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Call Out the Guard

Call Out the Guard
National Guard members stand guard during a protest near the White House against the death of George Floyd, June 3, 2020. (Carlos Barria/Reuters)

The National Guard, not the police or the military, is best equipped to handle widespread looting and violence.

It is not hard these days to conjure up a few of the myriad of circumstances in which citizens refer to the police: call the police, f*** the police, racist police, fallen police, police attacked, police beating, etc., etc. The police are a central thread in the fabric of our society and a closely examined feature of our culture. The media give much air time and print space to what the police are doing, but little or none to what role the police actually have in a free society that features the concept of order through law. A step back to consider just what the police are and what we need them to do might better inform a reasoned discourse about public policy concerning police going forward, especially in regard to the type of domestic mayhem we have seen recently.

Rules, including rules pertaining to personal conduct, are a critical source of maintaining the individual liberties of our citizens. Without rules to establish the parameters of lawful behavior, a society courts anarchy. Rules are essential, such that we have rules governing contests in all sports, rules for public behavior, rules for practice of religions; we — the big we — even have rules for warfare. Use of rules is a cornerstone concept for establishing a rule-of-law culture.

For rules to be effective they must be enforced, of course. In some ways no enforcement of rules is worse than no rules at all, because some will obey the rules and feel very disadvantaged when others without any consequence do not. That qualifies as injustice. So from referees in sporting contests to international tribunals regarding conduct in warfare, we recognize the need to have someone enforce the rules.

As our society evolved, and particularly as it became more urbanized, the role of enforcing the rules that rule out criminal conduct — as determined by laws that our elected representatives establish — fell to something we have come to call the police. The roots of police are ancient, going back at least to Middle Ages constables in our legal ancestor England. In our own western territories in formative years, we had sheriffs in local jurisdictions and U.S. marshals who covered a wide range of territory. In all of those instances we mostly had very good lawmen, but a few were corrupt, ineffective, or both. Some things change very little, at least in kind.

Today, if we are honest with ourselves, we ask the police, especially but not exclusively in our cities, to routinely perform an almost impossible job. As with most rules enforcement, the line between obedience to a rule and rule-breaking is not really a line at all, but a zone — a space where there is room between a technical violation of a rule, but without much adverse effect, and an intentional violation that causes some harm or disruption to the cause of general order. In the first instance, we ask the police to make the judgment as to in or out of the zone. In doing so today, if people of one race violate the rules more often than another, or disproportionately are responsible for many violations and the police encounter and arrest that race more often as a result, the police risk being branded racist.

In patrolling that zone, we also ask the police to ever more frequently deal with people breaking the rules who may be more challenged than most in their ability and inclination to obey the rules. That challenge may arise from mental illness, as we know today that medical professionals and public policy favor having those who suffer mental illness to be treated while at large, too often quite unsuccessfully. We also ask the police to routinely deal with people breaking rules who may be significantly impaired by alcohol and/or illicit drugs, and such persons are often confrontational, violent, and generally difficult to encounter. In a very demonstrable way, the police fill gaps in the social safety net that they may not be equipped by training, by expertise, and by law to do.

With an understanding of these facts and having the wave of national violence front of mind, we would do well to consider what an appropriate role is for police going forward, or perhaps more importantly, what the police should not be asked to do. One of those is painfully apparent over the past days and weeks: Police cannot — and should not — be expected to successfully quell widespread domestic disorder where arson, looting, and violence have gone out of control. We have experienced spasms of such rule-breaking begetting widespread violence over the past 40 to 50 years, including, as now, where it becomes a national occurrence. Several of those times we have seen police forces large and small become quickly overwhelmed and unable to stem the mayhem around them. That circumstance presents a great danger to both officers personally and to the communities they serve. The losers in that situation are far too often the citizens of our inner cities, where businesses that have been burned and looted leave permanently, depriving the people of those communities with ready access to the necessities of life.

Militarizing the police to deal with such occurrences is no answer. The police should never be seen as or look like a force of occupation. Riot gear and equipment, including some military surplus, are unfortunately necessary parts of the inventory of the police who are first responders at the outset of such episodes. But beyond that first response, I respectfully suggest that it is not in the interest of the police or the communities they serve to shoulder the burden of restoring order in the face of widespread community violence, arson, and looting.

That role should in the first instance belong to what we would have once called state militia but today have organized by state as the National Guard. Properly trained and equipped for that role, including by having clear legal authority to respond to such emergencies, the Guard has as a proper role the quelling of such violence. The trained and equipped aspect is of critical importance. In both the response to the Rodney King unrest in Los Angeles in 1992 and to the unjustified destruction that took place in Washington, D.C., just recently, the national government pressed into emergency service certain elements of federal law-enforcement agencies simply because they had the necessary capabilities to respond. These moves were both effective and obviously necessary. The criticism of Attorney General Barr for taking a lead role to restore order in the nation’s capital is truly absurd. His use of federal resources on an emergency basis was brilliantly executed. But we can and should do better than what those exigent circumstances required.

The Guard, properly trained and equipped, is well-positioned to respond to these incidents, just as it has the capability to provide disaster relief to communities after destructive storms. We ought to make sure that the national government, with oversight of the Guard’s capabilities, supports with training and money the further development of the Guard’s capabilities for this specific role. The first civil right is to life and then protection of property. We cannot allow that rule to be broken without consequence; doing so puts at risk the most fundamental of guarantees to our citizens that comes with their acquiescence to being governed.  

By law, the military can be called upon to respond to such incidents. But its routine use to do so is not wise. The modern military has a very different kind of function, one in which the use of lethal force to destroy enemies and neutralize threats to our national security is central to its mission and thus to its capabilities and training. It is better to avoid training that weapon on our own people, except as a last resort. Thus, it can be seen that if we do not repose the primary responsibility to address this kind of widespread unrest on either the police or the military, it only makes sense to equip the Guard to fill that role.

Finally, the role of government, including the police, in prevention of these kinds of episodes has to be re-established as well. There is movement among police today to develop better use-of-force policies; that is a preventive tool. But it is nowhere near the whole answer. There should be no doubt that enemies of the state exist in our country, including both those with domestic and foreign roots. They are a threat to the security of our people. They are discoverable. But we have by policy and practice increasingly stepped away from identifying and addressing those threats; somehow, too many have seen the acquisition of relevant information as some wrongful exercise of police powers. Several reporters got a Pulitzer Prize for “exposing” intelligence-gathering capabilities of the New York Police Department.

The police in the first instance and federal authorities as well, drawing on what the police can learn, need information about people and networks dedicated to fomenting domestic unrest, and both should be hard about the task of getting it. There are understandable frustrations with police misconduct and other societal ills, and some people legitimately want to make such grievances known. Giving free rein to those who would capitalize on such expression by turning frustration and anger into mayhem would be an abject failure by government to meet its obligations to provide for order through law in our communities and in our nation.

The police have a tough enough job as it is, without making them responsible for quelling the type of violence we have seen arise in too many American cities in recent days. But we also cannot ignore that if the violence is left unchecked, we will see more such incidents, perhaps more often than in the past. It is incumbent upon government to use information it can obtain to deny success to those who seek such unrest. But when they do manage to create these incidents, we need more than the police to respond and put an end to it.

George J. Terwilliger III is a lawyer in Washington who previously served for fifteen years in the U.S. Justice Department, including as Deputy Attorney General and Acting Attorney General.

© 2020 National Review

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