Donald McGregor, Major General U.S Air Force, Ret., is a Senior Advisor with the Center for American Defense Studies (CADS). He was also a former lead advisor to the Chief of the National Guard Bureau, who is a member of the Joint Chiefs of Staff. General McGregor has been a vocal critic of the misuse of the National Guard for the Biden Inauguration, and the current moves to use the Guard as a reaction force for Capitol security.
Earlier McGregor published a report for CADS titled ‘ Militarized Inauguration Security and National Guard.’ Below is PART TWO of his most recent piece on this important subject from RealClear Defense, reprinted by ADN in two parts, with the author’s permission. READ PART ONE HERE.
Well-Intended Solutions Can Lead to Legal Repercussions
The lack of proper threat analysis or basis for a military requirement generates debate that, though well-intended, does more to confuse the issue than shed light on it. For instance, according to the MilitaryTimes article, “There is no issue if the Guard is used in their civil support role with proper notice, training, and command and control,” which, though superficially true, is inappropriate for a civil disturbance operations mission involving “search, seize, and arrest” duties that would be the case for the QRF.
Let’s take a moment to look deeper into the argument. The Guard can support law enforcement but only under the condition of “non-lethal support that is unrelated to law enforcement functions such as arrest, search, seizure, or crowd or traffic control,” as the defense department’s ruling “defense support to civil authorities” directive dictates.
In addition, public statutes (law) come into play when using the military to “carry out the laws,” such as section 275 of Title 10 USC, that restrict direct military participation with law enforcement involving “search, seize, arrest, or other similar activity.” Even in the National Guard’s Title 32 status, which is the case here, this would present a possible unlawful backlash.
The QRF Proposal Gets Murkier
Laws against military policing of its citizens, which is essentially the assigned role for the QRF, date back to post-civil war reconstruction law. One such law, the Posse Comitatus, prohibits any military activities that “execute [carry out or enforce] the laws” unless the President invokes an Insurrection Act—a rare Presidential decree allowing federal troops to quell rebellion but only in dire situations.
Invoking the act first requires the President to “by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes”; that is, the President must warn the rioters “within a limited time” to desist before calling on troops to quell the sedition. This would be a non-conducive prerequisite for a quick-reaction response.
Even the congressional Task Force’s recommendation for “clarification” of defense directive 3025.18 granting “emergency authority” to a local commander, without presidential approval, “to quell large-scale, unexpected civil disturbances” seems dubious. The Insurrection Act, which requires presidential approval, is public law (Title 10 USC Ch 13), while agency directives are “broad policy documents containing what is required by law” and should not counter any legislation that rules over it.
Where Does this Bring Us?
The breach of the Capitol on Jan 6th was indefensible, and those involved should be charged and prosecuted according to the law. But we first need to identify the requirement using sound military planning and threat analysis. A prudent examination of what drives any security review is essential for ensuring that solutions fit the requirement and do not devolve into wasteful and unlawful proposals, such as a QRF. What we do not need are empty debates that do more to confuse than enlighten.
It is time to acknowledge the elephant in the room. The lack of a proper threat analysis for the Capitol riots not only makes the “domestic extremist” threat questionable but also delegitimizes any other proposal and invites pointless discord. It is the role of sound threat analysis to distinguish real from imagined threats, to avoid wasting very real resources and funding.
No doubt there were security missteps that need addressing but allowing a task force or the media to travel down solutions well past the event of that day invites political mischief—and worse, solving security missteps with whatever you suppose them to be. This is a recipe for misidentified recommendations, pointless debate, and wasteful taxpayer spending.
** See the original piece, Congress’s National Guard Quick Reaction Force: An Ill-Advised Military Requirement in RealClear Defense.