by alex marthews and christina delgado
As of late October 2024, worries about a redraft of DOD Directive 5240.01 have gone viral on social media.
The Directive deals with military intelligence assistance to civil authorities in non-crisis situations. This is a topic with a lot of layers, so it seemed worthwhile to provide guidance on what elements of this concern to take seriously.
- What Kinds Of Assistance Were Already Allowed?
This Directive, in laying out in detail how military intelligence would assist civil authorities such as the police, demonstrates that their existing assistance is substantial and ongoing.
Many Americans may not have been aware that the Reagan-era EO 12,333 has permitted such assistance pretty freely for decades (as well as allowing massive surveillance of other kinds). In relevant part, EO 12,333 reads:
2.6 Assistance to Law Enforcement and other Civil Authorities.
Elements of the Intelligence Community are authorized to:
(a) Cooperate with appropriate law enforcement agencies for the purpose of protecting the employees, information, property, and facilities of any element of the Intelligence Community;
(b) Unless otherwise precluded by law or this Order, participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities;
(c) Provide specialized equipment, technical knowledge, or assistance of expert personnel for use by any department or agency, or when lives are endangered, to support local law enforcement agencies. Provision of assistance by expert personnel shall be approved in each case by the general counsel of the providing element or department; and
(d) Render any other assistance and cooperation to law enforcement or other civil authorities not precluded by applicable law.
The “applicable law” that might “preclude” such activities, in turn, is the “Posse Comitatus Act” (“PCA”), which generally prevents the President from using the military as domestic police. The PCA does not cover the National Guard, which generally reports to state governors. If a governor asks the President for military assistance in suppressing an insurrection, the President may still deploy the military to that state, despite the PCA, under the vague terms of the even older Insurrection Act, and there are few formal restrictions on that power.
There is nothing explicit in either the PCA or the Insurrection Act that prohibits DOD from “assisting” local law enforcement. As you can see from the broad language of EO 12,333 above, it’s pretty hard to discern any kind of “assistance” the PCA might actually bar, other than for the military to directly take over a local police department’s law enforcement functions, without any request on that local police department’s part. So what Americans generally assume – that the President lacks the power to bring military intervention into local law enforcement – is untrue in important ways. That should change.
Other DOD Directives, like 3025.18, also referred to as the Defense Support of Civil Authorities (“DSCA”) Directive, cover operational support from the military during specifically identified crisis scenarios, and use language similar to language used in the Directive 5240.01 update that started the online controversy in the first place. While this demonstrates DOD familiarity with the potential for confrontation with civilians, including use of Defense Intelligence Components (“DIC”), DSCA does not govern all support to civil authorities provided by the Department of Defense, in all scenarios. This is an important distinction to make, since Directive 5240.01 specifically covers DIC in non-DSCA scenarios, falling outside the “umbrella” of Directive 3025.18 and retaining a degree of independence.. Directive 5240.01 traditionally covered DOD intelligence activities not relating to a crisis, and is concerned with broadly and explicitly requiring any information regarding any person breaking the law that comes up in the course of defense intelligence activities, to be shared with local law enforcement.
- What Changes With The New Draft?
Where liberal commentators and some experts have it right is that the new draft is not a recipe for martial law, all on its own, or for a free-floating power of presidential assassination of Americans on American streets. However, there are several ways that the redraft appears misguided and potentially harmful:
- Adding A Weak Procedural Safeguard
The paragraphs of the new draft of the Directive that went viral in the last couple of weeks, set a new requirement that, in the context of “Assistance in responding with assets with potential for lethality, or any situation in which it is reasonably foreseeable that providing the requested assistance may involve the use of force that is likely to result in lethal force, including death or serious bodily injury”, signoff of the Secretary of Defense is required, before military intelligence assistance would be provided.
As the Brennan Center notes, this is not an expansion of authority, but a (weak) procedural safeguard. However, just in case anybody considers treating the safeguard of a Secretary of Defense signoff as meaningful in real time, the Directive heads off that possibility by giving the military 72 hours to get the Secretary’s after-the-fact permission in “emergency situations.” It is therefore only in situations that local police do not consider to be “emergency situations” but nevertheless “may involve the use of … lethal force”, that a before-the-fact signoff is required. While the update may not constitute an expansion of authority in a strictly legal or technical sense, it broadens the scope for intelligence roles, allowing flexibility and engagement in higher-risk activities within the framework of existing guidelines.
We have no doubt that local police will consider, for example, protests against local police department violence as an “emergency situation” demanding the full resources of the State. There is recent precedent for intelligence resources being deployed without a warrant against such protesters, on the speculation that foreign interests might secretly be behind Black Lives Matter. Most recently, the National Counterterrorism Center (“NCTC”) took point in trying to establish an association between the recent pro-Palestinian student protests on college campuses and foreign terrorist organizations. It seems unlikely that military leadership would face any consequences for going along with local police departments’ “emergency” assessments.
Even if adding a weak procedural safeguard were all that this Directive did, it would still represent a missed opportunity. The Biden/Harris administration is up against a 50/50 chance next month of the return to power of a President who argued in office for allowing the military to use lethal force against Americans opposed to police violence. It would have been sensible for Biden to go rather further than the limp measure of requiring a Defense Secretary appointed by the President to sign off on their Commander’s plan to deploy the military against protesters. It could have, as a small example, rewritten this DOD guidance to prohibit military intelligence assistance in “circumstances likely to result in lethal force.”
- Reclassifying Law Enforcement Activities As “Support” Instead Of “Direct Enforcement”
The Directive also, in one important respect, makes matters worse. The new draft of the DOD Directive classes law enforcement activities that may involve “lethal force” for the first time as a “support” activity, and consequently, based on how the military has handled the restrictions of the Posse Comitatus Act, as an activity the PCA does not bar. In doing so, the new draft does in fact quietly redefine DOD’s intelligence arm’s involvement in domestic affairs to something more operational, where intelligence personnel and intelligence-derived insights will be routinely permitted to influence decisions to deploy military assets based on the military’s assessment of a particular situation.
The introduction of “lethality” as a concept involved in potential non-crisis confrontations is significant, and is not reasonably described as “much ado about nothing.” A broad array of police-civilian interactions involve potential lethality; any interaction involving an armed officer can potentially go south. Similarly, newly indicating that intelligence derived from EO 12,333 can be deployed “when lives are in danger” blurs the lines between military intelligence and civilian policing.
The update acknowledges—or arguably introduces—the idea that military intelligence activities might involve quasi-operational pursuits, moving away from a strictly passive role focused on information-gathering and sharing. This does not merely bring the Directive in line with other DOD policies to ensure consistency, but rather updates an understanding of DOD intelligence activities to reflect current DOD assumptions about what kinds of involvement are appropriate. Those assumptions represent a significant change from more passive, traditionally-understood involvement.
3. The Case For Broader Statutory Reforms
- Insurrection Act Reforms
In the famous fable of the boiling frogs, the water warms only gradually. It’s right to worry about incremental shifts in how military intelligence operates within domestic legal frameworks in non-crisis situations as well as crisis situations. The Brennan Center is correct to argue that people concerned about this matter should be arguing for reforms to limit Presidential powers under the Insurrection Act, but that should be dealt with in addition to, not in place of, concerns about changes to DOD Directives.
- National Emergencies Act Reform
The administration could have taken this opportunity to substantially review and revise the ways laws and policies have evolved to broadly, and wrongly, allow Presidents to deploy the military domestically, including under the free-floating “emergency powers” serially and heedlessly delegated to the President by Congress. We support calls for reforms to the National Emergencies Act.
- Surveillance Reform
The government already has vast and excessive surveillance powers, and the Biden/Harris administration has worked hard to expand them. We have fought hard to restrain them, particularly as they relate to warrantless surveillance of U. S. persons under Section 702 of the Foreign Intelligence Surveillance Act. So-called “foreign intelligence” is currently gathered under what the U. S. government is pleased to consider an exception to the Fourth Amendment’s warrant requirement. Law enforcement can then query those intelligence databases for any purpose, including domestic law enforcement, even if, as in the instances outlined above, the notion that foreign organizations are organizing or funding protest activity is completely speculative. Reform is desperately needed.
- NDAA Indefinite Detention Reform
Congressman Matt Rosendale (R-MT) managed to pass an amendment to the House National Defense Authorization Act this summer, to remove the power of the military to detain U. S. citizens without charge or trial. There are at least two cases in the 21st century where the military actually did detain U. S. citizens for extended periods – Jose Padilla and Yaser Hamdi. The Senate could choose, after the election, to amend their version of the NDAA to do the same. We’re working to encourage Senators, many of whom have supported such amendments in the past, to do so. Again, this is a power no President should have, with respect to U. S. citizens or to anybody present in the United States.
- Parallel Construction Reform
Americans like to collectively pretend that local law enforcement investigates local crimes; but as the Directive suggests, it’s now the case that key tips and information often come from mass surveillance systems, including military intelligence, instead. When they do come in that way, defendants have no way to challenge the constitutionality of how that information was collected. So, part of dealing with this problem is to deal with the problem of parallel construction – law enforcement pretending to the courts that information leading to a prosecution comes from their own investigations, when in fact it’s based on intelligence insights from federal agencies.
These kinds of reform would meaningfully restrain the power of Presidents and the broad discretionary powers within parts of the executive branch to do harm and bring reality back in line with public expectations. Meanwhile, there’s a weird dissonance between the Democrats’ apocalyptic rhetoric about the threat Trump poses to democracy and the rule of law, and their reluctance to take the necessary steps to limit the exact powers he would be able to exercise in office. Is it so important to preserve these powers for future Democratic (Republican) Presidents, that President Trump (Harris) should have them at their disposal as of Inauguration Day?
It’s long past time for us to pass better constraints on the government’s power to seize any person, let alone U. S. citizens. This Directive is a sign that, without significant action by Congress, the integration of military intelligence with domestic powers of arrest and detention will only grow.