No, a new Defense Department directive doesn’t authorize lethal force on U.S. civilians

Former President Donald Trump this month referred to Democrats as the "enemy from within" and said the National Guard might have to step in if Democrats cause chaos after the presidential election.

But some conservative social media users say it’s Vice President Kamala Harris’ administration that’s planning to use military force against civilians, pointing to a recently reissued U.S. Defense Department directive.

"The Defense Department, with the stroke of a pen, has quietly codified its right to deploy lethal force against its own citizens," an Oct. 15 Instagram post’s caption said. "This is not a drill — the reissue of Directive 5240.01 is a declaration of intent."

The Instagram post included a screenshot of Defense Department’s Directive 5240.01, which was reissued Sept. 27. That directive outlines policy guidance for the agency’s intelligence-related activities and is titled, "DoD Intelligence and Intelligence-Related Activities and Defense Intelligence Component Assistance to Law Enforcement Agencies and Other Civil Authorities." 

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The claims are inaccurate. The updated version of Directive 5240.01 grants no new power to the Defense Department and does not grant legal authority for the military to use lethal force on civilians, the department and experts told us. Updates to directives are common.

Claims and rumors about the directive and its timing, close to the Nov. 5 presidential election, began to spread rapidly online in mid-October, the University of Washington’s Center for an Informed Public wrote in an Oct. 18 report.

Many posters based their claims on section 3.3 of the directive, which includes language about lethal force. But the Defense Department and defense experts told PolitiFact the directive does not create new policy. 

PolitiFact found numerous posts on X, Instagram, Facebook and TikTok that falsely claim the updated directive authorized the military to use deadly force against Americans who protest the government. Former U.S. Rep. Ron Paul, R-Texas, said in a YouTube video that the directive opens the door for the "careless" and "legal" use of military force against civilians.

Former presidential candidate and now Trump supporter Robert F. Kennedy Jr. wrote on X to counter Harris, who said Trump wanted generals like the ones Adolf Hitler had and would use the military against citizens.

Kennedy repeated the claim at an Oct. 23 Trump rally in Georgia. "Under this directive, it will become legal for the U.S. military to shoot and kill Americans who engage in political protest because they disagree with policies from the White House," he said.

The directive was also the subject of numerous articles on conservative websites.

"The use of the terms ‘lethal force’ in a Department of Defense directive, without any further context, can raise alarm bells. But the context here is both critical and readily available,"  Elizabeth Goitein, the Brennan Center for Justice’s senior director of the Liberty and National Security Program, said. "As a full reading of this directive and (another directive) makes clear, the new language merely reiterates existing policy, set forth in a more general directive, regarding the level of approval needed to exercise existing legal authorities."

The directive is one of hundreds that the Defense Department issues that set forth policy on a variety of issues, Goitein said.

The directive published Sept. 27 is not new and updates a directive that was first issued in 2007, Goitein said. The last update to that directive was March 22, 2019, Defense Department spokesperson Sue Gough said.

The updated directive provides specific policy guidance for situations in which Defense intelligence agencies — such as the National Security Agency and Defense Intelligence Agency — are assisting civilian authorities, including law enforcement agencies, Goitein said.

"Updates to Department of Defense directives are common to ensure that directives capture current policy," Goitein said.

Social media users cite language in a section titled "Levels of Authority" that details who is authorized to approve Defense intelligence agencies assisting federal, state or local law enforcement agencies when lives are in danger if assistance is requested.

Many of the social media posts highlighted the following paragraph, which comes under items that require defense secretary approval:

(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.

Goitein said the paragraph simply means that for situations in which existing law permits military assistance to law enforcement, and such assistance could involve the use of lethal force, the defense secretary must personally approve the assistance. 

Goitein said that the approval requirement is a "procedural safeguard, not a grant of power."

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It creates no new authority and reiterates existing policy, she said.

Defense Department spokesperson Gough said the directive’s provisions aren’t new and "do not authorize the Secretary of Defense to use lethal force against U.S. citizens, contrary to rumors and rhetoric circulating on social media."

Gough said although the paragraph cited in the social media posts is newly added, "It does not represent any change to DoD’s policy regarding the use of lethal force." She said use of lethal force is addressed in a separate directive, 5210.56, published in November 2016, titled "Arming and the Use of Force."

That directive outlines when lethal force can be used, including in self-defense, defense of others and "protecting assets vital to national security."

"The revised 5240.01 simply describes how this long-standing policy applies to the DoD intelligence community," Gough said.

John Pike, director of the nonprofit think tank GlobalSecurity.org, said the social media claims about lethal force are not true.

The Defense Department "can't just blow people away if they feel like it," Pike said. "Participation in domestic enforcement requires prior high-level approval."

Goitein said this directive is specifically aimed at Defense intelligence agencies, but another directive, 3025.18, last updated in 2018, governs all support provided by any Defense component to civil authorities. That directive includes language similar to the language recently added to 5240.01, she said.

The 2018 directive says:

(O)nly the Secretary of Defense may approve requests from civil authorities or qualifying entities for Federal military support for … (a)ssistance in responding with assets with potential for lethality. This support includes loans of arms; vessels or aircraft; or ammunition. It also includes assistance under section 282 of (Title 10) and section 831 of title 18, U.S.C.; all support to counterterrorism operations; and all support to civilian law enforcement authorities in situations where a confrontation between civilian law enforcement and civilian individuals or groups is reasonably anticipated.

"The change to Directive 5240.01 might very well have been intended simply to harmonize these directives," Goitein said.

Congress is responsible for laws dictating limits on federal troops’ actions, not the Defense Department, Goitein said.

"The authority to deploy troops domestically, and the limits on that authority, are set forth in laws passed by Congress," she said. "As a statement of policy, Directive 5240.01 cannot — and does not purport to — alter that authority in any way." 

Federal armed forces are generally prohibited under the Posse Comitatus Act from participating in civilian law enforcement unless authorized by the Constitution or an act of Congress. National Guard troops, however, are not subject to these restrictions and can be used for law enforcement because they report to state governors. There’s one National Guard exception: The District of Columbia National Guard is solely under federal control. The U.S. Coast Guard also has statutory authority to perform law enforcement.

A president in some cases can federalize and take control of a state’s National Guard, but it rarely happens without a governor’s consent. When the National Guard is federalized, its troops would be subject to the same restrictions as federal troops. 

One exception to the Posse Comitatus Act is the Insurrection Act, passed in 1807. A president can use federal troops to restore civil order under the Insurrection Act. It was last used during the 1992 Los Angeles uprising after the acquittal of white police officers in the beating of Black motorist Rodney King, The New York Times reported.

The updated Defense directive "remains consistent with DoD’s adherence to the Posse Comitatus Act, commitment to civil rights, and support of other safeguards in place for the protection of the American people," Gough said.

Directive 5240.01 states in a section titled "General Principles" that intelligence components must comply with the Posse Comitatus Act.

Goitein said when there is an exception and troops are deployed domestically for law enforcement, they are subject to the Joint Chiefs of Staff’s Standing Rules for Use of Force. Those rules permit deadly force as a last resort and in certain circumstances, including self-defense, defense of others or theft or sabotage of "assets that are vital to national security," she said.

Gough said the release "was in no way timed in relation to the election or any other event," and was part of the department’s normal procedure to periodically update guidance and policy.

Pike said "the directives that were updated and replaced were a bit elderly," noting they were from 2007 and 1982.

Social media posts claimed that the Defense Department’s Directive 5240.01 made it legal for the military to use lethal force on U.S. civilians.

The directive does not do that. It does not grant the department new authority to use lethal force, experts and a department spokesperson said. It took a directive that had last been updated in 2019 and updated it with policy that already exists.

Federal troops — excluding the National Guard, which reports to state governors — are generally barred from law enforcement activities on U.S. soil under the Posse Comitatus Act, though the rarely used Insurrection Act is an exception.

We rate the claims False.