Transcript
Speaker: I'm Jane Williams, this is the Red Eye Podcast, produced at the studios of Vancouver Cooperative Radio. You can hear our live broadcast on Saturday mornings from 10 until noon at 100 .5 FM. In our show today, James Mingy talks with lawyer and legal scholar Chris Savage about his attempts to have the US Insurrection Act rewritten.
Speaker: Over the past few weeks, Donald Trump has threatened to invoke the Insurrection Act and send military troops into cities and states if they fail to quell the recent protests against racism and police brutality happening throughout the US. Those protests arose in the wake of the murder of George Floyd by the police in Minneapolis, Minnesota. But when it comes to deploying the military, what precisely is the president allowed to do and should he be allowed to do it?
Speaker: Chris Savage is a practicing lawyer in Washington, DC. He teaches internet law at George Washington University Law School and the Catholic University of America's Columbus School of Law. He is also leading an attempt to have the Insurrection Act replaced. He joins me on the line from his home just outside Washington. Hello, Chris. Jim, how are you? I'm very well, thanks. What is the Insurrection Act and what does it actually allow the president to do?
Speaker: Well, the Insurrection Act is a piece of United States law that goes back to really 1807, although it's been amended a few times in the interim. And basically what it says is that in certain circumstances, the president can use the military forces of the United States, either the army itself or the National Guard, to help enforce the laws and restore order if order has been missing.
Speaker: And under what sort of circumstances is the president allowed to to invoke the insurrection act? Well, that is what causes concern because it has various different sections. And the original idea from back in literally revolutionary times was that there may be insurrections, there may be rebellions against the state or against a state and
Speaker: It can be important within our constitutional system to have the federal government be able to provide very strong military support to maintain order in a state. If there's a literal rebellion and there were, it's interesting history. There were some literal rebellions against states that against the federal government back in the early 19th century. So that's fine. The problem is that as time went on and particularly after the civil war,
Speaker: The act was amended so that what it says now is essentially, I don't have the exact words in front of me, but it's whenever the president considers that unlawful assemblages make it impractical to enforce federal law. He may use the armed forces to do whatever he wants to do to enforce federal law.
Speaker: Now, at the time of the Civil War, you could see why Congress may have been willing to give both President Lincoln and then after the war, President Grant, the authority to use the armed forces to enforce the law because it was a fairly unsettled time, to put it diplomatically. And really for most of our history, presidents have used
Speaker: reasonable restraint in the circumstances under which they actually deploy the military in the service of maintaining order of federal law, but the actual constraints on what the president can do under the law are quite minimal.
Speaker: And that's fundamentally the thing that concerns me. There isn't anything in the law that says some third party has to certify that there is a circumstance that makes this necessary. There isn't anything in the law that says the courts can review whether a particular deployment is necessary. There isn't even anything in the law that says that the president has to explain why he's doing it.
Speaker: Of course, for most of our history, we've been able to assume that that before a president would send troops in to be used against the the populous United States, that he would do all of those things. But modern times suggest that those assumptions may no longer be valid. There is one section I am looking at your website right now, actually, about where language says using the military or armed forces or both or by any other means.
Speaker: shall take measures. What do you suppose any other means would refer to? Does that basically mean the president can do whatever he wants? Well, yes and no. In the American system, laws have to be constitutional.
Speaker: And so one would argue that whatever the president does under this or any other law can't violate people's rights to freely assemble, to practice their religion, to not have their property taken without due process and that sort of thing. And so ultimately one could probably establish in court that a particular instance of using the military was inappropriate because it violated the constitution. But
Speaker: That's cold comfort if you're staring down a member of the military trying to suppress your rights right now. Does the act allow the president to act unilaterally or does the Congress or even military or state governors, does anyone need to be consulted when invoking the Interaction Act? So there's a good lawyer argument is it depends. If a state
Speaker: believes its own law enforcement capabilities or its own National Guard to be overwhelmed by some situation. Section 251 of the law envisions a state asking the president to send in help. And there would obviously be consultation at that part.
Speaker: That part of the law actually implements something known as the guarantee clause of Article IV of the United States Constitution, which is also on one of the pages of the website, the resources and references, where as part of the elaborate back and forth back in the late 1700s between the power of the states and the power of the federal government, the states were
Speaker: in some ways constrained in their ability to protect themselves from particularly foreign invasion. And so the trade -off that you see in Article 4 is that the federal government guarantees assistance, or rather guarantees that states will have a Republican form of government and imposes a duty on the president, on the federal government rather, to
Speaker: protect the states from domestic violence that they themselves can't occur. So there is a certain amount of consultation built into the system and that occurs in the familiar case where, you know, if you go back to 1992 with the Rodney King riots or back to the 1960s with the various riots in the United States,
Speaker: A state governor will contact the president and say, hey, I need help. But the next section of the act is when the president is using the military purportedly to enforce federal law.
Speaker: And although in practice you would expect a president to always consult with the state before they did that, there's no actual requirement that they do it. And there are some interesting examples from history where a president not only didn't really consult with the state, where he sent in the troops over the objection of the state governor.
Speaker: That would be something called the faint it was the famous Pullman strike back in the late 1800s when labor rights were highly contentious in the United States and workers on the Pullman line were striking and The president decided that this couldn't stand so over the objections of the governor of Illinois where some of the striking was occurring He sent in the army to to break the strike and get the trains running again. I
Speaker: So when the state wants help, they have to talk, but the president is fully, fully entitled under the law to just do what it needs to do, do what he thinks he needs to do without consulting with anyone, which is again, part of the process.
Speaker: I've heard over the years something in the US called the Posse Comitatus Act, which my understanding was is supposed to limit the president from deploying the military within the United States. What is the Posse Comitatus Act and how is that different from the Insurrection Act and does it actually have any, put any limit on what the president can and cannot do? So the short answer is
Speaker: No, it does not put any limit on what the president can and can't do. The Posse Comitatus Act, it's actually a fascinating piece of history that the meaning of the term Posse Comitatus is the power of the county. And it's an ancient British tradition, which we certainly in the United States inherited as of the revolution and is probably true throughout the entire former British Commonwealth. And the idea is that
Speaker: When the sheriff for law enforcement finds a criminal, it is the duty of every able -bodied citizen to assist the sheriff in capturing the criminal and bringing him to justice. And, you know, in old U .S. Westerns, people round up a posse to go get the bad guys. That's the posse comitatus.
Speaker: Traditionally, not traditionally, but for a while in the middle of the 19th century, the understanding was that if there weren't enough able -bodied citizens around, it was perfectly okay for the civil authorities, for the local sheriff or law enforcement to go to a local army base and bring in the army under the sheriff's control to act as a posse. And fair enough.
Speaker: What happened is after a period of American history called reconstruction, which was after the Civil War, and the North was essentially militarily occupying the South, trying to reconstruct them out of their old slaveholding ways. You can imagine, given the rise of the Ku Klux Klan and related problems, that a federal marshal trying to enforce federal law in some part of that occupied territory
Speaker: would have a difficult time raising a posse of local citizens to enforce the federal law that local citizens didn't particularly like. So typically for a while anyway, the Marshall would use the local, uh, federal troops to enforce the law as against the citizens. The posse comatotus act says that it is illegal for someone to use part of the army as a posse comatotus.
Speaker: And so this law was, although it does embody this notion that the military should not be involved in enforcing civil law, it was established at the end of reconstruction to protect the unreconstructed South from essentially effective law enforcement by the federal marshals. So that's sort of the history of the law. But what the law actually says is,
Speaker: And I'll quote, it's whoever except in cases and under circumstances expressly authorized by the constitution or act of Congress willfully uses the army and so on. Uh, the insurrection act is an express authorization from Congress for the president to use the military. And so.
Speaker: In the normal course of life, you don't see a sheriff or a federal marshal going to the army base and bringing in army people to help enforce the law. But that doesn't constrain the ability of the president under the Insurrection Act from deploying troops, if he so desires, because that would be an express authorization by Congress and therefore not covered by the Posse Comitize Act.
Speaker: Interestingly, back in the day when I was first raising this issue a couple of years ago with some legislators or staffs on the Hill, I got the same question. Well, wait a minute, doesn't the Posse Comitatus Act prevent this? I said, nope, go read it. And they went away and they spoke with, I think, the Congressional Research Service and they spoke with the, I believe, some military lawyers and came back and said, yeah, you're right, it doesn't.
Speaker: That sounds like good advice. Just go read it yourself. Don't rely on what somebody else says about it. You mentioned that you've been working on this for several years. How did you become involved in this particular matter? I'm not quite a child of the sixties. I'm old, but I'm not that old. But I was a teenager in the late sixties and early seventies. And so I was aware enough and alert enough to understand that bad things were happening in the country.
Speaker: and that, you know, probably one of the iconic acts of that time, it was the Kent State, well, it was known at the time as the Kent State Massacre, but there were anti -war protests at a college in Ohio, and the governor brought in the National Guard, and things did not go well, and the National Guard ended up killing four students at that college. And that really shocked me, but, you know, that sort of sat in the back of my mind as just one of the things you grew up with.
Speaker: But then, um, you know, with, with the new administration, um, I became concerned that, that the current president would not view himself to be as constrained by tradition and discretion. Uh, and the way things have always been done as other presidents, uh, have been in the past. And so I just started looking into it and, uh, you know, there's,
Speaker: as legal questions go, there's a reasonable amount of scholarship on this. And I've read a lot of it. And once I convinced myself that it was a potential real issue, I just, I reached out to my senators and my, my representatives and other, other people who, my representatives singular and other people who I, you know, had contact with one way or another in the government and tried to generate interest in, in the issue. So it's, it's, I was very active pushing this, uh, I would say,
Speaker: during the second half of 2017 and into 2018 and then didn't get any traction at that time and let it, let it drop. But then with the recent events down in Washington DC, I became a, shall we say reenergized. What should I was going to say, if you look at my website, you see the picture of the troops standing there that that was taken by me. So
Speaker: Aha, I see, yes. Now, moving on to your website, what should an insurrection act for the 21st century say? Well, the first thing that's important to recognize is
Speaker: There are circumstances that one can imagine where it is not only appropriate but necessary to bring the federal military in to resolve a situation, whether of some natural disaster or some terrorist attack and so on. So I don't want to give anyone the impression that I'm thinking, oh, you shouldn't ever use the military. What should happen, though,
Speaker: Essentially, it is a few things. First, I think the president should be required to consult with state officials before sending the military in to deal with a situation in a state under all circumstances. It is not to say that a state should have a veto over what the president does, but there should at least be consultations.
Speaker: That's in theory taking something that's already in one part of the Insurrection Act and expanding it to cover any of them. Second, the logic of using federal troops to enforce the law is that somehow the normal law enforcement mechanism has simply broken down
Speaker: and the local police can't handle the situation and the FBI can't handle the situation and the DEA can't handle the situation, whatever police force has broken down, but it also needs to be important. And so the second thing is to have people who aren't the president, and I was suggesting the attorney general and the head of the FBI, others have suggested
Speaker: the Department of Defense, the Secretary of Defense, or someone from Homeland Security, to certify in writing that A, the normal law enforcement mechanism is broken down, and B, that the law that the president would be enforcing with the troops is indeed a critical law enforcement priority for the federal government, right? I mean, one can imagine, you know,
Speaker: Rampant tax fraud is occurring in this town. Let's send in the troops. I mean, that's probably not a good reason to do it. It sounds like just in the most general terms, there's a new act would impose a burden of justification on the president. He'd have to be able to come up. He or she would have to be able to come up with a damn good reason to send in the military. Does that sound right?
Speaker: Yes, but I wouldn't characterize it as a burden of justification because if the president is unable to articulate what the important reason is that the troops are being sent in for, they shouldn't be sent in. It's not a burden of justification. It's simply doing basic homework before you take a very radical and you know, momentous step. So,
Speaker: call it a burden if you like, but I think it was just if they can't explain why they're doing it, they obviously shouldn't be doing it.
Speaker: The third thing, in addition, again, just to set this up, is the president would need to write down, issue a written order of deployment that will contain certain things that I identify in the draft legislation. But basically, why does the president believe that the state can't handle whatever problem?
Speaker: Second, to explain in this document, what is the cause, as the president understands it, of the underlying civil disorder? Why is it happening? Third, the president would have to specify the specific mission of the troops, restore order, enforce this law, whatever it would be. The order would also have to say specifically where the troops were authorized
Speaker: in the narrowest region possible. So not the state of California, not even the city of San Francisco, but instead this area of the city of San Francisco where there is uncontrolled rioting or whatever it might be. And then finally, the order would have to say when specifically the troops would be withdrawn, and I'm proposing a limit of seven days. Now, if conditions are still terrible, he could,
Speaker: do another order, but you can't, under my vision of the world, you shouldn't be able to have essentially an open -ended occupation of any American territory by federal troops. If those things occur, then we have a record of why it is it's happening, or at least why the president is saying it's happening.
Speaker: Your website mentions proposed, or pending rather, legislation. What is that legislation and how is that progressing? The short answer to how it's progressing is I don't know. What I do know is that Senator Blumenthal from Connecticut has proposed Senate 39 -02, Senate Bill 39 -02, which would take some steps in this direction. It would not
Speaker: There are some things that my proposal legislation would do that it appears not to do, but it would require a report to Congress, a certification to Congress mentioning at least some of the things that are of concern to me. And it takes a stab, I believe, at doing something that my bill also does, which is establishing a right of people to go to court.
Speaker: to address the legality of the deployment. And, uh, I think the version in, in the current bill is a little bit too complicated because the, the, the critical thing that will be of legal concern, uh, I think to the citizens isn't so much that the, uh, the troops might, you know, knock over their mailbox or whatever, but, and therefore cause damage. But the fact that they're there at all.
Speaker: is itself an affront to civil liberties in the absence of a really good justification. And so the way my bill would handle this is to say anybody can go to court on the basis of the written order, which is why it's important to have all these things specified, to get a determination as to whether the deployment is lawful in light of the specified reasons. And if not,
Speaker: It gets constitutionally kind of complicated, but fundamentally the idea is to make it stop immediately if the court won't uphold it. For anyone interested, where can they go to learn more about the Insurrection Act and your proposed solutions? Well, I've put up this website called fixtheinsurrectionact .com and it's got dashes, so fix -the -insurrection -act .com.
Speaker: where I lay all this out and I'm updating it every few days. I mentioned S3902 that's pending. There are also apparently two bills introduced in the House on this topic, but I have not yet been able to get copies of what those proposals say. And so I haven't, I've mentioned that they exist, but I'd encourage anyone to look at this.
Speaker: One of my pages is resources and references. That's a little bit spare right now, although I've got some fairly good things. I'm planning to add at least citations to both some popular writing and as well as the more technical legal analysis of these issues so that anyone who's interested can come and take a look. It's been really great to have a chance to speak with you, Chris. Thanks very much for joining us today. Well, thank you. I appreciate it. And if I can have 30 more seconds.
Speaker: Of course, one other thing that I would add in my bill that I think as a as a member of the press, you'll appreciate. My bill would propose that the press have an absolute right to be present on escorted anywhere the troops are deployed in the United States. Because you can imagine a world in which the
Speaker: in which this is happening, but for whatever reason, the then current president doesn't want it well known what's happening. And so I think it's important if we're doing this to make clear that the press has an absolute right to report on any deployment of troops domestically. I don't think I could possibly agree more. Thank you. Well, thank you. I appreciate the time.
Speaker: I've been speaking with Chris Savage. He's a practicing lawyer in Washington, DC, as well as a professor of internet law at George Washington University and the Catholic University of America's Columbus School of Law. You can learn more about the Insurrection Act by visiting the website fixtheinsurrectionact .com. And each word is hyphenated, so that's fix hyphen the hyphen insurrection hyphen act .com.
Speaker: The Red Eye podcast is produced at the studios of Vancouver Co -op Radio. You can support us by supporting Co -op Radio. Go to coopradio .org and click on the donate button. Independent media relies on the support of people like you.
