JOHN KIRIAKOU: Trump & US ‘Insurrection’

George Floyd protests in Washington, D.C., Lafayette Square on May 30, 2020. (Rosa Pineda, CC BY-SA 4.0, Wikimedia Commons)

Using federal troops to quell citizen unrest is nothing new in America, but Trump is on shaky ground.

By John Kiriakou
Special to Consortium News

President Donald Trump this week threatened to invoke the Insurrection Act of 1807 to quell demonstrations across the country instigated by the police murder of George Floyd.  The act has been invoked at least 14 times throughout history, allowing presidents to use federal troops domestically. 

But just standing in front of a lectern in the Rose Garden and saying he’ll invoke the act won’t accomplish what Trump thinks it will.  He may not even have the authority to invoke it in the first place.

The Insurrection Act, 10 U.S.C. 251-255, empowers the president to federalize the National Guard and to call out the armed forces domestically, but only in specific circumstances:  When requested by a state’s legislature or governor; to address a “rebellion against the authority of the United States” or to hinder the execution of laws such that citizens are deprived of their constitutional rights.

So far, no governor or state legislature, Republican or Democratic, has asked Trump to intervene, even though he’s offered.  There has been no insurrection against the federal government, even in Washington, D.C., where it was the National Guard, police and Secret Service that fired on peaceful, unarmed protestors and not vice versa.  And there are no laws on the books in any state that deprive citizens of their constitutional rights. 

Photo Op

President Donald J. Trump on June 1, 2020, outside St. John’s Episcopal Church, which was damaged by fire during demonstrations in nearby LaFayette Square the previous evening. (White House, Shealah Craighead)

Trump giving a speech and then walking across the street from the White House to a church for a photo op, where he waved a Bible like a guy waves a dollar bill at a stripper, does not then suddenly give him the authority to wage war against the American people. 

Trump certainly tried to lay the groundwork for that war earlier in the day, when he spoke on a conference call with governors, where he called them “weak” and said they “look like jerks” for allowing demonstrations in their states. 

Illinois Governor J. B. Pritzker had the guts to stand up and tell Trump that he was the one causing upheaval because of his incendiary language.  In retrospect, Trump was probably hoping that one of the governors would “invite” U.S. troops into his or her state, giving Trump his cause célèbre and making him the “wartime” president he so desperately wants to be.  Instead, though, he’s the president who hid in a bunker at the first sign of trouble.

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Trump’s hands are tied in most of the places where he might want to send troops.  New York, California, Pennsylvania and Colorado are all run by Democratic governors.  Massachusetts has a liberal Republican governor. 

But Trump can make all the trouble he wants in Washington, D.C., where “taxation without representation” is the mantra.  Final authority in the District of Columbia rests with the federal government. Trump can call out troops in Washington and there’s nobody to stop him, unless Congress suddenly and uncharacteristically decides to take action, or unless Defense Secretary Mark Esper’s opposition causes Trump to think twice.

He might also try to construe looters or violent protestors crossing state lines as breaking federal law, allowing him to intervene in those states with federal troops even without the governors’ consent. Such a move would very likely be challenged in court.

But Trump Has Precedent 

July 24, 1967: President Lyndon B. Johnson (seated, foreground) confers with (background L-R): Marvin Watson, FBI Director J. Edgar Hoover, Sec. Robert McNamara, Gen. Harold Keith Johnson, Joe Califano, Sec. of the Army Stanley Rogers Resor, on responding to riots in Detroit. (Yoichi Okamoto, Wikimedia Commons)

The question, then, is “will American troops fire on American citizens?”  I think the answer is a resounding “yes.”  They certainly have in the past.  Just look at a handful of previous invocations of the Insurrection Act. 

In 1894, President Grover Cleveland used federal troops to put down the Pullman Strike in Chicago.  In 1914, Woodrow Wilson did the same in Colorado in what became known as the Colorado Coalfield War.  Franklin Roosevelt did it in 1943 to put down a race riot in Detroit.  And Lyndon Johnson invoked the act four times to put down riots in Detroit, Washington, Baltimore, and Chicago.  In every one of those cases, U.S. troops fired on Americans.  History may be repeating itself.

And if Trump doesn’t have his defense secretary’s support in sending in active-duty troops, Esper, in that same conference call with governors, did encourage them to hit protesters hard.  “I think the sooner that you mass and dominate the battlespace, the quicker this dissipates and we can get back to the right normal,” he said. 

Esper is calling American cities “battlespaces.”  And what in the world is “the right normal?”  Is that the “normal” where the police can murder black men with impunity?  Is it the “normal” of the “good old days” that we had after Ferguson, Baltimore, Cleveland and Sacramento?

One other note.  You may be wondering about the Posse Comitatus Act of  1878, the federal law which specifically prohibits the use of military forces in domestic law enforcement.  It allowed exceptions in “cases and under circumstances expressly authorized by the Constitution or Act of Congress,” such as the Insurrection Act, which preceded it.

And then it was essentially repealed in 2012.  By President Barack Obama.

John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act — a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

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