you are thrown into the military justice machine.

FYI: TDS is the Army acronym for Trial Defense Services (i.e., uniform-wearing defense attorneys).

Thanks in advance for reading and sharing the articles above and those to follow. 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. Until next time.

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

CODE RED: No Easy Day for Green Beret on Witness Stand

EDITOR’S NOTE: The article below first appeared on this site Aug. 24, 2012. Almost two years later, it vanished — along with nearly 5,000 others written and published since October 2006 — as detailed in a post eight months ago. Today, I rescued it from where it appears on an alternate site in order to share it below with only minor modifications. Please read and share.

Two Good Books

No Easy Day is the title of a book by Matt Bissonnette (alias “Mark Owen”), a former Navy SEAL-turned author of an unauthorized account of the 2011 Navy SEALs raid on Osama bin Laden’s compound in Pakistan. The three-word title could also describe the time former Army Green Beret Sgt. 1st Class Kelly A. Stewart spent testifying during his court-martial in August 2009.

According to The Daily Beast, Admiral William McRaven used a letter to members of his U.S. Special Operations Command to issue a veiled warning to Bissonnette. Then USSOC commander, he wrote the following:

“Every member of the special-operations community with a security clearance signed a non-disclosure agreement that was binding during and after service in the military. If the U.S. Special Operations Command finds that an active-duty, retired or former service member violated that agreement and that exposure of information was detrimental to the safety of U.S. forces, then we will pursue every option available to hold members accountable, including criminal prosecution where appropriate.”

While Bissonnette became the subject of an NCIS investigation, he has not, to my knowledge, faced any formal charges. Instead, he was ordered to pay $4.5 million to the government for publishing the book without first obtaining clearance.

Conversely, Stewart was sentenced to eight years in prison following a kangaroo-court military trial that followed false allegations he had raped and kidnapped a then-28-year-old German woman. During that trial, he refused to violate the terms of his nondisclosure agreement — even while facing a possible life sentence in a military courtroom in Germany.

The government’s cross-examination of Stewart on Day Two of his court-martial began with the trial counsel asking him questions about friendships he had established in Germany since his August 2008 arrival in the Stuttgart area. Before long, however, it turned into a somewhat-heated exchange—something Stewart later described as being similar to a courtroom scene from the movie, A Few Good Men.

In that scene, a Marine colonel (Jack Nicholson) on the witness stand was accused by a young Navy defense attorney (Tom Cruise) of ordering a “Code Red”—an illegal beating of a Marine by members of his platoon that resulted in his death and a subsequent cover-up. Several minutes of heated exchange between the officers resulted in the colonel finally losing his cool and admitting he ordered the attack.

“Every schooling and every assessment that the military has done on me to assess that I’m stable,” Stewart said, “and that I’m trusted with national security issues and that I can be trusted to make the right, conscious decisions, now is being turned around (so that) every one of those (are) predatory skills that I used to go after Miss Heinrich.”

Still, the trial counsel tried to paint Stewart, a man who had risen into the top one percent of the Army, as a master manipulator whose SF training helped him know how to control a person like his accuser, Greta J. Heinrich*.

After seeing his sentence reduced from eight to three years, Stewart was released from prison March 31, 2011. Four years later — after he had spent his life savings on legal fees and lost all pay and allowances as a result of the trial outcome — he received a letter from the Department of the Treasury and was told he owes the Department of Defense more than $35,000 as repayment for, among other things, a reenlistment bonus he received prior to being court-martialed. See details here.

You can learn more about Stewart’s case here, then read all of the blow-by-blow details on the pages of my first nonfiction book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight for Military Justice. It’s available in paperback and eBook at Amazon.com.

*This is not the real name of the accuser, and it does not appear in the book.

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!

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

Have You Ever Wondered Why DoD Relies on the Polygraph?

EDITOR’S NOTE: The article below first appeared on this site Aug. 7, 2013. Several months later, it vanished — along with nearly 5,000 others written and published since October 2006 — as detailed in a post eight months ago. Today, I rescued it from where it appears on an alternate site in order to share it below with only minor modifications. Please read and share.

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

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

You’ve probably never wondered why the Department of Defense relies so heavily on the polygraph.  Likewise, you’ve probably never thought about how polygraph technology has maintained its place as the only DoD-approved credibility assessment technology.  After reading the details in my latest nonfiction book, The Clapper Memo, you’ll know why and how.

On no fewer than three occasions since 2004, top DoD officials — including Director of National Intelligence James R. Clapper while he was serving as Under Secretary of Defense for Intelligence in 2007 — have declared the polygraph to be the only such technology approved for use by DoD personnel.  Though many on the front lines, including elite U.S. Special Operations personnel I interviewed for the book, ignored the DoD declarations for as long as they possibly could (see Sample Chapter for details), the Pentagon’s polygraph-only stance remains in place today and is having an often-deadly impact in the form of “Green-on-Blue” attacks against American and Coalition Forces personnel in Afghanistan.

Part of the blame for DoD’s polygraph-only stance lies in the fact that DoD officials withheld critical information from members of the U.S. Senate Armed Services Committee when they were conducting an inquiry into the treatment of detainees at Guantanamo Bay and at other detention facilities in Iraq (i.e., Abu Ghraib, Camp Cropper and Camp Bucca) in 2008. That inquiry resulted in the publication of an unclassified 263-page report, “INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY,” dated November 20, 2008.

That wasn’t all they kept to themselves.  DoD officials also withheld critical information about an Air Force talking paper on Relevant/Irrelevant Screening Tests (R/IST) conducted on detainees in the Iraqi theater of operations from Aug. 1, 2004, to Oct. 15, 2006.

Notable among the 50-page document’s results, found after conducting polygraph tests on 768 detainees, was the finding that “detainee personnel are just as likely to have committed the suspected act as not.” That finding stemmed from the fact that 47 percent of the tests yielded “No Deception Indicated” results while 46 percent yielded “Deception Indicated” and seven percent “No Opinion.”

In addition to the fact the tests yielded results showing polygraph no more effective than flipping a coin, a quarter of the polygraph examiners surveyed pointed out problems posed by language barriers.

“The Arabic language itself presents an obstacle due to the different translations and dialect and at times the wrong translation of the question was noted by other interpreters,” one examiner said.

“Many interpreters were not fluent in the written Arabic language, precluding them being used by polygraph,” another reported. “They could not translate questions from English to Arabic and back again.”

“I was fortunate to have had motivated interpreters,” a third responded.  “Without them we can’t do the job (without language/culture knowledge).”

A fourth examiner reported, “there was definitely a difference in the level of interpreter experience. Some knew the language and some had a hard time.”

Click image above to order book.

Click image above to order book.

In The Clapper Memo, the 268-page product of an exhaustive four-year investigation, I highlight the fact that a non-polygraph technology was used at GITMO more than 90 times and achieved a success rate — defined as developing new, previously-unknown intelligence which was independently confirmed or confirmed existing information that otherwise could not be verified — of 92 percent despite the fact most exams were conducted using interpreters.

Now, I ask again:  Have you ever wondered how polygraph technology has maintained its position as the only Department of Defense-approved credibility assessment technology?

In their endorsement of The Clapper Memo, Gold Star parents Billy and Karen Vaughn used words such as “dirty little secrets of politics and greed” and “filthy backroom deals” to describe events and actions that have enabled the polygraph to remain DoD’s credibility assessment technology of choice.  The Vaughns lost their son, U.S. Navy SEAL Aaron Carson Vaughn, two years and one day ago in a helicopter crash in Afghanistan that is the subject of a soon-to-be-published book, BETRAYED: The Shocking True Story of Extortion 17 as told by a Navy SEAL’s Father, co-authored by Billy.

Retired U.S. Navy SEAL Capt. Larry W. Bailey, co-founder of Special Operations Speaks and former commander of the U.S. Navy SEALs Basic Underwater Demoliton/SEALs (“BUD/S”) Training Program, describes what I uncovered in The Clapper Memo as “an unconscionable cover-up.”

Others have endorsed it, too, but you should judge for yourself!  Order a copy of The Clapper Memo today!

SEE ALSO:  Horrific Tragedy Ensues After AC-130 Gunship Crew Denied Opportunity to Engage Afghan ‘Squirters’ in Tangi Valley.

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!

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

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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