What if, in the wake of contentious election results, “civilian law enforcement” fears a possible “confrontation” with civilians — should highly sophisticated military intelligence capabilities be employed to spy on Americans? A Department of Defense directive (DODD) issued on Sept. 27 says yes.
This question isn’t speculative. Governors in three states have already alerted their National Guard soldiers in expectation of election related violence.
DODD 5240.01 has spurred significant controversy, and rightfully so — though not for the reasons frequently cited, namely, that it allows the military to use lethal force against civilians. The lethal force assertion was made by Robert F. Kennedy Jr. and others, prompting the DoD to issue a rare formal denial.
But the authority for the military to employ lethal force against civilians has existed since the nation’s founding. Recall President George Washington’s personal involvement in quelling the Whiskey Rebellion in 1794 and President George H.W. Bush’s activation of the California National Guard during the 1992 L.A. riots (I was there as a Guard officer).
Rather, this new directive extends the use of military intelligence assets, including drones, electronic surveillance and even hacking operations, in support of domestic law enforcement if law enforcement fears any sort of confrontation with civilians. In doing so, the directive reverses almost 50 years of policy that aimed to prevent the military, including the National Guard, from spying on Americans
A Dramatic Shift From Reagan-Era Protections
In 1981, President Ronald Reagan established Executive Order (EO) 12333, which aimed to prevent military intelligence from infringing on the rights of American citizens. The order made clear that while the military has an essential role in defending the nation, it should not encroach upon the domain of domestic surveillance. This boundary preserved public trust in the military and ensured that American citizens would not be monitored by their own armed forces.
As amended, EO 12333 allows for the military to provide intelligence assistance to other parts of the federal government or “to support local law enforcement agencies” or “… when lives are endangered, to support local law enforcement agencies.”
The new directive dismantles the EO 12333 firewall protecting civil rights. DoD Directive 5240.01 blurs the bright line as to when intelligence assets can support law enforcement.
Instead of a clear authorization to support local law enforcement when “lives are in danger,” the new directive allows for the Secretary of Defense to approve intelligence support “in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.”
This sounds an awful lot like the sort of intelligence activities that got the military in trouble in the 1960s and 1970s when it spied on civil rights and anti-Vietnam War groups.
Arguably, the difference between the new directive and the practice of surveilling civilians in the early 1970s and decades earlier is that civilian law enforcement appears to have to initiate a request for surveillance. Presumably, this would include Fourth Amendment safeguards such as the requirement to secure a warrant.
That said, given recent history, it doesn’t take too much to foresee a situation where a “reasonably anticipated” “confrontation” might extend to fears over angry parents at a school board meeting. Would law enforcement be able to request military intelligence surveillance in those cases and later claim that a warrant wasn’t needed as they weren’t the ones doing the searching?
The directive does claim that “protection of the constitutional rights and privacy of U.S. persons” will be given “special protection” — but similar assurances were given around the expansion of the PATRIOT Act and its FISA warrants.
Without precise limits, local or federal law enforcement could theoretically request military intelligence support under far-reaching circumstances. This leaves the door open for potential overreach, making it increasingly likely that intelligence assets intended to protect national security could be used for purposes far outside their original mandate.
The Risk Of Abuse And Erosion Of Public Trust
History has shown that when governmental power is expanded, even with the best intentions, misuse inevitably follows.
Brett Tolman, executive director for Right on Crime and a former U.S. Attorney said this expansion of power: “Is eerily similar to the expansion of the FISA warrants and the hollow ‘reassurances’ from the FBI and the Department of Justice that the government would not abuse the process to target U.S. citizens.” Tolman went on to note that the PATRIOT Act expansions of federal power were accompanied by similar promises that, in retrospect, turned out to be empty.
Such misuse would only damage the public’s trust in the military, an institution that has consistently ranked as one of the most respected and trusted by the American people. Trust, once eroded, is hard to regain. If military intelligence tools start appearing in domestic cases, the distinction between defense and policing will blur, leading to increased skepticism and diminishing the special place the military occupies in American society.
Shifting Focus Away From Real Threats
This directive also risks diverting military resources and attention away from the genuine threats facing the United States, particularly from foreign adversaries like China. In a time when U.S. defense strategy should prioritize rising global tensions, especially in the Indo-Pacific, taking critical assets off the international front to assist in domestic law enforcement could weaken our readiness against legitimate national security threats.
China has aggressively expanded its military capabilities, including cyber warfare, hypersonic missiles, and space-based assets, and it poses an existential challenge to U.S. interests and allies. Redirecting military intelligence away from monitoring and countering these threats jeopardizes our strategic position and ultimately puts our national security at risk.
Congress Must Reevaluate And Limit This Directive
While the need to respond to emergencies and protect American lives is essential, this directive’s broad language and vague criteria set a precedent that could easily be exploited. If a new administration doesn’t direct the Pentagon to revise DODD 5240.01 to bring it back into compliance with EO 12333, then Congress should act to limit the scope of this directive to ensure it cannot be used as a shortcut for military intervention in domestic law enforcement or in suppression of legitimate political protest.
Chuck DeVore is Chief National Initiatives officer at the Texas Public Policy Foundation. He served in the California State Assembly and is a lieutenant colonel in the U.S. Army Reserve. He’s the author of “Crisis of the House Never United.”
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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