Academic journal article Military Review

Defending Sovereignty: Domestic Operations and Legal Precedents

Academic journal article Military Review

Defending Sovereignty: Domestic Operations and Legal Precedents

Article excerpt

The Department of Defense (DOD) maintains and employs the Armed Forces to:

* Support and defend the Constitution of ihe United States against all enemies, foreign and domestic.

* Ensure, by timely and effective military action the security of the United States, its territories and areas vital to its interests.

* Uphold and advance the national policies and interests of the United States.

* Safeguard the internal security of the United States."1

This mission statement leaves little room for interpretation. Defense against foreign and domestic enemies has the same priority. However, when reflecting on military involvement in defense off US sovereignty, most envision engagements being fought against foreign enemies on distant battlefields, when in fact, throughout the history of our country, the majority of battles to safeguard national security and defend America's values have been fought on US soil.2

Although precedents have been established, there continues to be considerable concern over the legal authority and limits of using the Armed Forces in domestic actions. Concerns include fear that "use of military forces may expose civilian government to the threat of military rule and could lead to the suspension of constitutional liberties, and on a lesser scale, that military enforcement of the civil law could leave the protection of Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights."3

These concerns were well documented by our founding fathers and formed much of the basis for the Declaration of Independence and the Bill of Rights. Over the last 200 years, Congress and the executive branch, in the face of new and expanding threats to our national security have increased the military's responsibilities in domestic operations. However, these changes have been in accordance with the intent of our founding fathers--that the militia, today's Active and Reserve Components (AC/RC) would provide for the common defense while remaining subordinate to its legally designated civilian leadership. These nuances are significant.

Although some will argue against virtually any involvement by the military in domestic operations, that involvement is key to safeguarding national security and guaranteeing the continued freedom of our citizens.4 Under specific circumstances, use of military forces in domestic operations, while controversial, is not only appropriate, but legal and warranted. The Armed Forces have constitutionally mandated responsibilities to safeguard our nation and its people and will continue to be the instrument of choice for the National Command Authority during emergencies-foreign or domestic.

While acknowledging that there is considerable confusion over this issue, the confusion appears to be based on these factors:

* Preconceived notions concerning civil-military relations based on incomplete information.

* Lack of knowledge concerning the history and intent behind a number of key legislative actions governing these operations.

* Failure to fully comprehend the part Congress has played in the evolutionary expansion of the military's role in domestic operations to combat new threats while ensuring actions are taken in accordance with the intent of our founding fathers.

This article addresses the military's role in supporting civil authorities and the effect legal and cultural considerations have on its applications. It further outlines the legal and historical framework for military involvement in domestic actions and addresses a number of misconceptions and philosophical challenges faced by the US Armed Forces in actions of this nature.

Legal, Historical and Cultural Precedents

Throughout US history the three branches of government have often been at odds concerning interpretations of the Constitution. However, they have consistently expressed longstanding concerns and biases against involving the Armed Forces in domestic actions. …

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