Top Pentagon officials insist the Defense Department’s role fighting the coronavirus crisis isn’t “martial law.”
But the fact that they have to make such a public declaration reflects the topic’s sensitivity and has many on guard against military overreach.
Defense Secretary Mark Esper and Chief of the National Guard Bureau Gen. Joseph Lengyel both recently said military resources such as hospital beds and surgical masks are being deployed cautiously and carefully to civilian authorities.
But Steve Bucci, a Heritage Foundation fellow who worked for former Defense Secretary Donald Rumsfeld during emergencies including 9/11 and Hurricane Katrina, said the Pentagon’s role could expand as the coronavirus pandemic worsens.
“In an emergency situation, there are really no restrictions beyond not doing arrests,” Bucci told the Washington Examiner.
While the 1878 Posse Comitatus Act restricts the use of the military in civilian functions, it leaves plenty of leeway, including governors’ use of the National Guard for law enforcement functions.
“I think civil liberties could be somewhat curtailed if this thing really continues to burn,” Bucci said of the growing pandemic in the United States. “Every one of the restrictions that have been put on us thus far has been in some way curtailing our civil liberties.”
The right to assemble peacefully is one example. Lockdowns or restrictions on movement are also infringements, though Bucci does not think the U.S. will see anything like the Chinese military-enforced confinements that followed the coronavirus outbreak in Wuhan.
“But you know, we don’t know what the heck’s coming down the road,” he added.
Retired Army Deputy Judge Advocate General John Altenburg said the 1960s civil rights marches triggered the use of uniformed guardsmen and federal troops to quell riots and civil disturbances, but he told the Washington Examiner that people in the U.S. don’t like to see uniformed military in the street.
“I think that’s something that we all are concerned about,” he said. “That’s why we minimize the use of the military domestically.”
Altenburg said the DOD is designed to defend the country physically against other nations, which means everything else falls beneath that priority. Legislation such as the Posse Comitatus Act helps keep the military out of civilian roles.
“The military doesn’t want to do that,” he said of civilian functions. “They don’t feel that they should do that.”
The DOD added to Posse Comitatus with directive 5525.5 in 1982, which “precludes members of the Army, Navy, Air Force or Marine Corps from direct participation in a search, seizure, arrest or other similar activity” unless authorized by law.
The laws and directives help protect the military, Altenburg said.
“It keeps them from being drawn into and getting into what’s called in another context ‘mission creep,'” he said.
Esper tried to calm the public at a Pentagon virtual town hall meeting Tuesday, dismissing rumors of martial law if coronavirus-related medical supplies and hospital beds get scarce, among other concerns.
“Let me reassure you: There’s been no talk whatsoever of martial law,” he said. “There’s been no talk whatsoever of mass quarantines of the United States or any of that other nonsense that is out there.”
But the National Guard is already exempt from Posse Comitatus while under state command and control, Bucci said.
“The National Guard, when they’re working for the governor, either in state active-duty status or in what’s called Title 32, where they’re being paid for by the federal government, but they’re still under the governor’s command — in either of those two statuses, they can actually do law enforcement,” Bucci said.
The president could also federalize the National Guard using what’s known as Title 10 and take control of the troops himself. But then, they would lose their law enforcement power.
“There’s no particular gain to it at all,” Bucci said of the president invoking Title 10. “And it would create a kind of bad blowback because you’re bouncing duly elected executives out of their jobs for no real reason.”
Both Bucci and Altenburg affirmed the immense logistical capabilities of the U.S. military to move equipment and people and support federal emergency agencies with things such as traffic control. All are useful capabilities for helping fight the outbreak domestically, they said.
Also, just as Esper has done in recent weeks, they downplayed the application of the military’s medical capability in a civilian capacity due to its focus on trauma and treating battlefield casualties.
But there are other exceptions to the Posse Comitatus Act, including the 1807 Insurrection Act and martial law.
The Insurrection Act allows the president to use the federal military at the request of states or to put down a rebellion to enforce federal laws.
“Martial law is literally the military takes over the government,” said Altenburg, and both governors and the president have the right to declare martial law.
Martial law declarations have happened numerous times throughout U.S. history, ranging from the Civil War to the Japanese attack of Pearl Harbor and following national disasters such as earthquakes.
“But I think, you know, the folks who are sitting there thinking that there’s a bunch of people sitting in Washington, D.C., plotting to take over the government by leveraging, you know, COVID-19,” Bucci said. “I think that’s sort of la-la land.”
