Do We Really Want the Military Policing Our Cities?
America’s founding fathers were rightly concerned about the potential for the government they had created to descend into a military dictatorship.
In the Federalist Papers #8, Alexander Hamilton expressed concern that maintaining a large standing army would not only be expensive but could lead to war and political division. And as James Madison warned us in comments before the Constitutional Convention in 1787:
The means of defense against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.
The Constitution was thus drafted with checks and balances so that each of the three branches of government – executive, legislative, and judicial – would exercise some degree of control over the military. And while the first Congress authorized a regiment to guard the western frontier and an artillery battery to guard the arsenal at West Point, it refused to fund a standing army.
It was with this history in mind that I read President Trump’s recent comments in response to the unrest sweeping America in the wake of the police killing of George Floyd. He announced on June 1 that he would invoke the Insurrection Act of 1807, a little-known 213-year-old law authorizing military mobilization on domestic soil to quell violence and property destruction.
The Insurrection Act authorizes the president to deploy troops throughout the country with an executive order if a governor or state legislature requests military assistance. Enacted when the memory of the British abusing their military authority was still fresh, the law was drafted to ensure troops would only be deployed domestically when both the federal government and the state authorities requesting assistance agreed they were needed.
The last time the Insurrection Act was used was in 1992 during riots in Los Angeles following the acquittal of four police officers who were filmed beating a black man named Rodney King. The act was also used to restore order during riots in Washington, D.C., Chicago, Baltimore, and Detroit during the 1960s.
So far, no governors have requested assistance under the Insurrection Act to curb the current nationwide protests. But, at least two dozen states have mobilized National Guard units to assist local law enforcement. These units are under state, not federal, control.
Let’s hope it stays that way. The Insurrection Act is hardly the only authority for the president to deploy the military to crush domestic disturbances.
During war, for instance, the peacetime limitations under which the military operate largely disappear. In 1863, at the height of the Civil War, riots broke out in New York City over a new conscription law established to replenish the Union armies. New York Mayor George Opdyke requested federal assistance, and 4,000 Union troops were brought in to restore order. The Army set up cannons in Gramercy Park and began firing artillery at protestors. Hundreds were killed.
After the war ended, the federal government deployed troops in the former Confederate states to help maintain law and order. Their presence was bitterly resented, and southern politicians pushed for a federal prohibition on using the military to conduct policing operations on US soil.
In response, in 1878, Congress enacted the Posse Comitatus Act (PCA). This law bans the military from participating in arrests, searches, seizures of evidence and other police-type activity domestically.
Yet, more than a century later, in 2006, Congress authorized the president to take over state National Guard troops if, in the president's judgment, state authorities are unable to maintain public order. This may occur without the consent of state authorities. And in 2013, the Pentagon published regulations permitting the military to deploy domestically to "engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances."
Meanwhile, during the current protests, you’ve no doubt seen videos of police wearing riot gear using pepper spray and rubber bullets against peaceful protestors. If you’re wondering why police are armed as if they’re going to war, it’s in part because since the 1990s, the military has transferred billions of dollars of surplus equipment to local police forces. They’ve received armored vehicles, drones capable of firing missiles, bayonets, and grenade launchers, among other supplies.
But if that’s not enough, and the military steps in directly to crush protests, it now has at its disposal more than two million active duty personnel, equipped with more than 2,000 fighter jets, nearly 1,000 attack helicopters, and nearly 50,000 tanks, armored vehicles, artillery pieces, and rocket launchers. Along with more than 6,000 nuclear warheads.
Nearly 250 years ago, the first Congress was so concerned about the potential for misuse of a standing army that it was only willing to authorize funding for a single federal regiment and an artillery battery.
But as our president has stated:
If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.
So yes, the legal authority and now the stated intent for the president to deploy the military to subdue protest exists. And the resources available for that purpose are massive; sufficient to pulverize any American city into submission.
The question, of course, if this is how we want to restore order in America. Because once we deploy the military on our own soil during peacetime to do so, there could be no going back.
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