Friday News Roundup — June 5, 2020
The Perfect Storm of 2020; Militarizing Law Enforcement; History of Federal Riot Control; Thinking About 2020‘s Meaning
…Morning from Washington, DC. This is a difficult week for us, as we are sure it is for many of you.
As patriots, we are firm believers in the promises that support the American experiment: all men are created equal; equal protection of the laws; liberty and justice for all. This week, we have to acknowledge the incompleteness of that vision. CSPC CEO Glenn Nye and Chairman Thomas Pickering wrote earlier this week:
Our American democracy is facing a critical moment and a challenge to rise to the call to solve the deep injustice that remains unfortunately a part of American society and the justice system. We are deeply moved by the voices of pain, exhaustion, and anger expressed by our fellow citizens across our country today, as we are shocked by the brutal killings of George Floyd, Ahmaud Arbery, and so many other black Americans.
This is a moment that demands reflection and action. America cannot allow this story to keep repeating itself.
As an organization dedicated to reforming our system of politics to create a better functioning and more representative federal government, we must accept that a well-functioning society can never be achieved while so many of our fellow citizens live in fear of governing institutions at any level. It is a matter of implementing better policies to prevent police brutality and root out systemic racism, but it is also a matter of leadership. From the Presidency to Congress, political leaders must accept the underlying reasons for the pain being expressed by protestors tired of a long history of unequal justice, just as they must focus and unify the country around solving that problem.
American exceptionalism must be exhibited in our actions, in our sincere effort to set an example for the world in how we treat and deliver on the aspirations of all of our people.
As an organization, our motto is “applying the lessons of history to the challenges of today,” so it is unsurprising that, at a time when we are searching for answers, several of our contributors have turned to the history books to help make sense of the current moment.
Dan looks at how an epidemic (1918), an economic collapse (1929), and social upheaval (1968) add up to our experience in 2020. Ethan objects to militarizing rhetoric around protests and the potential deployment of the military to the streets. Chris responds to calls to use the military to uphold public order by reminding us that the role of the United States government is to defend the liberty of the people, not extinguish it. Michael asks us to ask ourselves what this means and how to begin to think about appropriate reforms.
We hope that you find these recourses to our shared history helpful in trying times and we hope that you will join us in our ongoing conversations about policymaking. Earlier this week, Ethan published a piece in the Diplomatic Courier about how the special operations community can use the lessons learned in counterinsurgency for a world of great power competition. We also spoke to Dr. Jung Pak about her new book, “Becoming Kim Jong-Un: A Former CIA Officer’s Insights into North Korea’s Enigmatic Young Dictator,” and with Dr. Mark Galeotti about how Russia perceives its competition with the West. This Monday, David M. Abshire Chair and former Chairman of the House Permanent Select Committee on Intelligence, Representative Mike Rogers will sit down with Washington Post columnist David Ignatius about the world of intelligence and his new book, Paladin: A Spy Novel. And next Thursday, we are hosting Christian Brose to talk about his new book, The Kill Chain: Defending America in the Future of High-Tech Warfare.
It’s Not 1918, 1929, or 1968 — It’s Much More
Dan Mahaffee
Covering the events of 2020 through the lens of history has us harkening back to some of the most challenging moments in American history. Nearly simultaneously, events have challenged our public health, economic security, and, now, the very firmament of American society. The Covid pandemic and its economic impact are twin crises that would be more than enough to define an era of history. Now, the American people are also facing a reckoning for the very original sins upon which this country was founded and the institutional racism that we have failed to stamp out of our political, legal, and social constructs. Key years in American history, 1918, 1929, and 1968 all challenged us, and, in many ways, history tells us that the tumultuous events of those years echoed through history long since then. At the same time, what we see in 2020 suggests that the system is facing an even greater challenge, one that requires us to think boldly in how we respond.
First, in 1918, there is the obvious example of the flu pandemic. Then, just as today, there was a debate on how serious the threat was. Wartime leaders sought to downplay or outright censor information about the outbreak, while cities, concerned about economic and social impact, took varying approaches to masking, social distancing, and other mitigation measures. The differences would play out in the differing disease curves and death tolls — measures of epidemiology with which we are all now familiar.
Beyond the pandemic, 1918 was also an inflection point in America’s role in the world. For the first time, American forces fought alongside allies in a global conflict, and the United States truly emerged as a global power in the conflict, and the debate over the shape of the peace that would follow. Separate from the pandemic, we have seen a similar discussion over the future of American power, the competition of rising powers, and what the contours of geopolitics will look like in a future where innovative strength, ideological appeal, and economic opportunity will matter as much, if not more, than pure military strength.
Unlike 1929, where the Great Depression began as the result of asset bubbles, economic contraction, banking crises, and deflation, the economic damage of the Covid pandemic comes from our own response to the virus, rather than behavior of market actors. That said, the impact remains immense. Unlike 1929, however, governments have risen to the challenge. Yet, do they have the appetite to continue to do so? The stimulus measures passed by Congress, combined with the massive expansion of lending by the Federal Reserve, have helped to stave off total economic collapse, but future stimulus is uncertain. Today’s positive job numbers suggest not only cautious optimism about reopening, but also the impact of programs like PPP and unemployment assistance that blunted any collapse. We must continue to be vigilant about subsequent waves of the disease and their impact. Pollyannaish assessments of the economic recovery are a headwind to the action needed to ensure that Americans can continue to remain in their homes and put food on the table. Bullish markets must be understood in the context of government support for the economy and optimistic prognostication about recovery. The divide between Wall Street and Main Street could widen if the recovery falters.
Like 1968, the anger of Americans is visible on the streets. In many ways, the Baby Boomer generation never addressed the chasms in our cultural splits from those years, and politicians, pundits, and partisans found the cold culture war a fertile ground for profit. Unlike the past, however, the specific conversation about the racial inequities in policing and criminal justice are made abundantly clear by the fact that nearly every American now has a high-definition video camera in their pocket. Millions of lenses have shattered a thin blue line and many Americans’ reflexive support for policing. Perhaps, too, as we see police forces mobilizing like occupying armies rather than those here to “protect and serve” we will ask more about the equipping, funding, and training of our police departments and the frameworks under which policing takes place. Broader questions about societal ills and the reasons we have chosen policing as the answer to them should also be considered. We’ll have many more 1968s or 2020s if we fail to shift our political debate from whether or not these problems exist to frank, yet pragmatic debates about how to best solve these problems.
All of these crises would challenge our political system alone. Now they occur simultaneously. Failures of imagination, vision, leadership, and preparedness have compounded to bring us 2020, and many ask where we go from here. In POLITICO this week, there was the stunning acknowledgement — in a paper that caters to the capital’s “elite” — that “Washington can’t fix this.”
The POLITICO team rightly notes many of the factors at play of why Washington can’t deal with these challenges, but I am reminded of so many encounters I have when traveling. They often start when a conversation starts on an airplane, in a hotel lounge, or similar spot, where I explain what I do. Often I get a response of disgust about Washington and the shape of our government. I then reply that it’s not the fault of Washington, because “you choose who goes there.” This usually prompts more good conversation where I learn about local political dynamics, but it can also result in a sudden silence.
These crises show us that our political system is in need of reform, but we must also ask ourselves, as citizens in a democracy, what we demand of our leaders. Are they peddling real solutions, or rolling out partisan pablum? Can we continue to afford the priorities of culture warriors when we face challenges at home and from abroad that require American unity? Do our leaders have a true vision for our future, or are they grasping at historical nostalgia for a past that never really existed? Are we willing to involve ourselves in the political movements pushing for reform and change, or will we continue to watch the governance of our nation like some perverse reality show? These are all questions that we must answer, of our leaders and ourselves, as we all play a role in writing the first draft of the history of 2020.
Posse Comitatus, Constitutional Authorities, and the Tools of Tyrants
Ethan Brown
The aim of this analysis is to decry use of the term “battlespace” by Defense Secretary Mark Esper, and the sustained White House rhetoric on using Title 10/32 military forces to counter the wide-spread and sometimes violent protests going on around the country over the past week. While constitutional provisions exist for the application of the military on domestic soil (subject to particular and specific congressional limitations), the labeling and loquacity of this week are dangerous. It recklessly incites further disorder in our national architecture, and drives us further from a peaceful, amicable solution between federal and state governments, and the citizens of these United States.
Defining An Insurrection
The U.S. Military is not a law enforcement agency. It is the mechanism of safeguarding the citizens, partners and allies, and the United States’ interests abroad. It is constitutionally authorized to execute this function under Title 10 of the U.S. code, which defines the roles, responsibilities, scope and limitations of ‘active duty’ personnel and resources under the purview of the Department of Defense, the Secretary of Defense, the Joint Chiefs, and at the direction of the Congress.
To delineate, Title 32 authorizes the state militias under the direction of the States’ legislature, separate and distinct from those Title 10 forces, to participate in the security of the states at the direction of the federal level, for the purpose of augmenting law enforcement activities. These Title 32 forces may be federalized to augment the functions of the ‘active duty’ component of the DoD, and often occurs in the vein of filling deployment billets, participating in partner nation exchange/training, and other activities in the execution of non-domestic (read, National) security. This means Minnesotan resident soldiers/airmen serving in a federalized role in their home states, excepting special cases like natural disaster assistance or humanitarian missions.
Until such time as an adversary or foreign power violates the sovereign territory of the United States, there reside no grounds under which the domestic environs of the United States should be referred to as a ‘battlespace’. The streets of D.C., Manhattan, Minneapolis and other metropolises are not battlespaces to be dominated. In the same tone as this space has clarified that U.S. military personnel are neither “killing machines” nor the tools of tyrants, the citizens of these United States are neither terrorists nor lawful combatants.
That there is criminal activity- interspersed with the masses exercising their First Amendment rights- is beyond dispute. Those participating in illicit behavior are doing little more than undermining the legitimate action of redress for grievances during this civil discord. However, the situation cannot rightly be classified as a coordinated, methodical effort to disrupt established order. In other words, these domestic protests are not an insurrection.
An insurrection is defined by the Cambridge Dictionary as the “organized attempt by a group of people to defeat their government and take control of their country, usually by violence”. Ultra-conservative hawks and statists may beckon for repressive measures by the federal government, in order to stamp out the shadowy and feckless ANTIFAs of the world, but that’s a message of partisanship. Examples of actual insurrections from history include:
The Spartacus Slave Rebellion (73–71 B.C.): The well-known story of a former military conscript turned slave turned gladiator who led an uprising against the oppressions of Rome. The television adaptation on Starz is what Game of Thrones wishes it could be.
The Orange Revolution (2004–05): Ukraine’s highly publicized efforts to throw off the Russian yoke and cronyism in the aftermath of the Viktor Yanukovych run-off election.
Some libertarian farmers threw $1.7 Million worth of tea into the Boston harbor to protest the tyranny of George III, what followed in the intervening 247 years has been this experiment we call democracy. The American Revolution was textbook insurrection. (1773)
What is happening in the United States right now cannot rightly be defined as insurrection, by which the federal government may exercise its constitutional authority to employ Title 10 military forces in the act of law enforcement. The reality of criminal and illicit activity short of open insurrection remains the point of contention, however these criminal endeavors remain firmly in the purview of law enforcement. NOT the federally administered U.S. military.
Posse Comitatus and Federalizing the State Militia
Posse Comitatus is the authority within the constitution by which the president may utilize those Title 10 entities to enforce the rule of law, but only at a) the request of a state legislature, b) when the unrest/activity so interferes with federal or state law i.e. the activity [protests] obstruct or prevent due process or deprives citizens of its rights, or c) the Insurrection Act. Broad, and vague, is the scope of the Insurrection Act clause under Posse Comitatus, so much that the last time it was used was under George H.W. Bush in 1992 during the L.A. Riots. It is a dangerous and slippery slope, one that has instigated reformative efforts by members of congress like Senator Tim Kaine to narrow that sweeping scope.
Even the designation of the ANTIFA group as a domestic terror organization does not substantiate the need for the deployment of Title 10 forces on domestic soil. First, there is no executive constitutional authority to do so, and secondly, ANTIFA exists as a far-left fringe entity in the same vein as the far-right neo-nationalist movement- outside the accepted norms of society writ large and no mechanism for bridging the divide in our nation. ANTIFA does not conduct ‘operations’ of significance as would warrant the attention of the U.S. military. Even if ANTIFA were somehow branded a terror organization, there already exists a federal law enforcement architecture for the express purpose of addressing domestic terrorism — it’s called the FBI.
Rules of Engagement (ROE) V. Standing Rules for the Use of Force (SRUF)
While participating in combat operations, U.S military personnel are subject to a restrictive and binding set of conditions-based rules for engaging enemy forces. These are known as the Rules of Engagement. For service members serving in combat, there is always the inherent right to self-defens — i.e. if shot at you have every right to shoot back in the endeavor to reduce/eliminate the threat. These rules are broken into defensive and offensive categories — meaning certain rules outline the guidance for nuanced modes of self-defense (imminence by the enemy’s demonstrated intentions v. actual hostilities/actions; others are intended to provide commanders at various levels with the ability to engage first — but only when explicit, particular conditions are met with multiple sources of credible information/intelligence and such authorities are restricted to higher echelons of command.
Each servicemember who discharges a weapon or employs lethal effects (airstrike, artillery) could become subject to an immediate investigation and potential career-ending action in the event that ANY wrongdoing was found by a legal review. U.S. military personnel are not entitled to any form of Qualified Immunity, which is largely why this legal technicality is so controversial.
The Standing Rules for the Use of Force (SRUF) are not as situationally nuanced as ROE, but equally constricting, elaborate and specifically restrict the application of force by military personnel in this situation. The variables defined are broken into over 20 separate and distinct rules/sub-rules on specific interactions. These personnel must recall these multifaceted restrictions in real time, against their fellow American citizens. The potential for a catastrophic misstep and violation of rights is too close for any comfort.
This is Not a Battlespace
The U.S. military is no panacea for filling a leadership vacuum, filtering the discord of a nation or hand-waving antagonists away. The active duty component of the DoD is geared outward- securing our national interests against threats abroad. Power rivals, international extremist/terror organizations, and nuclear deterrence are why these Title 10 forces exist, in addition to their Title 32 federalization augmentees.
Fortunately, Defense Secretary Esper has since walked back his position on the use of active duty military personnel for domestic deployment and cavalier ‘battlespace’ lingo, but the implications (read- lost credibility) have already run their course. Further, General Mark Milley, the Senior Military advisor to the Secretary of Defense and the President (as Chairman of the Joint Chiefs) has directed U.S. personnel through a pointed DoD memo to “stay true to the ideal that is America”.
The servicemembers of the U.S. military did not take an oath to supplant the rule of law. They are sworn to support and defend the constitution of the United States against all enemies, foreign and domestic. ‘Enemies…domestic’ means repelling invaders and safeguarding our way of life. Not the search and seizure of our own citizens as tools of the state. The U.S. military are expected to uphold and represent the very best of the nation — sworn to defend the ideals of this democracy. These cities are not battlespaces, the protestors are not combatants, and U.S. service members are not the tools of tyrants.
Riots, Insurrections, and Protests (Oh My)
Chris Condon
In many ways, this Roundup is one of the most straightforward we’ve written. As the country wrestles with centuries-old issues of power and its distribution, our institution searches for the lessons that can be gleaned from this moment in history. Dan looks back on some of the most tumultuous years in American history and how they relate to our modern age, Ethan discusses unprecedented uses of the power of the state in our nation, and Michael relates our nation’s trajectory to that of revolutionary France. In all honesty, these brilliant and apt analyses leave little to be covered, but I believe that the character of the current struggle for equality can be considered historically in one important remaining way: the manner in which government is trying to stop it.
This week, Senator Tom Cotton published an op-ed in the New York Times entitled “Send In the Troops.” The bluntness of his chosen title gives a window into the nuance (or lack thereof) of his argument: the president should use any means necessary to quell violent protests across the country. For the Senator from Arkansas, this means using the authority of the Commander-in-Chief to march troops into American cities where he believes state and local officials are doing an “inadequate” job of restoring order. While Ethan covers the ironclad legal argument against Cotton’s proposal, the Senator also employs historical examples of riot control in America in a desperate attempt to buttress his argument. As does the rest of his piece, this falls flat.
First, Cotton willfully misconstrues the Insurrection Act of 1807 to assert that the president has limitless power to deploy the United States Military in the event of civil disorder. From its inception, the Insurrection Act was actually meant to limit the power of the president to use military force to exert their will domestically, and in combination with the Posse Comitatus Act of 1878 restricts the legality of deploying federal troops to enforce domestic law by the president. The senator ignores the fact that the law requires specific justifications for the use of military force to suppress a domestic insurrection: that a state government requests intervention from the president or that the state government’s actions make it impossible to enforce federal law.
Cotton’s willful ignorance continues into multiple ill-fated historical examples. First, he employs the Eisenhower, Kennedy, and Johnson administrations in service of his troubled cause. First of all, the situation between 1953 and 1969 was far different from the protests we face as a nation in 2020. Minorities across a large portion of the south were subject to widespread discrimination not only by a vengeful majority but by state governments, which used their power to outwardly, violently, and systematically disadvantage a large segment of the population based on race. All three presidents of this era used federal troops to enforce federal court orders against discrimination by southern states, invoking the second Insurrection Act justification mentioned above. Although state governors opposed the action, it was clear that the wholesale violation of federal law required limited, targeted action by the federal government. President Trump has no such justification.
Cotton then goes on to hold up the example of President George H.W. Bush during the Rodney King Riots of the 1990s. While rioters then were reacting to a tragically similar situation as that of the George Floyd murder — police officers acquitted after murdering a black man — the circumstances of Bush’s intervention were much different. The governor of California at the time, admittedly unable to control widespread, extremely destructive violence, formally requested assistance from President Bush. Again, the use of National Guard personnel was limited and targeted, only employed after all other avenues were exhausted. As the Constitution requires, federalism was preserved. Senator Cotton and President Trump now call for the destruction of that delicate web, an endeavor that Eisenhower, Kennedy, Johnson, and Bush would hardly countenance.
I would like to touch on two historical examples that actually support my point, unlike Senator Cotton’s references. Shays’ Rebellion and the Whiskey Rebellion, actual armed revolts against governmental authority, were not dealt with by federal authorities. Shays’ rebellion, sparked over bonuses promised to veterans of the American Revolution, was quelled by the Massachusetts state militia during the Articles of Confederation period. Although the example was used by many to promote the formation of the federal government, it is preposterous to think the founding generation would call for a national army to suppress a limited violent protest that doesn’t even purport to be an insurrection. The Whiskey Rebellion, a revolt over whiskey excise taxes, was dealt with using state militias under the leadership of President Washington. These forces were provided voluntarily by state governors, with no federal troops utilized and no forceful edicts from the federal government.
Riots create fear and deprive Americans of their inborn property rights. Peaceful protests, like the right to property, are an inborn right guaranteed to us by our Constitution. Although states and localities should do their best to promote peaceful protests, marching federal troops into said places over the objection of local authorities with little justification will only serve to provoke protests to turn violent and would deprive otherwise peaceful protestors of their Constitutional rights. Further, doing so would be an insult to the law and to history — two things that Tom Cotton seemingly cares little about.
Thinking about History as It Unfolds
Michael Stecher
Less than halfway into 2020, the historical analogies abound. 31 years after Tiananmen Square, Americans are assembling — largely peaceably — from Bar Harbor, Maine to Honolulu, Hawaii and Fairbanks, Alaska to San Juan, Puerto Rico to petition the government for a redress of grievances. Meanwhile, a United States Senator who fancies himself an opponent of the Chinese Communist Party and its heavy handed attempts to stifle dissent, has taken to the pages of the New York Times to advocate for heavy handed attempts to stifle dissent.
I like Dan’s explanations of why 2020 feels to him like 1968, 1929, and 1918, and his acknowledgement that none of those analogies perfectly capture the way this moment feels. The study of history is important always, but especially relevant when understanding how past crises resolved and how leaders succeeded or failed. Not every downturn becomes a depression, not every protest leads to an uprising, and not every uprising becomes a revolution. Good leaders learn from the mistakes of the past and help the people they seek to lead. Bad leaders flail about and ignore the past. They sow the wind before reaping the whirlwind. Now is the time to put our current moment in context and listen, so that we can continue the mission set out in the preamble to the Constitution.
I would add one more number to Dan’s list: 1848. Some of us may dimly recall reading about the ideas of the “Long Nineteenth Century” or the acerbic wit of “18th Brumaire of Louis Bonaparte,” but the core of the story of 1848 is about economics, politics, and social contagion. The arrival in Europe of the potato blight — primarily remembered in American history as the cause of the Irish Potato Famine — led to a massive demand shock to the economy that devastated production and caused a deflationary spiral and a financial panic. Suddenly, large numbers of angry people are in the streets all across the continent demanding a change.
1848 has a mixed legacy. In France, it led to the coronation of Napoleon III (the farce in the statement “the first time as tragedy, the second time as farce”). In Italy, it set the stage for risorgimento and the creation of the Kingdom of Italy. All across the continent, constitutionalists, nationalists and democrats joined forces to try and overthrow multi-ethnic empires, but many of them died on Austrian, Russian, and Prussian bayonets. This makes that revolutionary eruption a rorschach test, everyone sees something different in it.
Socialists see 1848 as a stage in the political education of the proletariat that began in 1789 and the decisive break between workers and bourgeoisie, because the middle classes chose Bonaparte. Liberals see it as the proof of concept of the democratic state because the United States and United Kingdom were able to contain revolutionary violence with political and social reform. Nationalists see it as the moment when the fundamental units of modern politics — homogeneous ethnic groups seeking authentic political expression — first asserted themselves. There are even Metternich fans out there who think it was the beginning of a great mistake.
All of this is to say that the story we tell ourselves about the meaning of events is critical. On the first level, the meaning of the protests that have followed the police killing of George Floyd is an obvious one: they are the continuation of the American project’s work to atone for some of its original sins, slavery and racism. The struggle to make real the promise of the United States for our black neighbors is unfinished and remains a stain on our national pride. The proliferation of cameras in our society has pierced the conspiracy of silence around the pervasive deployment of state violence against Black Americans.
This is a powerful story that connects the unfinished legacy of emancipation and the Civil Rights Movement through stories like Michael Brown, Tamir Rice, Trayvon Martin, and a horrifying number of black people whose unjust treatment by the organs of American justice never made the front page. You know that it is speaking to large majorities of Americans when every brand from Vail Mountain Resorts to the National Football League is rededicating itself to addressing racial inequity — though the NFL should probably call Colin Kaepernick before too warmly regarding their own righteousness.
When our children and grandchildren learn about the protests of 2020, they will put it in a historical narrative that stretches into the past and continues into the future. There is no question that marchers saying “I can’t breathe” in 2020 are like marchers saying “I can’t breathe” in 2014. But you should ask yourself to what extent today’s protesters are calling for an end of the militarization of post-9/11 domestic politics. To what extent are they continuing the “Occupy Wall Street” protests or reflecting the dim economic prospects of Millennials and Zoomers. Is it related to the COVID-19 outbreak or is it all just about President Trump?
History is the collection of stories we tell ourselves about the past to make it all make sense and determining how this week makes sense is essential to addressing the policy concerns that animate it. Police and criminal justice reform? Yes! But is it enough? I don’t know! If you share my belief that most cases of revolutionary violence are bad — too often revolutionaries hope for liberty and get Robespierre, hope for bread and get Stalin, hope for justice and get Khomeini — we need to design reforms that can protect the constitutional system while addressing the people’s needs. There are large numbers of angry people in the streets demanding a change; we need to listen.
The views of authors are their own and not that of CSPC.