Amendments to a controversial Pentagon program to sell military gear to domestic police forces have quietly extended the scheme to provide war on terror weaponry directly to the U.S. Department of Homeland Security (DHS).
The amendments for FY2016, passed by Congress in late 2015, were highlighted in a briefing note published by the Congressional Research Service in February 2016. Under the controversial “1033″ program, the Department of Defense (DoD) is able to provide “surplus” military-grade equipment to law-enforcement agencies.
The program, legislated for in the National Defense Authorization Act (NDAA), provided local police forces access to billions of dollars worth of high-tech military equipment, including armoured tanks, rocket launchers, automatic weapons, night-vision goggles, and other supplies traditionally used by the U.S. Army in foreign war theaters.
The DHS often provided multimillion-dollar grants to law-enforcement agencies to purchase the military equipment.
Excessive police brutality in cases like Ferguson and Baltimore put the 1033 program under the spotlight, and led widespread calls for greater accountability over the way domestic police departments are able to access military-grade equipment through the Pentagon scheme. In May 2015, the Obama administration moved to impose more robust oversight processes for the program, one of the consequences of which was a recall order compelling police departments to return equipment that was considered to be excessive.
The new provisions were, however, wide enough that military-grade equipment can still be acquired from the Pentagon by law-enforcement agencies if they can justify its necessity. Further amendments to the NDAA later that year expanded these provisions further, but their alarming scope has gone unreported until now.
Militarizing the borders
Republican representatives in Congress managed to secure a key amendment to Section 1052 of the NDAA, expanding the application of the Pentagon weapons transfer program directly to the Department of Homeland Security.
The new provision stipulates that Pentagon equipment can be supplied to domestic agencies for the purpose of counterdrugs, counter-terrorism and “border security,” thus formally militarizing border operations under homeland jurisdiction.
“Section 1052 of the National Defense Authorization Act for FY2016 changed the scope of qualifying activities, expanding it to include counterdrug, counterterrorism, and border security activities,” explained a February 2016 Congressional Research Service briefing note. “The original statute required the Secretary of Defense to consult in these matters with the Attorney General and the Director of National Drug Control Policy. The amendment adds a requirement to consult with the Secretary of Homeland Security, as appropriate.”
The new NDAA amendment blurs the traditional boundaries between the DoD and DHS for domestic border security operations, requiring DHS use of Pentagon-supplied military equipment to be supervised under the final authority of the US Secretary of Defense, and based on specific joint DHS-DoD agreements.
According to a 1,000 plus page Congressional Joint Explanatory Statement published in November 2015 by the Committee on Armed Services of the House of Representatives:
. . . any controlled equipment . . . transferred to the Department of Homeland Security through the “1033 program” as amended by this section remains the property of the Department of Defense, and this section does not authorize the Department of Homeland Security to transfer controlled DoD equipment to any non-federal entity. We expect the Department of Defense and the Department of Homeland Security to use memoranda of agreement similar to those used for the transfer of equipment to law enforcement agencies to state the conditions of transfer and compliance, including that non-compliance requires the return of all equipment to DoD.
Institutionalizing Pentagon instrusion into the homeland
Amendments in the legislation widely assumed to be designed to improve the transparency and accountability of the 1033 program, in reality increase the role of the Pentagon in overseeing domestic law-enforcement and DHS operations.
According to the new Congressional Research Services briefing note, the 1033 program’s open-ended carte blanche for domestic law-enforcement agencies to access military-grade equipment has not been repealed, but integrated deeper into the Pentagon bureaucracy.
The new amendments dramatically increase the Pentagon’s powers to scrutinize and supervise the use of military equipment in the homeland. Among their implications, they make DoD-supervised military training mandatory for domestic agencies who receive these weapons.
In effect, this places all domestic law enforcement operations using Pentagon-supplied military equipment under the partial jurisdictional authority of the Secretary of Defense. By making domestic agencies more accountable to the DoD, the revamped 1033 program in effect extends the Pentagon’s jurisdictional authority into the homeland by bureaucratic fiat.
Both police departments and the DHS “are now required to certify annually” to the Pentagon that they have “adopted publicly available protocols for the appropriate use of controlled property, the supervision of such use, the evaluation of the effectiveness of such use, including auditing and accountability policies.”
Military training for cops
They must also certify to the Pentagon that they provide “annual training to relevant personnel on the maintenance, sustainment, and appropriate use of controlled property.”
In other words, law-enforcement and DHS personnel provided with Pentagon military-grade equipment must receive annual military-level training “appropriate” to the use of such military hardware.
This annual certification process is institutionalized through a formal agreement between the Secretary of Defense and “a federally funded research and development center” (FFRDC). Under this agreement, and through the FFRDC, the DoD is able to indirectly “assess the overall program, evaluate the determination of suitability of agencies to receive controlled property, analyze reported statistics on transfers and incidence of loss, and to review the effectiveness of policies and procedures for the return of controlled property.”
A further independent report prepared by the U.S. Government Accountability Office is required to evaluate the Pentagon transfers, their use by law-enforcement and the DHS, and the extent to which they “enhance” domestic operations.
These measures institutionalize a permanent role for the Pentagon in managing domestic law-enforcement, as well as homeland security under the remit of defending the border. Far from reversing the militarization of the homeland, they pave the way for its acceleration in the name of policing illegal immigration.
The driving force behind these and other amendments to the NDAA is Republican Congressman Mark Thornberry, chair of the House Armed Services Committee. According to the Center for Public Integrity, the Texas representative has received a total of $933,415 from the largest 75 US defense contractors—making him the highest overall recipient of contractor funds among all members of the House and Senate Armed Services Committees.
American border war is an abject failure
But the counterproductive militarization of U.S. immigration enforcement policies was exposed in a study released this March from Princeton University. The peer-reviewed study published in the American Journal of Sociology found that from 1986 to 2010, the U.S. had invested $35 billion on increasingly militarized border enforcement mechanisms, which only led the net rate of undocumented population growth to double.
According to lead author Douglas Massey, Henry G. Bryant Professor of Sociology and Public Affairs at Princeton, “Rather than stopping undocumented Mexicans from coming to the US, greater enforcement stopped them from going home.”
The militarization of enforcement raised the costs of undocumented border crossing, causing undocumented migrants to stay in the U.S. longer to make the trip profitable.
“The end result was a self-perpetuating cycle of rising enforcement and increased apprehensions that resulted in the militarization of the border in a way that was disconnected from the actual size of the undocumented flow,” the study concludes.
One major beneficiary of this process, however, is the military-industrial complex. As the NACLA Report on the Americas points out, the DHS’ Immigration and Customs Enforcement (ICE) agency is “the second-largest investigative agency in the federal government, after the FBI.”
Defense giants like Boeing, General Electric, Halliburton and even Elbit Systems—the contractor for Israel’s apartheid wall—count among the DHS’ contractors for military technology “originally designed for Middle Eastern war zones.”
Now, under the Pentagon’s oversight, the DHS can directly procure such military technology to fight America’s increasingly futile homeland war on the migrant invasion.
Nafeez Ahmed is an investigative journalist and international security scholar. He writes the System Shift column for VICE’s Motherboard, and is the winner of a 2015 Project Censored Award for Outstanding Investigative Journalism for his former work at the Guardian. He is the author of A User’s Guide to the Crisis of Civilization: And How to Save It (2010), and the scifi thriller novel Zero Point, among other books.