From: AlterNet
by Jeff Morey
May 15, 2013
The
manhunt for the Boston Marathon bombing suspects offered the nation a
window into the stunning military-style capabilities of our local law
enforcement agencies. For the past 30 years, police departments
throughout the United States have benefitted from the government’s
largesse in the form of military weaponry and training, incentives offered in the ongoing “war on drugs.” For
the average citizen watching events such as the intense pursuit of the
Tsarnaev brothers on television, it would be difficult to discern
between fully outfitted police SWAT teams and the military.
The lines blurred even further Monday as
a new dynamic was introduced to the militarization of domestic law
enforcement. By making a few subtle changes to a regulation in the U.S.
Code titled “Defense Support of Civilian Law Enforcement Agencies” the
military has quietly granted itself the ability to police the streets
without obtaining prior local or state consent, upending a precedent
that has been in place for more than two centuries.
The
most objectionable aspect of the regulatory change is the inclusion of
vague language that permits military intervention in the event of “civil
disturbances.” According to the rule: “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.”
Bruce
Afran, a civil liberties attorney and constitutional law professor at
Rutgers University, calls the rule, “a wanton power grab by the
military.” He says, “It’s quite shocking actually because it violates
the long-standing presumption that the military is under civilian
control.”
A
defense official who declined to be named takes a different view of the
rule, claiming, “The authorization has been around over 100 years; it’s
not a new authority. It’s been there but it hasn’t been exercised. This
is a carryover of domestic policy.” Moreover, he insists the Pentagon
doesn’t “want to get involved in civilian law enforcement. It’s one of
those red lines that the military hasn’t signed up for.” Nevertheless,
he says, “every person in the military swears an oath of allegiance to
the Constitution of the United States to defend that Constitution
against all enemies foreign and domestic.”
One
of the more disturbing aspects of the new procedures that govern
military command on the ground in the event of a civil disturbance
relates to authority. Not only does it fail to define what circumstances
would be so severe that the president’s authorization is “impossible,”
it grants full presidential authority to “Federal military commanders.”
According to the defense official, a commander is defined as follows:
“Somebody who’s in the position of command, has the title commander. And
most of the time they are centrally selected by a board, they’ve gone
through additional schooling to exercise command authority.”
As
it is written, this “commander” has the same power to authorize
military force as the president in the event the president is somehow
unable to access a telephone. (The rule doesn’t address the statutory
chain of authority that already exists in the event a sitting president
is unavailable.) In doing so, this commander must exercise judgment in
determining what constitutes, “wanton destruction of property,”
“adequate protection for Federal property,” “domestic violence,” or
“conspiracy that hinders the execution of State or Federal law,” as
these are the circumstances that might be considered an “emergency.”
“These
phrases don’t have any legal meaning,” says Afran. “It’s no different
than the emergency powers clause in the Weimar constitution [of the
German Reich]. It’s a grant of emergency power to the military to rule
over parts of the country at their own discretion.”
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