New rule allows the U.S. military to work with police and eliminate the Posse Comitatus Act
In a major power grab of dubious constitutionality, the U.S. military claimed for itself the power to act unilaterally—without the authorization of the President—in case of “civil disturbances,” threatening a 200-year-old system that strictly forbids the military from becoming involved in civilian law enforcement. Seemingly innocuous in its brevity and simplicity, the new rule's chief danger lies in its vagueness:
Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.
The rule defines none of its key terms, which appear in italics above, raising questions of enormous import. A sergeant, for example, has command of soldiers in his or her squad—is the sergeant a “commander” under this rule? Even if the rule were restricted to those with the rank of Army colonel or above, there are more than 4,000 full-bird colonels in the Army. What is a “civil disturbance”? How large is “large-scale”? Where is the line between situations civilian authorities are able to control and those they are not? If elected officials believe a situation is under control, can the military commander countermand them and intervene with force anyway?
“These phrases don’t have any legal meaning,” argues Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, who calls the rule “a wanton power grab by the military…because it violates the long-standing presumption that the military is under civilian control.”
Drawing a chilling comparison to interwar Germany, Afran says the rule is “no different than the emergency powers clause in the Weimar constitution [that governed Germany from 1919 to 1933]. It’s a grant of emergency power to the military to rule over parts of the country at their own discretion.” Pointing to the lack of a clear definition of a civil disturbance, Afran notes, “In the Sixties all of the Vietnam protests would meet this description. We saw Kent State. This would legalize Kent State.” Or the brutal crackdowns on Occupy.
The Posse Comitatus Act of 1878 generally prohibits military forces from performing ordinary civilian law enforcement functions such as arrest, surveillance, interdiction, search and seizure.
A newly updated Department of Defense doctrinal publication notes that, despite this prohibition, “There are several forms of direct assistance to civilian law enforcement by military personnel that are permitted under the Military Purpose Doctrine. The Military Purpose Doctrine provides that law enforcement actions that are performed primarily for a military purpose, even when incidentally assisting civil authorities, will not violate the PCA [Posse Comitatus Act].”
These may include investigations related to the Uniform Code of Military Justice, enforcement actions on a military installation, and measures to protect classified military information or equipment, among others identified by the DoD document.
The publication broadly addresses crisis response, support to law enforcement, and other forms of assistance. See “Defense Support of Civil Authorities,” Joint Publication 3-28, July 31, 2013. The publication introduces a new addition to the DoD lexicon: “complex catastrophe.”
A complex catastrophe (which may “magnify requirements for defense support of civil authorities”) is defined as: “Any natural or man-made incident, including cyberspace attack, power grid failure, and terrorism, which results in cascading failures of multiple, interdependent, critical, life-sustaining infrastructure sectors and causes extraordinary levels of mass casualties, damage or disruption severely affecting the population, environment, economy, public health, national morale, response efforts, and/or government functions.”
http://blogs.fas.org/secrecy/2013/08/jp-dsca/
http://www.allgov.com/news/top-stories/new-rule-allows-us-military-to-act-without-presidents-authorization-130520?news=850072