Fox News recently published a story entitled “Defense Secretary Austin overruled National Guard chief on keeping troops at the Capitol: memo.” To many readers, this may have appeared to be a sensationalized article throwing fuel on the embers of an already charred military issue in our nation’s capital. But the story captures a troubling divide between the new defense secretary and the chief of the National Guard Bureau over the appropriate use of the Guard. Yet, amid this break in ranks, the story suggests a much larger and more concerning dilemma. And it is what the Founding Fathers feared most.
The article references a defense memo or coordination sheet normally used to “concur” or “non-concur” on issues within the Defense Department. In this instance, a policy memo from the defense secretary’s office requested an “Extension of NG [National Guard] support to U.S. Capitol Police” with an additional 2,280 guardsmen to support the U.S. Capitol Police security detail beyond March 12. However, there are several issues with the request.
From my experience in the Pentagon, this type of appeal is not easily granted. It usually requires a stringent justifying rationale and reason that explains the request’s urgency. Each submission is officially petitioned through a formal request-for-assistance and sent to the DoD’s executive secretary, where it is staffed for coordination — an arduous process involving rigorous approval criteria that can take weeks.
Here is where the problem begins.
The latest Capitol Police request to extend Guard support was coordinated in two days and failed to give a convincing case for approval. Laying out its rationale, the Capitol Police referenced the Department of Homeland Security’s National Terrorism Advisory System, particularly the Jan. 27, 2021, threat bulletin, as the chief reason for the augmented security support.
The bulletin summary describes a “heightened threat environment” using words like “believes” or “suggests” that “ideologically-motivated violent extremists [domestic violent extremists] …could continue to mobilize to incite or commit violence” – a somewhat anemic threat assessment to justify the continued military presence in our Capitol.
Also, federal statutes and defense directives come into play when the military is used in direct support of law enforcement, which is the case here. The Posse Comitatus Act of 1878, and other federal laws limit the powers of the government to use U.S. troops to “execute the laws,” including “search, seizure, arrest, or other similar activity” — a concerning legal quandary.
What is more, the defense department’s support of civil authority’s directive provides ruling guidance for any assistance in missions normally carried out by civil authorities. The defense regulation has six approval criteria to “examine” and “assess” the need for support. If we use the regulation’s six criteria — legality, lethality, risk, cost, appropriateness, and readiness — an argument can be made that any one of them would disqualify the Capitol Police application.
Hellbound and Down 