Large domestic disturbances, the U.S. Military, and the Insurrection Act

By Robert Willmann

When a dramatic event happens that receives widespread attention, public reaction can escalate into violence and rioting, which can also be initiated and pushed along by agents provocateurs, and used by opportunists to loot and gratuitously damage property.  With over 35 million Americans unemployed after being thrown out of work for about two and a half months and millions with their activity restricted by bad governmental policies about the SARS-Cov-2 virus, an environment for enhanced trouble now exists.  If the rioting that started in Minnesota and moved to other cities does not taper off or end, the issue of involvement by the U.S. Military in the execution of civilian laws can be raised.

There are three main federal laws about the military that could be looked at regarding the disturbances in the streets after the incident of obvious police misconduct which caused the death of a handcuffed man in Minneapolis, Minnesota this past week.  They are the Posse Comitatus Act, the Insurrection Act, and Military Support for Civilian Law Enforcement Agencies.

The Posse Comitatus Act makes it a federal felony to use the Army or Air Force to execute civilian laws, except as specifically authorized (Does this mean the Navy can do whatever it wants?!  Well, no, because Department of Defense regulations on the issue apply to all personnel.) [1]--

"Section 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."

An exception created by Congress is the Insurrrection Act [2].  It has only five short sections, the last one of which makes it apply to Guam and the Virgin Islands.  Of the three operative sections, one may become applicable--

"Section 251.  Federal aid for State governments

Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection."

There are two conditions that must be met first.  The legislature of the State has to ask the president to help, or the governor can ask if the legislature cannot meet, as section 251 says.  Then, the president has to make a proclamation that the insurgents disperse within a limited time--

"Section 254.  Proclamation to disperse

Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time."

The law allowing military support for civilian law enforcement agencies under Title 10, U.S. Code, Chapter 15, would not seem to apply to this situation, since it deals with military equipment and facilities being used by civilian law enforcement, and training for their use, which would probably take a lot of time to set up.   Military personnel are restricted in what they can do, and there cannot be "direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law" [3].

Thus, the focus in the present situation should be on the Insurrection Act.  An example of its use occurred from around 1957-1968, when it was invoked in tense situations during the civil rights movement.  When the Hurricane Katrina disaster hit New Orleans in 2005, an issue arose about whether it could be used in that situation. 

When the adrenaline rush in those participating in a riot subsides, keeping the riot going becomes more difficult.  It may be that the question of military involvement will not have to be faced.  What will have to be faced are the economic and social problems that still exist which were created by bad federal, state, and local policies about a virus.  Furthermore, an investigation of agents provocateurs agitating for rioting beyond public protests is needed and will be done.

For example, this video is said to have been made near the police substation in Minneapolis, with a white man calmly breaking windows at an Auto Zone store while carrying an umbrella for concealment from cameras and drones.  It is not clear if the windows on the right front side of the building were already broken, and whether the incident was before any looting of the store--

https://www.youtube.com/watch?v=OR8zIkbuDEQ

Earlier today, president Trump announced that the federal government will designate the "Antifa" as a "terrorist organization".  Attorney General William Barr made a similar statement today:  "The violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism and will be treated accordingly" [4].  These statements will create a linguistic can of worms when there are more than enough state and federal criminal laws to deal with this bad conduct, which is another subject.

UPDATE, Monday, June 1:  In the Insurrection Act, the other two operative sections, 252 and 253, do not require a request from a State legislature or governor.  But section 252 applies only when the situation makes it "impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings", which is not the case here.  Section 253 starts out with promising wording: "... to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it ...."  But subsection '1' limits the scope to "[when] any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law ...."  And subsection '2' is limited to impairing the execution of the laws of the United States.  Section 253 was clearly designed to apply to violations of civil rights laws. Both sections can be read in the citation and link to the Insurrection Act below.  Presidents Eisenhower and Kennedy used sections 252 and 253 (formerly sections 332 and 333) to carry out federal court orders concerning the rights of Black people in the civil rights movement.

 

[1]  Title 18, U.S. Code, section 1385.  Use of the Army and Air Force as posse comitatus.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1385&num=0&edition=prelim

https://www.law.cornell.edu/uscode/text/18/1385

[2]  Title 10, U.S. Code, Chapter 13.  Insurrection.

https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part1/chapter13&edition=prelim

https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-I/chapter-13

[3]  Title 10, U.S. Code, Chapter 15.  Military Support for Civilian Law Enforcement Agencies.

https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part1/chapter15&edition=prelim

https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-I/chapter-15

[4]  https://www.justice.gov/opa/pr/attorney-general-william-p-barrs-statement-riots-and-domestic-terrorism

 

Comments

[Deap]

..."obvious police misconduct" ....
..."caused the death of a handcuffed man" .......

Did you also suspend due process? Sorry, but you blew your credibility for anything that follows.

[TV]

"These statements will create a linguistic can of worms when there are more than enough state and federal criminal laws to deal with this bad conduct, which is another subject."
Except when the local authorities(ie. NYC, Oregon, Minneapolis) are in sympathy with these terrorists and won't take action.

[scott s.]

The insurrection act (2 Stat 443) is a very old (1807) law which Lincoln used in 1861 to justify the call for 90 day volunteers. At the time Congress was not in session (the Senate met for a few days for their executive calendar after the term began in March to confirm cabinet officers, then recessed.) The regular session of Congress in those days didn't convene until December, and in some cases there weren't elected representatives for the 1861-1862 Congress in April. So Lincoln did some things by proclamation that may not have been entirely legal, but a special session of Congress met on 4 Jul 1861 and pretty much rubber-stamped what Lincoln had done. Of course by that time all the southern state Senators and representatives had resigned (excepting the "restored state of Virginia" aka West Virginia). A special election was required in Maryland for Congress (normal federal elections co-incided with state elections that by MD constitution were in October) and that began the involvement of federal authorities in the affairs of Maryland, including military presence in particular on the eastern shore. After Baltimore revolted Butler established his HQ in Annapolis and pretty much since then 'Nap town was an armed camp.

[Ward Broom]

This is interesting, may be a "loving crafted" fake.

Or maybe not.

Interesting times indeed:

This an unofficial NYPD web site - Thee Rant:

https://www.tapatalk.com/groups/theerant/we-all-knew-this-but-it-s-nice-to-have-confirmatio-t105418.html

and the document scan:

https://attachment.tapatalk-cdn.com/14879/202005/12098_e647a162cb5b691e275f8a0d632d467d_t.jpeg?Expires=1591214698&Signature=Yc8z4C494dVqYPrs~NLxDVxijHuewRR1VktQutLPBI5MU286qqeOnW7DqBakALLNOls7~zsm41p-HEHYEZcrC6yU6gCkIzjLiDy8vs08wurVCUSJAxubUH8ewyM8AjF5JwNOZiSqU6PbDOEoscdeOlZ8cbHH42gwxriLWiwi50o3AKzzDGNiShxjK625njjLgBRAICoCr2YsLIYVrOtpcR7HgtnEIwI~Y-nqy90z6eJ4lrZxk9SnMbfGBwUJjdoe1ZmA38q9hqqV0324rVWCKcqkJIhQ9RMxBCREhn8plmfb9bbwcRd1rue~izXoSA-DpqzrzzXZ8Kd4AhbpyMJC3g__&Key-Pair-Id=APKAJS72YROXJYGYDADA

[J]

Compounding the problem are the estimated 54 million Americans who could go hungry

https://www.feedingamerica.org/sites/default/files/2020-05/Brief_Local%20Impact_5.19.2020.pdf

[guidoamm]

A bit of a tangential question to the forum.

Does anyone here remember a US Army brigade that had been sent home from Iraq to train for civilian operations ca2008?

There may have been an article in the Army Times at the time although I am unable to locate it now.

[turcopolier]

Ward Broom

You are with "Three Rants?" If this document could be authenticated it would be very useful. I have doubts. What I think I know about antifa+ is that it is a loosely networked movement that is being supplied and financed by people in Hollywood, silicon valley and Soros' deep pockets. It may as well be connected somehow to AVAAZ. This document implies a tightly disciplined and trained hierarchical organization that issues detailed instructions of this kind and that seeks to insert itself into street mobs to guide them toward destruction of commerce, the economy and government. Any insight into the bonafides of the document.

[Eric Newhill]

A problem that is a barrier to effectively dealing with the insurrection is that the media and politicians are tripping over themselves by continuing to associate this phenomena with Floyd's death. The media and politicians are falling directly into the trap that the insurgents set for them. By doing so they bring up the question of the 1st amendment and social justice.

IMO, they need to dissociate Floyd from the insurrection. make it clear that the insurrection has nothing to do with Floyd. How? Just a grow a pair and say it. Anyone offended by that wasn't going to vote republican - and probably not mainstream democrat - anyhow.

[John from Michigan]

@ Eric

The media and politicians are not falling into a trap set for them. They are directly complicit in promoting the agenda, including race hustlers like Obama, among others.

[Keith Harbaugh]

Concerning the legal aspects of this situation,
IANAL but this, by Andrew McCarthy, seems a really excellent analysis of those aspects:
https://www.nationalreview.com/2020/06/george-floyd-protests-designating-antifa-terrorist-organization-not-necessary/

[BillWade]

https://www.thegatewaypundit.com/2020/06/university-alabama-professor-guggenheim-fellow-posts-instructions-twitter-topple-national-monuments/

[akaPatience]

Re: the "dropped leaflet" outlining anarchists' rules that's circulating the Internet:

I don't know if it's true but I've read elsewhere that this leaflet is from the "Hands Up Don't Shoot" days of the 2014 Ferguson MO and subsequent riots, and that other pages of the directives discussed specific plans for the mayhem that ensued in Baltimore MD.

[blue peacock]

Eric

This is not an insurrection IMO.

During the day there have been legitimate peaceful protests. But...during the night there are roving gangs of troublemakers and anarchists. They just want to cause mayhem, vandalize and loot stores. They should be arrested and charged. There is no political message from these thugs.

[Deap]

The following just showed up on our very local community blog in a small town in California -- do you think some sinister networking agency is trying to stir up trouble "under the color of law" spreading this message around?

Are they really saying ..."go ahead red neck Trump supporters, shoot to kill" (Ha, ha, ha, that is our real goal)

This message seems very similar to the leading message of this thread - now reaching down into the nation's capillary communications system:

...In cities where anarchy and lawlessness are overshadowing the peaceable right to assemble and protest, the 'Insurrection Act' of 1807 as amended in 2006 should be invoked and used against the violent protesters....

Caveat. NB: It did not smell right from the very first paragraph.

[Eric Newhill]

BP,
I have to disagree. Now it's starting up in London. Rioters are saying things like, "The west is falling. Burn that shit down!".

This has nothing to do with Floyd. It is a trap to think it does. It keeps you from seeing the big picture.

[Eric Newhill]

BP,
Legitimate protests against what?

The same PD shot and killed a white woman in her nightgown after she called 911. Where the protests there? The justice system took its time, investigated, eventually arrested and convicted the bad cop.

Why couldn't that have happened this time around?

John from Michigan (above) is correct. This is a revolution and some politicians and media are a part of it. Have you not been paying attention the past 6 or 7 years?

[Sam Iam]

Col. Lang,

Do you have any insights or comments on Susan Rice's claim that looters are the result of Russian (or other foreign powers) trying to stir up trouble?

To me it sounds like all these Obama hacks can't let RUSSIAGATE go and continue to promote this con to ruin any chance of rapprochement in the near to medium future.

https://www.yahoo.com/news/susan-rice-blames-foreign-actors-120019152.html

on a side note, are these protesters not aware of Covid still being a thing that theoretically can spread by close proximity demonstrations. Its amazing how not even a week ago, Covid was the biggest threat to public safety. Now its police brutality.

I hope you keeping safe.

[Ward Broom]

Col. Lang,

I am not affiliated with "Thee Rant"

It is an unofficial website of current and former NYPD.

I browsed that website to "listen to the grapevine".

I cannot evaluate it. It did not fall from the sky - that is too say, if genuine, it was "built up" over years of experience.

If it is a fake, it could be a re-purposed official document.

I posted it here so that it would not get "lost".

Please archive that picture.

Thank you,

[Fred]

Blue,

The message sent is that small businesses and American capitalism must go. The extended lockdown orders issued by Democratic governors created millions of unemployed and millions impoverished and dependant upon Government run by the same party. Numerous Christian charities were neither welcomed nor allowed to operate effectively. America's burning of businesses, especially small stores, destroys the possibility of early reopening and gainful employment in those areas. We're all in this together comrades.

[Ted Buila]

Question, if "we" (Trump) is serious about using the IA/US Military "to dominate" BLM protests, is a Tiananmen Square West hurricane in the wind?

[Ward Broom]

FWIW:

Snopes attempts to refute this.

https://www.snopes.com/fact-check/floyd-instruction-manual-protesters/

[Artemesia]

Wisconsin Ave. is a major artery from NW DC into Chevy Chase then Bethesda then Rockville, MD. Early this afternoon, along two entire blocks of the upscale shopping district in Chevy Chase, workmen were boarding up windows on major as well as smaller shops -- one end of block to the other.

A very small bit of graffiti was noticed, but it seems property owners anticipate trouble.

I wonder who owns those buildings.

This is encroaching on very high income neighborhoods, and also approaching NIH and Bethesda Naval Hospital.

[turcopolier]

Ted Buila

Trump is attempting to force the governors to take action so that he does not provide Biden an opportunity to accuse him of massacring the black folks

[Fred]

Artemesia,

Those areas are also democratic party stronghold. Looting Baltimore didn't seem to phase them and they won't mind this. They might mind having to re-locate if Trump gets off his ass and moves a few federal agencies to places that need the jobs, say Iowa or Mississippi.

[Deap]

Recent methanthetamine use and Fentynal intoxication - toxicology tests on George Floyd - death from aphyxia - loss of oxygen to the brain:

Overdose - Fentanyl (street drug or physician RX?)

"Profoundly slowed heart beat.
Very low blood pressure.
Dangerously slowed or stopped breathing.
Bluish tint to nails and lips.

The effects that a fentanyl overdose have on the user’s heart rate and breathing present the biggest risk of death or permanent damage. Even if a user survives a fentanyl overdose, these side effects may leave a lasting mark on the user’s body if not treated immediately.

For example, respiratory depression can lead to hypoxia, which can cause permanent brain damage in the suffering individual"

Looks like an upper and downer cocktail in his system at the time of his death - some self-inflicted, some exacerbated by his own actions. Was this a suicide by cop set-up when he resisted arrest?