Thursday, January 13, 2011

Military Support for Civil Authorities-32 CFR Part 185

An important final rule was published in today's Federal Register at 76 Fed. Reg. pp2246-2253!
The rule claims to have been signed off by DOD lawyers, DHS lawyers, and DOJ lawyers. All of the above correspondence on the rule should be immediately released for interested public perusal IMO.

Certain assumptions in the rule are questionable but one particular definition in the body of the rule I question its validy on Constitutional grounds based on the following:
1. Mary Lawton's 1980 Monograph on Military Support for Civil Disturbances--and note she was the DOJ expert on these/those issues until her untimely death in the early 80's.
2. DOJ/OLC opinions I don't have but saw during my 20 years in FEMA concerning this subject matter.
3. The formal withdrawal of an earlier effort resulting issuance of a draft/proposed rule by DOD on Constitutional grounds in the early 1990's.

The offending language is set forth below:

"Emergency Authority. A Federal
military commander’s 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 because
(1) such activities are necessary to
prevent significant loss of life or wanton
destruction of property and are
necessary to restore governmental
function and public order or (2) duly
constituted Federal, State, or local
authorities are unable or decline to
provide adequate protection for Federal
property or Federal governmental