Except in the rare case of mass armed insurrection or severe civil strife, troops under federal command are simply not permitted to be deployed against civilians by reason of a statute directed at U.S. ground forces: “The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878, by President Rutherford B. Hayes which limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States. The Act was passed as an amendment to an army appropriation bill following the end of Reconstruction and was updated in 1956 and 1981…
“The Act does not prevent the Army National Guard or the Air National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor.” Wikipedia. But that did not stop Donald Trump last Spring from ordering U.S. Park Police and National Guard troops under federal command, with the use of tear gas, to clear away a peaceful protest in Lafayette Park (near the White House), pushing them away for no apparent reason (pictured above). The reason: the President wanted to clear a path to a nearby Episcopal church for a photo op of his holding a Bible while standing in front of a house of worship. Why were ground troops deployed to counter peaceful civilians? We really never got a straight answer to that question.
The threat of using federal troops to enforce Donald Trump’s continuance in office after his thorough defeat in November became a hot topic of discussion until the January 20th inauguration of Joseph Biden as President. Trump was, after all, Commander in Chief of all U.S. military forces. Would troops rally under a direct order from the President? Would general officers be required to buy into the President’s baseless statements that the election was fraudulent and that he was the rightful victor? Would the Posse Comitatus Act require Army flag officers to resist such a presidential directive? Or was the mere claim of fraudulent voting sufficient civilian unrest to justify Army forces from stepping in to hold Trump in office? Fortunately, that confrontation did not take place, and soon the nation was distracted by the January 6th assault on the Capitol.
In several states, with the focus now on Arizona, Republicans have been handed the November ballots for their own recount. In April. They will undoubtedly cull through those voting records to determine which ballots they choose to throw out – for fabricated reasons that escaped the vote counters (and even the GOP election officials and governors who certified the results) – enough Biden ballots to support the ex-President’s “big lie.” Effectively, state officials are handing these ballots to conspiracy theorists to make a determination of legitimacy… which I will predict will instead result in the rejection of just enough ballots to support Trump.
With the majority of GOP Senators and House Representatives continuing to support the notion of widespread election fraud – despite a uniform set of over 60 judicial rulings (many from Trump-appointed judges) rejecting that theory for a complete lack of evidence – and as many red states are busy reconfiguring their voting laws to exclude as many likely categories of traditional Democratic voters as possible, the rumblings of insurrection are growing louder.
If enough right-wing diehards, with well-armed and trained militia in tow, believe the manufactured evidence that is in process in support of “Trump was elected” and lost only because of the “big steal,” will that provoke the sporadic violence that could easily escalated into another civil war? And if so, what role would the U.S. military (with more than a few soldiers believing that Trump won the November election) play in quelling or joining in the insurrection? Or is this non-sensical speculation of events that will never happen? Are the exceptions to the Posse Comitatus Act broad enough for federally controlled ground forces to rally? To whose orders?
Oh, and there was this moment in time early during the rising tide of COVID-19 infections, when state and federal officials feared the worst. Writing for the April 24th Los Angeles Times, journalist Paul Pringle and Alene Tchekmedyian stumbled across this story: “In March of last year, California National Guard members awaited orders from Sacramento headquarters to make preparations for any civil unrest that might arise from the outbreak of the coronavirus… The members expected directives to ready ground troops to help state and local authorities respond to disturbances triggered by resistance to stay-at-home rules or panic over empty store shelves.
“But then came an unusual order: The air branch of the Guard was told to place an F-15C fighter jet on an alert status for a possible domestic mission, according to four Guard sources with direct knowledge of the matter… Those sources said the order didn’t spell out the mission but, given the aircraft’s limitations, they understood it to mean the plane could be deployed to terrify and disperse protesters by flying low over them at window-rattling speeds, with its afterburners streaming columns of flames.
“Fighter jets have occasionally been used that way in combat zones in Iraq and Afghanistan, they said… Deploying an F-15C, an air-to-air combat jet based at the Guard’s 144th Fighter Wing in Fresno, to frighten demonstrators in this country would have been an inappropriate use of the military against U.S. civilians, the sources said…
“Deploying an F-15C, an air-to-air combat jet based at the Guard’s 144th Fighter Wing in Fresno, to frighten demonstrators in this country would have been an inappropriate use of the military against U.S. civilians, the sources said.
“They said the jet was also placed on an alert status — fueled and ready for takeoff — for possible responses to protests over the murder of George Floyd by a police officer and to any unrest sparked by the Nov. 3 presidential election… ‘It would have been a completely illegal order that disgraced the military,’ one source said. ‘It could look like we’re threatening civilians.’
“‘That’s something that would happen in the Soviet Union,’ said a second of The Times’ sources, who all spoke on condition of anonymity because they feared retaliation from their superiors. ‘Our military is used to combat foreign aggressors.’… The sources said the directives from Guard headquarters made their way down orally or in text messages, rather than in formal written orders, which was unusual and heightened their concerns that the jet would be used inappropriately.
“Maj. Gen. David Baldwin, who leads the California Guard, did not respond directly to interview requests for this story… A spokesman for Baldwin, Lt. Col. Jonathan Shiroma, denied that the F-15C was placed on an alert status for a potential response to civil disturbances… ‘We do not use our planes to frighten or intimidate civilians,’ Shiroma wrote in reply to emailed questions from The Times.” Those final orders never came. The paper trail was thin, because the entire process was kept as oral or unofficial as possible. The problem is the specter of involving U.S. troops to support political policy and thwart elected officials in applying decisions that right-wing conservatives oppose.
Could an autocratic president, or an autocratic ex-president with claims to continued authority, literally use federal forces to usurp the elected civilian government? To sidestep First Amendment protections under the guise of “following orders”? Could such a president or ex-president use the notorious Sedition Act of 1798 to seize power? Would a GOP gridlocked Congress even entertain legislation further to limit military involvement in civilian governance? There is enough ambiguity in the system to “justify” a de facto military coup.
I’m Peter Dekom, and for those Americans who believe “it can’t happen here,” I suggest that they read their history books for the era leading up to the 1861 inception of our own Civil War.
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