By Ciprian Ivanof
The risk of public disorder demands a re-evaluation of the legal framework National Guard forces and the public trust rely on. We live in an age of political uncertainty, violence, and a resulting deep need for predictability. One way we seek to address such things is with model state codes. Model State Codes of Military Justice add predictability and comprehensiveness to domestic military law for state military forces where they have been adopted. Even so, there are many aspects of domestic operations that are increasingly likely and without much statutory guidance.
Restoration of public order is a mission periodically conducted by state forces. However, in most states, the statutes are left with little more than a clear chain of command. Ex Parte Milligan, 71 U.S. 2 (1866), prohibits the use of military tribunals for unarmed people while the civilian court system is still functional. While valuable, this does not provide much guidance in anything short of a protracted conflict.
When trust is absent, ambiguity causes a negative reaction. If a state uses local military forces in a public order situation, the military force should first strive to understand relevant legal authority and then look to whatever training they have. Military training in these areas focuses on conduct in foreign countries (for obvious reasons). Given the fragmented nature of domestic law, such training may not be sufficient to be trusted for operating in a domestic environment. Local law enforcement is a valuable guide for military commanders but may be absent or untrustworthy in severe situations.
Army regulations and field manuals provide vital input and norms for such operations, but the lack of legal sources continues. FM 3-19.15 Appendix B-30 provides citations to 10 U.S. Code § 332 and related statutes, but the rest are references to Department of Defense (DoD) directives and other products of the Executive Branch. DoD Directive 3025.21(2013) provides a fair amount of detail but only for forces acting under Title 10 or Title 32 (when assigned by the President). The most applicable document for the National Guard is listed in FM 3019.15. Appendix B-30 is entirely about delineating lines of authority for planning and not about operational limits. When the training manual only references the restrictions on Federal authority that does little to guide state authority.
While it is unlikely that local forces would engage in unlawful behavior, the political reality is that many people are nervous around the use of military force. The lack of clear rules governing the military in a state of emergency can be fodder for paranoia and hostility. However, if clear and uniform rules are prescribed, political and military authorities will better understand their responsibilities and limits of authority, while providing a guide for withdrawal of military order and comforting the population with the awareness that law still governs during a given emergency. The Kent State incident was not only a failure resulting from a lack of better means of crowd control, but it was also a political disaster due to the unclear authorization of their acts and added to the radicalization and polarization of the time.
Krause v. Rhodes, 570 F.2d 563 (6th Cir.1977) (the main case resulting from the Kent State incident), noted the vagueness of many of the existing Army standards. After deciding that evidence of the standards and training was admissible, the opinion read:
There was voluminous evidence in this case from which a comparison could be made between the procedures prescribed by Congress and those ordered and practiced by the Ohio National Guard. It was for the jury to determine whether the Ohio orders and regulations, particularly with respect to use of loaded weapons in dealing with civil disturbances, represented a departure from Army regulations. If such a departure was found to exist, it was a factor to be considered in deciding the ultimate issues of liability in these cases.
570 F.2d at 572. Sadly, such regulations are sparse with regards to domestic situations. The best guidance is from state law, and that is itself vague. In light of the Kent State incident, Ohio again provides a good example of the vagueness of such laws and provides:
(A) When members of the organized militia are called to state active duty by the governor, the orders shall state in general terms the objectives to be accomplished and with which agencies of civil authority the accomplishment of these objectives shall be coordinated. The missions of a commander of any unit or units called to state active duty in aid to civil authority shall be as directed by the appropriate civil authorities. The mode and means of accomplishing those missions shall at all times remain with their commander.
(B) The command and control of units or members of the organized militia shall at all times remain with their commanding officers.
Ohio Rev. Code Ann. § 5923.23 (West 2016). That obviously places a great deal of discretion in the hands of unit commanders which may be justified by the variability of missions but fails to provide clear guidelines for when the situation can be stepped down to a normal civilian environment. History in other countries has justified fear that martial law remains long after the initial crisis ended. While the US has had similar situations (Reconstruction, Minnesota during WWI), concerns have not risen to a similar level due to the infrequency of these crises. Still, fears remain powerful—as exhibited by the panic over Jade Helm that twisted a normal bit of endurance training in Ontario, California into a dystopian government conspiracy propagated by ideologues as different as Alex Jones and Natural News. The paranoia was a result of the lack of trust many citizens have concerning the Executive branch and the potential to abuse martial law.
Model state codes of military justice have been well developed for matters internal to the military. Developing a new model code to address public order situations will improve the military’s understanding of their statutory limits, allow public observers to judge what is acceptable conduct, and make the political branches more aware of their roles in leadership. Vague guidelines to police concerning the use of lethal force are a current point of radicalization and we, as a country, cannot risk an escalation becoming a self-fulfilling prophecy due to a preventable lack of clarity.