This story initially was revealed by Actual Clear Wire
By Donald McGregor
Actual Clear Wire
Fox Information not too long ago revealed a narrative entitled “Protection Secretary Austin overruled Nationwide Guard chief on holding troops on the Capitol: memo.” To many readers, this will likely have seemed to be a sensationalized article throwing gasoline on the embers of an already charred navy problem in our nation’s capital. However the story captures a troubling divide between the brand new protection secretary and the chief of the Nationwide Guard Bureau over the suitable use of the Guard. But, amid this break in ranks, the story suggests a a lot bigger and extra regarding dilemma. And it’s what the Founding Fathers feared most.
The article references a protection memo or coordination sheet usually used to “concur” or “non-concur” on points throughout the Protection Division. On this occasion, a coverage memo from the protection secretary’s workplace requested an “Extension of NG [National Guard] assist to U.S. Capitol Police” with a further 2,280 guardsmen to assist the U.S. Capitol Police safety element past March 12. Nevertheless, there are a number of points with the request.
From my expertise within the Pentagon, this kind of enchantment shouldn’t be simply granted. It normally requires a stringent justifying rationale and motive that explains the request’s urgency. Every submission is formally petitioned by means of a proper request-for-assistance and despatched to the DoD’s govt secretary, the place it’s staffed for coordination — an arduous course of involving rigorous approval standards that may take weeks.
Right here is the place the issue begins.
The most recent Capitol Police request to increase Guard assist was coordinated in two days and failed to provide a convincing case for approval. Laying out its rationale, the Capitol Police referenced the Division of Homeland Safety’s Nationwide Terrorism Advisory System, notably the Jan. 27, 2021, menace bulletin, because the chief motive for the augmented safety assist.
The bulletin abstract describes a “heightened menace surroundings” utilizing phrases like “believes” or “suggests” that “ideologically-motivated violent extremists [domestic violent extremists] …may proceed to mobilize to incite or commit violence” – a considerably anemic menace evaluation to justify the continued navy presence in our Capitol.
Additionally, federal statutes and protection directives come into play when the navy is utilized in direct assist of legislation enforcement, which is the case right here. The Posse Comitatus Act of 1878, and different federal legal guidelines restrict the powers of the federal government to make use of U.S. troops to “execute the legal guidelines,” together with “search, seizure, arrest, or different comparable exercise” — a regarding authorized quandary.
What’s extra, the protection division’s assist of civil authority’s directive offers ruling steerage for any help in missions usually carried out by civil authorities. The protection regulation has six approval standards to “study” and “assess” the necessity for assist. If we use the regulation’s six standards — legality, lethality, threat, price, appropriateness, and readiness — an argument might be made that anybody of them would disqualify the Capitol Police utility.
But, as disturbing as these shortfalls are, it’s not the primary concern.
The Nationwide Guard Bureau chief’s objection to the Capitol Police demand gave two causes: (1) the Nationwide Guard is already busy with supporting COVID-19 reduction, pure disasters, and ongoing abroad deployments, and (2) to involuntarily activate the Nationwide Guard for any protection assist of civil authorities, the protection secretary will need to have the governors’ consent. However, because the memo talked about, “quite a few Adjutants-Normal and Governors have expressed their unwillingness to order the involuntary mobilization of Nationwide Guard personnel.”
And right here lies the bigger downside.
Throughout the Fox Information article is a associated story indicating that the Protection Division has thought of issuing involuntary activation orders to maintain Guard troops on the Capitol. The difficulty right here is the protection secretary alone possesses no authorized authority to involuntarily activate the Guard. Any try can be illegal and create a constitutional disaster.
The protection secretary can request, from the governors, Guard members to carry out “different responsibility” in “assist of [defense department] operations or missions.” However the protection secretary can’t order them to carry out “different responsibility” in “assist of [those] operations or missions.”
Solely a governor can order a non-federalized Guard member to carry out such responsibility. To keep away from the necessity for governors’ consent and Posse Comitatus restrictions would require an Rebellion Act declaration — a uncommon presidential decree permitting federal troops to quell riot and implement legal guidelines.
Due to this fact, if tried, the protection secretary’s orders would represent an unlawful end-run round Posse Comitatus and congressional legislative powers. The secretary must ignore Congress’s constitutional authority beneath Article I to “make all legal guidelines,” together with Posse Comitatus, and the exception to this legislation, the Rebellion Act.
So, the place does this convey us?
The chance the protection secretary is taking, both by making an attempt to involuntarily activate the Nationwide Guard to assist the Capitol Police with out the governors’ consent or by ordering them to “execute the legal guidelines” with out an Rebellion Act declaration, units a worrying precedent that undermines U.S. legislation.
The coopting of a states’ sovereign militia by the federal authorities, for use as an unlawful home police drive, distorts the vertical stability of energy between state and federal governments — an important diffusion of energy. Additional, it abdicates the states’ accountability, granted by the Structure, to guard the liberties and freedoms of their residents.
The protection secretary is ignoring the legislation, circumventing rules, and probably spawning an pointless constitutional disaster — a call that ought to strike worry into the hearts of freedom-loving People.
What our Founding Fathers feared most was a president or navy chief indiscriminately coalescing navy forces to police its residents — simply one in every of historical past’s tragic paths to tyranny and oppression.
Don McGregor is a retired Air Pressure Main Normal, is a former lead advisor to the chief of the Nationwide Guard Bureau, who’s a member of the Joint Chiefs of Workers. On this position, he was the Nationwide Guard’s director of technique, coverage, plans and worldwide affairs, growing total technique, secretary of protection coverage, and civil assist planning for the Guard’s warfighting, homeland, and worldwide partnership missions.
This text was initially revealed by RealClearDefense and made obtainable by way of RealClearWire.
