On this last episode, we look back on 23 years of joyous, difficult and always informative conversation.
On Tuesday, 1,500 National Guardsmen from multiple states, including the state of Maryland, were deployed to respond to ongoing protests taking place in the District over the last five days. This comes one day after the President called for the deployment of the National Guard in every state in order to “dominate the streets” as major cities across the country face widespread protests in the wake of the killing of George Floyd by police in Minneapolis.
How will the National Guard deployments affect civilian life in the District? Can President Trump deploy active military forces in D.C.?
Produced by Kayla Hewitt
- Victoria Chamberlin Reporting Fellow, Guns and America
- Lindsey Cohn Associate Professor, U.S. Naval War College
KOJO NNAMDIYesterday, 1,500 National Guardsmen from multiple states joined the D.C. National Guard in response to several days of protest in the District. President Trump has also ordered the deployment of active military police to the District. Those forces remained in nearby military bases, and did not appear in the streets last night as peaceful protestors circled the city. What do these deployments mean for protestors, and what does the federal government have on law enforcement on law enforcement in D.C.? Joining us now is Victoria Chamberlin. She's a Reporter Fellow for Guns and America, a public collaborative managed by WAMU, and a former producer on this broadcast. Victoria, thank you for joining us.
VICTORIA CHAMBERLINHi, Kojo. Thanks for having me.
NNAMDIGreat to hear your voice, even though I can't see you, Victoria. Let's start with the basics. Who makes up the National Guard?
CHAMBERLINSo, the National Guard is a part of the U.S. military that serves their community, in addition to the country. And they typically respond to domestic emergencies like hurricanes, things like that. Obviously, civil unrest like we've seen. But they can also deploy to combat missions, if they're activated. Guard soldiers go to basic training and wear the same uniform just like active duty soldiers, but the difference is that they are civilians. They hold civilian jobs. A lot of them attend college while they're maintaining their military service part-time. But their primary place of duty is to their home state and to their governor. And they tend to stay in the same place for years, which is another big difference from active duty, and that helps relationships with local government and law enforcement be cultivated over time in a way that's a lot harder for the transient active duty force. So, your D.C. National Guard are your neighbors who live and work in the District and the surrounding areas.
NNAMDIWhere are the National Guardsmen that have been deployed to the District coming from? And how many of the District's own National Guardsmen have been deployed?
CHAMBERLINSo, the D.C. National Guard is relatively small. It's got about 3,000 soldiers and airmen. Around 1,500 of them, at any given time, are downtown, according to the National Guard leadership. But they're all on an active status right now, awaiting orders, if they're not downtown. And earlier this week, there were National Guard troops in the District from Utah and New Jersey. And yesterday, a few more states were added to that, including Indiana, South Carolina, Tennessee and Maryland later in the afternoon yesterday. And requests for additional guard units in D.C. isn't something that's new. For inauguration, for example, there were 43 states represented here to provide security for President Trump's inauguration. And for something like this, the situation is really fluid. So, how quickly Guard troops can get here from other states really depends on that state's governor and the process in that state.
CHAMBERLINAnd I will say, notably, the governors of Virginia, New York and Delaware have actually refused the Secretary of Defense's request for troops from those states to be sent here from their National Guard.
NNAMDIJoining us now is Lindsey Cohn, an Associate Professor at the U.S. Naval War College, even though for the purposes for this conversation, she's not representing the U.S. Naval War College. Lindsey Cohn, thank you for joining us.
LINDSEY COHNHi, Kojo. So happy to be here.
NNAMDIWhat is the usual function of the National Guard?
COHNWell, as Victoria said, the usual function of the National Guard is to serve their states and communities. They are the modern incarnation of the original state militia, which, as Victoria pointed out, are part-time volunteers who can be mobilized by their governor to respond to any contingency where the existing resources are not sufficient. So, whether that's police or emergency personnel, or any other form of problem that the local and state officials cannot handle with the forces that are at their fingertips. They can call up the National Guard to supplement those forces with personnel and with skills and with equipment.
NNAMDIHow has the Mayor of Washington, Victoria, reacted to the deployment of National Guardsmen?
CHAMBERLINSo, it's important to note that the mayor has been actively against the use of armed Guardsmen. So, National Guardsmen patrolling the streets with rifles and things like that, but not the deployment itself. So, like I said before, the D.C. Guard augments MPD for lots of events in the District, like the State of the Union or even something as simple as parades. And we've seen them here before. So, that part isn't new. And those relationships have been built over time. Her negative reactions have been primarily about the use of weapons, and also D.C.'s lack of autonomy over its own National Guard because we aren't a state.
NNAMDILindsey, what are the circumstances under which the president can call in the National Guard?
COHNSo, the president can call in the National Guard for a number of reasons and in a number of different statuses. In this particular, he is calling them in to deal with civil disturbance. But, thus far, they're just being asked to act in an augmentation role to the local law enforcement officials. But, as Victoria did a great job reporting on the other day, there are also a number of other federal police and enforcement personnel in the District right now. So, he can call them up to deal with civil disturbance. He can call them up to deal with disaster. He called them up to deal with disaster. He called them up to deal with the pandemic, with border security. And there a couple of different statuses that this can happen in. Under Title 32, he can leave their command sort of under the auspices of their respective governors, but the federal government can help pay for them.
COHNSo, for example, the response to COVID-19 has largely been in this status, where state National Guards were still responding to their governor's coordination and orders, but the federal government was helping pay for it. He can also federalize the National Guard, which is when he calls them up under Title 10 of U.S. code, and that really happens only when either they need to be deployed abroad or there needs to a coordinated national response to something where the president thinks the state-to-state coordination won't be sufficient, or in some cases when the president wants to use the Guard against the wishes of the governor. This is an area that's rather fraught, both in terms of law and precedent.
COHNYou know, it's not entirely clear what happens when there's a real showdown between the president and the governor over the National Guard. But, in general, the president can call them up to respond to things that he believes threaten the functioning of federal law or federal rights or federal property.
NNAMDII seem to remember in 1957, the president calling up the National Guard in Little Rock, Arkansas when Governor Orval Faubus wouldn't take any action. And they escorted those children to school, didn't they?
COHNThat is correct. Yeah, that's actually -- that's an excellent example of the president federalizing a state National Guard, because the governor refused to enforce federal law. In fact, the governor was using the Arkansas National Guard to prevent the children from entering the school, until a federal judge ordered him to stop. At which point, he did stop. But what he did was simply pull the National Guard away from the school and allow a mob to take over instead. At which point, President Eisenhower nationalized the Arkansas National -- federalized the Arkansas National Guard and used them to enforce the entry of the children to the school. Yes.
NNAMDIVictoria, who is in command of the National Guardsmen here in the District?
CHAMBERLINSo, as Lindsey was saying, because we're not a state, the D.C. National Guard is always federalized. So, technically, the Secretary of Defense or the Secretary of the Army, if deputized by the Secretary of Defense, are the ones who activate the Guard under Title 32, not the mayor. So, different than what you'd see in Maryland for example where that decision is up to the governor. And, in that case, Governor Hogan would be the commander-in-chief. But, in D.C., the president is the commander-in-chief, not the mayor. All she can do is request the Guard's assistance. As far as commands on the ground go, for this mission they're coming from Major General Walker who is the Commanding General of the D.C. National Guard. And that goes for any Guardsman that's here, regardless of what state that they represent since I mentioned we have Guardsmen from several different states here right now.
NNAMDIWell, I read that when the protestors on Monday night were cleared from Lafayette Park so the president could go across to St. John's Episcopal Church and hold up a Bible, that that order came from Attorney General William Barr. And I know that, technically, he is the nation's leading law enforcement officer, but it seems to just add to the mix of all of the people who can give orders here. Do you know anything about that at all, Victoria? Or you Lindsey?
CHAMBERLINWell, so, like I mentioned in terms of who can give orders on the ground, the National Guard is getting their orders from their commanding general. There isn't a unified person in charge of giving orders. So, like MPD is going to defer to their leadership. But they're all supposed to be working together.
NNAMDIOkay. Anything you can add to that, Lindsey?
COHNYeah. I can. So, in any case where there is law enforcement involved, were the mission is a law enforcement mission, the Attorney General is the one who is sort of in charge of determining what needs to be done, sort of what direction the mission should take and what needs to be done. And so the attorney general is supposed to be coordinating with the secretary of defense or as Victoria mentioned the secretary of the Army to figure out how to use and deploy those troops.
NNAMDILindsey, are there other examples of mass deployment of the National Guard in cases of civil unrest here in the U.S.?
COHNYes. There's actually a very long history of this. And the National Guard, much more than the regular forces, which you mentioned at the beginning, Kojo, are also being mobilized here. There's a long history of the use of the National Guard in civil disturbance situations, going all the way back to the Constitution. And, in general, that is -- as Victoria has pointed out, that is what's supposed to happen. You know, law enforcement in a federal system like ours is the kind of thing that's supposed to be handled at the lowest level possible. So, when there is some kind of difficulty, when there's unrest or disturbance, that is supposed to be handled by the local police. If they cannot handle it, it can be elevated to that state level. And if the governor feels that his existing forces, standing forces cannot handle it, then the National Guard, that is one of the core missions, is to respond to domestic unrest.
COHNBut there have been a few really major conflagrations where multiple -- similar to the current one where multiple states are experiencing a significant unrest at the same time. And, in those cases, you've seen, as we are seeing now, both the National Guard from multiple states being mobilized and at least the possibility of active duty forces, as well. So, 1877, the great railroad strikes in multiple states. 1894, again, railroad strikes. And then from the early 1900s, all the way through World War I, lots of mining strikes. And then, of course, possibly the most famous being the Red Summer of 1919, when there were horrific massacres across the country of black Americans.
NNAMDIVictoria, does the president have the power to take control of the Metropolitan Police Department?
CHAMBERLINTechnically, yes. It was reported by my colleague, Martin Austermuhle, that there is an obscure statute in the D.C. law that says that any president can, quote, "direct the mayor to provide him, and the mayor shall provide such services of the Metropolitan Police force as the president may deem necessary and appropriate," end quote, during an emergency. But that can only be invoked for 48 hours, until Congress has to be formally notified. And to our knowledge, it has never been invoked. So, that's not likely. Though, it is important to note that it is there, in an obscure passage in D.C. law.
NNAMDIVictoria, have active duty forces been deployed to the District?
CHAMBERLINSo, there's around 1,600 active duty troops that have come from different military bases around the country, and that's kind of what we mean by being deployed. And they're in a standby position at bases around the national capital region. I know there's some at Joint Base Andrews. But they're not in the District yet. The Secretary of Defense announced this morning that he strongly opposes bringing active duty forces into the District for a law enforcement mission. He said that role should only be used as a last resort, and that we aren't there yet. So, he's breaking from the president with that opinion. And it's important to note that it's against the law for federal, you know, active duty troops to come into a state and perform a law enforcement action without further legal basis, like something like the Insurrection Act.
NNAMDILindsey Cohn, why is it that President Trump can deploy active military to the District?
COHNWell, partly because, as Victoria has explained, the District is in sort of an odd status, being basically under federal jurisdiction already, and not having the intervening state structure. But in terms of why he can use active duty forces, as opposed to a National Guard, or in addition to a National Guard, it's because Congress have given him that authority. Congress, according to the Constitution, has the power to call up the militia or the armed forces in order to deal with domestic disturbance, domestic unrest, obstruction of the law and insurrection. But they delegated that power to the president through a series of acts in the first 20 years or so of the Constitutional republic. And, ever since then, the president has had the power, and, to a large extent, the discretion to use active duty military forces to deal with threats to federal law, to federal rights, to federal property, and even to state law, where the states request that help.
NNAMDIAnd I'm afraid that's about all the time we, have at this point. Sorry to have to break in. But Lindsey Cohn is an Associate Professor at the U.S. Naval War College, not representing the college in this conversation. Thank you so much for joining us.
COHNThank you so much for giving me the opportunity.
NNAMDIVictoria Chamberlin is a reporter fellow for Guns and America, a public reporting collaborative managed by WAMU. Victoria, thank you for joining us.
CHAMBERLINThanks for having me, Kojo.
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