With the National Guard now active in 22 states and governors continuing to declare more severe emergency measures daily, the U.S. military is preparing forces to assume a larger role in the coronavirus response, including the controversial mission of quelling "civil disturbances" and enforcing the law, a mission that the military has not engaged in for almost 30 years.
Within military circles, opinion is split over whether federal forces should muscle their way in to do more. State governors and their respective National Guard units, not the federal government and the active duty military, are primarily responsible for handling domestic emergencies: that's the law and it's also common sense, since local officials are always closer to a crisis and generally more familiar with the people affected.
The civil disturbance mission requires a deft hand that men and women who have been in battle might not have, and some question whether soldiers are trained or appropriate. The Pentagon contingency plan for dealing with civil disturbances also does not anticipate any scenario like coronavirus, where widespread deployment would thrust more responsibility into the hands of low-level commanders on the scene. There, military insiders say, the policies governing when federal troops can intervene and when they can use force are skewed towards absolutes more appropriate for a foreign battlefield.
Acknowledging that the most difficult question ahead is what role the military will play in keeping order in America, on Thursday Air Force Gen. Joseph Lengyel, head of the National Guard Bureau, cautioned against federalizing the state-based National Guard, which would rob them of their unique legal authorities to conduct law enforcement missions.
Though Lengyel says there have been no requests yet to use the National Guard for law enforcement, he made an argument that the states keep "decisions at their level," out of federal hands, touting the 450,000 strong National Guard as "ready when their governors call."
But planners involved at the Pentagon and U.S. Northern Command, while admitting that the National Guard is the best choice if there is a public breakdown, also say that the Guard may not be able to be relied upon, not just because of the scope of need, but also because it is a citizen force spread out across America and thus as susceptible as the rest of the general population to contracting the virus.
A senior military planner working on coronavirus but not authorized to speak on sensitive planning matters says that deployment of federal troops in support roles is being prepared. This week, the Pentagon allocated two Navy hospital ships to coronavirus duty, one in New York and the other in California. Other logistics and engineering missions are also being prepared, those support missions partially intended to free up National Guard troops so that they can conduct law enforcement if necessary, with the active duty forces operating in the background.
But once military forces are dispersed off bases in America, the senior planner says, they will have to contend with "force protection" and will be thrust into difficult general law enforcement roles, particularly as shelter-in-place and other quarantine situations escalate.
Rumors of a nationwide lockdown spread through social media this week, and Democratic presidential candidate Joe Biden said he would mobilize military forces "now" to respond to coronavirus. And while tamping down fear of martial law, California Gov. Gavin Newsom said that though it wasn't called for or necessary, "If you want to establish a framework of martial law, which is ultimate authority and enforcement, we have the capacity to do that."
"Martial law involves use of the military to exercise police powers; restore and maintain order; ensure essential mechanics of distribution, transportation and communication; and conduct necessary relief measures," an Army manual published last July says. The doctrine, however, is contradictory on the question of who can order martial law. In one place it says that only the president may order federal military forces to impose martial law, and on another page it says, "other officials may be authorized to impose martial law within a particular state under that state's law."
In either case, the doctrine says, "federal military commanders shall not take charge of any function of civil government unless necessary under conditions of extreme emergency." And it states that "Any commander who is directed, or who undertakes, to control such functions shall strictly limit military actions to the emergency needs and shall facilitate the reestablishment of civil responsibility at the earliest time possible."
When asked to comment, a former commander of NORTHCOM (U.S. Northern Command) told Newsweek: "It's unfortunate that talk of defense support of civil authorities, civil disturbance operations, and martial law are contained in the same documents. We certainly don't want to muddy the waters by suggesting that martial law is easy or a continuum. Even making the basic decision to enforce the law is momentous."
U.S. Northern Command, located in Colorado Springs, wrote its first contingency plan specifically for "Civil Disturbance Operations," called CONPLAN 3502, in 2007. The classified plan, hundreds of pages long, describes a broad set of tasks where military forces could be called to assist civil authorities in response to civil disturbances. These include "riots, acts of violence, insurrections, unlawful obstructions or assemblages, group acts of violence, and disorders prejudicial to public law and order," according to one study. Though the plan includes a broad listing of conditions where federal forces might be used, it also assumes a single location or region, and it posits a maximum force—the "Level 3" force—of an Army Corps of some 20,000-36,000 personnel.
"NORTHCOM was specifically directed to be ready to respond to 'requests for assistance' from states and local authorities in June 2018," the senior planner says, "but none of the contingency planning mention a pandemic of this size or ever anticipated that a nationwide deployment might occur."
What would trigger the use of force in "civil disturbance operations" derives mostly from the experience of Hurricane Katrina. During the response in New Orleans, Louisiana Governor Kathleen Blanco refused Bush administration insistence that she accede to federalizing her Guard forces, fearing that she would lose control. Though President George W. Bush could have invoked the law to force federalization and authorize Army troops to enforce the law given the nature of the emergency, the White House backed down, deploying forces but not with any police powers.
The use of federal military forces in the enforcement of the law—as a posse comitatus or a group summoned by the local sheriff—has long been prohibited unless it is otherwise authorized by specific laws passed by Congress. In CONPLAN 3502, there are references to three exceptions: the use of the military in the war on drugs; in "extraordinary circumstances" involving weapons of mass destruction; and a third, in the Enforcement of the Laws to Restore Public Order Act, also confusingly known as The Insurrection Act. According to NORTHCOM, federal troops could be used to enforce the law in cases when "rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings".
Under the Insurrection Act, CONPLAN 3502 says, if violence cannot be brought under control by state and local law enforcement agencies and the State National Guard, the president may use the National Guard (called into federal service), the reserves (when called to active duty), and members of the Armed Forces to enforce federal laws or to suppress an insurrection.
The president may use the Armed Forces or the federalized National Guard, the plan says, to make arrests, conduct searches and perform other traditional law enforcement functions if needed to suppress any insurrection, domestic violence, unlawful combination, or conspiracy. The conditions are not unlimited, as even there, under the Insurrection act, the use of federal military forces is supposed to be justified only if civil violence or disruption "so hinders the execution of State and Federal law that people are deprived of their rights secured by the Constitution and laws."
These conditions—the enforcement of federal law—don't apply to the current situation, the senior planner says. The president can determine that the situation exceeds either the capabilities "or willingness" of local authorities to restore law and order, he says, but the very language, the inclusion of the "willingness" clause, shows how much the contingency planning is still written for yesterday's crises and not applicable to coronavirus. Willingness was included, the planner says, because of the legacy of troops being used in enforcement of civil rights, the imposition of federal forces often at odds with the wishes of state and local officials.
In response to Hurricane Katrina and to take into consideration broader circumstances that might force the federal military to enforce the law, Congress enacted significant changes to the Insurrection Act in October 2006, broadening the president's ability to employ the armed forces domestically without state request or consent. That change added "as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State" whenever the president determined that "domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order."
The changes were met by widespread resistance from state governors and the following year, Congress repealed the change, reverting to previous language. CONPLAN 3502 was modified in 2009 to reflect the original language of the Insurrection Act, adding instead provisions for use of federal forces to enforce the law in response to public health emergencies, but at the same time placing more onus on local commanders.
If federal forces are called upon to enforce the law, the senior planner says, a lot more responsibility will be put on the shoulders of low level commanders on the scene. As it stands today, if they face a breakdown of civil authority or outright violence against themselves, CONPLAN 3502 isn't much help.
"The commander's decision to take action must always be based on necessity rather than convenience to either the military commander or civil authorities," Army doctrine written last July states. The doctrine says that under "rare circumstances, a commander may take prompt action, including direct law enforcement duties, as the circumstances reasonably justify."
Another Pentagon directive issued in February 2019 instructs commanders "to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances" even if they have no prior authorization to do so. Commanders can enforce the law, the directive says, when "necessary to prevent significant loss of life or wanton destruction of property [and] to restore ... public order."
And still another Pentagon directive, issued a month later in March 2019 and dealing with public health emergencies, authorizes military commanders to impose "quarantine, isolation, and conditional release" and says those who violate such orders may face fines or imprisonment. "Those individuals or groups not subject to military law and who refuse to obey or otherwise violate an order issued in accordance with this issuance may be detained by the military commander until appropriate civil authorities can respond," the directive says.
"Yes, military commanders have the right of self-defense," the former NORTHCOM commander says, upon reading these new doctrines and directives, "and they can obviously take action in an emergency, but maybe it's still not appropriate on the streets of America."
The senior planner agrees, saying that it is incumbent on the Pentagon to provide specific orders and rules of engagement for coronavirus.
"I'm just not sure that our troops, as good as they are, can be ready for something as widespread and explosive as COVID-19," the planner says. At the same time, he worries that the presence of uniformed personnel on the streets of America, rather than providing a comforting presence will instead signal the use of federal force and martial law—just making the situation worse.