Why journalists should care about military involvement in domestic law enforcement

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Last week, the Trump administration announced that it would be releasing half of the 4,000 California National Guard troops that the president federalized and deployed to Los Angeles alongside about 700 active-duty U.S. Marines. It is the latest development in a campaign of stepped up immigration enforcement in the city that has led to widespread protests and detentions and injuries of journalists.

Over the last few months, we have received many questions regarding the implications for journalists of using the military for civilian law enforcement. The short answer is that our entire political system is founded on the concept of civilian control of the military and informed by the longstanding concern that standing armies deployed domestically are corrosive to civil liberties, including freedom of the press. Below we dig into the specifics of why.

Anyone who has watched an old western film is probably familiar with the notion of a “posse,” which is short for “posse comitatus,” Latin for “power of the county.” Before the advent of modern policing, sheriffs or other law enforcement officials could recruit and even conscript people into a posse to effect an arrest, put down a riot, or assist in other duties. In fact, up until 2019 in California, refusing to join a posse on demand was a misdemeanor.

At the federal level, Congress enacted the Posse Comitatus Act in 1878, which, in its current form, prohibits the Army, Air Force, Navy, Marines, and Space Force from serving as a “posse comitatus or otherwise execut[ing] the laws” unless “expressly authorized by the Constitution or Act of Congress.”

The Posse Comitatus Act, however, has many statutory exceptions. The most notable are a series of laws passed in the 18th and 19th centuries collectively known as the Insurrection Act, which, in its modern form, has three provisions that permit the use of the military to enforce the law.

Two of those sections allow the unilateral deployment of the armed forces or National Guard by the president to enforce the law, including over the objection of the local authorities. 

Section 252 of Title 10 creates an exception to the Posse Comitatus Act when “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce” federal law. And section 253 permits the use of the National Guard and armed forces to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” if it deprives a class of people of constitutional rights and the state cannot or will not protect those rights.

Back in June, the president, interestingly, did not invoke the Insurrection Act in Los Angeles, meaning he did not authorize troops to enforce civilian law. What he did do, however, is still concerning.

Specifically, on June 7, Trump issued a memorandum to the secretary of defense authorizing the deployment in Los Angeles under a 1903 law permitting the federalization of the National Guard in three circumstances: (1) when U.S. territory is invaded or is in danger of invasion, (2) there is a “rebellion or danger of a rebellion” against the U.S., or (3) “the President is unable with the regular forces to execute” federal law. The president may federalize members of the National Guard to “repel the invasion, suppress the rebellion, or execute those laws.” 

Notably, Judge Charles Breyer of the U.S. District Court for the Northern District of California, in a challenge to the deployment brought by California officials, found that President Trump had exceeded his authority under the law because the protests in Los Angeles fell “far short” of a rebellion. He also wrote that “the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion.” The U.S. Court of Appeals for the Ninth Circuit, however, temporarily permitted the deployment to proceed.

So, with that background, why should journalists care about troops acting as civilian law enforcement? 

The common refrain is that civilian police and the military serve different functions. The former is public safety; the latter is lethal force. Having combat-trained troops policing American streets could lead to undue violence. And that is true, but only to a point. That is, there is no reason why active-duty or National Guard forces couldn’t be trained to interact appropriately with journalists — and they should be. But there are still concerns.

First, federal troops deployed for civilian law enforcement purposes are unlikely to be as integrated into the community as the police department. If there’s one thing we’ve heard time and time again from our engagement at the Reporters Committee for Freedom of the Press with police and newsrooms, it’s that the open lines of communication that typically exist between local outlets and police make a world of difference in avoiding things like detentions or arrests of journalists at protests.

Moreover, the law regarding journalists’ rights at protests is evolving. As we often say during newsroom trainings on covering protests, it is an accurate legal statement to say that journalists have the right to be where the public can be and vice-versa. Journalists do not have “special” rights beyond those of the public.

But, as we explained last year in a Columbia Journalism Review piece, there is nuance. If journalists are engaged in newsgathering, clearly identifiable as journalists, and not physically obstructing police, they may have a First Amendment right to remain on the scene, even when police issue a dispersal order. That’s because of the basic First Amendment principles that bystanders cannot be held responsible for the unlawful acts of others and the imperative that any law enforcement action be tailored to address those unlawful acts.

That nuance is already challenging for police to operationalize in the field. For military personnel, it would be even more difficult and there may not be enough time in advance of a deployment to do that training effectively.

Beyond these practical considerations, there is also the issue lurking in the president’s memorandum and flagged by Judge Breyer: that the White House appears to have equated constitutionally protected protest activity with the kind of “rebellion” that permits the call-out of troops to put it down.

Covering protests is already the most dangerous assignment for journalists. As Judge Breyer noted, having active-duty troops on the scene can inflame matters, making protest activity even more perilous for everyone present and heightening the risk of civil unrest. And if troops are assigned police duties, like conducting searches, making arrests, and enforcing dispersal orders, the danger inherent in that dynamic jumps.

Finally, there is a worst-case scenario — the possibility that the administration could invoke the Insurrection Act and seek to suspend habeas corpus (the latter having been floated by White House Deputy Chief of Staff for Policy Stephen Miller and Secretary of Homeland Security Kristi Noem, who have both said that the president has unilateral authority to do so). 

That does seem unlikely — it would be an extraordinary escalation — but doing so would mean that the military, commanded by the president, is tasked with enforcing the law and that there would be no remedy for unconstitutional detentions, including those of journalists, until the suspension is lifted. Such an occurrence would pose the greatest risk that journalists could be targeted to suppress coverage perceived as unfavorable or damaging to the administration.

In any event, likely the biggest concern right now with having troops deployed is that the kinds of organic ties that exist between local police and local journalists, which promote de-escalation in the moment, do not exist. It is therefore essential that the Defense Department adopt comprehensive policies to govern interactions between troops and press and aggressively train its personnel on them. 

The Reporters Committee has submitted Freedom of Information Act requests seeking to determine whether the department has developed such policies and to obtain them if so. We will provide an update on that if and when we get a response.