AND they’re calling Trump Hitler, you’d better wake up Americans, before it’s too late,
51-55, M
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Mesthartiya · M
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Mesthartiya · M
@IronHamster I said your point is valid, but it's got nothing to do with the post. You're simply deflecting.
IronHamster · 56-60, M
@Mesthartiya See? I'm right.
Mesthartiya · M
Mesthartiya · M
Oh we’ve already had the October Surprise. The Isle of Garbage has just handed Kamala the election 😎
PS That’s a helluva step to say it advocates lethal force against anyone protesting government policy. It says no such thing 😂
https://www.justsecurity.org/104328/dod-directive-changes/
PS That’s a helluva step to say it advocates lethal force against anyone protesting government policy. It says no such thing 😂
https://www.justsecurity.org/104328/dod-directive-changes/
SpudMuffin · 61-69, M
ididntknow · 51-55, M
Mesthartiya · M
@ididntknow I know you won't read this, but still..
Without further context, this reference to lethal force might seem alarming. But the concern over this provision ignores two critical facts.
No Change in DoD Policy
First, the added language makes no change in Department policy. While Directive 5240.01 is specifically aimed at Defense Intelligence Components, there is a more general directive—Directive 3025.18—that governs all support to civil authorities provided by the Department of Defense. This umbrella directive, which applies equally to Defense Intelligence Components and has not been updated since 2018, includes language that is very similar to the language that is currently stirring controversy:
[O]nly the Secretary of Defense may approve requests from civil authorities or qualifying entities for Federal military support for … Assistance in responding with assets with potential for lethality. This support includes loans of arms; vessels or aircraft; or ammunition. It also includes assistance under section 282 of [Title 10] and section 831 of title 18, U.S.C.; all support to counterterrorism operations; and all support to civilian law enforcement authorities in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.
Indeed, the changes to Directive 5240.01 may well have been intended simply to ensure consistency across the Department of Defense’s numerous statements of policy. There is nothing suspicious about the timing of this effort; to the contrary, as the Biden administration comes to a close, agencies will increasingly be focused on tying up loose ends such as issuing policy updates of this nature.
A Procedural Safeguard, Not a Source of Authority
Second, on its face, the provision in question—whether in the umbrella directive or the newly revised one—constitutes a procedural safeguard rather than a grant of power. Section 3.3 of Directive 5240.01, as a whole, establishes what level of approval must be obtained before various types of activities may be carried out. Subsection (a)(2) provides that assistance to civilian law enforcement authorities that may involve the use of lethal force requires the highest level of approval before it can be provided—that is, the Secretary of Defense must personally sign off on it.
Directive 5240.01 does not provide any new authority to deploy the military domestically; nor could it. Department of Defense directives are statements of policy issued under the authority of the Secretary of Defense. They are not statutes, executive orders, or even “rules” within the meaning of the Administrative Procedure Act. A directive cannot make lawful an activity that does not have some legal basis either in statute or in the president’s powers under Article II of the Constitution.
Directive 5240.01 thus cannot, and by its own terms does not purport to, override the restrictions of the Posse Comitatus Act, which bars federal military forces from participating in law enforcement unless doing so is expressly authorized by Congress. Indeed, the directive explicitly states in Section 3.1 that any assistance provided by Defense Intelligence Components must be permissible under the Posse Comitatus Act, and both Sections 3.2 and 3.3 refer back to that requirement. In virtually all cases, assistance to civilian authorities that could involve the use of lethal force would constitute military participation in law enforcement for the purposes of the Posse Comitatus Act.
Therefore, as a matter of law and under Directive 5240.01’s own terms, such assistance could be provided only if an exception to the Posse Comitatus Act, such as the Insurrection Act, had been invoked or otherwise applied.
Without further context, this reference to lethal force might seem alarming. But the concern over this provision ignores two critical facts.
No Change in DoD Policy
First, the added language makes no change in Department policy. While Directive 5240.01 is specifically aimed at Defense Intelligence Components, there is a more general directive—Directive 3025.18—that governs all support to civil authorities provided by the Department of Defense. This umbrella directive, which applies equally to Defense Intelligence Components and has not been updated since 2018, includes language that is very similar to the language that is currently stirring controversy:
[O]nly the Secretary of Defense may approve requests from civil authorities or qualifying entities for Federal military support for … Assistance in responding with assets with potential for lethality. This support includes loans of arms; vessels or aircraft; or ammunition. It also includes assistance under section 282 of [Title 10] and section 831 of title 18, U.S.C.; all support to counterterrorism operations; and all support to civilian law enforcement authorities in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.
Indeed, the changes to Directive 5240.01 may well have been intended simply to ensure consistency across the Department of Defense’s numerous statements of policy. There is nothing suspicious about the timing of this effort; to the contrary, as the Biden administration comes to a close, agencies will increasingly be focused on tying up loose ends such as issuing policy updates of this nature.
A Procedural Safeguard, Not a Source of Authority
Second, on its face, the provision in question—whether in the umbrella directive or the newly revised one—constitutes a procedural safeguard rather than a grant of power. Section 3.3 of Directive 5240.01, as a whole, establishes what level of approval must be obtained before various types of activities may be carried out. Subsection (a)(2) provides that assistance to civilian law enforcement authorities that may involve the use of lethal force requires the highest level of approval before it can be provided—that is, the Secretary of Defense must personally sign off on it.
Directive 5240.01 does not provide any new authority to deploy the military domestically; nor could it. Department of Defense directives are statements of policy issued under the authority of the Secretary of Defense. They are not statutes, executive orders, or even “rules” within the meaning of the Administrative Procedure Act. A directive cannot make lawful an activity that does not have some legal basis either in statute or in the president’s powers under Article II of the Constitution.
Directive 5240.01 thus cannot, and by its own terms does not purport to, override the restrictions of the Posse Comitatus Act, which bars federal military forces from participating in law enforcement unless doing so is expressly authorized by Congress. Indeed, the directive explicitly states in Section 3.1 that any assistance provided by Defense Intelligence Components must be permissible under the Posse Comitatus Act, and both Sections 3.2 and 3.3 refer back to that requirement. In virtually all cases, assistance to civilian authorities that could involve the use of lethal force would constitute military participation in law enforcement for the purposes of the Posse Comitatus Act.
Therefore, as a matter of law and under Directive 5240.01’s own terms, such assistance could be provided only if an exception to the Posse Comitatus Act, such as the Insurrection Act, had been invoked or otherwise applied.
