This Human Rights Day, commemorating the 10 December 1948 proclamation of the Universal Declaration of Human Rights, we embark on a year-long observance of the 50th anniversary of the two International Covenants on Human Rights: the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966. Together these documents form an International Bill of Human Rights, the birthright of all human beings with respect to civil, political, cultural, economic, and social rights.
The United States has drawn world focus on rights and freedoms – freedom of speech, freedom of worship, freedom from want, and freedom from fear – often in the context of preserving and promoting human rights through strong national and homeland security efforts, and requisite defense support to civil authorities, in the wake of natural and man-made disasters threatening each of those rights and freedoms.
Defense support of civil authorities must be considered in light of an evolution, rather than revolution, involving over a century of domestic federal troop deployments and 200-plus years of legal precedent, starting with the US Constitution, Article I, Section 8 as the basis for Federal government support, including Department of Defense assistance, to State and local authorities, as well as the 10th Amendment, inasmuch as “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it, are reserved to the States respectively.”
The Insurrection Act of 1807 was one of the first and most important US laws still in force on this subject to limit executive authority to conduct military law enforcement on US soil, and was followed some 71 years later by the Posse Comitatus Act of 1878. Each of those and other civil support laws has evolved over time — consistent with the times and the popular will expressed through Congress.
Amongst the many lessons re-learned or real-world experiences validated, US interagency cooperation demonstrates that after state and local authorities had reached their capacity in dealing with previous disasters, additional federal authorities may have to assist local authorities with response to civil unrest and other challenges. Months after the disastrous effects of the October 2012 Superstorm Sandy, and weeks prior to the devastating 15 April 2013 Boston Marathon bombings, the Summer 2013 El Reno tornado in Oklahoma, and the wildfires in both Arizona and Colorado, the US Department of Defense (DOD) issued a DoD instruction and a strategy document clarifying the rules for the involvement of military forces in civilian law enforcement and DOD support to Federal, State, tribal, and local civilian law enforcement agencies, including responses to civil disturbances. This is especially important in the realm of so-called complex catastrophes that would overwhelm local and state agencies individually and require federal agency involvement with the DOD supporting an overall effort.
Thereafter, during the Spring of 2014, another series of domestic natural disasters included deadly severe storms, tornadoes and flooding; in the aftermath of destruction, National Guard members worked, “in coordinated efforts with civilian agencies … responding to communities in several states across the south.”
At least 62,000 unaccompanied children from Central America have come across the US-Mexico border from the Fall of 2013 up through the time of this writing; they were believed fleeing gang activity that could threaten to US national security. In defense support to the Department of Health and Human Services (HHS), the unaccompanied children stopped by US Border Patrol are now being cared for by HHS’ Administration for Children and Families (ACF).
Aside from the aforementioned bases for support, Section 1208 of the 1990 National Defense Authorization Act (later titled Section 1033, which subsequently became Section 2576a), has allowed the Secretary of Defense to transfer to Federal and State agencies personal property of the DOD, including small arms and ammunition, suitable for use by such agencies in counter-drug activities and excess to DOD needs. Since its inception, the “1033 program” has transferred more than $5.1 billion worth of property. Critics of the program, such as the ACLU, claimed “a disturbing range of military gear [is] being transferred to civilian police departments nationwide.” This “1033 program,” coupled with National Guard deployment in Ferguson, MO, became the subject of critical media focus in the wake of police response to riots in August 2014 following the police shooting of crime suspect Mike Brown. Thereafter, President Obama issued the 16 January 2015 Executive Order 13688, which, along with the 18 May 2015 Law Enforcement Working Group Recommendations Pursuant to Executive Order 13688, directs executive departments and agencies to better coordinate their efforts to operate and oversee the provision of controlled equipment and funds for controlled equipment to law enforcement agencies.
The FBI has aptly observed that “[t]here’s no room for failure—when it comes to weapons of mass destruction, even a single incident could be catastrophic.” Former Secretary of Defense Leon Panetta warned the Nation in Fall 2012 of a potential coming “cyber Pearl Harbor; an attack that would cause physical destruction and the loss of life … [that] would paralyze and shock the nation and create a new, profound sense of vulnerability.” The policies and legal authorities governing Defense Support to Civil Authorities extend to cyber operations, as they would in any other domain. The Department of Defense works closely with its interagency partners, including the Departments of Justice and Homeland Security, to address threats to the United States from wherever they originate and to protect the rights of its citizens from foreign and domestic threats.
As George C. Marshall, the great soldier-statesman remarked in his 23 September 1948 speech to the United Nations General Assembly, “in the modern world the association of free men within a free state is based upon the obligation of citizens to respect the rights of their fellow citizens. And the association of free nations in a free world is based upon the obligation of all states to respect the rights of other nations.”
Image credit: Army Spc. Anthony Monte helps a woman displaced by Hurricane Sandy at an emergency shelter at the Werblin Recreation Center in Piscataway Township, N.J., Oct. 29, 2012. Monte is assigned to the 50th Infantry Brigade Combat Team, New Jersey Army National Guard. Department of Defense. Public domain.