President Trump’s threat to deploy the military, even if governors resisted, to maintain law and order amid nationwide protesting in response to the death of George Floyd in police custody met congressional resistance Tuesday.
Adam Smith, chairman of the House Armed Services Committee, called for an explanation from military leaders before Trump took the “deeply dangerous step” of using the military to quell protests, while experts said Trump had the authority to do so.
“We are very concerned about the optics of using the U.S. military for domestic law enforcement,” Smith said Tuesday on a press call, promising to call Defense Secretary Mark Esper and Chairman of the Joint Chiefs of Staff Mark Milley to testify before Congress next week to provide an explanation for how the military will be used.
“We feel that this is the wrong approach, the wrong use of the military, it is more likely to escalate the conflict rather than bring down the violence,” he added.
Before Trump walked from the Rose Garden to St. John’s Episcopal Church Monday, followed by Esper and Milley in his military uniform, the president promised to unleash the full force of the military on civilian protesters.
“I am mobilizing all available federal resources, civilian and military, to stop the rioting and looting, to end the destruction and arson and to protect the rights of law-abiding Americans,” Trump said in a Rose Garden address.
The president emphasized, as he did on a call earlier in the day with governors, that he would send federal troops to quell protests if governors refused to do so.
“If a city or state refuses to take the actions that are 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,” he said.
Earlier in the day on a leaked call between Trump and governors, Esper and Milley were heard referring to America’s streets as a “battle space” and encouraging governors to call up their National Guard to “dominate” unruly protesters.
Steve Bucci, former adviser to former Secretary of Defense Donald Rumsfeld, said the Department of Defense did have a role in the domestic space.
“Anybody who’s saying that what was said yesterday and the symbology of them walking with the president is an indicator of the president going outside the bounds of law or proprieties in this situation is dead wrong,” Bucci told the Washington Examiner.
Bucci said he accompanied Rumsfeld to the same church on the day of George W. Bush’s second inauguration, and it is not unusual.
“That was not an indicator that they’re going to suddenly do combat operations in the United States of America,” said Bucci, now a Heritage Foundation visiting fellow, as he explained the clear boundaries defined by law.
“As long as they stay within those roles, it’s perfectly legitimate. We do it all the time with natural disasters,” he said.
Bucci could not say for certain whether Trump was implying he might invoke the Insurrection Act to bypass governors, but the defense analyst thought it highly unlikely.
“That is a huge step to take, and one that is done very seldom and very reluctantly,” he said. “I doubt you will see the use of the Insurrection Act in this situation.”
If Trump does invoke the Insurrection Act, Bucci said, federal troops or federalized National Guard troops would be bound by the Posse Comitatus Act, which prevents them from performing law enforcement functions.
Bucci said it was better for governors to use state active-duty National Guard troops or Title 32 National Guard troops, which governors control and the federal government pays for. Either option would allow governors to use the guard to perform law enforcement functions.
“In civil disturbance situations, it usually makes more sense to leave them under state active duty or maybe Title 32 because they can do more,” he said.
As of Tuesday morning, governors in 28 states and the District of Columbia had activated more than 20,400 National Guard members to assist state and local law enforcement in quelling civil unrest, according to the National Guard.
Still, Smith was deeply concerned by the language he heard from military leaders.
“Secretary Esper says he wants to occupy the battle space,” the Washington Democrat said. “Talking about the United States of America as a battle space for the U.S. military to be occupied, I think, is wrong.”
Smith added: “We want to try to pressure them to tone down the over the top rhetoric that includes the use of the U.S. military to treat this as a war.”
