Photograph Source: The U.S. Army – Public Domain

As I write, US Marines and National Guard have been dispatched to Los Angeles, Florida, the District of Columbia and elsewhere, allegedly to help the local police enforce civil law.  When asked, What’s wrong with that? Many people’s first answer is, Because it’s against the law. Of course, that’s important, but not as decisive as it sounds.  The law usually cited, the Posse Comitatus Act, says that the use of the military to enforce civil law is not permitted unless Congress permits it.  OK, this hopefully prevents the military from granting itself these powers: only Congress can decide that.  What Congress ought to decide, the question, “What’s wrong with that?” is left unanswered.

Some people say that in American history, the military has never – or almost never – been used to enforce domestic civil law. This is not accurate. The year the Posse Comitatus Act was enacted, 1878, was just one year after President Rutherford B. Hayes brought the post-Civil War Reconstruction project to an official end (March 4, 1877) by ordering the withdrawal of the last of the US Army units from the South, where they had served as the Military Government for 12 years.  1877 was also the year of the Great Railroad Strike, during which the Army and the National Guard were regularly called in as strikebreakers, and more than once fired into crowds. We can be sure that the authors of the Posse Comitatus Act were acutely aware of these momentous events.

And we can read those lawmakers’ ambivalence in the ambiguity built into the law.  On the one hand, there is the temptation of military power. The Congress didn’t want to rule out domestic use of military force altogether:  maybe, just maybe, the army can get something useful done more quickly and efficiently than if it’s left up to the politicians and bureaucrats. Well, the Civil War did get the country put back together again, though at a horrendous price.  But most historians agree that Reconstruction, carried out under military rule by the Union Army, mostly failed, producing the Jim Crow subculture that is reasserting itself under the Trump Administration today.

Similarly, the use in 1877 of Army and National Guard troops (plus scabs, Pinkertons, militia, etc.) may have prevented an American version of the Paris Commune, but failed to produce a docile working class or silence the labor movement.

So there is the purely practical question: using military force, whether for the commendable purpose of guaranteeing political and human rights to the newly freed black people of the South, or for the less commendable purpose of crushing the workers’ movement in the North, simply might not work – in fact, might backfire.

But aside from that, using the military to do police work produces a deeper effect – you could call it a side effect except that it might turn out to be the main effect: that of decisively altering the country’s form of government.

As Political Science 101 classes teach, the state is defined as the social organization that monopolizes the right of legitimate violence. Where does it get that right?  One simple answer is to win the war.  What war?

For want of a better term, we can call it the Primal War of the State:  the war that a state fights with its people, or part of its people, in order to establish itself as a state.

Another answer, less simple, is that the state gains this right of legitimate violence, and is therefore a state, by the consent of the people.

The above two are simplified theoretical models; actually existing states are mostly complex mixtures of the two principles, with liberal democratic states striving to emphasize the element of consent, and military dictatorships sometimes in actual war with (some of) their people and sometimes holding them in a state of “peaceful” submission, which is one form that the state of war can take. (There are many countries whose militaries are not strong enough defeat any of their neighbors, and whose only purpose is the “pacification” of their own subjects).

In a liberal democracy, both the law enforcement forces (police and judiciary) and the military are empowered by the state’s right of legitimate violence.  Members of both are permitted to use physical, including lethal, force against people. But the circumstances under which they may do this, and the rules they must follow, are entirely different.

In the United States and other countries that follow the tradition of the Magna Carta, police may use force against a person who is in the act of committing, or is suspected of having committed, a crime, no one may be imprisoned or otherwise punished except by due process of law, and if the prosecutors can’t show plausible evidence that the arrested person did something illegal, that person must be released (Habeus Corpus).

“Due process” means that the civil authorities can legitimately use violence (arrest, imprisonment, punishment) against people in response to something they have done.

Soldiers are required to obey no such rule.  Their job is to kill people not in response to what they have done, but according to who they are, namely, enemy soldiers. As long as they are wearing the enemy uniform (or as a practical matter, if they are non-combatants who happen to have got between you and the enemy) you can kill them without violating the law. The policeman’s job is to arrest suspects and turn them over to the judiciary for trial; they are not empowered to administer punishment on the street (though many police in the US seem uncomfortable with that rule).  Soldiers are not trained in criminal investigation, crowd control, or arrest techniques. Rather, their orders are to “destroy the enemy”, the more the better.  Especially in a crowd control situation, it’s not surprising if an angry crowd can begin to look, to a soldier, like the “enemy”, a disorderly situation can begin to take the form of war, and the government to take the form of military rule. There is no reason to believe that the Trump Administration is unaware of this.  On the contrary, that seems to be the point.

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