A bipartisan group of Senators recently introduced legislation to bring important controls and accountability to a government program that puts surplus military gear into the hands of law enforcement agencies. The Stop Militarizing Law Enforcement Act (S. 1856), sponsored by Senators Rand Paul (R-KY), Brian Schatz (D-HI), and Ron Wyden (D-OR), requires improved accountability and transparency in the Defense Department’s 1033 Program. The legislation would also prohibit the transfer to civilian law enforcement of some types of equipment—including military style weapons and armored vehicles—through both the 1033 Program and certain Department of Homeland Security and Department of Justice grant programs.
Under the 1033 Program, more than $6 billion worth of surplus military gear has made it into the hands of state and local police departments, as well as federal law enforcement agencies, according to the Defense Logistics Agency (DLA), which runs the program. The 1033 Program received heightened attention in 2014 after the militarized and heavy-handed response of law enforcement to the protests in Ferguson, Missouri.
While much of the gear supplied under the program are innocuous items such as blankets and digital cameras, weapons comprise five percent of the gear DLA gives to law enforcement. This subset of gear, along with tactical vehicles, has drawn the brunt of scrutiny from critics.
Recent actions by the Trump administration underscore the need for the legislation. In August, President Trump signed an executive order reversing earlier actions by President Obama that provided some accountability measures and oversight.
Due to the executive order, according to a DLA statement provided to POGO, the Defense Department will again be able to provide “excess tracked armored vehicles and bayonets” to law enforcement agencies.
Some press accounts erroneously stated that the Obama administration discontinued the program. In fact, 2016 was an especially busy year for Defense Department transfers of gear to local police and sheriff departments. For example, the program transferred more than 250 Mine Resistant Ambush Protected vehicles (MRAPs) during the time of Obama’s heightened oversight measures.
The Obama administration required an interagency Law Enforcement Equipment Working Group. The working group, which reviewed the 1033 Program and similar programs at other agencies, came up with a list of recommendations, which the Obama administration implemented.
A key aspect of the Working Group was engaging with and receiving input from non-federal government stakeholders, including law enforcement organizations, state officials, and civil rights groups. This fostered a more public process that did not rely solely on the Department of Defense to make decisions behind closed doors. Before the Working Group, there was no significant coordination with the Department of Justice, despite an existing requirement in the law.
The Working Group also determined needed steps for improved accountability, such as certification of appropriate training for specialized weapons and equipment. For example, local civilian authority review was required when a police department applied for expensive equipment such as armored vehicles. Improved compliance reviews by the Defense Department and other agencies were also required. A recent report by the Government Accountability Office (GAO) underscored the need for improved oversight: GAO personnel were able to pose as a bogus law enforcement agency and receive equipment from the program.
Due to Trump’s executive order, the Working Group will be discontinued, according to the DLA.
However, Trump’s executive order didn’t remove all accountability and oversight from the program. Requirements predating the Obama administration were already in place, and through the National Defense Authorization Act for Fiscal Year 2016, some were enacted into law and cannot be undone through executive order. One surviving oversight measure is local government approval for law enforcement agencies to receive “controlled items.” According to the GAO, these items “are typically sensitive in nature” and “cannot be released to the general public,” such as small arms, night vision goggles, explosive ordinance detonation robots, aircraft, and MRAPs.
At a minimum, the Stop Militarizing Law Enforcement Act will likely provoke a much needed debate over the 1033 Program and related programs. The bill requires greater transparency, oversight and reviews. And it would establish common-sense limitations on the types of equipment that can be transferred.