Early Warning Intelligence Bulletin
Analyst: Mike Shelby
Bottom Line Up Front: DoD Directive 5240.01 expressly authorizes Defense Intelligence Components to conduct covert activities inside the United States, under a Title 50 program, if approved by the President of the United States. This Directive, published on 27 September 2024, updates and expands authorization for covert and clandestine Defense Intelligence activities in support of civilian law enforcement. It is timed for the election and post-election civil disturbances, which could include various forms of civil unrest, political violence, and domestic terrorism. – M.S.
BACKGROUND:
On 27 September 2024, the Department of Defense (DoD) published Directive 5240.01, entitled, “DoD Intelligence and Intelligence-Related Activities and Defense Intelligence Component Assistance to Law Enforcement Agencies and Other Civil Authorities.” This Directive provides guidelines for Defense Intelligence and intelligence-related activities in the United States, in support of law enforcement agencies and civil authorities.
First, this Directive replaces a similar one published in 2007. The 2024 update appears to expand and clarify DoD policy regarding the use of Defense Intelligence Components, including covert and clandestine activity, to support law enforcement agencies.
Second, this Directive is related to military operations called Military Assistance to Civil Disturbances, or MACDIS. This allows the DoD to provide military support to requesting law enforcement agencies responding to natural disasters or other civil disturbances such as civil unrest or domestic terrorism.
Third, this Directive raised significant concerns over certain sections authorizing the use of lethal force inside the United States. More importantly, this Directive outlines authorization for covert and clandestine Defense Intelligence activities inside the United States.
WHAT:
This Directive clarifies the legal considerations for Defense Intelligence Components engaged in domestic intelligence gathering and other defense and intelligence support to law enforcement agencies. It specifically details authorization for Title 10 activities and Title 50 activities.
For reference, Title 10 concerns the use of the Armed Forces. Title 10, for instance, does not allow the use of U.S. Armed Forces for domestic law enforcement (Posse Comitatus Act), but it does allow military support to domestic law enforcement agencies. Previous DoD policies from 2016, including one signed off by former Attorney General Loretta Lynch, clarified the use of Defense Intelligence collection on U.S. persons if there was a nexus to foreign intelligence, in compliance with the Foreign Intelligence Surveillance Act (FISA).
Title 50 outlines the use of intelligence for national defense and war. Further, it covers activities related to deniable covert and clandestine operations, which are authorized and funded under various Title 50 programs, as opposed to regular military operations under Title 10.
Specific DoD Policies have been updated to include (a selection):
- Activities remain in compliance with all applicable laws and regulations, including Executive Order 12333. “Special emphasis will be given to the protection of the constitutional rights and privacy of U.S. persons.”
- Defense Intelligence and Counterintelligence will be responsible for collection, analysis, and sharing of all information derived from Defense Intelligence activities. (In other words, civilian law enforcement agencies will not play a role in any of these steps conducted during Defense Intelligence activities.)
- Defense Intelligence activities will only be conducted if authorized by the Secretary of Defense or other appropriate senior Defense officials.
- “Defense Intelligence Components may enter into contracts or arrangements for the provision of goods and services with commercial organizations, non-academic institutions, private institutions, or private individuals within the United States without revealing the sponsorship of the Defense Intelligence Component if” those goods and services are necessary and “a written determination or approval of a cover plan” is required “to protect the activities of the Defense Intelligence Component concerned.”
- Defense Intelligence Components will only conduct or provide support for covert activities:
- In times of war declared by Congress
- In accordance with the War Powers Resolution (1973)
- When actions have been approved by the President and directed by the Secretary of Defense (This expressly permits Defense Intelligence Components to carry out covert activities inside the United States in support of civilian law enforcement, conducted under Title 50 authorization, if approved by President Biden.)
This Directive also expressly permits the lethal use of force by Defense Intelligence personnel. The Secretary of Defense can approve intelligence activity “to support response efforts for civil disturbances… chemical, biological, radiological, nuclear, and high-yield explosive incidents… [and any scenario] 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.”
WHY NOW:
While this Directive doesn’t specifically mention the purpose or context, it’s almost certainly aimed at combating terrorism. Given the timing, there are two strong contenders: foreign-directed or foreign-backed terrorism against the United States, or election-related or post-election terrorism and civil unrest.
Combating foreign-directed or foreign-backed intelligence operations is a counterintelligence mission that belongs to the Federal Bureau of Investigation (FBI), which has its own domestic intelligence and surveillance assets. It’s possible DoDD 5204.01 was issued to provide support to the FBI in this counterintelligence or intelligence support to counterterrorism role. This mission profile would certainly require covert or clandestine activities, as outlined and permitted in this Directive. Alternatively, this Directive is aimed at the potential for election-related or post-election civil unrest, political violence, and domestic terrorism.
IMPLICATIONS:
At best, the Directive was issued out of an abundance of caution to enable Defense Intelligence to support civilian law enforcement in identifying and disrupting foreign-backed sabotage or terror campaigns; or in preparation to disrupt foreign-backed attempts to disrupt the 2024 election. Foreign exploitation of U.S. elections has been an ongoing concern and a frequent point of discussion among U.S. officials. The Directive may have also been updated in response to a specific and credible threat. Published just over a month before Election Day, it does seem uniquely timed to increase election-related vigilance and security.
At worst, this Directive reflects a central policy position of the Biden administration that former President Donald Trump, his supporters, and their post-election activities may represent a national security threat. This sentiment is also reflected across the most senior positions, from Biden’s Vice President to the Attorney General, other senior Justice Department officials, and former Trump cabinet members. In this case, the Directive would be less about safeguarding the election and more about managing post-election fallout. Defense Intelligence Components are much better at intelligence gathering and targeting; or using the vast, “exquisite” collection platforms to develop targeting intelligence to provide to civilian law enforcement. This represents the Most Dangerous Course of Action for both sides.
OUTLOOK:
The worst case scenario is rarely the most likely, but the United States is in a precarious position due to extreme political polarization, rising economic stress, loss of faith in federal institutions, and foreign exploitation of our domestic social dynamics. Further, Title 50 programs were never intended for domestic use. This Directive is another indicator of how extreme and abnormal the situation is. Out of an abundance of caution, we advise Early Warning Network members to prepare contingency plans for a failed or contested election, or a catastrophic event in the lead up to Election Day and through the Inauguration in January 2025. – M.S.
You can download and read the original DoDD 5240.01 at the link here: https://www.esd.whs.mil/portals/54/documents/dd/issuances/dodd/524001p.pdf