Recent changes to Department of Defense Directive 5240.01

Over the past week, recent updates to a Department of Defense (DoD) policy statement, Directive 5240.01, have sparked a flurry of rumors in certain online circles. Commentators have posited that the new language in the directive suggests that the federal government plans to use lethal force against Americans during or after the upcoming presidential election. In reality, some legal authorities governing domestic military use lack sufficient safeguards and are in urgent need of reform. However, the changes to this policy do not reflect a change in DoD policy and do not provide any new authority for the military to operate domestically or to use lethal force in such operations. In short: the changes are nothing to worry about.

The new language in Policy 5240.01

On September 27, the Department of Defense released an updated version of Directive 5240.01, which establishes the Department's policies governing when, where, and how components of the Defense Intelligence Agency – parts of the Department such as the National Security Agency, the Defense Intelligence Agency, etc. U.S. Naval Intelligence, which is responsible for collecting and analyzing information, may provide assistance to civilian authorities, including civilian law enforcement agencies.

The newly issued guidance adds language that was not present in the previous version of guidance 5240.01, last updated in 2020. The portion of the new policy that has come under scrutiny is Section 3.3.a.(2), which addresses the issue of approval by the Secretary of Defense being required before Defense Intelligence Components can provide certain types of permissible assistance to civilian law enforcement agencies , including:

Assisting in response with assets capable of causing lethal force or any situation in which it is reasonably foreseeable that providing the requested assistance may involve the use of force likely to result in deadly force, including death or serious bodily harm. This includes any assistance to civilian law enforcement officers in situations where confrontation between civilian law enforcement agencies and civilian individuals or groups is reasonably expected. Such use of force must be consistent with DoDD 5210.56 and may be further limited depending on the specifics of the assistance requested.

Without further context, this reference to deadly force might seem alarming. However, concern about this provision ignores two crucial facts.

No change in DoD policy

First, the added language does not result in a change in department policy. While Directive 5240.01 specifically targets Defense Intelligence components, there is a more general policy – Directive 3025.18 – that governs any support to civilian agencies by the Department of Defense. This umbrella directive, which applies equally to defense intelligence components and has not been updated since 2018, contains language very similar to the language currently causing controversy:

[O]Only the Secretary of Defense may approve requests from civil authorities or qualified entities for federal military assistance for…response assistance involving assets with lethal potential. This support includes gun loans; ships or aircraft; or ammunition. This includes support under Section 282 [Title 10] and Section 831 of Title 18, USC; any support for counter-terrorism operations; and any assistance to civilian law enforcement in situations where confrontation between civilian law enforcement and civilian individuals or groups is reasonably expected.

In fact, the changes to Directive 5240.01 may well have been intended simply to ensure consistency among the Department of Defense's many policy statements. There is nothing suspicious about the timing of these efforts; On the contrary, as the Biden administration comes to an end, authorities will increasingly focus on resolving outstanding issues, for example by issuing policy updates of this kind.

A procedural guarantee, not a source of authority

Secondly, the provision in question – whether in the Framework Directive or the newly revised Directive – appears, at first glance, to be a procedural guarantee rather than a delegation of power. Section 3.3 of Directive 5240.01 sets out, as a whole, the level of authorization that must be obtained before carrying out various types of activities may be. Subsection (a)(2) provides that civilian law enforcement assistance 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 it.

Directive 5240.01 does not provide new authority to deploy the military domestically; nor could it. Department of Defense policies are policy statements issued under the authority of the Secretary of Defense. These are not laws, regulations or even “rules” within the meaning of the Administrative Procedure Act. A directive cannot make an activity lawful if it has no legal basis either in law or in the President's powers under Article II of the Constitution.

Directive 5240.01 therefore cannot, and is not intended to, override the restrictions of the Posse Comitatus Act, which prohibits federal military forces from engaging in law enforcement unless specifically authorized to do so was approved by Congress. In fact, the policy specifically 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 reference this requirement. In virtually all cases, assistance to civilian authorities, which could involve the use of lethal force, would constitute military involvement in law enforcement under the Posse Comitatus Act. Therefore, for legal reasons and under the provisions of Policy 5240.01, such assistance could only be provided if an exception to the Posse Comitatus Act, such as the Insurrection Act, was 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 contained in 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 overseas operational environments.

Pursuant to Policy 5210.56, deadly force is permitted only when there is reasonable suspicion that the subject of that force poses an imminent threat of death or serious bodily harm to any person, or in the following circumstances: self-defense; defense of others; Protecting against theft or sabotage of “assets vital to national security” (e.g. nuclear weapons), “inherently dangerous property” (e.g. man-portable missiles or chemical warfare agents), or “national critical infrastructure” ( e.g. designated public utilities that are…critical to public health and safety) where such theft/sabotage would pose an imminent threat of death or serious bodily harm; various measures to prevent or respond to “serious crimes” – that is, those that pose an imminent risk of death or serious bodily harm; and defense against vicious animals. The new language in Directive 5240.01 includes the requirement that any use of deadly force must comply with Directive 5210.56. In other words, the new directive makes it clear that this is the case not Expanding the circumstances under which deadly force may be used.

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In summary, the new version of Directive 5240.01 simply reaffirms the Department of Defense's existing policy that, in circumstances where it would be lawful to do so under the Posse Comitatus Act or other applicable law, the military will assist civilian law enforcement agencies that have the potential to use lethal force, such assistance cannot be provided without the approval of the Secretary of Defense and must be consistent with long-standing rules governing the use of such force.

Of course, there are good reasons to be concerned about the federal government's power to use military forces domestically against Americans, but the new language in Directive 5240.01 is not one of them. The Insurrection Act poses a far greater danger. It gives the president wide 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 to reform the Insurrection Act, and a bipartisan group of former national security officials convened by the American Law Institute has also called for reform of the Insurrection Act. Those currently sounding the alarm about Directive 5240.01 would do well to refocus their energy on this critical task.

IMAGE: US Department of Defense (DOD) headquarters. (AFP/Getty Images)