Mobilizing the military for domestic operations: some legal considerations

In a speech Monday evening, President Trump declared “All Americans were rightly sickened and revolted by the brutal death of George Floyd” and said he was “mobilizing all available, federal resources, civilian and military, to stop the rioting and looting to end the destruction and arson and to protect the rights of law abiding Americans.”  Let’s unpack this a bit, and examine some legal considerations gleaned from prior Lawfire® posts and other sources.

Context

In the aftermath of the tragic death of George Floyd, several governors have mobilized their national guard forces, often at the behest of mayors and other state officials, to counter outbreaks of rioting and violence in cities across the nation.  According to the National Guard Bureau, troops in 23 states have been activated by governors to try to quell the disorders.  However, as unrest continued, the President addressed the nation.

After noting the nation’s revulsion about Floyd’s death Trump said his “administration is fully committed that for George and his family, justice will be served.”  He then insisted:

[Mr. Floyd] will not have died in vain, but we cannot allow the righteous cries and peaceful protestors to be drowned out by an angry mob.

The biggest victims of the rioting are peace loving citizens in our poorest communities and as their president, I will fight to keep them safe. I will fight to protect you. I am your president of law and order and an ally of all peaceful protesters. But in recent days, our nation has been gripped by professional anarchists, violent mobs, arsonists, looters, criminals, rioters, Antifa and others.”

Later in his speech the President said he “strongly recommended” that state governors deploy the National Guard in sufficient numbers to establish “an overwhelming law enforcement presence until the violence has been quelled.” However, ifa city or state refuses to take the actions that are necessary to defend the life and property of their residents, then [he would] deploy the United States military.”

In addition, the President said he was “taking swift and decisive action to protect” the capital by “dispatching thousands and thousands of heavily armed soldiers, military personnel, and law enforcement offices to stop the rioting, looting, vandalism assaults and the wanton destruction of property.”

The Posse Comitatus Act

Let’s first address the dispatch of the “heavily armed soldiers.”  As a general proposition, the Posse Comitatus Act (PCA) [or DoD directive] precludes using the active duty military as “a posse comitatus or otherwise to execute the law” except “under circumstances expressly authorized by the Constitution or Act of Congress.”

Not every involvement with civilian law enforcement is forbidden by the Act.  The military can, for example, furnish indirect assistance such as equipment, training, and advice without violating the PCA.  The relevant Department of Defense Directive (DoDD) is DoDD 3025.21 Defense Support of Civilian Law Enforcement Agencies and it explains what assistance is or is not usually barred by the PCA.  Joint Publication (JP) 3-28, Defense Support of Civil Authorities, provides a quick summary of what the PCA typically prohibits:

However, in this instance, the PCA prohibitions will likely not apply because of exceptions “expressly authorized by the Constitution or Act of Congress.”

Statutory Exceptions to the Posse Comitatus Act

There are a number of statutes which provide exceptions to the prohibitions of the PCA, and the Insurrection Act (10 U.S.C. §§ 251-255) seems to be the most relevant.  The Army’s excellent Domestic Operational Law 2018 Handbook for Judge Advocates points out that:

“Under the Insurrection Act, Federal forces may be used to restore law and order.” As the use of Federal forces to quell civil disturbances is expressly authorized by Federal statute, the proscriptions of the PCA are inapplicable when the President is exercising authority under the Insurrection Act.” 

The Handbook gives a tight explanation of when the Insurrection Act permits the President to use the armed forces to enforce the law:

• There is an insurrection within a State, and the State legislature (or Governor if the legislature cannot be convened) requests assistance from the President;

• A rebellion [or an unlawful obstruction, combination, or assemblages makes it impracticable to enforce the Federal law through ordinary judicial proceedings; or

• An insurrection or domestic violence opposes or obstructs Federal law, or so hinders the enforcement of Federal or State laws that residents of that State are deprived of their constitutional rights and the State is unable or unwilling to protect these rights.

For an example of the last situation, recall when President Eisenhower ordered the famed 101st Airborne Division to Little Rock in 1957, the paratroopers fixed bayonets to their rifles, presumably to be ready for use not just to defend themselves, but also to help them enforce the law, which in that instance was the desegregation of the schools as ordered by the Supreme Court.

In fact, the bayonets were actually used by the troops in Little Rock to prod protestors (who appear to be unarmed American youths) out of the way. Historian David Halberstam described the scene as follows in his book The Fifties:

“With the arrival of the 101st, the nation witnessed again a stunning spectacle on TV; elite paratroopers of one of the most honored divisions in the United States Army escorting young black children where once there had been a mob. The soldiers set up their perimeter. Their faces were immobile and, unlike the Guardsmen’s, betrayed no politics, only duty. As they marched in, the clear, sharp sound of their boots clacking on the street was a reminder of their professionalism. When the segregationists in the street protested, the paratroopers turned out to be very different from the National Guard soldiers who had so recently been their pals. The men of the 101st fixed their bayonets and placed them right at the throats of the protesters, quickly moving them out of the school area.” (Emphasis added.)

Those soldiers did so in order to carry out the vital mission of any democracy: upholding the rule of law.

Inherent Presidential Power

The President also has certain inherent powers under the Constitution.  For example,  6 U.S.C. § 465 stresses the “continued importance and applicability of the Posse Comitatus Act” but in that 2002 enactment Congress also found that:

“[B]y its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.” (Emphasis added.)

As the legislation indicates, there are “Act[s] of Congress” that do permit the use of the military for law enforcement functions (see e.g., the Insurrection Act), but they typically require a proclamation to disperse. It is not, however, unprecedented in our history for troops to be used even in the absence of one.  For example, the Congressional Research service reported that “President Hoover used federal troops in 1932 to oust the Bonus Marchers from federal property in Washington, DC, but did not issue a proclamation.” (Emphasis added.)

As one source explains, the Bonus March occurred in Washington at the height of the Great Depression when thousands of veterans gathered in Washington demanding early payment of their Adjusted Compensation Certificates for wartime service. Most vets then left for home when it appeared their effort failed. However:

“The rest, variously estimated at 2,000 to 5,000, over the next few weeks engaged in protests and near-riots, producing an atmosphere of restlessness and threats of turbulence. Local authorities requested that President Herbert Hoover intervene. Troops led by Brigadier General Perry L. Miles, accompanied by General Douglas MacArthur, the U.S. Army chief of staff, drove out the demonstrators and destroyed their encampments, using tanks and tear gas.”

In other words, tanks and tear gas were used against American veterans (one was killed) in order to restore public order and safety.  There was no suggestion that the PCA was breached, and there certainly were no PCA prosecutions.

In any event in 6 U.S.C. § 465 Congress does recognize that in addition to pursuant to one of its acts, the President can also use the military to fulfill his obligations under the Constitution “to respond promptly in time of …serious emergency.” Accordingly, where, for example, the military is simply taking emergency and temporary action in furtherance of public safety (as opposed to enforcing the law, per se), it would seem that the Posse Comitatus Act is not engaged.

In fact, military commanders have long had the authority to act in an emergency, even without the explicit authorization of the President. Consider the following extract of DoD Directive 3025.18 (based on 32 CFR Part 185):

Federal military commanders are provided EMERGENCY AUTHORITY under this Directive. Federal military forces shall not be used to quell civil disturbances unless specifically authorized by the President in accordance with applicable law (e.g., chapter 13 of Reference (d)) or permitted under emergency authority, as described below. In these circumstances, those Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:

(1) Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order; or,

(2) When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect the Federal property or functions. (Emphasis added.)

When U.S. military forces are operating within the United States, the use of force is not governed by rules of engagement (ROE), but rather by the law enforcement-like rules for the use of force (RUF)  While the RUF can be modified based on the mission, here’s a key extract of what the RUF instruction currently provides (and which Trump has not changed):

a. De-Escalation. When time and circumstances permit, the threatening force should be warned and given the opportunity to withdraw or cease threatening actions

b. Use of Non-Deadly Force

(1) Normally, force is to be used only as a last resort, and the force used should be the minimum necessary. The use of force must be reasonable in intensity, duration and magnitude based on the totality of circumstances to counter the threat. If force is required, non-deadly force is authorized and may be used to control a situation and accomplish the mission, or to provide self-defense of DOD forces, defense of non-DoD persons in the vicinity if directly related to the assigned mission, or in defense of the protected property, when doing so is reasonable under the circumstances.

Another crucial part of the RUF specifically says:

c. Use of Deadly Force. Deadly force is to be used only when all lesser means have failed or cannot reasonably be employed. Deadly force is authorized under the following circumstances:

(1) Inherent Right of Self-Defense. Deadly force is authorized when DOD unit commanders reasonably believe that a person poses an imminent threat of death or serious bodily harm to DOD forces. Unit self-defense includes the defense of other DOD forces in the vicinity.

(2) Defense of Others. Deadly force is authorized in defense of non-DOD persons in the vicinity, when directly related to the assigned mission.

Deadly force can also be used to protect certain property if it is, for example, vital to national security, inherently dangerous, or part of critical national infrastructure.  In addition, deadly force can be used to apprehend persons when probable cause indicates they committed a serious offense.  These rules are not unique to the Trump administration but have been in place for well over a decade.

Concluding thoughts

It is saddening for me, hopefully most of us, to think that military forces have to be used to keep order on America’s streets.  As you may know, I’ve always opposed a law enforcement role for the military absent truly extraordinary circumstance (see here and here).  Yet such extraordinary circumstances do arise from time to time when, unfortunately, military assistance is the only viable option.

During the 1965 riots in the Watts area of Los Angeles, over 14,000 National Guardsmen were deployed to restore order when a traffic stop triggered long-standing tensions that exploded into rioting that eventually extended to a 50 square-mile section of the city.  Watts was said to “resemble a war zone” with clashes that “included sniper fire at police and Guardsmen, police raids on vehicles and apartments, and Molotov cocktails.”  34 died.

In 1992, over 10,000 National Guardsmen and 2,000 active duty Marines were deployed – again to Los Angeles – to quell “a huge civil disturbance that covered 32-square-miles, from the Hollywood Hills to Long Beach” which erupted after police officers were acquitted of using excessive force against Rodney King.

After Hurricane Katrina in 2005, troops were deployed to provide assistance – to include security – for the storm’s victims. Part of the need for the troops was that “at least 200 New Orleans police officers ha[d] walked away from their jobs.”  (Of course, military personnel have no legal authority to “walk away from their jobs” as civilian police officers can do.)

As tragic as all these situations were,  we can take solace from the fact the nation survived and thrived after them.  Those of a certain age can well remember the often-violent social turmoil of the late 1960s and early 1970s.  A few years ago Time Magazine noted that domestic terrorists were very actively bombing U.S. sites: “In a single eighteen-month period during 1971 and 1972 the FBI counted an amazing 2,500 bombings on American soil, almost five a day.”  Yet the American spirit prevailed.

As of this writing (Monday night) a news headline said “Cities face new looting amid stronger National Guard response, curfews” so it may mean that further steps are needed, to include the use of additional troops.  The choices are few and stark. Consider:

“America is founded upon the rule of law. It is the foundation of our prosperity, our freedom and our very way of life. But where there is no law, there is no opportunity. Where there is no justice, there is no liberty. Where there is no safety, there is no future. We must never give in to anger or hatred. If malice or violence reigns, then none of us is free.”

We can only hope that if the active duty military must be added to the National Guard forces that their combined appearance will dampen and deter further violence.

Even when conflict and chaos are controlled, further and deeper conversations still need to take place – among neighbors, in communities and across our nation.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

Update: An alert reader pointed out that I overlooked the 1976 Detroit Riots which History.com says  “were among the most violent and destructive riots in U.S. history.”  It reports that “[b]y the time the bloodshed, burning and looting ended after five days, 43 people were dead, 342 injured, nearly 1,400 buildings had been burned and some 7,000 National Guard and U.S. Army troops had been called into service.” 

The active duty military became involved after ‘[s]nipers reportedly fired at firemen, and fire hoses were cut.”  At that point  Governor Romney asked President Lyndon B. Johnson for troops, and shortly thereafter nearly 2,000 army paratroopers arrived “and began patrolling the streets of Detroit in tanks and armored carriers.”

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