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Air Force OIG: AG Barr’s Legal Justification for Aerial Surveillance of Black Lives Matter Protests Was ‘Mistaken’


WASHINGTON, DC - MARCH 23: U.S. Attorney General William Barr attends the daily coronavirus briefing at the White House on March 23, 2020 in Washington, DC. With the number of deaths caused by the coronavirus rising and foreseeable economic turmoil, the U.S. Congress continues to work on legislation for the nearly $2 trillion dollar aid package to deal with the COVID-19 pandemic.

The Air Force Inspector General (IG) sharply contradicted Attorney General Bill Barr in a report released Monday.

At issue in the 75-page document, which is heavy with Department of Defense jargon, are the actions of the Air National Guard during the first four days of June. During widespread Black Lives Matter protests, the largest protest movement in American history, aerial surveillance was conducted against demonstrators in Washington, D.C., Minnesota, Arizona, and California.

At the time, Barr justified the use of those federal agents under the statutory authority contained at 32 U.S.C. § 502(f).

That statute notes, in relevant part:

(f)(1) Under regulations to be prescribed by the Secretary of the Army or Secretary of the Air Force, as the case may be, a member of the National Guard may—
(A) without his consent, but with the pay and allowances provided by law; or
(B) with his consent, either with or without pay and allowances;
be ordered to perform training or other duty in addition to that prescribed under subsection…
(2) The training or duty ordered to be performed under paragraph (1) may include the following:(A) Support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.

Barr specifically outlined the purported reliance on the statute in response to questions from D.C. Mayor Muriel Bowser.

“At the direction of the President, the Secretary of Defense also requested assistance from out-of-state National Guard personnel, pursuant to 32 U.S.C. § 502(f), which authorizes States to send forces to assist the ‘[s]upport of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense,'” Barr wrote in a letter publicized by the Department of Justice (DOJ) spokesperson Kerri Kupec.

Air Force IG Lt. Gen. Sami D. Said found the statutory authority cited by the nation’s top attorney was, in fact, inadequate and off-base.

“Policy interpretations by [the National Guard Bureau (NGB)] led to a mistaken belief that [secretary of defense] approval for use of the RC-25B was not required by intelligence oversight rules, and also led to a mistaken belief that 32 USC § 502(f) status was an appropriate status for RC-26B aircrew and support personnel,” the report said in one of its three conclusions.

“Vagueness in DoD-level policies substantially contributed to NGB’s mistaken conclusion that the RC-26B is not an intelligence resource, and also substantially contributed to the likely misuse of Immediate Response Authority,” another conclusion said.

The report further concluded that, despite the surveillance, no “personal information” was gleaned from the demonstrators because the aircraft used to surveil them only collects “infrared and electro-optical imagery,” which is apparently “not capable of identifying distinguishing personal features of individuals.”

The details paint a reality that stands in even starker contrast to Barr’s justification.

“On [June 3, 2020], [Chief] NGB asked [the Secretary of Defense] to approve Sec. 502(f) status,” the report noted. “[Redacted] confirmed [the Secretary of Defense] never approved the request because [the Secretary of Defense’s] staff could not find a lawful way to approve it.”

But exactly who gave the order? The report itself is mystified:

The mission approval process was even more complex and convoluted than for the three states in this report. Authorizations for activating the [D.C. National Guard (DCNG)] for domestic support missions are to be approved at high levels of the federal government. SecDef was within his authority to verbally authorize the DCNG and 11 other National Guard States to operate as he directed. When he communicated this order to the CNGB, he provided some general parameters of the support he expected the National Guard to perform in this effort. Neither aerial observation nor [Incident Awareness and Assessment] were mentioned or suggested during this communication. Further complicating this matter is that SecArmy did not request this capability, nor did anyone in the senior ranks of the DCNG request this capability.

“In this case, there was no evidence that POTUS, SecDef or SecArmy knew of the RC-26B flights until it came to light in the media,” Said concluded later on.

The lengthy and highly redacted investigatory summary also contained a passage that read like something akin to an upbraiding for the unnamed official[s] who made the call–and potentially for those who sought the incorrect ipso facto justification using the wrong statute.

“A comprehensive review of the mission authorities involved showed numerous directives in the area of support to civil authorities, with some nuanced distinctions,” the report noted. “While authorities for support of border missions, counterdrug operations, and natural disasters such as wildfires, floods, hurricanes, and the like were fairly well known and regularly exercised, each has its own specific authorities and limitations. Employment of National Guard assets in response to civil unrest scenarios are highly unusual, distinctly different, and require special measures.”

Read the full report below:

Report of Investigation Concerning RC-26B Operations by Law&Crime on Scribd

[image via Drew Angerer/Getty Images]

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