Homeland Security

Hon. James E. Baker in the NYT: Invoke the DPA During the Coronavirus Surge

Virus Surge Brings Calls for Trump to Invoke Defense Production Act

(The New York Times | July 22, 2020) Experts, medical workers and elected officials are reviving their call for the Trump administration to ramp up its use of the Defense Production Act to secure critical medical supplies.

In March, as the coronavirus pandemic took hold in the United States and pressure from cities and states grew, President Trump used the act to press General Motors to begin production of ventilators. But four months later, frustrated by what they describe as a lack of federal leadership in the face of continued shortages, critics say the Trump administration is not wielding the act to the extent that it can and should.

“What the federal government—the president or secretaries possessing delegated authority—have not done yet is use the D.P.A. to create a permanent, sustainable, redundant, domestic supply chain for all things pandemic: testing, swabs, N95 masks, etc.,” said Jamie Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University …

Mr. Baker, the national security law professor, said he worried that the federal government’s struggle to supply swabs and protective gear might portend difficulties in widely distributing a vaccine.

“Whatever vaccine is produced, it’s going to involve a vial and a needle,” he said. “If we cannot figure out how to produce enough swabs or tests, will we figure out how to produce enough vaccine or treatments?”

Read the full article:

Professor William C. Banks to Vox: Southern Deployment Legal, But Is the Wall?

The US military will stay on the US-Mexico border, even with migration falling

(Vox | June 25, 2020) The Pentagon will officially keep as many as 4,000 troops at the US-Mexico border in October — ensuring President Donald Trump’s military deployment continues throughout the election season despite no signs of an actual crisis.

In a Thursday statement, Army Lt. Col. Chris Mitchell, a Defense Department spokesperson, said Defense Secretary Mark Esper approved the Department of Homeland Security’s request for assistance at the border. Most military backup will come from the National Guard, he noted, which will help monitor the frontier, provide logistics, and offer transport to Border Patrol personnel. Troops can’t engage in law enforcement activities.

In a follow-up comment to Vox as to why such a decision was made months in advance, Mitchell said, “The current mission is set to expire at the end of September. This is just an extension of the mission through the next fiscal year.” The new authorized number of troops would actually be a decrease from the 5,500 military personnel currently at the border …

… William Banks, an expert on national security law at Syracuse University, told Vox that such a deployment, like the previous ones, is clearly legal. But, he added, “I continue to question whether the wall construction itself is lawful,” noting that multiple lawsuits proceed.

All this sounds well and good, but the issue is that what was supposed to be a temporary backfill at the border has now become a perpetual solution, and it’s not clear the military is even needed at the Mexico frontier anymore …

Read the full article.

 

Professor William C. Banks Speaks to PBS Newshour About National Guard Deployments

‘Optics matter.’ National Guard deployments amid unrest have a long and controversial history

(PBS Newshour | June 9, 2020) When major protests erupted in dozens of cities around the country in the wake of George Floyd’s death, many states responded by calling on the National Guard to police demonstrations and to enforce curfews.

“They are members of the military, not law enforcement.”

In all, more than 30 states activated about 32,000 National Guard members to supplement local police efforts to manage the unrest, which was largely lawful, but in some cases resulted in the destruction of businesses and instances of violence.

A number of high profile clashes between law enforcement and protesters have prompted criticism about what many have decried as excessive use of force — the very issue that gave rise to the demonstrations.

For decades, the guard has served the dual function of operating both domestically, in a number of capacities, and internationally. For instance, about 60,000 additional guard members are assisting this year with public safety efforts amid the coronavirus pandemic and natural disaster preparation and response as tropical storm season gets underway. But in light of recent confrontations, many are questioning the wisdom of using trained military to monitor American civilians protesting on American soil …

… The National Guard is trained to help domestically in a variety of capacities, said William Banks, a professor emeritus at Syracuse University College of Law. “That said, they are members of the military, not law enforcement, so they are largely trained to supplement military jobs,” Banks said …

Read the full article.

Professor Mark Nevitt Weighs In on Invoking the Insurrection Act

As President Donald J. Trump threatens to invoke the Insurrection Act as a response to protests, riots, and acts of civil disobedience in the aftermath of the death in policy custody of Minneapolis resident George Floyd, the media in the US and abroad has turned to national security expert Professor Mark Nevitt to explain what the law is and what the Trump Administration can and can’t do to quell civil unrest …

The Insurrection Act, the 1807 law Trump could use to deploy troops to curb protests, explained

(Vox) | June 2, 2020

… By far the most important of those authorizations—and the one most likely to come into play in this situation—is the Insurrection Act.

“This is the legal key that unlocks the door to use federal military forces … to quell civil unrest,” Mark Nevitt, a military law expert at the US Naval Academy, wrote for the Just Security website last Friday.

Nevitt noted two main ways the Insurrection Act could be invoked for the protests …

Trump threatens to invoke Insurrection Act 

(Politico) | June 2, 2020

The last time the Insurrection Act was invoked was to quell riots in Los Angeles in 1992 after a request by then-Gov. Pete Wilson.

But retired Navy Cmdr. Mark Nevitt outlined in an analysis on Monday those provisions in the law that Trump could use without the consent of governors …

Can Donald Trump really invoke the Insurrection Act to send troops into states?

(PolitiFact) | June 2, 2020

… “In requesting federal troops to patrol Los Angeles, (California Gov. Pete) Wilson specified that the California National Guard lacked the ability to quell the domestic disturbance,” wrote Mark P. Nevitt, a professor at the U.S. Naval Academy. President George H.W. Bush then issued an executive order that authorized the defense secretary to federalize the California National Guard and deploy active-duty Army and Marine personnel.

However, such decisions have not been made lightly, Nevitt wrote, even in the direst of emergencies …

Five things to know about Trump’s legal power under the Insurrection Act

(The Hill) | June 2, 2020

… if a U.S. military member were to adhere literally to Trump’s controversial invocation of the phrase “when the looting starts, the shooting starts,” Nevitt wrote, it would mark a clear violation of the rules …

George Floyd protests: Trump threatens to deploy ‘heavily armed’ US military

(The Independent) | June 2, 2020

“Can Trump use the Military to respond to Minneapolis? Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act,” Mark Nevitt, a law professor at the US Naval Academy wrote for Just Security.

“The Insurrection Act is, by far, the Posse Comitatus Act’s most important exception,” Mr Nevitt added. “This is the legal key that unlocks the door to use federal military forces – whether through federalising the National Guard or calling in “’title 10 forces’ to quell civil unrest” …

“An Extraordinary State of Being”: William C. Banks Discusses Use of Troops on Home Soil

As nation reels, Trump’s focus is strength, not unity

(Christian Science Monitor | June 3, 2020) William Banks, a professor emeritus of law at Syracuse University, says Mr. Trump has the right to invoke the law, but notes that it was envisioned for a much larger threat than what we’re seeing now.

“You want to come to the aid of the states when states can’t take care of themselves,” he says.

By threatening to invoke the act, Mr. Trump is trying not to appear weak during a domestic crisis, says Professor Banks. But at the same time, he adds, past uses of the law have been unpopular, and governors in crisis-ridden states today might welcome having Mr. Trump seize the spotlight – and take on any blame …

Read the full article.

Trump wants to crush Black Lives Matter with a law that fought segregation

(The Washington Post | June 2, 2020) Not satisfied by tear gas, rubber bullets and threats to use “vicious dogs” and “ominous weapons” against citizens protesting racism and police violence, President Trump threatened Monday night to send the U.S. military into any cities where local officials fail to control crowds of unruly protesters. His secretary of defense, Mark T. Esper, obligingly chimed in on the need for troops to “dominate the battlespace” in American cities.

Trump appears to be planning to invoke the Insurrection Act, which would turn his administration’s dystopian fantasy of urban combat against U.S. citizens into a reality …

… In 1957, when nine black students attempted to enter an all-white school in Little Rock pursuant to a federal court order, then-Gov. Orville Faubus sent troops from the Arkansas National Guard to block them.

With state troops under the command of a governor openly defying an order of the federal courts, writes legal historian William Banks, President Dwight D. Eisenhower scribbled his thoughts in a handwritten note: Standing by “in the face of organized or locally undeterred opposition by violence” would, he feared, cause “the entire court system [to] disintegrate” and lead to “the destruction of our form of gov’t.”

Reluctantly, he invoked the Insurrection Act the next day, and soldiers from the Army’s 101st Airborne Division formed a protective cordon to allow the nine black students to walk safely to class …

Read the full article.

Here’s What You Need to Know About The Pentagon’s Riot Response and Martial Law

(Military.com | June 2, 2020) The Pentagon has ordered a small contingent of active-duty soldiers to alert status, on standby to join thousands of National Guard troops to help police quell civil unrest amid protest demonstrations across America. But the unprecedented situation is still a long way from martial law, legal experts say …

… Martial law is an “extraordinary state of being, and it basically means the government isn’t in control at all; there is no law. Martial law is the power of a commander,” Banks said.

“The last time the law was declared in the United states was in Hawaii during World War II,” he said, describing the military’s response after the Japanese attack on Pearl Harbor, which resulted in Japanese Americans being put in internment camps.

In fact, Banks said, there is no longer a “publicly known procedure” for the enactment of martial law.

“Years ago, there were some regulations within the [Defense Department] that spoke to the possibility of martial law, but they have been taken off the books,” he said. “We can’t see them, so we don’t even know if they exist anymore” …

Read the full article.

The President, the Military, and Minneapolis—What You Need to Know

By Mark P. Nevitt

(Just Security | May 29, 2020) In the aftermath of the tragic killing of George Floyd by a Minneapolis police officer, riots and unrest have been spreading throughout the city of Minneapolis and the country. The Minnesota National Guard has been activated by Minnesota Governor Timothy Walz. These Minnesota National Guard members report to the governor and can actively take part in law enforcement functions, which they are doing.

But now, President Donald Trump is involved too.

The president tweeted Thursday night that he 

can’t stand back & watch this [the riots] happen to a great city, Minneapolis. A total lack of leadership. Either the Radical Left Mayor, Jacob Frey, get his act together and bring the city under control, or I will send in the National Guard and get the job done right.

Further, Trump stated that he “just spoke to Governor Walz and told him that the Military is with him all the way. Any difficult and we will assume control but, when the looting starts the shooting starts . . . ”

Beyond their deeply troubling moral messaging, there are two key legal issues associated with these remarkable tweets (outside of Trump’s showdown with Twitter, which placed a warning on the tweet, saying it glorified violence):

  • Under what conditions can the president order the military to respond to Minneapolis?
  • What are the military’s rules for the use of force—i.e. does looting justify shooting?

Can Trump Use the Military to Respond to Minneapolis? 

Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act. The president is, of course, the commander-in-chief of the Armed Forces, but he lacks the authority to use the military in any manner that he pleases. That authority is constrained by Congress and the courts.

Under the 1878 Posse Comitatus Act, Congress has limited the president’s ability to use the federal (title 10) military in domestic law enforcement operations such as searches, seizures, and arrests. A criminal statute, the Posse Comitatus Act makes it unlawful for the Army or Air Force to “execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So, the president cannot simply call in federal military forces or nationalize the Minnesota National Guard to quell the civil disturbance in Minneapolis without pointing to a Posse Comitatus Act exception …

Read the full article.

Mark P. Nevitt is an Associate Professor of the College of Law and an SPL Afiliated Faculty member.

“Uncharted Territory”: Hon. James E. Baker Helps NYT Explain Trump’s Order to Open Meatpacking Plants

Contrary to misunderstandings, the actions fall short of ordering meatpacking facilities to reopen despite Covid-19 outbreaks among workers.

(The New York Times | April 29, 2020) The Trump administration moved this week to try to mitigate the effects from the shutdowns of beef, pork and poultry processing facilities amid the Covid-19 pandemic that have potentially endangered an important part of the nation’s food supply chain. But the policy moves have generated confusion.

“We are, in many regards, in uncharted territory,” said James E. Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University …

… While some of the meatpacking plants have shut down voluntarily after outbreaks to clean their facilities, others have been ordered closed by local health officials. But those closures happened before the federal guidelines. Going forward, if state or local regulators created stricter rules, this maneuver could provide a basis to argue to a judge that the federal standards pre-empted the local ones.

How that would go is an open question. A 1950 ruling from a Federal District Court in Minnesota suggested that if there were a conflict with local rules, a Defense Production Act arrangement would prevail. But Mr. Baker noted that the act’s allocation powers “have not been used in a long time, nor have they been fully litigated.”

Still, he added, it might not be put to the test because there would also be pressures on all involved — the federal and state governments, companies and workers — to reach an accommodation rather than get mired in court …

Read the full article.

 

Background Briefing: William C. Banks Assesses the Possibility of Martial Law

Is Trump Both the Arsonist and the Fire Brigade Sparking Insurrection Then Declaring Martial Law?

(Background Briefing | April 19, 2020) We look further into Trump’s encouragement of insurrection, aided and abetted by his propaganda mouthpiece Fox News, and speak with William Banks, Distinguished Professor Emeritus at Syracuse University College of Law who is the author of Soldiers on the Home Front: The Domestic Role of the American Military and has an article at The Atlantic “Martial Law Would Sweep the Country Into a Great Legal Unknown“.

He joins us to discuss how Trump is both the arsonist and the fire brigade igniting the spark of insurrection while possibly declaring martial law to put out the “Reichstag Fire” he has lit. Unfortunately while unprecedented, this prospect is not entirely hypothetical given Trump’s hatred of the press which he would shut down, and his fear of losing the election, which he would suspend.

Hon. James E. Baker: A Marshall Plan for Public Health (ABA Podcast)

The DPA: A Marshall Plan for Public Health with Judge James Baker

ABA National Security Law Today | April 9, 2020

Judge James Baker is the the Director of the Syracuse University Institute for Security Policy and Law, former Chief Judge of the US Court of Appeals for the Armed Forces, and former Chair of the Standing Committee on Law and National Security.

This episode references:

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William C. Banks: Beware the Military on US Soil

Beware the military on US soil: City and state leaders should be careful what they wish for

By William C. Banks 

“de Blasio and other New Yorkers are still urging a more robust federal military response. Tread carefully.”

(NY Daily News | April 6, 2020) By and large, New York officials have exhibited admirable leadership and clear-headed decision making in response to the worst public health crisis in a century. With staggering numbers of COVID-19 infections and badly overstretched hospitals, New York City and surrounding communities are in dire need of help — and Gov. Cuomo and Mayor de Blasio have been properly beseeching the White House to commit federal resources to help stem the tide of the virus.

But as it involves the use of the military, this response should have clear limits. Legally and historically, we limit its engagement on U.S. soil for very good reason.

Although Cuomo called up New York National Guard forces early in the crisis to help with the expected medical surge, and although the USNS Comfort has arrived to provide hospitals with desperately needed surge capacity, de Blasio and other New Yorkers are still urging a more robust federal military response.

Tread carefully.

There is no doubt that the U.S. military has always played a key role in society. Soldiers have always stood ready to use their special training, equipment and discipline to help out in emergencies when no one else could.

Most of the time, however, America’s military forces have remained in the background, waiting for direction from civilian leaders to respond to crises and then only in limited ways …

Read the full article.