Leave the National Guard to the States, Says Top General

The top general of the National Guard has recommended that the president not federalize control of Guard troops so that they can continue to be available to assist state and local governments with law enforcement duties amid the widespread coronavirus outbreak. 

Air Force Gen. Joseph Lengyel said that if the federal government assumes control of the Guard, those troops, like active duty U.S. military members, would be forbidden from engaging in domestic law enforcement by the 1878 Posse Comitatus Act.

“A unique attribute of the National Guard is we can operate as law enforcement capacity to assist state and local law enforcement inside the states, and if you were to federalize the National Guard then you would lose that ability to do that,” Lengyel told reporters at the Pentagon and on teleconference Thursday.

Right now, Lengyel said, there are no plans “that I’m aware of” to federalize Guard troops, nor are governors yet requesting the Guard help with policing during the virus outbreak. 

"Do I see it happening now? I don’t see any demand signal that’s demanding we’re going to use the National Guard in that scenario — but they could,” Lengyel said of Guard units taking on law enforcement duties. 

“They could be used to assist patrols, in general law enforcement to make sure people were following laws."

There is recent precedent for the National Guard taking up law enforcement authorities alongside local officials — but it can be a controversial decision. As much as state and local law enforcement officers might need the help during a crisis to help enforce existing laws, including everything from anti-looting laws to potential curfew restrictions, soldiers don’t always make the best police officers. Unlike civilian officers, Guard troops are more-heavily armed and have been trained to view a given local population as a threat, some defense analysts say.

In one now-famous scene during the aftermath of Hurricane Katrina in 2005, Army Lt. Gen. Russel Honore, who was in charge of the Defense Department’s response to the catastrophe, shouted at troops to lower their guns. 

“Put those damn weapons down!” he shouted, waving one arm for emphasis. “I'm not going to tell you again, goddamn it. Get those goddamn weapons down.”

The presence of armed guardsmen can spook locals into thinking that they are under “martial law,” which means that the military assumes police powers because local courts and authorities aren’t functioning. It was essentially outlawed by the passage of Posse Comitatus, but as state and local governments have set increasingly stringent restrictions on public life under coronavirus, rumors have spread rampant through social media platforms, WhatsApp, and text messages that the military will be enforcing a nation-wide lockdown. During Katrina, White House press secretary Scott McClellan erroneously told reporters that “martial law has been declared in Mississippi and Louisiana,” forcing other officials to set the record straight. 

If a governor wants federal military help with law enforcement, he or she must make that request under the Insurrection Act — a carve-out to Posse Comitatus — or use state Guard forces. The president can also use the Insurrection Act unilaterally. That would allow him to use both federalized National Guard troops and regular military forces for law enforcement purposes when “as a result of a natural disaster [the President determines 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 debate over whether to invoke the Insurrection Act is both recurring and deeply controversial. As lawlessness spread after Katrina, President George W. Bush debated invoking the act, pressing Louisiana Gov. Kathleen Blanco to accept military law enforcement assistance and allow federalization of the state Guard. Blanco was unwilling to relinquish control to the president, out of practical concerns that it would smack of martial law and political fears that Bush would blame the state government for a failed response to the disaster. 

“Quite frankly, if [the Bush Administration had] been able to pull off taking it from the locals, they then could have blamed everything on the locals,” one state official said at the time. 

Without Blanco’s consent, Bush was left with two options: invoke the Insurrection Act unilaterally, or leave policing to the Guard and law enforcement officers under her control. Bush stood down.

"Could we have physically moved combat forces into an American city, without the governor's consent, for purposes of using those forces — untrained at that point in law enforcement — for law enforcement duties?” Paul McHale, the assistant secretary of defense for homeland security, told the New York Times at the time. “Yes.” 

But, he asked: "Would you have wanted that on your conscience?"

There are no restrictions on the National Guard or regular military from assisting with relief efforts that do not include law enforcement — things like helping provide hospital beds, delivering food to at-risk citizens and sanitizing public spaces. That is all that state Guard units have been asked to do in response to the coronavirus outbreak, so far. 

California’s Gov. Gavin Newsome is one of only a few state executives who have suggested he is considering using military enforcement if people don’t abide by public health restrictions. 

“We have the ability to do martial law ... if we feel the necessity,” Newsom said Sunday, emphasizing that the option is not currently under consideration. 

“I don't want to get to the point of being alarmist, but we are scaling all of our considerations,” Newsom said.

Other lawmakers have attempted to quell all talk of the matter. 

“Please stop spreading stupid rumors about marshall law. COMPLETELY FALSE,” Sen. Marco Rubio, R-Fla., tweeted this week. “We will continue to see closings & restrictions on hours of non-essential businesses in certain cities & states. But that is NOT marshall [sic] law.”