The Pentagon is distancing itself from President Trump’s suggestion to use active duty troops to quell the protests and rioting that have erupted across the country, even as more National Guard forces from around the country pour into the nation’s capital.
A senior defense official told reporters at the Pentagon today that “we really would like all of this to stay a National Guard response. We don’t want to see Title X forces. That’s not what we want to do.” The official spoke on the condition of anonymity. Title 10 is the law that governs the active duty military, while Title 32 is the legislation under which the National Guard is normally mobilized by governors of the states.
The remarks come as Defense Secretary Mark Esper and Chairman of the Joint Chiefs Gen. Mark Milley come under fire from civilians and several recently retired generals for remarks made Monday comparing US cities to a battlefield, and for following the president through Lafayette Park just after it was cleared of peaceful protesters by federal police firing tear gas, using flashbangs and driving protesters back.
The chairman of the House Armed Services Committee, Rep. Adam Smith, is calling on both men to come to Capitol Hill next week to explain what’s going on. Smith made his announcement of a planned hearing minutes after the defense official gave the Pentagon’s version of what happened Monday..
Esper and Milley, according to the Pentagon’s telling, apparently did not know what was going to happen when they left the White House alongside the president and other Cabinet officials. “Their understanding was they were walking out of the White House to walk through Lafayette Park to review efforts to quell the protests,” the official said, suggesting the two most powerful military leaders in the country didn’t understand, or weren’t briefed, on the presidential stroll. The official also said Esper and Milley did not know the people outside had been gassed and pushed out of the park.
Before striding to St. John’s Church, the president told the American people:
“I am mobilizing all available federal resources — civilian and military — to stop the rioting and looting, to end the destruction and arson, and to protect the rights of law-abiding Americans, including your Second Amendment rights. Therefore, the following measures are going into effect immediately:
“First, we are ending the riots and lawlessness that has spread throughout our country. We will end it now.”
As the president wrapped up his Rose Garden speech on Monday, Trump “indicated an interest in viewing the troops that were outside, and the Secretary and the Chairman went with him to do so,” the defense official said, adding, “that’s the extent of what was taking place, and at that point they were part of the group that was with the President as he continued through Lafayette Park.”
It’s not clear who knew what the president’s ultimate destination was, or why Cabinet officials were unaware of the federally-sanctioned violence happening just outside the front gate of the White House.
That message was clearly crafted to soften the outrage caused on Monday when audio of a White House call with governors was leaked, in which Esper likened US cities to foreign battlefields.
“I think the sooner that you mass and dominate the battlespace, the quicker this dissipates and we can get back to the right normal,” Esper said during the call, according to a recording leaked to the New York Times.
Asked about Esper’s comments, Chairman Smith said: “Language like that is deeply concerning in terms of how the US military is used for domestic law enforcement. It could create major problems.” Esper’s comments “drives home the message that this is a war, this is a battlespace, let’s go fight,” Smith added. “And I do not think that is the right message.”
But the defense official sought to explain away Esper’s comments, telling reporters, “all of you are very well aware that the Department of Defense communicates in a parlance that is unique to the profession of arms.”
President Trump has suggested he’s open to invoking the Insurrection Act which allows the use of active duty troops in the United States, but imposes daunting conditions. Charles Dunlap, the Air Force’s former deputy judge advocate general who is now head of Duke University’s Center on Law, Ethics and National Security, noted them in a post last night, citing the Army’s Domestic Operational Law 2018 Handbook:
There is an insurrection within a State, and the State legislature (or Governor if the legislature cannot be convened) requests assistance from the President;
A rebellion [or an unlawful obstruction, combination, or assemblages makes it impracticable to enforce the Federal law through ordinary judicial proceedings; or
An insurrection or domestic violence opposes or obstructs Federal law, or so hinders the enforcement of Federal or State laws that residents of that State are deprived of their constitutional rights and the State is unable or unwilling to protect these rights.
Dunlap also notes that military commanders can act legally in an emergency without explicit presidential authority “to quell large-scale, unexpected civil disturbances because:
(1) Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order; or,
(2) When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. (Dunlap’s emphasis)”
For his part, Chairman Smith also noted the MRAPs and other military equipment that is being used by police forces across the country as something he is also interested in exploring. “There has long been concern about the militarization of law enforcement and the message that it sends to the population that it is supposed to serve,” he said. “Certainly selling excess military equipment to domestic law enforcement raises concerns, and that is something we will absolutely be talking about.”
The military presence in Washington DC is expected to grow substantially this evening, with a battalion of active-duty military police from the 82nd Airborne Division arriving to join elements of the Utah, Indiana, Tennessee, South Carolina and New Jersey National Guards joining local police and the DC Guard tonight.
In an interview with Politico, Sen. Tim Scott said protesters in Lafayette Square should not have been cleared with tear gas and rubber bullets to allow the president to walk to the church, saying, “if your question is, should you use tear gas to clear a path so the president can go have a photo-op, the answer is no.”
It’s unclear if Rep. Smith’s hearing with Esper and Milley will actually take place. The lawmaker said he spoke with Milley Monday night, and had reached out to Esper’s staff but had not heard back.
The Lafayette Park incident may produce another Capitol Hill hearing, as well. Rep. Bennie Thompson, chairman of the Committee on Homeland Security, sent a letter to the Secret Service director to request a briefing on the Secret Service’s involvement in the gassing.
“I write to you stunned, disturbed, and furious at the sight of federal authorities tear-gassing peaceful protesters,” Thompson wrote. “It is shameful that the President used the power of the federal government to attack Americans exercising their Constitutional right to protest just so he could stage a photo opportunity.”


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