Comment on DOD-2009-OS-0038-0001

Comment on Proposed Rule: 32 CFR Part 182 DOD-2009-OS-0038 The definition given in §182.3 of “civil disturbance” is overly-broad and encompasses any number of situations that the Legislature and DOD entities might not have in mind at the time of drafting this rule. It is my recommendation that specific reference be made to DOD Directive 3025.12 within §182.3 to allay any possible misreading of 32 CFR 182. If Posse Comitatus is going to be suspended in times other than those specifically authorized by the Constitution, Congress must act to make the language clear and unambiguous. In addition, the definition of “Emergency Authority” in §182.3 and DOD 3025.12 is unclear. In what sort of a civil emergency can prior Presidential authorization be “impossible” to obtain. These two definitions read together give an extraordinary degree of latitude to DOD entities within the borders of the United States. Finally, I question whether a rule is the appropriate venue for an expansion of this nature. Perhaps this is a task best left to congress for full public scrutiny and debate. Should this really be a task left to the DOD to make a rule essentially gutting 10 U.S.C.A. § 331-4? Despite the fact that this rule has received certification by the Office of Information and Regulatory Affairs (OIRA), I seriously question whether there are not significant implications for its enactment under Executive Order 13132 (Federalism). If it is left to the DOD to determine when force is necessary, absent a Presidential order and absent the cooperation of local authorities, Posse Comitatus is for all intents and purposes at an end.