The Untold Power of Bill Barr to Direct US Military Forces in Case of “Civil Unrest”

Left completely to his own devices, President Trump apparently sees no problem with deploying U.S. military forces to American streets even when there’s no need for such intervention. The president reportedly wanted to deploy 10,000 troops just last week in the face of nationwide protests over racial injustice even though no state requested such assistance. But that’s not the only scenario worrying many close observers. Other potential situations include the president’s invoking emergency powers to put boots on the ground to suppress voting in the November election or to quell mass protests if he disputes the outcome.

Indeed, many of the former senior officials who have recently spoken out against “misuse of the military for political purposes” are keenly aware of these looming threats to the country. Some of them accordingly directed their criticisms toward Defense Secretary Mark Esper as well.

What’s not so keenly or widely understood is if the president were to deploy the U.S. military in the name of quelling civil disturbances, the cabinet member who would have lead responsibility for those military operations would not be the Secretary of Defense. It would be the Attorney General. That’s according to internal government policies that long predate the Trump administration.

Ordinarily, the subordination of the military to the Attorney General serves a valuable purpose. It reflects the constitutional commitment to civilian oversight of the military, which is especially important when it comes to use of military force against Americans on domestic soil. And it recognizes that, when the military is exercising a law enforcement function, its activities are better coordinated by the country’s top law enforcement officer than by its top soldiers. That said, formal institutional arrangements are by no means failsafe. A lot turns on the character of the particular individuals who lead those institutions. In this hypothetical case, a lot would turn on the character of William Barr — the same Attorney General who mobilized and centralized an unprecedented amount of federal law enforcement personnel to respond to protests in Washington, and who has repeatedly changed his story about what happened in Lafayette Square and has sought to minimize the actions taken against those protesters

In the balance of this brief essay, we describe the current institutional arrangements that imbue the Attorney General with such untold power, and the window of opportunity for altering this setup.

Executive Branch Authorities

Some of the most relevant Executive Branch documents on this topic are publicly available but not widely read. The basic architecture is that the president would need to formally invoke the Insurrection Act by issuing a formal proclamation authorizing military operations to address a civil disturbance. The Department of Defense has for years developed implementing regulations for such contingencies. The set of rules expressly commit the military not to supplant but to support civilian authorities which, in turn, means serving the Justice Department. The Pentagon’s governing Instruction 3025.21 states that the Attorney General will have responsibility for the management and coordination of the federal response:

Any employment of Federal military forces in support of law enforcement operations shall maintain the primacy of civilian authority and unless otherwise directed by the President, responsibility for the management of the Federal response to civil disturbances rests with the Attorney General. The Attorney General is responsible for receiving State requests for Federal military assistance, coordinating such requests with the Secretary of Defense and other appropriate Federal officials, and presenting such requests to the President who will determine what Federal action will be taken.

A complete account of how the Executive Branch contemplates the role of the Attorney General is not publicly available. U.S. Northern Command’s CONPLAN 3502 for Civil Disturbance Operations is a potentially key document, but the Obama administration denied a FOIA request to release it in 2015. A 1978 U.S. Army document, released to the public in 2009, describes in more detail the authorities that the Attorney General could exercise over civil disturbance operations:

Department of Justice (DOJ)

(a) The Attorney General is the chief civilian official in charge of coordinating all Federal Government activities relating to civil disturbances.

(b) The Attorney General:

1. Provides all early warning and all threat information to support civil disturbance planning.

2. Receives and coordinates preliminary requests from States for commitment of Federal military forces in cases of civil disturbance

3. Provides advice and support as required to carry out the provisions of Executive Orders.

4. Designates a senior civilian representative to be located in each city where Federal forces are committed.

5. Obtains informal approval of the President for the prepositioning of more than a battalion sized unit (approximately 500 men) in anticipation of commitment to civil disturbance operations. (After informal approval, actual prepositioning will be on order of the Secretary of Defense.)

More recent U.S. Army documents similarly state: “The DOJ coordinates the federal response to domestic civil disturbances. … DOD supports DOJ in these efforts when requested and in accordance with Rules of the Use of Force (RUF) approved by the DOD General Counsel and the Attorney General.” This subordination is also reflected in Pentagon plans to establish a Joint Task Force (JTF) headquarters near wherever the Attorney General’s local representative is based, and the JTF commander then  “coordinates all DOD support to the DOJ with the Senior Civilian Representative of the Attorney General” (SCRAG). According to the U.S. Army Field Manual on Civil Disturbance Operations, “Requests for specific military missions are typically passed through a single state or federal law enforcement coordinating officer, as approved by the SCRAG. Validated requests are transmitted to the JTF commander” (see also US Army Military Police School training tools).

Important historical examples show the primary role that the Attorney General may exercise in such domestic military operations. Professor Mark Nevitt told us, “the Attorney General has broad authorities to manage the federal law enforcement response — to include coordinating the use of federal military forces — under the military’s implementation of the Insurrection Act.  Robert F. Kennedy, for example, played a critical role when he was the Attorney General in managing the federal response under the Insurrection Act during his brother’s Presidency.”

The most recent invocation of the Insurrection Act is also instructive. In 1992, President George H.W. Bush’s executive order deploying troops to quell rioting in Los Angeles assigned a lead role to the Attorney General (who at the time was none other than Bill Barr). One can safely assume Barr would seek at a minimum the same, if not greater, authorities for himself were the Act to be invoked on his (second) watch. The 1992 executive order stipulated:

Section 2 … In carrying out the provisions of this order, the Secretary of Defense shall observe such law enforcement policies as the Attorney General may determine.

Sec. 3. Until such time as the Armed Forces shall have been withdrawn pursuant to section 4 of this order, the Attorney General is further authorized (1) to coordinate the activities of all Federal agencies assisting in the suppression of violence and in the administration of justice in and about the City and County of Los Angeles, and other districts of California, and (2) to coordinate the activities of all such agencies with those of State and local agencies similarly engaged.

That said, the 1992 order also gave the Defense Secretary the authority to determine when federal military forces shall be withdrawn from the disturbance area (after taking into account any recommendation by the Attorney General concerning the capabilities of state and local authorities).

One lesson is clear: under current law, the decision over the allocation of these authorities ultimately rests with the president.

How to Change the Standing Legal Authorities

There is good reason to be concerned about how Barr would personally exercise the power that could be handed to him in the name of quelling domestic disturbances. The infamous operation to forcibly clear protestors in Lafayette Park to achieve a photo op for Trump was ordered by the Attorney General (who keeps changing his story about the details). That does not bode well for our future. More generally, although there is good reason to give primary authority to the Attorney General over the Secretary of Defense in such circumstances, there is the more general concern about giving so much authority to a single political appointee, whatever his or her title.

So what then would be a more advisable distribution of authorities?

One could of course advocate for stripping the Office of the Attorney General of the assigned authorities in civil disturbance operations carried out by the military. But that approach runs up against the principles served by the current arrangement: civilian oversight of the military supplemented by a layer of civilian authorities’ control when using force domestically.

A far better approach, it seems to us, is to diffuse the responsibilities of civilian authorities vertically and horizontally. Vertical diffusion could come through assigning a role to specific units within the Justice Department that empower career professionals. Horizontal diffusion could come through the involvement of additional departments and agencies — such as FEMA — in these kinds of crisis response scenarios.

Who could effectuate these kinds of reforms?

The Secretary of Defense could adopt superseding instructions for the military. For its part, the White House could draft the language of any executive order appropriately. As an example, President George H.W. Bush invoked the Insurrection Act to address civil unrest in the Virgin Islands after Hurricane Hugo in 1989. That Executive Order put the Secretary of Defense in the lead without the language Bush used three years later in giving the Attorney General stewardship over the L.A. riots. And, as part of the emerging discussions in Congress over reforms to the Insurrection Act itself, Congress could take more of a role in setting out by statute the relevant responsibilities of different actors when the Act is properly invoked.

* * *

President Trump may have backed down, for now, from deploying troops to police the protests that sprung up in response to the killing of George Floyd. But his deescalation may have a lot to do with wanting to avoid taking full responsibility for management of the situation in case it went badly. When it comes to invoking the Insurrection Act in other circumstances, that disincentive may not apply. On the contrary, the underlying motive — Trump looking out for Trump — may rush the White House once again toward a “misuse of the military for political purposes,” with a willing attorney general at the president’s side.

The more people who care about the rule of law and democratic freedoms understand the threats involved in the current structure of authority for handling domestic disturbances, the more likely we are to avoid a disastrous outcome.

President Donald Trump walks with US Attorney General William Barr (L), US Secretary of Defense Mark T. Esper (C), Chairman of the Joint Chiefs of Staff Mark A. Milley (R) to visit St. John’s Church after the area was cleared of people protesting the death of George Floyd June 1, 2020, (Brendan Smialowski/AFP via Getty Images)

  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).