Why the Calls to Deploy Military Force in the US Protests Weren’t Surprising

The weeks of protests following the murder of George Floyd have addressed a wide spectrum of issues relating to structural racism in the United States, from policing to cultural representations. Yet, they also highlighted that policing itself is a cultural representation. Specifically, when police are militarized – meaning, when police forces come to look and operate like military forces – a symbolic process is triggered whereby a specifically targeted part of the community is marked, both in the eyes of the forces themselves and in front of the wider public, as a potential enemy. This is because police militarization carries the implication that the state views that element of the community as a threat of such a caliber that a militarized force is required to counter it. More than an operational move, therefore, police militarization reflects an iterative social process in which marginalized communities are simultaneously viewed and marked as especially dangerous.

This social process, ushered in by a decades-long pattern of police militarization, provided a convenient backdrop for certain officials to call for the deployment of the “real” military to quell the protests. While these suggestions ultimately met significant pushback and were shelved for the time being, it is perfectly reasonable that they might surface again in the near future, should similar circumstances arise.

The calls during the early days of the current protests to deploy the military, viewing the protest zone as a “battlespace,” and references to protestors as “terrorists” –  which presumably have to be countered by military force – were not so much a break from the norm, but should be understood as part of a continuum of militarization. In other words, the long process of police militarization facilitated, conditioned, and normalized the moment, in which officials actually perceived themselves as enjoying enough public legitimacy to openly support using the military to control the protests.

In this context, a watershed moment was Senator Tom Cotton’s New York Times op-ed, which sparked much outrage and ultimately led to Opinion Editor James Bennet’s resignation. Briefly, Cotton called in his op-ed to “send in the troops.” In the face of riots and looting, Cotton bemoaned the inadequacy of the response by local police and National Guard, and called for the military to be deployed in an “overwhelming show of force.” Cotton, of course, was not alone. President Donald Trump has also said that the military and National Guard should be called in so that they can “dominate” and rein in violent protests.

But what makes Cotton’s op-ed remarkable to us was precisely that, for him, calling the military to assist the police was not remarkable. Indeed, he listed numerous occasions when the military was called under the Insurrection Act to quell instances of social unrest or riots, the most famous of which are the Los Angeles riots in 1992 following the acquittal of the officers involved in the beating of Rodney King, and the resistance to desegregation in Arkansas after the 1954 U.S. Supreme Court’s decision in Brown v. Board of Education.

Furthermore, Cotton referred to a poll taken between May 31 and June 1, showing that a substantial percentage of Americans support calling in the military to “address protests and demonstrations.” In the poll results (p. 195), 58 percent of registered voters either “strongly support” (33 percent) or “somewhat support” (25 percent) calling in the U.S. military.

A Continuum

Assuming that this poll is correct, what could account for that support? One explanation is that some people sincerely believe, for one reason or another, that the military will be more effective, and perhaps even use less excessive violence than local police forces. But there may be an alternative explanation: many people have come to see the military as the normal continuation of regular policing, and in that sense, deploying the military is more of a quantitative than qualitative change. This is because the long process of police militarization has made it easier for citizens and officials alike to make the mental leap from militarized police to the “real” military.

Historically, the line distinguishing police from military forces was clear. Indeed, the creation of the police in the United States was characterized by fear that they would devolve into standing armies, resembling the military — so much so that, initially, police officers resisted uniforms, concerned that those would convert them into a type of soldier.

Those days, however, are long gone. In a recent article, we documented how the process of police militarization started in the 1960s with the establishment of SWAT teams, and accelerated greatly toward the end of the millennium. Now, militarization is expressed in the myriad ways in which police move closer in character to military forces: they rely on military veterans to staff police positions; they are trained by military forces; they incorporate a military culture, language and techniques; and, in what has become especially visible over the past weeks, they employ military equipment such as camouflage uniforms, armored personnel carriers, Humvees, and assault rifles.

While to some Americans deployment of the military would be a continuation of already normalized police militarization, others were surprised, even appalled, when they saw militarized forces in their streets and neighborhoods in the recent protests. They shouldn’t have been. The use of militarized police has become, with the aid of federal legislation and governmental regulation, increasingly widespread, most particularly in marginalized communities.

The Process

At the heart of this militarization process is a little known federal program known as “the 1033 program.” Found in the National Defense Authorization Act of 1997, the program enables local law enforcement agencies to acquire surplus equipment from the U.S. military free of charge. Despite modest beginnings, more than $5 billion worth of equipment has been transferred from the military to local police. Outfitted with military gear and brandishing APCs, tanks, and assault rifles, it is no wonder that to regular citizens, the difference between police and the military would become increasingly blurred.

Criticism of the 1033 program, along with concern over police militarization generally, started to pick up steam after the police’s heavy handed (and militarized) response to protesters in Ferguson, Missouri, in 2014, after Michael Brown was shot to death by local police.

Those appeals did not go unheeded. President Barack Obama subsequently sought to limit the transfer of certain equipment that was viewed as contributing to the process of militarization. “We’ve seen how militarized gear can sometimes give people a feeling like there’s an occupying force,” Obama remarked. “Some equipment made for the battlefield is not appropriate for local police departments.” In a 2015 executive order, he created a working group tasked mainly with deciding which types of equipment could be transferred and under what conditions. The resulting decisions, outlined in the working group’s recommendations, put a halt to the handover of grenade launchers, rifles, and ammunition over a certain caliber. It also required police departments to provide justifications for acquiring certain other weapons and equipment.

The curbs on police acquisition of military equipment were viewed as a victory for critics of police militarization. But the limits were short lived.

In August 2017, Trump reversed course, restoring the 1033 program to its pre-Obama scope by revoking his predecessor’s executive order. This move was praised by the police. As Jim Pasco, the executive director of the Fraternal Order of the Police, told NBC News, “The fact that it doesn’t look good is more an indictment of the rioters than it is an officer.” Obama, he charged, acted “politically and emotionally, rather than analytically.”

Pasco’s statement, made only three years ago, might seem anachronistic today. In the aftermath of George Floyd’s murder, political resistance to police militarization is reasserting itself vigorously. Democrats have introduced a bill seeking to reinstate some of the restrictions on the transfer of military equipment to local police, though a Republican measure intended to address concerns over police brutality stopped far short of such provisions. Governors have joined the chorus appealing for change. In a much-covered conference call Trump conducted with governors, Minnesota’s Democratic governor, Tim Walz, referred to his 24 years of National Guard service and said many citizens don’t understand exactly what the Guard is and how it works. “You need to … make sure that it’s not seen as an occupying force,” he said.

Trump, however, doubled down: “It got so bad a few nights ago that the people wouldn’t have minded an occupying force.” Still, there is resistance to Trump’s and Cotton’s desire to see the military involved, even inside Trump’s cabinet. After the public backlash when a combination of police, National Guard, and other forces forcibly cleared peaceful protesters from a square in front of the White House so that Trump could walk to a photo op in front of a nearby church, Secretary of Defense Mark Esper, who had accompanied him, bucked Trump, arguing, “The option to use active-duty forces in a law-enforcement role should only be used as a matter of last resort and only in the most urgent and dire of situations. We are not in one of those situations now… I do not support invoking the Insurrection Act.”

Esper’s statement and a similar mea culpa from the chairman of the Joint Chiefs of Staff, Army General Mark Milley, along with condemnation from a range of former U.S. military officers and diplomats, have dampened the White House drive for military deployments against protesters, at least for the moment.

And yet, the idea of bringing the military into the picture continues to be plausible precisely because the ground has been cultivated for decades through the militarization of regular police, and so such a deployment of “real” military forces becomes much less dramatic in the public eye. Trump and Cotton might be extreme in their rhetoric, but the concepts they espouse are simply a culmination of a broader trend unfolding over at least 50 years.

IMAGE: Police officers respond to a suspected gunman on a building overlooking a park with a statue of Robert E. Lee and where protesters have gathered on June 20, 2020 in Richmond, Virginia. (Photo by Eze Amos/Getty Images)

 

About the Author(s)

Eliav Lieblich

Associate Professor at Tel-Aviv University’s Faculty of Law Follow him on Twitter (@eliavl).

Adam Shinar

Associate Professor at the Radzyner Law School, Interdisciplinary Center Herzliya (IDC). Former Clark Byse Fellow at Harvard Law School. Follow him on Twitter (@adam_shinar)