Biden Administration Didn’t Approve Directive Giving Pentagon Permission To Kill US Protesters

Claim:

Before the 2024 presidential election, the Biden-Harris administration issued DOD Directive 5420.01, which gave US armed forces the power to use lethal force against protesting US civilians

Rating:

What’s True

The Biden-Harris administration did issue DOD Directive 5420.01 on Sept. 27, 2024. The document does contain text explaining when some military assets may assist civilian law enforcement, including when such individuals are allowed to use lethal force.

What’s False

The directive does not give the US military the “green light” to kill protesting US civilians, nor is it a secret way to enact martial law.

On Oct. 23, 2024, Robert F. Kennedy Jr. claimed on X that the administration of US President Joe Biden and Vice President Kamala Harris had “pushed through” a controversial executive order (archived).

The former independent presidential candidate, who suspended his campaign to back former President Donald Trump, said the two Democrats had signed off on a Department of Defense directive to give US military assets permission to use lethal force against protesting civilians.

This is the kind of inflammatory poison that divides our nation and inspires assassins. It’s particularly ironic since Biden/Harris have just pushed through DoD Directive 5240.01 giving the Pentagon power – for the first time in history – to use lethal force to kill Americans on US soil who protest government policies. If you want to understand a politician, the words from her mouth have little relevance. Look at her feet.

The claim had been shared by several Republican politicians in the days prior. US Rep. Andy Harris of Maryland called the update “worrisome” and “very scary” in an Oct. 16 interview with conservative broadcaster Newsmax. Likewise, former US Rep. Ron Paul of Texas said on an Oct. 14 podcast that the politics would render the US a “police state.”

The concern centered around a directive — No. 5240.01 – officially titled “DOD Intelligence and Intelligence-Related Activities and Defense Intelligence Component Assistance to Law Enforcement Agencies and Other Civil Authorities.”

In short, the claims made by these politicians were misleading. While the Biden administration did enact Directive 5240.01 in September 2024, the directive did not give all military assets express permission to use lethal force against US civilians. In fact, there are existing laws and protections in place preventing such actions. Most notably, the Posse Comitatus Act, passed in 1878, bans the use of federal troops in civilian law enforcement, except when expressly permitted by law.

In fact, DOD spokesperson Sue Gough said via email the policy did not “authorize the DOD to use lethal force against US citizens or people located inside the United States, contrary to rumors and rhetoric circulating on social media.”

What Does Directive 5240.01 Do?

Explaining what the DOD directive actually does requires a brief explanation on how the US conducts intelligence and espionage.

In 1981, then-President Ronald Reagan passed Executive Order 12333, which established what is known as the US “intelligence community.” This is a group of organizations all connected to foreign and domestic intelligence across several federal government departments, including Justice (the FBI) ​​and Defense (the NSA, among others).

According to Directive 5240.01, it applies to “any DoD Component, when conducting the training of personnel to perform intelligence duties or activities.” The directive refers to the organizations of the US intelligence community inside the DOD. That list of organizations includes the NSA and several military intelligence agencies, but not the entire US military.

After listing procedural information, the directive then explains exactly how these “Defense Intelligence Components” can provide assistance to civilian (read: nonmilitary) law enforcement agencies, and who must authorize that assistance (emphasis ours):

Subject to Paragraph 3.1., Defense Intelligence Components may provide personnel to assist a Federal department or agency, including a Federal law enforcement agency, or a State or local law enforcement agency when lives are in danger, in response to a request for such assistancein accordance with the following approval authorities:

In other words, these directives are valid only if there is a life-threatening emergency and someone requests assistance from the military intelligence agencies.

If those things are true, someone high up the chain of command must approve the requests for assistance. The directive continues by listing the four situations in which the approval must be given by the secretary of defense:

(1) The Secretary of Defense may approve any type of requested permissible assistance described in Paragraph 3.2.
(2) The decision to approve requests for these types of permissible assistance described in Paragraph 3.2. to law enforcement agencies and other civil authorities are reserved to the Secretary of Defense:
(a) Provision of personnel to support response efforts for civil disturbances, which may also require Presidential authorization.
(b) DOD response to chemical, biological, radiological, nuclear, and high-yield explosive incidents.
(c) 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.
(d) Provision or use of DOD unmanned systems in the United States except as delegated by the Secretary of Defense pursuant to the Oct. 31, 2023 Secretary of Defense Memorandum.

Of concern to Republican politicians was bullet point C above.

The confusion came from the fact the instruction combines an approval for situations that “may involve the use of force that is likely to result in lethal force” with “situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.”

The wording of that paragraph creates two ways to interpret the instruction. One, as the Republican politicians claimed, implies that military intelligence services are authorized to respond to confrontations between law enforcement and civilians as if they might require a lethal use of force and with military assets that have authorization to kill.

However, the bullet point also can be split up into the following two instructions:

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.

In this interpretation, the secretary of defense must authorize any assistance provided by US military intelligence services that involves any “(military) assets with potential for lethality” or “support … in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.”

A Second Directive

Furthermore, under this guideline, the military must abide by a separate directive, 5210.56, that sets out rules and restrictions for how to use force. Gough, the DOD, referenced that separate document directly.

“While the paragraph that’s been most frequently referenced on social media is new to this directive, it does not reflect any change to DOD’s policy regarding the use of lethal force by DOD personnel,” she said. “That is addressed in DoDD 5210.56, ‘Arming and the Use of Force.'”

In that document, personnel are instructed to always use “less than deadly force” if possible — using “deadly force” is permitted only as a last resort in cases of self-defense or to protect critical national-security assets.

According to The War Horse, a nonprofit news organization that covers the “human impact of military service,” other military policy experts noted that the military has been authorized to provide a limited amount of assistance to law enforcement agencies for a long time.

Sources