Friday, June 5, 2020

Send In The Troops: Invoke The Insurrection Act

This week, rioters have plunged many American cities into anarchy, recalling the widespread violence of the 1960s.

New York City suffered the worst of the riots Monday night, as Mayor Bill de Blasio stood by while midtown Manhattan descended into lawlessness. Bands of looters roved the streets, smashing and emptying hundreds of businesses. Some even drove exotic cars; the riots were carnivals for the thrill-seeking rich as well as other criminal elements.

Outnumbered police officers, encumbered by feckless politicians, bore the brunt of the violence. In New York state, rioters ran over officers with cars on at least three occasions. In Las Vegas, an officer is in "grave" condition after being shot in the head by a rioter. In St. Louis, four police officers were shot as they attempted to disperse a mob throwing bricks and dumping gasoline; in a separate incident, a 77-year-old retired police captain was shot to death as he tried to stop looters from ransacking a pawnshop. This is "somebody's granddaddy," a bystander screamed at the scene.

Some elites have excused this orgy of violence in the spirit of radical chic, calling it an understandable response to the wrongful death of George Floyd. Those excuses are built on a revolting moral equivalence of rioters and looters to peaceful, law-abiding protesters. A majority who seek to protest peacefully shouldn't be confused with bands of miscreants.

But the rioting has nothing to do with George Floyd, whose bereaved relatives have condemned violence. On the contrary, nihilist criminals are simply out for loot and the thrill of destruction, with cadres of left-wing radicals like antifa infiltrating protest marches to exploit Floyd's death for their own anarchic purposes.

These rioters, if not subdued, not only will destroy the livelihoods of law-abiding citizens but will also take more innocent lives. Many poor communities that still bear scars from past upheavals will be set back still further.

One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what's necessary to uphold the rule of law.

The pace of looting and disorder may fluctuate from night to night, but it's past time to support local law enforcement with federal authority. Some governors have mobilized the National Guard, yet others refuse, and in some cases the rioters still outnumber the police and Guard combined. In these circumstances, the Insurrection Act authorizes the president to employ the military "or any other means" in "cases of insurrection, or obstruction to the laws."

This venerable law, nearly as old as our republic itself, doesn't amount to "martial law" or the end of democracy, as some excitable critics, ignorant of both the law and our history, have comically suggested. In fact, the federal government has a constitutional duty to the states to "protect each of them from domestic violence."

Throughout our history, presidents have exercised this authority on dozens of occasions to protect law-abiding citizens from disorder. Nor does it violate the Posse Comitatus Act, which constrains the military's role in law enforcement but expressly excepts statutes such as the Insurrection Act.

For instance, during the 1950s and 1960s, Presidents Dwight Eisenhower, John Kennedy and Lyndon Johnson called out the military to disperse mobs that prevented school desegregation or threatened innocent lives and property. This happened in my own state. Gov. Orval Faubus, a racist Democrat, mobilized our National Guard in 1957 to obstruct desegregation at Little Rock Central High School. President Eisenhower federalized the Guard and called in the 101st Airborne in response. The failure to do so, he said, "would be tantamount to acquiescence in anarchy."

More recently, President George H.W. Bush ordered the Army's Seventh Infantry and 1,500 Marines to protect Los Angeles during race riots in 1992. He acknowledged his disgust at Rodney King's treatment--"what I saw made me sick"--but he knew deadly rioting would only multiply the victims of all races and from all walks of life.

Not surprisingly, public opinion is on the side of law enforcement and law and order, not insurrectionists. According to a recent poll, 58 percent of registered voters, including nearly half of Democrats and 37 percent of African Americans, would support cities' calling in the military to "address protests and demonstrations" that are in "response to the death of George Floyd."

That opinion may not appear often in chic salons, but widespread support for it is fact nonetheless.

The American people aren't blind to injustices in our society, but they know that the most basic responsibility of government is to maintain public order and safety. In normal times, local law enforcement can uphold public order. But in rare moments, like ours today, more is needed, even if many politicians prefer to wring their hands while the country burns.

The last time a president invoked it for crowd control was in the 1992 LA riots. When President Donald Trump threatened Monday to use the active duty military to deal with nationwide violent protests over the last week, he was suggesting he might invoke a law more than 200 years old.

"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 in the White House Rose Garden.

To actually do so, he would need to employ what's known as the Insurrection Act of 1807. Here are the basics:

The Insurrection Act?

Signed into law by President Thomas Jefferson in 1807, the Insurrection Act empowers the American president and commander in chief to deploy military troops within the U.S. in particular circumstances, if they believe it is necessary to quell an "insurrection" that threatens a state or its residents.

It's essentially a legal key that unlocks the door to use federal military forces -- whether through federalizing the National Guard or calling in "Title X forces" to settle civil unrest. The exception to the Posse Comitatus Act of 1878, which prohibits active-duty troops from being deployed to U.S. states for routine use as police forces, is an important and expansive power granted to the president.

When has it been invoked?

The Insurrection Act has rarely been invoked in the 213 years it's been on the books -- but in modern times, presidents have typically assumed the power to deal with the American agony of racial conflict, even relying on the provision to uphold federal civil rights in the Deep South.

In 1957, President Dwight D. Eisenhower called on the U.S. Army's 101st Airborne Division to safely escort nine black students into Little Rock Central High School after the Arkansas Gov. Orval Faubus, using the Arkansas National Guard under the guise of maintaining peace, tried to prevent the students from entering the school.

President John F. Kennedy invoked the Insurrection Act in 1962 and 1963 to send federal troops to Mississippi and Alabama to enforce civil rights laws. In 1967, President Lyndon B. Johnson sent the 82nd and 101st Airborne Divisions to Detroit when deadly riots broke out between police and residents and again invoked the law in 1968 in response to protests sparked by the assassination of Martin Luther King Jr.

And in 1992, President George H.W. Bush responded to a request from Gov. Pete Wilson of California to help quell rioting in Los Angeles after the acquittal of the four LAPD officers who brutally beat Rodney King.

The act was revised after the Sept. 11, 2001 attacks to expand presidential power and though contemplated for use in the aftermath of Hurricane Katrina in 2005, the Bush administration used other authorities to send thousands of active duty troops to New Orleans.

How can it be invoked?

The Insurrection Act can be invoked at a state's request. A state legislature or governor could request assistance from the president to "to suppress [an] Insurrection." The law states: "If there is an insurrection in a State, the President, at the request of the State's legislature, or Governor if the legislature cannot be convened, may call National Guards of other States into Federal service as well as use the Federal military to suppress the insurrection."

Two other Insurrection Act provisions allow a president to invoke it regardless of a state's wishes. One provision permits it to be invoked if the president deems it necessary "to suppress an insurrection, domestic violence, unlawful combination or conspiracy."

The law states: "Whenever the President considers that unlawful obstructions, combinations, or assemblages or rebellion against authority of United States makes it impracticable to enforce the law of the United States in any State or territory by judicial proceedings, the President may call into Federal service the militia of any State and use the Federal military to enforce the laws or suppress the rebellion."

A third option -- the most generalized provision -- says the president can use the armed forces when there is an interference with federal or state law.

The president may use the military to suppress insurrection, domestic violence, unlawful combination or conspiracy if "(a) it so hinders the execution of law of that State and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it opposes or obstructs the execution of laws or impedes the course of justice. In the event of the deprivation of rights, the State is deemed to have denied its citizens equal protection of laws."

But first, a proclamation to disperse: Prior to invoking the Insurrection Act, the president and the attorney general must first issue a "proclamation to disperse." If the situation is not cleared, the president may then issue an executive order to send in troops, according to a 2006 report by the Congressional Research Service.

Has Trump invoked it?

The White House has not issued a proclamation text, and President Trump didn't use the words "Insurrection Act" in his Monday night statement. But at least one Republican has already recommended it: Arkansas Sen. Tom Cotton, a staunch conservative, advocated on Twitter that Trump employ the 101st Airborne Division.

"Anarchy, rioting, and looting needs to end tonight.  If local law enforcement is overwhelmed and needs backup, let's see how tough these Antifa terrorists are when they're facing off with the 101st Airborne Division. We need to have zero tolerance for this destruction." tweeted Sen. Tom Cotton.

The most notable time 101st Airborne Division was in Cotton's home state was in 1957 when Eisenhower used the Insurrection Act to force desegregation and safely escort nine black students into Little Rock Central High School.

Illinois Gov. J.B. Pritzker, a Democrat, was quick to dispute Trump's comments, rejecting the idea that the government can send troops to his jurisdiction. "I reject the notion that the federal government can send troops into the state of Illinois," Pritzker told CNN.

"He wants to change the subject from his failure over coronavirus, a miserable failure, and now see a moment when there's unrest because of the injustice that was done to George Floyd that he now wants to create another topic and something where he can be the law and order president."

John Cohen, former Acting Undersecretary for Intelligence at the Department of Homeland Security, who is now an ABC News contributor, noted the U.S. military, as formidable as it is, isn't trained specifically to deal with civil unrest in the U.S.

"Placing U.S. military personnel in the position of potentially using deadly force against other U.S. citizens is not something that should be done in a cavalier manner," Cohen said. "The experience of its deployment during the Los Angeles riots faced many logistical communication and operational challenges," added Cohen, also a former police officer who worked in Los Angeles county. "It wasn't seen as a successful operation by many."

Read the original text of the Insurrection Act:

"An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect."

When the Insurrection Act was used in 1992, Attorney General William Barr was serving as attorney general in the George H.W. Bush administration.