Trump wants a “rapid reaction force of the National Guard”. Here are the legal concerns.
President Donald Trump’s executive decree ordering the Pentagon to create a “rapid reaction force” within the National Guard aroused some confusion and a number of questions among American military experts during his publication last week.
Among them: why a QRF, as it is known in military language, must be created in the first place, because the National Guard already has one. Experts in military and national security law also fight with legal foundations for deployments in states that do not want them.
The Executive Decree calls on the Secretary of Defense to create a “rapid reaction force of the permanent national guard which will be resources, trained and available for rapid deployment at the national level” to help the federal and state forces to “repress civil disturbances and to ensure public security and order whenever the circumstances.”
Why we wrote this
President Donald Trump wants the Pentagon to create a “rapid reaction force” using the National Guard units. But American law prohibits soldiers from being used as national police. With few details in the decree, it is not clear how such a unit would sail on legal and political concerns.
These questions that surround him were thrown on Tuesday with a verdict in a trial brought by California, opposing the deployment of June from the guard in Los Angeles. A federal judge ruled that the guard had been used to exceed its limits. The Trump administration says it will appeal. While the president continues to promise to deploy childcare troops in a new way, the legal issues that have followed will likely have to be settled before the courts.
The National Guard should certainly be used in cases “where the authorities are overwhelmed by massive obstruction to the application of federal law”, explains Joseph Nunn, advisor in the Liberty and National Security program of Brennan Center. But he maintains that local police have not been exceeded in recent cases where the president has deployed guard troops.
Some experts recognize the need to have reinforcements available in times of crisis – and some also say that efforts to reduce crime in Washington and other American cities could benefit from more hands on the deck. But they are worried about the consequences of Mr. Trump’s objectives.
The executive decree “facilitates the deployment of military personnel anywhere, at any time, at any end whatsoever” and indicates that the White House “wants to involve the military in the civilian police of routine across the country,” said Nunn.
In the trial in California, the American district judge Charles R. Breyer cited the founding fathers to judge that the deployment violated the Comitatus Posse law, which prohibits the American army from being used as an application of the law. “The resentment of the use by Great Britain of military troops as a police force manifested itself in the declaration of independence, where one of the grievances of the American colonists was that the king had” affected the army independent and superior to civil power “, wrote the judge.
The American code provides for some exceptions, as under title 10 if the troops of the National Guard are deployed under federal control to repress an invasion or a rebellion, or under title 32 in a hybrid role, where the Forces of the Guard undertake a federal mission, with federal funds, while being under the command of the State.
The current national guard reaction forces, already established in each state, are designed for a rapid and local crisis response under the command of a governor. Trump’s executive decree orders the Secretary of Defense, Pete Hegseth, “to ensure the availability of a national rapid reaction force, involving federal control.
Mr. Nunn says that this would be equivalent to using US military troops in a way against which the founding fathers warned. These risks, add criticism, include expanding the civil-military fracture, potentially eroding constitutional rights and diverting the troops from their planned military objective.
Trump appeared last week to recognize the disadvantages of the deployment of the guard in places that they are not wanted but said: “We can simply go and do it.”
Untreated questions
In addition to the policy, national security experts look at the legal issues raised by the creation of a rapid national guard response force.
“I do not see anything that legally prohibits what the president seeks to do in the decree,” explains Mark Nevitt, who was a lawyer in the Navy and professor of law at the American Naval Academy. But Mr. Trump’s order, he adds, raises questions that have not been discussed.
The directive stipulates that the childcare units in the response force are formed – but what type of training is not clear. The same goes for the legal authorities that the troops would operate.
The hybrid status of the authority of the title 32 could also serve as a “flaw” around the posse Comitatus Act, notes Mr. Nevitt, now an associate professor at the Emory University School of Law in Atlanta.
The president could request that the National Guard units support a federal mission under this authority to combat crime or even apply the federal immigration law in a city, for example.
“Perhaps a governor of the red state accepts this,” said Mr. Nevitt. If the president sends the National Guard to a city like Chicago, for example, against the wishes of the Governor of Illinois, “which, in my opinion, would be a violation of the sovereignty of the State of Illinois. The Illinois does not welcome this external force in the state, and it would immediately be a subject of prosecution, and I think that the Illinois has a very strong case. ”
But Mr. Trump has other arrows in his quiver. He claimed the authority of the title 10 when he sent the goalkeeper to Los Angeles in June, citing the need to protect federal operations for the application of the Immigration Act.
Is guard a long-term solution?
President Trump deployed the guard at Washington because he wrote in his decree of August 11, the federal workers and others were threatened by a “precipitous increase in violent crimes”. The United States Ministry of Justice, weeks before the inauguration of Mr. Trump, announced that violent crimes in Washington had reached a 30 -year hollow. On the ground, the photo was more nuanced: last week, the Democrat mayor of Washington, Muriel Bowser, said that the deployment had helped the efforts of the local police and had led to less violent crimes. On Tuesday, she ordered the city forces to work indefinitely with federal officials.
CARRIE CORDERO, lawyer general of the center for new American security, noted that global crime in Washington is almost at the same level as 20 years ago, against 10 years ago when it was lower.
“But if we take the question of crime at its nominal value and said:” What do you know? ” The current situation at DC is simply not acceptable and there is really a problem, “the National Guard will not be a long-term solution,” she says.
Jose Luis Gonzalez / Reuters
If the federal government wants to develop a QRF to increase and help local law enforcement, “the best approach would really be that it comes out of federal law organizations”, such as the departments of justice and internal security, adds Ms. Cordero, who directed a series of briefings and a simulation on the subject earlier this year. They would be trained on the way of helping the police while respecting the protections against searches and the rights of seizure and unreasonable Miranda, she says.
Using the National Guard forces, on the other hand, “exposes the Americans to soldiers who are not necessarily trained to respect constitutional rights”, explains Mr. Nunn.
There is also an opportunity cost. Building in local police compromises their military preparation for national security emergencies, in particular by supporting the American military missions, adds Ms. Cordero. “I would say that this will be compromised if they are overused for the national police forces,” she said.
The National Guard is designed, when it is federalized, largely to support US military activities abroad – a main reason why COMMITATUS posse prevents them from carrying out the laws in these cases.
The American army “is and should be a fundamentally outward entity,” said Nunn. “He should focus on foreign interests.”
In his decision in the Californian case, judge Breyer wrote that “there was no rebellion, and civilian police were unable to respond to demonstrations and assert the law”. However, the judge did not order the administration to withdraw the 300 custody troops still in Los Angeles, and said that the troops could be used “in accordance with the posse Comitatus Act” – for example, to protect federal goods.
Mr. Nunn says that the country “is not at the edge of a military coup”. But, he warns: “It’s a road that you don’t want to take a step down.”
