Does a recently updated Pentagon directive now authorize the military to kill American protesters? No, that's not true: The Pentagon told Lead Stories the new policies "do not authorize the DOD to use lethal force against U.S. citizens ..." The online text of Department of Defense Directive 5240.01 does not allow the military "to kill Americans who engage in political protest." Federal law bars the military from acting as police on U.S. soil.
The claim appeared in a speech (archived here) former presidential candidate Robert F. Kennedy, Jr. made in Duluth, Georgia, on October 23, 2024, while campaigning for Donald Trump. A portion of his speech was posted that same day on Instagram under the headline "Lethal force on Americans??"
This is what Kennedy said at the 21:00 mark of his speech:
[T]he Biden-Harris administration has done something two weeks ago that has never been done in American history, which is to send ... exactly! ... lethal force, to send a directive to the Pentagon changing the law to make it legal ... the U.S. military to be used, to use lethal force against American citizens on American soil. Technically, now it's legal for the U.S. military -- 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 in the White House.
This is what the post looked like on Instagram at the time of writing:
(Source: Instagram screenshot taken on Fri Oct 25 19:08:59 2024 UTC)
Pentagon spokesperson Sue Gough told Lead Stories in an October 25, 2024, email that the new policies "do not authorize the DOD to use lethal force against U.S. citizens or people located inside the United States, contrary to rumors and rhetoric circulating on social media."
She also said "the release was in no way timed in relation to the election or any other event."
The U.S. Department of Defense (DoD) posted DoD Directive 5240.01 (archived here) on its public website on September 27, 2024. The 22-page document spells out ways in which intelligence gathered by the Defense Department could be legally shared with other agencies.
On page 13, under "Secretary of Defense Approval," the document also details a set of circumstances where requests for assistance from civilian law enforcement could be granted -- but only directly by the Secretary of Defense -- including ones that could involve lethal force:
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.
DoDD 5210.56, (archived here), last updated on November 6, 2020, spells out many, but not all, of the situations where the military could use deadly force on U.S. soil, such as protecting assets vital to national security and preventing sabotage of national critical infrastructure.
Neither directive specifically authorizes the military "to shoot and kill Americans who engage in political protest," as Kennedy claimed.
In fact, the military is forbidden by federal law to be used as a civilian police force unless Congress grants an exception. That act, called Posse Comitatus (archived here), was originally signed into law by President Rutherford Hayes in 1878.
That's why Elizabeth Goitein and Joseph Nunn of the Brennan Center for Justice said Directive 5240.01 provides "no new authority to deploy the military domestically or to use lethal force in such deployments." They explained in a post on October 25, 2024, on the Just Security website (archived here) that without an exception from Congress the military could not legally operate domestically as a law enforcement agency.
Instead, Goitein and Nunn believe Directive 5240.01 was updated to fit with the more encompassing Directive 3025.18 (archived here). Originally written in 2010, this directive applies to most of the Department of Defense, including defense intelligence workers. It also discusses the potential of lethal assistance on page 6:
(O)nly the Secretary of Defense may approve requests from civil authorities or qualifying entities for Federal military support for ... Assistance 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.
Additional Lead Stories fact checks of claims about the 2024 U.S. presidential election can be read here.
