The decision was not based on any assessment of the conditions on the ground. Rather, six justices construed the law to permit federalization of National Guard forces only in situations where the use of active-duty armed forces was—or, possibly, would be—insufficient. Five justices opined that the president could not make such a showing under current circumstances, while Justice Brett Kavanaugh opined in his concurrence that the president simply had not made such a showing.

Following the ruling, Trump announced on social media that he would pull federalized Guard forces out of Chicago, as well as Los Angeles and Portland, Ore. (where he had also invoked 10 U.S.C. § 12406(3)) . . . for the time being. But he also promised to “come back, perhaps in a much different and stronger form,” in the future. 

Legal scholars have observed that the Supreme Court’s decision leaves open two avenues for Trump to reattempt deployment of federal forces: He could deploy active-duty armed forces pursuant to a claim of inherent constitutional authority, or he could invoke the Insurrection Act to deploy either active-duty or federalized National Guard forces. While the majority decision does not expressly foreclose either of these options, however, its rationale does create significant new obstacles for them. 

Background

The statute that Trump invoked in California, Oregon, and Illinois allows the president to federalize National Guard forces when, inter alia, “the president is unable with the regular forces to execute the laws of the United States” (10 U.S.C. § 12406(3)). All three states filed lawsuits arguing that this statutory criterion had not been met because civilian law enforcement had been able to manage the sporadic incidents of violence accompanying protests against ICE. 

The administration argued that the president’s decision on this matter was judicially unreviewable. In the alternative, it argued that courts must extend substantial deference to the president’s judgment; that the phrase “unable . . . to execute the laws” cannot be read literally, and should instead be read to encompass significant impediments to law enforcement; and that the violent actions of some protesters were sufficient to meet this threshold.

The rulings of the courts in all three states focused largely on these questions. No court agreed with the administration that the president’s invocation of the statute was unreviewable. All three district courts held, as a factual matter, that the president was able to execute the laws without resort to the military. But the conclusions of the district courts in California and Oregon were rejected by appellate panels in the Ninth Circuit, on the ground that the district judges had not given the president sufficient deference in his assessment of the facts. The Seventh Circuit, by contrast, found no “clear error” in the district judge’s factual findings.

Throughout these lower court proceedings, the legal question that would ultimately dominate the Supreme Court’s ruling arose in only one place: the district court’s ruling in the Illinois litigation. The parties had assumed that the term “regular forces” in 10 U.S.C. § 12406(3) referred to civilian law enforcement. Judge April Perry, however, closely examined the legislative history of the statute and concluded that the term referred to the active-duty armed forces. She further determined that 10 U.S.C. § 12406(3) did not itself authorize the deployment of the active-duty military. In the absence of statutory authority, the president could deploy troops domestically only if “the civil power has failed,” and the evidence in the record did not show any such failure. 

On appeal, the Seventh Circuit did not engage in the “thorny and complex” question of whether “regular forces” refers to civilian officials or active-duty armed forces. The panel found that 10 U.S.C. § 12406(3)’s condition for federalization was not met under either interpretation, as there was “insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws.” And in the briefs filed with the Supreme Court, both parties continued to assume that “regular forces” meant civilian law enforcement. 

After Georgetown Law professor Marty Lederman filed an amicus brief providing strong support for the district court’s interpretation, however, the Supreme Court requested additional briefing on this question from the parties. As the weeks went by without a ruling, it became clear that the Court was wrestling with legal questions far beyond the more straightforward (albeit weighty) issues of how much deference to extend to the president and whether the facts supported his assessment under the appropriate standard of review.

The Supreme Court’s Majority Ruling

The Supreme Court denied Trump’s application to stay the injunction in Illinois by a vote of 6-3. There were four separate opinions: the opinion of the Court on behalf of Justices John Roberts, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson; a concurring opinion filed by Justice Kavanaugh; a dissent filed by Justices Samuel Alito and Clarence Thomas; and a separate dissent by Justice Neil Gorsuch. 

The six justices in the majority agreed with the district court and Prof. Lederman that the term “regular forces” means the active-duty armed forces. There is, indeed, overwhelming support for this interpretation in the legislative history and contemporaneous historical documents. To be sure, this interpretation leads to a counterintuitive result: In addressing domestic disturbances, the president (at least under 10 U.S.C. § 12406(3)) must turn first to the professional, full-time armed forces, rather than summoning the local, part-time “citizen soldiers” of the National Guard. In modern times, this feels like using a Howitzer when a pistol would suffice. As Prof. Lederman pointed out, however, this order of operations made more sense in 1908, when the statute was enacted. At the time, the state militia were perceived (in the words of a leading treatise) to be “inefficient, ill led, ill equipped, and undisciplined,” and their deployment “invariably” led to “bloodshed and casualties resulted.” By contrast, the active-duty armed forces “were believed inherently nonpartisan, more reliable, and more efficient.” 

In his concurrence, Justice Kavanaugh noted that, “[o]n the current record . . . it does not appear that the President has yet made the statutorily required determination that he is ‘unable’ with the U. S. military, as distinct from federal civilian law enforcement officers, to ensure the execution of federal law in Illinois.” Justice Kavanaugh would have denied the stay application on that basis alone; he saw no need to proceed any further. Of course, Trump could easily cure that procedural defect, thus restarting the entire process. 

Rather than invite such delay, the five other justices in the majority squarely addressed whether Trump was “unable” to execute the laws using active-duty armed forces. As a threshold matter, they determined that, “[b]ecause the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws.” This is a crucial point, as the administration had argued that a lack of legal authority to deploy the active-duty military would itself render the president “unable with the regular forces to execute the laws.” 

The five justices then observed that the Posse Comitatus Act (PCA) prohibits using the active-duty military to execute the laws absent an express statutory or constitutional exception. Trump, they noted, had not invoked a statutory exception that would permit deployment of active-duty troops. (The opinion does not explicitly reference the Insurrection Act, but that is presumably what the justices had in mind.) The only authority the administration invoked that would permit such deployment was an “inherent constitutional authority that, according to the Government, allows [the president] to use the military to protect federal personnel and property.” 

The administration did not argue that this claimed constitutional authority constitutes an exception to the PCA that allows federal armed forces to execute the law. After all, an “inherent” constitutional power cannot be an “express” exception, as required by the PCA. (Indeed, the PCA’s legislative history suggests that there are no constitutional exceptions.) Rather, relying on a Department of Justice opinion from the Nixon era, the administration argued that protecting federal property, personnel, and functions does not constitute “executing the laws,” and so the PCA simply doesn’t apply. 

The five-justice majority, however, refused to let the administration have it both ways. If such protective functions do not constitute “executing the laws,” the majority reasoned, then National Guard forces cannot be federalized and deployed to perform such functions under a statute (10 U.S.C. § 12406(3)) that authorizes deployment for the purpose of “executing the laws of the United States.” In other words, either the PCA applies and would presumably bar deployment of active-duty troops, or it doesn’t apply—and, for the same reason, neither does 10 U.S.C. § 12406(3). 

What Options Might (or Might Not) Remain for the Trump Administration

Deployment of Active-Duty Armed Forces Under Claimed Constitutional Authority 

In theory, the majority decision does not squarely foreclose the deployment of active-duty troops under a claim of inherent constitutional authority to protect federal personnel and property, divorced from any reliance on 10 U.S.C. § 12406(3). However, the majority’s reasoning—and the administration’s own representations in the litigation—would pose significant barriers to this approach. 

Significantly, the majority did not recognize that the president actually has inherent constitutional authority to deploy federal troops to protect federal property, personnel, and functions. In his “outstanding definitive treatment of the issue” (as described by Jack Goldsmith), Professor Chris Mirasola has made a strong case that there is no such inherent power. And even if one existed, Prof. Mirasola explains that it has been displaced by a comprehensive statutory framework vesting protective responsibilities in multiple civilian agencies and limiting military support for civilian government. 

The majority’s opinion provides yet another reason to reject the executive branch’s claim of inherent authority. The administration asserts that this authority derives from the Take Care Clause, under which the president “shall take Care that the Laws be faithfully executed.” But the administration has also argued that federal protective functions do not constitute “executing the law.” If that is correct, the president cannot rely on the Take Care Clause for the same reason the majority ruled that he could not rely on 10 U.S.C. § 12406(3): he cannot invoke an authority to execute the law as a basis for deploying troops to do something that is not executing the law.

As noted above, the majority did not resolve whether deploying troops to protect federal property, personnel, and functions constitutes executing the law. In fact, the actions National Guard forces were authorized to perform in California, Oregon, and Illinois—actions such as security patrols, crowd control, and traffic control—would clearly constitute “executing the laws” under the PCA as interpreted by the courts. The administration, however, is unlikely to reverse its position on this question. Even if doing so would remove one hurdle to relying on the Take Care Clause (many others still remain), it would leave the administration without any serious way around the PCA.

On this point, Justices Alito and Thomas—who accept virtually every one of the administration’s arguments in their dissent—make a basic error. They express incredulity that “the Posse Comitatus Act somehow limit[s] a President’s inherent constitutional authority” (an authority that they wholeheartedly embrace). But the seminal case of Youngstown Sheet & Tube Co. v. Sawyer establishes that Congress may limit a president’s constitutional authority as long as Congress is acting within its own constitutional authority. As Prof. Mirasola has recounted, Congress plainly has authority to enact legislation regarding the protection of federal property, personnel, and functions, and it has done so—uncontroversially—through an extensive set of statutes.

Deployment of active-duty troops would face another barrier, this one political as much as legal. In its briefing before the Supreme Court, the administration argued that, while it had legal authority to deploy active-duty troops, it was “unable,” for purposes of 10 U.S.C. § 12406(3), to execute the laws in Chicago using those troops. Its reasoning is remarkable and merits reproducing in full (with internal citations deleted): 

Here, the President could reasonably determine that using the standing military rather than the National Guard to protect DHS personnel and property in Illinois would significantly impede execution of the federal immigration laws because the standing military is less well suited than the National Guard to perform such protective functions on the streets of American cities. After all, the standing military’s primary function is to win wars by deploying lethal force against foreign enemies, whereas the National Guard traditionally helps to keep the peace among the citizenry during domestic disturbances. In fact, one of respondents’ own witnesses, a retired Army general, stated that soldiers in the standing army have “an aggressive mindset” because their “mission” is to “destroy the enemy,” not “try to prevent confrontation and reduce the use of lethal force.” Likewise, given the strident opposition of state and local political leaders, who are actively campaigning for DHS to leave Illinois and have compared federal agents to roving bands of violent criminals and Nazi troopers, the President could reasonably have determined that deploying the standing military would result in even more strident resistance, resulting in even more “tepid” support from state and local police. Similarly, the nature of the violent opposition encountered may have led the President to conclude that the National Guard, not the standing military, is uniquely adapted to achieve the protective mission. As violent mobs confronted ICE agents in Chicago, leading them to fear for their lives on a daily basis, the President could reasonably have determined that the members of the National Guard—with their greater local knowledge, ties to the community, and domestic focus—would be more effective than active-duty soldiers in addressing those threats.

That is a stunning concession. Not only would active-duty troops be less effective (according to the administration) in providing protective functions; they are so poorly suited to such a mission that their deployment would “significantly impede execution of the federal immigration laws.” It is difficult to see how the administration could justify deploying active-duty armed forces after such a representation. At a minimum, any such action would be even more politically fraught than it would otherwise have been.

Invocation of the Insurrection Act 

The majority opinion does not address the Insurrection Act, merely noting that Trump had invoked no statutory authority to deploy active-duty troops. Trump thus retains this option, at least in theory. But here, too, the majority opinion creates a potential obstacle.

Of course, the initial question would be whether an Insurrection Act invocation is subject to any judicial review (the administration argues that it is not). The majority opinion sheds no light on whether courts could review the president’s assessment of the facts and, if so, under what standard. However, the majority’s willingness to construe the term “regular forces” strongly suggests that the Court would find no impediment to courts construing the terms of the Insurrection Act.

The Insurrection Act allows the president to deploy active-duty troops or federalized National Guard forces under circumstances set forth in three separate provisions. The first of these provisions authorizes deployment when a state requests assistance to suppress an insurrection against the state’s government. That provision clearly would not apply in California, Oregon, or Illinois. 

The second and third provisions do not require an insurrection or a state request for assistance. However, while they are less direct and succinct on this point than 10 U.S.C. § 12406(3), they both contain language indicating that the purpose of any deployment under the statute is to enable execution of the law. The second provision reads:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion [emphasis added].

Similarly, the third provision provides that the president may deploy troops to suppress an “insurrection, domestic violence, unlawful combination, or conspiracy,” but only if the circumstance in question either (1) “hinders the execution of the laws of that State, and of the United States within the State” in a way that leads to civil rights deprivations, or (2) “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws” (emphasis added).

Both provisions thus frame deployment as a means to execute the law in the face of obstructions to such execution. Yet the administration, in seeking to insulate its claim of inherent constitutional authority from the PCA, has insisted that protecting federal property, personnel, and functions is not executing the law. 

In theory, the administration could safely abandon that position when invoking the Insurrection Act, as the statute is widely understood to provide an exception to the PCA. In practice, though, it would be extremely awkward for the administration to perform such a complete reversal of its own position—and the longstanding position of the Department of Justice—before the courts. Moreover, it would undermine any concurrent or future attempts to rely on the claim of inherent constitutional authority. 

The administration would no doubt argue that protective functions can be in service of executing the law even if they are not, themselves, law execution. But that same logic would apply in the context of 10 U.S.C. § 12406, which—like the Insurrection Act—references execution of the laws in describing the problem deployment is meant to solve, not the actions troops may take. The majority’s opinion makes clear that if the goal of deployment under the statute is the execution of the law, the statute does not authorize deployment for non-law-execution functions. Accordingly, if the administration sticks to the legal fiction that protective functions are not executing the law, the Court could well find that the Insurrection Act does not provide authority for them. 

***

The majority opinion thus not only forecloses Trump’s reliance on 10 U.S.C. § 12406; it poses significant challenges for any future attempt to deploy active-duty troops under a claim of inherent constitutional authority or to invoke the Insurrection Act for the purpose of protecting federal property, personnel, and functions. And Justice Gorsuch’s dissent suggests a potentially even greater hurdle for the administration. Even though Justice Gorsuch would have granted the stay on the limited record before the Court, he emphasized the need for further briefing on the “sensitive and gravely consequential questions concerning what roles the National Guard and U.S. military may play in domestic law enforcement.” In particular, he posed a question that went beyond even the plaintiffs’ presentation of the issues: “When, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution?”

For more than two centuries, the Court has managed to avoid confronting that question. If Trump continues to abuse the military to police protests in U.S. cities, the Court might finally be induced to answer it.

The post <i>Trump v. Illinois</i>: A Narrow Supreme Court Decision with Broad Implications appeared first on Just Security.

What do we know about the operation and the National Guard’s role?

Around 315 Guard personnel were deployed to assist DEA in executing a federal search warrant as part of an investigation into three large marijuana growth operations in the eastern Coachella Valley region. A DEA spokesperson said that the agency requested support due to the “magnitude and topography” of the operation, which spanned 787 acres and took place in temperatures up to 112 degrees. The operation also involved the Federal Bureau of Investigation; Customs and Border Protection; ICE; the Bureau of Alcohol, Tobacco, Firearms and Explosions; the U.S. Marshals Service; and the Internal Revenue Service. During the raid, ICE agents arrested between 70 and 75 workers believed to lack documentation, and one U.S. citizen was arrested for impeding law enforcement.

In response to a reporter’s inquiry, NORTHCOM stated that National Guard forces had “supported a Drug Enforcement Agency operation a few hours outside of Los Angeles” and that their role in the operation was to “protect federal personnel who are performing federal law enforcement functions.” The DEA spokesperson defined the Guard’s role more broadly: “Due to the vast magnitude of the operation, we needed partners to safeguard not just our personnel, but also the individuals either working or living in the premises.” The administration has not publicly disclosed what specific activities Guard personnel were authorized to perform. Images posted by the U.S. military to the Defense Visual Information Distribution Service show soldiers carrying riot shields and creating security perimeters next to their Humvees in various locations.

Is there legal authority for this use of the National Guard?

NORTHCOM has framed this use of the Guard as a continuation of the activities authorized by the president’s June 7 memorandum. As NORTHCOM stated, “[T]he president’s [June 7] order and NORTHCOM’s mission is not constrained by the geography of Southern California.” While it is true that the deployment authorization in the memorandum is not limited to Los Angeles, it is limited to “locations where protests against [federal] functions are occurring or are likely to occur based on current threat assessments and planned operations.” NORTHCOM made no effort to suggest—and it is frankly implausible—that protests were planned against the drug raid in Coachella Valley. The DEA’s statement similarly made no mention of protest activity. The deployment thus appears to be unauthorized even under the presidential memorandum.

There is also no applicable statutory authority to federalize National Guard forces for this purpose. Several thousand members of the California National Guard are currently federalized under 10 U.S.C. § 12406, which permits federalization in three circumstances: where there is an invasion or threat of an invasion; where there is a rebellion against the authority of the U.S. government or threat of such a rebellion; or where the president “is unable with the regular forces to execute the laws of the United States.” Applying a highly deferential standard, the Ninth Circuit recently held that the third prong had likely been met, relying on government declarations detailing multiple acts of violence by people protesting ICE raids in Los Angeles. Needless to say, however, Guard forces federalized under this rationale cannot then be deployed for different circumstances that do not fall within the statute. There is no allegation of protest activity—let alone violent protests—in the region where the drug raid took place. The fact that the marijuana growing operations spanned many acres and the day was hot cannot seriously be posited as a reason why the president could not execute the law without the help of the military.

Nor can the administration rely on a claim of inherent constitutional authority to protect federal property and functions. This claimed authority has been used throughout U.S. history to justify certain uses of federal forces, but it is not an independent basis for federalizing the National Guard. Statutory authority is required for federalization. Moreover, as Ryan Goodman has pointed out, the Department of Justice has opined that this authority is triggered only in cases where civilian authorities are unwilling or unable to provide the necessary protection. There is no reason to think that is the case here. Finally, it appears that National Guard forces were not only protecting federal personnel and functions; as noted above, a DEA spokesperson suggested that they were also protecting “the individuals either working or living in the premises.”

Finally, the administration might point to 10 U.S.C. Chapter 15, which authorizes the use of federal armed forces to provide a range of logistical support to civilian law enforcement agencies. The chapter does not authorize federalization of the National Guard, however. Moreover, even under the provision specifically authorizing assistance for counter-drug operations, federal forces are limited to activities such as maintaining and repairing equipment, transporting personnel, constructing roads and fences, and conducting aerial and ground reconnaissance. There is no authority in Chapter 15 for federal forces to perform security functions such as those the National Guard appeared to be performing during the drug raid.

Does this use of the National Guard violate the Posse Comitatus Act?

The Posse Comitatus Act prohibits federal forces, including federalized National Guard forces, from participating in civilian law enforcement activities unless “expressly authorized” by an act of Congress or by the Constitution. Courts have construed the law to apply when troops engage directly in law enforcement activities, but not when they merely provide indirect logistical support for law enforcement operations.

There is very little public information available about what activities the National Guard conducted or was authorized to conduct. So far, we know only that Guard forces created a security perimeter around operations. Under Department of Defense guidelines, such “security functions” are treated as direct law enforcement assistance and are normally impermissible—likely because they invite the kind of face-to-face interaction with civilians that the Posse Comitatus Act is designed to prevent. Under the case law, however, it is not clear whether courts would find this activity to run afoul of the Posse Comitatus Act. If it emerges that Guard forces engaged in temporary detentions, cursory searches, or seizures, the Posse Comitatus Act will be squarely implicated. And there is an argument that involving 315 National Guard soldiers in a law enforcement operation—more soldiers than civilian agents—itself crosses the legal line, as courts have held that the Posse Comitatus Act prohibits using the military in a way that “pervade[s] the activities of civilian authorities.”

The administration would likely argue, as it has in litigation challenging the Los Angeles deployment, that the Posse Comitatus Act is simply inapplicable when federal forces are deployed to protect federal property and functions. Although this is a longstanding executive branch theory, there is no colorable basis for it. Courts have held that the Posse Comitatus Act is triggered when civilians are subjected to military power that is “regulatory, prescriptive, or compulsory in nature.” This test does not rely on the purpose of the deployment. And even if the purpose were dispositive, it would be legal sophistry to assert that protecting the “federal function” of conducting drug raids—in other words, protecting law enforcement activities—is not a law enforcement purpose.

What are the broader concerns?

The lack of any legal authorization for this use of federalized National Guard forces is, of course, highly concerning in its own right. But the use of federal forces to assist with drug raids also represents a massive shift in, and an expansion of, Trump’s domestic use of the military.

The deployment of federal troops to Los Angeles was based on a claim that there was an urgent crisis in the city caused by mass civilian unrest. According to fact checkers and on-the-ground accounts, the claim did not match up with the reality; the violence that occurred fell far short of the levels that prompted deployment in previous cases of civil unrest, such as the riots that took place in Detroit in 1967 or in Los Angeles in 1992. But at least there was a claim of extraordinary exigency. Here, no reason has been offered that could possibly justify the use of the military, even on its face. This is nothing short of using the military for routine law enforcement purposes.

Regardless of whether the Guard’s actions technically implicate the Posse Comitatus Act, the Department of Justice has observed that

the [Posse Comitatus] Act was intended to prohibit the employment of persons subject to military discipline to coerce or threaten to coerce civilians in the ordinary course of criminal or civil proceedings …. Congress intended to remove the threat of actual or potential military force from the ordinary occasions of compulsion by the civil authorities.

Military participation in routine criminal law enforcement functions like drug raids is precisely the type of activity the Posse Comitatus Act was intended to prevent. Indeed, if this use of the military were to be upheld by the courts, it is not obvious what would stop Trump from deploying federal forces to accompany almost any federal law enforcement operation—civil or criminal—anywhere in the nation, based on justifications as mundane as temperature or topography.

In short, this development must not be viewed as simply another chapter in the Los Angeles deployment story. This use of federal forces is different in kind from deploying troops to protect ICE raids in response to some violent actions during protests. Both are equally alarming. But while using the military to police protests threatens to undermine core First Amendment freedoms, using the military to conduct routine law enforcement activity threatens to turn the country into a police state.

The post Trump’s Use of Federal Troops in Drug Raid Outside of Los Angeles: An Alarming Escalation appeared first on Just Security.

As events unfold on the ground in LA, and in the lead-up to further anticipated protests this weekend, Just Security and the Reiss Center on Law and Security hosted a YouTube Live event to examine the pressing legal and policy issues at stake.

Show Notes: 

• Watch the full June 12th, 2025 event on YouTube, here.
• Elizabeth Goitein: Senior Director, Liberty & National Security Program, Brennan Center for Justice
• Mary B. McCord: Visiting Professor of Law and Executive Director, Institute for Constitutional Advocacy and Protection, Georgetown Law; Member, Board of Directors, Just Security
• Steve Vladeck: Agnes Williams Sesquicentennial Professor of Federal Courts, Georgetown Law; Executive Editor, Just Security   
• Ryan Goodman: Anne and Joel Ehrenkranz Professor of Law and Faculty Co-Director, Reiss Center on Law and Security, NYU School of Law; Founding Co-Editor-in-Chief, Just Security 
• Just Security’s Civilian-Military Relations coverage.
• Just Security’s Domestic Deployment of the U.S. Military coverage.
• Just Security’s Law Enforcement archives.

The post The Just Security Podcast: The Situation in Los Angeles and the U.S. Military appeared first on Just Security.

1. What legal authorities did Trump invoke to authorize deployment of the military?

The use of federal forces (including federalized National Guard forces) to perform core civilian law enforcement functions is barred by the Posse Comitatus Act unless “expressly authorized by the Constitution or Act of Congress.” The statutory authorization for using federal troops to quell civil unrest is the Insurrection Act, the name given to an amalgamation of laws passed between 1792 and 1871. The Insurrection Act authorizes the president to deploy federal troops to quell domestic violence, insurrections, and rebellions against U.S. authority and to execute federal and civil rights laws when they are being obstructed.

Trump’s memorandum notably does not invoke the Insurrection Act. Instead, it cites 10 U.S.C. § 12406, a law enacted in 1903 that allows the president to call up the National Guard if there is “a rebellion or danger of a rebellion against the authority of the Government of the United States” or if “the President is unable with the regular forces to execute the laws of the United States.” Although the relationship between the Insurrection Act and 10 U.S.C. § 12406 is admittedly murky, presidents have essentially treated § 12406 as the technical call-up authority that accompanies the Insurrection Act’s substantive grant of power. They have thus consistently invoked the two authorities together when deploying federal troops to quell civil unrest.

Trump, however, has attempted to decouple these authorities. In federalizing and authorizing deployment of the National Guard, Trump appears to be either relying on § 12406 as a stand-alone authority or, alternatively, pairing § 12406 with a claimed inherent constitutional power to deploy troops to protect federal personnel, property, and functions (discussed further below). In authorizing deployment of active-duty armed forces, Trump is ostensibly relying solely on a claim of inherent constitutional power, given that § 12406—unlike the Insurrection Act—does not authorize deployment of active-duty armed forces.

It is unclear why Trump has chosen this approach, particularly in light of the enthusiasm he has shown for the Insurrection Act in the past. One possible explanation is that Americans are more familiar with the Insurrection Act and its potential for abuse; invoking it would have been sure to provoke an immediate firestorm of controversy. Section 12406 is far less well-known, and its complicated relationship to the Insurrection Act and the Posse Comitatus Act can be confusing.

2. What can (and can’t) the military do under these authorities?

If Trump is relying solely on § 12406 to authorize federalization and deployment of the National Guard, that could trigger a legal challenge. Whether § 12406 may serve as an independent deployment authority and a substantive grant of power, when it has almost always been treated simply as a statutory basis for shifting control over the Guard from the governor to the president, would be a question of first impression for the courts. So, too, would the question of whether § 12406 constitutes an exception to the Posse Comitatus Act—i.e., whether troops could perform core law enforcement functions, which the Posse Comitatus Act otherwise prohibits, or whether they would be limited to providing logistical support to civilian officers. (The complaint in Governor Newsom’s lawsuit does not challenge the use of § 12406 as a stand-alone authority but does allege Posse Comitatus Act violations.)

To the extent Trump is relying on a claim of inherent constitutional authority, different legal difficulties arise. Office of Legal Counsel memoranda have long taken the position that the president has an inherent constitutional power to use troops for the protection of federal property and federal functions, and that such use does not constitute law enforcement for purposes of the Posse Comitatus Act. Department of Defense policies similarly provide that military commanders may, without violating the Posse Comitatus Act, engage in “activities that are necessary to quell large-scale, unexpected civil disturbances … to protect Federal property or functions.” But this is largely an executive branch-created doctrine, and any attempt to use this theory to justify participation in core law enforcement activities would be subject to challenge.

In short, these authorities do not give Trump the same unambiguous authority to use troops for law enforcement that the Insurrection Act would. It’s not clear, however, how much difference that will make as a practical matter. For one thing, if courts interpreted these authorities as being significantly more constraining than the Insurrection Act, Trump could simply issue an Insurrection Act invocation. After all, his finding of a “rebellion” for purposes of triggering § 12406 could also be used to trigger the Insurrection Act.

Moreover, Trump has now deployed 300 National Guard members and a full battalion of 700 Marines into Los Angeles over the objection of state and local officials. Even if their role is framed as protecting federal property and functions, federal protection activities in other contexts (caveat: involving Title 32, not Title 10, operations) have included activities that the Department of Defense itself ordinarily considers impermissible “direct assistance” to civilian law enforcement, such as crowd control, temporary detention, and cursory searches. Given the increasingly turbulent nature of the Los Angeles protests in the wake of the National Guard deployment, Guard forces acting to insulate ICE’s activities against disruption will surely be exercising the kind of coercive control over civilians that would normally trigger the Posse Comitatus Act.

3. Can the president federalize the National Guard without state consent?

Under the Insurrection Act, the president may federalize National Guard forces without state consent in certain circumstances. A president can even send one state’s National Guard forces, once federalized, into another state over the latter state’s objection. That is because federalized National Guard forces temporarily become a part of the federal armed forces.

Under § 12406, things are a bit more complicated. As my colleague Joseph Nunn has written, section 12406 is a “troublingly ambiguous statute.” The first part of the law, enacted in 1903, appears to give the president unilateral authority to call the National Guard into federal service. The second part, however, which was added in a subsequent amendment, provides that “[o]rders for these purposes shall be issued through the governors of the States”—suggesting the need for state cooperation. Unfortunately, the legislative history sheds little light on why the second provision was added or what Congress believed should happen in a situation where a governor refused to transmit orders.

Within a year of the amendment, the potential conflict between the two provisions of § 12406 came into sharp relief. When President Eisenhower invoked the Insurrection Act to enforce school desegregation in Little Rock, Arkansas, he complied with § 12406 and requested that Governor Orville Faubus deliver the federalization order. When the governor refused, Eisenhower’s team simply went around him and had the order delivered through the Arkansas Guard’s Adjutant General.

The lawsuit filed by Governor Newsom on Monday alleges that the Department of Defense did not transmit the relevant orders through (or even to) the Governor’s office. The question of whether this end run around the process set forth in § 12406 passes legal muster—and how § 12406 operates in a situation where a governor does not consent to deployment—is now squarely before the courts.

4. When is it lawful and appropriate for a president to deploy the military to quell civil unrest?

The Insurrection Act and § 12406 are both written in broad terms that, on their face, give the president significant discretion to deploy troops to quell civil unrest or to enforce the law. Nonetheless, the Department of Justice has historically construed the Insurrection Act as being “limited … by the Constitution and by tradition,” despite the fact that some of its provisions “appear on their face to confer broad authority to use troops to enforce federal law generally.” More specifically, the Department has opined that presidents should invoke the law only as a “last resort,” in cases where (1) a state requests assistance to suppress an insurrection; (2) there is state defiance to a federal court order; or (3) “state and local law enforcement have completely broken down,” meaning that “state authorities are either directly involved, by acting or failing to act . . . or are so helpless in the face of private violence that the private activity has taken on the character of state action.” If § 12406 were deemed an independent substantive grant of power, the Constitution and tradition would presumably mandate the same limiting interpretation.

This high bar for domestic deployment recognizes the critical importance of limiting military participation in civilian law enforcement. The principle expressed in the Posse Comitatus Act has been a core feature of Anglo-American legal and political thought for centuries, dating back to the Magna Carta. As history has repeatedly shown, there is little that threatens individual liberty or facilitates tyranny more than the unchecked ability of a country’s leader to turn the military inward against the people.

There are also compelling practical reasons why the military should not serve as a domestic police force. Soldiers are trained to fight and destroy an enemy; most have little to no training in peacefully enforcing the law and deescalating conflict while respecting constitutional rights. Throwing them into a civil unrest scenario creates risks to civilians and soldiers alike. It also pulls them away from their core missions, including defending the country against threats from hostile foreign powers and—in the case of the National Guard—responding to natural disasters.

5. Is the deployment authorized by Trump’s memorandum lawful and appropriate?

Even if Trump were to deploy the military only to Los Angeles, the deployment would not meet the criteria previously articulated by the Department of Justice for using federal forces to quell civil unrest. State and local law enforcement have not “completely broken down”; the relevant police units are neither failing to act nor “helpless.” To the contrary, police have responded with rubber bullets, flash-bang grenades, and pepper spray. This is a far cry from the situation in 1957, when Arkansas police (and the Arkansas National Guard, for that matter) stood shoulder-to-shoulder with the white mobs who opposed court-ordered school desegregation.

More alarming, nothing in the memorandum limits deployment of the military to the city where protesters are now clashing with ICE officers. Indeed, the memorandum doesn’t even mention Los Angeles. It purports to authorize deployment to protect ICE and other federal personnel performing federal functions “at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.” In other words, federalized Guard forces could be sent anywhere in the country where protests against ICE are deemed likely. There is no requirement that the protest involve violence, vandalism, or any disruptive or illegal activity (raising First Amendment concerns along with concerns about use of the military). Indeed, the deployment may occur before any protest has even happened. On Sunday, Trump confirmed the intent behind the memorandum, promising that “we’re going to have troops everywhere.”

This is truly unprecedented. Preemptive nationwide deployment of the military is the very opposite of using the military as a “last resort.” It is so wildly out of keeping with how the Insurrection Act and 10 U.S.C. § 12406 have been interpreted and applied that it should be entitled to no deference by the courts. (As my colleague Katherine Ebright has discussed in the context of the Alien Enemies Act, even the “political question doctrine”—which normally precludes judicial review of certain executive actions—has exceptions for cases in which a president acts in bad faith, makes an obvious mistake, or acts in a way manifestly unauthorized by law.) And it should raise a bright red flag for anyone concerned with the future of American democracy.

The post “The Insurrection Act” by Any Other Name: Unpacking Trump’s Memorandum Authorizing Domestic Deployment of the Military appeared first on Just Security.

The truth turned out to be worse.

Trump’s migration-as-invasion theory permeates his executive orders and other pronouncements on immigration. But he is not just using the frame to try to exploit inapplicable wartime laws and constitutional authorities, as damaging as that is. In at least one of his orders, he is also using it to lay claim to vast presidential powers that don’t exist in peacetime or wartime, launching a direct assault on the constitutional separation of powers and the rule of law.

To begin, one of Trump’s Day One orders tees up a potential invocation of the Alien Enemies Act of 1798, a wartime law that can be invoked in times of “invasion.”  The Act was last used in World War II to intern 31,000 noncitizens of Japanese, German, and Italian descent without due process. (U.S. citizens of Japanese descent were interned under a separate authority.) If Trump invokes the law—and if the courts uphold his invocation—it could empower him to summarily detain and deport foreign nationals who are lawfully present in the United States and have no criminal history.

This would be a clear abuse of the law. As explained in a recent report from the Brennan Center (where we work), the Alien Enemies Act’s powers are available in response to a literal armed attack, not a figurative or purely rhetorical “invasion.” The language and structure of the law, as well as the congressional debate over its enactment, leave no doubt on this point; the law refers to acts of “actual hostility” and was intended to implement the law of war. The law has been used only in times of declared war or, during World War II, in the immediate wake of Japan’s attack on Pearl Harbor.

In another Day One executive order, Trump directed the Secretary of Defense to assign a new mission to NORTHCOM, the combatant command for the U.S. armed forces in the North American continent: “repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.” The order directs NORTHCOM to plan a “campaign” for accomplishing this mission. It cites no specific statutory authority; instead, it notes the president’s “solemn responsibility” as “Chief Executive” and “Commander in Chief of the Armed Forces” to protect “the sovereignty and territorial integrity of the United States.”

Here, Trump appears to be relying on a longstanding and widely accepted interpretation of the Constitution under which presidents have inherent constitutional authority—and can act on a temporary basis without congressional authorization—to repel invasions of the United States. Like the Alien Enemies Act, however, this power is reserved for armed attacks. During the Constitutional Convention, the Founders explicitly referred to this presidential prerogative as “the power to repel sudden attacks” or “repel and not to commence war.” Nothing in the Constitution remotely contemplates a presidential power to direct a military campaign against civilians entering the country without documentation.

As alarming as these executive orders are, the most far-reaching may be the order that purports to implement the Constitution’s “Guarantee Clause,” under which the United States must protect the states against invasions. As a threshold matter, Trump’s order again characterizes migration as an invasion and therefore suffers from the same flaw as the others. The courts have affirmed that the Guarantee Clause’s protection against invasion applies in times of “armed hostility from another political entity.”  It refers to the federal government’s responsibility to defend states against acts of war, not migration.

Diluting the meaning of “invasion” in the Guarantee Clause would degrade constitutional protections across the board.  The Constitution refers to “invasion” in three other places: to describe appropriate domestic uses of the military; to set the standard for suspending the right to challenge unlawful imprisonments through habeas corpus; and to authorize the states to “engage in War” without the approval of the federal government.  These are exceptional powers that must be wielded sparingly and responsibly, not in response to the political outrage du jour.

But Trump’s Guarantee Clause order doesn’t simply rely on an inapplicable clause of the Constitution.  Asserting a novel, sweeping presidential authority in times of migrant “invasions,” the order states that individuals coming across the southern border “are restricted from invoking provisions of the [Immigration and Nationality Act] that would permit their continued presence in the United States,” including provisions of law that protect the right to seek asylum. Although Trump relies primarily (and erroneously) on a statutory provision for this directive, he also claims, in the alternative, a constitutional authority to unilaterally suspend congressionally enacted immigration law.

Even if an actual invasion were ongoing, Trump would not have that authority. In the foundational separation-of-powers case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court established that the president, during wartime as well as peacetime, cannot bypass laws that Congress has constitutional authority to enact—regardless of whether the president also has constitutional authority in that area. The president may disregard statutory constraints only if Congress is trespassing on powers that the Constitution commits exclusively to the president. There is no question, however, that Congress has authority under the Constitution to enact immigration laws, including laws that allow undocumented individuals to seek asylum. The president accordingly must follow those laws.

Trump’s executive orders are unprecedented in many respects. Nonetheless, there are some lessons we can learn from history. This is not the first time that a president has falsely claimed an “invasion” across the southern border.  In 1846, President James Polk proclaimed that Mexican forces had “passed the boundary of the United States” and “invaded our territory and shed American blood upon the American soil.”  Within two days, he secured a congressional declaration of war.

Although Polk correctly identified the elements of an “invasion”—armed hostilities that require the government to meet force with force—he lied about the facts.  Two years later, when the truth came out, then-Representative Abraham Lincoln charged that Polk had “unnecessarily and unconstitutionally” secured a war authorization through misrepresentation.  Led by Lincoln, the House of Representatives passed language to censure Polk for unlawfully proclaiming an “invasion” to aggrandize presidential power.

What Lincoln and his fellow lawmakers did was brave; the Mexican-American War was still popular in 1848.  But they understood that the U.S. system of government only works when the people can rely on the president to faithfully execute the laws.

Today, the country faces an even graver situation.  The president has not only misrepresented the facts; he has misrepresented the Constitution itself.  He has claimed unprecedented authority to ignore and override Congress whenever he proclaims an “invasion,” real or metaphorical. Congress should muster the courage required by these extraordinary times and condemn Trump’s radical attempts to usurp and abuse power.

(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.)

IMAGE: National Guard officers secure a ladder suspected to have been used by migrants to cross the border through the border wall into the United States from the Juarez Valley, Chihuahua state, Mexico, on February 6, 2025. (Photo by HERIKA MARTINEZ/AFP via Getty Images)

The post Trump’s Doubly Flawed “Invasion” Theory appeared first on Just Security.

The prospect of heavy military involvement in immigration enforcement has generated alarm in many quarters. But the authorities that Trump might summon—and the hurdles he might face in using them—are not widely understood. This article seeks to identify and elucidate them. Starting with the baseline constraint on military participation in law enforcement, the Posse Comitatus Act, the discussion below sets forth the relevant statutory authorities in escalating order of potency and identifies potential constraints on their use.

This article is intended as both a primer and a reference (i.e., readers can skip to the particular authorities about which they may have questions). The authorities covered may be summarized as follows:

• Chapter 15 of Title 10 of the U.S. Code has several provisions allowing federal armed forces (including active-duty forces and federalized National Guard forces) to assist with law enforcement, including through the provision of military facilities and equipment, without directly participating in core law enforcement activities.
• A declaration of national emergency under the National Emergencies Act could provide additional resources for military assistance to law enforcement but would not permit federal armed forces to participate in core law enforcement activities.
• 32 U.S.C. 502(f)(2)(A) allows the president to request (but not require) that governors deploy their states’ National Guard forces to perform certain federal missions, free from the constraints of the Posse Comitatus Act—i.e., Guard forces may participate in core law enforcement activities.
• The Insurrection Act, generally regarded as the primary statutory exception to the Posse Comitatus Act, allows the president to federalize National Guard forces and to deploy them and active-duty armed forces anywhere in the country.
• The Alien Enemies Act does not itself authorize military deployment, but when combined with the Insurrection Act or other authorities, it could permit the militarized deportation of immigrants lawfully in this country under specified conditions.

More on all of these authorities can be found on the Brennan Center’s “Domestic Deployment of the Military” and “Outdated and Dangerous” webpages.

1. Posse Comitatus Act

What Does It Prohibit?

The Posse Comitatus Act embodies a long Anglo-American tradition against military involvement in civilian affairs. It prohibits federal armed forces from acting “as a posse comitatus or otherwise execut[ing] the laws”—i.e., from participating in civilian law enforcement activities, whether criminal or civil—unless “expressly authorized” by Congress or the Constitution.

The Department of Justice has concluded that the Constitution gives the president the “inherent” power to unilaterally deploy the military for law enforcement purposes in some circumstances—for instance, to protect federal personnel or property. A straightforward reading of the Constitution, however, reveals no express authorization for such deployment. Accordingly, any military action that relies solely on these “inherent” powers should be deemed to violate the Posse Comitatus Act, and should be sustained only if it falls within the president’s “conclusive and preclusive” sphere of authority (per Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer).

What Are the Limitations?

As set out in a recent Brennan Center report, there are multiple exceptions to the Posse Comitatus Act and significant gaps in its coverage:

• The law applies only to federal armed forces. It does not bind the National Guard unless the Guard has been called into federal service. As discussed below, the National Guard may perform federal missions (such as border security) under Title 32 without being federalized.
• Courts have construed the Posse Comitatus Act to prohibit only direct participation in core law enforcement activities, such as arrests, searches, and seizures. A wide range of indirect support to law enforcement—including conducting reconnaissance, sharing intelligence, and providing/maintaining military equipment—remains fair game, even if such support is integral to a law enforcement operation.
• Courts also have held that the Posse Comitatus Act does not apply to actions that have a primarily military purpose, regardless of any incidental benefits to civilian law enforcement authorities. Trump conceivably could try to invoke this doctrine based on his characterization of unlawful migration as an “invasion.” Any such attempt should fail given the absence of an armed attack by a foreign power (see Alien Enemies Act discussion, below).
• There are many statutory exceptions to the Posse Comitatus Act—most importantly, the Insurrection Act, discussed below.

2. Title 10 Chapter 15 (Military Support for Civilian Law Enforcement Agencies)

What Does It Permit?

Chapter 15 of Title 10 of the U.S. Code (which includes the 1981 Military Cooperation With Civilian Law Enforcement Agencies Act and other authorities) authorizes a range of federal military assistance to law enforcement agencies, but does not authorize direct participation in core law enforcement activities. Most notably:

• 10 U.S.C. § 272 allows the Secretary of Defense to make available any military equipment, base facility, or research facility to any federal, state, or local civilian law enforcement official for law enforcement purposes.
• 10 U.S.C. § 273 allows military personnel to provide training to federal, state, and local civilian law enforcement officials in the operation and maintenance of equipment, and to provide expert advice.
• 10 U.S.C. § 274 allows military personnel to maintain equipment on behalf of federal, state, and local civilian law enforcement, and to operate such equipment in specified situations and for specified purposes.
• 10 U.S.C. § 284 authorizes certain types of military support for counterdrug activities or activities to counter transnational organized crime of any federal agency or any state, local, tribal, or foreign law enforcement agency. In the case of domestic agencies, the permissible types of support include:
  • Maintenance and repair of military equipment;
  • Transportation of personnel, supplies, and equipment;
  • Establishment and operation of bases of operations or training facilities;
  • Training of civilian law enforcement personnel;
  • Detection, monitoring, and communication of the movement of air, land, and sea traffic within 25 miles of the geographic boundaries of the United States;
  • Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries;
  • Establishment of command, control, communications, and computer networks for improved integration of law enforcement, active military, and National Guard activities;
  • Provision of linguist, intelligence analysis, and planning services; and
  • Aerial and ground reconnaissance.

These authorities have long been used to enable Department of Defense support of the Department of Homeland Security’s activities at the southern border.

What Are the Limitations/Potential Legal Challenges?

• Title 10 Chapter 15 includes an express statement (10 U.S.C. § 275) that its provisions do not authorize military participation in arrests, searches, seizures, or similar activities. In other words, they are not exceptions to the Posse Comitatus Act.
• Title 10 Chapter 15 also prohibits the provision of support to civilian law enforcement agencies “if the provision of such support will adversely affect the military preparedness of the United States” (10 U.S.C. § 276).
• A significant constraint on these authorities is resource availability and funding. Although the Department of Defense has some flexibility to reprogram the funds allocated by Congress, that flexibility is not infinite—and neither are the resources available to be reprogrammed. In a recent Lawfare article, Professor Chris Mirasola adeptly summarized the authorities for, and limitations on, shifting funds within the Department of Defense.

3. Declaration of National Emergency

What Does It Permit?

The National Emergencies Act of 1976 authorizes the president to declare a national emergency. That declaration unlocks enhanced authorities that are set forth in roughly 150 statutory provisions, which the Brennan Center has identified and catalogued. These authorities span almost every area of governance, including military deployment, commerce, transportation, communications, agriculture, and public health.

Trump has indicated that he plans to declare a national emergency, but he has not specified which emergency powers he intends to invoke. (Although his aides reportedly believe an emergency declaration will permit the use of military bases and planes to detain and deport immigrants, military bases and planes would be available without an emergency declaration under Title 10 Chapter 15.) Indeed, it is unclear whether Trump’s advisors have determined—comprehensively and accurately—what authorities might be available. This article will not do that work for them.

Instead, it is instructive to review recent uses of emergency powers for immigration enforcement:

• In 2021, President Joe Biden declared a national emergency to address international drug trafficking. In 2023, pursuant to that declaration, Biden invoked 10 U.S.C. § 12302, which allows him to call up members of the reserve components of the armed forces, including the National Guard. At the time, there were already 2,500 federalized National Guard forces assisting the Department of Homeland Security at the border, and they were soon joined by 1,500 active-duty armed forces. It is unclear how many reservists, if any, were mobilized under the emergency declaration.
• In 2020, under the national emergency declaration for COVID-19, Trump invoked 19 U.S.C. § 1318(b)(1)(C) to close off a large portion of cross-border traffic. That provision allows the Secretary of Homeland Security to temporarily close, relocate, or modify the services provided by any customs office or port of entry during a national emergency.
• In 2019, Trump invoked 10 U.S.C. § 2808 to secure funding for the southern border wall. The law applies during a national emergency “that requires use of the armed forces.” It allows the Secretary of Defense to undertake military construction projects that are necessary to support such use of the armed forces, using unobligated funds appropriated for military construction projects that have been canceled or downgraded. As other observers have noted, Trump might invoke 10 U.S.C. § 2808 again to construct or adapt military bases to serve as immigrant detention facilities.

What Are the Limitations/Potential Legal Challenges?

• None of the emergency powers that Trump might invoke authorizes direct participation in core law enforcement activities. Military personnel could not search, arrest, or detain immigrants under a national emergency declaration.
• The emergency authorities identified above primarily provide additional resources to carry out activities that are otherwise authorized, rather than expanding substantive powers. Even 19 U.S.C. § 1318(b)(1)(C) is not as significant an expansion of power as it might seem, given that another subparagraph of 19 U.S.C. § 1318 permits the same actions without a national emergency declaration “when necessary to respond to a specific threat to human life or national interests.” Generally speaking, when it comes to immigration enforcement, a national emergency declaration is more likely to serve as a resource amplifier than a way to access broad powers that are otherwise unavailable.
• Because the National Emergencies Act includes no definition of “emergency” and no substantive criteria for declaring one, courts will likely be deferential to the president’s judgment that an emergency exists. However, courts can—and do—probe whether the government’s actions are authorized under the specific emergency powers invoked. Most recently, the Supreme Court struck down President Biden’s use of emergency powers (pursuant to the COVID-19 national emergency declaration) to forgive student loan debt.
  • During the first Trump administration, some courts struck down Trump’s use of 10 U.S.C. § 2808 to fund the border wall. These rulings were stayed on appeal and the Supreme Court ultimately vacated them when Biden terminated the emergency declaration, but similar challenges will no doubt occur if Trump invokes emergency powers for immigration enforcement. (Robert Taylor, former Acting General Counsel at the Department of Defense, has explained some of the key limitations on the reach of 10 U.S.C. § 2808.)
  • The use of 19 U.S.C. § 1318(b)(1)(C) (or the parallel non-emergency provision) to close off the border would be an overreach under the reasoning set forth in the Supreme Court’s student loan decision—i.e., if Congress intended to authorize complete closure of the border, it would have said so specifically, rather than permitting temporary closures of individual ports of entry.

4. Deployment of the National Guard Under Title 32

What Does It Permit?

The National Guard may operate in one of three different statuses:

• In “State Active Duty” status, National Guard forces perform state missions with state funding and operate under the command and control of the state’s governor.
• In Title 10 or “federalized” status, National Guard forces temporarily become a part of the federal armed forces and operate under the command and control of the president until returned to state status.
• In Title 32 or “hybrid” status, National Guard forces perform activities specified by Congress or the federal government and are paid with federal funds, but as a legal matter they remain under the command and control of the state governor.

In Title 32 status, even though Guard forces may be performing a federal mission, they are not subject to the Posse Comitatus Act because they are at least nominally under state command and control. Relevant authorizations under Title 32 include:

• 32 U.S.C. § 112 authorizes funding for the National Guard to carry out drug interdiction and counter-drug activities that serve a state law enforcement purpose, in accordance with a federally approved state plan.
• 32 U.S.C. § 502(f)(2)(A) authorizes the National Guard to perform “operations or missions undertaken … at the request of the President or Secretary of Defense.”
• 32 U.S.C. § 902 authorizes funding for National Guard forces to conduct homeland defense activities approved by the Secretary of Defense. “Homeland defense activities” are defined as activities undertaken for the military protection of U.S. territory, population, or infrastructure from a “threat or aggression” against the United States.

Section 502(f)(A)(2) has played a major role in the increasing militarization of the southern border. Under Presidents George W. Bush, Obama, and Trump, thousands of National Guard forces were deployed under this provision. (Trump also deployed active-duty armed forces; Biden did the same, and he federalized the National Guard forces at the border.) Although National Guard forces in Title 32 status are not subject to the Posse Comitatus Act, they have not directly participated in core law enforcement activities during these deployments. Instead, they have provided support to DHS in the form of surveillance, transportation, provision of equipment, and the erection of barriers.

Trump could seek to expand the use of National Guard forces at the border under Title 32 by involving them directly in the apprehension and detention of migrants. He also could request that governors use their National Guard forces to assist with immigration enforcement in the interior of the country.

What Are the Limitations/Potential Legal Challenges?

• State governors, not the president, decide whether to deploy their National Guard troops under Title 32. Under 32 U.S.C. § 502(f)(2)(A), for instance, the president or Secretary of Defense may “request” deployment of troops for a federal mission, but the governor is free to refuse the request.
  • In 2020, Trump requested that 15 governors send their National Guard troops to Washington, D.C. under 32 U.S.C. § 502(f)(2)(A) to join forces with the D.C. National Guard in quelling protests against the police killing of George Floyd. Eleven governors complied with this request; four declined.
• Under Title 32, a governor may not send the state’s National Guard into another state without the latter state’s consent, even to perform a federal mission. Although the issue has not come before the courts, any such deployment would likely be deemed a violation of state sovereignty under the U.S. Constitution (as Joseph Nunn has explained). As a practical matter, this limits Trump’s use of Title 32 to states that have governors who agree with Trump’s deportation policies.
  • The eleven governors who sent National Guard forces into Washington, D.C. in 2020 did so over the objections of the district’s mayor. That was a distinct circumstance, however, as the District of Columbia does not have the same constitutional status as the states and the D.C. National Guard is under the command and control of the president.
• There is a strong legal argument that 32 U.S.C. § 502(f)(2)(A) is not as broad as its text might suggest—i.e., it cannot be used for literally any operation or mission, but is limited to traditional National Guard functions set forth elsewhere in the law. This argument would be particularly forceful if Trump requested deployment of the National Guard to police protests, but it could also serve as a basis for challenging expanded participation in immigration enforcement.
• National Guard forces operating in Title 32 status are subject to state law, and states generally have laws specifying who may serve as “peace officers” (a status that usually corresponds with the performance of core law enforcement functions). Those laws vary considerably in how restrictive they are. In some states, National Guard units would not be permitted to engage in arrests or similar law enforcement activities unless deputized to do so—a process that is within the state’s discretion and can involve extensive training requirements.

5. The Insurrection Act

What Does It Permit?

The Insurrection Act is the most significant exception to the Posse Comitatus Act. Despite its name, its reach is not limited to insurrections. The Act allows the president to deploy active-duty armed forces and to federalize the National Guard for the following purposes:

• to suppress an insurrection in a state, if assistance is requested by the state legislature (or, if the legislature is unable to convene, the state’s governor) (10 U.S.C. § 251);
• to enforce federal law or suppress a rebellion against U.S. authority, whenever the president considers that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” make it “impracticable” to enforce federal law “by the ordinary course of judicial proceedings” (10 U.S.C. § 252); or
• to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” (10 U.S.C. § 253) that—
  • interferes with the execution of state or federal law in a way that deprives a class of people of constitutional rights, and state authorities are unable or unwilling to enforce those rights; or
  • opposes or obstructs the execution of, or impedes the course of justice under, federal law.

When federalized under the Insurrection Act, National Guard forces (along with active-duty armed forces) may be deployed in any state or territory of the United States. No violation of one state’s sovereignty by another state occurs, as the National Guard is operating as part of the federal armed forces.

Because the statute authorizes the president to call up the “militia,” some have argued that it provides authority for the president to essentially deputize private militias and other groups as federal forces. The term “militia” is defined, under the same title as the Insurrection Act, to include all able-bodied males between the ages of 17 and 45 years of age who are, or who have made a declaration of intention to become, U.S. citizens, as well as female U.S. citizens who are members of the National Guard.

The Insurrection Act has not previously been used for immigration enforcement or border security. Its past uses (approximately 30 of them, as set forth in a guide published by Brennan Center) mostly fall within four categories:

• Suppression of rebellions against state or federal authority (e.g., the Whiskey Rebellion and the Civil War);
• Suppression of labor movements/breaking strikes (e.g., the Pullman Strike of 1894);
• Protection of civil rights, including those of African-Americans during both Reconstruction and the Civil Rights Movement and those of Chinese immigrants in the late 19th century; and
• Quelling civil unrest and, particularly in the late 1960s, “race riots.”

The most recent exercise of the Insurrection Act occurred over 30 years ago, when the Governor of California asked President George W. Bush to deploy troops to quell civil unrest that had erupted after a jury acquitted police officers charged in the beating of Rodney King.

What Are the Limitations /Potential Legal Challenges?

The Brennan Center has called for reform of the Insurrection Act because it lacks the necessary safeguards against abuse. That said, there are a number of ways in which an exercise of the law could be challenged.

• In 1827, the Supreme Court held in Martin v. Mott that the Insurrection Act did not permit judicial review of a president’s decision to deploy troops. In other words, as a general rule, the president alone determines whether the criteria for deployment set forth in the law have been met. However, there are important caveats to this ruling:
  • Language in this and later decisions (most notably, the 1932 case Sterling v. Constantin) suggested that there might be a “bad faith” exception to the general rule of non-reviewability, and that courts may step in if the president has exceeded a “permitted range of honest judgment.”
  • Congress has extensively amended the law since the 1827 decision, and courts could conclude that the revised law—which includes much more detailed criteria for deployment—allows for judicial review in at least some circumstances beyond the “bad faith” scenario.
• If the courts determine that they may review whether deployment criteria are met, they should adopt long-standing Office of Legal Counsel interpretations that construe those criteria narrowly, in keeping with constitutional principles and tradition. According to these interpretations, invocation of the Insurrection Act must be a “last resort,” occurring only when a state requests assistance to put down an insurrection; when necessary to enforce a federal court order; or when “state and local law enforcement have completely broken down.”
• Even if courts determine that they may not review whether the legal criteria for deployment have been met, Supreme Court precedent strongly suggests that they may review whether the military’s actions pursuant to deployment are lawful. As the Court affirmed in Sterling: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”
  • The Insurrection Act does not (and could not) authorize the violation of constitutional rights. For instance, if soldiers deployed under the Insurrection Act searched homes without a warrant or an applicable exception to the Fourth Amendment’s warrant requirement, courts could intervene. Prolonged military detention under the Insurrection Act would similarly be subject to constitutional challenge.
  • If there is a conflict between the Insurrection Act and other federal laws, the later-enacted and more specific law should prevail (in accordance with standard rules of statutory interpretation). Given the age and sweeping scope of the Insurrection Act, most federal laws will be later-enacted and more specific. The 1948 federal law restricting the presence of military personnel at polling stations, for instance, should be read as a limitation on deployment under the Insurrection Act.
  • A 1975 Department of Justice memorandum suggested that actions taken under the Insurrection Act must be “reasonable under the circumstances.” Although the Insurrection Act is generally understood as an exception to the Posse Comitatus Act, the same Department of Justice memorandum questioned whether the law authorizes arrests, as opposed to temporary detentions of civilians until such time as they can be turned over to civilian authorities.
• Professor William Banks has made the case that using federal armed forces to quell domestic violence without a state’s request for assistance would violate Article IV of the Constitution, which requires the United States to protect states against “domestic Violence . . . on Application of the [state] Legislature, or the [state] Executive (when the Legislature cannot be convened).”

6. The Alien Enemies Act

What Does It Permit?

The president can invoke the Alien Enemies Act if Congress has declared war or if the president proclaims an “invasion” or “predatory incursion”—or a threat of such invasion or incursion—by a foreign nation or government. The Act authorizes the president to summarily detain and/or deport any non-U.S. citizens who were born in the enemy nation(s), including those lawfully present in the United States, regardless of whether there is any reason to suspect that they are dangerous.

The Alien Enemies Act was last used in World War II to implement the internment of tens of thousands of non-U.S. citizens of Japanese, German, and Italian descent. (U.S. citizens of Japanese descent were interned under a separate authority.) Congress and the Executive Branch have since issued apologies for much of this shameful episode in our nation’s history, acknowledging that internment under the Alien Enemies Act discriminated against people based on their ancestry.

Trump has threatened to use the Alien Enemies Act to deport Latino immigrants who are undocumented or involved in criminal drug activity. Ostensibly, he intends to claim that migration from Mexico and other countries south of the border constitutes an “invasion” or “predatory incursion” perpetrated by drug cartels operating as de facto governments in those regions.

Notably, the Alien Enemies Act does not itself authorize military participation in law enforcement. If the military were deployed under other authorities (such as the Insurrection Act), however, Trump could attempt to use the Alien Enemies Act to expand those uses of the military to include the summary detention and deportation of certain immigrants who are lawfully in this country—something none of the other authorities discussed above could do.

What Are the Limitations/Potential Legal Challenges?

• As detailed in a recent Brennan Center report, the design and history of the Alien Enemies Act leave no doubt that it is a wartime authority only. It is intended to address armed attacks by foreign powers, not people fleeing persecution or seeking economic opportunity. (Legal historians such as Professor Ilya Somin and Professor Frank Bowman have similarly explained that the term “invasion” in the Constitution does not apply to migration.) If Trump invokes the law for immigration enforcement purposes, courts can and should deem this to be a staggering abuse.
• Courts similarly should reject any effort to characterize drug cartels as de facto governments—a move that would have significant unintended consequences for U.S. diplomatic relations and policy in the region and beyond.
• The Brennan Center’s report also argues that the Alien Enemies Act, which targets individuals based solely on their ancestry and dispenses with the procedural protections of regular immigration law, is inconsistent with modern understandings of the Constitution’s equal protection and due process protections.

IMAGE: A National Guard soldier patrols at the entrance of Shelby Park on March 12, 2024 in Eagle Pass, Texas (Brandon Bell/Getty Images)

The post Deployment of the U.S. Military for Immigration Enforcement: A Primer appeared first on Just Security.

The New Language in Directive 5240.01

On September 27, the Department of Defense published an updated version of Directive 5240.01, which lays out Department policies governing when, where, and how Defense Intelligence Components—those parts of the Department, such as the National Security Agency, Defense Intelligence Agency, and U.S. Naval Intelligence, that are responsible for gathering and analyzing intelligence—may provide assistance to civilian authorities, including civilian law enforcement agencies.

The reissued directive adds language that was not present in the previous version of Directive 5240.01, last updated in 2020. The part of the new directive that has come under scrutiny is Section 3.3.a.(2), which states that approval from the Secretary of Defense is required before Defense Intelligence Components may provide certain kinds of permissible assistance to civilian law enforcement agencies, including:

Assistance in responding with assets with potential for lethality, or any situation in which it is reasonably foreseeable that providing the requested assistance may involve the use of force that is likely to result in lethal force, including death or serious bodily injury. It also includes all support to civilian law enforcement officials in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated. Such use of force must be in accordance with DoDD 5210.56, potentially as further restricted based on the specifics of the requested support.

Without further context, this reference to lethal force might seem alarming. But the concern over this provision ignores two critical facts.

No Change in DoD Policy

First, the added language makes no change in Department policy. While Directive 5240.01 is specifically aimed at Defense Intelligence Components, there is a more general directive—Directive 3025.18—that governs all support to civil authorities provided by the Department of Defense. This umbrella directive, which applies equally to Defense Intelligence Components and has not been updated since 2018, includes language that is very similar to the language that is currently stirring controversy:

[O]nly the Secretary of Defense may approve requests from civil authorities or qualifying entities for Federal military support for … Assistance in responding with assets with potential for lethality. This support includes loans of arms; vessels or aircraft; or ammunition. It also includes assistance under section 282 of [Title 10] and section 831 of title 18, U.S.C.; all support to counterterrorism operations; and all support to civilian law enforcement authorities in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.

Indeed, the changes to Directive 5240.01 may well have been intended simply to ensure consistency across the Department of Defense’s numerous statements of policy. There is nothing suspicious about the timing of this effort; to the contrary, as the Biden administration comes to a close, agencies will increasingly be focused on tying up loose ends such as issuing policy updates of this nature.

A Procedural Safeguard, Not a Source of Authority

Second, on its face, the provision in question—whether in the umbrella directive or the newly revised one—constitutes a procedural safeguard rather than a grant of power. Section 3.3 of Directive 5240.01, as a whole, establishes what level of approval must be obtained before various types of activities may be carried out. Subsection (a)(2) provides that assistance to civilian law enforcement authorities 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 off on it.

Directive 5240.01 does not provide any new authority to deploy the military domestically; nor could it. Department of Defense directives are statements of policy issued under the authority of the Secretary of Defense. They are not statutes, executive orders, or even “rules” within the meaning of the Administrative Procedure Act. A directive cannot make lawful an activity that does not have some legal basis either in statute or in the president’s powers under Article II of the Constitution.

Directive 5240.01 thus cannot, and by its own terms does not purport to, override the restrictions of the Posse Comitatus Act, which bars federal military forces from participating in law enforcement unless doing so is expressly authorized by Congress. Indeed, the directive explicitly 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 refer back to that requirement. In virtually all cases, assistance to civilian authorities that could involve the use of lethal force would constitute military participation in law enforcement for the purposes of the Posse Comitatus Act. Therefore, as a matter of law and under Directive 5240.01’s own terms, such assistance could be provided only if an exception to the Posse Comitatus Act, such as the Insurrection Act, had been 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 incorporated into 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 operational environments overseas.

Under Directive 5210.56, deadly force is permitted only if there is a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily harm to a person, or under the following circumstances: self-defense; defense of others; protection against theft or sabotage of “assets that are vital to national security” (e.g., nuclear weapons), “inherently dangerous property” (e.g., portable missiles or chemical agents), or “national critical infrastructure” (e.g., designated public utilities that are vital to public health and safety), where such theft/sabotage would create an imminent threat of death or serious bodily harm; various actions to prevent or respond to “serious offenses”—i.e., those involving the imminent threat of death or serious bodily harm; and defense against vicious animals. The new language in Directive 5240.01 includes a requirement that any use of lethal force comply with Directive 5210.56. In other words, the new directive makes clear that it is not expanding the circumstances under which lethal force may be used.

***

In sum, the new version of Directive 5240.01 simply restates existing Department of Defense policy that, in circumstances where it would be lawful under the Posse Comitatus Act or other applicable law for the military to provide assistance to civilian law enforcement that has the potential for the use of lethal force, that assistance cannot be provided without the Secretary of Defense’s approval and must comport with longstanding rules for the use of such force.

To be sure, there are good reasons to be concerned about the federal government’s power to use the armed forces domestically against Americans, but the new language in Directive 5240.01 is not one of them. The Insurrection Act represents a far greater danger. It gives the president broad 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 for reforming the Insurrection Act, and a bipartisan group of former national security officials convened by the American Law Institute has similarly called for Insurrection Act reform. Those who are currently sounding the alarm about Directive 5240.01 would do well to refocus their energies on that critical task.

IMAGE: Headquarters of the United States Department of Defense (DOD). (AFP/Getty Images)

The post Much Ado About Nothing: Recent Changes to Department of Defense Directive 5240.01 appeared first on Just Security.

These employees and contractors do not, however, relinquish their First Amendment rights. Even as conditioned by NDAs, prepublication review is a content-based prior restraint on speech—one of the most severe infringements on First Amendment liberties. The process passes First Amendment muster only if it is reasonably tailored to the government’s interest in preventing national security harm; has narrow, objective, and definite standards to guide government reviewers and cabin official discretion; and includes robust procedural safeguards designed to mitigate the dangers of illegitimate censorship. Although a federal appellate court recently held otherwise, there is a strong argument that the current prepublication review system does not meet that standard.

Constitutionality aside, the system as operated across departments and agencies is rife with flaws. It requires too many people to submit their draft publications for review, including not just those with recent access to highly sensitive information but anyone who ever had access to any level of classified material. Many agencies require the submission of any document that touches on a broad array of topics, regardless of whether the document is likely to include or have been derived from classified information. Reviewers hold up publications for reasons unrelated to the protection of classified information—including potential embarrassment to agency officials. And the lack of any firm deadlines for agencies to complete their review leaves authors in limbo for months or even years.

These dysfunctions often serve to bar, delay, or deter publication—outcomes that not only curtail the authors’ freedom of speech, but also “lead to an impoverished public discourse” on national security matters, as Jack Goldsmith and Oona Hathaway have written. Alternatively, some authors give up on the process altogether and publish works without submitting them for prepublication review, increasing the risk of unintentional disclosures of classified information. And many individuals, including one of us, have declined national security positions in government because the lifetime prepublication review requirement would unduly constrain any post-government writing they wished to do.

In July, the Director of National Intelligence (DNI) issued a new Intelligence Community (IC) Directive that overhauls the current system and sets a uniform standard with which the IC’s prepublication review policies—which currently vary significantly by agency—must comply.

The DNI deserves great credit for tackling a thorny set of problems, especially given the pushback she almost certainly faced from some corners of the intelligence community. The resulting directive will make several important improvements to the system, including a new standard for what must be submitted and multiple provisions that will make the process more transparent and facilitate oversight. (As discussed below, we take a more positive view of the new standard than the one put forward by Goldsmith and Hathaway.) Unfortunately, however, the directive fails to make certain critical changes, including what might be the most important reform of all: a hard deadline for the prepublication review process. We thus second Goldsmith and Hathaway’s assessment that the reforms can and should be taken further.

Key Improvements to the Process

More appropriate standard for submission of materials. Perhaps the most important change made by the directive is the standard for what materials must be submitted. Going forward, those who hold or held access to classified information will be required to submit materials for prepublication review only if “a fully-informed person granted access to covered intelligence might reasonably deem [them] to contain or be derived from covered intelligence.” The directive defines “covered intelligence” as “classified intelligence and classified intelligence-related information.”

Goldsmith and Hathaway take issue with the “fully-informed person” criterion. They argue that this standard is essentially impossible to meet, as no individual author will have access to all the information that bears on whether what he or she wrote is classified. Although we greatly respect these authors and their writings on this topic, we must disagree. We read “fully-informed,” in this context, to mean that the (hypothetical) person not only had access to covered intelligence, but was familiar with the contents of the intelligence to which they had access—not that they are aware of every existing fact that might relate to that intelligence. We therefore do not see significant daylight between the standard in the directive and the one Goldsmith and Hathaway have proposed—namely, “writings that might reasonably contain or be derived from classified information should be subject to review.”

Thus interpreted (and the DNI can—and should—issue guidance making this interpretation clear), the new standard is a major improvement over current rules (summarized here). Many agencies require the submission of almost any material a current or former employee might produce. For instance, the Office of the Director of National Intelligence policy requires submission of “all official and non-official information intended for publication that discusses the ODNI, the IC, or national security.” The State Department requires current personnel to submit all proposed publications that “pertain to U.S. foreign policy or the Department’s mission.” The FBI requires submission of “[a]ll information created and acquired by current and former [FBI employees and contractors] in connection with official FBI duties.” The Department of Homeland Security similarly requires the submission of “information derived as a result of affiliation with DHS.”

Requiring current and former employees to obtain prior approval for publications that are highly unlikely to contain or have been derived from any classified information goes far beyond what is necessary to protect national security, and thus encroaches on would-be authors’ First Amendment rights. The directive, as we interpret it, brings this aspect of the system in line with constitutional principles.

Protection for authors who participate in the process. Astonishingly, under current policies, an agency’s approval of a manuscript offers no legal protection to the author. If it is later determined that the publication includes classified information that the prepublication review process failed to flag, the author remains subject to administrative penalties. A current employee may face termination or loss of security clearance, while a former employee could be barred from future government employment.

Under the directive, “IC elements that approve requests for publication . . . shall not take adverse administrative action against submitters” who publish information with the agency’s approval. Of course, the directive does not, and cannot, prevent non-IC elements from penalizing such authors. In particular, the Department of Justice may still bring criminal charges under various statutes that prohibit the disclosure of classified information. However, the directive notes that “the Department of Justice would likely consider all relevant facts, including whether a publication or disclosure of information is within the scope of an approval, when making any relevant determinations.”

Alignment of agency policies with non-disclosure agreements. The legal basis for the requirement of prepublication review is the non-disclosure agreement (NDA) that government employees and contractors sign as a condition of access to classified information. For both legal reasons and to avoid confusion, it is important that the requirements set forth in the NDA match the requirements in the agencies’ prepublication review policies.

That is currently not the case. As noted above, many agencies require the submission of almost any proposed publication that relates to the work of the agency or national security more broadly.  By contrast, the primary NDAs setting forth prepublication review requirements—Form 4414 and Standard Form 312—create much narrower obligations. By signing Form 4414, employees applying for access to the most highly classified material, known as “sensitive compartmented information” (SCI), “agree to submit for [pre-publication review] . . . any writing or preparation in any form, including a work of fiction, that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure.” By signing SF 312, employees applying for access to any level of classified information agree to the following: “I understand that if I am uncertain about the classification status of information, I am required to confirm from an authorized official that the information is unclassified before I may disclose it” (emphasis added).

The directive resolves this problem by providing that “IC elements shall, within 180 days from signature of this ICD, revise all future NDAs to conform with this Directive.” The standard for submission under the revised NDAs will have to match the standard in the directive—a standard that falls between the ones articulated in current NDAs and the ones enshrined in current agency policies.

Limitation on access to submitted materials. A manuscript submitted for prepublication review should be circulated only to those officials whose participation in the review process is strictly necessary. There are two separate reasons for this. First and foremost, the prepublication review process presents an opportunity for political interference—i.e., delaying or denying approval for a publication because it criticizes political actors or agency policies. The more widely a manuscript is circulated—and particularly if it is sent to political appointees—the greater the opportunity for such interference.

Under the current system, political actors can and do intervene. The most obvious and egregious recent example is John Bolton’s book, “The Room Where It Happened.” The responsible reviewer in that case was a veteran information security professional. She spent literally hundreds of hours with another staff reviewer combing over successive revisions of the manuscript, as well as upwards of a dozen hours iteratively and exhaustively reviewing the manuscript on a line-by-line basis with the author. After she determined that the manuscript no longer contained any classified information, officials in the National Security Council and White House Counsel’s Office instructed her not to issue a final decision. A political appointee with no previous experience in pre-publication review or classification review then proceeded to conduct a separate review for the apparent purpose of delaying publication of a book critical of the president.

A second reason to minimize distribution is that draft publications are the authors’ intellectual property and should be protected as such. Anecdotally, some authors have learned from contacts within the reviewing agency that their manuscripts are circulating widely among agency personnel who have no role in performing the prepublication review.

The directive requires IC elements to ensure that “all non-official material in prepublication review requests are reviewed only by the necessary individuals authorized to assist in completing the prepublication review, including prepublication review personnel, government legal counsel, and subject-matter experts, and only for the purpose of prepublication reviews.” It also states that “[p]republication review personnel shall disclose to subject-matter experts only the minimum amount of non-official material necessary for them to review. Subject-matter experts may not further distribute or circulate material.” It emphasizes that “[u]nder no circumstances may material be shared with personnel . . . for reasons other than facilitating the prepublication review.”

While the directive unfortunately does not prohibit political appointees from participating in the review process, it does include explicit direction that “[p]republication reviews shall be timely, reasoned, impartial, and free from political or policy bias” (emphasis ours). More concretely (and therefore more usefully), political appointees would likely have to be deemed “subject-matter experts” to participate in the review process, and their access to submitted materials would be limited to those portions of the manuscript relevant to their expertise.

Enhanced transparency and record-keeping. Under the current system, government employees and contractors struggle to find concrete and consistent information about their prepublication review obligations. When they submit materials for review, the submissions often fall into a void; communications from many reviewing agencies are rare and unhelpful. Agencies lack systems to comprehensively and effectively track submissions, and they do not maintain the type of data that would facilitate oversight.

The directive contains several robust transparency and record-keeping provisions that would go far toward addressing these problems, including the following requirements:

• IC elements must provide training on prepublication review requirements and ensure that all personnel, upon entry-on-duty and exit-from-duty, are aware of their prepublication review obligations.
• IC elements must provide IC personnel exiting from duty a single set of written instructions for prepublication review.
• IC elements must maintain public-facing and internal websites regarding prepublication review that are accessible from the element’s main page and that include links to all relevant policies and instructions, as well as information about points of contact and instructions on how to submit material for review. ODNI must maintain its own website to serve as a centralized prepublication review resource for all IC elements and personnel.
• IC elements must promptly acknowledge the receipt of a prepublication review request and provide the submitter with information about the prepublication review process, including applicable deadlines and contact information for any relevant points of contact.
• If the review takes longer than 30 business days from the date of acknowledgment, the IC element shall immediately notify the submitter with a status update and reason for the delay and then provide an update every four weeks thereafter.
• IC elements must provide one consolidated and comprehensive written response for each prepublication review request, clearly indicating which portions of the non-official material may be disclosed without change or require modification prior to disclosure, and which portions are not authorized for disclosure.
• IC elements must document the reason for an approval, modification, or denial of each prepublication review request.
• IC elements must establish and maintain an up-to-date, searchable data system that tracks prepublication review requests and related metrics, including (among other information) the date of submission, any other agencies/components to which the material was referred, a brief description of any communications or meetings with the submitter, the date on which the submitter was given a final substantive response, and a summary of that response. IC elements must provide ODNI with the relevant data on an annual basis and as requested. ODNI, in turn, must oversee an audit based on this data for each element at least once every five years.

These requirements are essential to modernizing and standardizing the administration of prepublication review, as well as to enabling oversight and accountability. Whether and when agencies budget for and implement systems to meet these requirements, however, will bear continued watching.

Required appeals process. Currently, at least half of the agencies’ policies do not provide for appeals. Of course, reviewers are not infallible, and so it is important to provide an internal correction mechanism for erroneous review decisions. It is not sufficient to say that authors may bring lawsuits, as some might lack the time or resources to do so. The directive makes clear that all IC elements must establish an appeals process for prepublication review requests that have been denied.

Critical Missing Reforms

Lack of firm deadlines. Despite the many significant improvements it puts in place, the directive suffers from a fatal flaw: the failure to include firm, enforceable deadlines for prepublication review. Indeed, some current agency policies include stricter deadlines than the soft targets contained in the directive. To be sure, most policies acknowledge that deadlines might not be met in all cases—and in fact, deadlines are routinely honored in the breach, as there is no consequence for an agency’s failure to meet them. This is particularly true for book-length manuscripts, which can take years to review rather than the 30 days contemplated by multiple agency policies.

Experts have proposed that agencies adopt deadlines that correspond to the number of words in the submission. For instance, the Knight First Amendment Institute at Columbia University suggests that agencies should be required to review manuscripts of less than 1,500 words within three days; manuscripts of 1,500–10,000 words within 14 days; and manuscripts of more than 10,000 words within 30 days. To make deadlines enforceable, experts have also proposed that a failure to meet deadlines should constitute de facto approval for publication—or, similarly, a waiver of the agency’s right to take administrative action against the author.

The directive does not take this approach. For shorter pieces like op-eds or blog posts, the directive states only that “[r]elatively short, time-sensitive requests (e.g., letters to the editor, some oral statements) shall be handled as expeditiously as practicable.” For other submissions, the directive states that IC elements “shall strive to complete a prepublication review request within 30 business days of receipt, or within 90 days for lengthy publications (e.g., books, large manuscripts), to the maximum extent practicable.” Of course, this language expressly contemplates that the review might exceed the stated time periods. There is no backstop—no maximum length of time for a review that has gone beyond the target deadlines in the directive; if the agency review takes longer than 30 days, the agency need only update the author every four weeks.

In the past, a major source of delay has been referral of manuscripts to other agencies that may have equities in the document. Agencies have little incentive to make referrals in a timely manner, and agencies that receive referrals do not appear to follow the deadlines that would apply if they had received the submission in the first instance. The directive does require referrals to be made within 10 or 15 business days of receipt, depending on the length of the publication. But it does not impose firm deadlines on the agencies that receive the referrals. Instead, it requires those agencies to “make every effort to respond to the receiving IC element within 15 business days of receipt, or within 45 days for lengthy publications (e.g., books, large manuscripts).” If the agencies miss those target deadlines, “they shall notify the receiving IC element every 10 days until completion of the review, or every 30 days for lengthy publications.”

The ability to delay approval indefinitely, which the directive leaves in place, is at the root of the system’s dysfunction. It greases the skids for political interference, as agencies need not point to actual classified information to interfere with publication; all they have to do is wait. It causes many would-be authors—particularly those who seek to weigh in publicly on time-sensitive matters—to simply give up on publishing. In other cases, authors decide to go forward without submitting their work for prepublication review, thus increasing the chances of an inadvertent disclosure of classified information. Finally, the lack of meaningful deadlines and the resulting lengthy periods of review cannot be squared with authors’ First Amendment rights.

A slight mitigating factor is the directive’s requirement for data-keeping and reporting. If agencies are continuing to blow past deadlines for review, that fact will be apparent in the data the agencies must report to ODNI, and it will presumably be a focus of the ODNI’s periodic audits. That transparency could help to build public support and pressure for creating firmer deadlines, empowering a future DNI to overcome the resistance that the current DNI no doubt faced on this point from intelligence agencies.

Overbroad designation of required submitters. Given the severity of prior restraints on speech, prepublication review should only apply to people who have access to highly sensitive national security information. Access to information that is classified at lower levels, as well as information that is over a decade old and has likely lost some or all of its sensitivity, should not trigger this requirement. Of course, authors who were not required to participate in the review process would not be free to publish classified information; they would still be subject to sanctions, including potential criminal prosecution, if they did so.

The Knight Institute has recommended that prepublication review should be mandatory only for employees and contractors who have held a Top Secret/SCI clearance within the past 10 years. Goldsmith and Hathaway, who formerly served as national security officials, have endorsed this recommendation. Other authors would still be able to avail themselves of the process if they wished. Indeed, if the system were reformed to operate a timely manner and to focus only on classified information, many authors would likely take advantage of that option in order to have the added security of agency approval.

The directive does not follow this recommendation or otherwise narrow the pool of people subject to the prepublication review requirement. Instead, it mandates prepublication review for “any individual who previously or currently receives, handles, stores, or processes classified intelligence and classified intelligence-related information.”

Failure to appropriately limit the scope of review. A major problem with the current system is that agencies often withhold approval for publication—or require authors to remove certain material—for reasons other than preventing the disclosure of classified information. Authors have reported that agencies object to material that would prove embarrassing to agency officials; information that agencies deem inaccurate or privileged; information that intrudes on personal privacy; information (even if unclassified) made public by allegedly unauthorized disclosures; and information that the agencies consider “sensitive” for reasons other than national security.

The directive affirms that “[t]he purpose of prepublication review is to ensure the protection of classified government information.” However, it goes on to state: “While not the purpose of prepublication review, during the course of such review an IC element may also identify unclassified but sensitive information that might be otherwise restricted under law or federal regulation. If so, that information may also be flagged for the submitter consistent with the timelines described herein.” This, in itself, is not problematic; indeed, it may be viewed as a courtesy to the author. The directive further provides, however, that reviewers who identify such information may “request its removal”—suggesting, although not explicitly stating, that the agency may withhold approval for publication of such information.

Unclassified information that is protected by law or regulation is a narrower category than the universe of unclassified information agencies currently seek to censor. Nonetheless, allowing agencies to prevent publication of such information is inappropriate. Courts have identified only one interest that is sufficiently compelling to justify the prior restraint of prepublication review: protection of national security. Indeed, they have made clear that agencies may not use the prepublication review process to prevent the publication of unclassified information. To the extent laws and regulations prohibit the disclosure of certain types of information for reasons other than safeguarding national security—for instance, to protect privacy or honor copyright—enforcement of those prohibitions must rely on after-the-fact penalties rather than prior restraints.

As noted, the directive is somewhat ambiguous as to whether reviewers may withhold authorization to publish unclassified information that is protected by law or federal regulation. If the intent of the directive was merely to allow reviewers to flag such information for authors’ benefit—rather than to require its removal, and withhold authorization if the information is not removed—the DNI should follow up with clarifying guidance.

Failure to require meaningful dialogue with authors. Former government employees who have participated in prepublication review have noted the lack of constructive engagement on the part of reviewers. Most notably, reviewers are not required to—and often do not—provide their reasons for denying approval or requesting the removal of information. They reject authors’ requests for in-person meetings, or they agree to meetings but refuse to allow authors’ attorneys to attend. In some cases, authors may be able to reword passages that reviewers have flagged as sensitive in ways that convey the same information without implicating national security, but they are not given the opportunity.

As noted above, the directive does require timely acknowledgment of an author’s request for review and regular updates about the status of the requests, including reasons for any delay. When it comes to the substance of the review, however, the directive underperforms. While IC elements must provide authors with written responses that “clearly indicat[e] which portions of the non-official material may be disclosed without change or require modification prior to disclosure, and which portions are not authorized for disclosure,” it does not require the agencies to provide the reasons for those decisions. Instead, it includes what appears to be a solely internal documentation requirement: “IC elements shall document the reason for an approval, modification, or denial of each prepublication review request.”

The directive also states that “IC elements shall, to the maximum extent practicable, ensure that there is discretion to work with the submitter to devise ways for the submitter to communicate the non-official material in unclassified terms.” The term “discretion,” however, necessarily means that the IC elements may choose not to work with the submitter to develop workable alternatives. And there is no requirement that agencies agree to meet with authors, if authors request such a meeting, let alone allow attorneys to attend the meeting. Without such an opportunity to confer, the discretion to work with the author is unlikely to be operationalized.

It seems likely that the intent of the directive was to foster a better dialogue between reviewers and authors, even though the language implementing that intent falls short. If so, this is another area where further guidance from the DNI could be useful. The DNI should consider issuing Intelligence Community Policy Guidance clarifying that agencies must provide authors with the reason for each requested redaction or revision; that agencies should meet with authors if a meeting is requested; and that agencies should work with authors to find ways to communicate classified material in unclassified terms unless it is manifest that no such workaround is possible.

* * *

There is much in the DNI’s prepublication review directive to applaud, including meaningful substantive changes and important transparency provisions. But there is still work to be done. Most crucially, without real deadlines, prepublication review will continue to frustrate both the authors who participate in the system and the First Amendment rights they should enjoy. The directive is proof of concept that fundamental change to the system is possible. ODNI should build on this change in the future to complete the project of prepublication review reform.

IMAGE: A close-up shot of a non-disclosure agreement. (via Getty Images)

The post The New Intelligence Community Directive on Prepublication Review: Important Reforms and Critical Omissions appeared first on Just Security.

When the House passed legislation to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) in April, it included a new provision that Senator Ron Wyden described as “one of the most dramatic and terrifying expansions of government surveillance authority in history.” Concern over the provision mounted in the Senate and threatened to derail the law’s renewal. Anxious to secure reauthorization before Section 702 expired, the chairman of the Senate Select Committee on Intelligence (SSCI), Senator Mark Warner, promised to work with other senators to narrow the provision in subsequent legislation.

To his credit, Senator Warner has made good on that promise; but the cure that SSCI has chosen is nearly as bad as the disease. The committee has created a dangerous new form of “secret law,” in which the legal parameters for surveillance—rules that bind not only the government, but private parties—are themselves classified. There is a much better solution available: Congress can legislate both responsibly and openly, as long as the administration declassifies certain information that is already in the public domain.

A Dramatic and Terrifying Expansion of Government Surveillance Authority

The provision at issue is a seemingly innocuous change to the statutory definition of “electronic communication service provider” (ECSP)—i.e., the type of entity that may be compelled to assist the government in conducting Section 702 surveillance.

In brief, Section 702 allows the government to target almost any foreigner abroad and collect their communications for the purpose of acquiring foreign intelligence. The government accomplishes this surveillance by serving directives on U.S.-based ECSPs requiring them to provide assistance. The law’s original definition of “electronic communication service provider” encompassed companies, like Verizon and Google, that have direct access to communications. The government would provide those companies with the “selectors” of foreign targets (e.g., email addresses or phone numbers), and the companies would turn over the communications associated with those selectors.

In 2022, the government served a Section 702 directive on a company that was recently revealed by the New York Times to be a data center for cloud computing. The data center argued that it did not qualify as an ECSP under the statutory definition, and the Foreign Intelligence Surveillance Court (FISC) agreed. The Biden administration thus decided to seek an amendment expanding the ECSP definition. But it did not want to specify the type of provider at issue, as that information was (and remains) classified. So instead of amending the definition to include data centers, the administration worked with allies in Congress to develop an amendment that was deliberately vague and overbroad, in an attempt to hide the specific intent behind it.

The resulting provision was a truly breathtaking expansion of surveillance authority. It amended the definition of ECSP to include the provider of any type of service whatsoever—as well as any officer, employee, custodian, or agent of such provider—that has access to equipment that may be used to transmit communications. On its face, this definition sweeps in almost every business in the United States. Most businesses provide some type of “service,” and every business has access to equipment on which communications may be transmitted (e.g., phones, computers, servers, or wifi routers).

In response to criticism of an early version of the amendment, its drafters excluded hotels, libraries, food service establishments, and a handful of other entities. The vast majority of businesses, however—including laundromats, barber shops, fitness centers, dentist’s offices, and hardware stores—still fell within the new definition. So did the commercial landlords that lease the office space where tens of millions of Americans go to work every day.

Moreover, unlike Verizon and Google, most of the businesses encompassed by the expanded definition lack the technical ability to isolate and turn over specific communications. Their compelled “assistance” would likely take the form of giving National Security Agency (NSA) personnel direct access to their communications equipment—and to all of the communications transiting over, or stored on, that equipment. Although the NSA would be legally authorized to collect and retain only the communications of Section 702 targets, such unprecedented access to domestic communications streams would carry enormous potential for abuse.

The amendment was unveiled three days before the House voted on it. House intelligence committee members described it as a narrow fix to a specific FISC decision; members accepted this characterization and passed it by a significant margin. But when the bill was sent to the Senate, Senator Wyden sounded the alarm. It quickly became clear that, even if the circumstances prompting the amendment were narrow, the solution was anything but. Several senators, Democrat and Republican, introduced amendments to strip the provision from the bill.

Had the Senate voted to remove the provision, the bill would have had to go back to the House, delaying reauthorization and guaranteeing a temporary lapse in Section 702. Faced with this prospect, Senator Warner conceded the point that his House counterparts had refused to admit: the amendment was overbroad (or, in his words, “could have been drafted better”). He publicly committed to working with concerned colleagues “to see if we can improve the definition of the ECSP before the next sunset, including through any legislative vehicle between now and then.” Based on that commitment, a majority of senators voted to pass the House version of the bill without amendment, and President Biden signed it into law.

The SSCI Solution: Using Secret Law to Rein In Overbroad Surveillance Powers

At the time Senator Warner made his pledge, civil liberties advocates were skeptical. I tweeted that the Senate “should not enact a terrifying expansion of government surveillance authorities based on one member’s unenforceable half-promise to ‘take it back later.’” I worried that Senator Warner might agree to narrow the provision in ways that would still leave it far too broad—e.g., by excluding a few additional categories of businesses. Or he might engage in negotiations with concerned colleagues in a show of good faith, but ultimately declare the issue too thorny to resolve.

He did neither of those things. The recently unveiled Intelligence Authorization Act (IAA) includes a provision that effectively narrows the problematic ECSP provision to precisely the category of companies at issue in the FISC opinion that prompted the original amendment. It also requires reporting to the relevant committees of Congress (including the judiciary committees, which are often forgotten in intelligence committee legislation), and it allows the FISC to preemptively review directives that are issued to companies that fall within the new category.

Senator Warner deserves credit for following through on his commitment (and other members, no doubt, for holding him to it). But while the solution in the intelligence authorization bill solves one problem, it creates another one that is nearly as dangerous. Rather than specify the type of company at issue (i.e., data centers for cloud computing), the IAA language narrows the new definition to providers of “the type of service at issue in the covered opinions.” “Covered opinions,” in turn, are defined to include two specific opinions: the FISC opinion holding that data centers do not qualify as ECSPs, and the Foreign Intelligence Surveillance Court of Review’s decision upholding that ruling. Both decisions have been publicly released, but with substantial redactions that include the type of company at issue in the case. That means the new legal parameters for permissible surveillance are a secret, known only to those with the requisite security clearance and authorization.

To be fair, this is not a problem of SSCI’s making—at least not primarily. Short of identifying data centers by name, incorporating the opinions by reference is the only way to precisely conform the language of the provision to its intent. While Congress is free to legislate on classified matters and members would violate no law by naming data centers, vanishingly few members would feel comfortable disclosing classified information in legislation. So they have resorted instead to “secret law.”

The Perils of Secret Law

As the Brennan Center expounded in a 2016 report, “secret law” is a common feature of repressive regimes, but it is widely considered to be anathema to democratic societies. Secrecy undermines the moral authority and legitimacy of law. At the most basic level, secret law denies the people the ability to shape the rules that govern official conduct through the democratic process. It also prevents people from holding the government accountable for violations of the law, which in turn renders such violations much more likely. And it weakens checks and balances, as both legislative and judicial oversight operate less effectively under the constraints imposed by secrecy.

Of course, some of these harms can result from government secrets of all kinds, not just secret law. And national security operations often rely on some degree of secrecy. But as the Brennan Center’s report explains:

[The] law is different. It is both more durable and more general than other types of government action: it constrains or authorizes government action across a range of circumstances for (usually) a long period of time. It also serves a function of political self-definition that the individual actions of government actors do not. The law is meant to express the values and norms held by a society. Secret law alienates people from the society in which they live.

Unfortunately, there are large and growing pockets of secret law in the United States—but they are mostly confined to the executive and judicial branches. The best-known example is legal interpretations issued by the Department of Justice’s Office of Legal Counsel. These interpretations have the force of law because they are binding on the executive branch, yet they are often withheld from the public. In addition, until a decade ago, FISA Court opinions were almost always secret. Only after Edward Snowden’s disclosures, followed by Congress’s enactment of surveillance reform and transparency legislation (the USA FREEDOM Act), did the government begin declassifying and releasing large portions of significant FISC opinions.

There is some precedent for secret law in Congress. The committee reports accompanying intelligence and defense appropriations and authorization acts frequently include classified annexes. While neither the reports nor the annexes are themselves “law,” Congress has sought to turn various provisions of classified annexes into law by incorporating them by reference into the actual bills. And while none of the annexes has become public, the wording of some of the incorporation provisions indicates that they are incorporating not only funding and personnel allocations, but substantive regulations.

For instance, the 2004 defense appropriations act authorized a program for “[p]rocessing, analysis, and collaboration tools for counterterrorism foreign intelligence, as described in the Classified Annex.” The defense appropriations act for the following two years allocated a total of $4.8 billion for “classified programs, described . . . in the classified annex.” In 2014, the Washington Post reported that a classified annex prohibited relocating the drone strike program from the CIA to the Department of Defense.

What makes the new ECSP definition different, and the reason it sets a dangerous precedent, is that it may be the first time Congress has used secret law to impose legal requirements on private parties. The government will rely on the new definition to serve directives on companies. Those companies will not have access to the FISC opinions—the reference points used in the statute itself—that reveal whether they are properly subject to Section 702 directives. In other words, they will not know whether they are legally required to comply with the directive.

The IAA provision attempts to address this issue by requiring the government to provide the companies with “a summary description of the services at issue in the covered opinions.” But as every lawyer knows, when applying the law to facts, the devil is always in the details. A summary of the law (provided by a party that is far from disinterested) cannot substitute for the law itself. At the same time, many companies have limited resources and appetite for taking on legal battles that have uncertain outcomes. A company that might have contested a directive if it had access to the law might well decide not to contest it if presented with a persuasive-sounding summary.

Fundamentally, Americans have a right to know what the law authorizes and what it forbids when it comes to surveillance that is conducted by U.S. agencies, takes place on U.S. soil, requires the cooperation of U.S. companies, and results in the collection (even if “incidental”) of Americans’ communications. If Congress adopts secret law as the solution to the overbroad ECSP definition, we may well see additional laws in the future granting the government secret domestic surveillance authorities spelled out in classified annexes.

The Path Forward: Discretionary Declassification

There is a better solution. The Biden administration can—and should—declassify the fact that the company at issue in the FISC decision that triggered the new ECSP definition is a data center for cloud computing.

The executive order governing classification allows agency heads or senior agency officials to declassify information as a matter of discretion if “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” That test is clearly met here. The public has an overriding interest in knowing what the law is. Indeed, avoiding secret law is such a vital imperative, it is not clear that it should ever be outweighed by claims of possible national security harm. At a minimum, only the most grievous and certain threat to national security should place the public nature of the law in question.

In this case, the national security risk of declassification is negligible at best, because the information is already squarely in the public domain (albeit without the administration’s confirmation). As noted above, the New York Times revealed in April that the FISC decision at issue involved a data center for cloud computing. During the Senate debate over this provision, multiple senators either stated or implied that the provision was intended to address data centers. Senator Warner himself, who has access to the FISC opinions in question, confirmed this information:

Now, why has this suddenly now become such an issue? Well, one of those communications providers—remember I talked about clouds, data centers, how these networks come together and how network traffic is intertangled at these data centers? One of these entities that controlled one of those new enterprises that didn’t exist in 2008 said: Well, hold it. You can’t compel us to work with the American government because we don’t technically fit the definition of an electronic communications service provider. And the fact was, the company that raised that claim won in court. So what happened was, the FISA Court said to Congress: You guys need to close this loophole; you need to close this and change this definition. So that is where a lot of this debate has come from.

To be sure, the government takes the position that official confirmation of information that has already been made public can still lead to national security harms in some cases—for instance, where that confirmation would strain relationships with a foreign partner, or where the veracity of the source who made the information public is in significant doubt. But this is not one of those occasions. If any foreign targets are paying attention to what types of U.S. companies are subject to Section 702—and changing their behavior in response—they are surely not waiting for official confirmation before acting on information from a respected national security reporter and the Senate intelligence committee chairman.

Of course, one could argue that the IAA reworking of the ECSP provision isn’t truly “secret law” for the same reason: it is widely known that the provision addresses data centers. As noted above, however, the precise wording of the law is important when it comes to questions of compliance—whether by the government, or by the companies that are served directives. Perhaps more important, using classified information to define the scope of surveillance powers creates a precedent that could be followed in cases where that information is not in the public domain.

On May 9, more than thirty organizations, including the Brennan Center, sent a letter to Attorney General Merrick Garland and Director of National Intelligence Avril Haines urging them to declassify the information needed for Congress to legislate responsibly. To date, there has been no response to this request. But there is still time; there will be opportunities, either through floor votes or in conference, to amend the bill before it is passed. The administration should move quickly to release Congress from the Hobson’s choice it now faces: enact a surveillance provision that is necessarily imprecise and overbroad, inviting abuse, or resort to secret law.

IMAGE:The U.S. Capitol building shines in the afternoon light on Nov. 07, 2023, in Washington, D.C. (Photo by Kevin Carter via Getty Images)

The post Is Secret Law the Solution to an Overbroad Surveillance Authority? appeared first on Just Security.

With Section 702 of the Foreign Intelligence Surveillance Act (FISA) set to expire on April 19, Congress once again finds itself faced with the decision whether to reform and reauthorize the controversial law or to let it expire. While Speaker of the House Mike Johnson has promised to hold a vote on a Section 702 bill the week of April 8, he is running short on time to broker a compromise between members of the House Judiciary Committee (HJC), who are advocating for strong surveillance reforms, and members of the House Permanent Select Committee on Intelligence (HPSCI), who favor something much closer to the status quo. In the absence of an agreement, Johnson has indicated that he may bring to the floor the Reforming Intelligence and Securing America Act (RISAA), a deeply flawed bill that would fail to prevent the worst abuses of Section 702 and includes provisions that would actually weaken surveillance oversight.

Bringing RISAA to the floor without any opportunity to improve the bill would be a profound betrayal of the 75 percent of Americans who want meaningful surveillance reforms. Fortunately, Johnson has other options. He should schedule a floor vote on the bipartisan Protect Liberty and End Warrantless Surveillance Act (Protect Liberty Act), which passed out of HJC, the committee of primary jurisdiction over FISA, by a vote of 35–2. Alternatively, he could move forward with a compromise bill: the bipartisan Security and Freedom Enhancement (SAFE) Act. Failing that, he could resurrect a prior deal, scuttled by HPSCI, that would allow members to vote on RISAA and amendments that would implement major surveillance reforms.

The Push for Reforms

Section 702 allows the government to collect the communications of non-Americans located abroad without a warrant. (We use “Americans” as a shorthand for the statutory term “United States persons,” which is defined to include U.S. citizens and lawful permanent residents.) The provision was intended to make it easier for the government to spy on foreign terrorists, but the surveillance inevitably captures Americans’ private phone calls, emails, and text messages, too. Concerned about this infringement of Americans’ privacy, Congress directed intelligence agencies to minimize the retention and use of this “incidentally” collected information.

But intelligence officials still routinely search through Section 702-acquired data looking for Americans’ communications. Agencies conduct roughly 200,000 of these “backdoor” searches for Americans’ private communications each year. Moreover, they have frequently abused this power. Examples in recent years include baseless searches for the communications of racial justice protesters, members of Congress, crime victims, journalists, and political donors, among many others. These abuses have caused outrage in Congress, and many lawmakers have vowed not to reauthorize Section 702 without “significant reforms.” But some surveillance hawks do not share this bipartisan consensus and are working hard to re-up the law without meaningful changes.

Before Section 702 was extended until April 19 by the National Defense Authorization Act for Fiscal Year 2024 (NDAA), HJC and HPSCI each marked up a bill to reauthorize the law. (A third bill, the bipartisan Government Surveillance Reform Act of 2023 (GSRA), was not acted on by either committee.) HJC’s bill was the Protect Liberty Act. Among other reforms, it would:

• Close the backdoor search loophole by requiring the government to get a criminal warrant or FISA Title I order before searching its Section 702 databases for Americans’ information, with exceptions for exigent circumstances, consent, and certain cybersecurity-related searches;
• Close the data broker loophole, under which intelligence and law enforcement agencies are evading constitutional and statutory privacy protections by purchasing Americans’ sensitive information from commercial data brokers; and
• Improve the workings of the Foreign Intelligence Surveillance Court (FISC) by empowering amici — outside experts who present a perspective other than the government’s — to more fully represent the public’s interests before the court. This provision incorporates the Lee-Leahy amendment, which passed the Senate by a vote of 77–19 in 2020.

In contrast, HPSCI’s bill, the misleadingly named FISA Reform and Reauthorization Act of 2023, would do nothing to prevent the worst abuses of Section 702. For instance, as explained further below, it ends the practice of querying Section 702 data for American’s information to find evidence of a predicated crime unrelated to national security, but this is such a tiny percentage of backdoor searches as to render the provision meaningless. And in some regards, the bill would actually expand warrantless surveillance, as we have explained elsewhere.

After Congress extended Section 702 through the NDAA, Speaker Johnson sought to forge a deal between HJC and HPSCI Republicans on Section 702. The result was RISAA, a bill comprised primarily of the provisions of the HPSCI bill that were least offensive to surveillance reformers — provisions that, as discussed below, would not prevent misuse or abuse of the authority. Under the terms of the agreement Johnson brokered, HJC and HPSCI would each have an opportunity to offer three amendments to RISAA, enabling the full House to decide whether and to what extent it wanted reforms.

As the time for the vote approached, though, HPSCI balked. Apparently attempting to sway congressional sentiment, the committee disseminated information to all members of the House regarding Russia’s desire to develop a space-based nuclear weapon system, and then credited Section 702 for providing the intelligence. When that failed to undermine support for surveillance reforms, HPSCI backed out of the Johnson-brokered deal, refusing to submit its three amendments and threatening to tank a procedural vote needed to bring RISAA to the floor. Johnson blinked, canceling the vote in the middle of a Rules Committee hearing that would have moved RISAA to the floor.

But even with the deal temporarily dead, RISAA remains important, as Speaker Johnson has indicated that it is the bill he intends to bring up when Congress returns from recess. For this reason, it is important to understand what RISAA does — and why, on balance, it would make matters worse rather than better unless substantially amended.

The Problems with RISAA

RISAA reflects points on which HJC and HPSCI Republicans could agree. The vast majority of the text is copied directly from HPSCI’s bill, which would be broadly ineffective at preventing abuses. Even where the provisions would be marginally helpful, they are in almost every case substantially weaker than analogous provisions in the Protect Liberty Act or the GSRA. For instance, RISAA requires FBI agents applying for FISC orders to notify government attorneys of any exculpatory information, while the Protect Liberty Act and the GSRA require that the FISC be notified as well.

RISAA’s marquee reform is a prohibition on the FBI conducting backdoor searches intended to find evidence of a crime unconnected to foreign intelligence. But such searches represent a vanishingly small number of backdoor searches overall. Of the more than 200,000 backdoor searches intelligence agencies performed in 2022, for example, this prohibition would have stopped them from accessing the contents of Americans’ communications just twice. Moreover, the most egregious abuses of Section 702, including the baseless searches mentioned above for the communications of 141 Black Lives Matter protesters, sitting members of Congress, and 19,000 donors to a congressional campaign, were all justified as having an ostensible foreign intelligence purpose.

RISAA also would codify recent changes the FBI has made to its internal procedures governing the use of Section 702. But those changes have already proven wholly inadequate. By the government’s own numbers, the FBI continues to commit several thousand violations of the existing rules governing backdoor searches every year. And these violations continue to include alarming abuses, including recent searches for the communications of a U.S. Senator, a state senator, and a state court judge who contacted the FBI to report a local police chief’s apparent civil rights violations.

While the provisions addressing backdoor searches would maintain an unacceptable status quo, other provisions of RISAA would actually weaken oversight of Section 702 surveillance. In particular, rather than bolstering the role of FISC amici, as the Protect Liberty Act and GSRA do, RISAA would place a new restriction on amici, limiting them to addressing only those issues identified by the FISC. But of course, one of the main purposes served by amici is to identify issues that judges may not have considered — not merely to serve as additional law clerks briefing issues of which judges are already aware. Moreover, RISAA would require amici, “to the maximum extent possible,” to have expertise in both civil liberties and intelligence collection, a requirement that could heavily weight the scales in favor of selecting former government attorneys as amici.

One particularly objectionable provision of RISAA creates special protections for members of Congress. The bill would prohibit the FBI from performing certain “defensive” searches (searches intended to identify possible targets of a foreign threat) for a member of Congress without first obtaining that member’s consent. This protection would be available only to lawmakers, not to ordinary Americans.

Without amendment, RISAA is wholly inadequate to prevent abuses of Section 702 and would weaken oversight of surveillance in key respects. However, Speaker Johnson has other options that would allow the House to consider real reforms.

The Possibility for Compromise

Speaker Johnson’s most obvious path forward is to do what he should have done from the beginning: schedule a vote on the Protect Liberty Act. That bill passed out of HJC, the committee of primary jurisdiction, by a vote of 35–2. It enacts significant reforms that are overwhelmingly supported by the American public. And perhaps most importantly for Johnson, it stands a significant chance of becoming law, as each of its key reforms has previously earned majority support in either the House or the Senate. Johnson could recognize and preserve HPSCI’s interests by giving the committee’s leaders the opportunity to offer amendments to the bill.

But if Johnson’s preferred path forward is to start with a compromise vehicle, he could use the bipartisan Security and Freedom Enhancement Act of 2024 (the SAFE Act), recently introduced by Senators Dick Durbin and Mike Lee, as a model. Drawing inspiration from many of the Section 702 bills that have already been introduced, the SAFE Act charts a careful middle course that would significantly advance Americans’ privacy rights while accommodating certain concerns expressed by intelligence agencies.

Like the Protect Liberty Act, the SAFE Act closes the backdoor search and data broker loopholes and shores up FISA’s amicus provisions. But while the amicus reforms are the same changes from the Lee-Leahy amendment that were included in the Protect Liberty Act, the backdoor search and data broker loophole fixes are both significantly different.

In contrast to the Protect Liberty Act, which requires the government to obtain a court order before performing a backdoor search, the SAFE Act has a “point of access” warrant requirement: The government could perform the search without a court order, but it would have to get court approval before accessing the results of that search. Because backdoor searches of Section 702 data return results less than two percent of the time, this modification should allay the government’s stated concerns that a warrant requirement for all searches would create an undue burden on the government and the courts.

The SAFE Act’s data broker provisions, too, are intended to accommodate concerns expressed by the government. The Protect Liberty Act incorporates the Fourth Amendment Is Not for Sale Act, which prohibits the government from purchasing certain sensitive information about Americans. The SAFE Act, however, incorporates the data broker provisions from the GSRA, which give the government substantially more flexibility when acquiring commercial data but include strict limits on its use.

In these and other provisions, including many drawn from the HPSCI bill and its companion in the Senate, the SAFE Act effects what Senators Durbin and Lee refer to as a “pragmatic” compromise that protects both Americans’ privacy and national security. If Johnson is not willing to bring the Protect Liberty Act to the floor, the SAFE Act would be a reasonable fallback.

As a last resort, Johnson could resurrect the deal he brokered in February to bring RISAA to the floor with the opportunity for reformers to offer amendments. While that move is not the first choice for either camp, it would give members a chance to decide for themselves whether genuine surveillance reforms should become law. In a recent letter to House leadership, 42 members, including many of the cosponsors of the Protect Liberty Act, indicated that they would support a legislative vehicle that allowed members to vote on closing the backdoor search and data broker loopholes — even if that vehicle was not their preferred bill.

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Congress once again has an opportunity — and an obligation — to enact much-needed surveillance reforms to protect Americans’ privacy while ensuring that intelligence agencies retain the tools they need to safeguard national security. It can accomplish this task by April 19, but only if Speaker Johnson recognizes that RISAA on its own does not constitute reform legislation. Good alternatives are available, and Johnson should choose one of them.

IMAGE: U.S. Speaker of the House Mike Johnson (R-LA) arrives for a House Republican Conference meeting at the U.S. Capitol November 7, 2023 in Washington, DC. (Photo by Drew Angerer/Getty Images)

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