Ask ChatGPT: Can the president use the military against American citizens on American soil?

Yes, the U.S. president can use the military against American citizens on American soil in certain circumstances, but only under specific legal frameworks and constraints. The power to deploy the military domestically is not unlimited and is governed by a combination of laws, regulations, and constitutional protections. Here's a detailed explanation of when and how this could happen:


1. Posse Comitatus Act (1878)

The Posse Comitatus Act prohibits the use of the U.S. military for domestic law enforcement purposes in normal situations. It was enacted to prevent the federal military from being used as a tool of domestic policing.Key point: This law restricts the military from performing tasks typically handled by civilian law enforcement agencies, such as making arrests, conducting searches, or seizing property.

However, exceptions exist that allow military force to be used in exceptional situations.


2. The Insurrection Act (1807)

The Insurrection Act is the primary legal authority that allows the president to deploy the military within the United States to suppress insurrection, rebellion, or domestic violence.

Under the Insurrection Act, the president can send federal troops to states or localities to restore order, even without the consent of state governments, in cases such as:Civil unrest: For example, large-scale riots, rebellion, or violent protests that state or local governments are unable or unwilling to control.
Insurrection or rebellion: If there is a broad, organized effort to overthrow the government or disrupt the normal functioning of the U.S. political system.

The Insurrection Act has been invoked in history during times of extreme unrest, including:

- The Civil War (to suppress the Confederacy).

- The 1992 Los Angeles riots, when President George H.W. Bush sent federal troops to assist in quelling violence.

- The 1960s Civil Rights Movement, when federal troops were sent to enforce desegregation.


3. Martial Law

The president also has the theoretical ability to declare martial law, though this is extremely rare and controversial.

- Martial law essentially suspends regular civil governance and gives the military direct control over certain areas. It might happen in situations of national emergency, natural disaster, or widespread civil disorder, where the normal legal structures cannot function effectively.

However, the declaration of martial law would suspend civil liberties such as habeas corpus, free speech, and due process rights, and it is generally seen as a last resort.


4. National Guard and State Authority

The president has the authority to activate the National Guard for domestic purposes, including quelling civil disturbances. This can be done under both state authority (by the state governor) and federal authority (when the president federalizes the National Guard).Under state authority, governors can use the National Guard to deal with local emergencies without federal intervention.
If the president federalizes the National Guard, it places these forces under federal control, allowing them to be used for larger-scale national purposes, including handling unrest or emergencies that involve American citizens on American soil.


5. War Powers Resolution and Oversight

Even when the military is deployed domestically, the War Powers Resolution (1973) requires the president to notify Congress within 48 hours of military action and limits military operations to 60 days without congressional authorization. This serves as a check on the executive power to prevent overreach.


6. Legal and Constitutional Safeguards

Despite the president's power to deploy military force on American soil, this authority is not without limits:

- Due Process: Any actions taken by the military must still respect constitutional rights. The Fourth Amendment (protection against unreasonable searches and seizures) and Fifth and Fourteenth Amendments (due process and equal protection) would still apply.

- Public Oversight and Accountability: Use of the military against citizens would likely provoke significant public scrutiny, legal challenges, and political consequences. In the past, military intervention in domestic issues (such as during the Civil Rights Movement) has been subject to judicial review and public debate.


Summary

The president can use the military against American citizens on American soil, but only under specific circumstances and legal frameworks, such as the Insurrection Act or in cases of martial law. These actions are constrained by laws like the Posse Comitatus Act, and any deployment must be in line with constitutional rights and subject to Congressional oversight. In practice, the use of military force domestically is reserved for extreme situations, such as widespread violence, rebellion, or national emergencies, and would be heavily scrutinized.

From the Federation of American Scientists: History of the National Security Council 1947-1997

In case you are into this level of detail, here's a look at the steps that the US government took after WW2 following the passage of the National Security Act to establish the security apparatus we have today.

- Click here for the report.

Some random items on Syria

From Foreign Policy: The War Precedent.

- The author review recent history regarding presidential war powers.

From Breaking Defense: A Limited Strike on Syria?

- The author questions the effectiveness of limited strikes and wonders if a limited strike on Syria will be truly limited.

From The Atlantic: Your Labor Day Syria Reader.

- The author highlights commentary from an analyst with expertise on the Middle East that tries to determine what we know and don;t know about the chemical attack in Syria.

Members of Congress insists Obama seek congressional approval in order to strike Syria

From The Hill:

More than 100 lawmakers, including 16 Democrats, have signed a letter that says President Obama would violate the Constitution by striking Syria without first getting authorization from Congress.

A total of 107 lawmakers had signed the letter as of 3 p.m. Wednesday, highlighting bipartisan interest and growing momentum in ensuring a role for Congress in any decision to use force in Syria.

“Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution,” states the letter, spearheaded by Rep. Scott Rigell (R-Va.).

The Speaker of the House wants a case to be made for intervention:

In a letter to the president, Boehner said the briefings key lawmakers have received so far have failed to assuage their concerns about the administration's strategy.

“I respectfully request that you, as our country’s commander-in-chief, personally make the case to the American people and Congress for how potential military action will secure American national security interests, preserve America’s credibility, deter the future use of chemical weapons, and, critically, be a part of our broader policy and strategy," Boehner wrote.

He stopped short, however, of demanding a congressional vote, even as more than 107 House members have signed a letter to the president making the case for such an authorization.

Boehner hinted that he supports retaliation following allegations Bashar Assad's forces used chemical weapons, saying the president's response had implications for America's “credibility” beyond Syria, notably in Iran. But he asked no fewer than 14 pointed questions about the long-term goals of a military response, notably regarding the risks of empowering Islamist militants and drawing Assad allies Iran and Russia into the fight.

Some House members argues that an attack would violate the War Powers Resolution:

House members demanding congressional approval for a military attack against Syria are making detailed legal arguments that ignoring Congress would violate the War Powers Resolution (WPR).

Dozens of House members are now on record as insisting that Congress must authorize military action against Syria, including more than 100 who plan to deliver a letter to the White House on Thursday.

That letter argues that the Obama administration is stretching its authority under the WPR, which was passed in 1973 and defines the circumstances under which the executive branch can commit military assets overseas.

Under the WPR, the president can "introduce United States Armed Forces into hostilities" pursuant to a declaration of war, specific statutory authorization, or under a national emergency "created by attack upon the United States, its territories, or its armed forces."

In the letter to be sent Thursday, members argue that Obama has already weakened that standard in regard to Libya. It notes that in 2011, the administration's Office of Legal Counsel said Obama can rely on his constitutional power to safeguard the "national interest" by conducting limited military operations in Libya.

Does a strong military suppress democratization?

I think the following comparison between prospects in Egypt and Tunisia suggest that it does.

W]hatever dangers Tunisia now faces, there is virtually no possibility of a military coup followed by a state-sponsored war on the Muslim Brotherhood, as in Egypt. And this is so because of what may be the most salient difference between the two countries, at least in regard to their political trajectory: Egypt has an overwhelmingly politicized and intrusive army, and Tunisia does not. “None of the generals want a coup d’état,” says Adnen Hasneoui, an activist close to the ruling Ennahda party. “The only group which could carry out a coup would be the national police, and Ben Ali” — the former dictator Zine El Abidine Ben Ali — “designed the organization chart so that the police don’t have the power.” Indeed, Ben Ali’s inadvertent gift to Tunisia was to keep the military weak — Tunisia has only 27,000 very poorly equipped troops — and to exercise firm control over the Interior Ministry police.

Real Politik: Obama to provide limited arms to Syrian rebels.

The NYT describes the White House's decision to do so after waiting on the decision whether to intervene in the Syrian Civil War for two years. Advisers have been conflicted about going forward - and still are apparently.

. . . the Obama administration remains deeply divided about whether to take more forceful action to try to quell the fighting, which has killed more than 90,000 people over more than two years. Many in the American government believe that the military balance has tilted so far against the rebels in recent months that American shipments of arms to select groups may be too little, too late.Some senior State Department officials have been pushing for a more aggressive military response, including airstrikes to hit the primary landing strips in Syria that the Assad government uses to launch the chemical weapons attacks, ferry troops around the country and receive shipments of arms from Iran. But White House officials remain wary, and on Thursday Benjamin J. Rhodes, one of Mr. Obama’s top foreign policy advisers, all but ruled out the imposition of a no-fly zone and indicated that no decision had been made on other military actions.

The decision has angered some of Obama's supporters and pleased some critics, but I think the most interesting arguments are from those who suggest the decision is based on realpolitik, which is defined as "politics based on practical considerations: politics based on pragmatism or practicality rather than on ethical or theoretical considerations."

Here's a quote pulled fromt the wikipedia page on the subject:

"The study of the powers that shape, maintain and alter the state is the basis of all political insight and leads to the understanding that the law of power governs the world of states just as the law of gravity governs the physical world."

President Nixon was argued to base his foreign policy on the it - meaning that he was guided less by principle and theory than on the need to deal with the powers that existed in the world in a pragmatic manner. Increasingly President Obama is argued to have a similar approach in his foreign policy. Ideals - including human rights - take a backseat to whatever is necessary to check the powers of world nations.

Here's a suggestion that this is behind not only the delayed response to the civil war, but the limited support for the rebels right now. There are forces behind both the existing regime and the rebels that we do not care for, and that we consider destabilizing. Iran and Hezbollah is backing Assad, and groups affiliated with radical Islam are backing at least some of the rebels. While we are not anxious to have either side win, a long drawn out resource depleting conflict between the two could make all less capable to be disruptive in the Middle East.

A prolonged war may be in our best interest.

But there could be another reason for doing just enough to keep the two sides fighting. The Assad regime is increasingly relying on Hezbollah to fight throughout the country. The rebels for their part are relying on jihadist and al Qaeda allies to fight back. Keeping two of the United States’ most active terrorist enemies fighting each other might be seen in some circles as not such a bad thing.

This allows for human rights abuses, but realpolitik does not take that into consideration as a valid issue.

From the NYT: Who Will Mind the Drones?

A terrific op-ed from the NYT.

We've been discussing expanded executive power, and especially the increased power of the president in his role as commander-in-chief. Part of this concerned claims that the president has broad authority over launching cyber attacks, and some concerned the president's ability to direct droe attacks. These are generally done without external checks. presidents tend to claim that doing so - in any situation - violates their commander-in-chief powers, but since some of these have been launched against American citizens who seem to have sided against the US.

This raises questions about due process.

A former solicitor general for the Bush Administration looks critically at the idea that a drone court in the judiciary should be set up to provide that check on the executive. He does not think this is a good idea:

There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.

He argues that a national security court - contained within the executive branch - is preferable:

Imagine instead that the president had an internal court, staffed by expert lawyers to represent both sides. Those lawyers, like the Judge Advocate General’s Corps in the military, would switch sides every few years, to develop both expertise as repeat players and the ability to understand the other point of view.

The adjudicator would be a panel of the president’s most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review. Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

Such a court would embed accountability and expertise into the drone program. With a federal drone court, it would simply be too easy for a president or other executive-branch official to point his finger at a federal judge for the failure to act. With an internal court, it would be impossible to avoid blame.

Of course this does not provide a check in the way that the authors of the Constitution envisioned it, but it does reiterate the idea that the president has special powers - and a good deal of discretion - when it comes to military affairs.

Interview with Stanley McChrystal

I just heard a strong recommendation for this interview with the retired general regarding counter-terrorism policy among other things.

Worth thinking about prior to looking at foreign policymaking later this semester.

- Wikipedia: Stanley McChrystal.
- Daily Show segment featuring the general.

No more WW2 veterans in the Senate

Once Senator Frank Lautenberg retires, there will be no one in the Senate who served in WW2. Only two members of the House served, both in their 80s. Once they are gone, living memory of the war will go with them.

It's worth noting that it is very likely that no veteran of the Vietnam War is likely to be elected president.

Here's a graph which shows the percentage of veterans in Congress as a whole has dwindled considerably over the decades. Perhaps this is a consequence of the all volunteer military.

Now that women can serve in combat, can they be drafted?

The question came up in one of our classes today.

I ran across this Washington Post piece that discusses it. A 1981 Supreme Court decision - Rostker v. Goldberg - held that women did not have to register for the draft, and that ruling seems to still be in place today.

The Pentagon and the Selective Service, which keeps a roster of prospective male enlistees, say it’s too early to tell.

“Until Congress and the president make a change, we will continue doing what we’re doing,” Richard S. Flahavan, a Selective Service spokesman, said Friday. Namely, that means sticking to registering only male U.S. citizens and permanent residents ages 18 to 25.

It was quite the debate at the time, some men argued that is women could not be registered, then the entire process was unconstitutional. The Supreme Court stated that the fact that women could serve in combat justified their exclusion from the registration:

In a 6 to 3 vote, the Supreme Court ruled that it was acceptable to exclude women. Writing for the majority, Justice William H. Rehnquist determined that “the fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration.”

In a dissenting opinion, Justice Thurgood Marshall chided the ruling, saying it “places its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women.’ ”

Greg Jacob, the policy director of the Service Women’s Action Network, which advocated for the repeal of the ban on women in combat, said his organization thinks women ought to register with Selective Service.

“Part of equality means women have that shared responsibility,” he said.

Registering for the draft does not means that all women - if drafted - would have to serve in combat I assume, just those physically able. This issue complicates the question of gender equality.

- Women and the Draft in America.

The military lifts combat ban on women

From the NYT:

Defense Secretary Leon E. Panetta and Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, on Thursday formally lifted the military’s ban on women in combat, saying that not every woman would become a combat soldier but that every woman deserved the chance to try.

They said that the new policy was in many ways an affirmation of what was already occurring on the battlefield, where women have found themselves in combat over the past decade of war in Iraq and Afghanistan, and that it was essential that the military offer fully equal opportunities to both women and men.

“They’re fighting and dying together, and the time has come for our policies to reflect that reality,” Mr. Panetta said at a packed Pentagon news conference.

The decision follow a lawsuit which argues that women are effectively already i ncombat situations, but cannot take advantage of that fact to advance their military careers.

US military spending in two handy graphs

Both come courtesy of Andrew Sullivan, who stole them from other people.

Here's a description of spending over time - adjusted for inflation.



We are spending more now than we have in at least 50 years - it would be nice if the graph went back through WW2 at least. Believe it or not, after the end of the Cold War, people spoke of the peace dividend since a large military was no longer needed - but notice the impact of 9-11.

This graphs shows US military spending compared to that in the next nine nations in the top ten:



We spend considerably more than the next nine combined, and likely more than the rest of the world along with it. The question is whether this is necessary to secure the nation, or just pork. A reward for well connected military contractors and jobs for people in key congressional districts.

One argument in favor of having the dominant military in the world is that it helps cement the US's economic dominance as well. We own both the seas and space. That does contain dividends.

Apparently it used to be much easier to fire generals

It happened a lot in World War 2, but not in Vietnam or Iraq.

And author details the factors driving the change in a new book, and considers the consequences.

Listen to an interview with Thomas Hicks here.

This adds detail to our upcoming look at the federal bureaucracy.

3 - Summer 2 GOVT 2302 Written Assignment #3

A few posts below you'll see a link to a story to the "Lethal Presidency." I want you to detail what that might be, and how this ties into a principle topic regarding the power of the presidency over American history - it has increased substantively, especially in regard to foreign and military power. Often this has been a result of the increasingly sophisticated technology available to the president, unmanned drones and who knows what?

Here's the article that kicks this off:
- The Lethal Presidency of Barack Obama.

I want you to read it and some of the responses to it and comment on whether technology - and the reality of the war on terror - have marked a permanent change in the nature of presidential power. Is Obama acting any differently than President McCain would have acted?

Put this into context with the rise of military and presidential power following the end of WW2. is this just part of ongoing increase in the power of the presidency?

From an intrepid student: Pentagon Study Finds Beards Directly Related To Combat Effectiveness

Read all about it here.

Jonathon Burns was the lead researcher in the study.

“We took 100 soldiers. 25 were Special Forces qualified and had beards, 25 were Special Forces qualified without beards, 25 were regular Army allowed to grow beards for the study, and the last 25 were regular Army without beards. All 100 of these subjects were in direct combat in Afghanistan during the study.”

He continued, “Xegis Solutions had several teams of researchers embedded with these troops to make observations on their combat effectiveness. The results were overwhelming, out of the 50 soldiers with beards, zero were wounded or killed and they had a significantly higher accuracy of fire than the soldiers without beards. The soldiers lacking beards had a higher rate of weapons malfunctions and basically, shit went wrong most of the time.”
Since WWI, the military has banned beards, but troops in Afghanistan woudl like to see that changed. Beards - being manly and all - allows one to blend in with the locals.

One soldier in the violent border area of Kunar province estimates that his combat outpost gets attacked almost daily. But when the base received a visit recently from a commanding officer, the soldier recalls, "the main thing" he told the soldiers is that they needed to shave more frequently. They did shave, but they felt they gathered better intelligence with locals when they were unshaven, as locals felt more comfortable talking to bearded men.

Where troops come down on beards is often the difference between the junior and senior officer ranks.

While junior officers are quickly becoming used to a counterinsurgency approach to combat that tends to be nonlinear and more focused on influencing perceptions, says a senior military official here, some are less willing to be nontraditional or to do away with disciplinary checklists that include having a short haircut and a close shave. Sometimes with reason, he adds. "You could argue that we're not here to be liked; we're here to be respected."

But occasionally junior and senior officers are on the same page. One junior soldier was given special dispensation by his commander to wear a beard since he works in close proximity with Afghan security forces. That has been invaluable, the junior officer adds, in helping to build trust and garner the respect of his Afghan coworkers.
Comments from veterans are especially welcomed.

Combat stress linked to killings in Afghanistan; has the all volunteer military been pushed to the brink? Should the draft be reinstituted?

Those are among the questions being asked after news reports indicate that the sergeant that killed 16 Afghan civilians served four tours of duty and suffered the stress that seems to follow such tours. Attention is now turning to what services are offered to returning troops and whether they are sufficient, and the harder question about whether too much is being asked of the all-voluntary military. Should we return to the draft in order to lessen the burden volunteers carry?

-  Diane Rehm: Aftermath of Deadly Attack on Afghan Villagers.

I'd also monitor public opinion on the military. Since 9-11, support has been very high, but as anyone alive during the last years of the Vietnam War (and the My Lai Massacre) can tell you, this can change quickly.

Is the Military-Industrial Complex Invincible?

Apparently it is, despite warnings from Dwight Eisenhower:


Today we are living Ike’s nightmare.  Defense spending is not just one of the most sacrosanct parts of the budget but also one of the largest and most inscrutable. Adjusting for inflation, military spending has grown for an unprecedented 13 consecutive years and is now higher than at any time since World War II. Even excluding war costs, the military baseline budget has grown by about 50 percent during the last decade.

Yet the faintest suggestion of a plan to reduce the rate of the defense budget’s growth inevitably triggers dire warnings that Americans will soon be speaking Russian, Chinese, Arabic, or the mother tongue of whoever is deemed the most powerful adversary of the moment.

This is a lesson in the difficulty of shrinking spending in the US.

For information about global spending on the military click here.

Obama Proposes Military Policy

President Obama announced his military policy yesterday. NYT coverage can be found here. A little snippet: 

Mr. Obama outlined a new national defense strategy driven by three realities: the winding down of a decade of war in Iraq and Afghanistan, a fiscal crisis demanding hundreds of billions of dollars in Pentagon budget cuts and a rising threat from China and Iran.
Slate argues that the cuts will pose "existential" problems for the army and the marines.

The report containing the recommendations can be found here

DARPA is trying to develop communications through telepathy

This builds on our discussion below of the relationship between the military (specifically DARPA) and technological development.

We're no strangers to crazy DARPA projects around here, but this one especially strikes our fantastic fancy. The agency's researchers are currently undertaking a project -- called Silent Talk -- to "allow user-to-user communication on the battlefield without the use of vocalized speech through analysis of neural signals." That's right: they're talking about telepathy. Using an EEG to read brain waves, DARPA is going to attempt to analyze "pre-speech" thoughts, then transmit them to another person. They first plan to map people's EEG patterns to his / her individual words, then see if those patterns are common to all people. If they are, then the team will move on to developing a way to transmitting those patterns to another person. Dream big, that's what we always say!

Obama Has No Doctrine - The Atlantic

Obama Has No Doctrine - The Atlantic

- NYT: Is there really an Obama Doctrine?
- The Obama doctrine: A gray area the size of Libya.