What’s a President or a Corporal to do?

In answer to a question about the military and the President, I recently heard General C. Q. Brown, the new Chairman of the Joint Chiefs of Staff, say that he would work for “whatever President had won the most recent election” – or words to that effect.

Okay, but General Brown wasn’t asked to elaborate so I don’t know what he thinks about such complicating issues as illegal orders, martial law, and the Posse Comitatus Act.

What? You never heard of the Posse Comitatus Act? Well . . .

This 1878 law bars Federal troops from participating in civilian affairs except when expressly authorized by law. The law embodies the American tradition that military interference in civilian matters is a threat to both democracy and personal liberty.

The law is a single sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

The Act has a long and interesting history going back to ninth-century England. Originally, a posse comitatus was a group of citizens mobilized by, say, a sheriff to suppress lawlessness, defend the people, or otherwise protect the public welfare. If asked officially, people were obligated to join the posse – or be fined. In England and Wales, the Sheriff’s Act of 1887 permitted sheriffs to call on every citizen to help catch a bad guy. Citizens were required to assist.

In the United States today, the Act forbids the use of the U. S. Army and Air Force as a posse comitatus or for law enforcement purposes without the approval of Congress. The Act does not explicitly mention the Navy and Marine Corps, but the Department of the Navy has adopted equivalent regulations. The law does not apply to the Coast Guard. It also does not apply to the National Guard when activated by a governor, as was done during Hurricane Katrina.

Still, Posse Comitatus is an active law. On March 10, 2009, members of the Military Police from Fort Rucker (where I was stationed in ’54-‘55) were deployed to Samson, Alabama, in response to a shooting spree. Town officials confirmed that the soldiers assisted in traffic control and securing the crime scene. The governor did not request military assistance, nor did President Barack Obama authorize the deployment. Subsequent investigation found that the Posse Comitatus Act was violated, and several military members were disciplined.

There are many statutory exceptions to the Posse Comitatus Act; the most important is the Insurrection Act. Under this law, in response to a state government’s request, the president may deploy the military to suppress an insurrection in that state. In addition, the Insurrection Act allows the president — with or without the state government’s consent — to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people’s civil rights when the state government is unable or unwilling to do so.

It is well established that the military are not allowed to interfere with civilian matters. Even so, it’s been done. For example, in 1963 President John F. Kennedy federalized National Guard troops and deployed them to the University of Alabama to force its desegregation.

It is also well established in the military that they are not required to follow illegal orders. In fact, they are obligated not to follow illegal orders. Soldiers, sailors, officers or enlisted cannot, for example, legally be ordered to commit crimes, perform torture, or violate the Constitution. The problem, of course, is knowing when an order is legally illegal.

So, given that the Posse Comitatus Act forbids use of the armed forces in civilian affairs, what’s a President to do when he or she needs Federal troops (e.g., the Army or Marines) to, say, quell an insurrection, subdue domestic rioters, or enforce some Federal or State law (if the State can’t or won’t do it), or, God Forbid, if he or she wants to take over, say, the Justice Department or the FBI?

He/she could do what JFK did in 1962: ignore Posse Comitatus and just do it. He Federalized the National Guard to do the job he wanted done at the University of Alabama; no legal consequences have been reported.

Or, here’s an idea: a President might declare Martial Law. That means the replacement of civilian rule of law by military law. Military Courts replace civilian courts. People no longer have civil rights. The military rule.

Martial Law is usually employed in times of war, civil unrest, or natural disasters. It was declared, for example, in Honolulu after Pearl Harbor. However, the laws surrounding martial law are a total mess, partly because Congress has passed so many of them. Nothing is clear, even about who can declare it and under what circumstances. The Constitution says nothing about it. The Supreme Court has said nothing. States have done it though, so a President could most probably get away with doing it. Who would argue with the soldiers?

In 1970 at Kent State University, four of those who argued with soldiers were killed, and many were wounded. That was the Army National Guard, though, not the Army. Still . . . you can’t fight bullets with flowers.

Now the most important question, admittedly a worst-case scenario. Say a President, for whatever reason, as Commander-in-Chief, orders the Joint Chiefs to take over the Justice Department and FBI. What will the military do?

If there is Martial Law, they probably do it. But if not and the military obey the order, they violate the Posse Comitatus Act. It’s no doubt an illegal order that violates the Constitution. So, what would the Generals, and the troops, do?

Would they follow the President’s order, or would they say “No, Sir. Can’t do that”?

I do not know, but I have great trust that the vast majority of the military would refuse such an order and maintain loyalty to the United States. Great trust, but not 100% trust. We are a badly divided nation, emotions would be high in such a situation. Might there be some in the military who would follow a President’s illegal orders? How many? With what weapons? What would the loyal military do in reaction?

Consider the plight of the individual infantry corporal ordered by his Sergeant (who was ordered by his Lieutenant, who was ordered by the Company Commander, etc.) to take FBI agents prisoner. The corporal probably knows it’s an illegal order, maybe he even knows it violates Posse Comitatus. What does the Corporal do?  He or she will have to make a decision. What would the civilian population do? Some civilians followed implied orders on January 6, 2021, when they raided the Capital. What will such people do in the future? What will the rest of us do? We may have to make a decision.

Just Sayin’.

February 24, 2024.