Lawfare Daily: The Military Domestic Deployment Legal Framework: Are the Laws Fit for Purpose?

[Intro]

Linda Singh: We can't just slide into this and just say, well, we're just going to call the military 'cause it's the easy button. There's a bunch of other things that we need to be considering first and, and I think we have to get out of this immediate, let's call the guard because that's easy, they're gonna come. We know that we have them available, and that is a very dangerous position to be in longer term.

Loren Voss: It's the Lawfare Podcast. I'm Loren Voss, public service fellow at Lawfare with Major General, retired, Linda Singh, the former adjutant general of Maryland and cabinet secretary for the Maryland Military Department. And Professor Chris Mirasola, assistant professor of law at the University of Houston Law Center, and former attorney for the Department of Defense, Office of General Counsel.

Chris Mirasola: There has been such bipartisan consensus around taking a constrained approach to domestic deployments and a constrained approach to the very many statutes that are available for deploying the military for a law enforcement function. And now that we've seen those norms erode, we are confronting the Swiss cheese of the legal regime that we have.

Loren Voss: Today, we're talking about the domestic deployment legal framework. Are the laws fit for purpose? This is the second episode in a series on domestic military power in a democracy.

[Main Episode]

Over the past two decades, the U.S. military has become the government's most trusted and frequently deployed institution, responding not only to wars abroad, but to natural disasters, immigration enforcement, public health crises, domestic unrest, and more.

Lawfare is examining the consequences of that shift. Why has the military become America's default problem solver? What legal frameworks enable this trend and why are they failing? And most importantly, what can be done to restore the balance between civilian governance and military power?

The news in the last six months is focused on domestic deployments of the military, primarily the National Guard in Los Angeles; Washington, D.C.; Portland; Chicago; Memphis; and New Orleans. A previously forgotten provision that had never been used, Title 10, Section 12406 was used by the administration to attempt to deploy the National Guard in three cities. We also saw the creation of expansive new national defense areas, some over 400 square miles where the military can arrest people crossing into these areas. The president has also threatened multiple times to invoke the Insurrection Act, the first time since the Rodney King riots in 1995, but is yet to do so.

Washington D.C. still has thousands of National Guard troops, and they're now expected to be there until 2029. So there's a frequent refrain that the military should not be used domestically. That's not really historically accurate. The Constitution and specifically the Calling Forth Clause gives Congress the power to provide for the calling forth of the militia to execute the laws of the union, suppress insurrections, and repel invasions.

So a more accurate idea is that the military is to be used against its own citizens, only in the most extreme situations, but to add more complexity, we also must remember that the dual status of the National Guards, which means they're frequently used by state governors in a state active duty or Title 32 status to help citizens in times of natural disasters.

But at the time of the Constitution, there was no standing military, and militias were all that existed, and they bear little resemblance to the professionalized National Guard of today. So we now have 1.3 million active-duty troops and about 760,000 National Guard and reserve troops. So that's a total of over 2 million military members in uniform.

From COVID testing to protecting ICE agents, our military seems to be become the default to almost every problem. So how did we get here? So let's start by talking about the current legal framework for domestic deployment of the military. And the tensions it raises in practice.

Chris, I wanna start with you. Perhaps the most well-known restriction on domestic military deployment is the Posse Comitatus Act. Everyone throws it out originally from 1878. So can you talk to me about the Posse Comitatus Act? Is it, is it a meaningful constraint today? Can you kind of talk us through that and, and any other legal restrictions on domestic military deployment?

Chris Mirasola: Fantastic. Thanks Loren. So this is, you're right, really the cornerstone of the legal framework that we have, right? For regulating when the president can use the military for domestic law enforcement operations, right? And so the Posse Comitatus Act prohibits it criminalizes as a general matter using members of the active-duty military for domestic law enforcement functions.

There is an exception in the text of the Posse Comitatus Act for express provisions of statutory law or the Constitution that would otherwise authorize the president to use the military for that kind of law enforcement function.

There is lots of disagreement about what, if any, constitutional exceptions actually exist. There was no agreement at the time the PCA was enacted among members of Congress about whether any exceptions existed. If you look at the history of Defense Department and War Department implementation of the act, there have been changes over time about whether they list anything and what they do list if they do list something. So that's like an area of significant ambiguity at best.

And then over time what has occurred is that the number of statutory exceptions to the PCA has ballooned. And so most of us are perhaps most familiar with provisions of the Insurrection Act, right, and that is a body of statutory law enacted across the 18th and 19th centuries that authorized the president to use the military to respond to domestic unrest, insurrections. There are, you know, multiple criteria depending on which provisions of law you're looking at. But that's a small fraction of the body of statutory exceptions that exist for the PCA.

It, it expands, you know, from everything to enforcing quarantines at naval stations on the coast to protecting timber in Florida. I mean, like, the list goes on and on. So, to your question about like whether this body of law is meaningful, I'm gonna give the, you know, the best law professor answer I can, which is to say like sometimes.

The Posse Comitatus Act is perhaps most meaningful when we have an administration that buys in to the norms about civil military relations that you're talking about. And perhaps, you know, the, the, the way in which kind of the protections that are in the PCA are most kind of vigorously protected are through norms more than like actual legal enforcement actions.

Because with all of these statutory exceptions, it becomes incredibly easy to find ways around the PCA's requirements. And if you have a motive, a motivated administration like we currently have, you end up finding lots of ways to use the military for law enforcement activities in ways that frankly, we haven't quite seen at this volume in, in, in, in quite some time.

Loren Voss: Yeah, it's interesting to see the different provisions that have been used even recently.

So Major General Singh, if I can turn to you next, you know, in, in real operations then, how do you see this line between law enforcement actions that are prohibited by the Posse Comitatus Act and law enforcement operations that are not prohibited by the PCA? Does that ever become blurry?

Linda Singh: Well, I mean, I think the challenge is that on paper a line is pretty clear, right?

But it's when you have to turn it into real operations and missions and things change minute by minute that the line start getting pretty blurry, very quickly. And so what starts as overall support and what we call support can quickly turn into a law enforcement look and feel. That's where we have to, like, you know, the commanders on the ground, individuals that are supporting these types of missions.

We have to be very, very clear on what the intent is, which we don't necessarily see a lot. Like, you know, we hear the high-level things, but it's not getting down into the detailed pieces of what the true intent is for all of these different missions. How are we providing that command guidance instead of saying, you know, it is your job to protect federal property, got that. How are we providing the right level of guidance and that mission—Kind of right and left limits?

And then it can really get blurred when we're talking about the rules and the use of force. If that's not clearly defined, if we just say open launch, we can find that on the ground. You can very easily cross those boundaries and, and what happens from, you know, that particular point is we start then strain issues start popping up and, and we find that, you know, maybe we've inadvertently done something that we really shouldn't have because we did not define, here are the clear rules of engagement. Here's where you need to pull back. Here's how those rules of engagement change per mission type.

And you know, we're seeing this kind of play out with the whole kind of issue between, you know, what Governor Newsom and President Trump, you know, just that whole issue. And from a commander's perspective in that, you know, distinction matters. It matters a lot. We can't always think that, you know, these things that we put into place on paper and at high level is very clear on the ground. That to me, is one of the most delicate matters, right?

We have to make sure that it is clear all the way down to the private. What is the intent, what's the mission? It needs to, you know, we are seeing that it's framed as protection, but what does that really mean? Protection to me versus protection to you is, is completely different.

And so we have to help them understand what does it really mean from a protection perspective. And you know, when we're asking them to protect federal property or federal entities or people that can very much blend into law enforcement, very much so, because what does a law enforcement officer, what are they supposed to do?

They protect, right? And so it really starts blurring the line for an operational level where to me, that's the biggest risk. And just when I think overall, you know, this really isn't about the legal definitions. It really is about how actions are perceived, how they're executed, and the discipline that's carried out in real time.

So that would be, you know, just the big piece for me is that, you know, on paper the line is clear, but on the ground, it's defined in seconds. It's defined in minutes. It's defined in decisions and in discipline.

Loren Voss: Yeah. And I think that's what makes it so hard. I mean, in the Newsom case that you referenced, the government argued in court that the purpose of the mission was the protection of federal property and people and functions, right, namely DHS officials that are doing immigration law. So they're not doing law enforcement.

But then it was a question of, okay, well, can you do law enforcement activities if it's actually for another purpose? But the activity you're doing seems like law enforcement, right? And so this came out in court.

The other thing that came out in trial that's relevant to this conversation is that troops were verbally briefed that the president can and did make an exception to the Posse Comitatus Act so that they could make certain law enforcement actions. And, and that really confused people. They were briefed on written documents that said you can't do these things, but then verbally told something else and then you saw a lot of confusion on the ground coming out of that.

I mean, and in that case, you know, Judge Breyer did say, this is, this is a violation of the Posse Comitatus Act, but we don't frequently see it actually, you know, come out in court cases. You just see that confusion on the ground instead.

Linda Singh: Can I just add one more thing on that in terms of the confusion because. I think what we're seeing, right, is there's confusion across the board and usually we take our guidance. Like if we're supporting law enforcement, we take our guidance from law enforcement.

And if law enforcement is confused, then that's just adding to the confusion, right? So they have to be very clear about their mission, their protocol, and how they're using us. And to me, those lines are very blurred. It really isn't about I'm telling you to go left, and you need to go left. This is about, I need you to go left with intention, but I need you to stay back in the event that I need you to back me up. Right?

Like, I'm not, I'm, I'm kind of just throwing that out because I'm not real sure that those are the types of conversations that's happening when we're kind of in these engagements.

Loren Voss: Yeah, I think that's a really good point. We've only seen a little bit of insight into those types of conversations, but it seems like there was uncertainty of, okay, we would like the military to be present as federal law enforcement does X, Y, Z.

But it wasn't really clear what the role of the military was. They assessed that there wasn't a threat, so they weren't really sure what their role would be in those circumstances. And it seems like they went into certain missions with, with that lack of clarity.

Chris Mirasola: I, I, I think the only thing I, I would add to this, 'cause this, this is fantastic, is that, you know, all of these concerns are particularly exacerbated when we're dealing with particular legal justifications that are themselves nebulous.

So we're talking about the protective power here, right? Which is this theory of inherent authority that the president has to use the military to protect federal functions, persons, and property, right. It's an old theory. It's been unclear for a very long time where exactly this authority comes from. The executive branch has changed this justification historically.

Now they say, and this is like the theory since the around the 70s, that it comes from the take care clause. The precise outer bounds of this authority has shifted over time in practice, and we're now seeing one of the most expansive versions of this theory ever be put into practice. And so when you put all of the practical tactical command issues that general saying is talking about and lay them on top of a legal framework that is itself contested and ambiguous.

We just exacerbate all of the problems that we would have in even the most clear cut domestic deployment.

Loren Voss: Yeah, that brings the point home, right. And, and there's a lack of clarity on the legal justifications because we also see multiple justifications being made in the same situation and that just makes it very confusing to understand.

So I wanna, but I wanna go back here for a minute before we talk just about present day. So, you know, I wanna talk about the types of domestic usages for National Guard forces, say like over the last, you know, for general single last 45 years. So have you, have you seen a trend of missions changing and like, why have you seen this, this change occurs?

Linda Singh: Absolutely. I think it's been really an evolution and it's, it's been an evolution in how the guard is now used. Because if you think back to, and we used to always say, you know, our, our great grandfathers, or our grandfathers National Guard is no longer. We're more operationally focused. And so we've really seen the, the need for the Guard to, to really change and be more an integrated part operationally for, you know, the army and the air, right.

Because they, they kind of sit in both of those worlds. And so we've seen this evolve from, you know, doing things like, you know, more war fighting and disaster support, hurricanes, yes. Some civil disturbance. Those were the traditional things. That's what we're used to. Now we're starting to see, like even with COVID, where yes, we were pulled out and used extensively in COVID because everybody was short-staffed.

So who do you use? You use your National Guard, right? It's an emergency situation, but it's a matter of how do you use them? Are you using them for logistic support or are you using them to actually, you know, be able to give and administer vaccines and things like that? It was a little of every, every, you know, all of that depending on where you, where you are.

And then you've seen civil unrest. Like my first year as the Adjutant General. We had the Freddie Gray incident in Baltimore where we had a number of days of civil unrest where the guard had to come to the forefront. And we were standing there in partnership with our law enforcement counterparts. But let me tell you, that was a wakeup call because we were seeing things like that happen in other places.

And so we hadn't really seen anything like that in, you know, a long, long time. So, you know, you see those changes. And then in terms of cyber support, now the guard is very, very heavy in supporting our cyber operations. Then border missions. Now, you know, some would say border missions are new, but even when I was, you know, back as a, a young major, we were doing border type missions was slightly different, but we were still doing them. It just, they weren't politicized.

And then infrastructure protection, this is the big thing now and, and to me, this is one of those ones where I think, I hate to say it, but you know, as a guard commander, if we bring together the right entities and we're supporting just infrastructure type protection, this is where some, some real money can be made, right? Because then we're helping to help other agencies to really elevate their thinking because that's really what we're, we're bringing to the table.

And you know, and I think all of this is happening because people trust the military, right? Like this is not back to the, the Vietnam times where they, they're not trust in the military. People have really built this level of trust in, in us from a military perspective. They feel like we are faster and we can scale for a response much faster. Even though, when you're working with the governor, it's always not as fast as they would like.

And then we have the ability to kind of fill in those gaps in capacity. And so we really didn't just expand missions. I think that the nation overall has expanded it expectation of what the military will do. So, when the government can't support it, when the government is short, whether it's state and local or federal, they're just like, call the military.

We can't be the easy button. And that to me is critical. Like we can't just slide into this and just say, well, we're just going to call the military 'cause it's the easy button. There's a bunch of other things that we need to be considering first, and, and I think we have to get out of this immediate, let's call the guard because that's easy.

They're gonna come, we know that we have them available, and that is a very dangerous position to be in longer term.

Loren Voss: Yeah, it's fascinating to me that there is this extreme trust in the military that you just don't have for other civilian agencies. And in such a way though that then the reliance on the military to do so many different things can open the door to all kinds of problems later and then, you know, also obviously takes military away from some of their core missions to do these other things.

So, Chris, I wanna ask you a similar question then. So, you know, if we look back over, over the arc here, what type of new legal authorities have you been seeing being used or, or even just interpreted in new ways for military deployments?

Chris Mirasola: Yeah, so I think we're basically seeing three different things happen from just a legal authority perspective. The one I'm not gonna talk about is just the using legal authorities that are relatively uncontroversial, you know, more prolifically. And so I think we see this. In the cadence of operations at the southern border, as General Singh was saying, right?

Those are longstanding missions pursuant to statutory authority that are now just being done at a much greater scale than historically was true. That's one bucket, I would say of what we're seeing in our particular moment right now, you know, thinking more about what's new and what's being interpreted more expansively.

I think we have a few different examples here before getting into them. I wanna make sure that folks can step back and distinguish two types of legal authorities that we often talk about when we're discussing domestic military deployments particularly of the National Guard. And that is to distinguish a mobilization authority from a substantive authority to provide, you know, to do an actual mission.

And so a lot of what we've been talking about recently has actually been about mobilization authorities, and that's the statutory authority that the Secretary of Defense or the president's using to transform a member of the National Guard, right, from either a civilian into a member of the federalized army.

Or to take some someone in the National Guard from their militia status into what we might call a Title 32 status, right? Title 32 status being this kind of hybrid status where the member of the National Guard remains part of their state militia responsible in a state command and control line.

Right. But does a federal mission with federal dollars, right? This hybrid mobilization authority ends up being incredibly important because it's one way to get around the prohibitions of the Posse Comitatus Act. And so we've seen a lot of Title 32 missions in recent years, not all because they've been trying to get around the PCA, but sometimes because they're trying to get around the PCA.

Alright, so I wanna make this distinction because one area where we've seen just totally new interpretations of law is particularly in the mobilization authority world, so Section 12406 of Title X, which we're talking about before with the National Guard deployments to California, for example, used section 12406 to mobilize those members of the National Guard into a federal duty status.

L. You know, Lauren, as you mentioned before, we are not really aware of any large scale attempt to use this statute for that kind of purpose in the past. I was a bit mystified about why they chose it. There are a number of substantive criteria and because the Supreme Court thought that at least some of those substantive criteria were not met, it's kind of, I think practically speaking, been taken off the table for a, for at least a, a large percentage of what we might, you know, expect as future military deployments.

We've also seen changing interpretations of what Section 502(f) of Title 32 provides, right. And so this is that hybrid authority, right, again. In the D.C. context, for example, and perhaps a few others though, the, the executive branch's legal theories keep on changing in ways that are very hard to keep track of.

Loren Voss: Can you say a second on what 502(f) is?

Chris Mirasola: Right. So Section 502(f) of Title 32 right, is a statutory authority that allows the secretary of defense or the president to put a member of the National Guard into that hybrid Title 32 duty status to do some kind of federal function. Historically, this was used for training exclusively, and over the past, I would probably say around 15 to 20 years, it's been used much more frequently for operational missions as well of the federal government, right?

So a lot of the COVID deployments were done in a Title 32 duty status. Many southern border deployments were done into Title 32 duty status—That changes depending on the time period. It's been just used with increasing frequency over time.

So traditionally, this has been understood just as a mobilization authority, just a way to put somebody into a duty status so they could do some kind of federal mission.

Increasingly, we are seeing the executive branch say that Section 502(f) also provides positive authority for the National Guard to go and do an actual mission. And that is a completely new legal argument and one that is incredibly expansive because the text of Section 502(f) contains no real limitations on the kinds of missions that one could do when they're in this duty status.

And so if we think it's a source of positive authority, then we've really like uncorked the genie bottle, if the genie bottle has a cork. And so I think that becomes incredibly consequential. And I guess we'll see, right? How much the president decides to rely on this kind of a legal kind of interpretation going forward.

Then we're seeing like other statutes that are being, you know, that that, that more clearly provide some kind of legal authority for a substantive mission, but perhaps we're pushing at the bounds of what might be authorized under that statute. So, for example, in the executive order signed by the president regarding.

It's the designation of fentanyl as a weapon of mass destruction. It's been many months now since that happened, but, but I think it was an important EO the president invoked this provision of Title X that authorizes the military to support the Justice Department, to counter WMD, and that statute is an exception to the PCA.

And while it hasn't been formally invoked, to my knowledge, the fact that it's been put on the table suggests that they see a much wider applicability for a number of these like discreet exceptions to the PCA. And given that there are so many of those discrete exceptions, there's a lot of potential for abuse here.

Loren Voss: When you were talking about 502(f) it made me think of an actual interaction in the, in the D.C. v. Trump case where Judge Cobb asked the government lawyer, okay, if 502(f) is a mission authority, you know, what missions can you do underneath it? What can you not do? And the attorney was mystified, right?

They said, you know, she asked like, give me one example of a mission you cannot do. And he could come up with nothing. And he said, well, I'm looking at the text and there's no limitations as long as the, the president or the Sec Def says to do it. And you could, you could just like hear the judge concern like just seeping through, when you say, okay, well according to this law, I can do whatever I want with the National Guard should make people nervous.

Chris Mirasola: Yes.

Loren Voss: On, on that vein, my next question I'll turn to, to you first, General Singh, is just kind of the, the legal, but the practical implications of expanding domestic deployments, both of the National Guard and in active duty.

You know, if these repeated domestic deployments become more normalized, are we at risk of altering our, our civ-mil equilibrium? You know, in the law that was, was designed to preserve it? Where, where are we on this?

Linda Singh: Right. I mean, I think that. Where we are is, it's about perception and trust. This is really kind of pushing us into, I hate to say steady state operations, but this is a norm versus the unusual aspect of it.

Our greatest risk is really not just one deployment. It is when deployment becomes the first option instead of an alternative. And I think that's where we are like, this is starting to become normalized and hopefully it doesn't, but I do believe that we're kind of moving that way and it's really starting to shift expectations, right?

I mean, you know, you've seen people speaking out on the news and they're just like, well, why isn't the National Guard here? Because one, they trust the National Guard, but two, they're saying, well, we want to be safe, so why isn't the National Guard here taking care of this? Or why isn't the National Guard protecting us from the immigrants that are here illegally? That's not necessarily our role. It shouldn't be our role.

So it actually blurs the civilian and military roles and we have to be really careful. And I, I think, you know, just the whole expansion, we need to be very, very careful and we have to think about some of those statutes that were put into place.

The right and left limits are very broad, so That's correct. 'cause as I was just, you know, listening to Chris, it's like, yes, it's very broad, but as a, as a commander, I've made the case, and on many occasions when we're thinking about different types of state missions, where I'm advocating to be able to, to be in a, a 12306 status, or 12302 status, whatever it is, because federal government pays for it, and I don't have to have it paid for by state dollars.

Why is that important? Because the benefits for my folks are different. The protections for my folks are different. And, and we're not talking about that, right? Like, we're not talking about the second and third order effects of how do we protect our guard service members from their medical, mental health, they're injured or they're killed.

You know, what happens from that aspect? So it gives them some things that we need them to have, but we can't normalize this. We just can't normalize having the military to be the first, I hate to say the first to fight, right? Because that's a term that we use overseas. We want 'em to be first to fight there.

We don't want 'em to be first to fight our typical law enforcement type issues here at home. That doesn't mean that we won't need them for other things, but we don't want them to be kind of that first card that you pull.

Loren Voss: Yeah, I think that's a really important point and that we're, we're starting to blur those roles in a way that can have profound impacts long term.

I mean, and then on the duty status reform piece, you know, that has been an effort for years to try to get National Guardsmen the same, the same benefits as active duty. And it has, it has been unable to come to fruition in Congress, but I know there are people still working on that issue.

Linda Singh: Well, we've been trying to reduce the number of duty statuses, right?

Like we've been trying to reduce those down to make it less complicated, and we weren't even able to do that. I mean, I said, oh, how many task force is trying to be able to get that done. And all we did was argue, right?

Loren Voss: But, and then people move between duty statuses and their benefits get cut off and they're, you know, frantically trying to get healthcare, which is just a ridiculous situation to put our troops in today.

Linda Singh: Yeah.

Loren Voss: Chris, can I ask you the, the same question, just, you know, maybe on the, the legal implications of these expanding missions and what you think that might mean as these deployments become more normalized?

Chris Mirasola: Yeah. No, I mean I, I, I so appreciated what General Singh was saying.

'cause I think taking a step back, right, we can kind of bucket these implications into like three categories. So first, right, we have, I think, likely effects on public perception of the military, right? General Singh was walking us through the incredible trust that the public has in the military and various parts of the military, our National Guard in particular.

And it can feel inevitable or like a thing that like will always be true. But that is obviously not the case that General Singh was telling us, right? I mean, tremendous strides have been made since the 1970s to change a generation of expectations and perceptions, and there is a very real risk that the kind of missions that we're seeing the military do now fundamentally erodes a generation's perception of what the military is and what it's doing in their country.

And it is incredibly difficult to, you know, turn that around and, and that is again, a work of another generation. And so that is, I think, a really significant set of concerns, right, that we should have.

I think another set of concerns that we should have is in the public's perception of what the federal government does and how it does it. Right. General saying was walking us through, right. There are now just more frequent invocations of why isn't the military doing X thing? And we're seeing that come up in circumstances where just like that wouldn't have been the first reaction of a public official or my neighbor down the street five, even 10 years ago.

And so that shift in what we expect of the federal government also can become sticky, right? And then creates a lot of path dependency, which I think fundamentally over the long term erodes the fundamental conceit of the American, kind of, experiment, which is that we should be having a civilian government representing us.

Not one that is primarily brought on the back of the military, right? This is like a fundamental concern that animates the founders. And then I could think a third and related bucket of concerns is what other agencies in the federal government expect of the military, right? Because when you have years of expanding missions like this, what occurs is that you have, like, you know, we were talking about the easy button before, right?

It like literally just becomes extremely easy to take the request for assistance that you use 10 times before, change the dates, and send it again, right? And, and so you, you create patterns of bureaucratic dependency that become really hard to, again, unstick unless you have fundamental changes in that bureaucracy, which again was like really hard to come by.

And so it's like, you know, it rarely is any single move, right? That like gets us over the edge, but a whole accumulation of, kinda a pattern of practice, right? That like just in total right, gets us to positions where it's really hard to turn the ship around.

Linda Singh: You know, and Chris, as I was listening to you say this, so when I was still in uniform on my desk, I actually had an easy button.

And when my team would bring me certain things and I'd just look at 'em and I would just be like. Okay. Is this an easy? I'd hit the button and they're just like, ma'am, really? And I'm just like, get it out of here, please. Like, we're just not gonna talk about that.

Chris Mirasola: That's fantastic.

Loren Voss: Oh man,

Chris Mirasola: That's funny.

Loren Voss: Chris, now one of my favorite questions for lawyers.

It's just, you know, how, how much then of this domestic deployment framework, you know, relies on norms rather than enforceable constraints here?

Chris Mirasola: Yeah. Right. I mean like a lot of it, so I don't wanna say that the law here does nothing 'cause it doesn't do nothing. Right? I mean, the Supreme Court weighed in quite strongly right about how we should be interpreting the scope of Section 12406.

Although, you know, the precise bounds of what it means to conduct a law enforcement activity that violates the PCA is perhaps a bit unclear. We have some sense, right, of generally the kind of concerns that would motivate court, right? So it's not that there's nothing. It's just that it's really hard to enforce through a court, right?

We have a lot of standing issues. We have a lot of issues with the fact that like these statutes are generally criminal prohibitions. We don't often see the executive branch, you know, bring criminal charges against itself, right? There's, there's a ton of room for statutory reform, right? And you know, frankly, I think historically there hasn't been much appetite for it because there has been such bipartisan consensus around taking a constrained approach to domestic deployments and a constrained approach to the very many statutes that are available for deploying the military for a law enforcement function.

And now that we've seen those norms erode, we are confronting the Swiss cheese of the legal regime that we have, right? And so if we're going to be relying only on the law here, well then we're gonna need a lot of legal reform because norms, we're doing a lot of the work.

Loren Voss: I'm gonna write that down, the Swiss cheese of, of the legal system.

General Singh, do you, do you have thoughts on this, you know, norms versus enforceable constraints?

Linda Singh: Well, I think, you know, Chris makes a great point there when I just think about it, overall, we have a lot of stuff that we need to do, right?

I think this is, this is giving us an opportunity, 'cause I don't wanna make it seem like it's doom and gloom, but this has given us an opportunity now to revise things that are hundreds of years old and the system has worked previously because of our professional ethics and culture. But commanders are now having to question, not just can we, but should we?

And that gets into, you know, the law gives us the permission to do certain things, but norms and values, which we're kind of throwing out the window, but norms and values really tell us whether or not we should act. And those things are now being blurred. And so if I can't rely on the norms and the values to be able to determine should we be doing something, it just all goes out the window and we need to get to work on figuring out, like, I don't want us to now, you know, we, we can say that it's in the far right and we're gonna take it to the far left.

That's not what we should be doing. We need to be kind of bringing this in and really looking at the laws and looking at procedures, looking at statutes and saying, how do we adjust this to what's necessary, what's needed, and what we’ll need in the future?

And how do we kind of put, I hate to say some protections in this, but how do we set some guardrails in and around how we're moving things forward because this is gonna set precedence—and already has set precedence. And so we could see this continue for many decades to come. And that would be sad because I think eventually people will get tired.

Service members are gonna get tired 'cause we didn't sign up do this day in and day out. We didn't sign up to support ICE day in and day out. We signed up and raised our right hand to protect our country, to fight for our country. That's slightly different, and we're now kind of blurring those lines. So I think we have to be getting back to what does the ethics of this like—

There's the law piece of it, but there's an ethical piece. And how do we now start reshaping the culture? Because I think we're going down a really bad path, and we're gonna need to really think about what culture do we wanna have, how do we want that to proceed? And then what do we need to do to ensure that we can move it in the right direction?

Loren Voss: Yeah, I think that ethics and culture piece is really key here.

And not just the military's, you know, professional ethics and culture, but also on the civilian side. It reminds me in the first podcast we did on this topic on civ-mil relations, we talked about the idea of an unprincipled principle. The idea of, you know, we have such strong military deference to civilian leadership and norms towards compliance, and it makes sense that our system is that way.

But if you have a principle or multiple principles who do not act in good faith when controlling the military, you, you can create a crisis instead of mill relations, you know, fairly fast here.

So let's, let's kind of take this then to, to a scenario, Major Singh then, you know, if you were advising a current commander facing some type of high-profile domestic mission, we can imagine what that might be—What would you tell them about, you know, navigating that legal and political terrain?

I mean, I know you were adjutant general of Maryland and led the National Guard response to the 2015 Baltimore riots, so, you know, maybe some, some real-world experience that you could give us here on, on. How do you think about those legal and political questions as they come up?

Linda Singh: Correct, well, first is clarity of mission and, and when you're not getting clarity of mission from on high, it is the adjutant general's role. To really try to bring that clarity of mission for their individuals. You can't take them out of the picture. And so clarity of mission is first and foremost, and I always talk to, you know, anyone that I'm talking to that's still in uniform as, as they're facing this, is they have to be thinking about and asking those questions in terms of in and around the mission, understanding the legal boundaries.

And I know that, you know, up here it seems like it's carte blanche, but it's not really, and so they need to have their legal person there is, I'm gonna tell you, there's, there's not a, a time for something like this where I—I would have, my legal person would be with me constantly. Like, so the individuals that would be with me is my legal, my public affairs, and my senior enlisted.

And you would say, why those individuals? Because as I'm needing immediate kind of being able to huddle, they're gonna be able to help me think about all the things that we may have to deal with from a second and third order effect.

The next thing is communicating constantly. And communication is not just pushing it out, it is talking to people, seeing, you know, what are you not seeing? You can't run an operation from what's happening in a newscast. You can't run an operation sitting in D.C. and that operation is in Alaska, people on the ground are gonna be running that operation. And if you are not communicating to them constantly and making sure that the messaging is clear, it's gonna be fraught with problems.

The other thing that I talk to them about is making sure that we protect public trust, and I get it in as a hard mission, and we've seen this during the civil disturbance in Baltimore with the Freddie Gray incident. I wanted to make sure, because at that point in time, they were not real supportive of law enforcement.

And when I say not really supportive because it, it was a law enforcement issue that kind of caused us to be there. Well, part of it wasn't all of it. And so people were looking at law enforcement as in, you know, they're not our friends and we really don't want 'em in our community, but it is their role to be in the community and to protect you.

So we had to stand shoulder to shoulder with our law enforcement folks. You did not see me in many cases or see my folks without a law enforcement person. And people would walk up to us, give us water, and wouldn't hand water to the, to the law enforcement officer standing next to us. And what I said to my folks is, you take, turn around and hand that water 'cause you've already got it right, making sure that we're taking care of everybody.

And so we wanted to make sure that we protected public trust, and that meant being out in the public, talking to them, trying to understand and where do we need to pull things back. If you would've seen me in Baltimore during that time, I was all over the place. You know, it got to the point where I couldn't go to the grocery store without someone recognizing me and kind of, I hate to say it, but I had people following me one night late in a grocery store and I was like, okay, this is a little weird, but you, you really wanted to have that level of trust and we have to protect that.

That is so important. You know, during that, those times in Baltimore, I would have folks come up and just hug me. You know, and my team got a, a little wacky because it was at one point in time about 50 or 60 people, and they just all surrounded me. They pushed my team away, and here I am in the middle of this, this group that had just gotten off of a, a dinner cruise or a lunch cruise, and they were praying with me.

So we can't take the public trust for granted. And so I reinforce that every single time that I'm talking to folks who are kind of out there working.

And so then we have to emphasize restraint. Gotta take a moment and pause. Just because we can doesn't mean we should. We have to do more coordination with civilian leadership. You know, my battle buddy during that time was the Maryland state superintendent. Him and I formed a, you know, I'm gonna tell you when you go through something like that, you become really good friends. We are still good friends to this day.

Like neither one of us are serving, but we reach out to each other. We update folks. Sometimes we're to, sometimes we get together, but you have to build that relationship and you need to know one another and to know, okay, if I say this, this person's gonna react that way—So how do I, how do I kind of get around that?

And then you have to emphasize presence versus escalation. So if we have to be there. Provide that presence, but don't let it escalate. Don't be the one to escalate it. I think that's extremely, extremely important.

I also like to just reiterate to them that their job is, in many of these cases, to restore order, and we have to do it in a way that preserves that trust so that when we leave, that community is whole.

And that's not what we're seeing today. Communities are not gonna be whole, and so we have to think about that. We need to leave, and that community needs to be whole. They need to say, we've got it. Our law enforcement has it when we take our hands off the wheel.

Loren Voss: I really appreciate that, especially as a way to think through what we're probably gonna see in future days.

Chris, do you have anything you wanna add on, on the legal side on what kind of legal advice you'd give?

Chris Mirasola: I mean, I think the part of General Singh's response that I think most resonated with me was the close relationship that she had with her legal advisor. We're seeing such a full-frontal attack at the headquarters level of the Defense Department on the role of lawyers, civilian and military, in decision making at large. And that's concerning for a, any number of reasons.

But perhaps one of the most important reasons why it's concerning is because you can't take it apart from the tactical, kind of, concerns the public facing concerns that General Singh was just talking about, right?

There's a mosaic here of prudential, legal, public affairs kind of factors that all have to be balanced, and it's never easy, and it's even harder now. And so insisting that the lawyer remains part of that conversation is I think, at least the beginning of what is necessary. And then we have hard conversations, right, about like what, what we do if we see really significant changes and how the headquarters level is in, you know, interpreting statutes and things of that nature, right?

And we don't have nearly enough time to get into all of that. But the first thing that is necessary is that that person be in the room. And so we, we, we gotta start there.

Loren Voss: Yeah, I appreciate that. Thanks Chris.

So I think everyone expects there to be more domestic deployments in the near future. Unclear maybe which ones exactly where and for what missions, but I think that we will see more.

So first over to you General Singh, you know, what, what should we be watching or paying attention to in the future?

Linda Singh: Obviously it's the frequency of deployments. It would be expansion of our roles, right. Just continuing to watch those roles expand and how we interpret the use of federal versus state.

There's gonna be a tipping point, and I think we have to watch that, right? Like that tipping point especially, and I'm just gonna say this, especially if we start seeing an increase in deployments, in and around elections, polls, things like that.

That's a big red flag. Public perception when it starts shifting, meaning we don't particularly care for our military. When that perception starts shifting, we need to pay a lot of attention because that's gonna impact many things.

And I just think, you know, we also need to be thinking about how often are we turning to the military and how quickly we do it.

We've gotta kind of reverse this a little bit. We should be thinking about overseas and those types of missions, but for the homeland piece of it, how quickly are we turning to the military and how fast do we rev them up?

Loren Voss: Yeah. Okay. Chris, what, what do you think we should be watching and paying attention to?

Chris Mirasola: Yeah, so substantively, right, General Singh brought up the election issue. I think, you know, that's front of mind for, for lots of folks. I think it's incredibly consequential. We've seen a lot of concerning rhetoric already, and, you know, it, it's an area that, again, is ripe for abuse. And so I think that's an area to be watching quite closely.

Another kind of more general thought, right, is it's kind of, it's so hard in this administration, in particular, to figure out what of the many things one should be looking at to try to figure out what might happen in the future. While it's not always true that there is like some prior indication of where the president might be going.

It is surprising how often executive orders kind of give a bit of a flavor of where the administration is thinking of going. And so, at the very beginning of the, of the administration, there was a huge kind of onslaught of executive orders. And if you pieced like around five of them together, you had a pretty good sense of what the administration was thinking of doing for the first year.

Like you do, you wouldn't have caught everything, but you would've caught like 75% of it, right? And so I look at things like this executive order about fentanyl as a weapon of mass destruction, right. You know, have they used legal authority yet? No. Does it look like they might? I think so, right. And so, you know, keeping tabs on kind of background actions like that which are occurring, I think tend to be at least a decent signal for the types of activities that the administration is contemplating over the next year or so.

Loren Voss: Okay, and I think we're gonna leave it there. I wanna thank General Singh and Chris for coming on today.

Chris Mirasola: Thanks for having us.

Linda Singh: Thank you.

Loren Voss: The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad-free, you can become a Lawfare material supporter at lawfaremedia.org/support. Supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoyed the podcast, please rate and review us wherever you listen. It really does help.

And be sure to check out our other shows, including Rational Security, Allies, The Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work at lawfaremedia.org.

The podcast is edited by Jen Patja with audio engineering by Cara Shillenn of Goat Rodeo. Our theme song is from ALIBI Music.

And as always, thanks for listening.