From Newsgroup: alt.politics.usa

A fundamental element of U.S. civilumilitary relations is the principle
of civilian control of the military. This principle pre-dates the
Constitution itself. As Commander in Chief of the Continental Army,
George Washington deferred to the Continental Congress, despite the
severe disabilities of that body. The Constitution codified the
principle of civilian control. Civilian policymakers would establish
the goals of security policy and provide the material resources. The
military would carry out the policy. If military leaders disagree with
aspects of the policy, they can express their differences and make recommendations, but they have no right to insist that their advice be accepted. Civilumilitary relations are healthiest when there is mutual
trust between civilians and the military, leading to a respectful give
and take.

Historians of civilumilitary relations often focus their attention on
disputes between civilian policymakers and the military, judging
healthy civilumilitary relations in terms of the number of times that
one party or the other has its way. By this metric, the more often the civilians prevail, the healthier civilumilitary relations are assessed
to beuat least until the presidency of Donald Trump.

During TrumpAs first term, he and his military advisors clashed over
such issues as our relationship with NATO, U.S. military actions in Afghanistan, intervention in Syria, and the appropriate response to
domestic disorder. When his military advisors and Trump disagreed, the
former frequently responded with subterfuge to undermine the
PresidentAs ability to implement his agenda: oslow rollingo execution,
leaking to the press in an effort to undermine public confidence in the decision, or simply ignoring the policy. Bureaucracies have perfected
these kinds of responses to policies with which they disagree, and
those in the senior ranks of the military are often no different. But
under Trump, the military employed these tactics to an unprecedented
extent.

Some went even further. For example, right after TrumpAs first
inauguration, Georgetown Law Professor Rosa Brooksua respected academic
and senior Pentagon appointee from 2009 to 2011uwrote in Foreign Policy
that TrumpAs ofirst week as president has made it all too clear [that]
he is as crazy as everyone feared. [One] possibility is one that until recently I would have said was unthinkable in the United States of
America: a military coup, or at least a refusal by military leaders to
obey certain orders.o Brooks continued that, for the first time, she
could oimagine plausible scenarios in which senior military officials
might simply tell the president: aNo, sir. WeAre not doing that.Ao

There is a name for this: praetorianism. From the time of Augustus
Caesar until Constantine, a corps of soldiers known as the Praetorian
Guard protected the Roman emperor. Over time, the Praetorians became
the real power in Rome, appointing and deposing emperors at will. In
our time, praetorianism has come to mean despotic military rule,
something associated with countries in which the army is the real power
behind the government. Praetorianism is incompatible with republican government. A modern failed example was the attempted coup against
French President Charles de Gaulle in 1961, which arose from a
praetorian bent on the part of French officers who sought to depose him
over his intention to grant independence to Algeria.

Seditious Video?
During his second term, many of TrumpAs political enemies have taken up
where Rosa Brooks left off. Perhaps the most troubling example occurred recently when six Democrat members of Congress posted a video aimed at
service members. The video features U.S. Senators Elissa Slotkin of
Michigan and Mark Kelly of Arizona and U.S. Representatives Maggie
Goodlander of New Hampshire, Jason Crow of Colorado, and Chris Deluzio
and Chrissy Houlahan of Pennsylvaniauall of whom are either military
veterans or former intelligence officials.

In the video, the lawmakers oremindo active members of the military and national security community that they swore to protect and defend the
U.S. Constitution. oRight now, the threats to our Constitution arenAt
just coming from abroad, but from right here at home,o Deluzio, a
former Navy officer, and Crow, a former Army Ranger and paratrooper,
say in turn. Kelly, a former Navy Captain, then says, oOur laws are
clear: You can refuse illegal orders,o which Slotkin, a former CIA
officer, repeats. Crow then adds that military members omust refuse
illegal orderso before the others say, oNo one has to carry out orders
that violate the law or our Constitution.o And they all pledge that
when service members refuse to carry out illegal orders, oWe have your
back.o

Of course, regarding unlawful orders, these members of Congress are
correct. All service members learn early in their training that they
have an affirmative obligation to refuse unlawful orders. But service
members do not get to refuse orders because they disagree with the administrationAs policies. And this video, at the very least,
carelessly blurs the line between these things in a way to undermine
trust between civilian policymakers and the military and between
seniors and subordinates within the military.

The video was clearly political in nature and is likely to foster
confusion within the military ranks. The lawmakers failed to identify
any specifics regarding unlawful orders. Nor did they offer examples of
the kinds of orders soldiers should refuse to obey. Without context,
the phrase orefuse illegal orderso blurs the line between legitimate
legal instruction and political signaling. For a system that depends on discipline, clarity, and stability, ambiguity is a real problem.

The civilumilitary implications are serious. Civilian control of the
military rests on a clear hierarchy. Congress passes laws, the
executive directs operations, and the military follows lawful commands.
By addressing the troops directly about which orders to follow, the participants in the video disrupt that structure. Military leaders, not legislators, are responsible for issuing guidance to troops on how to
evaluate or report questionable orders. The seriousness of the issue is underlined by the fact that the video comes from politicians rather
than military authorities. The video draws service members into a
political dispute, sowing discord, which is especially dangerous during periods of political tension.

The President and his supporters have called the video seditious. There
have been suggestions that at least one of the lawmakers in the video,
Senator Kelly, be called back to active duty to face a court-martial.
Even some conservative lawyers, such as Jonathan Turley and Andrew
McCarthy, have argued that a sedition case would be dismissed
immediately, because those on the video were exercising their right to
free speech. But oneAs right to oppose a policy does not extend to
efforts to interfere with those obligated to execute that policyuwhich
is the effect of the video, intended or not.

The Civil War provides an analogous example. There were many people in
the North who disagreed with President LincolnAs policies. But some
northern Democrats, who came to be known as Copperheads, crossed the
line from dissent to obstruction of the war effort by interfering with recruitment and encouraging desertion. In 1863, anti-war Ohio Democrat Congressman Clement Vallandigham was arrested and tried by military
tribunal for sabotaging the governmentAs war policies. A group of War Democrats wrote to Lincoln, pledging support for the war, but
criticizing the prosecution of Vallandigham omerely for his words.o
Lincoln replied that Vallandigham was encouraging desertion from the
army, an act that is punishable by death. oMust I shoot a simple-minded soldier who deserts,o Lincoln asked, owhile I must not touch a hair of
a wily agitator who induces him to desert?o There are some important similarities between the actions of the Copperheads and those of the participants in the recent video.

***

When queried, the six lawmakers in the video were unable to identify a
single example of an ounlawful ordero issued by Trump or his
administration. That changed temporarily in late November when The
Washington Post reported, citing anonymous sources, that Secretary of
War Pete Hegseth had ordered an illegal second strike on a drug boat
aimed at killing drug traffickers. Accusations of war crimes quickly dissolved, however, as The New York Times followed up with a story
debunking the PostAs account, and Admiral Frank Bradley, who himself
ordered the second strike, testified before Congress.

Nonetheless, the question of the legality of military strikes on drug
cartels remains a source of the claim that the Trump administration is operating outside the law. Another source for that claim is the administrationAs use of military force in cases of domestic disorder.
In both cases, TrumpAs policies have historical precedents.

Domestic Disorder
TrumpAs critics claim that deploying National Guard and regular U.S.
military forces to enforce the law in American cities violates civilu
military norms, is unconstitutional, and is an irresponsible use of the professional military. But while there may be good reasons to limit the
use of the U.S. military in domestic affairs, U.S. troops have been so employed since the beginning of our republic. Indeed, the U.S. Army
Historical Center has published three 400-page volumes on the use of
federal military forces in domestic affairs.

The authority of the president to use force in response to domestic
disorder arises from the Constitution itself. Section 4 of Article IV
reads: oThe United States shall guarantee to every State in this Union
a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive
(when the Legislature cannot be convened) against domestic Violence.o

The fundamental purpose of a republican government is to protect its
citizensA rights to life, liberty, and property. Although the First
Amendment to the Constitution guarantees othe right of the people
peaceably to assemble, and to petition the Government for a redress of grievances,o it does not protect riot, arson, and looting.

Under Article II of the Constitution, the president, as oCommander in
Chief of the Army and Navy of the United Statesouand of the militia
when under federal controluhas the authority to act against enemies
both foreign and domestic. In 1792, Congress passed two laws pursuant
to its constitutional power oto provide for calling forth the Militia
to execute the Laws of the Union, suppress Insurrections and repel
Invasionso: the Militia Act and the oCalling Fortho Act, which gave the president limited authority to employ the militia in the event of
domestic emergencies.

In 1807, at the behest of President Thomas Jeffersonutroubled by his
inability to use the regular Army as well as the militia to deal with
the Aaron Burr conspiracy to establish an independent country within
the U.S.uCongress passed the Insurrection Act. Although intended as a
tool for suppressing rebellion when circumstances omake it
impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings,o it also
enabled the Army to enforce federal laws, not only as a separate force,
but also as part of a local posse comitatus (a group conscripted to
enforce the law). Accordingly, troops were often used in the antebellum
period to enforce fugitive slave laws and suppress domestic violence.
In 1854, President Franklin PierceAs attorney general, Caleb Cushing,
issued an opinion that endorsed the legality of using the Army in a
posse comitatus:

A marshal of the United States, when opposed in the execution of his
duty, by unlawful combinations, has authority to summon the entire
able-bodied force of his precinct, as a posse comitatus. The authority comprehends not only bystanders and other citizens generally, but any
and all organized armed forces, whether militia of the state, or
officers, soldiers, sailors, and marines of the United States.

Troops were used to suppress domestic violence between pro- and anti-
slavery factions in oBloody Kansas,o and federal soldiers and Marines participated in the capture of John Brown at Harpers Ferry in 1859.
After the Civil War, the U.S. Army was involved in supporting the Reconstruction governments in the southern states. Presidents invoked
the Insurrection Act on five occasions during the 1950s and 1960s to
counter resistance to desegregation decrees in the South. And during
the Los Angeles riots of 1992, elements of U.S. Army and Marine
divisions augmented the California National Guard.

Those who have criticized President Trump for threatening to use the
National Guard and possibly the Marines oagainst the will of state
governorso might want to consider what happened when some southern
governors refused to execute the 1954 Supreme Court mandate to
integrate schools. In 1957, Arkansas Governor Orval Faubus deployed his stateAs National Guard to defy federal authority by preventing the
integration of a high school in Little Rock. President Dwight D.
Eisenhower responded by placing the Arkansas National Guard under
federal control and deploying soldiers of the 101st Airborne Division
to enforce the law. In a letter to Eisenhower, Democrat U.S. Senator
Richard Russell of Georgia compared soldiers of the 101st Airborne
Division to HitlerAs ostorm troopers,o illustrating that the argumendum
ad Hitlerem often deployed against Trump is nothing new.

Many today claim that the Posse Comitatus Act of 1878 (PCA) prohibits
the use of the military in domestic affairs. But they completely
misunderstand that law.

In the election of 1876, President Ulysses S. Grant deployed Army units
as a posse comitatusuunder the authority of local law enforcement
officialsuto protect the rights of black citizens and Republicans in
general at southern polling places. In that election, Rutherford B.
Hayes defeated Samuel Tilden with the disputed electoral votes of South Carolina, Louisiana, and Florida. Southerners claimed that the Army had
been misused to origo that election, which led to the passage of the
PCA two years later. But the PCA only prohibits federal troops from
being placed under lesser authorities than that of the president. It
does not constitute a bar to the use of the military in domestic
affairs, and it certainly does not limit the presidentAs authority as Commander in Chief of the U.S. military.

As John Brinkerhoff, an authority on the use of the military in
domestic affairs, wrote in 2002: oThe presidentAs power to use both
regulars and militia remained undisturbed by the Posse Comitatus Act.o

Drug Trafficking
TrumpAs critics charge him with violating both domestic and
international law by using the U.S. military to target drug cartels and
drug runners, claiming that his actions are unprecedented. But as far
back as the Reagan administration in 1986, U.S. Army infantry and
aviation assets operated with Bolivian forces against drug producers in
that country. And in 1993, President Bill Clinton issued a Presidential Decision Directive on Counternarcotics in the Western Hemisphere,
assigning a substantial role in drug interdiction to the military.

The National Defense Authorization Act of 1995 authorized use of
military assets in drug interdiction: 14 USC Section 526 authorizes
firing on vessels carrying drugs, and 8 USC Section 1189 authorizes the designation of narco-terror groups as Foreign Terrorist Organizations, unlocking powers used by every administration since 9/11. As for
international law, the United Nations Convention on the Law of the Sea authorizes military force against suspected stateless vessels engaged
in piracy and slave trafficking, essentially labeling them hostis
humani generis, meaning enemies of mankind.

The Trump administration has proceeded in accordance with legal
prudence. Admiral Alvin Holsey, Commander of U.S. Southern Command,
properly sought legal justification for the strikes on suspected drug
boats. Subsequently, the Justice Department Office of Legal Counsel
advised the Pentagon that the strikes were legal under both U.S. and international law, that all strikes have been conducted in ocomplete compliance with the law of armed conflict,o and that U.S. troops would
not be exposed to prosecution for carrying out the orders. It is
legitimate to argue that TrumpAs policy regarding these strikes is wrongheaded, but it is not unprecedented. Indeed, his interpretation of
what constitutes the boundary of his military authority is historically ordinary.

But what about the lack of congressional approval for the use of force
against narco-traffickers? In this regard, TrumpAs policy is comparable
to the Obama administrationAs war in Libya and extensive drone attacks,
the Biden administrationAs attacks on Houthi targets in Yemen, and
indeed, going way back, President JeffersonAs attack on the Barbary
Pirates. All these were undertaken without congressional approval.
TrumpAs actions in the Caribbean are well within U.S. political norms.

***

I am on record opposing the use of the military in the war on drugs and
the normalization of using U.S. forces in domestic law enforcement. But
the fact is that President Trump has the constitutional and legal
authority to do these things. Any arguments against his policies must
be made in terms of prudence, not the Constitution or the law. Also, it
should be needless to sayualthough today, sadly, it isnAtuthat
opposition to TrumpAs policies should be expressed in a way that is
careful not to undermine the principle of civilian control of the
military that is fundamental to U.S. civilumilitary relations.
--
Democrats and the liberal media hate President Trump more than they
love this country.

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