Can the militarization of the police be justified?

This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

To most Americans, the thought of shields, helmets, batons, rifles, camouflage clothing, and armored personnel carriers conjure images of war far from U.S. shores. Yet, over the past few decades military-grade items like these have become commonplace domestically among local policing agencies. So commonplace, in fact, that our collective memory is seared with images of police wearing riot gear, carrying rifles, and deploying force against protestors following the police killings of Michael Brown, Breonna Taylor, and George Floyd.

How is it that police officers have come to look like members of the U.S. military?

The main culprit of police militarization has been understood to be the Department of Defense’s “1033 Program”—by which the federal government provides surplus military equipment to local policing agencies at little to no cost. Since its inception in 1990, the 1033 Program has transferred more than $7.5 billion worth of surplus military equipment to sub-national policing agencies. To date, out of the approximately 18,000 policing agencies in the U.S., over 11,000 have registered with the 1033 Program, and 8,000 use acquired equipment.

Congress first authorized the Department of Defense (DOD) to sell or donate excess military property to local policing agencies in 1990, through the National Defense Authorization Act (NDAA). The act initially was intended to assist agencies in the “War on Drugs” by providing necessary equipment to combat drug production and trafficking. Congress reauthorized the NDAA in 1997 and formally established the 1033 Program—the name of the program reflects the section number (1033) of the 1997 Act. Under the reauthorization, policing agencies could acquire excess military property for a wider range of law enforcement purposes, including counterterrorism activities.

The inclusion of counterterrorism activities in the 1997 reauthorization was a harbinger of events to come. On September 11, 2001, Al Qaeda extremists hijacked four commercial airplanes and carried out suicide attacks against targets in the U.S., killing thousands of Americans. In response, then-President Bush declared the War on Terror, which involved increased global surveillance and intelligence sharing, economic and military sanctions against countries with known terrorist networks, and eventual wars with Iraq and Afghanistan.

America’s engagement in the War on Terror yielded large quantities of excess military-grade equipment, which eventually found its way into domestic policing agencies’ hands through the 1033 Program. A 2020 report out of Brown University found that the 1033 Program transferred roughly $27 million worth of military-grade equipment prior to 9/11 compared to $1.6 billion in the years following. In terms of quantity, the 1033 Program transferred approximately 17,000 items before 9/11 compared to 520,000 items in the years after.

Despite an increase in 1033 Program participation in the years following 9/11, it is not obvious that the acquisition of military-grade equipment actually was used to help combat terrorism. In other words, the War on Terror generated more surplus military goods that came into the possession of policing agencies, but we have very little evidence to support the idea that those goods were used to fight terrorism.

For one, the nature of most of the equipment being transferred had little to do with counterterrorism activities. The bulk of what policing agencies acquired, and still do, was “uncontrolled” surplus equipment—such as blankets, office furniture, refrigerators, and power tools. A report that the Policing Project at New York University School of Law plans to release in the coming month will show that “controlled” surplus equipment, which includes things like weaponry and armored personnel carriers, makes up only about 10 percent of all transferred equipment.

For another, the kinds of places that acquired items from the 1033 Program are not where we would expect foreign extremist groups to attack. A survey of 1,205 policing agencies from all fifty states finds that participation in 1033 is higher among smaller agencies with ten or fewer officers, while larger agencies with 501 to 1,000 officers participate the least. Moreover, these survey data show that program participation is greater in agencies located in the Great Lakes and Southeast regions.

Why is it that policies agencies in major metropolitan areas on the eastern seaboard—areas ripe for attack—are not the heaviest users of 1033? The answer to this question is important, for it suggests that people concerned about the militarization of the police in general may be looking in the wrong place when they focus primarily on the 1033 program.

It turns out that policing agencies get much of their militarized equipment not from 1033, but from a raft of other sources—many of which policing agencies, especially well-resourced ones, prefer because the equipment is newer than what they acquire from 1033. One source of militarized policing is police budgets themselves. Another is federal programs outside of 1033, such as the Department of Homeland Security’s Urban Areas Strategy Initiative and the Byrne Justice Assistance Grant. A problem with the focus on 1033 is that these other federal programs do not receive the scrutiny they deserve. Police even acquire militarized equipment using off-the-books funds they receive from private philanthropic foundations, such as local police foundations. For these reasons, no one should believe that by adjusting or abolishing the 1033 program, militarization will come to a halt.

In 2021, overriding a veto by President Trump, Congress enacted the latest NDAA reauthorization for the 1033 program. Now, in addition to counterdrug, counterterrorism, and border security activities, policing agencies can acquire surplus military equipment for “disaster related emergency preparedness activities.” The act even prioritizes natural disaster related requests: “Applications that request vehicles used for disaster-related emergency preparedness, such as high-water rescue vehicles, should receive the highest preference.” Just as the act evolved to include counterterrorism activities in the years preceding 2001, it now reflects the latest existential threat facing the globe: The War on Climate. The verdict is still out on whether military-grade equipment will prove useful in assisting with the natural disasters caused by climate change.

What we can conclude from these ever-shifting rationales for disposing of military surplus is that the forces who support the legislation seem to care more about getting the equipment in police hands, than they do about why. This should concern us. Local governments, rather than legislators in Washington, DC, should be asking why their policing agencies need military-grade equipment, and regulating acquisition patterns. Unfortunately, such a degree of local oversight is lacking.

Although section(b)(5) of 10 U.S. Code § 2576a conditions 1033 transfers on policing agencies receiving annual authorization from their “relevant local governing body or authority,” all too often this does not amount to true democratic control, let alone encompass sources of militarization beyond the 1033 Program. The authorization process often is a formality designed to expedite the acquisition process in which bidders must respond swiftly to secure goods. In California, lawmakers are trying to strengthen local oversight through proposed AB 481; however, they have met staunch opposition on the Senate Public Safety floor from the Peace Officers Research Association of California and the California Sheriff’s Association who argue that such measures would interfere with the ability of police officials to acquire necessary equipment quickly.

Wars create military surplus, and in a rather unthinking way we have used that surplus to bulk up domestic policing and militarize it. Foreign wars should not influence domestic policing in any way. Focus on the 1033 program is appropriate, as is the need for greater democratic accountability of the program, but to address police militarization we also need to look more broadly and address these issues with more thought

Criminal Justice, National Security and Civil Liberties, Race and Criminal Justice