Military Quietly Grants Itself the Power to Police the Streets Without Local or State Consent
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Eric Freedman, a constitutional law professor from Hofstra University, also calls the ruling “an unauthorized power grab.” According to Freedman, “The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute.” Yet that’s precisely what it did. This wasn’t, however, the Pentagon’s first attempt to expand its authority domestically in the last decade.
During the Bush Administration, Congress passed the 2007 Defense Authorization Bill that included language similar in scope to the current regulatory change. It specifically amended the Insurrection Act to expand the president’s ability to deploy troops domestically under certain conditions including health epidemics, natural disasters and terrorist activities, though it stopped short of including civil disturbances. But the following year this language was repealed under the National Defense Authorization Act of 2008 via a bill authored by Vermont Senator Patrick Leahy (D-VT) who cited the “useful friction” between the Insurrection and Posse Comitatus Acts in limiting executive authority.
According to the DoD, the repeal of this language had more to do with procedure and that it was never supposed to amend the Insurrection Act. “When it was actually passed,” says the defense official, “Congress elected to amend the Insurrection Act and put things in the Insurrection Act that were not insurrection, like the support for disasters and emergencies and endemic influenza. Our intent,” he says, “was to give the president and the secretary access to the reserve components. It includes the National Guard and, rightfully so, the governors were pretty upset because they were not consulted.”
Senator Leahy’s office did not have a statement at press time, but a spokesperson said the senator had made an inquiry with the DoD in response to our questions. The defense official confirmed that he was indeed being called in to discuss the senator’s concerns in a meeting scheduled for today. But he downplayed any concern, saying, “Congress at any time can say ‘we don’t like your interpretation of that law and how you’ve interpreted it in making policy’—and so they can call us to the Hill and ask us to justify why we’re doing something.”
Last year, Bruce Afran and another civil liberties attorney, Carl Mayer, filed a lawsuit against the Obama administration on behalf of a group of journalists and activists led by former New York Times journalist Chris Hedges. They filed suit over the inclusion of a bill in the NDAA 2012 that, according to the plaintiffs, expanded executive authority over domestic affairs by unilaterally granting the executive branch to indefinitely detain U.S. citizens without due process. The case has garnered international attention and invited vigorous defense from the Obama administration. Even Afran goes so far as to say this current rule change is, “another NDAA. It’s even worse, to be honest.”
For Hedges and the other plaintiffs, including Pentagon Papers whistleblower Daniel Ellsberg, the government’s ever-expanding authority over civilian affairs has a “chilling effect” on First Amendment activities such as free speech and the right to assemble. First District Court Judge Katherine Forrest agreed with the plaintiffs and handed Hedges et al. a resounding victory prompting the Department of Justice to immediately file an injunction and an appeal. The appellate court is expected to rule on the matter within the next few months.
Another of the plaintiffs in the Hedges suit is Alexa O’Brien, a journalist and organizer who joined the lawsuit after she discovered a Wikileaks cable showing government officials attempting to link her efforts to terrorist activities. For activists such as O’Brien, the new DoD regulatory change is frightening because it creates, “an environment of fear when people cannot associate with one another.” Like Afran and Freedman, she calls the move, “another grab for power under the rubric of the war on terror, to the detriment of citizens.”