Should local National Guard troops always be the first and only resort when civil disorders overwhelm police?

Not long ago a Washington Post reporter asked me about the use of the National Guard during what the Post described as “mayhem” in the District last June in the aftermath of the tragic death of George Floyd. His article went in a different direction (and without my comments), but it gave me an opportunity to think about whether or not the National Guard should be the first resort when civil disorders overwhelm police.

My conclusion is that the local Guard usually should be relied upon first, but not always.  In some cases Guard forces from other states or even the active duty military will be a better fit.  Let’s unpack this issue.

What is the National Guard?

It makes sense to initially look to the National Guard to help police, especially when, as was the case last June, polls showed that “58% of Voters Support Using Military To Help Police Control Protests.”

So what is the National Guard?  The Guard describes itself this way:

The National Guard is a unique element of the U.S. military that serves both community and country. The Guard responds to domestic emergencies, overseas combat missions, counterdrug efforts, reconstruction missions and more. Any state governor or the President of the United States can call on the Guard in a moment’s notice. Guard Soldiers hold civilian jobs or attend college while maintaining their military training part time. Guard Soldiers’ primary area of operation is their home state.

Obviously, the Guard is a readily-available local force.  Moreover, when not Federalized and under state command, it is governed by state law and not encumbered by the Posse Comitatus Act which generally bars the active-duty military from direct law enforcement duties.  Such authority can be helpful when dealing with the citizenry during situations of public disorder that cannot be contained by civilian police forces.

However, if the Guard is not properly organized, trained, and equipped for the complex law enforcement mission as they should be, tragic incidents can occur.  We shouldn’t forget the heart-breaking 1970 case at Kent State University where National Guardsmen deployed to counter antiwar protests ended up killing or wounding 13 people—a result I believe could have been avoided if the Guardsmen were better trained.

In my view, every Guard unit ought to consider aiding police in civil disturbances as a quintessential Guard mission, and school themselves in the best tactics and techniques for accomplishing that mission.  In an essay published in early April, a group of authors led by retired Marine Corps General John Allen (now President of the Brookings Institution), argued that “We should prepare now to send US armed forces to help police in hard-hit areas.”

The challenges faced by local Guard troops 

Bringing in Guardsmen from other states, as was done in Washington in June, can sometimes be a wise move.  Received wisdom does assume that “citizen-soldier” National Guardsmen from the area are necessarily more attuned to local sensitivities and thus better able to restore order in a peaceable manner.  While I believe that is often still true, the presumption needs rethinking as the localism of National Guardsmen can also sometimes be more of a burden than a benefit.

In an interview last July, General Joseph L. Lengyel, who just retired as the Chief of the National Guard Bureau, made it clear that the Guard was unenthusiastic about this kind of civil-support mission, and added this troubling observation:

“Frequently, there are members of one family on one side of the line and other members dressed in civil riot gear on the other side, and it is a difficult, difficult situation for our men and women to be in,” he said.

Likewise, a New York Times report (10 June) about the DC National Guard illustrates the practical challenge involved in using local Guardsmen:

“It’s a very tough conversation to have when a soldier turns to me and they’re saying, ‘Hey sir, you know my cousin was up there yelling at me, that was my neighbor, my best friend from high school,’” said Lieutenant Jenkins-Bey, who is African-American.

All of this seems to suggest the ‘home field’ advantage many presume accrues to local Guardsmen can sometimes (albeit certainly not always) be as much or more of a hindrance than a help.  Thus, out-of-area Guardsmen or even active-duty troops might be a better option in some civil-disturbance situations.

The historical precedent

Actually, the notion that local Guardsmen might not always be the best option to face down family members or friends participating in a civil disorder is not an especially new phenomenon.  In 1957, President Eisenhower sent active-duty paratroopers to ensure the desegregation of the schools in Little Rock was not blocked by white protesters.  In the ensuing days the active-duty troops conducted themselves rather differently than their local National Guard analogues had been doing.

The late historian David Halberstam described the scene as follows in his seminal book The Fifties:

“With the arrival of the 101st [Airborne Division], 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.)

According to an Associated Press report filed at the time, when a protester “tried to grab a paratrooper’s rifle” the soldier “quickly revers[ed] it, [and] struck [the protester] over the eye with the butt.”  Another protester “got a bayonet cut in the arm apparently when he was too slow in obeying an order.”

Of course, the point here is not at all to recommend using rifle butts or bayonets on protesters–a horrifying prospect by today’s standards.  Rather, it is simply to illustrate that if it is necessary to use troops to counteract lawbreakers who present a serious danger to a community, it may be wiser to employ disciplined, full-time military professionals who “betray no politics, only duty” as opposed to those “who had so recently been [the protesters’] pals.”

The need to back-up local police may be growing

In a post this past June, I said:

It is saddening for me, and hopefully for 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.

Do such circumstances exist?  The Brookings essay anticipated police forces being decimated by COVID-19, necessitating the use of the armed forces.  Indeed, the disease has taken a toll on law enforcement as media reports now say that the illness is “the leading cause of death for US police officers in 2020.”

This comes on top of growing evidence that as urban violence persists across the country, police officers are quitting or retiring in alarming numbers, and many more are looking for ways to leave.  Police morale is also said to be at an “all-time low” and many officers “feel abandoned.” All this is fueling an “en masse” exodus “creating a new crisis: police forces that are short-staffed and inexperienced.”

This situation seems to be continuing and may become even more pronounced as recently we saw headlines that shouted “With anger at police high, officers face greater danger.”  When the risks of policing increase concerns not just for themselves, but also for the families they support, can instigate officer departures.  One of the reasons the military was brought to New Orleans during Hurricane Katrina is that 200 overwhelmed police officers walked off the job.  For the military, there is no ‘quitting’ or leaving an assignment, as desertion carries severe penalties under military law.

Importantly, the crisis in police staffing preceded both COVID-19, and the rapid decline in public confidence in law enforcement.  Last February–before COVID-19 exploded and well before the George Floyd crisis, the City Journal warned that “in many cities, [police] forces are shrinking—and that could spell trouble for public safety.” It said “86 percent of police chiefs nationwide reported a shortage of sworn officers, with nearly half stating that the shortage had worsened over the past five years.”  Citing a variety of reasons the article warned that “police forces, already at early 1990s levels of staffing, will likely keep shrinking.”

When active duty troops might need to supplement the Guard 

Even when properly organized, trained, and equipped, local Guard units aiding shrunken police forces may still not be large enough to counter widespread civil disorders.  Moreover, even an ad hoc assemblage of Guard units from a variety of jurisdictions may not have enough experience working together to be adequate for the task.

Consequently, sometimes it may be best to look to the active duty force to supplement the Guard when deadly disturbances occur on a major scale.  There is ample precedent for doing so.  The Army’s 2005 history, The Role of Federal Military Forces in Domestic Disorders, 1945–1992, recounts how National Guard and active-duty troops were used not just in civil disturbances related to antiwar protests and civil rights demonstrations, but also during industrial disputes, prison riots, and even “a nationalist uprising in Puerto Rico.”

For example, retired Army lieutenant general Marvin L. Covault, a decorated combat leader, commanded the active-duty Marine and Army troops ordered by President George H.W. Bush to deploy to Los Angeles in 1991.  His mission was to help restore order after deadly riots exploded in the wake of the acquittal of four police officers on charges of beating Rodney King, an African-American, nearly to death.

General Covault recently penned an essay “Should Federal Military Forces Be Engaged in a National Civil Disturbance Crisis? in which he outlined the enormous size and cost of the Los Angeles rioting:

The final tally was as follows: 55 killed, over 2000 injured, about $1 Billion dollars is damages, over 10,000 rioters were directly involved in looting and destruction, over 1000 buildings seriously damaged or destroyed, the fire department responded to more than 4000 fires.

After providing some detail as to how he handled the crisis–and some lessons-earned–General Covault concludes:

My answer to the title question, is yes, federal military forces should be engaged in national civil disturbances crises.  

Was Task Force LA perfect?  Not by a long shot but then dealing with crisis rarely is.  Did we make mistakes?  Certainly.  But the bottom line is, once our forces deployed and got on the scene no one lost their life and the rioting, looting and burning quickly stopped. (Emphasis added.)

Concluding thoughts

Looking ahead, it does seem like both the Guard and the active force ought to be ready to assist police.  Unlike civilian law enforcement, the active duty force of 1.3 million troops has suffered, as of this writing, just eight deaths from COVID-19.   Retention rates are at historic highs and, consequently, the services expect to meet end-strength goals as it seems the police will not.  Recent polls show public confidence in the military remains undiminished while trust in law enforcement, rightly or wrongly, plummets.

Thus, today we are in a situation where police forces may not always be as strong as needed to preserve public order, so the military has to be ready to assist them, under strict civilian control, if doing so is necessary to protect the public.  Parenthetically, I am in complete agreement with retired national security advisor lieutenant general H.R. McMaster who insists that the “military will have no role in a [presidential] transition,” and I agree with him that “even talk about it…irresponsible.”  There are other institutions and means completely apart from the military that are more than capable of dealing with any such issues.

The best takeaways for the military from last June’s disorders in the District ought to be less about finger-pointing and political posturing, and more about the reality that lessons need to be learned, training needs to be conducted, and the right equipment needs to be acquired and distributed, so as to be ready, as Brookings warned in April, for any eventuality.  It goes without saying that civilian leaders also need to make every effort to prevent situations from developing that allow “violent opportunists” to exploit peaceful protests.

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