Sens. Elizabeth Warren (D-Mass.) and Richard Blumenthal (D-Conn.) urged President Joe Biden and Defense Secretary Lloyd Austin to take action during their final weeks in office to prevent President-elect Donald Trump would abandon the army. the American public.
In a letter on Sunday, the pair stressed that failure to provide legal guidance could lead to unrest within the armed forces.
Trump has said he would direct the U.S. military to assist Immigration and Customs Enforcement in his plans to deport immigrants without permanent legal status — an unprecedented move that critics see as an affront to personal freedoms. He has also spoken about using the armed forces against perceived enemies, suggesting before the November 5 election that the military should be used against “radical left-wing lunatics” if necessary.
The Democratic senators suggested that Biden issue a policy directive outlining limits on the president’s authority to use the military to enforce civilian law.
There are already rules. A post-Reconstruction law, the Posse Comitatus Act of 1878, states that the use of any part of the armed forces “to execute the laws” is punishable by fine or imprisonment, except “in cases and under circumstances expressly authorized.” by the constitution or law. of Congress.”
But the Insurrection Act offers something of a loophole.
Under that law, the president can use the military against Americans in certain emergency situations that are not fully declared; the Brennan Center for Justice, a progressive nonprofit, called the wording “dangerously vague.”
Trump has suggested he would immediately declare a national emergency over what he calls an “invasion” by immigrants, clearing the way for him to mobilize the military on US soil.
In their letter, Warren and Blumenthal said the policy guidance should state that use of the Insurrection Act is limited to very limited circumstances where state or local authorities are “overwhelmed,” and “that the President should consult with Congress to the greatest extent possible.” before ordering the military to take action. Troops would also have to comply with fundamental principles of the criminal justice system, such as the right of habeas corpus, or a person’s right to be brought before a court for a formal ruling on their detention, the pair said.
The senators urged Biden and Austin to act quickly in light of the Supreme Court’s recent presidential immunity decision, which significantly expanded a president’s ability to act without fear of being prosecuted later .
They pointed to unresolved questions about the real-world implications of that decision.
“While the president may be immune, legal scholars have said this decision should not have any impact on military personnel’s obligation to disobey unlawful orders,” Warren and Blumenthal wrote.
“Given the disagreement among scholars about the serious implications of the recent Supreme Court decision, it is reasonable to assume that military, other DoD [Department of Defense] personnel, and the broader military community, may not be aware of or fully understand their rights and responsibilities,” they said.
“If left unheeded, any ambiguity about the lawful use of military force, coupled with President-elect Trump’s demonstrated intent to use the military in such dangerous and unprecedented ways, could prove devastating.”
Pentagon officials have already begun discussing how to respond to a situation in which Trump issues a controversial order, CNN reported last month.
“Troops are required by law to disobey unlawful orders,” a defense official told the newspaper. “But the question is what happens next – will we see resignations of senior military leaders? Or would they consider that as abandoning their people?”
