The Insurrection Act and the Future of Civil-Military Relations

TOOBIN: Hello, everyone. Welcome, virtually and actually. I am the moderator today about the Insurrection Act and civilian-military relations. Let me just introduce our distinguished participants.

Harold Koh is the Sterling Professor of International Law at Yale Law School where he is the former dean. He was also the legal advisor to the State Department when Hillary Clinton was secretary of state.

Peter Mansoor is the General Raymond E. Mason Chair of Military History at the Mershon Center for International Studies at the Ohio State University. He is a retired colonel in the U.S. Army and he’s a former military fellow here at CFR.

Kori Schake is the director of Foreign and Defense Policy at the American Enterprise Institute and the co-author of a book with Jim Mattis called Warriors and Citizens.

Let’s just start with a little history, and we have a military historian with us. Peter, what is the Insurrection Act and how did it come into being?

MANSOOR: Well, believe it or not, the Insurrection Act began where the play Hamilton ends, and now that Disney+ has put it on streaming, many of us have been able to actually see Hamilton. But it begins with Aaron Burr killing Alexander Hamilton and after which Aaron Burr’s political fortunes were dashed, and he decided that he was going to raise a private army and invade the Louisiana Territory and/or Mexico and create an empire for his own command.

And Thomas Jefferson wanted to put an end to this but didn’t feel like he had the constitutional authority to use U.S. federal troops against a private citizen or within the confines of the United States, and so he asked Congress to pass legislation allowing a president to use the Army to put down insurrections, which Congress does in 1807.

Now, the first time the Insurrection Act is actually used in a big way is Abraham Lincoln, who uses it as the basis for waging the Civil War, and after the war during Reconstruction the Act is expanded to include allowing a president to use the Insurrection Act, to use federal troops, to guarantee the constitutional rights of American citizens. This was in order that for the president to be able to use forces in the South to reconstruct the South.

And this basis for use of the Insurrection Act was most famously used during the civil rights period by Dwight Eisenhower, then president, to enforce segregation of Central High School in Little Rock, Arkansas, and it was used a number of other times to enforce segregation decrees. And then—

SCHAKE: To enforce desegregation, you mean, Peter.

MANSOOR: Say again.

SCHAKE: You mean desegregation.

MANSOOR: Desegregation. I’m sorry. (Laughter.) And then during the 1960s, the Act was used in a number of cities to quell riots. Most recently, in 1992 George H.W. Bush used the Insurrection Act to send the 7th Infantry Division into Los Angeles at the invitation of Governor Pete Wilson of California to help put down the Rodney King riots, and it has not been used since. But the bar for its use is fairly high, but it has been used a number of times throughout U.S. history both against insurrections and to enforce the rights of U.S. citizens.

TOOBIN: Kori, could you expand on that since that’s, you know, what we’re here, obviously, about? I mean, what prompted this is the—you know, the post-George Floyd events around the country.

But, Kori, talk about how in the modern era the Insurrection Act has been used.

SCHAKE: Yes. So it hasn’t—as Professor Mansoor was saying, it hasn’t been used often and since the 1950s use of it for desegregation—that is, for enforcing the constitutional rights of Black Americans—it hasn’t been used over the objections of governors or mayors.

And I think one of the things that alarmed a lot of us who care about the norms of civil-military relations was President Trump’s suggestion that even though governors and mayors were not asking for military forces to police—to either support civilian authorities or to police the equal justice under law protests that the president was suggesting he would do it anyway over their objections.

And I would certainly defer to Professor Koh, but it looks to me like that the president has the authority to do that and that’s what was making all of us so nervous because one of the reasons Americans have such a positive view of our military is because the combination of the Insurrection Act, posse comitatus, and the norms of behavior since the Kent State shootings in the early 1970s America’s interaction with its military is principally with National Guard forces when they are supporting governors during disaster relief.

And so people were really nervous about what it would do to this relationship between the American public and our military to have a president for what looked like overtly political purposes, not security purposes, federalizing National Guard or using active duty forces against Americans who were peacefully protesting.

TOOBIN: Harold, let’s get to that, the legal question here. What does a president have to do or say or find in order to invoke the Insurrection Act?

KOH: I think we want to start by exploding some myths that have grown up since June 1. You know, one, Trump never invoked the Insurrection Act. He said he was thinking about it. And then Esper, the secretary of defense, later said he wouldn’t recommend it.

Secondly, the reason it’s so rarely invoked is that it is the narrow exception to the very broad rule, which is the Posse Comitatus Act, you don’t put troops in the street to do daily law enforcement. That’s done by the police.

And third, I don’t agree with Kori that he has the authority to do it. He didn’t have the authority to do it. I don’t think any of the exceptions in the Insurrection Act that—to the Posse Comitatus Act were—could have been meaningfully invoked. There was no request by a governor. In fact, he was acting over the request of local officials. There was no claim that there was some kind of insurrection going on against the United States government.

I think that Peter maybe over broadly states the rule about civil rights. You know, the Act was the act to enforce the provisions of the Fourteenth Amendment, not a general provision about constitutional rights, which meant it was to be used to support court orders that, you know, promoted desegregation and it was not to be used to stop protests about Black Lives Matter or as some kind of restraint against peaceful gatherings in the street.

TOOBIN: Peter, you want to respond to that? I mean, do you think—well, talk about what your view is of when it’s legitimate to invoke it.

MANSOOR: So Harold’s right. The exception or the expansion during Reconstruction was to enforce the Fourteenth Amendment throughout the South. The president, if he’s invited by a governor to send forces in, he has broad authority to do that, as George H.W. Bush did in Los Angeles when he had an invitation from Pete Wilson.

If not, then the bar becomes much higher. He has to actually convince the people that there is an actual insurrection going on and not just some sort of lawless activity, which would be better handled at the local level or by National Guard troops. The real sticking point, I think, legally, and Harold can talk about this, is what if the president does not agree with the governor in terms of the level of violence and whether it is an actual insurrection against the authority of the United States.

TOOBIN: What about that, Harold? Because I know—I mean, I just remember on CNN we had the governor of Illinois saying, I can veto the use of troops. Now, obviously, this never came—it never came to a head because the president didn’t order troops into Illinois. But can a president overrule a governor and send troops even if the governor doesn’t want them?

KOH: Only in a very narrow circumstance, which I don’t think was implicated here. The combination of what Trump said and what Tom Cotton said was that there’s sort of some general lawlessness exception to the Posse Comitatus Act, which means that the president perceives some general lawlessness creating some kind of emergency. He can just substitute military forces on the streets for law enforcement, which is, obviously, a police power of the states and without congressional authorization, and that’s a violation of separation of powers.

It’s also a violation of federalism and it’s also a perversion of the original purposes of this Act, which are to enforce the equal protection of the laws for African Americans, not to take away their rights to protest about it.

TOOBIN: Can I ask—I hope this isn’t too much in the weeds. Kori, I don’t know if you know the answer, or Harold. But there seems to be some sort of distinction drawn between federalizing the National Guard and sending in active duty military. Is there a difference under the law between those two acts that a president might take?

SCHAKE: Harold, do you want to speak to this? The authority in the District of Columbia is a special case. That might also be useful, Harold, for you to explain.

KOH: So there’s a calling forth clause, as it’s called, which is a congressional power which allows the National Guard to be called forth for various kinds of domestic duties, you know, for example, hurricane relief and other kinds of things.

But the most important thing is that law enforcement is a core prerogative of the states. You remember, Jeff, the Lopez case about the Gun-Free Schools Act. That’s about the police power of law enforcement. So you cannot suddenly put federal soldiers into the streets unless you can demonstrate that there is some kind of total breakdown of order that the police are incapable of dealing with, and nothing close to that was manifested by what was going on in Lafayette Park. People were just marching peaceably.

And, interesting, though what happened at Lafayette Park was that it was some combination of Park Police, the Secret Service, and others who cleared the streets using rubber bullets and then there’s a question about whether tear gas was used. But, you know, there was nothing approaching a general breakdown of order that warranted invocation of it at that moment in time and that’s, I think, precisely why Esper a couple days later backed off of the idea that Trump was allowed to do that. In fact, Trump wanted to invoke the Insurrection Act and, of all people, Bill Barr was one of the people who talked him out of it.

MANSOOR: Jeffrey—

TOOBIN: Peter, please.

MANSOOR: —the really interesting example of this, when Eisenhower ordered the desegregation of Central High School in Little Rock the governor actually ordered the National Guard to prevent the Black students from entering.

Eisenhower then federalized the Arkansas National Guard, ordered them out of the city, and put the 101st Airborne Division in to ensure that desegregation laws were applied. So it’s the way the president used the federalization of the National Guard, basically, to get them out of the way.

KOH: But, Jeff, you can’t just federalize. There has to be a court order that’s being implemented by the executive branch. In Little Rock, there was one, and on June 1 in Lafayette Square there was none.

TOOBIN: Kori, you wanted to say something?

SCHAKE: Thank you. I wanted to emphasize the point that you raised about the difference between National Guard and active duty troops, because the National Guard belong to governors, and the president can request their use for federal purposes but governors have the ability to say no in lots of circumstances and they do say no. The governor of California, for example, will routinely refuse federal requests during wildfire season when National Guard troops are fighting fires in the state of California.

So governors have a wide swath of control over National Guard troops. The federal government has control over the active duty troops, and one of the things that made a lot of us nervous during the Lafayette Square incident was the president calling into service a brigade of the 82nd Airborne, arming them with bayonets for potential use in Washington. Because you don’t have a governor in the District of Columbia since it isn’t a state, that authority was—the authority on whether to use those forces in the District of Columbia rested first and foremost with the secretary of defense and he passed that authority down to the secretary of the Army.

So this is one important instance when D.C. not being a state left it much more at the mercy of the president’s choices about how to handle the protests than any governor would have had.

TOOBIN: And as you point out, D.C. is a special case because it’s not a state, and also the incident in Lafayette Park is anomalous and, I think we can agree, unfortunate because there was no active, you know, looting or fighting going on. It was a peaceful protest.

Let’s talk a little bit about what went on for a time in Minneapolis, what went on in Seattle, where there was—and, to a certain extent, in New York City, although it was only a few hours—where there was real violence involved. What is your feeling, all three of you, about using National Guard military under the Insurrection Act to stop actual violence that was going on? Peter, you want to start?

MANSOOR: I’ll start. So there’s a chain that you should go through. The first part is local police should try to handle it. You call in other police from other districts if the violence is localized in one city. And then if that’s not working, the governor can use the National Guard and bring them in. National Guard typically is trained in crowd control, or could be, because they have that connection there with state authorities and local authorities.

And then and only if neither of those options works should the governor consider calling the president, because it’s a big step to bring in federal troops. I was in the Army for twenty-six years. We never once trained for crowd control.

So this battalion of the 82nd Airborne that goes to D.C. is trying to figure out, well, how do we control crowds. Well, let’s put sheathed bayonets on our rifles. We don’t have batons. We don’t have shields. We’re not trained in how to use them.

And so bringing in federal troops is a whole another level of complexity in terms of the escalation to potential violence and then, of course, just bringing in federal control over what, hopefully, should be a local law enforcement issue.

So that’s my feeling on that. It should be a last resort, at best.

TOOBIN: Harold, you wanted to say something.

KOH: Yeah. If there’s one thing the viewers of this program should come away with, it’s a clear sense of what is the rule, the Posse Comitatus Act, and what’s the—

TOOBIN: Actually, could you just stop for a second? You’ve mentioned it several times. Could you just talk a little bit about the Posse Comitatus Act? Because I think many of us have heard of it. They sort of know about it generally. But just talk about what it is and how it came into being, and then how it applies to this situation.

KOH: Yeah. It’s a law that prevents the use of the military for civilian purposes like law enforcement. That is the general rule, that the military operates in the foreign space and that the police and other security officials operate in the domestic space, and that is the big—

TOOBIN: And I’m sorry to interrupt you again, but can I ask a TV question? Why is it called Posse Comitatus and what does that mean?

KOH: Because, as you remember from the old days, the posses. People would organize posses and then there would be, you know, efforts to organize militias, and under what circumstances is this supposed to become a military activity as opposed to being a domestic law enforcement activity.

But the Insurrection Act is a very narrow exception, and within the Insurrection Act’s exceptions there is when the governor, the local authority, as Peter said, determines that they can’t handle it and makes the request. That’s most of the cases. Or the other is when there’s a court order and so the feds come in to enforce the court order, like Little Rock.

What was really going on in Lafayette Square was that Trump was trying to create a general law and order exception that would, you know, blow a huge hole into the Posse Comitatus Act, and I think this goes back to Kori’s main point in her book with General Mattis. It’s called Warriors and Citizens. In other words, we have a pretty clean separation between warriors and citizens, between civilian space and battle space, between the external and the internal, and between actions to enforce civil rights and actions that attack civil rights.

And the interpretation that Trump would give it, which is a general law enforcement exception that allows troops to be put on the street when the president feels like it or perceives a threat or wants a photo opportunity, would entirely blur this distinction, which runs through all of our constitutional law and statutory law.

TOOBIN: Kori, could you elaborate on that, just also from a policy perspective and why does the military care about not being used in a domestic context?

SCHAKE: That’s a great question. So we have, since 1973, had an all-volunteer force. We don’t have conscription. People have to choose to join the military, and in any free society that has a volunteer force the relationship between the military and its society is hugely important for the legitimacy of the military.

The state has a monopoly on the use of force in free societies. But, as Harold was saying, there’s a longstanding tradition in the United States of keeping the military out of our domestic disputes and out of our domestic politics. One of the things that makes the Lafayette Square incident so alarming is that a lot of the elements about the relationship between the American military and our broader society are norms. They’re not constitutional prescriptions. They’re not laws. They’re patterns of behavior that are traditional, right.

Like, so one of the things we are luckiest about in American history is having had our first general be George Washington, who thought deeply and carefully about the risks that a standing military would pose to a free society like ours and had an enormous amount of restraint.

So seeing, for example, the secretary of defense and, even worse, the president’s senior military advisor, General Milley, in a combat uniform going through Lafayette Square alarmed a whole lot of us because it politicized the military.

It positioned our military as though it were a partisan force supporting the president’s expansive view that Harold mentioned about the exceptions to posse comitatus and to the Insurrection Act. And there’s a very deep tradition in the United States of our military staying out of that kind of partisan usages and a lot of us were worried that the secretary of defense and the chairman of the Joint Chiefs of Staff were violating those norms.

TOOBIN: Let me play devil’s advocate, Peter, a little bit here. You know, the president of the United States sees disorder around the country, whether it’s Seattle, Minneapolis, and, again, let’s put Lafayette Park to the side. I’ve got this well-equipped, very well-trained military that’s not far away from these cities. The police don’t seem to be handling it.

Why shouldn’t I call in the—why shouldn’t I—why should that norm that we just—Kori just mentioned, why should that matter when I could solve the problem with the military?

MANSOOR: Because we don’t want the United States turning into a republic where the president has the authority to use military force for political purposes, and even though he may not view that as being a political thing to put down unrest, the unrest was created by people trying to voice a political disagreement with current policy and current laws. This would sever the link between the American people and the military.

The military has the highest approval rating of any institution in the United States, and you would see that approval rate spiral downward really quickly should the military get involved in domestic political matters. And so that’s why we should all care about this.

TOOBIN: Harold, is there anything—and I think Kori, you know, really put her finger on it when she talked about norms but—because there—a lot of these issues are resolved by norms, at least customarily. Do you think the law has a place in this or is this something we sort of trust our president to be—to respect those norms?

Or, to put it another way, if the president invokes the Insurrection Act and sends troops where they’re not wanted, could a court intervene at the request of a governor? I mean, how would that work?

KOH: I think it’s more than norms. I think it’s law, and therefore, the president has no legal authority to act in violation of the law. His power comes from his oath, which is uphold the Constitution and laws of the United States. I think the Posse Comitatus Act, generally, prohibits him from putting troops in the streets and the Insurrection Act authorizes him to do so in very limited circumstances, which weren’t implicated here. So what he did was forbidden and it wasn’t authorized by the narrow exception.

But, more broadly, and I think this goes to Peter’s point, why don’t we want this? It’s Congress that has the constitutional power to call forth the militia, not the president. So it’s a violation of separation of powers if he invokes that in the face of congressional inaction. And then secondly, it is the power of the states to exercise the local police power, and so that’s an interference with federalism. So the separation of powers and federalism are the norms that are being violated.

TOOBIN: Well, so when George Herbert Walker Bush ordered in the military in California after the Rodney King riots, Congress didn’t authorize that, did they? I mean, there wasn’t a separation of powers—

KOH: No, but the governor requested it and that’s—Congress authorized it in the Insurrection Act to the extent to which a request by an official under one of the provisions—a state official, a relevant state official—allows that to happen. In fact, most of the incidents that you can look at—you know, Washington, after the death of Martin Luther King, Detroit in ’67—those are all examples of the governor requesting it, and there’s no example where the government opposed it.

And the other cases that are frequently invoked are ones in which the feds are coming in to invoke a federal court order because the state is participating in a violation of equal protection, for example, in the civil rights cases that the Kennedy administration was involved in.

TOOBIN: Before we go to questions from the audience, Kori, I wonder if you could just sort of talk a little more broadly about the state of military-civilian relationships. Obviously, Jim Mattis, someone you’ve worked with closely, you know, has now become a little more outspoken in his dismay about what’s going on in the Trump administration. But particularly about the relationship between the military and civilians. Where are we now and is—are we in a good place or not a good place?

SCHAKE: I think we are actually in a pretty good place, and I think the events of Lafayette Square served to brighten and broaden the line of what is appropriate uses of the American military.

The fact that Secretary Esper felt the need to publicly say he wouldn’t support the use of the Insurrection Act and the rather remarkable apology by General Milley for having failed to uphold the norms and expectations of the American military’s part of this bargain, I think, have reinforced the norm that the American military needs to stay out of—to keep themselves out of situations in which they can be used for partisan political advantage, and, as Peter said, their relationship with the American public relies on that.

In the surveys of public attitudes that Jim and I did for Warriors and Citizens, it’s really striking how much the American public would like the military to be much more political. The American public favored Michael Flynn and John Allen—senior retirees—having very partisan roles in political conventions in 2016, for example.

The only effective restraint on much more politicized uses of the American military is the professionalism of our military itself, because they understand the importance both in a policymaking perspective—that is, the American military has a much wider policymaking role than militaries in any other free society and that’s because the norm and the expectation is so strong that once the commander in chief makes a decision, the military will enforce it or resign their commissions. Those are their only two choices. They wouldn’t be trusted with a policymaking role if they had a broader range of choice after that decision.

And the second thing is that we see in public attitudes about the military that the American public begins to view our military the way it views the Supreme Court; that is, when the military’s decision supports the partisan preferences of a political—of the public, the public thinks they are nonpartisan, and when the military opposes the partisan favors—perspectives of—they view it like they view the Supreme Court, which is partisan if it doesn’t support my views and apolitical if it does. And I think that’s the reason that the civil-military community of experts thought this was such an important test case in Lafayette Square.

TOOBIN: Peter, the same question to you. Where are we in terms of civilian-military relations?

MANSOOR: Well, I agree with Kori. I think we’re in a much better place than a lot of my fellow academics who decry the separation of the military from the people, given the fact that only 1 percent or so serve in uniform.

But I think General Milley’s actions after Lafayette Square spoke volumes. He actually considered resigning, according to some reports, and the fact that that leaked out, I think, is an important message to military officers that they can’t condone the use of the military for partisan political purposes.

Where I think there might be some fraying is when you have senior retired military generals get very deeply involved in partisan politics—Michael Flynn chanting “lock her up” with the crowd at the Republican National Convention, and so forth.

Now, he has the right to do that. He’s retired so he’s now a civilian. But it somewhat tarnishes the military when senior leaders become very political in that nature after they hang up their uniforms.

TOOBIN: Harold, I’ll let you, before we go to questions, have the last word on this subject of sort of the general state of civilian-military relations.

KOH: Yeah. When you were playing devil’s advocate you said, you know, why can’t we trust the president to respect the rule of law, and the answer is because there are some presidents who don’t respect the rule of law. I think what we’re watching here is completely analogous to what’s going on with career prosecutors on the Justice Department side. There is a kind of chain of independence that’s been interfered with.

And while Peter and Kori are correct that the military has worked hard to try to maintain their internal norms, the number of cases in which Trump has interfered—you know, the Eddie Gallagher case, for example—or, you know, we shouldn’t forget that just today Lieutenant Colonel Alexander Vindman retired because he wasn’t getting promoted. And there was no suggestion that he wasn’t being promoted because of a failure in his military service. It was because he had the guts to get up and say—testify before Congress as a whistleblower. And that’s the kind of political interference, the kind of role confusion between civil and military, that’s running rampant here.

So I think we should think of this as just another example of this confusion of the role of citizens and warriors, and thrusting the military into civilian space—treating it like a battlespace when, in fact, these things were designed to be kept separate by the Constitution and by the norms that we’ve lived by.

TOOBIN: With that, let’s move to questions from the audience. You heard your instructions. I am not in control of the technology of questions. So have at it, those who are in control.

OPERATOR: (Gives queuing instructions.)

Our first question will be from Charlie Stevenson.

Q: Thank you very much for your discussion.

I have a constitutional question. Clearly, the Congress has the power under Article One to call forth the militia and so forth. But Article IV, Section 4, says the U.S. will guarantee a republican form of government to the states and it doesn’t assign that power either to Congress or the president.

If we had a situation post-November 3 with unrest in the streets or disputed ballots and things like that, how could that be resolved constitutionally, and especially could a president use force to settle that dispute?

TOOBIN: Harold?

KOH: Well, you know, the president’s authorities with regard to the calling forth clause have come from statutes that delegated authorities to the president under certain circumstances that are narrow and one of them is, in fact, the Insurrection Act with its narrow exceptions.

The republican form of government clause, which has been held to be nonjusticiable by the Supreme Court, I don’t think anybody believes that a president who is, in fact, one of the participants in an election can use his commander in chief power over the military to take over the streets to ensure that he wins the election.

That’s the kind of thing that happens in dictatorships where military leaders do coup d’états or run for office and then use their continuing power over the military to try to secure a claim of civilian leadership.

When I was a student in Korea, there was a coup d’état and the president was the former chairman of the Joint Chiefs of Staff, and I was there in college when Richard Nixon left office and Gerald Ford became president. And on the same day in Korea, there was a(n) attempted assassination of the president, former General Park Chung-hee, and there were tanks in the street.

And my father said to me, that’s the difference between the rule of law and the rule of individuals. He said, in the United States if you are the president the troops obey you. In a dictatorship, if the troops obey you then they call you president. And I don’t think we should confuse those two things.

TOOBIN: Let’s get another question.

OPERATOR: Our next question will be from Michael Meese.

Q: Hi. Mike Meese. I work currently with AAFMAA. I was a soldier for thirty-two years and in those assignments I had the privilege of working with both Pete Mansoor and Kori Schake.

One of the other—the military has quite a bit of power and is used in a lot of different events—supporting the president, supporting other things—and Congress has a law and executive orders have supported national special security events, such as the Super Bowl and every political convention. And so I don’t know this, but I assume that just like all previous conventions both the Democrat convention and the Republican convention in Jacksonville will be national special security events, and a whole lot of military will be deployed in support of those, which isn’t part of the Insurrection Act. But if you could imagine significant protests, for example, in Jacksonville with President Trump or, for that matter, in Milwaukee with Vice President Biden, what rules are there with regard to the military in those events where they are, clearly, called in for something that Congress has made an exception for but may or may not get involved in riotous or terrorist behavior?

TOOBIN: Peter, you want to take a shot at that?

MANSOOR: I have no clue. (Laughter.) I don’t know what their rules of engagement are.

Harold, do you have any insight?

KOH: Well, let’s go back to the exceptions of the Insurrection Act. The big one is if there’s a rebellion against the federal government. That’s not what you’re talking about. The second is if there’s a federal court order, you know, which the local police are not able to implement and the local judiciary is not able to implement.

I don’t know the circumstances where that would happen around a convention. You know, even the Chicago convention of 1968 it was the Chicago Police Department that was being charged with abusing its authority, not military officials or National Guard.

And then, finally, is this exception for the enforcement of equal protection, and that is to make sure that the states don’t get involved in a denial of equal protection to, you know, for example, African Americans in Little Rock.

So I don’t think any of those exceptions that are in the Insurrection Act apply to the notion that when things start getting out of control and someone in the White House decides he wants to invoke a general inherent power to order troops into the streets that he actually has any kind of authority to do that.

TOOBIN: Well, and my—

SCHAKE: Can I—

TOOBIN: Kori, please go ahead.

SCHAKE: I was just going to add that the decision rule in those circumstances, even for special security events, the reason that the military is given a role is because you are imposing a big activity on a community that doesn’t have the local or, in many cases, state police power, and as with troops who have deployed to the U.S.-Mexican border, the rule is that troops are there to provide support to civilian authorities. They stand behind the local police and other law enforcement. They’re, like, the last line of defense, not a first line of defense, precisely to reinforce that they are there supporting civilian authorities and not as an alternative, federally imposed.

TOOBIN: Kori, you raise a very interesting point there, though. Why are they at the border? And under what authority are they—are they there?

SCHAKE: So I would defer to Harold on the authorities. U.S. troops have traditionally—I mean, it is a legitimate role for the military to police the country’s borders. But we have traditionally not done it, in part because civilian authorities, state authorities, and federal civilian authorities are adequate to the task. And we also get really nervous about doing it for example the reason Peter Mansoor mentioned, which is this isn’t what our military is trained for.

Our military is trained for, you know, breaking things and killing people, for fighting wars. And it’s a very different skillset to prepare them to think in a humane way about dealing with immigrants at the border. And so they really don’t like to do it. And in a few instances when they have done it, a decade or so ago putting Marines on the border, a Marine perceived a threat and shot an American civilian. And so they get really nervous about being put in those kinds of positions, which is why they like to stay behind the civilian authorities, not in front of them.

TOOBIN: Peter, please.

MANSOOR: Yeah. So I actually commanded a unit that did support for the Border Patrol back in the late ’90s, early 2000s. And we did it in as training. So we put our helicopters up and they would practice their mission of screening. But if they saw activity on the ground they would just report it to the Border Patrol, but we had no authority to step in, apprehend border crossers, or anything. I think, and Harold can confirm this, the difference today is President Trump had declared a national security crisis on the border. And that has given him added authorities to use troops on the ground there to defend the border, if you will.

TOOBIN: Harold.

KOH: Well, I think that’s the whole point, is that these claims of national emergency are being contested in court. You recall that just before the midterm election, when there was the, quote, “caravan,” Trump moved troops to the border to essentially make an electoral point, which is that there’s some kind of crisis so that there should be a reason to support his candidates. But where he jumped the shark was by claiming that the border wall was made necessary by a national security emergency, when the emergency was that Congress, exercising its exclusive power of the purse, had decided not to give him the money to do this.

Now, amazingly—this is being litigated in the Ninth Circuit and the Fifth Circuit in the El Paso case. The Ninth Circuit had just ruled against the president. We’re still waiting on the Fifth Circuit. But amazingly, the Justice Department is now making the argument that the reason that they need money for the border wall is so that they can return the troop—by building the border wall they can return the troops to their ordinary duties, and that that gives a national security and force protection rationale for doing so. So it’s the ultimate bootstrap. And I think that, you know, a fair-minded court would strike this down.

TOOBIN: Let’s get another question.

STAFF: We’ll take our next question from Amy Holmes

Q: Hello. Thank you all for this—for this fascinating discussion.

My question is—I’ve been teaching at the American University in Cairo for a number of years, through the revolution and the coup that overthrew—well, first Mubarak and then Morsi. And my question is, you know, whether any of you actually think that it’s possible to convey, you know, the U.S. experience with civil-military relations, in which you have, you know, civilian control of the military—whether it’s possible to actually, you know, teach this or convey this to non-democracies? Because a lot of the U.S. military at least—you know, the assumption is that we can convey this, right? And that’s why you have, you know, President Sisi—Abdel Fattah al-Sisi of Egypt, you know, he spent a year in 2006 at the U.S. Army War College. He even wrote a, you know, report, like his thesis, about democracy in the Middle East. But at least in the case of Egypt I don’t see any evidence that he actually learned anything from it. So the question is whether they think it’s possible. Thank you.

TOOBIN: That’s a very good question. Let’s get some answers. Peter, what do you think?

MANSOOR: So I was there on the ground in Iraq in 2003-2004, again in 2007-2008. And this is exactly what we tried to impart on the new Iraqi Army, that it should have this ethic of civilian control of the military. It is very difficult because you can teach, you can train, you can give them historical examples. But the culture of that society is completely different from the United States. It’s a culture where the military is deeply involved in politics. And you can’t just somehow wipe away that culture in a day. It’s a long-term commitment. And yes, we bring military officers in, and we school them at our war colleges, and so forth. But that’s one year out of a lifetime of experience. And they go back and, you know, hopefully it has an impact on them, but the culture reign supreme.

TOOBIN: Harold, did you want to address that?

KOH: Yeah, so I was assistant secretary for democracy, human rights, and labor. And in most of the countries of the world the military is the best organized and most respected institution. The difference is that in the United States the military respects the lines between civilian and military. And it goes back to George Washington. You know, in Hamilton one of the most famous things is that George Washington ceases to be a general to become president, and then after being president instead of continuing on forever, which he easily could have done, he leaves office. And General Eisenhower, when he became president, was scrupulous about maintaining the line between civil and military.

And what happens in a place like Egypt is that when the other institutions—you know, the institutions that bring down one government in Tahir Square don’t have the strength to then run society and, you know, get the garbage taken out and provide for basic food, then people tend to turn to the military to do basic functions because they are viewed as being more organized and more competent. And then they start to think themselves, well, I might as well be president. And that’s what happened to the restoration of military rule in a place like Egypt.

TOOBIN: Kori, I mean, you have experience, you know, with the very high-level military people. How do they feel about this sort of proselytizing role of advocating on behalf of civilian control to other countries?

SCHAKE: It’s such a deep, deep-rooted reflex in the American military that even if they don’t say it out loud, they so obviously exemplify it that it’s sort of like Old Testament prophets. You can hear them thundering whether or not they’re speaking. And it very often has good effects, but I agree with Peter Mansoor that it can’t trump the local circumstances and culture. You know, in the 1980s we had what we called the School of the Americas problem, where every dictator in Latin America had come through American military training, because the most promising young officers get selected for it. And those tend to be the people, as Harold has just suggested, who view themselves as saviors of the country before they try running an economy and realize what a genius idea it is to make civilians do that mess instead.

TOOBIN: Let’s get another question.

STAFF: Thank you. Our next question will be from Pearl Robinson.

Q: OK. Well, this is Pearl Robinson. And I’m at Tufts University. I do African politics.

So you’ve been talking about what I wanted to ask, about the modeling of behavior. The events at Lafayette Square modeling civil-military relations in a way that people in Africa and other places will now say, well, look, the Americans did this, so this is actually good practice. So I have found this discussion fascinating. But we really just talked about the impact using American institutions and history. I think it would be useful to think about how you could package this discussion in a way that people who believe in civil-military relations in places like Africa could use this, because it’s very clear to me that what we saw—and there’s all this news footage and YouTube footage—that’s going to be circulating in these places. And it’s a new message about the way the Americans do things.

TOOBIN: Harold, I mean, you were assistant secretary for, to put it in a colloquial way, you know, export of democracy? How does that work? I mean, does it work? Are we even capable of doing it? Sometimes you hear politicians saying, you know, we shouldn’t be involved in nation-building. Should we be involved in nation-building? Are we capable of doing that?

KOH: Well, I think we should be involved in modeling behavior—modeling constitutional behavior. We’re one of the oldest constitutional democracies in the world. And what I’d say to Professor Robinson is the most important thing you can do with the Lafayette Square incident is to say, what does this—what precedent actually did it set? I would say, among other things, the president did not invoke the Insurrection Act. Troops were not put into the streets. The Defense Department—secretary of defense said he would not have recommended the invocation of the Insurrection Act.

Mark Milley confessed error, and afterwards there’s been a broadscale pushback against this as a lawless activity that blurred the lines between civilian space and battle space. And something like eight-five former Defense Department officials wrote a letter saying that—of both parties—saying that that his was unnecessary politicization of the military. So in this case I think the norms have prevailed. I don’t think that Trump is more likely to do it in the future. I think he’s less likely to do it. And I think it’s clarified the limitations on his legal authority.

TOOBIN: But I think Professor Robinson makes a very interesting point, that for all that you have made those points that there was pushback against what the president did, the YouTube footage is still out there of the president clearing the way and making this big demonstration. How does that influence compare to the more—you know, the more complicated arguments you were making?

KOH: Well, you know, history is long. And, you know, whether this turns out to be something that strengths his political position, helps him get reelected is the ultimate test, not whether he was able to give a speech that was staged on that particular moment. I think there was almost immediate pushback. And I think his advisors appear to have suggested to him that the whole thing was a mistake, and that they should probably not do something like that again.

TOOBIN: OK. Let’s get another question or two before we have to wrap up.

STAFF: Our next question will be from Stephen Kass.

Q: Thank you.

Commissioner Koh has said that the restraints on use of military are not simply a norms but are legal. And my question is, to what degree are standing requirements imposed by federal courts an obstruction to the enforcement of those obligations?

KOH: Well, you know, obviously it depends. If the president is able to change the status quo, and then people come in and they’re told that they don’t have standing to challenge it, or that it’s moot because the event is over, then it will be an obstacle. But on the other hand, you may have a situation in which the president is not able to act. And, you know, for example, the ACLU has brought an action about Lafayette Square, in which they call the actions a violation of the First Amendment. And I think you could pretty clearly have a ruling that essentially what happened was a use of power based on objection to the content of political speech, which violates the First Amendment. And I think that could be adjudicated. And in the context of that, the president’s claims of authority could be subjected to a Youngstown Sheet & Tube steel seizure analysis and find that, in fact, Congress didn’t authorize him to do what he claimed he was doing.

TOOBIN: Let’s try to get another question in.

STAFF: Our next question will be from Ed Cox.

Q: Yes, Ed Cox from Patterson Belknap. I did my service with the 11^th Special Forces Group.

And my question goes to Eisenhower’s authority under the Insurrection Act. Clearly the Insurrection Act wasn’t intended to—Ike didn’t contemplate that situation. And did he really act under a combination of the moral imperative of civil rights, his own prestige, and that created an exception that he used? But perhaps the Insurrection Act really didn’t support what he did, but it was accepted as the equal rights protection under the Fourteenth Amendment?

MANSOOR: I’ll begin and then—

TOOBIN: Peter, why don’t you go ahead?

MANSOOR: Yeah, and then I’ll hand it over to Harold.

But the Congress, after the Civil War, during Reconstruction, actually amended the Insurrection Act, and added the ability for the president to use force to enforce the Fourteenth Amendment. And that’s what Eisenhower based his use of federal forces when he desegregated Central High School in Little Rock, Arkansas. But Harold can confirm.

KOH: Well, I clerked for Judge Malcolm Wilkey of the D.C. Circuit who, as assistant attorney general for the Office of Legal Counsel, was actually Eisenhower’s lawyer on the ground in Little Rock. And what’s clear is that they were enforcing a court order, and that they were enforcing the court order to preserve the equal protection rights of African American citizens. And that that was the basis under which it was done. And so he clearly felt within those parts of the Insurrection Act it wasn’t invoking a general, unauthorized, vague power to suppress general lawlessness. And the main concern there was that the state was actively participating in the violation of equal protection. That’s Orval Faubus. And that’s what allowed them to invoke these provisions to override that action, because the state—you can’t rely on the state and ask the local police to do it if the state is part of the equal protection problem.

TOOBIN: What a fascinating subject. And what a fascinating discussion. And I think we are—we are out of time. So I will thank our panel participants, and thank our virtual audience, and look forward to seeing you someday again in person. So long, thanks.

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