Michael Flynn, left, and Ron PaulMother Jones; Albin Lohr-Jones/DPA/Zuma; Brian Cahn/Zuma
This story is part of an ongoing investigation into disinformation in collaboration with The War Horse, the Human Rights Center at the University of California, Berkeley, and Mother Jones.
Just as former president Donald Trump told Fox News last week that he wanted to use the US military to “handle” what he called the “enemy from within” on Election Day, an obscure military policy was beginning to make the rounds on social media platforms favored by the far right.
The focus? Department of Defense Directive 5240.01.
The 22-page document governs military intelligence activities and is among more than a thousand different policies that outline Defense Department procedures.
The Pentagon updated it at the end of September. Although military policies are routinely updated and reissued, the timing of this one—just six weeks before the election and the same day Hurricane Helene slammed into the Southeast—struck right-wing misinformation merchants as suspicious.
They latched onto a new reference in the updated directive—“lethal force”—and soon were falsely claiming that the change meant Kamala Harris had authorized the military to kill civilians if there were to be unrest after the election.
That’s flat-out not true, the Pentagon and experts on military policy told The War Horse.
“The provisions in [the directive] are not new, and do not authorize the Secretary of Defense to use lethal force against US citizens, contrary to rumors and rhetoric circulating on social media,” Sue Gough, a Department of Defense spokesperson, said Wednesday night.
But as Trump doubles down on his “enemy from within” rhetoric, DOD Directive 5240.01 continues to gain traction among his supporters as ostensible proof that Harris, not Trump, wants to use the military against American citizens.
By early last week, “5240.01” began to spike on alt-tech platforms such as Rumble, 4chan, and Telegram, as well as on more mainstream platforms like X, according to an analysis by The War Horse and UC Berkeley’s Human Rights Center.
On Ron Paul’s Liberty Report, a YouTube show, the former Texas congressman told viewers that the policy meant that the country is now a “police state.” Republican Maryland congressman Andy Harris told Newsmax host Chris Salcedo last Wednesday that he was concerned the Defense Department was pushing through policies without congressional oversight.
“This is exactly what the Democrats said Trump would do. And they’re doing it,” he said. “This means that after an election, they could declare a national emergency and literally call out the Army in the United States.”
Former Trump national security adviser and retired Army Lieutenant Gen. Michael Flynn tweeted the policy update out to his 1.7 million followers, just as he shared the week before a video suggesting the military had manipulated the weather to focus Hurricane Helene’s deadly fury on Republican voters in the South.
On Wednesday, Robert F. Kennedy, Jr. got into the act in a tweet criticizing Kamala Harris’ response to a story that Trump wanted “the kind of generals that Hitler had”:
“It’s particularly ironic since Biden/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 US soil who protest government policies.”
By that evening, his post on X had 5.6 million views.
Joseph Nunn, a lawyer with the Liberty & National Security program at the nonpartisan Brennan Center for Justice, and a leading expert on domestic uses of the military, had a clear response to the social media storm.
“There’s nothing here. People like Michael Flynn should know how to read a DOD directive.”
“There’s nothing here,” he said. “People like Michael Flynn should know how to read a DOD directive.”
(Click here to read DOD Directive 5240.01.)
Contrary to claims online, DOD Directive 5240.01, which last had been updated in 2020, does not grant any new powers to the military. That’s not how military directives work. Like them or not, all military policies are subject to US law; they do not create new legal authorities.
Directive 5240.01 has a narrow focus: It only addresses military intelligence, and the section that has circulated online specifically deals with intelligence assistance to civilian law enforcement.
The paragraph that contains the term “lethal force” refers to a requirement that the Secretary of Defense—the highest level of the Defense Department—must now authorize military intelligence assistance to civilian law enforcement when lethal force might be involved.
“This is not an independent source of authority,” Nunn said. “We really should look at this as an administrative safeguard that is being put in place.”
Military intelligence has long been authorized to provide assistance to federal law enforcement agencies, as well as state and local law enforcement when lives are endangered, under limited circumstances. That could include providing technical expertise or helping with international anti-terrorism or counter-narcotics operations, for instance.
“A reference to lethal force in a directive like this doesn’t mean they’re planning to have snipers on rooftops in covert ops,” said Nunn, who has written on limiting the role of the military in law enforcement. “The nature of law enforcement will sometimes involve the use of lethal force.”
In its response to The War Horse, the Pentagon said the directive’s update was “in no way timed in relation to the election or any other event.”
“Reissuing 5240.01 was part of normal business of the Department to periodically update guidance and policy,” the DOD’s Gough said.
The Defense Department has issued or revised 10 other directives and instructions since it updated “5240.01” at the end of September, ranging from a policy on space-related military activities to guidance on public affairs’ officers use of military vehicles.
“It’s not unusual to update DOD regulations,” says Risa Brooks, a political science professor at Marquette University and a former senior fellow at West Point’s Modern War Institute. “It doesn’t signal some nefarious agenda.”
The update to “5240.01” brings the policy in line with other Defense Department directives. One of those is known as DOD Directive 5210.56—an entirely different Defense Department directive than the one updated last month. It lays out rules when troops across the military can use lethal force outside of military operations, limiting it to “imminent threat of death or serious bodily harm” or to protect critical national security assets.
Posts online, including the one that Flynn shared, claim that Directive 5240.01 runs afoul of a legal statute known as posse comitatus. The Posse Comitatus Act, which dates back to Reconstruction, generally forbids military troops from acting as domestic police. Civil liberty experts consider it an important civil rights protection against possible military overreach.
Despite the conspiracy claims spreading online, the directive clearly states that military intelligence units assisting civilian police must consider the Posse Comitatus Act.
“The updated issuance 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.
Spreading misinformation about the military can be particularly damaging “to the relationship between the military and the public,” Brooks told The War Horse.
“This sort of politicization, this idea of sowing mistrust in the military in order to gain partisan advantage, is really corrosive,” Brooks said. “There’s a motive. There’s something to be gained by spreading these rumors.”
Ironically, however, Rep. Harris, the Republican congressman, was right about one thing when he claimed that if Kamala Harris wins, she “could declare national emergency and literally call out the Army in the United States.” That’s because any president, regardless of party, has the power to mobilize military troops against American citizens in certain circumstances. Only one candidate—Trump—in this year’s presidential election has outright suggested it.
But that presidential power isn’t granted by a random military policy. It’s granted by the Insurrection Act.
A law nearly as old as the country itself, the act gives a president essentially unilateral authority to temporarily suspend the Posse Comitatus Act and call on military troops to suppress domestic rebellions. The law effectively leaves it up to the president to decide what constitutes a rebellion.
“There are essentially zero procedural safeguards in the Insurrection Act,” Nunn says.
During his first administration, Trump and his allies reportedly considered invoking the Insurrection Act both during the 2020 Black Lives Matter protests and again after he lost his re-election bid. And legal experts say that any follow through on Trump’s increasingly frequent threats to use the military domestically, including against “radical left lunatics,” would likely come through an invocation of the Insurrection Act.
Republicans are saying that the real misinformation is being peddled by Democrats. They claim the Harris-Walz campaign is taking out of context Trump’s comments from his October 13 interview with Fox News Maria Bartiromo, with some suggesting he was referring to undocumented migrants or to only deploying the military in a national security crisis.
Here is the full quote from Trump when Bartiromo asked if he “expected chaos on election day” from “outside agitators,” including “Chinese nationals,” “people on terrorist watch lists,” “murderers,” and “rapists”:
“I think the bigger problem is the enemy from within, not even the people who have come in, destroying our country—and by the way, totally destroying our country, the towns, the villages, they’re being inundated.
“But I don’t think they’re the problem in terms of Election Day. I think the bigger problem are the people from within, we have some very bad people, we have some sick people, radical left lunatics.
“And it should be very easily handled by, if necessary, by National Guard, or if really necessary, by the military, because they can’t let that happen.”
