News photos depicting the aftermath of recent terrorist attacks in Paris, Brussels, Istanbul, and Nice show heavily armed soldiers patrolling the streets. Troops have not yet been deployed in response to terrorism in this country since 9/11, but they might be. Americans should be deeply concerned about this possibility. Here’s why.
Imagine that soon after the presidential inauguration next January several U.S. cities are hit by ISIS-inspired terrorist attacks. Using conventional weapons and truck bombs, jihadists kill dozens of people and injure many more. Intelligence and police officials say they have thwarted other attacks, and they have detained a number of suspects, but others remain at large. Americans everywhere are on edge.
{mosads}Now imagine that news bulletins begin to report power blackouts on the West Coast. Terrorists have blown up transformers and power lines, and they have mounted a cyberattack on the electric grid. As the blackout rolls eastward, major elements of the nation’s infrastructure — the Internet, public water supplies, the banking system — also start to fail. Widespread panic quickly ensues.
This is not a far-fetched scenario. Many experts believe it’s not a matter of whether, but when.
If Donald Trump were President in January, how would he respond? Would Trump, as Commander in Chief, order military forces out into the streets of American cities? If he did, what would he authorize those troops to do?
If President Trump were as bellicose and bombastic as candidate Trump, he might direct the Defense Department to take the lead among federal agencies in responding to the attacks, despite questionable legal authority for doing so — or he might even declare martial law. He might order troops to patrol the nation’s streets and neighborhoods, arrest citizens, and use military force to maintain order. The new president might even ignore a judge’s orders that found these actions unlawful.
President Trump might follow through on his campaign pledge to bar Muslims from entering the country. Or he might order the Army to spy on those already here. With support from many angry and frightened Americans, he might use troops to imprison all Muslims or even to torture those in military custody. (He has said of waterboarding, “I like it a lot. I don’t think it’s tough enough.”)
For good measure, the new president might unleash armed drone aircraft over American cities, with orders to kill suspected terrorists and their families.
Finally, in response to the escalating crisis, President Trump might direct military commanders to take over the Internet, radio, and TV, allowing only communications approved by the White House.
If he did any of these things, President Trump would violate a long tradition of avoiding military intrusions into civil society whenever possible.
Americans have always embraced the military at home with caution. We understand the value of a highly disciplined, well-equipped, experienced fighting force to defend against foreign invaders or to help out when civilian authorities are overwhelmed by domestic violence or natural disasters. Sometimes U.S. troops operating on home soil have done what no other government entity could — saving thousands of lives and avoiding huge property losses, as when Hurricane Katrina struck New Orleans.
At other times, however, soldiers have threatened the very interests they are sworn to protect — civil liberties, representative government, and the rule of law. During World War II, for example, troops were used to round up and intern 120,000 Japanese-Americans.
In the Vietnam War era, the Army illegally compiled personal dossiers on 100,000 Americans opposed to the war, in what the Church Committee called the military’s “worst intrusion” into American life. These abuses have usually been ordered by civilian leaders.
Thus, from the earliest days of the Republic, Americans have developed a an uneasy dependence on the military at home. This love-hate relationship is reflected in the Constitution, acts of Congress, agency regulations, and many judicial rulings. It is no exaggeration to say that avoidance of military involvement in civil society is part of our cultural heritage.
Consistent with this heritage, the Defense Department describes its own domestic role in great emergencies as “supporting,” not leading, and Congress has ordered the Secretary of Homeland Security, a civilian, to lead the federal response to a terrorist attack. Military forces are largely forbidden to engage in law enforcement, except in the most extreme circumstances, and then only when the President assumes personal, political responsibility for their deployment.
President Trump’s resort to military force following a terrorist attack like the one described here would thus be sharply limited by law, and could only be justified if there were no reasonable alternative. His use of soldiers to imprison American Muslims indefinitely without charges or trial, or to torture them, or to carry out drone strikes inside the United States would be blatantly illegal and unconstitutional. Such extreme measures would pose a very dangerous new threat to the American people. They would be not only lawless but also potentially boundless.
So shocking is the possibility of a rogue President Trump that during the primary campaign a distinguished group of former senior military officers, joined by policy and academic experts, declared that “if any president orders the U.S. military to commit war crimes, the U.S. military will be legally and professionally obliged to refuse to carry out those orders. . . . Refusing to carry out such orders will protect the rule of law and the constitutional order, of which civilian control of the military is fundamental.” The notion of military leaders refusing to follow orders in a great emergency is nearly as disturbing as the prospect of their carrying out illegal orders.
The often impulsive and always unpredictable Mr. Trump must commit to the American people that even in a crisis like the one described here he will follow the law, and that he will respect the long-standing tradition of avoiding entanglement of the military in civilian affairs whenever possible.
Secretary Clinton must make the same commitment. Otherwise, the terrorists will have succeeded in forcing us to abandon the deep-seated principles of personal freedom and self-government that make America great.
William C. Banks and Stephen Dycus are, respectively, law professors at Syracuse University and Vermont Law School. They are coauthors of the recently published Soldiers on the Home Front: The Domestic Role of the American Military.
The views expressed by Contributors are their own and are not the views of The Hill.