October 28, 2024: Dept. of Defense Directive 5240.01 - What's It All About? Plus Human Smuggling Operation Uncovered at Northern Border and FTC Sued Over New 'Click-to-Cancel' Rule.
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Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Monday, October 28th, and this is your daily news rundown. As a reminder, if you love the unbiased approach that this episode provides and you feel more informed after listening, please go ahead and leave my show a review on whatever platform you listen, share this show with your friends, and if you're watching on YouTube, please go ahead and hit that thumbs up button and subscribe to the channel if you're not already.

As far as the format of today's episode, we'll cover two relatively short stories, and then a large portion of this episode will be spent covering something that has been widely, widely, widely requested by all of you, and that is this new

DoD directive, or this updated DoD directive, I should say, that's been brought to light by people like RFK Jr. and Joe Rogan. So we'll touch on what that directive is, what it means, and more. And we'll, of course, finish with the Daily Critical Thinking segment. So without further ado, let's get into today's stories.

Agents with U.S. Border Patrol and Homeland Security Investigations have said they uncovered a human smuggling ring across the U.S.-Canada border. For context, there has been a recent surge in border encounters across the northern U.S.-Canada border, which is actually more than double the length of the southern border, more than 5,000 miles long. And to illustrate this surge, U.S. Customs and Border Protection data shows nearly 180

998,000 migrant encounters at the northern border this past year, which is seven times higher than in 2021. According to Homeland Security, those people who are looking to be smuggled will reach out to various social media accounts that advertise smuggling services and pay anywhere from $5,000 to $20,000 for these services. These accounts are

promoting the smuggling services have been tracked back to India, where many of these smuggled individuals are from. An HSI special agent said that the people operating these accounts were responsible for more than 800 individuals coming in and accepting over $500,000 in smuggling fees.

This smuggling process actually involves ordering Uber rides to maintain the organizer's anonymity. The HSI special agent said, quote, one of the key aspects of this case was that in order to kind of have some anonymity or distance themselves from the smuggling attempts, they would order Uber services. They would tell the people to cross the border, you know, go this direction until you hit a road. They would cross in the middle of the night, sometimes in the cold, in the forest, end quote. And

And in other news, last week, the FTC announced the finalization of its new click to cancel rule and is now facing a lawsuit. A little bit of background here. The click to cancel rule is designed to make it easier for consumers to cancel subscriptions.

Once this rule takes effect, canceling a subscription is supposed to be just as easy as it was to sign up for the subscription. In other words, if someone signs up for a subscription online by simply clicking a button, that person should be able to similarly click a button to cancel without having to jump through hoops like dealing with a chatbot or an agent, things like that. And then if someone signs up for a service in person, they should just as easily be able to cancel online or over the phone.

This rule was part of the Biden administration's Time is Money initiative, which is a government-wide initiative to crack down on consumer-related hassles. As with any federal rule, it had to go through the rulemaking process set forth in the Administrative Procedure Act. So in March 2023, the FTC announced its click-to-cancel rule proposals, which then resulted in thousands of comments from both consumers and trade groups saying,

Using that feedback, the FTC made some changes to its initial proposal before ultimately finalizing the rule in a three to two vote. As an example, there was a requirement that businesses remind consumers every year about their subscriptions renewing, which was included in the proposed rule, but then ultimately dropped from the final rule.

However, in a new lawsuit, three industry groups that rely on subscription revenue challenged this new rule, alleging that the FTC made several violations during the rulemaking process and it went beyond its authority in implementing the rule.

In other words, the challengers say that the rule doesn't just regulate specific consumer contracts in specific industries. It just broadly regulates all consumer contracts for all companies in all industries and across all sectors. Therefore, they say it is too broad.

The three groups that sued are the Electronic Security Association, which is a group that represents companies that install or monitor electronic security and safety devices. The Interactive Advertising Bureau, which is a group that includes leaders in digital advertising and media and its members list, such as Amazon, TikTok, LinkedIn, and Disney. And the Internet and Television Association, which is a trade association representing the broadband and cable television industries in the United States.

It's worth noting that the same concerns brought up by these three challengers were also brought up by the two dissenting FTC commissioners. Remember, I said this rule was finalized in a three to two vote. What that means is that two commissioners were not on board with the rule, right? So at the time of the vote, one of the commissioners released a dissenting statement.

saying, quote,

Why the rush? There is a simple explanation. Less than a month from Election Day, the chair is hurrying to finish a rule that follows through on a campaign pledge made by the chair's favored presidential candidate.

End quote. The FTC chair, Lena Kahn, is a Democrat. And as I mentioned previously, this click to cancel rule was part of a Biden administration initiative. Now that this lawsuit has been filed, it'll be up to the courts to determine whether that new rule can stand. If the rule survives legal challenges and is not temporarily blocked in the meantime, it'll go into effect 180 days after being published in the federal register. So I'll keep you updated there.

Directive 5240.01. What is it? Recently, it's been brought up by high-profile people like RFK Jr. and Joe Rogan, and now a lot of people have a lot of questions. Now, a bit of a disclaimer, as I always do, I'm going to tell you what I know and what's being said by both sides. This is one of those stories that I'll get called biased for, you know, not saying 100% of what you want to hear, but that's my job. As I always say, I'm not here to make you happy. I'm here to tell you the truth of the matter, so keep that in mind. And I'm going to tell you what I know and what's being said by both sides.

And let's get into it. DoD Directive 5240.01 started circulating in the darker corners of the internet a few weeks ago. And by darker, I don't mean bad. I just mean more secluded areas of the internet, not as public areas of the internet. But within the last week or so, it's really started to come into the light due to some high profile people. So before we get into what those people have been saying, let's talk about what a directive is so we're all on the same page.

Essentially, internal agency directives can be seen as guidelines for agencies. These guidelines can do various things. It really depends on the guideline, but they do things like tell agency employees how to carry out specific tasks, provide clarity on existing requirements under the law, provide guidance on compliance policies and procedures, etc. Directives are not laws, and I'll discuss the difference in a little bit.

But Directive 5240.01 is titled DoD Intelligence and Intelligence-Related Activities and Defense Intelligence Component Assistance to Law Enforcement Agencies and Other Civil Authorities. It was originally created in 2007. It's been updated many times since its creation, most recently at the end of September.

This updated document is around 22 pages, but the main focus has been on one paragraph in particular, section 3.3a2c. Before we get into what that says, let's quickly review where this story came from. As I mentioned, the directive was brought to light specifically by RFK Jr. and Joe Rogan,

Kennedy first reposted a video of Harris talking about Trump wanting generals like Adolf Hitler, and Kennedy wrote, quote, this is the kind of inflammatory poison that divides our nation and inspires assassins. It's particularly ironic since Biden and 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 U.S. soil who protest government policies.

If you want to understand a politician, the words from her mouth have little relevance. Look at her feet, end quote. Joe Rogan then, in a recent episode of his podcast, made mention of Kennedy's tweet. Now, I do want to be clear that this isn't a law, right? There's a difference between a law and an agency directive.

A law is passed by Congress and enforceable against all American citizens. Agency directives are policy statements directed at those within a particular agency, but

or, you know, the agency issuing the directive. Directives don't create legal authority if that authority isn't authorized under federal law or by the Constitution. And directives are subject to federal law and the Constitution, meaning if the directive orders its employees to act in one way and federal law makes those actions illegal, federal law supersedes and those actions remain illegal.

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Now that you have that background, let me give you the lay of the land. This directive is broken down into three sections. General issuance information, responsibilities, and defense intelligence component assistance to law enforcement agencies and other civil authorities. That third section is what we are talking about here.

So the first question we have to ask is what is a defense intelligence component? It's something a lot of us probably aren't familiar with. Defense intelligence components are individual organizations within the DoD that are responsible for collecting, analyzing, disseminating military intelligence related to foreign powers, supporting military planning and operations, and, you know, they inform defense policymakers.

In other words, any part of the DoD that contributes to the broader intelligence enterprise. The National Security Agency, or NSA, would be an example of a defense intelligence component. The Defense Intelligence Agency, or DIA, is another example. So Section 3 of this directive is all about how these intelligence components are able to assist law enforcement agencies and other civil authorities.

Section 3.3 is all about levels of authority, and here's what it says, quote, Subject to paragraph 3.1, defense intelligence components may provide personnel to assist a federal department of 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 assistance in accordance with the following approval authorities, end quote.

In other words, if a local, state, federal law enforcement agency requests personnel assistance from defense intelligence components, those components can provide assistance subject to certain approvals. So subsection A discusses those approvals, specifically when approval is needed from the Secretary of Defense.

It reads,

B, DOD response to chemical, biological, radiological, nuclear, and high-yield explosive incidents. And C, and this is the subsection everyone is talking about, 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 DOD 5210.56, potentially as further restricted based on the specifics of the requested support, end quote.

So let's break this down. Local, state, or federal law enforcement agencies can request assistance for assets that have a potential for death or any situation where it's possible that providing assistance can lead to the use of lethal force. And this includes situations where civilian law enforcement may clash with civilian individuals.

This type of request from local, state, and federal law enforcement agencies has to be approved by the Secretary of Defense per this section of the directive. That is the whole point of this section of the directive.

Now, keep in mind, this directive specifically speaks to intelligence assistance. So an example of intelligence assistance would be airborne imagery, right? Maybe the DoD authorizes one of its components to go and fly over a riot and collect imagery. That would be an example of intelligence assistance.

When we talk about intelligence assistance providing assets with potential for lethality, though, that's obviously something way more than just imagery. Now, there is another DOD directive that actually speaks to the use of force by the DOD, and I'll get to that in a second. But first, I want to talk about DOD Directive 3025.18, which was last updated in 2018 and establishes the policies and responsibilities for the defense support of civil authorities.

This directive, 3025.18, is an umbrella directive, which applies to all support provided by the DOD, whether it be intelligence or non-intelligence. And that directive has very, very, very similar language to the directive we're talking about today.

302.5.18 reads in part, quote,

It continues on and says, quote,

So again, very similar language implemented in 2018 as we're seeing now in this new September update to Directive 5240.01. Therefore, the language in this Directive 5240.01 is not new. In fact, the 2018 Directive is much more broad than this new update. The 2018 Directive applies to intelligence and non-intelligence components, whereas this new September update only applies to intelligence components.

Now, let's touch on the other directive I mentioned, which speaks more to use of force by the DOD. Directive 5210.56, which was last updated in 2020, is titled Arming and the Use of Force. It establishes policy and standards and assigns responsibilities for arming, carrying of firearms, and the use of force by DOD personnel performing security and protection, law and order, investigative or counterintelligence duties, and for personal protection. It reads in part, quote,

Deadline.

Deadly force is justified only when there is a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily harm to a person under the following circumstances. Self-defense and defense of other DoD personnel, defense of others, protecting assets vital to national security, protecting inherently dangerous property, protecting national critical infrastructure, performing arrest or apprehension, preventing escape, and defending against vicious animals.

end quote. And again, that language, that directive has been around since at least 2020. Finally, let's talk about existing federal law because as we've stated and as the directive itself states, these directives are subject to federal law.

The Pentagon, in denying that the new directive update allows for the use of lethal force on American citizens, cites to a law called the Posse Comitatus Act. Now, Posse Comitatus translates to power of the country, and it was enacted by President Hayes in 1878,

to limit the powers of the federal government in the use of federal military personnel to enforce domestic policies and laws. And it says in part, quote,

End quote.

A couple of things to note here. One, the law uses the word willfully. Under the rule of law, the word willfully means that someone did something voluntarily, intentionally, and with a specific intent to do something the law forbids. So to violate this Posse Comitatus Act, the Army, Navy, Marine Corps, Air Force, or Space Force must intentionally kill someone on American soil for the purpose of implementing domestic policy or law.

The other thing worth noting is that this law only includes the Army, Navy, Marine Corps, Air Force, and Space Force. Now, you're saying only, what do you mean? Well, if intelligence components aren't explicitly listed there, there may be an argument that they're not included. Also potentially not included, the National Guard, which is under state control.

And while it's true that the D.C. Guard specifically is always under presidential control, the Department of Justice has long asserted that the D.C. Guard can operate in a non-federal militia status, which would mean that they are not covered by the Posse Comitatus Act.

And while we're on the topic of the National Guard, the National Guard has Title 32 status, meaning that it's sort of in this in-between where Guard personnel are paid with federal funds but remain under state control and command. So there's an argument that even though the Guard serves national interests, it's not subject to this Posse Comitatus Act.

All this to say that while the Pentagon refers to this law specifically as a way to say that federal law prohibits the use of lethal force on those on American soil, the law doesn't explicitly include intelligence components, which are what's at the center of the directive at issue here, and possibly doesn't include the National Guard. Now, there is a possibility that if a court were to interpret the law, the argument could be made that the intelligence components we have now are

weren't around or at least as prominent in 1878 when the law was enacted, but that the law clearly intends to apply to any military body and therefore the law should apply to intelligence components as well.

That's what we have lawyers for, right? That's like literally the job of lawyers. However, that same argument likely could not be made for the National Guard because the National Guard was founded in 1636, well before the enactment of the Posse Comitatus Act. So it begs the question, why wasn't the National Guard included when that law was enacted?

In conclusion, let's wrap this up. Contrary to Kennedy's tweet about this being the first time in U.S. history the Pentagon has ever been authorized to use lethal force against Americans on U.S. soil, that is not true. We know this because of Directive 3025.18, which was updated in 2018. It contains almost the exact same language, authorizes the exact same lethal force. At the same time, we know there are multiple loopholes within the law that the Pentagon has cited in rebutting claims such as the claim made by Kennedy.

The question of whether the U.S. military can use lethal force against Americans on U.S. soil is one that we don't have a definitive answer to, like most things within the world of law. But I hope that this explanation provided you with all of the facts and context you need to think about the story on a deeper level and form your own opinions.

And as you already know, I'm sure for today's critical thinking segment, we are going to continue on with this story. For those that may be new, the critical thinking segment is my way of getting you to think deeper about certain topics and issues. The topic changes by the day, so you never know what to expect. But today, since we spent so much time on that DOD directive, let me pose a few questions just to jumpstart your critical thinking process. One,

How do you feel about the United States authorizing lethal force against those on U.S. soil? Two, why?

Whether you are quick to just answer you're for it, you're against it, or it depends, I want you to challenge yourself and think about at least one scenario on both sides. What would be a scenario in which lethal force would be acceptable to you? What would be a scenario in which lethal force would not be acceptable to you? And as always, give reasons why. Why would it be acceptable in this situation? Why would it not be acceptable in that situation? And then finally, number three,

Are there certain agencies or military branches that you would be okay granting lethal force authority to, but other branches or agencies you wouldn't be okay granting that authority to? And again, why or why not?

not. That is what I have for you today. Thank you so much for being here. I do have quite a few stories already planned for tomorrow's episode, so do not miss it. As always, my episodes come out around 5 p.m. Eastern time, give or take 30 minutes every day, Monday through Thursday. So have a wonderful night and I will talk to you tomorrow.