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“Citizens Are Not the Enemy”: The Insurrection Act and U.S. Civil-Military Relations

By: Amanda Blair

When Defense Secretary Mark Esper likened U.S. cities to the “battlespace” and urged governors to “dominate” them in response to nation-wide protests earlier this summer, the backlash that he faced from both retired and active military officials was overwhelming. 

Former Joint Chiefs of Staff Chairman General Martin Dempsey spoke out publicly against such action, calling it “dangerous” and “troubling.” His predecessor, Admiral Mike Mullen also expressed concern: “Our fellow citizens are not the enemy, and must never become so.” 

Even General James Mattis, who had been reluctant to speak out about the administration since his departure from the Department of Defense early last year, condemned the use of military force to quell protests in a letter published in the Atlantic on June 3. 

That same day, President Trump threatened to invoke the Insurrection Act (10 U.S.C. Ch. 13), an 1807 law providing an exception to the Posse Comitatus Act (18 U.S. Code § 1385), which prohibits the use of federal troops for domestic law enforcement. 

Shortly thereafter, the National Guard was deployed in Washington D.C. to forcibly clear protesters from Lafayette Square so that the president could pose for a photo in front of St. John’s Church. 

Both the legal and moral authority of taking such action quickly came under intense scrutiny amongst the American populace. The current Joint Chiefs of Staff Chairman, General Mark Milley, issued an apology for his appearance in the controversial photo, admitting that he had “created a perception of the military being involved in domestic politics.” His statement has raised questions central to defining civil-military relations in the United States, including defining the primary purpose of the military and whether it should be used domestically.  

National security expert Dr. Mackubin Thomas Owens has noted that these issues have been addressed “differently at different times and under different circumstances” throughout U.S. history. 

For example, President George H.W. Bush sent federal troops to Los Angeles in response to violent riots that erupted in the city following the acquittal of four police officers who had been charged with the brutal beating of Rodney King in 1992, citing the Insurrection Act to do so. 

Yet, President George Bush Jr. chose not to invoke the same law to deploy federal troops to Louisiana to assist with emergency response in the aftermath of Hurricane Katrina in 2005.

A Tradition of Posse Comitatus in the United States 

The Posse Comitatus Act of 1878 establishes a presumption that federal troops will not be used for domestic law enforcement in the United States. The Insurrection Act provides an exception to this law, allowing a state’s legislature (or its governor if the legislature cannot be convened) to request the president to federalize National Guard troops to engage in law enforcement activities. Then-California Governor Pete Wilson did this in the case of the Rodney King riots. Such a request for assistance, however, is not required if the president deems law enforcement to be “impracticable” in any given situation. 

Legal experts such as William C. Banks, a professor of national security law at Syracuse University, have criticized this threshold as being too low. An exception to the legal tradition of posse comitatus should only be permissible in the event of a “serious crisis,” says Banks. 

For example, the Insurrection Act has in the past been invoked to uphold Americans’ rights and freedoms. In 1957, President Eisenhower ordered the 101st Airborne to Little Rock, Arkansas to enforce school desegregation. Similarly, Presidents Kennedy and Johnson sent federal troops to enforce civil rights laws in Mississippi, Alabama, and Michigan during the 1960s. 

But, its application to the present context threatens this precedent of use for grave dangers while the protesters today are predominantly non-violent and reacting to legitimate injustices. 

The Insurrection Act thus remains a “relic of the past” that has not changed in any significant way since the Reconstruction Era following the Civil War, according to Banks. As such, the law should be revised to ensure that military involvement in domestic affairs always remains a measure of last resort. 

Military Force Must Remain a Measure of Last Resort

Deploying troops who use force against protestors or arrest them may turn the American people against their own military. While the military is an institution that remains trusted by a majority of Americans, there is still a growing disconnect between soldiers and civilians in the United States today. This civil-military gap is reflected in the composition of our all-volunteer force: less than 1 percent of our population chooses to serve. 

Further, those who do serve in the military often come from families with histories of military service. The New York Times reported earlier this year that 79 percent of Army recruits in 2019 had at least one family member who had also served. 

With many Americans lacking personal ties to the military, as reported by The Hill, military service is increasingly considered to be something that “other people do.” Surveys conducted by the Department of Defense show that “only 12% of youth believe they share a lot in common” with U.S. service members. Similarly, 87% of survey respondents said they would “definitely not” or “probably not” serve in the military over the next few years. 

A declining veteran population is also indicative of a “shrinking military footprint” in the United States. According to the Pew Research Center, the number of adults who were serving or who had served in the military dropped by more than half between 1980 and 2014 (from 18 percent to 8 percent, respectively). The Department of Veteran Affairs also projected that the veteran population will continue to fall from 20 million in 2017 to 13.6 million by 2037.

As a result, our military may become increasingly insulated from American society and unrepresentative of our population as a whole. Indeed, Former Secretary of State Robert Gates has warned that “there is a risk over time of developing a cadre of military leaders that politically, culturally, and geographically have less and less in common with the people they have sworn to defend.”

Instances where the military is called upon to support local law enforcement in a confrontational manner may increase the potential for further misrepresentation and disconnection between citizens and the armed forces. 

Moreover, our military is not trained in a law enforcement capacity. If the same weapons and tactics that are used against America’s foreign adversaries are turned inward on our own population, these capabilities may contribute to intrastate conflict. Given that most of the protests have been peaceful, the current administration should at least be offering the same opportunities to protestors for the negotiation of a peaceful solution as it would extend to an external actor before resorting to military force. 

Our police forces also have become increasingly militarized to address crime and threats of terrorism stemming from within the United States. We have seen how the “paramilitary aspects of police culture” have sparked the very protests against which the president has now proposed military action. 

As observed by Rosa Brooks in her memoir, How Everything Became War and the Military Became Everything: “As police departments increasingly use military tactics, weapons, equipment, and even apparel, domestic policing has come to look more and more like war.” As part of the Department of Defense’s 1033 Program, for example, over $7.4 billion of excess military equipment has been supplied to domestic law enforcement agencies since 1997, at no cost other than for shipping. 

Escalation of Violence Across the Country

Without a requirement to consult with state and local governments, the president will continue to have broad authority to act unilaterally in ways that may unnecessarily contradict the American tradition of posse comitatus, as we have seen in recent weeks. 

Last month, federal troops were deployed to Portland despite requests from Governor Oregon Kate Brown to have them withdrawn or else risk further escalating tensions. Responding to concerns that the Trump administration may attempt to send federal law enforcement to other cities across the country, Governor J.B. Pritzker of Illinois has made a commitment “to do everything we can to prevent them from coming, and if they do come, we’re going to do everything we can from a legal perspective to get them out.” 

Portland Mayor Ted Wheeler was joined by his counterparts in Atlanta, Chicago, Kansas City, Seattle, and Washington D.C. in a letter addressed to Attorney General Bill Barr and Acting Secretary of Homeland Security Chad Wolf articulating their objections to the deployment of federal troops in their cities. 

Wolf responded by stating, “I don’t need invitations by the state, state mayors or state governors to do our job. We’re going to do that, whether they like us there or not”. The federal law enforcement agents, primarily from the Department of Homeland Security’s Federal Protective Service, are said to be protecting federal buildings from vandalism and destruction. 

Reports of federal agents using violent tactics against civilians and harming peaceful protestors, including a Navy veteran in Portland, are complicating this narrative. Recent reports indicating that the Department of Homeland Security has been monitoring protestors and journalists, possibly by exploiting their electronic devices, are similarly troubling.

Are Violent Instigators Hijacking the Protests?

A small number of “violent instigators” are “hijack[ing]” the otherwise peaceful protests, according to Attorney General Barr. Barr has cited fireworks, pellet guns, and objects ranging from rocks to water bottles that have been directed at federal agents in Portland, leading to casualties “far exceed[ing] anything on the civilian side.” 

In addition, The New York Times reported on July 28 that “[s]everal fires have been set near the courthouse [in Portland], which federal officials have said could spread to the building and harm the agents inside.” More recently, the Portland Police Association building was set on fire. Protestors also started dumpster fires outside of the building and in the street, filled pool noodles with nails to cause damage to patrol vehicles, and engaged in other unlawful activities.

A few days prior, a local police precinct in eastern Portland was targeted by protestors who broke windows, disabled security cameras, and barricaded doors in an attempt to set fire to the building. The Portland Police declared that the gathering around the precinct was a riot, which enabled them to deploy tear gas as per a federal court order banning its use except where “lives or safety of the public or the police are at risk.”

Still, it appears that most of the protestors who have been arrested so far are non-violent and have no clear links to extremist groups on either the right or the left. The Associated Press reported that 95% of those arrested in Portland were locals, with a vast majority having no criminal record in the state. 

That said, David Kilcullen at the Foundation for Defense of Democracies warns that even a small number of violent protestors have the potential to radicalize others: “It is commonplace in insurgencies for guerrilla talent spotters to identify recruits through street violence, inducting them into armed, organized groups over time.” Claims that violent extremists are trying to weaponize the recent Black Lives Matter and anti-police brutality protests thus should be taken seriously.

Law enforcement and intelligence reports indicate that both left-wing and right-wing extremists have been organizing violent activity within the ongoing protests. White supremacist groups and the so-called “Boogaloo Bois,” for example, have attempted to exploit the protests and stoke violence between protesters and law enforcement. 

The “Boogaloo Movement” is comprised of a patchwork of far-right, anti-government individuals seeking to disassemble the power of the state and  incite civil war (hence the term “boogaloo,” derived from old jokes about the 1984 film “Breakin’ 2: Electric Boogaloo” and now more popularly used in reference to mass violence against the state). Several individuals tied to the Boogaloo Movement were arrested for possessing unregistered destruction devices en route to Black Lives Matter protests in Nevada.

Similarly, Minnesota police now suspect the infamous “Umbrella Man” of having ties with white supremacist groups. This individual was recorded in the first days of the protests in Minneapolis holding an umbrella and smashing the windows of an AutoZone store that was subsequently set on fire, sparking a chain of fires throughout the city. Officials claim that the protests had been relatively peaceful until “Umbrella Man” became involved. 

A white supremacist group also created fake Antifa Twitter accounts calling for an escalation of violence. The accounts have since been shut down by the platform, but the Trump administration and Attorney General Barr continue to allege that Antifa has played a central role in instigating and participating in violent activity within the protests. However, there has not been strong evidence to support these claims, and the charges that have been brought against those suspected of engaging in violent activity do not suggest any obvious ties to Antifa.

Law enforcement and intelligence agencies should be seeking clear attributions to identify the source of violence within these otherwise peaceful protests. Doing so will be necessary to ensure that tensions are not escalated any further.

Conditions on the Ground May Represent “Incipient Insurgency,” Not Insurrection

Whether the situation has escalated to a point that necessitates federal intervention remains subject to debate. Kilcullen draws a distinction between the legal meaning of “insurrection” and what he describes as “incipient insurgency.” 

Insurrection, as defined under U.S. law, “is not mere rioting, looting, or mob violence, even if politically motivated,” explains Kilcullen. It is instead, “an organized, armed uprising with the intent of overthrowing and replacing governing authority.” This is narrower than the military’s definition of insurgency: the “organized use of subversion and violence to seize, nullify, or challenge political control of a region.” 

According to the CIA’s Guide to the Analysis of Insurgency, incipient insurgency “encompasses the pre-insurgency and organizational stages” from inchoate action to acquiring resources and building public support. Kilcullen argues that some, but not all, of the conditions for incipient insurgency have been met in the United States today. 

The use of force by federal agents might be merited in an insurrection, but may have a counterproductive effect in the case of an incipient insurgency by unnecessarily escalating tensions and worsening civil-military relations. 

The Insurrection Act should thus be amended to delineate between these two classifications and thereby clarify the conditions in which federal troops may not be deployed for law enforcement purposes without explicit approval from state and local governments.

Proposed Amendments to the Insurrection Act

Future revisions to the Insurrection Act must emphasize the importance of consulting with state and local governments to ensure that the law is being applied appropriately. The most recent attempt to amend the Insurrection Act following Hurricane Katrina was ultimately repealed by Congress in 2008, facing strong opposition from state governors and national guard officials whose views had not been taken into account when revising the law. 

The CIVIL Act proposed by Senator Richard Blumenthal (D-CT) in early June is a good starting point, seeking to “establish[] an expedited procedure for judicial review to ensure that individuals, or a state or local government, may bring a civil action if the President’s authority under the Insurrection Act is misused or abused.” 

Banks, the Syracuse professor, also highlights the importance of the Act’s sunset clause, which would serve as an additional check on the executive branch by requiring Congressional approval within a 14-day period. For any of these provisions to be effective, however, additional clarity is needed. As it is currently written, the Insurrection Act merely requires that the president find domestic law enforcement “impracticable” before deploying federal troops at home, a relatively low threshold according to Banks.

Any revision to the law should make clear the limits of posse comitatus and the specific circumstances under which federal troops may become involved in domestic affairs. 

More work is needed to further clarify when the Insurrection Act can be applied and to provide additional checks on executive power to ensure that the law is being applied appropriately. 

As the story of federal law enforcement deployment continues to play out in cities across the United States, citizens, as well as disinclined state officials, will continue to clash with the federal government and their response. Unless proposed legislation such as the CIVIL Act address these important issues, American presidents may continue to exploit the ambiguity of the law as it is currently written to expand the executive branch’s authority at the expense of American civil rights and liberties.

Amanda Blair is an intern at the Lobo Institute and a Master’s student at Yale University’s Jackson Institute for Global Affairs. After graduation, she hopes to work on issues in national security, law, and policy. You can find her on LinkedIn or contact her at [email protected].  

Zack Baddorf and Liam McHugh at the Lobo Institute contributed to this report.  

The views and opinions expressed in this paper are the views of the author and not necessarily the views of the Lobo Institute. For more information on the institute or to get on the mailing list for our papers and LoboCasts, please go to Lobo Institute