Jan 6 committee should think twice before blaming the Pentagon

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WASHINGTON, DC – JANUARY 06: Members of the Washington DC National Guard and Police guard a … [+] small group of protesters away from the U.S. Capitol on January 6, 2021 in Washington, DC. A pro-Trump mob stormed the Capitol earlier, smashing windows and clashing with police. Trump supporters gathered in the nation’s capital to protest the ratification of President-elect Joe Biden’s Electoral College victory over President Donald Trump in the 2020 election. (Photo by Spencer Platt / Getty Images)

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In emergency situations, Americans often view the military as a savior. On January 6, 2021, leaders of Congress were no exception. President Nancy Pelosi called on the Chairman of the Joint Chiefs of Staff during the Jan.6 siege for help, even though the president is outside the military chain of command. Senatorial Minority Leader Chuck Schumer called the Pentagon. Vice President Mike Pence has asked the Acting Secretary of Defense to “clean up the Capitol.” But the military did not save them, for good reasons. Finger pointers quickly accuse the Pentagon of failing to prevent or stop the attacks on the Capitol. Yet while the January 6 Committee seeks a scapegoat, it largely ignored two culprits: the law and the will of the people. The deployment of federal troops to Capitol Hill on January 6 may have been illegal. Worse, it could have set a horrible precedent that would have permanently damaged civil-military relations.

Throughout the history of the United States, Americans have been wary of military deployment on American soil. Since the founding of the nation, Americans have been wary of the deployment of the military on American soil. The founders fought bitterly over whether a standing army should exist, enacted civilian control over the military in the constitution, and passed an amendment banning cantonment of troops. However, Congress wanted to give the president latitude to deploy federal troops in the event of an insurgency or emergency, and passed the Insurgency Act in 1807. The president can invoke the law at the request of a governor of state, or unilaterally if the state is unwilling or unable to ensure compliance with federal law or maintain public order, or in situations of rebellion against the authority of the United States, among others reasons. The law is rarely used, in large part because of resistance from the public and state governors. As a rule, presidents prefer to rely on requests from governors to invoke it. Its last use dates back to 1992, when the Governor of California asked President George HW Bush to send federal troops to quell riots in downtown Los Angeles after police officers were acquitted of the brutal beating of Rodney King. When President Trump threatened to invoke the Insurrection Act during the Black Lives Matter protests in 2020, he raised fears of martial law and met with strong criticism and resistance.

After the Civil War, Congress passed the Posse Comitatus Act (PCA), which established the general rule that Federal troops, including Federal National Guard troops, are not allowed to enforce the law on American soil. The law was a reaction to strong resistance by Confederate states against the use of federal troops in their states during reconstruction to enforce federal laws, perform police actions, and protect the voting rights of black freedmen. In the 1876 presidential election, Southern Democrats claimed that the military intimidated or prevented Samuel Tilden’s supporters from voting. Democrats have agreed to concede victory to Rutherford B. Hayes on condition that the Republicans withdraw the Southern Army, among other demands. Congress passed the PCA in response.

Other than the Uprising Act, the main exceptions to the rule prohibiting the deployment of troops on American soil are statutory authorities which allow defense support to civilian authorities (DSCA). DSCA is DoD support on U.S. soil that is requested by federal, state, or local civilian authorities. DSCA is primarily used to enable federal troops to respond to hurricanes and other natural disasters. It can also be used in circumstances ranging from cyber or terrorist incidents to support special events. DSCA’s emergency response and immediate response authorities enable federal military commanders to temporarily engage in activities necessary to prevent human suffering, quell unexpected civil unrest, restore government function or restore order. public, or protect federal property, if the president’s authorization is “not possible.” These authorities are rarely invoked; the limits of these powers have not been tested and may not be constitutionally permissible. Granting any individual military commander broad discretion in determining whether these emergency or immediate response authorities should be invoked, and where their limits should be, presents a serious risk of abuse of power. (I discuss in more detail the constitutional and statutory authorities covering the January 6 response in an essay for the University of Maryland Law Journal, from which this column was drawn, here).

When considering its response to January 6, the Pentagon had three bad options: 1) deploy troops at President Trump’s invocation of the Insurgency Act, 2) invoke unprecedented, untested authorities and potentially illegal via DSCA which could later be easily abused, and 3) deploy National Guard troops at the request of the mayor of DC. The Pentagon chose # 3 – their only clearly legal option – and was further crippled by the complex web of legal authorities surrounding the DC National Guard.

President Trump did not invoke the Uprising Act except for Option 1. And if he had, the scene on Capitol Hill could have worsened. We don’t know what President Trump allegedly ordered these troops to do. Given the policy involved, not all military commanders – and individual troops – may have followed his orders. Some active and reserve troops participated in the Capitol riots, and the army made a subsequent effort to eliminate extremists from their ranks; these are the same people who could have been called to the Capitol. More broadly, the president’s invocation of the insurgency law would have set a terrible precedent. The sight of federal troops fighting in front of the Capitol would have changed American history forever.

The Pentagon could also have responded to the Capitol siege using DSCA. However, that would have raised concerns about the standard of civilian control over the military. As the shocking events of January 6 unfolded, no one in the chain of command may have wanted or been able to determine that the President’s authorization of force was “impossible.” The only requests made to the DoD by qualified authorities during the attacks were for National Guard troops, not Federal forces. Deploying troops without a request from the appropriate authorities may have been illegal or set a worse precedent. In addition, the Pentagon was probably concerned about the optics of its involvement. The military faced stiff criticism when National Guard troops bustled to respond to Black Lives Matter protests in DC and elsewhere in June 2020, which appeared to be a disproportionate response to largely peaceful protests. This was followed by Joint Chief of Staff Chairman Mark Milley’s march with President Trump through Lafayette Square, which appeared to lend military credibility to Trump’s policies and his alarming threats to invoke the law. on the insurgency. The public outcry that followed forced Milley to apologize. Given the public opinion against military deployment on American soil, the potential for further chaos, and the Pentagon’s understandable reluctance to do anything illegal, the Pentagon has made a reasonable choice not to invoke the DSCA.

Thus, the Pentagon chose its only clearly legal option and was subsequently crippled by the law. Because DC is not a state, its mayor has no direct authority over the DC National Guard (DCNG). Normally, state national guards report to the governors of their states until they are federated. Instead, the president is the commander-in-chief of the DCNG, whether or not it is federalized. In order for Mayor Muriel Bowser to seek DCNG support, she must do so through the President and the Pentagon. On January 4, the Pentagon approved Mayor Bowser’s request for 340 troops to support the Metropolitan Police Department, the only support requested by the mayor or local or federal law enforcement operating near the Capitol. (The Metropolitan Police Department is separate from the Capitol Police Department, which is responsible for the Capitol Complex).

Once the siege began, the mayor of DC had no direct authority to call the DCNG. Instead, she should have submitted a request to the Commander General of the DC National Guard (who is appointed by the President), who would then notify the Secretary of the Army. Hours passed before the Pentagon allowed the full deployment of the DCNG, which Mayor Bowser might have agreed to if she had been governor of the state. As a result, it was not until 1:49 p.m. on January 6, after rioters had already entered the Senate Chamber, that the Capitol Police Chief requested DCNG’s help from the Guard Commander. DCNG National Assembly, which was approved at 3:04 p.m. After receiving activation orders and leaving their civilian jobs to shift into high gear, DCNG members did not arrive on Capitol Hill until 5:40 p.m. (Not yet yesterday, President Biden signed a bill to make it easier for the Capitol Police to call the National Guard).

As the historical records show, military deployment on American soil is a serious matter for Pentagon leaders and the American public. Additionally, the constitutional and statutory framework surrounding the deployment of the military on US soil and the use of the DC National Guard hampered any potential military response on January 6. Certainly, questions remain about the DoD’s response on January 6, and the DoD should continue to investigate its response and better prepare for future national emergencies. However, as the Jan.6 committee searches for a scapegoat, all Americans should question their impulse to blame the Pentagon. The deployment of federal troops to Capitol Hill could have made matters worse, with worrying implications for military ethics and readiness, and for civil-military relations for the rest of American history.

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