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More lethal aid to Ukraine? US trainers, Javelins have already made Russians a little more nervous

The U.S. has been providing lethal aid in the form of Javelin anti-tank missiles to Ukraine since May, and Russian armor is reportedly deterred by the investment. On top of the lethal aid, the U.S. has trainers currently in the country, including National Guardsmen running the Yavoriv Combat Training Center and American special operations forces…

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More lethal aid to Ukraine? US trainers, Javelins have already made Russians a little more nervous

The U.S. has been providing lethal aid in the form of Javelin anti-tank missiles to Ukraine since May, and Russian armor is reportedly deterred by the investment.

On top of the lethal aid, the U.S. has trainers currently in the country, including National Guardsmen running the Yavoriv Combat Training Center and American special operations forces running selection courses for Ukrainian SOF.

That has lawmakers and military leaders looking for other ways to help the Ukrainians.

“The fact that they have a Javelin that they could employ and they know how to employ it as a deterrent,” Gen. Curtis Scaparrotti, head of U.S. European Command and the NATO Supreme Allied Commander-Europe, told the Senate Armed Services Committee Tuesday.

“The Ukrainians, in my view, have trained very well for the use of that, they’ve been responsible in the security and the deployment of it and we watch that closely.”

The FGM-148 Javelins were characterized as “defensive lethal aid” when sold to Ukraine, with the stipulation that they are meant to be used in the event of a resurgence in the Ukrainian conflict, not for offensive purposes.

At the Senate hearing Tuesday, Scaparrotti confirmed Javelins have not been employed on the front lines in Ukraine’s eastern Donbass region, but added that the Russians were aware of the systems when senators asked if the Javelins make Russian T-72 tank crews “a little more nervous.”

“I think it does,” Scaparrotti said. “[The Russians] take that into consideration in the employment of their forces and where they put them.”

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U.S. special operations forces have also been deeply involved in training their Ukrainian counterparts.

Iowa Sen. Joni Ernst said during the hearing that she recently traveled to the country to spend time with Ukraine’s “brand-new special operations forces that just graduated from their Ukrainian Q Course, which is run by our American special operations forces.”

Ernst visited a training center in Berdychiv, Ukraine, where the U.S. and Ukrainian SOF work closely to improve recruitment, retention, training, and overall military tactics, according to a statement from her offices regarding the February trip.

The EUCOM commander said that Ukraine has been asking for help in other areas, as well, including support for counter-battery systems to defeat enemy indirect fire, sniper systems, grenade launchers, ammo and help developing a secure communications network.

“They’ve asked us for help in communication at an operational level,” Scaparrotti said. “And they do have a distinct need for that because while we focus on the line of contact, their chief of defense is also focused on other areas of the country that are a threat.”

A delegation of senior Ukrainian military officials observes a U.S. Army unit currently conducting training at the combat training center at Hohenfels Training Area, Germany on May 9, 2017. (1st Lt. Kayla Christopher/Army)

The Organization for Security and Cooperation in Europe continuously notes ceasefire violations in the Ukraine’s eastern Donetsk and Luhansk regions, some of which result in casualties.

The conflict is currently set at a standstill, but when major battles were occurring, Western and Ukrainian officials complained that Russian T-72BM tanks, which were not known to have been exported, were used to significantly back separatists. Systems like the Javelin may deter further aggression.

Another major area of focus should be on the Ukrainian Navy, such as helping them to defend the Kerch Strait, Scaparrotti said. That waterway was the location of a Nov. 25 incident in which Ukrainian naval vessels were fired upon and seized by Russian forces.

The Ukrainian Navy “was not large to begin with, given the portion of the fleet that Russia took when it annexed Crimea,” Scaparrotti said. “And they just lost a couple of ships, as well, in the Kerch Strait. So I think there are some areas there that we can help them get this Navy back up and begin to supply it.”

All of these recommendations will be put forward in the authorization bill coming up, Scaparrotti said.

Retired Lt. Gen. Ben Hodges, who helmed U.S. European Command’s Army component during the turbulent 2014-2017 time period, largely agreed with Scaparrotti’s recommendations.

“But I also think that there needs to be some real work done by the [Ukrainian government] to ensure transparency of their own defense budget, a review of their arms industry,” Hodges told Military Times. “They’re quite capable of producing sniper rifles and other weapon systems.”

Hodges said that ensuring the Ukrainian government holds people accountable for major mishaps, such as the explosion of a large ammunition dump roughly 110 miles east of Kyiv in October, is paramount when providing military assistance and troop training.

The explosion was the result of negligently storing ammunition in an open-air setting, which may have created an opportunity for separatist sabotage, the secretary of the Ukrainian parliament’s national security committee told the Kyiv Post in November. Whether or not sabotage was the definite cause of the blast, Ukrainian forces need to build secure ammunition storage sites, the politician added.

Scaparrotti’s desire to build up Ukraine’s naval fleet is also one Hodges takes very seriously.

“[The Ukrainian] Navy is in real need of assistance in terms of infrastructure and modernization,” he said. “They will be critical to any NATO-led efforts to counter [Russian] aggression and further expansion in the Black Sea region.”

Hodges has been vocal about his concern that the Russian military intends to “choke out” Ukraine’s seaports through capturing Black Sea coastal areas.

“The next phase will probably be land and sea operations that would eventually secure maybe even Mariupol but continue to take the Ukrainian coastline and connect Crimea back up to Russia along the Sea of Azov,” he told Military Times in December. “It’s not going to happen in the next six months, but this is the direction they’re taking.”

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German government doesn’t have to ensure US follows international law on drone strikes, court rules

BERLIN — Germany’s top administrative court has ruled the country’s government can’t be forced to ensure that U.S. drone strikes controlled via an American military base on German territory are in line with international law. The decision Wednesday by the Federal Administrative Court in Leipzig overturns a ruling last year that held the German government…

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German government doesn’t have to ensure US follows international law on drone strikes, court rules

BERLIN — Germany’s top administrative court has ruled the country’s government can’t be forced to ensure that U.S. drone strikes controlled via an American military base on German territory are in line with international law. The decision Wednesday by the Federal Administrative Court in Leipzig overturns a ruling last year that held the German government partly responsible for making sure that such military operations comply with international law. The ruling restores a lower court decision in 2015 that concluded the German government had fulfilled its legal duties and was within its rights to balance them with “foreign and defense policy interests.” The case was brought by human rights groups on behalf of three Yemeni plaintiffs who allege their relatives were killed in a U.S. drone strike in 2012. They alleged that the U.S. air base in Ramstein, southern Germany, plays a key role in the relay of flight control data used for armed drone strikes in Yemen. Jennifer Gibson of the human rights group Reprieve said the plaintiffs would continue to campaign against the drone strikes. “What we are talking about here is a secret assassination program that kills scores of civilians each year,” Gibson said. “It is simply unsustainable, and despite today’s ruling, clearly unlawful.” Granting the German government’s appeal against last year’s verdict, judges in Leipzig said that Berlin could only be compelled to take further action if “due to the number and circumstances of the breaches of international law that have already taken place there must be a concrete expectation further actions that are illegal under international law will also occur in future.” Sign up for the Early Bird Brief Get the military’s most comprehensive news and information every morning. 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They also concluded that there was no direct link to Germany in the case, citing the provision of technical relay capabilities as insufficient. Judges noted that the German government had taken some steps to address the issue in its communications by seeking assurances from Washington, thereby proving that Berlin had made an effort to ensure the plaintiffs’ rights were protected. Andreas Schueller, a lawyer with the European Center for Constitutional and Human Rights who argued the case for the Yemeni plaintiffs, said his clients were considering an appeal before Germany’s highest court. “A state that makes its territory available for military operations must enforce international law and human rights more strongly than the German government does,” he said.

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No SecDef pick from Biden as Flournoy hits resistance from progressives

WASHINGTON ― When President-elect Joe Biden announced the core of his national security team on Monday, there was one glaring omission: his choice for defense secretary. That absence is leading to questions about whether Michèle Flournoy, a politically moderate Pentagon veteran whose confirmation would give the Defense Department its first woman leader, remains the odds-on…

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No SecDef pick from Biden as Flournoy hits resistance from progressives

WASHINGTON ― When President-elect Joe Biden announced the core of his national security team on Monday, there was one glaring omission: his choice for defense secretary. That absence is leading to questions about whether Michèle Flournoy, a politically moderate Pentagon veteran whose confirmation would give the Defense Department its first woman leader, remains the odds-on favorite for the role. The doubts came as Flournoy has been under pressure from the left over her defense industry ties and relatively hawkish views. Flournoy joined Booz Allen Hamilton’s board and co-founded defense consulting firm WestExec Advisors in 2018, and, in 2007, co-founded the Center for a New American Security think tank, which relies on support from defense firms. On Monday, Biden announced Antony Blinken, his longtime advisor and Flournoy’s partner at WestExec, as his nominee for secretary of state. Biden also selected Jake Sullivan for national security advisor; Alejandro Mayorkas for homeland security secretary; Linda Thomas-Greenfield as U.S. ambassador to the United Nations; and Avril Haines for director of national intelligence. Haines also has ties to WestExec. Politico reported Monday that while Flournoy is still a strong contender, Biden is not entirely sold on her, though it’s unclear how big of a role the resistance from the left is playing. Jeh Johnson, President Barack Obama’s second secretary of Homeland Security, is another top candidate ― and he would be the first Black defense secretary, but he could also concern progressives as a member of Lockheed Martin’s board. Fox News reported Monday that Flournoy will be the pick, but the timing of the move is not clear. The Biden transition team did not respond to a request for comment. Amid the uncertainty, there is a push to support Flournoy’s candidacy. Sign up for our Early Bird Brief Get the defense industry’s most comprehensive news and information straight to your inbox Subscribe Enter a valid email address (please select a country)United StatesUnited KingdomAfghanistanAlbaniaAlgeriaAmerican SamoaAndorraAngolaAnguillaAntarcticaAntigua and BarbudaArgentinaArmeniaArubaAustraliaAustriaAzerbaijanBahamasBahrainBangladeshBarbadosBelarusBelgiumBelizeBeninBermudaBhutanBoliviaBosnia and HerzegovinaBotswanaBouvet IslandBrazilBritish Indian Ocean TerritoryBrunei DarussalamBulgariaBurkina FasoBurundiCambodiaCameroonCanadaCape VerdeCayman IslandsCentral African RepublicChadChileChinaChristmas IslandCocos (Keeling) IslandsColombiaComorosCongoCongo, The Democratic Republic of TheCook IslandsCosta RicaCote D’ivoireCroatiaCubaCyprusCzech RepublicDenmarkDjiboutiDominicaDominican RepublicEcuadorEgyptEl SalvadorEquatorial GuineaEritreaEstoniaEthiopiaFalkland Islands (Malvinas)Faroe IslandsFijiFinlandFranceFrench GuianaFrench PolynesiaFrench Southern TerritoriesGabonGambiaGeorgiaGermanyGhanaGibraltarGreeceGreenlandGrenadaGuadeloupeGuamGuatemalaGuineaGuinea-bissauGuyanaHaitiHeard Island and Mcdonald IslandsHoly See (Vatican City State)HondurasHong KongHungaryIcelandIndiaIndonesiaIran, Islamic Republic ofIraqIrelandIsraelItalyJamaicaJapanJordanKazakhstanKenyaKiribatiKorea, Democratic People’s Republic ofKorea, Republic ofKuwaitKyrgyzstanLao People’s Democratic RepublicLatviaLebanonLesothoLiberiaLibyan Arab JamahiriyaLiechtensteinLithuaniaLuxembourgMacaoMacedonia, The Former Yugoslav Republic ofMadagascarMalawiMalaysiaMaldivesMaliMaltaMarshall IslandsMartiniqueMauritaniaMauritiusMayotteMexicoMicronesia, Federated States ofMoldova, Republic ofMonacoMongoliaMontserratMoroccoMozambiqueMyanmarNamibiaNauruNepalNetherlandsNetherlands AntillesNew CaledoniaNew ZealandNicaraguaNigerNigeriaNiueNorfolk IslandNorthern Mariana IslandsNorwayOmanPakistanPalauPalestinian Territory, OccupiedPanamaPapua New GuineaParaguayPeruPhilippinesPitcairnPolandPortugalPuerto RicoQatarReunionRomaniaRussian FederationRwandaSaint HelenaSaint Kitts and NevisSaint LuciaSaint Pierre and MiquelonSaint Vincent and The GrenadinesSamoaSan MarinoSao Tome and PrincipeSaudi ArabiaSenegalSerbia and MontenegroSeychellesSierra LeoneSingaporeSlovakiaSloveniaSolomon IslandsSomaliaSouth AfricaSouth Georgia and The South Sandwich IslandsSpainSri LankaSudanSurinameSvalbard and Jan MayenSwazilandSwedenSwitzerlandSyrian Arab RepublicTaiwan, Province of ChinaTajikistanTanzania, United Republic ofThailandTimor-lesteTogoTokelauTongaTrinidad and TobagoTunisiaTurkeyTurkmenistanTurks and Caicos IslandsTuvaluUgandaUkraineUnited Arab EmiratesUnited KingdomUnited StatesUnited States Minor Outlying IslandsUruguayUzbekistanVanuatuVenezuelaViet NamVirgin Islands, BritishVirgin Islands, U.S.Wallis and FutunaWestern SaharaYemenZambiaZimbabwe Thanks for signing up! × By giving us your email, you are opting in to the Early Bird Brief. A group of 11 military and veteran support organizations endorsed Flournoy over the weekend, praising her “undisputed expertise” and calling for a swift confirmation, should she be nominated. And after news of some Biden picks leaked without a defense secretary on Monday, the No Exceptions initiative, which pushed to open all combat positions to women, activated its email network to urgently gather signatures for an open letter to support Flournoy as a historic choice. “Michèle was a tremendous ally to No Exceptions in our fight to open all combat roles in the U.S. Armed Forces to women. Now, it’s our turn to support her,” said the email, which was described as “time sensitive.” The group hoped to release their letter Tuesday or Wednesday, a spokeswoman said. Rep. Ro Khanna, D-Calif., right, and Sen. Bernie Sanders, I-Vt., speak during a press conference following a vote in the U.S. House on ending U.S. military involvement in the war in Yemen, on Capitol Hill in Washington, DC, April 4, 2019. (Photo by SAUL LOEB / AFP) Flournoy’s Pentagon experience is not in doubt, as she has served multiple times in the Defense Department, starting in the 1990s and most recently as the undersecretary of defense for policy from 2009 to 2012. Still, progressives wary of Flournoy’s business dealings want Biden to show a break from President Donald Trump, who selected two defense secretaries from industry: former Boeing executive Patrick Shanahan and former Raytheon executive Mark Esper. Left-leaning Reps. Mark Pocan, D-Wis., and Barbara Lee, D-Calif., wrote a letter this month asking Biden not to nominate a defense secretary who has ties to defense contractors, which was seen as a veiled shot at Flournoy. Meanwhile, progressive groups are broadly calling for greater transparency into the potential conflicts of interest of executive branch appointees. “After the rampant corruption and conflicts of interest we’ve seen in the Trump administration, it would behoove the Biden administration to really demonstrate they are charting a different course and they are adding some protections to restore faith and trust in these institutions,” said Stephen Miles, executive director of Win Without War, a progressive foreign policy organization. Another concern for progressives is that Flournoy, as reported by Foreign Policy, clashed with Biden over U.S. force levels in Afghanistan when he was vice president and she was Pentagon policy chief during the Obama administration ― and in the past, she pushed to keep more U.S. forces in Iraq. (Biden is seeking a swift pullout from Afghanistan with a residual counter-terror force.) FILE – In this Sept. 22, 2016, file photo, a man stands among the rubble of the Alsonidar Group’s water pump and pipe factory after it was hit by Saudi-led airstrikes in Sanaa, Yemen. (AP Photo/Hani Mohammed, File) In a tweet on Sunday, Rep. Ro Khanna, a member of the Congressional Progressive Caucus and House Armed Services Committee, raised questions about Flournoy publicly and by name. “Flournoy supported the war in Iraq & Libya, criticized Obama on Syria, and helped craft the surge in Afghanistan. I want to support the President’s picks,” said Khanna, D-Calif., referring to Biden. “But will Flournoy now commit to a full withdrawal from Afghanistan & a ban on arms sales to the Saudis to end the Yemen war?” Progressives and grassroots advocates spurred congressional actions around ending U.S. support for the Saudi-led war in Yemen ― an end Biden supports and is included in the 2020 Democratic platform ― and they want to ensure his administration keeps human rights concerns at the center of a new, less-militarized U.S. foreign policy. “I think progressives effectively pulled together with the Biden campaign to get a number of important foreign policy priorities into the Democratic Party Platform,” said Matt Duss, foreign policy adviser to Sen. Bernie Sanders. “Now progressives are going to want to hear from any nominee how they’re going to be following through on those commitments.” Flournoy has taken the concerns of progressive foreign policy groups seriously enough that she convened a call with them, and she offered assurances she opposed the sale of offensive weapons to Saudi Arabia that could be used in Yemen, according to Politico. Because Flournoy, Blinken and other Biden team figures have maintained or at least opened communications with progressive groups, some representatives of them say their intent isn’t to block Flournoy or other nominees, but to put progressive issues and foreign policy concerns on the table. “You don’t have to protest outside the White House when you can go into the White House and make the case for your position,” Miles said. “That doesn’t mean you never protest outside the White House, but when there’s a time and a place for it.”

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How the president could invoke martial law

Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike. “The fear is certainly understandable,…

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How the president could invoke martial law

Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike. “The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “If someone has declared martial law, they’re essentially saying that they are the law.” What is ‘martial law’ In short, martial law can be imposed when civil rule fails, temporarily being replaced with military authority in a time of crisis. Though rare, there have been a number of notable U.S. cases where martial law came into play, including in times of war, natural disaster and civic dispute — of which there has been no shortage in 2020. While no precise definition of martial law exists, a precedent for it exists wherein, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended,” according to documents from JRANK, an online legal encyclopedia. Martial law may be declared by both the president and by Congress. State officials may also declare martial law, according to the Brennan Center for Justice, however, “their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.” “Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks,” the Atlantic reported. “Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.” Throughout the course of U.S. history, federal and state officials have declared martial law at least 68 times, according to Joseph Nunn, an expert with the Brennan Center for Justice. Sign up for the Early Bird Brief Get the military’s most comprehensive news and information every morning (please select a country)United StatesUnited KingdomAfghanistanAlbaniaAlgeriaAmerican SamoaAndorraAngolaAnguillaAntarcticaAntigua and BarbudaArgentinaArmeniaArubaAustraliaAustriaAzerbaijanBahamasBahrainBangladeshBarbadosBelarusBelgiumBelizeBeninBermudaBhutanBoliviaBosnia and HerzegovinaBotswanaBouvet IslandBrazilBritish Indian Ocean TerritoryBrunei DarussalamBulgariaBurkina FasoBurundiCambodiaCameroonCanadaCape VerdeCayman IslandsCentral African RepublicChadChileChinaChristmas IslandCocos (Keeling) IslandsColombiaComorosCongoCongo, The Democratic Republic of TheCook IslandsCosta RicaCote D’ivoireCroatiaCubaCyprusCzech RepublicDenmarkDjiboutiDominicaDominican RepublicEcuadorEgyptEl SalvadorEquatorial GuineaEritreaEstoniaEthiopiaFalkland Islands (Malvinas)Faroe IslandsFijiFinlandFranceFrench GuianaFrench PolynesiaFrench Southern TerritoriesGabonGambiaGeorgiaGermanyGhanaGibraltarGreeceGreenlandGrenadaGuadeloupeGuamGuatemalaGuineaGuinea-bissauGuyanaHaitiHeard Island and Mcdonald IslandsHoly See (Vatican City State)HondurasHong KongHungaryIcelandIndiaIndonesiaIran, Islamic Republic ofIraqIrelandIsraelItalyJamaicaJapanJordanKazakhstanKenyaKiribatiKorea, Democratic People’s Republic ofKorea, Republic ofKuwaitKyrgyzstanLao People’s Democratic RepublicLatviaLebanonLesothoLiberiaLibyan Arab JamahiriyaLiechtensteinLithuaniaLuxembourgMacaoMacedonia, The Former Yugoslav Republic ofMadagascarMalawiMalaysiaMaldivesMaliMaltaMarshall IslandsMartiniqueMauritaniaMauritiusMayotteMexicoMicronesia, Federated States ofMoldova, Republic ofMonacoMongoliaMontserratMoroccoMozambiqueMyanmarNamibiaNauruNepalNetherlandsNetherlands AntillesNew CaledoniaNew ZealandNicaraguaNigerNigeriaNiueNorfolk IslandNorthern Mariana IslandsNorwayOmanPakistanPalauPalestinian Territory, OccupiedPanamaPapua New GuineaParaguayPeruPhilippinesPitcairnPolandPortugalPuerto RicoQatarReunionRomaniaRussian FederationRwandaSaint HelenaSaint Kitts and NevisSaint LuciaSaint Pierre and MiquelonSaint Vincent and The GrenadinesSamoaSan MarinoSao Tome and PrincipeSaudi ArabiaSenegalSerbia and MontenegroSeychellesSierra LeoneSingaporeSlovakiaSloveniaSolomon IslandsSomaliaSouth AfricaSouth Georgia and The South Sandwich IslandsSpainSri LankaSudanSurinameSvalbard and Jan MayenSwazilandSwedenSwitzerlandSyrian Arab RepublicTaiwan, Province of ChinaTajikistanTanzania, United Republic ofThailandTimor-lesteTogoTokelauTongaTrinidad and TobagoTunisiaTurkeyTurkmenistanTurks and Caicos IslandsTuvaluUgandaUkraineUnited Arab EmiratesUnited KingdomUnited StatesUnited States Minor Outlying IslandsUruguayUzbekistanVanuatuVenezuelaViet NamVirgin Islands, BritishVirgin Islands, U.S.Wallis and FutunaWestern SaharaYemenZambiaZimbabwe Subscribe × By giving us your email, you are opting in to the Early Bird Brief. How does it work? Martial law does have limits. The Posse Comitatus Act, passed on June 18, 1878, prevented federal troops from supervising Confederate state elections during Reconstruction. Though initially it only applied to the Army, it has been amended to include the Defense Department and, of course, the other service branches. That act prevents troops from enforcing domestic law, preventing such actions as searching and seizing property or dispersing crowds. However, National Guard units, which take their direction from state governors, are exempt from the Posse Comitatus Act. One exception to Posse Comitatus, however, is the Insurrection Act, which allows the use of active-duty or National Guard troops for federal law enforcement in cases when “rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings,” according to U.S. Northern Command. The text of the Act reads: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.” But activating the National Guard even under federal Title 32 status, in which the federal government helps pay for Guard troops under state control, does not fall under the Insurrection Act, nor does it equate to martial law in ordinary circumstances. “Governors call the National Guard all the time to respond to a storms or power outages, delivering medical supplies, stuff going on even during COVID,” Banks said. “That’s not extraordinary, nor would it be if the President federalized the National Guard for similar reasons, responding to a need to disseminate vaccines next winter, for example, would be perfectly appropriate, lawful, not martial law.” Should we be worried? “The sort of hellish scenarios that some people talk about is one where the president orders or regular military armed forces the United States to take over cities that he believes are engaged in an unlawful election, disruption or protests in the wake of an unresolved presidential election in the days after November 3,” Banks noted. Though purely a hypothetical, Banks notes that the way it would happen would be through the Insurrection Act. In order to invoke the Insurrection Act, the president “must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. § 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops,” according to a 2006 Congressional Research Service report. “One of the important things to remember about the Insurrection Act is that it’s not martial law,” Banks said. “The purpose of utilizing the mechanisms of insurrection act is to enforce the law, not replace it.” In June, at the height of the protests surrounding the death of a Black man named George Floyd at the hands of a white Minnesota police officer, President Donald Trump alluded to the Insurrection Act as a means of calling up active duty troops to quell civil unrest as protest erupted across the country. “If a city or 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,” Trump said in a White House statement on June 1 — just before he posed for a photo opportunity outside Washington, D.C.’s St. John’s Church with a bible amid an entourage, which included Joint Chiefs of Staff Chairman Gen. Mark Milley. Milley publicly apologized for his appearance in Trump’s walk across Lafayette Square to pose for photos in front of a church partially burned during protests. “My presence in that moment and in that environment created a perception of the military involved in domestic politics,” Milley said. “As a commissioned uniformed officer, it was a mistake that I have learned from, and I sincerely hope we all can learn from it.” But while the Insurrection Act is law, the fact that martial law is not codified lands its use in a distinctly grey legal area. “One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law,” Banks noted. “They can just do it. It’s not sanctioned by law.” Banks noted that the civilian in charge of the military — in this case, Defense Secretary Mark Esper — is the key to ensuring the military is kept out of the 2020 elections. “Secretary Esper is in a in a really critical role here,” Banks noted. Esper addressed this in a memo to the force. “As citizens, we exercise our right to vote and participate in government,” he wrote. “However, as public servants who have taken an oath to defend these principles, we uphold DoD’s longstanding tradition of remaining apolitical as we carry out our official responsibilities.” Milley too feels strongly about the necessity of keeping the U.S. military out of politics and the election. “We don’t swear an oath of allegiance to an individual, a king, a queen, a president or anything else,” he said in an interview with NPR. “We don’t swear an oath of allegiance to a country, for that matter. We don’t swear an oath of allegiance to a flag, a tribe, a religion or any of that. We swear an oath to an idea, or a set of ideas and values, that are embedded in our Constitution.” As a result of these comments, Banks is optimistic that the worst case election scenario in the event of disputed election results might just be lawsuits in certain states where the outcomes are murky. “A really important limitation in the event that there is martial law is that it’s highly unlikely to be tolerated in a situation where our civilian institutions are working,” Banks noted. “Martial law requires a complete meltdown. It requires the inability of our civilian institutions to manage government. It’s hard to imagine that.”

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