Martial Law Alert: Trump receives OK to use military to prosecute civilians
Thanks to a recent ruling by a federal judge in Minnesota and the Republican Party’s refusal to deal with the issue of martial law, Donald Trump has received the OK to use military lawyers (JAG) to prosecute civilians for offenses unrelated to the military.
Back in April, U.S. Magistrate Judge Shannon Elkins ruled that military lawyers can prosecute civilians for offenses unrelated to the military, determining that such assignments do not violate federal law and cannot be prevented by a court (via The Independent):
The case centered on Paul Johnson, a Minnesota resident charged with assaulting a Customs and Border Protection agent … in January during the Trump administration’s aggressive immigration enforcement surge in the state. During this period, the Defense Department assigned lawyers from the Judge Advocate General’s Corps (JAGs) to assist the U.S. Attorney’s Office in Minnesota, following similar deployments to Washington, D.C., and Tennessee.
Lawyers for Johnson contended that using JAG attorneys to prosecute civilians in cases without a military connection violated the Posse Comitatus Act, an 1878 law generally prohibiting military involvement in civilian law enforcement, as well as Department of Defense regulations.
Johnson sought to remove the military lawyer from his case, gaining national attention and support from 11 former JAG lawyers who argued “the government has crossed a perilous line.” However, Judge Elkins sided with the government, finding that Congress had created exceptions to the Posse Comitatus Act through two other laws.
While Elkins agreed with the defense that the appointment of a JAG lawyer in Johnson’s case violated binding regulations, which state such attorneys should only prosecute cases “in which the Army has an interest,” she concluded these regulations did not empower her to disqualify the military lawyer. (Emphasis mine)
Last week, House Republicans rejected a provision to the annual defense policy bill that would have ended the Trump administration’s martial law-inspired practice of using the military’s uniformed lawyers from serving as immigration judges and special U.S. attorneys in Democrat-run cities (via Defense One):
Rep. Jason Crow, D-Colo, proposed the amendment during the House Armed Service Committee’s markup of the National Defense Authorization Act on Thursday afternoon. The provision would have amended U.S. law to clarify that the judge advocate generals corps could only be assigned to military-related duties. Republican lawmakers, including HASC Chairman Mike Rogers, ultimately batted down the provision in a 31-26 vote, according to the committee’s website. It’s not clear if a similar provision is being debated in the Senate.
Rogers, R-Ala., defended the administration’s unprecedented use of the military’s lawyers. “This is a direct attack on the administration, which has used judge advocates in multiple ways to protect national security priorities for the president. Judge advocates have served as special assistants to U.S. attorneys for years,” he said. “That role has been expanded in the current administration to assist other agencies in defense of the homeland national security priority, and great experience and training for our uniformed officers. I trust that the Secretary of Defense, with the help of the Joint Staff, may deploy judge advocates across the United States and the world to ensure the rule of law is followed.”
Rep. Pat Fallon, R-Texas, also criticized the provision, saying Hegseth “has determined that the homeland mission is essential” and that the extra lawyers are crucial to it. “The National Security Strategy places a great deal of emphasis on homeland defense, and in order to meet these needs, an increase in attorneys has been needed to litigate in U.S. courts and aid in the administrative hearings across the Department of Justice and Homeland,” Fallon said. “Our uniformed attorneys have the ability to surge into positions when the country needs them.”
Military legal experts have previously told Defense One that there is precedent for uniformed lawyers to prosecute U.S. citizens, but the Trump administration’s wide-spread use of the JAGs has raised fears that it could violate the Posse Comitatus Act which forbids the military to be used for federal law enforcement.(Emphasis mine)
In both instances, the objections of those opposed to using the military to prosecute civilians came down to the likely violation of the Posse Comitatus Act, a federal law signed in 1878 by Pres. Rutherford B. Hayes designed to limit the power of the federal government to use the military to enforce domestic policies within the US. Though updated since its inception, and even though there’ve been a few tweaks since 9/11, the original intent of the act remains in effect.
Can Trump override Posse Comitatus Act? Yes and no. It can be suspended for things like natural disasters and terrorist attacks, but it can’t be overridden for the purpose of prosecuting civilians in non-military matters. This question is secondary, however, to the disturbing march towards martial law we are witnessing under Donald Trump — a march that began when he started using the military to secure the border as a trial run to the possible use of the Insurrection Act.
One of Trump’s first directives at the beginning of his second term was an executive order declaring a national emergency on the southern border that required the Secretary of Defense (Pete Hegseth) and then-Secretary of Homeland Security (Kristi Noem) to provide a joint report updating conditions at the border along with their recommendations on whether the invocation of the Insurrection Act might be necessary.
“Within 90 days of the date of this proclamation, the Secretary of Defense and the Secretary of Homeland Security shall submit a joint report to the President about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”
The Insurrection Act of 1807 is a federal law that empowers the president to deploy the U.S. military and National Guard to suppress insurrections or domestic violence. And as we saw on January 6, 2020, the criteria concerning what constitutes an insurrection or domestic violence is open to interpretation.
In the days that followed, Trump announced that he would give the military control of “federal land” along the border. The federal land in question is a 60-foot-wide strip of land known as the Roosevelt Reservation which exists on the America side of the border in California, Arizona, and Texas. In other words, Trump essentially turned this strip of land into a military base. (via Defense One):
The memo direct[ed] the Interior Department to allow the Defense Department to have jurisdiction over portions of federal land known as the Roosevelt Reservation, excluding any Native American reservations.
By creating a military buffer zone that stretches across the U.S.-Mexico border in Arizona, California and New Mexico, it means any migrant crossing into the United States would be trespassing on a military base, therefore allowing active-duty troops to hold them until U.S. Border Patrol agents arrive.
National and military experts have raised concerns that giving control over the land to the military could violate the Posse Comitatus Act, an 1878 law that generally prohibits the military from being used in domestic law enforcement.
The Friday memo instructs its “phased” implementation within 45 days and says it could be expanded over time. The memo is directed at the secretaries of the departments of Defense, Interior, Agriculture and Homeland Security. (Emphasis mine)
As we now know, it expanded. And even though Trump hasn’t officially declared martial law, he has managed to effectively expand the use of the military domestically to the whole nation.
Last month, John Whitehead wrote a great piece documenting the many ways Trump has given us a stealth version of martial law by militarizing domestic police and destroying the right to due process.
Officially titled “Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens,” Trump issued an executive order containing a dose of tough-on-crime rhetoric cloaked in patriotic language and the promise of safety — the language used by every tyrant throughout history who’s ever ruled by force.
In addition to using military lawyers to prosecute civilians, Trump has laid the groundwork for a stealth version of martial law in other areas, including:
- Expanding police powers and legal protections
- Authorizing the DOJ to defend officers accused of civil rights violations
- Increasing the transfer of military equipment to local police
- Shielding law enforcement from judicial oversight
- Prioritizing law enforcement protection over civil liberties
- Embedding DHS and federal agents more deeply into local policing
As we see from the recent developments concerning the use of military lawyers to prosecute civilians in non-military matters, Republicans in Congress have abdicated their responsibility to be a constitutional check on executive power — passing sweeping authorizations with little scrutiny and failing to rein in executive overreach — and the courts have elected to sanction Trump’s many abuses of power in the name of national security, public order, or qualified immunity. Instead of acting as constitutional safeguards against tyranny, these institutions have largely become rubber stamps.
Besides being inconsistent with the values of liberty and freedom we enjoy as a Constitutional Republic, Trump’s use of military lawyers to prosecute civilians perpetrates the growing acceptance by many in America that we should voluntarily surrender our rights to the federal government in exchange for safety.
We can’t let that happen!
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties. He is the author of The New Axis of Evil: Exposing the Bipartisan War on Liberty.
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