Foundations for Military Intervention in the United States

• Publication year: 1983
• Citation: Vol. 7 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 1FALL 1983

Foundations For Military Intervention in the United States(fn*)

David E. Engdahl(fn**)

I. Introduction

To the conscience of the nation that fancies itself the world's greatest democracy, the idea of military intrusion into the affairs of civil government is profoundly repugnant. In 1972, for example, the United States Supreme Court, through Chief Justice Burger, had occasion to recall "the traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history . . . ."(fn1) Again in 1974, the same Chief Justice observed on behalf of the Court that even where some form of government force is warranted, "the decision to invoke military power has traditionally been viewed with suspicion and skepticism since it often involves the temporary suspension of some of our most cherished rights-government by elected civilian leaders, freedom of expression, of assembly and association."(fn2) The case in which the latter statement was made involved the use of state military forces to disperse a crowd and execute state law. This article is not concerned with state military forces; its concern is with the national armed forces of the United States. However, the tradition, and indeed the law, recalled by Chief Justice Burger is even more clearly "suspicious" and "resistant" with regard to intrusions of the national military than with regard to the modest military establishments of the states.

Military intervention can take many forms. It would be an unwarranted extravagance to suggest that the United States stands in risk of a military coup d'etat. It would also be extreme to suggest that any widespread imposition of military government, even at the instance of legitimate civilian officials themselves, is probable today. The point of conscience-and of law-which Chief Justice Burger's comments address, however, most significantly pertains to forms of military intervention far short of forceful or invited military takeover.

The execution, or enforcement, of civilian laws by military troops, which often but not exclusively is associated with riots and other civil disorders, is another form of military intervention into civilian affairs. With regard to such intervention, Chief Justice Burger's statements actually understate the force of tradition and conscience embodied in American law. The Chief Justice noted that such "law enforcement" use of military power often "involves" the "suspension" of cherished rights. The more accurate proposition is that military enforcement of civilian law is itself a displacement or "suspension" of civilian process, impermissible per se even apart from any further consequences it might entail.

More than a century ago, in Ex parte Milligan,(fn3) the Supreme Court without dissent rejected the contention that the national military could be used as an alternative to civilian measures and procedures to enforce the law even in times of stress. The Court acknowledged that where civilian authority has actually been overthrown-the civil administration deposed, and the civil courts closed-actual and present necessity compels reliance upon the military until civil authority is restored.(fn4) In such circumstances, however, it is some hostile force that has accomplished the displacement of civilian authority. There is absolutely no lawful power in any branch of the government itself to supersede ordinary civilian authority or suspend any safeguard of the Constitution (except that the privilege of the writ of habeas corpus can be suspended as the Constitution itself prescribes).(fn5)

Although the facts of the Milligan case involved an individual who had been not only sought out, seized, and confined by soldiers, but also thereafter convicted and sentenced by a military tribunal, the principle proclaimed by the Supreme Court pertains not only to military trial and punishment but equally to military measures of law enforcement short of trial. During the Civil War period, Union troops had been employed on countless occasions in the loyal Northern states, superseding regular civilian officials to suppress civil disorders arising from opposition to the military draft and protests against arrests of deserters. Soldiers also went about seizing and confining Northern civilians suspected of supporting the Confederacy. Thousands were detained, and many of those were never brought even to a military trial. All this was done under the claimed authority of the President as Commander-in-Chief, relying upon an opinion written in 1861 by United States Attorney General Bates. The Attorney General had opined that, given the existence of an insurrection in the South, the President enjoyed discretionary power to use the armed forces even in the North to do all he felt necessary to execute federal laws there, regardless of whether any civilians apprehended be brought before some tribunal or merely held indefinitely without trial.(fn6) Bates thought it sufficient, to answer the argument that such law enforcement action by the military amounted to a suspension of civil law and rights, to recite that the President-a civilian-was Commander-in-Chief; he reasoned that this was enough to constitute satisfaction of the acknowledged requirement that the military must be kept subordinate to the civil power.(fn7)

The thesis advanced by Attorney General Bates in 1861 was the thesis advanced by his successor on the government's behalf in the Milligan case when it was argued in 1866. The rationale the Court used in Milligan for rejecting that particular application of Bates's thesis, reaches and discredits the whole.

Nevertheless, for several years after the Milligan decision, flagrant and willful disregard of the constitutional principle the Supreme Court had applied characterized the process of "reconstructing" the South.(fn8) It should not seem remarkable, therefore, that during the past several years, despite the above quoted statements of Chief Justice Burger and the constitutional doctrine to which those dicta refer, new foundations have been laid for military intervention in the United States.

In 1972, the Nixon administration promulgated a set of new "Civil Disturbance Regulations" claiming color of legality for very substantial potential military intrusions into the realm of domestic civil government.(fn9) The 1972 Regulations took the place of others first devised in 1968 during the Johnson administration,(fn10) which themselves had been objectionable on some points of law; but novel provisions in the new Regulations dramatically increased the potential for domestic use of the national military while at the same time substantially reducing prior safeguards against abuse. Then, a year later, the Nixon administration employed the military in law enforcement in a situation which not even those indulgent new Regulations had contemplated.(fn11) It would have been notable enough if these events were merely manifestations of the militaristic aura which shrouded that particular administration even to its last days.(fn12) However, the 1972 Civil Disturbance Regulations have remained in force through three subsequent administrations without any modification; and Justice Department lawyers have continued all this time to defend those responsible for the 1973 use of the military even beyond what those Regulations allow. Moreover, in March, 1982, the Department of Defense issued new regulations entitled "DOD Cooperation With Civilian Law Enforcement Officials,"(fn13) which rely upon and reassert the sweeping claims of executive prerogative for military intervention asserted in the Civil Disturbance Regulations.

Thus, notwithstanding the statements from the judiciary, within little more than a decade the executive branch of the United States government has consolidated the old, and added several new, foundations for military intervention in the United States. It would be idle for a legal scholar to speculate whether any edifice of oppression is likely to be built upon these foundations, whether soon or later in time. A sufficient task for the legal scholar is to disclose that the foundations, although faulty, indeed are there; to explain how those foundations came to be laid; and, to show that they have no footing on the bedrock of our law.(fn14)

II. The Bedrock of Civilian Due Process

The American colonists of the mid-eighteenth century were British subjects who considered themselves heirs to the liberties that had been won through the struggles of what was then relatively recent English history. Increasingly, however, they came to perceive the king of their time as hostile to the liberties thus claimed. How the facts might have appeared to those across the Atlantic, or how they might be viewed in retrospect by more modern historians, is not relevant to the conceptions that prevailed on these shores at that time, or to the precepts which their convictions led those early Americans to ordain.

The single most inflammatory mark of the tyranny they perceived was the use of the royal military troops contrary to what the Americans believed was allowed by established principles of English law.(fn15) Increasingly after 1763, British troops were used instead of civil magistrates and the posse to suppress disorders in the colonies, royal military authority...