Biden should spell out rules for using U.S. troops against their fellow citizens, Dems say

Matthew Medsger, Boston Herald on Dec 2, 2024

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A pair of New England senators are calling on the Biden administration to make it clear that the U.S. military should not be used against U.S. citizens except under the most dire circumstances.

U.S. Sens. Elizabeth Warren, D-Mass., and Richard Blumenthal, D-Conn., said in a letter that it’s imperative that President Joe Biden and Secretary of Defense Lloyd Austin issue a policy directive informing U.S. troops of their obligations to disobey unlawful orders and laying out when a president may lawfully order the troops to act against their fellow Americans.

“It’s long been the law that the military should not be used on U.S. soil, except under extraordinary circumstances. Donald Trump campaigned on using our military to go after the ’enemy from within,’ so it’s important for President Biden to clarify the Defense Department’s policies. The Trump administration will need to justify any expansion of the military’s role against its fellow citizens,” Warren told the Herald.

In the letter, the pair say that Biden’s directive should make clear that U.S. law “prohibits the mobilization of active duty military or federalizing National Guard personnel to be deployed against their fellow Americans unless specifically authorized.”

Use of federal troops in domestic law enforcement operations is outlawed under the Posse Comitatus Act, unless authorized by Congress or the president invokes the Insurrection Act. There too, the senators write, Biden should clarify to the troops what that law permits.

“We urge you to issue a policy directive that makes clear that the narrow application of the Insurrection Act should be limited to instances when State or local authorities are so overwhelmed and that the chief executive of the State requests assistance or attacks against the U.S. government overwhelm State or local authorities,” they wrote.

Even if troops are called to duty under presidential authority, the current president should explain that they still must follow “the Standing Rules for the Use of Force and cannot violate the writ of habeas corpus, federal law, or where applicable, federal or state law.”

The pair say their letter serves as direct acknowledgment of the incoming Trump administration.

“President-elect Trump’s comments have indicated he could invoke the Insurrection Act ‘on his first day in office’ He has called his political opponents ‘the enemy from within’ and said they ‘should be very easily handled by — if necessary, by National Guard, or if really necessary, by the military.’ When asked to clarify these remarks in late October, Vice President-elect J.D. Vance reiterated that President-elect Trump would use force against Americans,” they wrote.

Trump, the senators write, has a history of attempting to turn the military against civilians in response to protests or “to advance the president’s political interests,” and the only barriers in the way during his last term were members of his administration and their allegiance to the rule of law.

Now, however, the U.S. Supreme Court has made clear that a president is immune from criminal liability for “official acts.” Not immune from prosecution, the senators say, are the members of the military who might be ordered to carry out unlawful acts. After the high court’s decision, what precisely would constitute an unlawful order is an open question, and Biden should provide some clarification before he’s not in a position to offer it anymore.

“Given the disagreement amongst scholars on the serious implications of the recent Supreme Court decision, it is reasonable to assume that service members, other DoD personnel, and the broader military community may not be aware of or fully understand their rights and responsibilities. If unaddressed, any ambiguity on the lawful use of military force, coupled with President-elect Trump’s demonstrated intent to utilize the military in such dangerous and unprecedented ways, may prove to be devastating,” they wrote.

A policy directive issued by Biden could be overturned by Trump when he takes office.

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