From Washington DC, Australian lawyer Claire McMullen looks at the legality of using American troops against the people.
AS TWO VIRUSES sweep the United States – the pandemic COVID-19 and the deadly contagion of racial violence – President Donald Trump is parading himself as “the law and order president”.
On Monday evening, Trump declared from the White House Rose Garden:
“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.”
Only a day later, the U.S. Defence Secretary Mark Esper and former Pentagon officials publicly opposed the president’s threat to use the U.S. military to respond to the unrest.
Esper told Pentagon reporters:
“I say this not only as the Secretary of Defence, but also as a former soldier and a former member of the National Guard, the option to use active-duty forces in a law enforcement role should only be used as a matter of last resort, and only in the most urgent and dire situations. We are not in one of those situations now.”
Reportedly, his remarks have not been well received inside the White House.
President Trump ignited a national debate on this issue in his defiant speech on Monday evening. As he spoke, the Secret Service and Washington D.C. police responsible for protecting the White House unleashed tear gas and rubber bullets on unsuspecting demonstrators in Lafayette Park across from Trump and his entourage.
Australian television cameraman Tim Myers was struck by a police shield and punched. Channel Seven reporter Amelia Brace was hit by a rubber bullet and both were subjected to the tear gas fired into the crowd.
DC Mayor Muriel Bowser considers it “shameful” that the federal police used force against American people before our 7 PM curfew had even taken effect.
Senator Kamala Harris, the Californian Democrat and a potential future running mate of former Vice President Joe Biden, was first to tweet:
‘Donald Trump just tear-gassed peaceful protesters for a photo op.’
In a choreographed show right out of the president’s reality television playbook, Trump strode through the White House gates and led a gaggle of white officials and nervous security forces to the historic St John’s Episcopal Church for a photo opportunity. Waving a borrowed Bible, he gave his political base a picture for their placards, a last desperate attempt to draw on divine authority, where thousands of American people rally against him.
As night fell, a high wall was being erected around the outskirts of Lafayette Park, the traditional gathering place for protestors through numerous American presidencies. Military police joined Washington local law enforcers in lines of helmeted warriors with shields blocking citizen access to the White House precinct. Helicopters hovered deafeningly low, their vibrations sending people in city apartments running to their windows and balconies.
After almost a year in the “home of the brave, land of the free”, I am witnessing another pivotal moment in America’s COVID-19 capital. The devastation of the pandemic with some 105,000 dead, the desperation of 40 million unemployed and a vastly disproportionate toll on African Americans has left many people angry, exhausted and looking for leadership. The chilling murder of African American man George Floyd under the knee of a Minnesota police officer and involving three other officers has created national outrage in an unprecedented number of American cities.
From the Rose Garden, the president did not address the untreated racism and seemingly endless list of black deaths in custody plaguing the nation. Instead, he was quick to label those demonstrating for civil rights as “domestic terrorists” and threatened to “dominate the streets” with “thousands and thousands of heavily armed soldiers”.
Is this what American democracy has come to or are we now experiencing a dictatorship? Is it bluff from an American leader mimicking the strong-arm approach of his autocratic “friends” or an ominous warning that there is a long summer of violence ahead? Most importantly, is it legal for the U.S. president to deploy military forces against American people?
In extreme cases, yes.
Usually the Civil War-era Posse Comitatus Act 1878 restricts the circumstances in which federal troops can be used for domestic law enforcement activities. State governors can request federal military assistance in times of emergency but usually prefer to call-up the National Guard where required.
Trump has been calling on state governors, such as New York’s Andrew Cuomo, to ‘accept [his] offer of a dominating national guard’. To date, no governor has requested military help from President Trump to curb this civil unrest.
Instead, as commander in chief, the president now threatens to invoke a 213-year-old law, the Insurrection Act, that grants him the authority to deploy U.S. forces in American cities and states to suppress a domestic insurrection that hinders, opposes or obstructs the normal enforcement of the law.
In the capital, the president can legally dispatch the army because the District of Columbia does not have the rights and powers of American states.
New York’s Governor Cuomo told CNN that he was “shocked at the force they used to move the protesters”.
In a tweet, Cuomo wrote:
He used the military to push out a peaceful protest so he could have a photo op at a church.
It's all just a reality TV show for this president.
In what is unlikely to be a coincidence, it was Trump’s Attorney General, William Barr, who led the Justice Department’s push back in 1992 against the outrage over the infamous police bashing of Rodney King in Los Angeles, the last time the Insurrection Act was invoked. This has not escaped the attention of the president’s leading political opponents who regard this use of an executive loophole as consistent with Barr’s expansive view of presidential power.
Within the Pentagon, there is growing anxiety and clear attempts to de-escalate the president’s threat to deploy the army against the American people. In addition to the Defence Secretary’s opposition, a bevy of former Defence officials are publicly opposing the use of the U.S. military in these circumstances.Former chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, publicly stated:
‘I cannot remain silent. Our fellow citizens are not the enemy, and must never become so.’
Former president Barak Obama and 2020 presidential contender, former Vice President Joe Biden, both have appealed for calm. Obama was very clear in his remark that it is “a handful of people” violently rioting and these people should “be treated as criminals”.
While there is a question as to whether Trump’s invocation of the Insurrection Act is legally warranted to quell this unrest, University of Texas Law Professor Robert Chesney said a successful legal challenge is “very unlikely”. The Judicial Branch has historically been reluctant to contradict a president’s military decisions.
By engaging in a macho arm wrestle with the state governors, Trump’s tactic appears to hinge less on a necessity to safeguard the law and more on his personal instinct for grandiose executive action. Over the course of the Trump presidency, executive authority has been deployed in ways that arguably threaten the very foundations of the rule of law. Usually, in a democracy, executive privilege is intended to protect the public good. What good can come from deploying the U.S. army against the American people?
There is no evidence the president is acting unlawfully here. The course of action, however, coupled with Trump’s demeaning language indicates that he does not see those peacefully demonstrating for civil rights as “American people”.
“America is founded upon the rule of law,” President Trump said in his Rose Garden address. America was also founded upon slavery. Since the first slave ship arrived in 1619, African Americans have been denied equal access to justice. Black people were bought and sold on the National Mall I have walked along countless times this past year. Many of Washington DC’s iconic buildings, including the White House, were built by slaves.
Now as I walk the city streets, choppers circling overhead, I only hear the words, “I can’t breathe” chanted over and over in this nation’s painful struggle for equality.
Claire McMullen is a lawyer and writer who recently completed a Masters in International Legal Studies at Georgetown University Law School in Washington DC.
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