Bill Gertz, writing for The Washington Times, reports the Obama administration had considered using the military during a standoff between Cliven Bundy and the BLM in Nevada in April.
A 2010 Pentagon authorization, Directive No. 3025.18, “Defense Support of Civil Authorities,” issued on December 29, 2010, states U.S. military commanders “are provided emergency authority” to use military arms and forces, including drones, in domestic unrest situations.
The directive is in direct conflict with the Posse Comitatus Act. The federal law, enacted following Reconstruction in 1878, prohibits the federal government from using federal military troops to enforce the state laws.
Posse Comitatus was modified under the John Warner National Defense Authorization Act of 2007 (H.R. 5122). Section 1076 of the act allows the federal government to use “the Armed Forces in major public emergencies… as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition.”
The 2010 Pentagon directive states “Federal military forces shall not be used to quell civil disturbances unless specifically authorized by the president in accordance with applicable law or permitted under emergency authority.”
The Pentagon directive, however, appears to allow the military to act without consulting the president as stipulated under the John Warner National Defense Authorization Act.
“In these circumstances, those federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the president is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances” under two conditions, namely “to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order” and when it is determined that federal, state and local authorities “are unable or decline to provide adequate protection for federal property or federal governmental functions.”
The Bundy standoff concluded after a number of supporters responded to heavily armed BLM agents. The FBI and U.S. Capitol Police launched investigations into allegations armed Bundy supporters threatened federal agents.