This article first appeared at Just Security.
Over the past week, recent updates to a Department of Defense (DoD) policy statement, Directive 5240.01, have generated a flurry of rumors in certain online circles. Commentators have posited that new language in the directive indicates that the federal government is planning to use lethal force against Americans during or after the upcoming presidential election. In reality, while some of the legal authorities governing domestic deployment of the military lack sufficient safeguards and are in urgent need of reform, the changes to this directive do not reflect any change in DoD policy and provide no new authority to deploy the military domestically or to use lethal force in such deployments. In short, the changes present no reason for concern.
The New Language in Directive 5240.01
On September 27, the Department of Defense published an updated version of Directive 5240.01, which lays out Department policies governing when, where, and how Defense Intelligence Components—those parts of the Department, such as the National Security Agency, Defense Intelligence Agency, and U.S. Naval Intelligence, that are responsible for gathering and analyzing intelligence—may provide assistance to civilian authorities, including civilian law enforcement agencies.
The reissued directive adds language that was not present in the previous version of Directive 5240.01, last updated in 2020. The part of the new directive that has come under scrutiny is Section 3.3.a.(2), which states that approval from the Secretary of Defense is required before Defense Intelligence Components may provide certain kinds of permissible assistance to civilian law enforcement agencies, including:
“Assistance in responding with assets with potential for lethality, or any situation in which it is reasonably foreseeable that providing the requested assistance may involve the use of force that is likely to result in lethal force, including death or serious bodily injury. It also includes all support to civilian law enforcement officials in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated. Such use of force must be in accordance with DoDD 5210.56, potentially as further restricted based on the specifics of the requested support.”
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.
Once federal forces are deployed domestically under existing authorities, they are subject to the Standing Rules for the Use of Force (SRUF), as incorporated into Department of Defense Directive 5210.56 (last updated in 2020). These rules apply when federal forces operate domestically; they are much more restrictive than the rules of engagement that apply in operational environments overseas.
Under Directive 5210.56, deadly force is permitted only if there is a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily harm to a person, or under the following circumstances: self-defense; defense of others; protection against theft or sabotage of “assets that are vital to national security” (e.g., nuclear weapons), “inherently dangerous property” (e.g., portable missiles or chemical agents), or “national critical infrastructure” (e.g., designated public utilities that are vital to public health and safety), where such theft/sabotage would create an imminent threat of death or serious bodily harm; various actions to prevent or respond to “serious offenses”—i.e., those involving the imminent threat of death or serious bodily harm; and defense against vicious animals. The new language in Directive 5240.01 includes a requirement that any use of lethal force comply with Directive 5210.56. In other words, the new directive makes clear that it is not expanding the circumstances under which lethal force may be used.
***
In sum, the new version of Directive 5240.01 simply restates existing Department of Defense policy that, in circumstances where it would be lawful under the Posse Comitatus Act or other applicable law for the military to provide assistance to civilian law enforcement that has the potential for the use of lethal force, that assistance cannot be provided without the Secretary of Defense’s approval and must comport with longstanding rules for the use of such force.
To be sure, there are good reasons to be concerned about the federal government’s power to use the armed forces domestically against Americans, but the new language in Directive 5240.01 is not one of them. The Insurrection Act represents a far greater danger. It gives the president broad discretion to use the military as a domestic police force and contains virtually no safeguards to prevent abuse. The Brennan Center for Justice, where we work, has put forward a comprehensive proposal for reforming the Insurrection Act, and a bipartisan group of former national security officials convened by the American Law Institute has similarly called for Insurrection Act reform. Those who are currently sounding the alarm about Directive 5240.01 would do well to refocus their energies on that critical task.
