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Old 10-21-2020, 11:42 AM
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Exclamation Part One -Domestic Military Ops — Reforming the Insurrection Act

Good Governance Paper No. 6 (Part One): Domestic Military Operations — Reforming the Insurrection Act
By: Mark Nevitt - 10-20-20

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

When can the president deploy the federal military on American soil? What are the legal and regulatory restraints in doing so? Throughout the current administration, these fundamental questions of civil-military relations and democratic governance have only grown in importance. This is due, in large part, to the rupture of longstanding norms. Salient examples include the significantly expanded deployment of military troops to the U.S.-Mexican border as well as the use or threatened use of state and federal military forces (many unidentified) in response to protests this summer in the aftermath of George Floyd’s death. The violent clearing of peaceful protestors from Lafayette Square Park on June 1 by both non-military and military forces brought the issue of domestic military operations to American living rooms—as did the President threatening minutes earlier to invoke the Insurrection Act and send active duty military forces into American cities.

The governance stakes are simply too high to rely upon now-violated norms. Congress should reinvigorate its constitutional role in governing domestic military operations and provide bright legal lines addressing the president’s authority to deploy the military domestically.

In this essay and the one to follow, I highlight four legal authorities governing domestic use of military force that are ripe for clarification and congressional action. This essay concerns the Insurrection Act, and my second essay will address the Posse Comitatus Act, Section 502(f) of Title 32 of the U.S. Code, and military operations in the nation’s capital.

The Insurrection Act’s Scope and Triggering Authorities

For over 200 years, Congress has provided broad authority to the president to deploy the military domestically via the Insurrection Act. This complicated law amalgamates parts of its original enactment in 1792 and a half dozen amendments since. It authorizes the president to deploy military forces—both standing federal forces and National Guard—for a wide swath of missions and reasons. While state governors can request federal military aid, the decision to deploy the military rests with the president alone—regardless of a Governor’s wishes.

As my colleague Steve Vladeck has astutely noted, the use of federal military forces (either federalized National Guard or regular members of the armed forces) has been constrained largely by historical practice and political considerations. Indeed, as a political matter, deploying the military domestically for law enforcement purposes has proven to be highly unpopular throughout American history. It has also generated confusion. President George W. Bush, for example, refused to use the Insurrection Act after Hurricane Katrina without a specific request from the Louisiana Governor. The last time the Insurrection Act was invoked and active duty federal troops were deployed on American streets was almost 30 years ago, during the 1992 Los Angeles riots at the request of the California Governor.

As Professor John Dehn and I have argued in Just Security, active duty U.S. troops are generally trained in standing rules of engagement (SROE), not standing rules for use of force (SRUF). Standing rules for use of force applies to military support to law enforcement, which requires shifting from a more permissive, combat-centric “ROE mindset” to a more constrained, self-defense oriented “RUF mindset.” As my colleagues Professors Steve Dycus and Bill Banks noted in Soldiers on the Home Front, there is a steep learning curve in making this shift. Failure to do so can have deadly results.

In the wake of President Donald Trump’s threat to invoke the Insurrection Act this past summer, enduring uncertainty about what exactly it might permit, and fears that the military will be pulled into election unrest, it’s time for legal clarification.

The Insurrection Act provides a menu of three triggering authorities, all of which require a presidential determination and “proclamation to disperse.” In particular, the president has enormously broad authorities and discretion to deploy the military domestically under the Act’s third provision.

First, the president can invoke the Insurrection Act at the request of a state governor “whenever there is an insurrection in any State against its government and the President considers it necessary to use the armed forces to suppress the insurrection.”

Second, the president may invoke the Insurrection Act without a specific state request when he considers that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings.”

Third, and most problematically, the president may invoke the Insurrection Act to deploy military forces domestically without a state request or disruption of the courts, when in the president’s judgment there is interference with federal or state law—or, alarmingly, simply a conspiracy in opposition to federal law. This provision, found at 10 U.S.C. § 253, delegates to the president broad authority:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

This language (“shall take such measures as he considers necessary”) provides the president enormous discretion. Further, what, specifically, does “oppose or obstruct the execution of the law of the United States” or “impede the course of justice” mean? What activities might meet this threshold? How large does a “conspiracy” have to be? Is it a conspiracy that could trigger domestic deployment of the Marines if a handful of people conspire to violate federal law? That sounds ridiculous, but as written the statute provides few guidelines or guardrails. A Commander in Chief who disregards constitutional norms could treat 10 U.S.C. § 253 as a blank check for domestic military operations. This has broad implications for civil-military relations, our core principles of limited federal power, and of state, local, and civilian responsibility for law enforcement.

Further, if the president’s invocation of the Insurrection Act is challenged in court (the statute is silent on judicial review), courts may well defer to the president’s interpretation and judgment in applying the statute’s provisions. The president, after all, has been afforded broad national security deference in such cases—witness President Trump’s recent victories in Trump v. Hawaii and Trump v. Sierra Club. The Supreme Court previously allowed the Trump administration to continue construction of the U.S.-Mexico border wall in Trump v. Sierra Club, but just yesterday the Supreme Court granted cert on the lawsuit.

Finally, the Insurrection Act lacks a time-limit once invoked and does not envision a continual role for Congress through either notification or consultation. This is in stark contrast to timelines and reporting requirements for overseas military deployments.

Reinvigorate Congress’s Role in the Insurrection Act via Reporting & Accountability Procedures

To combat this longstanding and awesome delegation of authority, Congress should act. Following President Nixon’s use of emergency powers and the military, Congress held hearings and rewrote the body of law governing both national emergency declarations and presidential war powers. Ideally, Congress would do the same here, calling on a body of experts to look holistically at the law.

Action could take a variety of forms.

The most dramatic revision of the law could and should involve a wholesale repeal and replacement of the Insurrection Act that balances Congress’s critical role in day-to-day military matters while acknowledging the president’s constitutional authority to respond to bona fide emergencies. Congress should, for example, provide greater specificity on what “opposes or obstructs the executive of the laws of the United States” or “impedes the course of justice under those laws” means. It should precisely define insurrection, domestic violence, unlawful combination, or conspiracy for purposes of the statute. It should also make clear that exercise of this authority is affirmatively subject to judicial review. At the very least, pending wholesale replacement of the statute Congress should do three things.

First, Congress should mandate that the President report back to Congress after a set period of time* on the nature of the domestic military operation.

Second, Congress should require affirmative congressional authorization after a set number of days. This is what the president is already required to do in the War Powers Resolution for military deployments overseas. If we impose time limits for overseas military operations, shouldn’t we place similar legal guardrails for domestic military operations, where the civil liberties of the American people are most powerfully at stake? And indeed, I think the time limit should be shorter for this reason – 20 days, for example, rather than 60 as in the WPR.

Third, Congress should also broaden accountability beyond the President.

A new 10 U.S.C. § 256, added at the end of the existing statute, would do these three things, roughly mirror the War Power Resolution’s language, and read:

(a) Upon the declaration of an insurrection, domestic violence, unlawful combination, or conspiracy in accordance with 10 U.S.C. §§ 251-254, the President must make a written “Insurrection Act Report” (IAR) to Congress, justifying in detail the use of military forces and the estimated number of federal military forces involved. This report shall be made as soon as possible, but in no event more than 48 hours after the declaration is made.

(b) Prior to invoking authorities in 10 U.S.C. §§ 252-254, the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff all must certify that the State, territory, or District of Columbia is unable or unwilling to suppress the domestic violence, unlawful combination, or conspiracy.

(c) The President in every possible instance shall consult with Congress before introducing federal military forces domestically or into situations where the Insurrection Act may be invoked, and after every such introduction shall consult regularly with the Congress until such federal troops have been removed.

(d) Within twenty calendar days after an “Insurrection Act Report” is submitted or is required to be submitted, the President shall terminate any use of federal military forces domestically unless the Congress (1) has enacted a specific authorization for such use of the United States Armed Forces; (2) has extended by law such twenty-day period; (3) is unable to meet as a result of an emergency; or (4) the state Governor or chief executive of the territory or District of Columbia affirmatively requests that the federal military forces remain.

(e) “Federal military forces” includes members of the armed forces or National Guard forces deployed pursuant to the Insurrection Act, 10 U.S.C. §§ 251-254.

The rupture in longstanding civil-military norms requires us to look with fresh eyes at the President’s broad, Insurrection Act authorities to deploy military forces on American soil. This summer’s crisis in civil-military relations should be seen as a much-needed opportunity to improve accountability over the use of federal military forces domestically and breathe life into congressional oversight. After all, we have legal reporting and consultation requirements prior to the deployment of military forces overseas in overseas hostile environments—shouldn’t similar legal guardrails be put in place for domestic deployments?

Part II too follow


Boats
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O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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Old 10-21-2020, 11:56 AM
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Exclamation Part II - Domestic Military Ops - The Role of the National Guard

Part II - Domestic Military Ops - The Role of the National Guard
By: Mark Nevitt Just Security News - 10-21-20
Re: https://www.justsecurity.org/72988/g...-act-and-more/

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

In Good Governance Paper No. 6 (Part 1), I argued that we should reform the Insurrection Act, a critical law that provides broad authority to the president to deploy federal military forces on American soil. Specifically, we should reinvigorate Congress’ role in domestic military operations by placing new reporting and consultation requirements whenever the Insurrection Act is invoked. Beyond the Insurrection Act, several additional laws govern use of the military in the U.S. They include the Posse Comitatus Act, Section 502(f) of Title 32 of the U.S. Code, and laws governing military operations in the nation’s capital. All three are ripe for reexamination and are discussed in detail below.

1. Clarify the Posse Comitatus Act’s Scope & Applicability

The Insurrection Act is the most important statutory exception to the Posse Comitatus Act (PCA), the default statutory rule that the federal military does not generally engage in domestic law enforcement matters. As a textual matter, the PCA prevents federal (“title 10”) Army and Air Force personnel from serving in an active law enforcement capacity. As a regulatory matter, the Department of Defense (DoD) applies these PCA restrictions to the Navy and Marine Corps. Courts have interpreted the PCA to bind National Guard troops when on federal duty. The U.S. Coast Guard—which is organizationally part of the Department of Homeland Security for most operations—serves as the U.S.’s maritime law enforcer and remains free from the PCA’s restrictions. Also exempted from the PCA’s reach are the often–militarized civilian federal troops of the Departments of Justice and Homeland Security that appeared in combat gear on the streets of Portland and other cities this summer.

As I have argued elsewhere, the PCA (just 51 words) has taken on a certain talismanic status within the national security community and is in need of modernization and clarification. This is somewhat remarkable and unintended, particularly in light of the PCA’s ignoble origins. Passed in 1878, the PCA and the removal of federal military forces from the Post-Civil War South—troops that were in place to protect the rights and liberties of recently freed slaves—marked the end of Reconstruction and a new era of oppression and violence targeting African Americans.

Today, the military’s precise role in domestic military operations is governed by an increasingly convoluted array of exceptions, judicial holdings, and Department of Defense guidance on what constitutes a PCA violation. Last revised in 1947 in conjunction with the National Security Act that created the Air Force and our modern national security bureaucracy, the PCA’s day-to-day application is more heavily governed by regulations and court opinions than by the statute itself. Department of Defense regulations, for example, cite 14 specific statutes that authorize the armed forces to participate directly in law enforcement matters. And even where it does squarely apply, the PCA only prevents federal military forces from exercising a direct role in law enforcement, such as making arrests and searching or seizing people or property. The PCA does not restrict federal military forces from providing indirect assistance, such as providing logistical support to local law enforcement entities. Further, federal military forces may directly participate in law enforcement matters when performed primarily for a “military purpose.” Unfortunately, the PCA itself does not provide a bright line between direct and indirect assistance, much less define “military purpose” or say anything about militarized federal civilian troops.

Creation of a new branch of the armed forces (the Space Force), the continual militarization of federal civilian personnel, and persistent uncertainty about how PCA works makes this the right moment for Congress to modernize the statute. I recommend that the PCA be updated to expressly include all branches of the armed forces—the Army, Air Force, Marine Corps, Navy, and Space Force. The Coast Guard and state National Guard forces reporting to their respective governors should remain exempt as a statutory matter. Employment of the District of Columbia National Guard is truly unique and is discussed below. Similar to my Insurrection Act proposals, we should also require notification whenever a PCA exception is used.

The Posse Comitatus Act should be amended at 18 U.S.C. § 1385 (a)-(c) to read as follows (new language in italics):

(a) Whoever, except in cases and under circumstances authorized by the Constitution or Act of Congress, willfully uses any part of the Army, Navy (to include Marine Corps), Air Force, or Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. Any member of the Army, Navy, Air Force, Marine Corps, or Space Force is prohibited from directly participating in a search, seizure, arrest, detention, or similar activity unless participation in such activity is otherwise authorized by Congress.

(b) Within 48 hours, anyone that invokes an exception to the Posse Comitatus Act must notify the Secretary of Defense (or designee) and the Senate and House Armed Services Committee, addressing the legal basis for the use of military forces.

(c) This section does not apply to the Coast Guard, state National Guard forces operating under the control of their respective state Governors, or military law enforcement forces on federal military installations.

In addition, the PCA should clarify what is meant, exactly, by both “executing the laws” and “military purpose.” For non-military federal law enforcement, Congress should mandate consistent uniform regulations for each federal law enforcement agency and require formal notification procedures to the state and local authorities prior to deploying. This is analogous to the amendment to the Insurrection Act proposed in Good Governance Paper No. 6 (Part 1) and is consistent with Defense Department uniform regulations.

2. Clarify What is Meant by “Other Duty” in Section 502 (f)

Congress should clarify 32 U.S.C. § 502(f), a statute titled “required drills and field exercises.” This provision was last revised in the aftermath of 9/11 to facilitate the National Guard responding to ongoing terrorist threats and future attacks. As my colleague (and former Army JAG) Professor John Dehn stated, “Nobody writing this new provision likely viewed it as ever becoming some kind of workaround for the Insurrection Act.” But that was exactly what occurred this summer when this fairly obscure provision was repurposed by the U.S. Department of Justice as an Insurrection Act loophole by Attorney General Barr.

Specifically, the statute states that a member of the National Guard may “be ordered to perform training or other duty” under Secretary of the Army regulations. This may include “support of operations undertaken by the member’s unit at the request of the President or Secretary of Defense.” What does “other duty” mean? The statute does not define it, but we do know that the Justice Department construed it as a back-door mechanism to deploy the National Guard under the direction of the President. This occurred without the formal federalization of the Guard that the Constitution envisions and without invoking the Insurrection Act. This loophole should be closed. Congress should clarify when, precisely, this authority can be invoked and what is expressly meant by “other duty.”

A new 32 U.S.C. 502 (f)(1)(B) should read:

“other duty” is defined as support to federal defense support to civil authorities. It does not include use of force, nor direct support to or participation in law enforcement. Any military use of force or direct support to law enforcement must comply with the Insurrection Act at 10 U.S.C. §§ 251-255, Posse Comitatus Act, 18 U.S.C. § 1385, and applicable Department of Defense regulations and instructions.

3. Clarify Authority for Military Operations in the Nation’s Capital

On June 1 in Lafayette Square, the world watched in horror as federal Park Police and National Guard troops forcibly cleared out protestors, and military helicopters engaged in aggressive maneuvers to intimidate peaceful protestors elsewhere in the capital of the United States of America. Events in the nation’s capital exposed surprisingly murky legal authorities governing military operations in the District of Columbia. Several problems stand out.

First, unlike state governors, the elected chief executive of the District of Columbia, the Mayor of the District of Columbia, has no direct command authority over the D.C. National Guard (DCNG). The DCNG is a true military anomaly: it resides in a federal district governed by a mayor and city council, but under the D.C. Code the President of the United States is “Commander-in-Chief of the militia of the District of Columbia,” whether or not it has been federalized. Under a 1969 Executive Order and longstanding memorandum, the Secretary of the Army and Commanding General of the DCNG exercise operational control over its Army and Air Force elements.

Second, it remains unclear who has the authority to bring outside state National Guards into the District of Columbia or to any state. This uncertainty was recently made clear by the D.C. attorney general when over 3,800 military troops from 11 states arrived in the District following the death of George Floyd. Nearly all of these troops hailed from states with Republican governors. And they entered the District without the Mayor’s permission. The U.S. Attorney General, William Barr, justified this based upon a relatively obscure provision of the U.S. Code, discussed above.

As the senior elected government official in the nation’s capital (with a population of over 700,000 people – more than two states), the Mayor should have a more substantive legal role in both DCNG operations and determining when state National Guards from outside the area are welcome. Military operations in D.C. were the recent subject of congressional hearings and a D.C. Guard Army Major whistleblower complaint. Congress should follow up on these hearings to provide more explicit guidance on the legality and chain of command of military operations in D.C.

Under D.C. Code § 49-409 as passed by Congress, the President of the United States is at all times the Commander-in-Chief of “the militia of the District of Columbia.” This law should be modified as follows:

The Mayor of the District of Columbia is at all times the Commander in Chief of the District of Columbia National Guard (DCNG) when on non-federal duty. In that capacity, she acts with commensurate authorities of a state Governor under Title 32, U.S. Code.

In addition, Congress should more generally clarify the role of state Governors (or Mayor in the case of DC) prior to any outside National Guard performing duty in her jurisdiction. Again, the law is unclear on the authority for outside military units to operate in any state, territory, or the District of Columbia. This is similar to a provision proposed by Del. Eleanor Holmes Norton (D-DC). I propose a new 32 U.S.C. § 502 (g):

Members of state National Guards may perform official functions—either in a law enforcement or support to civil authorities capacity—on non-federal duty within other states, territories or the District of Columbia at the request and invitation of the chief executive of that jurisdiction.

***

The United States has had strong traditions of civilian control of the military and exclusion of the military from engaging in law enforcement since the nation’s founding. The Trump Administration’s threatened and actual use of the military showcase the need to rely less on historical norms and more on legal authority. As my colleague Eugene Fidell has just noted for Just Security, the current Administration has ruptured longstanding civil-military norms, and military personnel may be drawn into situations for which there is simply no precedent. The four legal clarifications about domestic use of the military I have discussed in this essay and my prior essay are a good place for Congress to start.

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The Posse Comitatus Act (wow never knew we had that law)

Also this note: b) Within 48 hours, anyone that invokes an exception to the Posse Comitatus Act must notify the Secretary of Defense (or designee) and the Senate and House Armed Services Committee, addressing the legal basis for the use of military forces.

But they can call in: (With permission from - see below;

(c) This section does not apply to the Coast Guard, state National Guard forces operating under the control of their respective state Governors, or military law enforcement forces on federal military installations.
__________________
Boats

O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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