10/24/24 Editor's Note: Refining the Comparison for a More Accurate Analysis

10/25/24 Editor's Note: DoD Directive 5240.01: Conspiracy Theory or Legitimate Concern? Updated Analysis Following Harris and RFK Jr.'s Remarks

Our October 7th article about military overreach and DoD Directive 52401.01 has generated unprecedented attention and debate. We published it with two aims: to debunk rumors about authorized assassinations of US citizens, while also raising legitimate concerns about the timing and implications of this directive regarding lethal force against American citizens. The story has since gone viral, becoming Twitter's top story for several days and generating billions of views across social media and Youtube.

Original article published on October 7th. See Editorial Note Above for Corrections. 

Imagine waking up to discover that the U.S. military has quietly been granted the authority to assist in domestic law enforcement activities--including the use of lethal force against U.S. citizens in certain circumstances. Now consider that this change was enacted just weeks before an election, already surrounded by concerns about unrest, civil liberties, and potential government overreach. This is the reality of DoD Directive 5240.01, reissued on September 27, 2024.

Quick Summary

• New provisions: The updated directive expands the circumstances under which the DoD can assist law enforcement, including the use of lethal force.
• Assassination explicitly forbidden: While assassination is banned, the new language allows for lethal actions under "imminent threats."
• Concerns about civil liberties: The expanded definition of "national security threats" is raising alarms, particularly given DHS's broader definition of domestic terrorism threats.
• High-level approval required: Any intelligence-sharing that could lead to lethal force must be approved by the Secretary of Defense, but Component Heads can act immediately for up to 72 hours before obtaining approval.

Introduction

As the U.S. prepares for one of the most controversial and closely watched elections in its history, a concerning update to DoD Directive 5240.01 has quietly been put into effect. Reissued on September 27, 2024, this directive governs the Department of Defense's (DoD) intelligence activities and now includes provisions authorizing lethal force in certain circumstances when assisting civilian law enforcement. While the directive forbids assassination, it opens the door to lethal interventions under "national security" conditions, albeit with stringent restrictions on how such interventions are to be authorized.  

This directive, reissued under the authority of the Secretary of Defense as per standard Department of Defense procedures, carries significant weight in shaping military operations and intelligence activities. While DoD Directives are typically internal policy documents, the implications of this particular update extend far beyond the walls of the Pentagon, potentially affecting civilian life and constitutional rights.

A Quiet Update With Loud Implications

The reissuance of DoD Directive 5240.01 repealed previous versions, including the 1982 DoD 5240.1-R. While the update might seem routine, the changes regarding the use of lethal force in domestic operations are significant.

In the 2016 version, the directive primarily focused on intelligence collection. It emphasized strict oversight and the need for authorization before collecting U.S. person information.

However, the 2024 version expands the military's counter-intelligence role, particularly in assisting civil law enforcement, and authorizes lethal force under specific conditions, raising questions about its use during potential civil unrest surrounding the election.

Read the DoD Directive 5240.01 here.

[The original article published on October 7th compared the 2024 version to the 2016 version; the proper and more foundational comparison is to the 2007 version, which has done on Oct. 24th and can be viewed here: Refining the Comparison for a More Accurate Analysis.  See Editorial Note Above for further comments on Corrections.] 

The Differences Between the 2016 and 2024 Versions

1. Focus of the 2016 Version

The 2016 version of the directive did not mention the use of lethal force. Instead, it focused on:

• Civil liberties protections: Ensuring strict oversight for operations involving U.S. citizens.
• Intelligence collection restrictions: Limiting when and how U.S. person's information (USPI) could be collected.
• Privacy safeguards: Protecting privacy rights and preventing unauthorized data collection.

The 2016 directive centered around intelligence gathering, with no mention of lethal force.

2. New Provisions in the 2024 Version

The 2024 update introduces a dramatic shift, particularly regarding domestic operations. Section 3.3.a.(2)(c) now explicitly permits lethal force in cases of imminent threats or national security emergencies, provided the action complies with legal oversight, specifically DoDD 5210.56, which governs the use of deadly force by DoD personnel.

Key updates include:

• Use of lethal force: The directive allows military intelligence components to assist law enforcement in operations that involve lethal force.
• Conditions for force: The directive specifies lethal force can be used under conditions involving imminent threats.
• Legal oversight: Any use of lethal force must comply with DoDD 5210.56, ensuring proper legal frameworks are followed.

3. Constitutional Protections: 2016 vs. 2024

One of the most significant changes between the 2016 and 2024 versions of DoD Directive 5240.01 is the removal of explicit references to constitutional protections on the cover page in the new version. In the 2016 version, there was a clear emphasis on on the first page ensuring that intelligence activities adhered to constitutional guidelines, particularly concerning the protection of U.S. citizens' rights. This included strict oversight on intelligence collection, ensuring that military actions and intelligence operations respected privacy rights and civil liberties.

While the directive still claims to operate under legal oversight--particularly referencing compliance with DoDD 5210.56, which governs the use of deadly force by DoD personnel--the lack of an explicit constitutional framework in the language of the new directive could lead to military overreach, with fewer checks on power. This shift creates a dangerous ambiguity, potentially undermining the civil liberties that the 2016 version aimed to protect.

As the directive expands the role of military intelligence in domestic affairs, there is growing concern about the further eroding of the boundaries between military and civilian law enforcement. This shift from the 2016 directive's clear-cut protections to the 2024 version's more vague language, and only secondary mention, is a cause for concern and demands closer scrutiny to ensure U.S. citizens' rights remain safeguarded.

Framing the 2024 Directive as a Restriction, Not an Expansion

Although the directive expands the DoD's powers, some interpret it as more restrictive than it appears. Section 3.3 places tight limitations on when intelligence-sharing can occur and requires approval from the Secretary of Defense before any action involving lethal force is taken. The requirement for high-level approval may serve as a check on potential misuse of military force.

The 72-Hour Provision: A Time-Sensitive Response Mechanism

Paragraph 3.5 introduces a 72-hour provision, allowing Component Heads to provide immediate intelligence assistance in time-sensitive circumstances without prior approval from the Under Secretary of Defense for Intelligence and Security (USD I&S) or the Secretary of Defense (SECDEF).

Key points:

1. Immediate action: Component Heads can act in situations where time constraints prevent obtaining prior approval.
2. Relevance to lethal force: This applies in scenarios where lethal force might be necessary to prevent imminent harm.
3. 72-hour limit: The authority is valid for up to 72 hours, after which formal approval is required.
4. Immediate reporting: Component Heads must report their actions to the USD I&S and SECDEF.
5. Approval required for continuation: Any further assistance must be formally approved beyond the initial 72 hours.

Why Timing Matters: Implications for the 2024 Elections

The timing of this update--just six weeks before the election--raises concerns. With debates surrounding election integrity, civil unrest, and political manipulation, the expanded powers granted by the directive could lead to military intervention in domestic affairs if civil unrest arises.

Adding to the concern is the Department of Homeland Security's recent expansion of what constitutes domestic terrorism. The DHS has flagged individuals questioning COVID-19 origins, vaccine efficacy, or election integrity as potential threats. [Read our previous report on this topic here: The 'Vaccine Hesitant' & 'Conspiracy Theorists' a Domestic Terrorism Threat - New Homeland Security Report Implies]. 

This raises questions about how the DoD's new authority to use, or assist civil law enforcement to use, lethal force might be applied in future domestic situations.

Civil Liberties Concerns

The expanded role of the military in domestic affairs, as allowed by the updated directive, raises several civil liberties concerns:

1. Right to protest: There are fears that expanded authority could suppress legitimate protests.
2. Privacy rights: Increased military involvement in domestic intelligence gathering could infringe on privacy.
3. Due process: The military's role in law enforcement could bypass standard due process protections.
4. Freedom of speech: The broad definition of "national security threats" could target individuals for their political beliefs.
5. Civilian control: The expanded military role could erode civilian oversight of the military.

Constitutional Crossroads: Fundamental Rights at Stake

The recent reissuance of DoD Directive 5240.01 represents a significant legal shift that could potentially compromise core Constitutional protections that we hold dear. This directive opens the door to scenarios that may threaten these freedoms:

1. Challenging the Posse Comitatus Act: This Act traditionally limits the powers of the federal government in using military personnel for domestic law enforcement. The new DoD directive, by permitting the use of lethal force through military assistance in civilian law enforcement, may push the boundaries of these limitations.
2. Potential First Amendment Concerns: Natural health advocates and others exercising their First Amendment rights, such as questioning the government's response to COVID-19 or the integrity of elections, have been labeled as potential domestic extremists and/or terrorists by some agencies. This directive could expand those classifications into scenarios involving lethal force interventions, potentially chilling free speech under the guise of national security.
3. Fourth Amendment Considerations: This directive also allows intelligence sharing between military and law enforcement under emergency conditions, raising questions about the right to privacy and the potential for expanded surveillance.
4. Due Process Implications (Fifth Amendment): The possibility of military use of lethal force in domestic scenarios introduces concerns about how due process protections might be maintained before potentially life-altering decisions are made.

These Constitutional considerations underscore the far-reaching implications of the directive and highlight the urgent need for public scrutiny and debate.

Conclusion: A Shift Toward Militarization of Domestic Affairs

The 2024 update to DoD Directive 5240.01 represents a significant shift in the military's role in domestic law enforcement. While proponents argue that high-level approvals add oversight, critics see it as an expansion of military power in domestic affairs.

As the election approaches, maintaining a balance between national security and individual rights becomes ever more crucial. The implications of this directive may reshape the relationship between military power and civilian governance in the U.S. All the more reason why the conspicuous absence of reporting on the subject is further concerning, and why open, public debate on this change of DoD policy should be engaged as soon as possible. We hope this article contributes towards that goal. 

Additional Sources:

• Department of Defense, "DoD Directive 5240.01: DoD Intelligence Activities," August 27, 2007, amended October 15, 2020.
• Department of Homeland Security, "National Terrorism Advisory System Bulletin," February 7, 2022

Originally published on: 2024-10-07

Article updated on: 2024-10-24

Editor's Note: Our initial report was subject to much reporting. It was originally published on Oct. 7th in order to correct some inaccurate information around there, namely, that DoD Directive 5240.01 explicilty authorized the assasination of US citizens by the military, which it does not. The directive did, however, raise some concerns and questions. Including questions around timing.

As the topic evolved, and became the subject of greater scrutiny and criticism, and given the highly polarizing rhetoric being used by the Harris campaign alleging that 'Trump will use the military against US citizens,' we dove deeper into the topic, adding more nuance and understanding as we went. You can view these updates below. 

• Oct. 16: Fact Check: Is the Military Overreaching? The Truth Behind DoD Directive 5240.01's Expanded 'Lethal' Authority
• Oct. 15: Unveiling the Military's Domestic Overreach, and the FAILING of the Posse Comitatus Act
• Oct. 19: The Ultimate Irony: How WU's 'Center for an Informed Public' Buries Critical Concerns on Military Powers
• Oct. 21st: Rep Harris Demands Answers on DoD's 'Lethal Force' Directive; Congressional Inquiry Looms as Concerns Mount
• Oct. 24th: Oct. 24 DoD Directive 5240.01: Between Partisan Fears and Valid Oversight Concerns