Service members are taught early that our first obligation is to the Constitution and the American people. Under most circumstances, acts of force are directed toward adversaries—persons who are a direct threat to the safety and security of the United States. But what about instances when the military is ordered to act against American civilians? In the summer of 2020, the nation saw an abrupt surge of civil unrest in the form of widespread protests, especially notable in Washington, D.C., and New York city. There were some acts of violence and looting associated with the mainly peaceful protests, and in response President Donald J. Trump threatened to use military force, stating, “If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.” However, then-Acting Defense Secretary Mark Esper stated publicly that military force should only be used in the “most urgent and dire of situations”. In November, he was fired by the Commander-in-Chief. This recent controversy emphasizes the dangers of politicizing the use of the military in cases of civil unrest.
Between May and September of 2020, protests erupted across the nation in response to the murder of George Floyd, an unarmed black man whose death at the hands of police was captured on video. The National Guard was deployed in at least 21 states; for those watching media coverage at home it was often impossible to distinguish peaceful protests from riots. In the midst of this confusion, President Trump announced his intention to send in military forces if states did not find a way to bring things under control. The Posse Comitatus Act of 1878 forbids the use of the Army or Air Force to enforce law unless authorized by Congress. An exception to that rule is the potentially problematic Insurrection Act of 1807, a law that most Americans were unaware of until last summer. Part of the original text identifies the law as, “An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections.” The standards for identifying an insurrection primarily are left to the judgement of the president.
In response to President Trump’s statement, many military officials spoke against the use of force, including former Secretary of Defense James Mattis, who commented that “militarizing” the government’s response would further erode the relationship between service members and civilians. In addition, a group of military officers, senior officials, and ambassadors released a statement expressing concern over the president’s calls for military force: “There is no role for the U.S. military in dealing with American citizens exercising their constitutional right to free speech, however uncomfortable that speech may be for some.” At the time of such objections by military figures, tensions were already high because of widespread violence and civil rights violations by law enforcement against protestors around the country. In addition, there was scathing criticism of the impromptu “photo-op” by President Trump, Esper, General Mark Milley, and other military officers walking to Saint John’s Church in D.C. after a group of peaceful protestors had been forcibly removed by members of the National Guard and U.S. Park Police. Esper later attempted to distance himself from the stunt and clarified that he did not anticipate the sudden coverage by camera crews.
Esper certainly found himself in a difficult situation. As a member of the President’s cabinet, he served at the pleasure of the Commander-in-Chief—per the Constitution. At the same time, he had taken a pledge to support and defend that same document, which protects freedom of speech and the right to assemble. At that point, there was little precedent in terms of applying the Insurrection Act. The last instance in which the law had been invoked was in 1992 in response to the Los Angeles Riots. It is worth noting that, at that time troops were prohibited from enforcing the law, and instead functioned as more of a deterrent. In 1957, the law also was applied to justify enforcement of desegregation of schools in Little Rock, Arkansas, through the deployment of the National Guard. In this case, the Insurrection Act was used because local law enforcement refused to implement mandates determined by Brown v. Board of Education.
However, in the summer of 2020 there was no evidence that states were not enforcing federal law. Even so, Esper had to make a decision: Back the Commander-inChief and the possibility of deploying military forces against civilian protestors, or denounce the invocation of the Insurrection Act. Ultimately, he chose the latter. What compelled him to publicly break from the opinions of the President? Despite media reporting underlying “tension” between the Pentagon and the White House, up to that point Esper never opposed President Trump in any public capacity. In fact, he was often referred to as “Yesper” by his critics, including the president himself. Perhaps it was the sudden public scrutiny that forced Esper to deviate from the words of the Commander-in-Chief. Or perhaps he thought back on what he had learned regarding ethics and the military—a topic most service members consider many times throughout their career.
Mark Esper graduated from West Point, and like all cadets and Midshipmen, he must have taken some sort of course on ethics. At the U.S. Naval Academy, one of the most important concepts to grasp is that of the Constitutional Paradigm. The paradigm was created to help us understand the order in which our priorities should be set as future officers; it begins with the U.S. Constitution, followed by the mission, the service, the unit, a fellow service member, and lastly, self. While the paradigm is a useful tool in most hypotheticals, it is not always easily applied in real world situations. For example, the Constitution is very clear on the President’s role as Commander-in-Chief, and the Insurrection Act is federal law. However, the Constitution also protects freedom of speech and the right to assemble. In a scenario that seems to have contradicting factors, the “right” decision can be ambiguous and only accessible through a certain level of moral maturity. In his essay The Four Stages of Moral Development in Military Leaders, Dr. Joseph J. Thomas asserts that, “A moral leader assesses his own beliefs, how those beliefs are manifest in his actions and the actions of his unit, and how closely aligned those actions are with the expectations of his nation, service, and mission.” Although it may have been well within the rights of the federal government to invoke the Insurrection Act, Esper knew that to do so would be immoral; the citizens of this nation expect us to protect their constitutional rights, not to crush them with violence or shows of force.
Esper’s public stand against use of military force on civilian protestors sets a powerful example. We are currently in a very politically polarized time; the weight of the pandemic, the national reckoning in terms of race and inclusion, as well as the impact of the most recent presidential election has led to division throughout the country. In the midst of this polarization, the military’s task is to remain a professional and apolitical entity. Deviation from that standard not only is wrong, but also dangerous; we can analyze foreign disputes in countries such as Egypt and Tunisia to see how military force against citizens can deteriorate a democracy. In 2011, both countries experienced a surge in civil unrest and protests; in response the military was dispatched, leading to violence and a schism between civilians and military personnel. To avoid such a conflict in the United States, service members must remember: we exist to protect the rights of Americans, including the right to assemble and protest peacefully. It is essential that we continue to distinguish peaceful protests from riots, and in situations when criminal activity does arise, allow local law enforcement and state authorities to respond to the extent of their capabilities.
As the nation continues to navigate a changing political atmosphere and cases of civil unrest, I suggest that we heed the words of Mark Esper in his final memo to the service: Do the right thing, and always put people and country first.
