Examining The Use of the Military

Special Access Programs and the use of the Military to Execute Civilian Law

“The case of conflicting congressional and presidential powers is easily stated if not easily resolved. On one hand, the Constitution requires the President to take care to see that the laws are faithfully executed, and designates him as Chief Executive and Commander in Chief of the Armed Forces. In this dual capacity, the presidency is the repository of both extensive responsibilities and broad prerogatives, not the least of which flow from Article IV, Section 4 of the Constitution, which guarantees the states a republican form of government and protection against invasion and domestic violence.”

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, Page 26 Presidential vs. Congressional Powers.

Introduction

This article will explore and analyze the actual mechanisms and frameworks through which former President Donald Trump may have interacted with and influenced the United States military. The focus is on providing a realistic perspective and clarifying misunderstandings, rather than endorsing speculative theories.

It is vital to understand that some theories, which suggest Trump retained control over the military both during and after his presidency, overlook the established and foundational processes that govern military actions under civilian leadership. This examination aims to shed light on the real, operational systems in place, distinguishing them from theories that propose mechanisms not grounded in actual practice or law.

To provide a comprehensive understanding, the discussion will dive into key documents, laws, and directives that outline the military's role and its operational parameters under civilian command. The primary objective is to present not a speculative theory but a factual, procedural perspective on the potential actions Trump might have taken in relation to the military.

By examining these established mechanisms, readers are encouraged to develop informed opinions based on a solid grasp of the systems in place. This foundational knowledge will enable a more nuanced conversation about Trump's potential actions and decisions concerning the military, offering a well-grounded starting point for further discussion and analysis.

From the outset of Donald Trump's presidential campaign in 2015, he encountered significant opposition, initially facing ridicule and underestimation, and later, as his candidacy gained traction, sparking alarm among certain groups. This article posits that such reactions, particularly the latter, stemmed from a perception of Trump as a potential disruption of established, and arguably corrupt, systems within the American government. The perspective presented here, aligned with conservative, constitutionalist, or independent viewpoints, is that governmental corruption is a prevalent issue, and there is a strong desire among these groups for meaningful reform.

Donald Trump is perceived not as a savior, but as an outsider to the Washington D.C. establishment, and his intelligence makes it challenging to fully comprehend his actions and strategies. This has led many to scrutinize his statements and observable actions closely. The focus of this article is to go beyond surface-level analysis and explore the fundamental mechanisms and frameworks within the U.S. government that could shed light on Trump's potential capabilities and actions as president.

Specifically, we will look into aspects of the United States' information security program, including classifications and special access programs. Additionally, it will examine the Posse Comitatus Act, a pivotal piece of legislation that restricts the use of the military for domestic law enforcement, and discuss legal pathways through which this act may be circumvented. The discussion will also touch upon certain events that might justify the military's involvement under specific circumstances. The goal is to provide a deeper understanding of the structural and legal contexts within which President Trump operated, offering insights into his potential actions and decisions.

This discussion focuses on the security classification categories and the information security program to understand better how specialized military units interact with civilian authorities. These units, due to their specialized nature, often require security clearances, providing them with unique capabilities and advantages.

The necessity of understanding these classification categories and the information security program lies in their critical role in defining the scope and nature of military engagements with civil authorities. The security clearances involved grant access to sensitive information, which is instrumental in shaping the operational efficiency and strategic approach of these specialized units. This access allows them to operate effectively in complex environments where secure and confidential information plays a pivotal role.

By looking into the intricacies of these classifications and the overarching information security program, we can gain a clearer insight into the unique capabilities and advantages these specialized military units possess. This, in turn, sheds light on the nuanced and often intricate relationship between military operations and civilian authority, particularly in scenarios requiring high levels of security and confidentiality.

In-Depth Look at Security Classification Categories

Under United States Code (U.S. Code Title 50, Section 3161), the classification of information vital for national defense or foreign relations is meticulously structured into distinct categories:

• TS/SCI stands for Top Secret/Sensitive Compartmentalized Information. This security clearance level is used by the United States government and is one of the highest levels of security clearance. It grants access to sensitive information that is related to national security and allows individuals to access intelligence information and resources that are classified at the highest levels. This level of clearance is typically required for individuals working in national security roles, intelligence agencies, and other government positions that involve access to highly sensitive and classified information.

• Top Secret: This is the apex of classification levels, reserved for information whose unauthorized disclosure could gravely harm national security. Instances necessitating this level of secrecy range from threats of armed conflict to critical defense strategies and sensitive scientific breakthroughs.

• Secret: This level safeguards information where unauthorized access could inflict serious damage to national security. This encompasses a range of scenarios, including significant diplomatic disruptions, national security policy impairments, and major military or intelligence undertakings.

• Confidential: The lowest tier of classification, this designation is for information that, while sensitive, does not require the stringent protection of the higher classifications. Its unauthorized release could still damage national security, albeit to a lesser extent.

The principle of the 'Lowest Classification Requirement' dictates that information should only receive the minimum level of classification necessary for its protection. Additionally, the classification of any file or document collection is determined by the highest classification level of any single document it contains.

Administrative Control Designations

Apart from security classifications, there are also administrative control designations under U.S. Code, which, while not security classifications per se, indicate a need for safeguarding against unauthorized disclosure:

• For Official Use Only: This designation applies to information exempt from public disclosure as outlined in 5 U.S.C. 552(b), necessitating protection in the public interest or due to statutory requirements.

• Limited Official Use: The Department of State employs this designation for protecting non-defense information accessible only to those with a verified need to know.

Handling of Transmitted Material

In matters of correspondence transmitting classified material, the classification level must match or exceed that of the highest classified attachment or enclosure. For documents containing mixed classification levels or unclassified information, it's standard practice to include a notation indicating the varying levels of classification present.

EO 13526 Title 3—The President

Classified National Security Information

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. Our Constitutional Republic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people.

Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.

Special Access Programs: Protection Levels and Categories

Special Access Programs, though they may sound like fiction, are vital components of the Department of Defense's security apparatus. This examination aims to clarify the nature of SAPs, exploring their classification and protection mechanisms.

SAP Protection Levels

SAPs are differentiated by their levels of secrecy, determining how they are acknowledged and protected. The main protection levels include:

• Acknowledged SAPs: These programs, on the more transparent side of SAPs, allow for the recognition of their existence and general purpose. However, the critical details, such as technologies and methodologies, remain under wraps. Interestingly, the funding for these SAPs is typically public.

• Unacknowledged SAPs: This category represents the pinnacle of secrecy. The very existence and purpose of these programs are kept confidential. Like their acknowledged counterparts, the specifics are heavily guarded, and funding is often classified or discreetly allocated. In rare cases, unacknowledged SAPs may receive waivers, but with even tighter control and reporting requirements.

Categories of SAPs: Defining Their Roles

SAPs are also categorized based on their functional roles, which significantly influence their management and operation. The primary categories include:

• Acquisition SAPs: Constituting a significant portion (approximately 75-80%) of all DoD SAPs, these programs are dedicated to protecting activities related to research, development, testing, modification, and procurement. They are essentially the shields for top-secret technology and procurement projects.

• Intelligence SAPs: Centered around intelligence operations, these SAPs are designed to secure highly sensitive intelligence or counterintelligence operations and activities. Their operations are often intertwined with the broader intelligence community, underlining the necessity for utmost secrecy.

• Operations and Support SAPs: Focused on military operations, these programs are established to safeguard sensitive military planning, execution, and support activities. This could include protecting personnel, infrastructure, strategies, or other critical military aspects.

Understanding SAPs is crucial for grasping the nuanced ways in which the DoD manages and protects sensitive information. The classification into various protection levels and categories underscores the importance of these programs in balancing national security needs with the requisite transparency in a democratic system. This exploration into SAPs offers a window into the complex yet vital world of defense security.

Executive Order 13773: A Comprehensive Approach to Combat Transnational Crime

Signed on February 9, 2017, by President Donald Trump, Executive Order 13773, titled "Enforcing Federal Law With Respect to Transnational Criminal Organizations and Preventing International Trafficking," represents a significant step in the fight against global criminal activities. This order lays out a strategic framework targeting transnational criminal organizations, including drug cartels, with several critical components:

• Strengthened Enforcement: The order is designed to bolster federal efforts to counteract transnational criminal organizations, focusing particularly on drug trafficking and smuggling activities.

• Resource Allocation: It emphasizes the prioritized deployment of federal law enforcement resources to disrupt and dismantle these criminal entities.

• International Collaboration: A key aspect of the order is the enhancement of cooperation with international law enforcement agencies, including sharing intelligence to effectively combat these organizations.

• Strategic Implementation: The directive calls for the Secretary of State, Attorney General, Secretary of Homeland Security, and Director of National Intelligence to synchronize efforts in this endeavor.

• Legal Framework Review: There's a focus on evaluating existing federal laws to improve the fight against transnational crime and to safeguard the U.S. immigration system against exploitation.

• Inter-agency and International Coordination: The order advocates for collaboration with state, tribal, local governments, and international law enforcement counterparts.

• General Provisions: It outlines the scope and limitations of the order, ensuring alignment with applicable laws and the availability of necessary appropriations.

As we examine the specific conditions under which the military is legally permitted to bypass the restrictions of the Posse Comitatus Act we can see how specific circumstances enable the Military to assist civilian authorities. The Posse Comitatus Act generally prohibits the use of the U.S. military in domestic law enforcement roles, but there are notable exceptions embedded in law that provide the military with unique authorizations under certain circumstances.

The focus is to outline and explore the key legal provisions that define these exceptional circumstances. This exploration is crucial to understanding the nature and extent of military support that can be extended to civil authorities, especially in situations where their capabilities are limited or outstripped by the demands of a particular situation.

These legal provisions are not only fundamental in delineating the scope of military involvement in civilian matters, but also highlight the significance of the circumstances under which such involvement is warranted. The analysis will reveal that these circumstances often demand a level of capability and response that civil authorities alone may not possess, thereby necessitating military intervention. By examining these laws, we gain a deeper insight into the critical role of the military in supporting civil authorities under specific and legally sanctioned scenarios.

Understanding the Posse Comitatus Act’s Exceptions

The Posse Comitatus Act, a longstanding federal statute, restricts the use of the U.S. military in civilian law enforcement. However, exceptions to this act are specified under certain conditions:

1. Congressional Authorization: The use of parts of the Army or Air Force in law enforcement roles is permissible when expressly authorized by an act of Congress.

2. Non-Proscribed Military Activities: Activities that do not involve the utilization of the Armed Forces covered by the Posse Comitatus Act's prohibitions.

3. Non-Law Enforcement Execution: Activities that do not amount to the execution of law, as defined under the act.

Special Access Programs and Presidential Oversight

A pressing question arises regarding the isolation of Special Access Programs (SAPs) from the President of the United States. The oversight and management of SAPs are complex and subject to various legal and procedural controls, raising intriguing considerations about the extent of presidential authority and oversight in these highly classified endeavors.

10 U.S.C. § 281

Mandates the Secretary of Defense to establish procedures for procuring equipment for state and local agencies for counter-drug, homeland security, and emergency response activities, to be paid for by the receiving government.  

10 U.S.C. § 271

(Secretary of Defense may provide federal, state, or local civilian law enforcement officials with information collected during military training operations or training);

10 U.S.C. § 272

(Secretary of Defense may make equipment and facilities available to federal, state, and local law enforcement operations);

10 U.S.C. § 273

(Secretary of Defense may train federal, state, and local law enforcement officials to operate and maintain equipment);

10 U.S.C. § 274

(Secretary of Defense may provide personnel to maintain and operate equipment and facilities in support of certain federal, state and local law enforcement operations;)

10 U.S.C. § 282

(the Secretary of Defense may provide assistance to the Department of Justice in emergency situations involving chemical or biological weapons of mass destruction);

10 U.S.C. § 282 note (§ 1023 of the National Defense Authorization Act for Fiscal Year 2000)

(during fiscal years 2000 through 2004, the Secretary of Defense was authorized to provide assistance to federal and state law enforcement agencies to respond to terrorism or threats of terrorism);

10 U.S.C. § 283

(Secretary of Defense may provide assistance in support of Department of Justice activities during situations involving bombings of places of public use, Government facilities, public transportation systems, and infrastructure facilities);

*10 U.S.C. § 284*

(Secretary of Defense may provide support for the counter-drug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency for certain purposes).

18 U.S.C. § 831

(Attorney General may request assistance from the Secretary of Defense for enforcement of the proscriptions against criminal transactions in nuclear materials if an emergency is deemed to exist); 18 U.S.C. §§ 175a, 229E, and 2332e cross reference to the Attorney General’s authority under 10 U.S.C. § 282 to request assistance from the Secretary in an emergency involving biological weapons, chemical weapons, and weapons of mass destruction respectively.

42 U.S.C. § 98

(Secretary of the Navy at the request of the Public Health Service may make vessels or hulks available to quarantine authority at various U.S. ports).

U.S. CONST. art. II, § 3, cl.3

(“[T]he President] shall take care that the laws be faithfully executed.”).

5 U.S.C. § 301 (2018)

(“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property....”).

E.g., 21 U.S.C. § 873(b)

(“[w]hen requested by the Attorney General, it shall be the duty of any agency or instrumentality of the Federal Government to furnish assistance, including technical advice, to him for carrying out his functions under this sub-chapter; except that no such agency or instrumentality shall be required to furnish the name of, or other identifying information about, a patient or research subject whose identity it has undertaken to keep confidential”).

Can a U.S President be Isolated from a SAP??

Now then, last but not least, is the question, can a special access program be isolated from the President of the United States? The structure of Special Access Programs (SAPs) within the Department of Defense (DoD) is designed to control access to highly sensitive information, with strict need-to-know protocols.

This structure could allow for the existence of a SAP that even the President might not be directly aware of, due to these stringent access limitations. They very structure of SAPs can allow this to happen. Here’s how:

Need-to-Know Basis

SAPs are typically established to protect information or activities with exceptionally sensitive operational or technological aspects. Access to these programs is strictly limited to individuals who have a demonstrable need to know the information for the performance of their duties. This principle ensures that knowledge of the SAP's existence and its details are tightly controlled.

Decentralized Control within DoD

While the President, as Commander-in-Chief, has ultimate authority over the military and its operations, the day-to-day management and oversight of SAPs are delegated within the DoD. This delegation is to senior officials who manage these programs according to stringent security protocols.

Oversight and Compliance Mechanisms

The DoD has internal mechanisms for the oversight of SAPs, as outlined in various directives and regulations. This oversight ensures that SAPs operate within legal bounds and in accordance with national security objectives. However, the specific operational details of a SAP may not necessarily reach the President unless it is essential for decision-making at that level.

How can this Real Mechanism be Used?

The United States Code, specifically 10 USC 284, presents a nuanced mechanism that allows for military involvement in civilian law enforcement, particularly under specific circumstances. This provision grants the Secretary of Defense the authority to support counter-drug activities or actions against transnational organized crime. It extends this support not only to federal agencies but also to state, local, tribal, and foreign law enforcement entities. The breadth of this law is significant; it accommodates a wide array of situations, providing a legal framework for military assistance in various law enforcement contexts.

This legal provision becomes particularly interesting when considered in the context of President Donald Trump's administration. Throughout his campaign and presidency, Trump's rallying cry was to "drain the swamp," a metaphor for eliminating corruption within the government. In light of 10 USC 284, there emerges a potential narrative where President Trump could have leveraged this legal mechanism to further his agenda.

The law's flexibility in terms of the types of support the military can provide to law enforcement agencies opens up possibilities for its application in a range of scenarios. It could be postulated that Trump, in his commitment to rooting out corruption, might have explored the use of this statute to enable military assistance in investigations or operations aimed at addressing government corruption and other organized criminal activities.

Such a move would align with his stated goal of cleansing the government of corrupt elements. However, the use of military forces in domestic affairs is a topic of considerable legal and ethical complexity, raising questions about the balance between necessary enforcement and the preservation of civil liberties. The potential application of 10 USC 284 under Trump’s administration provides a fertile ground for discussion on the intersection of military power, law enforcement, and the pursuit of governmental integrity. Operation Integrity Sentinel: The Take Down of a Corrupt Government is a speculated scenario exploring the possibilities of the use of Military Operations.

Operation Integrity Sentinel: The Take Down of a Corrupt Government

Written By SpartanAltsobaPatriot -17th SOG

References:

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, November 6, 2018

SA001 Guide

32 CFR § 117.6

18 U.S.C. § 831

10 U.S.C. § 281, 282, 283, 284

10 U.S.C. § 271, 272, 273, 274

U.S. Code Title 50 ("War and National Defense"): The U.S. Code Title 50 contains the legal framework for national security classifications (Top Secret, Secret, Confidential).

42 U.S.C. § 98 (Secretary of the Navy at the request of the Public Health Service may make vessels or hulks available to quarantine authority at various U.S. ports).

U.S. CONST. art. II, § 3, cl.3 (“[T]he President] shall take care that the laws be faithfully executed.”).

5 U.S.C. § 301 (2018) (“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property....”).

E.g., 21 U.S.C. § 873(b) (“[w]hen requested by the Attorney General, it shall be the duty of any agency or instrumentality of the Federal Government to furnish assistance, including technical advice, to him for carrying out his functions under this sub-chapter; except that no such agency or instrumentality shall be required to furnish the name of, or other identifying information about, a patient or research subject whose identity it has undertaken to keep confidential”).

EO 13526 Title 3—The President Classified National Security Information, This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information

Uniform Code of Military Justice (UCMJ): The UCMJ addresses military justice and discipline, including the enforcement of rules regarding the handling of classified information.

DoD Directive 5205.07 ("Special Access Program Policy"): This directive establishes DoD policy and responsibilities for SAP management and oversight. It details the procedures for creating, classifying, and handling SAPs within the DoD.

DoD Directive 5105.42 ("Defense Security Service"): Renamed as the Defense Counterintelligence and Security Agency (DCSA), this directive relates to the protection of classified information within the defense industrial base.

DoD Instruction 5220.22 ("National Industrial Security Program Operating Manual"): This instruction provides procedures for the DoD Industrial Security Program, relevant to the management of classified information in the defense contractor community.

National Security Classification

NARA and Declassification

Classified National Security Information