On September 27, 2024, the Biden Administration authorized the Department of Defense to provide intelligence and counter-intelligence resources to US law enforcement agencies to specifically target “domestic terrorism,” which includes a tacit use of force authorization. To be clear, while a President apparently authorizing military action against US citizens on US soil is beyond terrifying, even the most benign parts of the DoD Directive broadly authorize intelligence gathering against US citizens in complete contravention of the United States Constitution. This directive is beyond frightening. Unfortunately, the Biden Administration didn’t invent this authority for itself. Biden and his cabinet are merely sitting on the threshold of the scariest parts of the slippery slope with the slide starting long, long ago.
So here is a brief history of how authorization for federal military action on US soil has evolved over the course of our history, but at the end of this article is a specific call to action. To be clear, given the broad ways the government has defined “domestic terrorism” in recent years, almost any libertarian-oriented political movement could find itself swept up in those overly broad and ambiguous categorizations, and that certainly could include the Second Amendment community of activists. But while the Biden Administration completely disregards the privacy of American citizens and the Constitution (again), our response is simple: the peaceful political process.
But isn’t it illegal for the DoD to operate on US soil?
Many folks out there may have a vague understanding that there are legal restrictions on the use of the US military on US soil. That is a partial truth. Prior to 1878, no such restrictions existed. In the early days of the American experiment, there were indeed several examples of the militia being called up by the federal government to put down insurrections (the 1791 Whiskey Rebellion being one such example). In response to some of these events, the first congressional restraint applied to the President’s power as commander in chief with respect to domestic activity by military forces was the Insurrection Act of 1807. That law required that, prior to using military force against American citizens, the President make a declaration regarding an “insurrection” and give 24-hour notice after calling for any “insurrection” to disperse (basically a 24-hour cooling off period before military force could be used after an insurrection event had been declared).
The Civil War was obviously a massive use of military force against the Confederate rebellion, the bloodiest conflict in history from an American perspective. In the Reconstruction era that followed the Civil War, there was a relatively continuous occupation of the former Confederate states by US Army forces to deal with flareups of local paramilitary groups who commonly attempted to use force to suppress elections and participation by freed slaves. By 1878, it became clear that for the Reconstruction effort to work and for the nation to heal, some good faith had to be placed in former Confederate states. In addition, the Hayes administration used federal troops to end the Great Railroad Strike of 1877 and this was seen as a tipping point for both overly broad authority in the hands of the Executive branch and the need for reform for the National Guard as a replacement for state militias. The Posse Comitatus Act was signed into law by Rutherford B. Hayes in 1878 and took effect in 1879, which broadly prohibited the President from authorizing the deployment of federal troops on US soil (initially this only applied to the United States Army but over time was expanded to include all branches of the military).
So how can the Biden Administration use DoD assets in the US without violating the Posse Comitatus Act?
Benjamin Franklin famously said:
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
Since the start of the Cold War, the Congress has steadily abdicated its role in restraining the War Powers of the President. The excuse given is the exigency of the threat of nuclear war, but what followed was an era of military adventurism where Presidents find it easier to ask for forgiveness instead of permission. In issuing DoD Directive 5240.01, the Biden Administration relied on Title 50 of the US Code, which, in short, is the entirety of its War Powers, along with two Executive Orders. Executive Order 12333 was originally signed by Ronald Reagan in 1981, a Cold War era legacy that laid out broad authority for the US to engage in counter-intelligence operations in the US. President George W. Bush modified this authorization in 2008 to broaden its application in response to 9/11 and the Global War on Terror. Executive Order 13388 was signed in 2005, again by George W. Bush to allow for intelligence sharing between DoD, Civilian Intelligence Agencies, and domestic law enforcement agencies like the FBI and the then newly formed DHS. In addition, between 2006 and 2007, the Posse Comitatus Act was fully suspended by the Bush Administration, again, to combat the threat of terrorism on US soil, creating a dangerous precedent.
As goes the ancient proverb:
the road to hell is paved with good intentions.
A world driven by fear of external boogeymen has allowed us to slide down this slippery slope. The expansion of FISA, overly broad National Defense Authorization Acts, and an era of fear and paranoia during both the Cold War and the Global War on Terror has created this slippery slope, and the Biden Administration’s actions with this recent Directive are just the inevitable crossing of the Rubicon that this era set up.
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Now what?
The legal authority for the Biden Administration to bypass the Posse Comitatus Act is rooted in the somewhat vague carveout in the Act for dealing with Insurrections, and that all roots itself in that original Insurrection Act of 1807.
We live in a bizarre world. An increasingly bleak and dystopian, but nonetheless bizarre world where up is down and black is white. The mainstream media has been having a field day in the last week with some vague statements by former President Trump regarding his supposed intention to use the military to deal with lawlessness from left-wing political agitators in the event he is elected. While the mainstream media engages in every form of conspiracy theory brainstorming about what Trump may or may not do if elected, the Biden Administration quietly actually authorized covert DoD operations against American citizens on US soil. In 2020, a year of “fiery but mostly peaceful protests,” many Democrats were concerned about the ambiguous elements of both the Insurrection Act and the Posse Comitatus Act based on what the Trump Administration might have done considering the widespread civil unrest that year. In 2020, Senator Richard Blumenthal introduced the CIVIL Act, sponsored in the House by Congresswoman Ilhan Omar as H.R. 7135.
A summary of the bill can be found on Congress.gov:
This bill prohibits the President from invoking authority to use military force to enforce federal authority or suppress an insurrection in a state unless a certification is made to Congress by the President, the Department of Defense, and the Department of Justice that a state governor has requested such assistance or that the state is unable or unwilling to suppress such an insurrection. The President must consult with Congress, in every instance possible, before invoking the authority to use military force.
The bill terminates the authority to use military force to suppress an insurrection after 14 days unless Congress enacts a joint resolution extending such authority. It also sets forth provisions for expedited consideration of a joint resolution in the House of Representatives and the Senate.
The bill allows individuals or entities who have been injured by, or have a credible fear of injury from, the use of military force to bring a civil action for declaratory or injunctive relief.
The bill had 25 Democrat sponsors in the House in 2020. Obviously, with Joe Biden’s election, the bill sponsors were no longer concerned with such abuses of authority and the bill was not reintroduced in the following session. Given the more recent paranoia about a potential future President Trump authorizing military force against US Citizens, a completely unthinkable abuse of authority that just so happens to be exactly what the Biden Administration just did, the CIVIL Act should now enjoy broad bipartisan support!
Given that gun owners, people who care about their 2nd Amendment rights, or frankly anyone who flies a Gadsden Flag on their front lawn could find themselves the subject of covert DoD surveillance operations under Biden’s directive, we should simply contact our representatives in Congress and ask for the immediate reintroduction of the 2020 CIVIL Act, House Bill 7135. Because it’s a bizarre world we live in, where the liberal left simultaneously makes full-throated calls for restraints on Presidential authority while simultaneously abusing that authority. Up is down. Black is white.
