_All commissioned officers in the United States military swear to support and defend the Constitution "against all enemies, foreign and domestic

“Against All Enemies, Foreign and Domestic”:

A Just War Approach to the Question of Using Military Forces to Quell Civil Disturbances

BY

LTC Thomas W. Rauch

Department of English

United States Military Academy

West Point, NY 10996

845-938-3785

ct5713@usma.edu

WEST POINT, NEW YORK

22 JANUARY 2001

What started as a police raid on an after hours club in Detroit during July of 1967 escalated, within hours, into a full-blown riot. In response, Governor George Romney mobilized the 98.7% Caucasian (Price, 57) [1] Michigan Army National Guard (MANG) and deployed 7000 troops to restore order (Scheips, 185). With orders to “use whatever force necessary” (Scheips, 185), the MANG lacked any semblance of weapons discipline. They deployed with their weapons locked and loaded and successfully turned Detroit into a war zone. “In one incident: ‘Guardsmen fired fourteen shots into a car, wounding its four passengers. A search of the car revealed two empty wine bottles and a half-pint of whiskey, but no arms, no loot’” (Price, 41). Reluctantly, Governor Romney requested federal intervention after the first day of rioting to help reduce the continued escalation of violence. President Johnson issued an executive order that federalized the MANG and deployed brigades consisting of about 5000 troops from both the 82d and 101st Airborne Divisions. Lieutenant General John Throckmorton, commander of the XVIII Airborne Corps, took command of Task Force Detroit and ordered the MANG to unload their weapons and to put their ammunition in their pockets, an order the MANG almost universally ignored (Scheips, 187). During their seven-day deployment in Detroit, the MANG expended 156,391 rounds of ammunition (Scheips, 188). When the violence subsided casualties included about 600 wounded and 43 dead; 33 of the dead were African-American. Police officers were responsible for 21 fatalities, the National Guard claimed responsibility for nine, and active duty troops were credited with one (Scheips, 189). The remainder were killed by local storeowners or died in riot-related accidents. All in all, a surprisingly low death toll, considering the amount of ammunition expended.

This is just one example when our political leaders have ordered military forces to support domestic police in quelling civil disturbances. [2] I will focus this paper on these domestic support missions by questioning whether the military[3] is morally justified in using force to quell domestic civil disturbances. I shall argue that, in accordance with social contract ethical theories, the use of the military for these missions is morally justified. Then, I shall demonstrate that Just War Theory can help us explore the practical circumstances under which political leaders may be justified in deploying military forces to quell civil disturbances. Finally, I shall confront the difficult questions regarding how the military ought to execute this mission. Although I will demonstrate that the military is morally justified to assist local police forces in quelling civil disturbances, carrying out that mission is a complex matter fraught with potential moral problems.

Theoretical Support from Social Contract Theory

The framers of our Constitution based many of their democratic ideals on the social contract principles espoused by Hobbes and Locke who recognized that “the people [are] the source of all authority in [the] nation” (Thomas Jefferson, Cabinet Opinion, 1793). That is, the power of government originates in the people who band together to form society and who transfer certain natural rights (particularly the right to protect their own rights through force) to the government to enhance their mutual benefit. Political power does not originate in the government; it originates in the people whose will establishes and legitimizes the government. Both Locke and Jefferson considered it a right of the people to withdraw political power from the government if it violated the trust of the people by failing to uphold its end of the contract (see Locke, 149, 221, 226-28, 240). “Their will, declared through its proper organ, is valid till revoked by their will …” (Thomas Jefferson in a letter to George Washington, February 4, 1792).

If the power of government is derived directly from the political will of the people, how could the government possibly be justified in deploying troops to disperse or silence public assemblies designed to do just that – express the will of the people? The Constitution that we military officers swear to support and defend “protects the right to peaceably assemble in public places” (Peltason, 213). The constitutive principles on which this nation was founded guarantee the right of the general population to voice its disagreement when its common conception of justice is violated. Throughout history, civil disobedience and public protest have often contributed to the pursuit of justice. From Biblical examples, such as Moses and Jesus, to more modern examples like Gandhi and Martin Luther King, Jr., these people, whom we regard as heroes, best represent the universal conscience of humankind (Coffin, 1). Where would the United States be without the right to assemble peaceably? We would live in a less just nation were it not for the abolitionists who defied the “Fugitive Slave Act” in the nineteenth century; were it not for the suffragettes and the labor leaders who engaged in illegal demonstrations, boycotts, and sit-ins in the early part of the twentieth century; and were it not for the civil rights demonstrators who broke segregationist laws during their struggle for social justice in the latter part of the twentieth century.

We owe it to future generations to uphold and maintain their right to be heard in the constantly emerging journey towards a better, more just United States. As John Rawls recognized, even under constitutional conditions that promote pure procedural justice, the procedure cannot guarantee that only just and effective legislation will be enacted (Rawls, 295). We need the likes of Rosa Parks, Martin Luther King, Jr., John Lewis, and many, many others who insisted, in the face of “the tyranny of the majority” (Tocqueville, 231), on being treated with dignity and equality and whose efforts led to the development of civil rights laws. The list of positive accomplishments from these heroes is extensive, and plenty of these political heroes are yet to come.

Although we have systematic political procedures through which to redress, in good faith, violations of our shared conception of justice, we must recognize that, when those legitimate appeals are denied or ignored, the majority invites justified resistance. So when leaders of a free nation such as ours feel compelled to hinder or suppress public expressions of conscience, it is a very serious step indeed. “[A]ny coercive practice … that constricts … the freedom of the citizenry, rather than expanding and securing it” (Reiman, 240), requires strong moral justification. After all, it is an historical fact that in the early twentieth century, “miners and [factory] workers [were] imprisoned merely for exercising their constitutional rights” (Coffin, 3). More importantly to those of us in uniform, it is a fact that thirteen college students protesting the Vietnam War were gunned down by National Guard troops in full public view on the campus of Kent State University in 1970. It is a fact that troops responding to civil unrest during the 1960s in major cities throughout our country did not always act with restraint and respect for those freely expressing their indignation in the face of racial prejudice. With these events making up part of the historical narrative of the United States, how could we, as citizens and military leaders, agree that there are still cases that warrant the deployment of troops against those who are freely assembling to express their public conscience?

The answer is “security.” When political demonstrations become violent, they lose their protection under First Amendment rights to “peaceably assemble.” They enter into a completely different category of political expression; they transform from nonviolent, political expressions, akin to civil disobedience, to violent acts whose political message is obscured by the threat of injury and destruction of property. The question of whether military forces should be used to quell civil disturbances in the U.S. is revealed in the tension between the government’s duty to provide security for the population and its duty to preserve liberty. When an assemblage becomes violent, it conflicts with natural rights to life and property. “If protesters attempt … to interfere with programs or to appropriate facilities for their own use” (Peltason, 217), the state has the obligation to disperse the participants and arrest those involved in criminal activities. When people who happen to live or work in the area where the protests are taking place are in danger of losing their lives or their property, the government is required to provide for their security. As John Stuart Mill recognized in On Liberty, “…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill, 9). The only real limits to the exercise of liberty emerge when such exercise violates the rights of others.

The primary reason social contract theorists believe people band together in civil society is their desire for security. Consequently, during instances of violent civil disturbance, protecting innocent people and their property becomes the primary duty of the government and takes precedence over the government’s duty to protect the protesters’ right to assemble. Those assembled relinquish their right to this particular form of political expression when they allow their means of address to become violent. When governmental authorities disperse a violent protest, the protesters’ rights are not being abrogated; instead, the rights of innocent bystanders are being enforced. The government’s primary intent in these instances is to protect people from violence. There will be ample, alternative channels of political expression to which the protesters may resort at some later juncture.

Practical Application via Just War Theory

Our civilian government traditionally uses the military to defend against external threats while using the domestic police primarily for defense against internal threats. Nevertheless, in certain situations, when the violence may be too intense or too vast for the local and state authorities to control, [4] these authorities are justified in requesting deployment of the military to reinforce their efforts to quell civil disturbances. Since the primary purpose of the government is to provide security for the population, the government may utilize all of its available resources to accomplish that purpose.

Unfortunately, providing security sometimes requires the use of force. When soldiers receive the mission of responding to internal threats, that is, when they find themselves functioning in domestic society as police, they must make a fundamental change in their approach to the use of force. As Tony Pfaff correctly points out, a moral “gap” exists between the way soldiers and police make calculations regarding the use of force.[5] To enhance mission accomplishment and force protection in combat, soldiers typically make force calculations by asking what the “maximum allowable” force would be in a particular situation. Conversely, to enhance their mission of protecting citizens, police ask themselves what the “minimum possible” force would be (Pfaff, 7). Consequently, soldiers functioning as police in domestic society require a fundamental shift in their approach to making force calculations.

The Law of War provides the legal framework soldiers follow when determining the appropriate amount of force to use in combat. However, the Law of War does not apply to peaceful, domestic military operations. We must develop some other language to assure us that force will further the legitimate ends for which it is employed (Kleinig, 101). Although Just War Theory (JWT) arose from the traditions that define military honor in combat, it has also evolved as a useful tool for reasoning about the justice of using force and when it is authorized (Johnson, 303). Just as JWT serves as a useful guideline to soldiers throughout the spectrum of organized violence, from conventional to guerrilla warfare, it can also provide a road map for gaining moral insight into domestic peacekeeping missions when the military acts as a police force. Not only is Just War Theory a guide to the conduct of war, it also “takes account of the connection between force and politics, establishing criteria for determining when the use of force for social goods is justified and when it is not, and setting limits beyond which the justified use of force ought not to go” (Johnson, 303). These limits of force apply not only to the statesman but also to the soldier as an individual moral agent.

Just War Theory has two separate and distinct branches, Jus ad Bellum, which deals with questions of whether it is justified to resort to force, and Jus in Bello, which deals with questions of how soldiers ought to use force. Normally, these two branches are logically separated into the purview of civilian authorities and the purview of soldiers, respectively. Politicians deal with questions of whether we ought to resort to military force and soldiers deal with questions of how to utilize that force once ordered by the civilian political leaders to do so.

Jus ad Bellum

Jus ad Bellum means literally justice of war. It deals with the question of whether governmental authorities ought to resort to force to protect society. When applied to a situation in which the threat is internal, the tenets of Jus ad Bellum can help civil authorities determine when resorting to military force may be appropriate in domestic society. Specifically, it can help answer the very serious question of whether to resort to military force in an effort to quell a civil disturbance. The use of troops against the populace of the United States could make the military seem to be the invading alien force, or, even worse, to be the personal weapon of a specific politician or political entity. Given the grave nature of using troops against our own countrymen, the governor’s or president’s decision to deploy troops should be made very carefully and deliberately. Five tenets of Jus ad Bellum can assist in their efforts to determine the moral implications of using military force in the domestic environment.

1. Proper Authority: This tenet stipulates that only supreme governmental leaders may declare war. It can be traced back at least to the Roman Empire but also comes from Aquinas’ assertion “that if one can seek redress from some higher authority, then one is not justified in resorting to violence” (Christopher, 55). With no common authority to which to appeal, independent states have the right to use violent means to defend their citizens against external threats. As I mentioned above, Social Contract Theory also obliges the state to protect its citizens from internal threats. According to Article 1, Section 8, Article II, Section 2, and Article IV, Section 4 of the Constitution, governors have the authority to mobilize the National Guard and the President of the United States has the authority to mobilize federal forces (Peltason, 386-9) in response to civil disturbances.

The authority to use federal troops against domestic disturbances is constrained by the Posse Comitatus Act (literally power of the county).[6] The Posse Comitatus Act (PCA) makes it a criminal offense to use the armed forces to execute civilian law, unless expressly authorized by the Constitution or by Congress (Solis).[7] However, there are exceptions to this limitation, most noteworthy of which is outlined in Title 10 of the U.S. Code, which specifically gives the president authority to use the military to disperse “unlawful assemblages” (10 USC 332). Along with this authority, come formal procedures requiring written orders from either the governor or the president for deploying troops against civil disturbances.

Unfortunately, an overzealous application of the PCA can hinder the military mission to quell civil disturbances, as evidenced by the Los Angeles riots in 1992 that followed the Rodney King verdict. In response to some mission requests that might have placed soldiers and Marines into law enforcement roles, the Joint Task Force Los Angeles (JTFLA) commander, Major General Marvin Covault, “provided mission acceptance criteria and required that every mission be revalidated daily” (Price, 195). The Forces Command and Sixth Army After Action Report (AAR) stated that it took upwards of three hours to screen missions for “appropriateness” before military units were permitted to respond (Price 196). “The consequence of this decision negate[d] the purpose and intent of deploying military forces to a riot area – to assist local law enforcement personnel in restoring order” (Price 195). Three hours is clearly unsatisfactory, given the fluidity of any civil disturbance environment. Once deployed by the president, military commanders should concentrate on the overall mission without getting bogged down by legal questions that could arise from the PCA.

Also under this tenet some theorists place the requirement that the sovereign publicly declare war. With the advent of rapid response weapons systems, stealth technology, and other advances, this requirement has recently lost some of its theoretical punch; however, in the case of civil disturbances, Title 10 of the US Code requires the president to “order the insurgents to disperse and retire peaceably to their abodes within a limited time” (10 USC 334). This requires the president to make a public proclamation ordering the participants to depart the area before he deploys federal troops to a civil disturbance site. This proclamation gives participants in a civil disturbance ample warning that their activities are criminal and, therefore, worthy of appropriate force.

2. Just Cause: In conventional warfare, “Just Cause” normally consists of a state’s response to a received injury, particularly in the form of defense against external aggression. Since the state is “a natural institution essential for man’s development, … [d]efense of the state is prima facie defense of an essential social institution” (O’Brien, 34). This recognition of the state and its associated institutions as “essential,” combined with my previous discussion of the requirement of governments to provide security under social contract theory, establishes the following as just causes for using force to contain or disperse an assembly of Americans: (1) responding to the emergence of violence or (2) responding to the disruption of civil order. Violent protests that disrupt public services, destroy property, or endanger the lives of the local population are civil disturbances that provide just cause for dispersing the assemblage. Peaceful demonstrations held in public areas capable of supporting such assemblages, e.g., public parks, open public areas, college campuses, etc. do not provide just cause for dispersing the assemblage. Public officials should be extremely reluctant to deploy troops against free American citizens and should do so only in the most extreme circumstances.

3. Last Resort: Because war is so horrible and amounts to the condemnation of a certain percentage of a country’s population to death, before resorting to war, all peaceful alternatives should be exhausted. Resorting to force to quell civil disturbances also carries serious moral ramifications that require the exploration of other alternatives: (1) Every effort should be made to address the concerns of those assembled. Their sense of indignation may be a legitimate response to a violation of the common conception of justice. If they feel like the appropriate civil authorities are hearing their outrage, the protesters may feel like they have accomplished what they set out to do and disperse. (2) The protesters should be notified that their assemblage is a violation of the law and be given the specific reason(s) why it is a violation. (3) Finally, the local and state governmental officials must allow the police to do their job of preserving domestic order before deploying troops into a civil disturbance. Using police is always preferable to resorting to the military whose primary mission is to defend against external threats.

4. Proportionality of ends: In warfare, “the probable good expected to result from success is weighed against the probable evil that the war will cause” (O’Brien, 34-5). Civil authorities should ask themselves whether the objectives of dispersing a civil disturbance are proportional to the costs of the deployment, in terms of lives, the public prestige of the military, political fallout, the government’s image as the purveyor of justice, etc.? The deployment of troops could become an ugly spectacle of military arrogance and governmental violations of rights and, as such, may not be the most effective way to protect security and restore civil order.

5. Just Intent: This tenet limits the civilian political leadership “to the pursuit of the avowed just cause” (O’Brien, 36). The only just intent of a military operation aimed at quelling a civil disturbance is to restrain violence and restore civil order and security. As I mentioned above, the only legitimate reason to interfere with the right to assemble is to protect the rights of innocent civilians in the assembly area. The civilian political leadership should ask itself whether it is trying to secure the peace, restore the area to normalcy, and protect the lives and property of the local population, or, whether governmental authorities are simply using military means to try to restrain voices of discontent that are protesting them or their policies. Does the civilian command authority have an unjustified, political reason for wanting to disperse this political rally? This is an extremely important question that needs to be answered honestly before unleashing the military on political demonstrators. The state or national command authority must maintain objectivity and impartiality to develop a fair and just assessment of the situation. Is the assembly actually violent? Does it disrupt civil order? Can police forces simply contain it without attempting to disperse it? Are troops required to support the efforts of the local law enforcement authorities? If the chief executive has any intent other than eliminating violence and restoring normalcy to the area, then he is probably acting immorally by violating the right of the protesters to peaceably assemble. Even worse, he is violating the Constitutional principle that guarantees people who perceive that they are suffering from injustice a public venue for addressing that injustice.

An example of wrongful intent was Ohio Governor Rhodes’ rationale for deploying the National Guard on to the Kent State University campus in 1970. The deployment of troops was not in support of campus police forces; the National Guard was to serve as the sole law-enforcement entity on campus. He stated that he would “eradicate the problem” of student unrest on the Kent State University campus (Davies, 22). His intent was not an answer to a request from President White, the president of Kent State University, to send troops to assist campus police. His intent was not to disperse a violent protest that endangered the lives and property of the local population. His intent was not to contain student unrest on campus so that it would not spill into the surrounding community. His intent was to eliminate the anti-war demonstrations that were common on many college campuses throughout Ohio in 1970. His intent was not in accordance with JWT and was, consequently, an unjustified and reckless use of military force against unarmed Americans freely exercising their right to assemble peaceably.

A good example of just intent was the use of 15,530 active Army troops to contain the violence that erupted in Washington, DC after Dr. Martin Luther King, Jr. had been assassinated in Memphis on April 4, 1968. What started as a peaceful, spontaneous memorial march for Dr. King, ended the first day with the deployment of a 3000-man police civil disturbance unit, 1,272 arrests, eight fatalities, and 350 injuries (Price, 80). Only after the first day of violence, when it was clear to the Mayor of Washington, DC that his police force was overextended, did he request federal troops, and only for the purpose of controlling the violence.

Jus in Bello

Jus in Bello means literally “justice in war.” The two tenets of Jus in Bello, one dealing with how much force can be morally used under what circumstances and one dealing with whom force may be used against, serve as a guide to help soldiers answer difficult moral questions concerning the use of force. These are never easy issues to sort out, even in cases of conventional warfare. They become especially uncertain when soldiers serve as domestic police against internal threats.

As I mentioned above, states exist to defend the rights of their members. All parties involved in a demonstration, those participating in the demonstration and those who live or work in the surrounding area, retain their rights, and soldiers are obligated to protect those rights. On one side are the protesting individuals, men and women worthy of the presumption of innocence who retain rights that may be endangered by the military mission.[8] On the other side are bystanders, locals, business owners, and others who are not directly involved in the demonstration and whose rights to life and property the soldiers have come to protect. Military units that attempt to control a civil disturbance must retain their impartiality and remain committed to defending the rights of both groups. This commitment implies that soldiers should keep their use of force to the absolute minimum required to accomplish the mission and restore civil order to the area. Soldiers on a civil disturbance mission should view themselves primarily as social peacekeepers, for whom recourse to force constitutes a last, regrettable option. As I mentioned above, soldiers must revise their force calculations from the “maximum allowable” to the “minimum possible” for the circumstances (Pfaff, 6). The use of minimum force is the best way to protect the rights of all people involved.

The following discussion of the second branch of Just War Theory, the branch that is the purview of soldiers, will help illuminate the difficult moral calculations required when executing a civil disturbance mission:

Proportionality of Means: The tenet of proportionality allows soldiers to use force that is proportionate to the seriousness of the harm threatened by the enemy, especially in the presence of noncombatants. In civil disturbance missions, the doctrine of proportionality is especially important, due to the ubiquitous presence of civilians in the disturbance area. The “principle of minimum force” (FM19-15, Ch. 1) is the general rule soldiers should follow during these missions. This rule says that soldiers should use the least intrusive and least harmful means compatible with the accomplishment of their mission.

Any force used against American citizens engaged in political expression is problematic. Deadly force is especially so since it is an irrevocable and catastrophic invasion of an individual’s most basic rights. In this section, I will first discuss in what instances the use of deadly force may be justified during civil disturbance missions, and then I will mention some of the nonlethal force options soldiers have at their discretion for these missions.

In its most basic form, using deadly force for the purpose of quelling a civil disturbance amounts to summarily executing people on the spot and depriving them of “representation or trial for an offense that is unlikely to carry a capital penalty” (Kleinig, 107). A person’s right to life is not diminished by his participation in a political rally, nor even by destructive acts he may perpetrate against property as a member of a mob. In the judicial traditions of the United States, it is normally up to judges and juries to decide who should receive capital punishment and under what circumstances. Since soldiers on civil disturbance missions are essentially performing a police mission to protect citizens, they share the same constraints on the use of deadly force as domestic police. Soldiers must refrain from using deadly force, except when their lives, or the lives of innocent civilians, are directly threatened.

Social contract theory provides a good basis for explaining the justification for the use of deadly force. As Locke puts it, everyone has the right to resort to proportional force to defend his own individual rights (Locke, 11-12). However, for each of us to defend ourselves on our own would be so distracting and time-consuming that we would be unable to progress as a society. So rational, freedom-loving beings, such as ourselves, would naturally transfer their freedom to retaliate to a public agency that can use force in the name of the group in order to promote self-benefit for all (Reiman, 238-9). Of course, individuals do not give up their retaliatory rights entirely. In cases of immediate danger, we all retain the right of self-defense. But in cases where public officials, i.e., police or soldiers, are available to respond, individuals, in effect, loan (Reiman, 241) their retaliatory rights to governmental authorities in the interest of their own protection.

However, public officials are accountable to the public for their use of force. Soldiers in a domestic scenario can only use the amount of force that would be appropriate for any of us to use, as individuals. Since it is the citizen’s natural right to retaliate that has been transferred to soldiers, soldiers can only act with the amount of force that citizens would be entitled to use in identical circumstances. In addition, soldiers may use only the amount of force that we citizens would recognize as enhancing our security. Too much force endangers the freedom and security of the citizenry, and hence, is illegitimate. Legitimate force “is that to which it would be rational for all to agree” (Reiman, 241). For example, no one would agree to being gunned down simply for participating in a public protest; no one would agree to having his children targeted for participating in a political rally on a college campus. Rational people would agree only to the use of deadly force when people’s lives are immediately and clearly threatened. “The power [of deadly force] is so considerable, and the consequences of mistake or abuse so serious, that any discretion [soldiers] are given should be quite limited” (Kleinig, 109). Specifically, soldiers serving in a police role may use deadly force in cases of self-defense, since they, like all individuals in the society, retain this right, and to protect the lives of private citizens, since that is the purpose for which they were contracted to exist (Kleinig, 110).

The limitation of soldiers’ force options when serving as police in a domestic environment requires a completely different moral approach to the mission. If we are to maintain any hope of limiting a soldier’s use of deadly force and thereby, producing a fair and just response to civil disturbance missions, realistic training accompanied by strict command and control (C&C) of soldiers is crucial. Without these two elements, the difference between an armed mob and a military unit is minimal. When faced with an emotionally charged domestic situation, unit discipline can break down, causing soldiers to respond emotionally and violently.

Control measures specifying precise circumstances when deadly force may be used are essential to successful civil disturbance missions. FM 19-15, Civil Disturbances and National Disasters, does a good job of specifying proper troop behavior. This regulation provides specific control measures for carrying weapons, the use of ammunition, the use of deadly force, etc. Unit SOPs should be developed using this regulatory guidance. In addition, Rules of Engagement (ROEs) incorporating the minimum force principle, normally issued by the state or federal command authorities, should clearly identify cases when deadly force may be used. All control measures should be promulgated to the lowest ranking soldier.

Command is a much trickier issue than control, since “civil disturbance operations may not have a single commander with the required authority to direct all control forces” (FM 19-15, Ch. 3). The control force is normally an ad hoc task force consisting of joint military forces in support of civilian local and state police forces. However, military and civilian forces operate independently of each other. The best operational unity normally achievable under these circumstances is some sort of collocated operational center from which both independent commands can coordinate their operations. To complicate the command issue, the Los Angeles (LA) riots in 1992 showed us that the traditional image of a fairly centralized civil disturbance area might be replaced by numerous, small disturbances flaring up throughout a metropolitan area. Responding to this fluid environment requires small units with decentralized C&C, and it reduces the decision-making level from General Officers to Company Grades.

A perfect example of poor command and control (C&C) was the Ohio Army National Guard’s (OANG) response to the anti-war demonstrations at Kent State University in 1970. The OANG deployed 850 troops to the campus where approximately 2000 students were demonstrating. The OANG was under arming order #6, which was a gross violation of the guidelines of Army civil disturbance doctrine found in FM 19-15 (Ch. 6). Each OANG soldier on campus had a fully loaded magazine with a round chambered in his weapon. Each had a fixed bayonet with his weapon at port arms. This arming level greatly increases the likelihood that a soldier will resort to lethal force. Each soldier also wore his chemical protective mask, which inhibited vocal orders by restricting speech, making tight C&C nearly impossible. Moreover, protective masks also provided the anonymity that contributes to the likelihood of “mob psychology.” When soldiers think of themselves no longer as individuals but as faceless members of the unit, they may shift their moral agency to the group (in this case the uncontrolled military unit). This shift of moral agency is common in unruly mobs in which people who would not normally engage in criminal activity readily do so as part of an anonymous group. When the shooting started at Kent State, 28 soldiers fired 61 rounds of ammunition, murdering four students and wounding nine.

The potential for decentralized command accompanied by the crucial need for tight control of soldiers’ weapons in the civil disturbance environment demands effective training. The more that mission constrictions limit the force options available, the more difficult and demanding the mission can be for soldiers. Soldiers must be trained how to recognize and correctly respond to threats in a peaceful environment. “As long as [soldiers] … are entrusted with police powers, they will have to judge when the conditions obtain that meet the criteria for their use” (Reiman, 243). Soldiers will often be called upon to use their discretion to distinguish “between situations in which a ‘forceful’ presence is necessary from those in which a less adversarial approach should be used” (Kleinig, 101). In the span of a few minutes, a crowd’s demeanor can change from peaceful to violent. The ranking officer on the scene must discern the most appropriate way to respond to rapidly escalating violence. Tactics designed to intimidate some people may motivate others and even exacerbate an already volatile situation. Nevertheless, if soldiers maintain the image of themselves as “social peacekeepers,” they will be less likely to exceed the minimum required use of force. Clearly written and effectively promulgated SOPs and Rules of Engagement (ROEs) should provide guidance for typical situations and how to respond using “the principle of minimum force.” These guidelines coupled with effective civil disturbance training will provide soldiers with the requirements to successfully exercise discretion during domestic police missions.

However, the US Army no longer trains large numbers of troops to perform civil disturbance missions. The mission is rarely included on the Mission Essential Task List (METL) of either National Guard or Active Component units who would likely be deployed on such missions. In the absence of regular training, using troops in a peaceful environment against US citizens is ineffective at best and could be catastrophic.

In Los Angeles, after the Rodney King verdict was announced in April of 1992, the deployment of both the CAANG and the active component forces (7^th Infantry Division [Light] and the First Marine Expeditionary Force) were delayed by poor training. No prior coordination between the CAANG and local police had taken place. No augmentation plans existed, and no rehearsals or training events between the CAANG and LA police had ever taken place. After arriving in LA, federal troops did not deploy on to LA streets for 72 hours so that they could take a three-day crash course on riot control (Price, 179). This lack of training and planning caused delays that cost numerous lives and millions of dollars in looted and destroyed property. During the LA riots of 1992, 59 people lost their lives, 18 of whom were killed during the federal Army’s 72-hour refresher course (Price, 179).

Proper equipment is a further precaution military units should take to reduce perceived deadly threats during civil disturbance missions. Soldiers carrying body shields and wearing face shields, helmets, flack vests, shin guards, and other body armor will be much less likely to perceive projectiles, such as stones, jars, and bottles thrown from the assemblage as life-threatening. However, poorly equipped soldiers may perceive such projectiles as life-threatening and respond hastily with deadly force. While most National Guard units and some active component MP units may normally stock riot control gear, active component infantry units that are traditionally deployed to control large-scale civil disturbances, do not. Surprisingly, the California Army National Guard (CAANG) deployed to the 1992 riots in LA “without bullets, batons, protective shields, or the training required to fulfill their mission” (Price, 170).

Nonlethal weapons, such as dogs, clubs, and riot control chemical agents can assist the soldier in carrying out a civil defense mission. New weapons technologies will prove even more helpful as they become available. Some of the new weapons that may soon be fielded include electromagnetic weapons, calmative agents, sticky foam, acoustical weapons, and sonic bullets (Cook, 3-13). Improved access to nonlethal weapons enhances the chances that soldiers will accomplish the civil disturbance mission successfully and honorably.

Discrimination: This tenet of Jus in Bello simply states that, in warfare, soldiers should discriminate between combatants and noncombatants. Only combatants represent legitimate targets of force; force may not be used against noncombatants. Even in battle, however, with troops surrendering or being wounded, the combatant/noncombatant distinction is often unclear. Since there are no combatants in a civil disturbance scenario, it is impossible to make this distinction. However, this fact does not imply that Just War Theory is not useful for determining the moral application of force during a domestic police mission.

A civil disturbance is not a war in which it is permissible to use the maximum force against the enemy. Instead, a civil disturbance is a temporary disruption of the peace that requires a response that preserves peace without destroying it. Since a civil disturbance is not a war, participants in a civil disturbance should not be viewed as enemies, per se. They are Americans who, while participating in an acceptable process of political expression, have allowed themselves to become embroiled in a violent disturbance. In so doing, they do not become enemies of the state, but become potential lawbreakers or even alleged criminals who retain their presumption of innocence and their right to due process. None of them has given up his right to peaceful assembly. They are simply not peacefully assembling anymore, and, as a result, they threaten civil peace and deserve the attention of the government in its duty to provide security.

With this in mind, who, exactly, is a legitimate target of deadly force? In a fluid, constantly changing civil disturbance environment under the ambit of the principle of minimum force, there can be only one answer to this question: The only legitimate target of deadly force is a person inflicting or threatening to inflict immediate, serious bodily harm. Rock throwers, looters, curfew violators, vandals, and others engaged in similar criminal activities do not set aside their right to life or to due process, since their activities do not pose a significant risk of death. On those individuals, troops should use nonlethal means to force them to stop their activities and to detain them (if possible) for transfer to civilian police forces and eventual trial. Deadly force must be used only to prevent extreme criminal activities that pose a substantial risk of death or serious bodily harm, such as snipers or arsonists. Even in these cases, soldiers must use discrimination to target only the sniper or the arsonist. An innocent person fleeing a burning building could easily be mistaken as an arsonist. If doubt surrounds a potential perpetrator, then that person is presumed innocent and afforded the right to due process.

Of course, soldiers, like police, may be tempted to rely on inappropriate methods of discrimination while serving as members of a control force. Specifically, they may succumb to their human prejudices and discriminate on the basis of irrelevant physical appearances or political inclinations. In this section, I warn against the potential negative influence racial and political discrimination can have on a soldier’s ability to discriminate between legitimate targets and innocent people in a crowd.

Racial Discrimination: Police officers have proven that race is a factor when they make split-second decisions regarding the use of deadly force. Statistically, “[m]embers of minority groups, blacks in particular, are shot or shot at disproportionately to their numbers in the population …”(Kleinig, 108). Using racial characteristics as a method for separating innocent from criminal will always lead to rights violations and immoral outcomes. I introduced this paper with an historical example of what can happen when a racially stratified and lethally armed military unit descends upon a racially homogeneous group of demonstrators. The Detroit Riots of 1967 illustrate that the mostly white Michigan Army National Guard (MANG) may have used lethal force more readily in black neighborhoods in that racially charged environment than they would have in white neighborhoods. As I mentioned, during their seven-day deployment in Detroit, the MANG expended 156,391 rounds of ammunition (Scheips, 188). This sort of evidence implies that race was probably a determining factor in calculations regarding the use of force during the Detroit Riots of 1967. It also represents an intolerable example of racial discrimination by troops on a civil disturbance mission.

As this example illustrates, racial discrimination can lead soldiers in the civil disturbance environment to violate the rights of innocent people. Soldiers who rely on racial discrimination to sort out the guilty from the innocent will violate human rights by harming innocent people and will contribute to an immoral outcome for the control mission. Before deployment, soldiers must confront the possibility that they may be inclined to resort to racial discrimination in crowd control circumstances so that they can suppress that inclination if it emerges when they are carrying a loaded weapon. The best time to rectify this potential problem, of course, is during training for the mission.

Just as disconcerting is a soldier’s potential for political discrimination. In many cases, members of the military who deploy to quell a civil disturbance stand in political opposition to the protesters. Serious political opposition could prevent a soldier from fully recognizing a protester’s rights, and therefore, could result in severe human rights abuses. As Michael Walzer reminds us, “The structure of rights stands independently of political allegiance; it establishes obligations that are owed, so to speak, to humanity itself and to particular human beings and not merely to …” (Walzer, 158) those whose political beliefs soldiers share. No matter how abhorrent the political message that protesters are trying to send, soldiers have an obligation to abide by the minimum force rule when disbursing a civil disturbance. Free political expression is a fundamental right all Americans share; even when that expression becomes violent, soldiers should be careful to preserve the protester’s human rights as much as possible.

Augmenting this concern is the recent, apparent political shift of the military. During the Clinton years, members of the military appear to have become more and more politically stratified. This political stratification could result in unjust conditions if members of the military willingly infringe on the rights of protesters with whom they disagree while protecting the rights of protesters with whom they agree. This potential for injustice could exacerbate a civil disturbance and underscores the necessity for the military to maintain political impartiality. A soldier’s exercise of discretion could be influenced by his political views (Kleinig, 196). Since political views are often strongly held and can form the basis of discrimination, the more partisan the soldier is, the greater the likelihood he will discriminate on the basis of political inclination. When the soldier sees his countrymen as the “enemy” simply because they hold differing political views, public confidence in the soldier’s ability to carry out his domestic mission is justifiably undermined. The potential for political bias should reinforce the importance of our professional military’s ethic of placing limits on political activity.

Kent State serves as an example of what can happen during a political clash between soldiers and civilians. The 850 armed Ohio Army National Guard (OANG) soldiers represented the military establishment that was the very target of the student protests. Although the OANG soldiers were generally the same age as the college students[9] with whom they clashed, the political gulf between the two groups was enormous. National Guard troops represented the local community and its conservative, pro-military political inclinations, while the college students represented the anti-war movement. I have already discussed the tragic events that transpired that spring day in 1970. The question no one seems to be able to answer completely is why? Why would OANG troops, who are the sons of the local community, open fire on unarmed college students? Political discrimination goes a long way towards answering that question. In 1970, our nation was engulfed in a war where political ideologies clashed, a war where holding specific political beliefs made you the enemy. That war came home to Ohio in May of 1970. The anti-military student protesters became the “enemy.” One lesson soldiers were learning in Vietnam was that killing is a dependable method of nullifying a person’s political beliefs.

Recommendations

At the grass roots level, any effort by the government to eradicate the sources of civil unrest can be helpful in precluding the need for soldiers to engage in this sort of domestic police mission. As LBJ said in the 1960’s, “The only genuine, long-range solution for what has happened lies in an attack—mounted at every level—upon the conditions that breed despair and violence” (Price, 211). The police attack on Rodney King that led to the riots in LA in 1992 is a perfect example of what we, as a society, should strive to avoid.

Since we have the doctrine, we should train the troops. National Guard units undergo a requisite number of hours of civil disturbance training each year (Price, 204). Like the Guard, active component units currently designated as Division Ready Brigades (DRBs) should undergo similar civil disturbance training during their cyclical duty (Price, 204). This training should include specific guidance on the use of deadly force and provide a firm understanding of the principle of minimum force. Whatever edge the federal civil disturbance apparatus gained during the late 1960s and early 1970s is gone now (Price, 202). As the LA riots of 1992 made clear, we would be hard-pressed to respond effectively to a civil disturbance today.

The DRBs should also maintain access to appropriate riot control equipment. The civil disturbance mission is much less daunting to a soldier wearing the appropriate protective gear than it is to one without it. Spur-of-the-moment attempts to acquire this equipment when units are deployed may severely delay the mission, and delays usually translate into lost lives and damaged property.

It also would be helpful for the military to accelerate its acquisition of nonlethal weapons. Currently, the Army’s inventory of nonlethal weapons is limited to clubs, dogs, and riot control chemical agents. Future technologies that might someday enhance flexibility will be helpful in reducing the soldier’s reliance on lethal means of crowd control.

Finally, we in the military should accept the fact that we do not get to choose what missions we receive. We must be able to respond to the entire mission spectrum from all-out warfare in another country to the augmentation of police in a domestic, peacekeeping scenario. This response not only requires proper training and proper equipment, it also requires a clear understanding of the appropriate use of force in every possible circumstance.

Conclusion

Clearly, public political expression is a Constitutional right worth protecting in this country. People who suffer injustice have the moral right to reject it. As Martin Luther King, Jr. pointed out, “[F]reedom is never voluntarily given by the oppressor; it must be demanded by the oppressed” (King, 283). Since political authority originates in the people, citizens of a democracy should be allowed, or even encouraged, to express themselves politically. When that political expression degrades into a civil disturbance, the onus is on our civilian leaders to verify that they have the moral authority required to deploy armed military forces to disperse it. When given the civil disturbance mission, our military forces must possess the ability to morally and effectively carry it out. I have demonstrated above that Just War Theory can go a long way towards assisting statesmen and soldiers in their efforts to sort out the correct force responses in civil disturbance situations. As we have seen in the past, failure to perform civil disturbance missions justly and effectively may cost property, lives, and, even worse, may leave scars on our nation that will not heal.

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NOTES