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What’s the Military’s Role in a Contested Election, with Mark Nevitt

Oct 27, 2020

We are on the eve of what could be a contentious and disputed election, and a turbulent transition. Given the possibility that we will not know who the winner is for some time after November 3, there are increased concerns about domestic disturbances and violence.

This is prompting many to openly discussthe military’s role in such a scenario. The Military Times recently published an article titledHow the president could invoke martial law.” Several legal scholars have also weighed inonthe issuein the past few months.

One is Mark Nevitt, a professor of constitutional law, national security law, environmental law, and climate change law at Syracuse University College of Law. He has a solid military background as well. He started his career as a Naval aviator flying the S-3 Viking; he flew over a thousand hours and had approximately 300 carrier landings. When the Navy retired the S-3s, it sent Mark to Georgetown Law. He spent the rest of his career as a Navy judge advocate general before retiring in 2017 to join academia.

The following is a lightly edited transcript, created by using Journalist Studio.

DAN GRAZIER, HOST: Professor Nevitt, thank you for taking time out of your undoubtedly busy

schedule to speak today.

MARK NEVITT: Well, thanks for having me, Dan.

GRAZIER: I know you’re on a tight schedule. So why don't we just jump right into this. After reading all of your recent writings, I’ve learned a lot about the domestic use of the military. So if you could just please describe what authority does the president have to use military

force within the United States?

NEVITT: Sure, happy to answer that. And I should also highlight the writings that you’re mentioning are out this week via NYU’s Just Security blog. So if your listeners, maybe you can put that in your show notes, if your listeners want to look at that in text form when I walk through this as well. But the most important one for military use that the president as commander-in-chief has as a legal authority is the Insurrection Act, which has a basis in the Constitution, constitutional law, and has been on the books in some format since 1792.

It was relied upon actually when George Washington was president and he took the field in the Whiskey Rebellion during his presidency. Actually, the last time a commander-in-chief actually took the field. So for over 200 years Congress has essentially delegated broad authority to the president to deploy the military domestically, and it’s somewhat of a complicated law. It’s changed and transformed over time, but essentially authorizes the military—rather, the president—to deploy military forces both standing federal forces, federal military forces and

potentially National Guard for a wide variety of reasons, in a wide variety of missions.

And so there’s a few, just three, triggering authorities, Dan, that I’ll sort of mention. They’re all placed in statute at 10 U.S. Code 251, 252, and 253. So the first authority is at 251 and that’s when the president invokes the Insurrection Act at the specific request of a legislature or a state governor, whenever essentially that state needs help from the federal government to quell an insurrection or quell the disturbance. And we saw that used most recently in 1992. That was when the Los Angeles riots happens and the governor of California, Governor Wilson, actually requested President Bush at the time to bring to literally call in the Marines and Army and the Marine Corps was nearby and call in the Army to help quell the riots.

It’s important, I think, for listeners to note that that was the last time the Insurrection Act was actually invoked, was using this 251 authority back in 1992. It has not been specifically involved or used since that time period despite having no shortage of disturbances in this country: Katrina, Baltimore, Ferguson, the unrest from this last summer. So it falls in sort of the big deal category, Dan, when this authority is invoked.

The other two issues or authorities on an Insurrection Act are 252 and 253. And that’s when the president may invoke the Insurrection Act without a specific state request. 252 has some legal provisions, but essentially when it makes it impracticable for the United States to enforce the laws of the United States by the ordinary course of judicial proceedings. So think of with the courthouses were closed the normal flow of the criminal justice system and the judicial system is completely broken down, the president can use this 252 authority to call in the Marines or the Army to a specific situation.

253 is the broadest authority, which essentially, the president can make a determination to use the Insurrection Act whenever he or she thinks that there is an “insurrection, domestic violence, unlawful combination, or conspiracy.” That’s just from the text of the statute and there’s a couple provisions where he or she believes the president that this opposes or

obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

I think your readers some of them may be lawyers. Some of them may not be lawyers, but that's fairly open-ended under 253 on when the president could use that. So those are the three key provisions when the presidents and sort of I'll just use the term, “Call in the Marines,” but it could be Army, Air Force, Navy, Title 10 federal military forces, the last one being sort of the broadest authority. Prior to using this there is a requirement under the statute that there’s a proclamation to disperse and that’s made public to every person in the area prior to the military actually coming in.

GRAZIER: Okay, interesting. Well, what are some of the provisions of the law that would

limit the president’s authority to call out the military?

NEVITT: So in terms of limiting. Listeners probably already know this but just to highlight this: federal Title 10 military forces, that is the bulk of the DoD active duty military. And for the most part, you know, they are not doing law enforcement matters, right? They have law enforcement. There are certain people who are military police who provide law

enforcement on installations.

Most of the law enforcement in the military is done at the National Guard level, and National Guard normally reports to the state governor. The Insurrection Act is an example where the president could potentially federalize a local or state National Guard so that National Guard no longer reported to the state governor, but now reports to the president as commander-in-chief.

So that’s a long way to say it terms of limiting there’s sort of built-in, institutional day-to-day limitations, based upon who you are in the military. And then if you are to invoke the Insurrection Act, you know, I think there’s a couple of limitations. One is just the statute itself.

Is this a bona fide insurrection under the plain reading of the law? The law itself is silent on judicial review, but that would be challenged, I think, in court.

I think the most important, frankly, constraint is not a legal constraint. It’s more of a political constraint which is because Insurrection Act is so rarely used and they get so much

Attention, just the attention the summer about its potential of being used. Some people think that Insurrection Act was actually invoked, it wasn’t. That that is a constraining norm.

And so the example I like to use is Hurricane Katrina. There was discussion in Hurricane Katrina of President George W. Bush calling in and invoking an Insurrection Act, but he wasn’t

going to do it unless Governor Blanco of Louisiana requested it because of the political considerations associated with that. So the upshot is that General Honoré, the three-star Louisiana National Guard, did a pretty good job, an outstanding job, I think, in hindsight, on restoring order to the city. And that did not require an Insurrection Act invocation.

GRAZIER: Okay. Well I think most people are aware that in the states the governors are

the commander-in-chief of the National Guard, but DC is an exception. Can you explain the significance of that?

NEVITT: So DC truly is an exception, Dan. The president is actually the commander-in-chief of

the District of Columbia National Guard and that’s just unique within military setup. And so, it’s a bit complicated on how the law works, but essentially both the secretary of the Army and the head of the DC National Guard report to the president under existing law. And so that’s

something I actually even argued, that we should probably clarify in statute, because the mayor of the District of Columbia, you know, normally has day-to-day authority over just normal, you know, National Guard matters. But the president is ultimately the commander-in-chief of the DC National Guard.

GRAZIER: Okay, very good. So another law that is often mentioned in DC quite regularly

these days is Posse Comitatus. Could you please explain what Posse Comitatus is? And specifically, can you talk about what forces that law encompasses and what forces are not covered by the law?

NEVITT: Sure. I'm happy to do that. The Insurrection Act is you know, the most powerful—think of it as an authority that the president could use to employ the military domestically in state and local areas. Posse Comitatus, think of that as a restrictive statute that restricts the president’s use of the military for day-to-day law enforcement matters, and it’s a very short statute, Dan. So I think I'll just read it out, and then I’ll talk you through a little bit.

GRAZIER: Sure.

NEVITT: It’s a criminal law. It’s at 18 US Code 1385, which is unique in its own right. And the Posse Comitatus Act, unlike the Insurrection Act, was actually passed following the Civil War.

It’s got a rather fascinating beginning in that it was passed in 1878, which coincided with the end of Reconstruction, where federal military forces were used to enforce civil rights laws in the South. Many, many of those potential military forces were former Union Soldiers. Some of them were African-American and they’re in the South and you can imagine that was quite controversial, having this authority.

So the Posse Comitatus Act has a rather kind of ignoble history beginning in 1878 and that once the Posse Comitatus Act was passed, many of these federal troops went further north and then really some dark times for civil rights in the South.

And that’s kind of the one of the twists, if I can just share with your readers briefly, is that use of federal military forces at times has actually upheld federal civil rights laws and protected citizens when the state or locality is not doing that. You saw that with Eisenhower or

Kennedy who would actually use the Insurrection Act to uphold civil rights laws in Alabama and Arkansas and parts of the Deep South during the ‘50s and ‘60s. So we view, I think, the use of the military forces through a 2020 lens. But ultimately, you know, that those have the

military has been sort of, has stabilized and enforced and protected minority rights.

But back to the Posse Comitatus Act. I’m sorry for that bit of a tangent, but I think it’s important to put that into context. So the upshot is one strange term, Posse Comitatus, which we’re stuck

with from I think the 19th century when there was, you know, there wasn’t a lot of, you know, formal law enforcement, organized law enforcement when the actually the local sheriff would call upon all able-bodied men in Colorado or Montana, and that could be a military base that was operating in the Far West to help you form a posse and enforce law. So we’re kind of stuck with this bizarre term of Posse Comitatus.

But your point, Dan, is that it only applies as a statutory matter to the Army and the Air Force, as a statutory matter. The Marine Corps isn’t in there, nor is the Navy, nor is the Coast Guard, nor is there any discussion of the National Guard. So the Posse Comitatus only applies to Army and the Air Force, but by Department of Defense regulation, the military has effectively applied those restrictions on use of the Army and Air Force to the Marine Corps, Navy, but not the Coast Guard. It is sort of a separate entity as an armed forces branch.

The last thing I’ll say about the Posse Comitatus Act, and I’ll answer any question you might have, is it says this is the blanket rule, may not be used as a Posse Comitatus to enforce

essentially domestic law enforcement except authorized by the Constitution or act of Congress.

So unless you can point to a specific act, and the most important act is the Insurrection Act, then that’s the blanket rule, you know, or specific provision in the Constitution. So that’s sort of the Posse Comitatus Act 101. It’s got a really interesting history. It’s not exactly a proud history, frankly, and there’s a difference between statutes and regulations and who it applies.

GRAZIER: And in the latest pieceyou published you talk about how it might be time to update the Posse Comitatus Act to enshrine in law some of the regulations that have been put in place so that the Act will apply to all military forces. Can you explain why that might be necessary?

NEVITT: Sure. So, you know, so this is a difference between law and regulation, you know, DOD, the Department of Defense, applies the Posse Comitatus Act to the Marine Corps and the Navy. But regulations can change fairly easily, right, depending on who is Secretary Defense and who has that authority issue that particular regulation. The last time the Posse Comitatus Act was modified, if I remember this correctly, was 1947 with the creation of the Air Force. So we have a new Space Force. I know it’s a subject of a Netflix special and people sort of chuckle when they hear Space Force, but you know, Space Force, is you know, born out of the Air Force. And if so, why not take a look at the statute and see what it applies to, what it does not apply to? Theoretically, Space Force will have some capacity to be involved in law enforcement

missions. So, you know, I argue that we should just do some statutory clean up on a couple of levels. One is, you know apply it to the Navy and the Marine Corps, apply [it] to the Army and Air Force as it normally is, and apply it to the Space Force.

And then I want to specifically define what can’t be done. It’s not a very long statute. So I

argue that we should have a provision that any member of the Army, Navy, Air Force, Marine Corps, Space Force is prohibited from directly participating in a search, seizure, arrest, detention, or similar activity as a general matter.

And I also think frankly the Posse Comitatus Act should be clarified on what it doesn’t apply to.

You kind of have to look through all the—it’s complicated fairly quickly on what branch of the military service and so explicitly not applying to the Coast Guard. The Coast Guard is unique and that is the maritime law enforcement entity. They have unique authorities. State National Guard—State National Guard should not be expressly part of Posse Comitatus Act prohibition.

So that’s what I think, that it’s time, with the Space Force. It needs some statutory clean up.

GRAZIER: Well, that makes sense. So what are some of the circumstances that you think would justify the invocation of the Insurrection Act and deploying the military in a domestic capacity?

NEVITT: So I think that you have to go to the statute itself and you have to have some sort of massive breakdown in civil order where the local police force and local authorities have completely lost the capacity to safeguard the citizens. Provide, you know some sort of element of safety to the people. And the Los Angeles riots I think is a good example of that where there was widespread, tragic homicides, tragic deaths in the Los Angeles riots.

I think ideally that the local governor or legislature is requesting this authority. I think that makes it seem less heavy-handed with the local authority is saying we need help from the outside federal government to control this insurrection. I think that provides a certain veil

of legitimacy that is there.

But you know, if you can imagine that the Los Angeles riots happens and they continued and the governor just would not take steps to request outside military troops, then you can imagine a scenario where the president would come in and make the determination under either 10 USC 252 or 253 without a specific request.

GRAZIER: Right. Well with election night right around the corner, and of course no reasonable person wants to see this, but what sort of a role do you think the military could play in case of domestic disturbance around that important night?

NEVITT: So I think that there’s been some discussion about election fraud and legitimacy and other concerns about the election, which is, gosh, less than two weeks away. I ultimately don’t see a very strong role at this time for the military, particularly the title 10 federal military forces, for a couple of reasons.

I think that the state National Guard’s operating on their state active duty status. They’re already being activated now to provide some level of election security and some preparing for potential unrest. But you would have to have sort of a pretty dark, stark massive unrest for I think the federal military forces to be involved.

I think that right now much of what the federal military forces is doing is sort of under the radar in the sense of they’re providing what they normally do in protecting the homeland, defending the homeland, providing self-defense, doing cyber security for the election. I think the Cyber command did quite a good job by all accounts in 2018.

So there was one authority that we haven’t talked about, Dan, which was used this summer, which is a 32 502(f) authority, which that was used in a sort of an innovative manner by the attorney general and the president to bring in state National Guards. But you know the

upshot is I don’t see at this time a military role. I think politically it would be very, very difficult and particularly if it was done without the request of a state governor or a legislature.

All right, just one thing I’ll add to that is that institutionally the military is quite nonpartisan, apolitical, so there are historical norms associated with this. I know civilian control of the military, I think, means a few things. One is certainly that the federal military forces, title 10 forces, report to the commander-in-chief under the chain of command, but they’re also civilian control of the military vis-a-vis Congress and just the oath that’s taken is in the Constitution which lays out how elections are done and when the president will stay in office or would potentially leave office. So I think that those norms can’t be dismissed outside the legal requirements.

GRAZIER: Right and I agree. And I think that’s a point that can’t be made often enough, about the nonpartisan nature of the military. You and I were both military officers, and I know that I was certainly reminded of that quite often in the course of my military education. So that is a key point for all Americans to really understand. But with that in mind, and God forbid there is a scenario where the military is called out over the next couple of weeks, how would you explain to the public to think about how military forces are used? How would citizens be able to tell if the use of force is legitimate or if it is an abuse of power?

NEVITT: Sure, and I can talk about sort of standing rules of engagement versus rules use of force now, I can wait for that. Whatever you would like to do, Dan.

GRAZIER: Sure. Yeah, please. That is another great point. You wrote about that in your latest piece about the standard rules of engagement and the standard use of force. So please,

if you can explain what those two concepts are, how they differ, and how they apply in this context?

NEVITT: So this sort of came into the news a little bit over the summer. I’m laughing, kind of in a little bit in horror, actually, when the president tweeted out that if you loot you shoot, or that looting justifies shooting, which is just not what the standing rules for the use of force say. And so most military forces, Dan, when you were a Marine, and every Marine is a rifleman, they are drilled home via training, what’s called standing rules of engagement, ROE, that is more designed for an operational environment overseas and more sort of bread-and-butter traditional military missions.

The standing rules for use of force are different and that is what would be a used in a domestic civil unrest situation, by police officers, by National Guard, by federal military forces that were

being used for a law enforcement capacity. Those rules are generally less permissive than standing rules of engagement, and as a sort of a mindset shift that has to take place, which can be very, very delicate. There were cases in the Los Angeles riots where the Marine Corps was working with National Guard members or LAPD. And when you say cover me in SROE context, that means maybe potentially open fire on someone. Cover me in an SRUF [Standing Rules for the Use of Force] context means something quite different, which is essentially: don’t take action, but keep on the lookout. So I think is an important shift that has to take place when that occurs, which I think just adds a bit of risk to this because you have to go for more of an ROE mindset to a more constrained, self-defense oriented RUF mindset.

And I think, Dan, you can tell me if I’m not correct here, but the military gets much more ROE training than they do RUF training. Of course would get rough training before they were in a domestic situation, but that would be quite a shift from a more ROE mindset.

Just on the election itself. Just getting back to the importance, just political norms, and I’m talking about the law a lot today too but I think that you can’t divorce the law and the oath that the military members take to the Constitution, which is the highest law of the land, to just this rich tradition that we’ve had in this country since 1800. Scholars have reported that to be or call that the Revolution of 1800 when you had a peaceful transfer of power between two different parties. The Constitution is pretty explicit on what happens and what the process is for an election, and also says that on noon on the 20th day of January the existing president stays on if he has the votes in the Electoral College or on noon he leaves or she leaves if he or she doesn’t have those votes.

I think military members, maybe I’m really putting too much faith here, but they certainly have an oath to the Constitution that is done on a commissioning, upon enlistment, and every promotion thereafter, and that’s the highest law of the land and it’s pretty explicit about what happens and what doesn’t happen in an election.

GRAZIER: You are certainly correct about the kind of training my Marines and I received both before and during my overseas deployments. I received many briefings about the Rules of Engagement, but there was always a heavy emphasis in every one of those briefings about the need to protect civilians in everything that we did. That’s just part of the tradition, and really the institutional culture of the military. Now, obviously there have been some really horrible exceptions when individuals did not uphold that tradition, but they are the exception. I mean, hopefully that helps quell some concerns that may be out there. Professor Nevitt, that’s about all the questions I have for you. If you have any parting thoughts that you want to add, the floor is yours.

NEVITT: Thank you, Dan, for having me and I would just offer that the laws are there. I think there is a long-standing respect for law, respect for the rule of law within the military. Certainly, we live in very partisan times, but we’ve always—it’s always been sort of a very partisan time in this country. So I have faith that this will be a peaceful election.

I think that the Constitution and the laws prescribed procedures that’ll be used and when you layer that on top of just long-standing historical norms that we can turn to, I’m fairly optimistic that despite some concerns, bona fide concerns potentially, about America, coronavirus, this pandemic. But I’m fairly optimistic that we’ll have a safe, peaceful election that will include President Trump being the current commander-in-chief or we’ll have a peaceful transfer of power, which we’ve had since 1800.

GRAZIER: Yeah that’s well said. Well, thank you very much, Professor Nesbitt, and for all of you out there, that’s it for this time.

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