CHICAGO—U.S. Senator Dick Durbin (D-IL), Chairman of both the Appropriations Subcommittee on Defense and the Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, today sent a letter to Secretary of Defense Chuck Hagel, raising several areas of concern about programs operated by the Department of Defense that provide excess military equipment to state and local law enforcement agencies. These programs received national attention following the Ferguson, Missouri, police department’s use of military equipment in response to demonstrations. The full text of the letter is below.

“The adoption by local police departments of military-style tactics and their use of military equipment have provoked concern across the nation for a number of years, but the recent events in Ferguson, Missouri, give new urgency to the need for an examination of the DoD programs that supply such equipment,” wrote Durbin. “I look forward to working with you to ensure that any provision of excess military equipment to civilian law enforcement is carried out with the safeguards, accountability and oversight that our communities need and deserve.”

September 5, 2014

The Honorable Chuck Hagel

Secretary

U.S. Department of Defense

1400 Defense Pentagon

Washington, DC 20301-1400

Dear Secretary Hagel:

I write regarding programs operated by the Department of Defense (DoD) that provide excess military equipment to state and local law enforcement agencies (LEAs). The adoption by local police departments of military-style tactics and their use of military equipment have provoked concern across the nation for a number of years, but the recent events in Ferguson, Missouri, give new urgency to the need for an examination of the DoD programs that supply such equipment.  I appreciate the briefing that DoD officials provided to my staff about these programs.  Based on this briefing I have identified several areas of concern that I wanted to bring to your attention.  As the Chairman of the Senate’s Defense Appropriations Subcommittee and the Constitution, Civil Rights and Human Rights Subcommittee, I intend to ensure that these issues are addressed as the Administration and Congress review these programs and consider reforms.

DoD operates the program commonly known as the 1033 program, through which the Defense Logistics Agency (DLA) provides excess military equipment free of charge to state and local law enforcement through the intermediary of a state coordinator, and the 1122 program, through which LEAs can purchase excess military equipment.  The Law Enforcement Support Office of the DLA estimates that the 1033 program has transferred $4.3 billion in excess military equipment to law enforcement agencies during the lifetime of the program, with almost $450 million in equipment transferred in 2013 alone.  The variety of equipment available under these programs is very broad, ranging from office or exercise equipment to tactical and armored vehicles and military assault rifles.

At my request, DoD officials briefed my staff about the operation and oversight of the 1033 program, and based on the briefing I want to highlight the following issues of concern:

• Consultation with the Department of Justice (DOJ): The 1033 program appears to lack any effective consultation with DOJ, although the authorizing statute requires such consultation.  I understand that the 1033 program is managed without any consistent, formalized procedure for contact with DOJ, including DOJ components that provide federal funding and equipment to LEAs.  It appears that DOJ could play an important role working with the DLA and state coordinators to ensure that LEA applicants under the 1033 program (1) have a valid law enforcement purpose and need for the equipment; (2) do not have a history of violations of federal laws or grant requirements with respect to federally-provided equipment; and (3) are not the subject of any allegation or investigation known to the Justice Department that would raise doubts about the LEA’s ability to use such equipment appropriately.  DOJ consultation could also help ensure consistency among decisions made by state coordinators to evaluate and approve LEA applications for equipment. 

• Oversight of equipment use: The lack of consultation with the Justice Department also raises concern because of another gap in the 1033 program’s management: the absence of a mechanism for oversight of the use of tactical equipment provided to LEAs.  While it appears that DLA exercises careful control of inventory procedures with regular reporting requirements and audits, it is my understanding that DLA has no procedure for evaluating whether there has been any illegal or inappropriate use of 1033 equipment, particularly of firearms, explosive devices or military vehicles.  While much of the equipment provided through the 1033 program is non-tactical in nature, oversight is essential for tactical equipment.  Given DOJ’s experience working with LEA grantees, closer coordination between DLA, state coordinators and the Justice Department on oversight would also appear constructive.  

• Lack of training requirements: DLA does not ensure that LEAs receive effective training with respect to the proper use of 1033 equipment or with respect to the potential consequences of the inappropriate use of such equipment in civilian communities.  While DoD is not the appropriate entity to provide training on the use of military equipment for domestic law enforcement, it is critical to ensure that such training takes place.  While DLA has memorandums of agreement with state coordinators that apparently require coordinators to “validate that all approved requests for property are legitimate and for law enforcement purposes” and to address “training and education” in their state plans of operation, it is my understanding that DLA does not check to ensure whether such validation, training and education has taken place and are effective.  Numerous reports have surfaced in recent years of LEAs using tactical military equipment in routine civilian law enforcement situations, prompting strong community concerns about excessive force and undermining community policing efforts.   Inadequate DoD oversight and assurance of LEA validation, training and education clearly increases the risk that LEAs might inappropriately use military tactical equipment supplied to them by DoD. 

• Procedure for complaints: I understand that DoD has not established a mechanism for the public to register complaints concerning the use of DLA-supplied equipment by civilian law enforcement.  An adequate complaint resolution procedure, such as the creation of an independent ombudsman, could help instill community confidence that the programs are operating effectively.

I look forward to working with you to address these issues, as well as other issues which may arise during the review of these programs.  Additionally, I look forward to learning more about the functioning and oversight of the 1122 program, which the briefing to my staff did not cover in detail.

Thank you for your attention to this matter.  I look forward to working with you to ensure that any provision of excess military equipment to civilian law enforcement is carried out with the safeguards, accountability and oversight that our communities need and deserve.

Sincerely,

RICHARD J. DURBIN

United States Senator