America’s military is uniquely able to save lives and restore order in situations that overwhelm civilian institutions. Yet the U.S. military has also been called in for more coercive duties at home: breaking strikes, quelling riots, and enforcing federal laws in the face of state resistance. It has spied on and overseen the imprisonment of American citizens during wars, Red scares, and other emergencies. And while the fears of the Republic’s founders that a strong army could undermine democracy have not been realized, history is replete with reasons for concern.
At a time when the military’s domestic footprint is expanding, William C. Banks and Stephen Dycus offer a thorough analysis of the relevant law and history to challenge all the stakeholders—within and outside the military—to critically assess the past in order to establish best practices for the crises to come.
- William C. Banks is Board of Advisers Distinguished Professor, Syracuse University College of Law; Professor of Public Administration and International Affairs, SU Maxwell School of Citizenship and Public Affairs; and Director, INSCT
- Stephen Dycus is a Professor at Vermont Law School
- The Military at Home in America
- The Origins
- Soldiers as Peacekeepers, Soldiers as Cops
- Soldiers as Jailors
- Soldiers as Judges
- Soldiers as Investigators
- Soldiers in Charge
- Soldiers at Home in the Age of Terrorism
- The Military in Twenty-First-Century America: Leaning Forward
“Professors Banks and Dycus have written the definitive account of the military’s role within the United States. They show that from the time of George Washington’s presidency through today’s war on terror, the military has served in domestic capacities as peacekeepers, jailors, judges, and investigators. Nuanced and beautifully written, this book will frame all future discussions about military actions on the home front.”—Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine
“It is likely that America will soon experience yet another disaster precipitated by terrorists, or a cyber-attack on decaying infrastructure, or an act of nature that will require rapid action to save lives and maintain order. To react in time, senior political authority will likely reach for the military. The decision to use the military to perform what are civil functions in normal times brings into sharp relief the tension between public safety and the need to ‘protect the integrity of our democratic institutions.’ In Soldiers on the Home Front, William C. Banks and Stephen Dycus examine this tension, giving readers a great deal to think about.”—General Montgomery C. Meigs, U.S. Army (ret.), University of Texas at Austin
“In this time of increasing concern about terrorism and other borderless threats, Banks and Dycus have contributed a valuable and timely review of the evolving role of the military in domestic security. It is required reading for serious students of national security and responsible citizens alike.”—Elizabeth Rindskopf Parker, former General Counsel of the National Security Agency and the Central Intelligence Agency
Lawfare: The Military at Home
(July 20, 2016 | By Kevin Cieply) Soldiers on the Home Front explores the potential threat the military poses to our civil liberties and rule of law when the military operates in our homeland. The authors expressly recognize and honor our military members for their service in securing and safeguarding our nation throughout its history and today. With numerous historical examples, the authors readily acknowledge that throughout history the military has typically respected their proper role and stayed out of the country’s civil affairs. And when the military has stepped in, it has almost always performed its unique role with distinction. But occasionally the military has intruded when not needed, almost always at the behest of overeager, even reckless, civilian leaders. When this has occurred it has invariably involved a significant loss of liberty for our society. The authors quote Antonio in Shakespeare’s Merchant of Venice to capture the contemporary relevance of their book: “what’s past is prologue.”
The book begins, after a brief introduction, with the Redcoats marching “bayonets fixed—into the City of Boston.” After setting the initial scene of the Boston Massacre, the book quickly turns even further back in time, to our English origins, to lay the foundations of our nation’s most treasured and basic concepts, such as the due process as opposed to martial law, the principal of necessity, the use and limitations of a militia, the necessity and yet wariness of establishing a standing army, the need to subordinate the military to civilian rule, as well as the struggle of power between the legislative and executive branches over control of and proper use of our military.
The chapter covering our nation’s origins provides an effective primer on how the colonists settled America and the framers crafted our Constitution. The authors efficiently demonstrate our country’s initial attempts to strike a proper balance of power that would enable the executive to effectively use the military, but with constraints. The chapter takes the reader through the sequence of events that fueled the rebellion, gave birth to our nation, and framed our Constitution. It ends by explaining the framers’ intent as to the role of the standing federal army, state militias, and the overall division of authority between the federal and state governments. From the Magna Carta through the Boston Massacre to the Philadelphia Convention, the chapter is quick and engaging. By the end, the reader has a refreshed and deepened sense of the core concepts of a representative democracy, security for our country, and individual liberty for our citizens, which form the analytical framework the authors use throughout the book.
The book is then divided into chapters explaining how our nation, throughout its history, has used the military as peacekeepers, cops, jailors, judges, investigators—even as rulers. The chapter titles alone, and certainly taken together, stir concern. Inside each chapter lies historical accounts of the most significant and relevant instances of our military being used to control our civil affairs. The chapters are packed with examples. Some examples were clearly appropriate uses of military force, others obviously not. But it is the concentration of the examples, coupled with an analysis as to how those examples fare under our laws, that makes the book so valuable.
The most extensive and legitimate use of our military in civil affairs, as demonstrated in Chapter 3, has been as Peacekeepers and Cops, categories that include the provision of disaster relief. Chapter 3 begins by fixing the general boundaries envisioned by the Framers—that the government would, at times, use the military to keep the peace and police civil society—but using the military in this fashion was to be reserved for extraordinary times, when the rule of law or the government as a whole was threatened. Yet, whether for political compromise, or intentionally building in flexibility for an unpredictable future, or both, the Framers did not provide comprehensive and unambiguous language about the military’s proper role domestically in the Constitution. Indeed, the authors describe the Framers language as “blurred” and “cryptic.”
Chapter 3 explains how the Second Congress attempted to flesh-out some of that cryptic language. Invoking its explicit power under the Constitution to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” Congress passed the Calling Forth Act of 1792. It explicitly delegated to the President the power to actually call-up the Militia into federal service in times of Invasion, threat of Invasion, by foreign powers or Indian Tribes, and in times of Insurrection. The Calling Forth Act, also known as the 1792 Militia Act, was a broad and relatively unrestrained delegation of power to the President to respond to invasions and insurrections. On a much more limited basis, the Second Congress also delegated to the President the authority to call up the militia to “execute the Laws of the Union.”
President Washington used this newly gained authority in response to the Whiskey Rebellion in 1794. As required under the Calling Forth Act, Washington obtained certification from the judiciary that there was a rebellious force too powerful for ordinary judicial proceedings to handle and that those forces were obstructing federal laws. He also, as required, issued an order for the insurgents to disperse and cease their unlawful acts of preventing the federal government from enforcing an excise tax on liquors and stills. When his order was not heeded, Washington called up over 10,000 militiamen from four states, employing them to crush the movement in Western Pennsylvania.
The authors point out that the unrest was “hardly” a rebellion or insurrection, and that the Pennsylvania Governor, at the time, described the law-breakers as no more than “rioters.” They conclude that the Whiskey Rebellion was a “problematic precedent” … MORE
Secrecy News: The Domestic Role of the American Military
(Jan. 6, 2016 | By Steven Aftergood) The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.
A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book “Soldiers on the Home Front: The Domestic Role of the American Military” by William C. Banks and Stephen Dycus (Harvard University Press, 2016).
The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution “knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”
And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.
“In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters.”
The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law– each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.
One of the surprising themes that emerges from “Soldiers on the Home Front” is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:
“Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene.” (p. 116)
“Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial.” (p. 167)
“The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so.” (p. 211)
“Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process.” (p. 249)
“The rules, in other words, are a mess.” (p. 263)
More fundamentally, “Soldiers on the Home Front” reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.
Tulsa World: Soldiers on the Home Front
(Jan. 17, 2016 | By Professor Glenn C. Altschuler, Cornell University) Mindful of the disputes that led them to seek independence from England, the framers of the United States Constitution tried to balance widespread fears of a standing army with a need to protect American citizens from external and internal threats. And so, although it does not mention an army, the Constitution gives the national government the power to protect the states against invasion and “domestic violence” and authorizes Congress to call out the militia to suppress insurrections “and execute the laws of the nation.”
The language of these provisions, William Banks (a professor of law and public policy at Syracuse University) and Stephen Dycus (a professor at Vermont Law School) point out, are remarkable for their economy — and their vagueness. In “Soldiers on the Home Front,” Banks and Dycus survey the domestic role of the military throughout American history. Their book (the first to systematically address this topic) is informative, judicious and, in the aftermath of 9/11 attacks, timely.
In the two centuries since the Constitution was ratified, Banks and Dycus indicate, the military has been asked to perform a wide range of domestic duties, some of them “with a distinctly political purpose.” Soldiers were deployed to return fugitive slaves in the 1850s and protect newly emancipated slaves in the 1860s; break strikes; intern Japanese-Americans during World War II; integrate southern schools; control race riots and suppress anti-Vietnam War protests; help communities recover from hurricanes, floods, and earthquakes; enforce drug laws; gather domestic intelligence; imprison and try terrorist suspects. Despite several tragic exceptions, the authors assert, soldiers and their commanders have normally “exercised consummate professionalism and appropriate respect for civilian authority.” And a few statutes, most notably the Posse Comitatus Act of 1878, have placed some limits on domestic military actions.
That said, however, Banks and Dycus are concerned that the courts, the Congress and the president have often given the military powers that compromise the fundamental liberties guaranteed in the Constitution and the Bill of Rights, including habeas corpus, free speech, privacy and due process of law, as well as the separation of powers. They recommend that Congress lay out the military’s domestic emergence powers with greater clarity, retaining “the great American tradition of avoiding the involvement of troops in civilian affairs except in cases of urgent necessity, when no viable alternative exists.”
It has often been said that the United States Constitution is not a suicide pact. And, alas, the potential threats to our nation, including chemical warfare and cyberattacks, are all too real. They may well require our armed forces to play an active role in prevention, as well as recovery. Drafted in an atmosphere of heightened fear and anxiety, Banks and Dycus demonstrate, our current laws and practices “codify ambiguities” that at times upset the delicate balance between freedom and order. Yet even in these “exigent circumstances” and in a field “full of perplexity,” the authors remind us, well-grounded — and transparent — “rules for responding to emergencies may offer the flexibility needed to keep us safe and free” … MORE
Syracuse Magazine: Review of Soldiers on the Home Front
(Spring 2016 | By Martin Walls) In 1807, former Vice President Aaron Burr was arrested in Mississippi Territory by troops mobilized by President Thomas Jefferson. Burr was accused of leading a conspiracy to annex part of Louisiana Territory, attack Spanish-held land, and create his own fiefdom. Burr was acquitted of treason, and his conspiracy would have been just another strange episode in the life of this outlaw statesman, had it not led to 1807 legislation which expanded the president’s ability to “call forth” “such part of the land or naval forces of the United States, as shall be judged necessary” to suppress insurrection or enforce the laws. That act has proven durable. Along with the 1878 Posse Comitatus Act—which restricts a president’s ability to use the military to enforce laws—the early 19th century legislation continues to define how and when federal troops can be deployed on home soil.
“The Insurrection Act has survived because it’s both an authorization for the president to use the military at home and a set of conditions under which they can be used. It’s a core protection against military over-reach,” says College of Law Interim Dean William C. Banks, co-author with Vermont Law School professor Stephen Dycus of Soldiers on the Home Front: The Domestic Role of the American Military (Harvard University Press, 2016). “The types of military over-reach we fear today aren’t the same as those in the 19th century, but the degree of caution is. We no longer worry that the military will willy-nilly enter a city and start enforcing federal laws. Today, we fear intelligence-gathering and other technological powers that might intrude into our lives.”
Although the republic’s founders were concerned a strong army could undermine democracy, Banks describes citizens’ subsequent attitude toward the domestic use of troops as one of “cautious embrace.” After all, America’s powerful military is uniquely able to save lives and restore order in situations that overwhelm civilian institutions. Yet the military also has been used to break strikes, quell riots, and spy on and imprison American citizens during wartime. “There’s appreciation for what the military can do,” explains Banks, “as well as an equal amount of anxiety that excesses are possible, most likely at the direction of civilian leaders.”
The book’s fascinating anecdotes illustrate many military successes, failures, and near disasters on the home front. One notable success was during the Arkansas and Mississippi school desegregation crises. “Those situations were incredibly tense, but the troops handled them with great professionalism and skill,” Banks says. However, Banks explains that during the 1992 Los Angeles Riots—when President George H.W. Bush sent in federal troops—military involvement only confused matters. In this case, the Army general in charge refused to let his soldiers assist in enforcing the law, believing incorrectly that he would be violating legislative restrictions on military involvement in law enforcement.
Nevertheless, Banks and Dycus contemplate that the U.S. military’s domestic functions will expand in the 21st century, especially if large-scale catastrophes stretch disaster planning, federal agencies, and state personnel to their limits. Since 9/11—an unpredictable “black swan” event that required military assistance—laws and directives have changed rapidly as domestic threats from terror attacks, extreme weather, and pandemics mount.
It’s time, say the authors, to clarify the military’s homeland security role, in order to establish clear lines of authority, safeguard civil liberties, and protect democratic institutions and traditions. “We’d like to see more detail about what the military should do under varying circumstances,” Banks says. “That doesn’t mean we need new laws so much as we need military orders that are transparent and widely understood. The challenge for the military, after all, is to coordinate well with others inside and outside government, whether it’s commanders working with civilian agencies or active duty soldiers working with state members of the National Guard.”
Pacific Standard: Domestic Overlords—The 250-Year Precedent for Deploying the United States Military to Police the Nation’s Citizenry.
(Jan. 26, 2016 | By Ted Scheinman) The American Revolution did not end in 1783. In the recession that followed the expulsion of the British, Massachusetts saw America’s first brush with civil war. Farmers from the rural western stretches of the state, having not received payment—three years after the Treaty of Paris—for their bravery against the British, were bridling under heavy taxes levied by the urban elites. (Our tradition of forgetting veterans began at the very beginning.) Some of these farmers, unable to pay the new American taxes, were consigned to debtors’ prison, so their fellow yeomen, 1,500 strong, rode against the Springfield Armory in January 1787 with Daniel Shays at their head. The state militia managed to scatter Shays and his men at Springfield, but George Washington was troubled enough by the specter of insurrection that he wrote an alarmist letter to Henry Lee: “Influence is no government. Let us have one by which our lives, liberties and properties will be secured or let us know the worst at once.”
At the Philadelphia convention that May, the chaos of the Shays Rebellion was fresh in everyone’s minds as the delegates debated provisions for allowing the army a domestic role in American affairs. An army sufficient to repel the extortionate Brits had been necessary, and, subsequently, a coalition of national army and municipal or state militias became necessary for regulating the behavior of the yeomen.
The resulting paradoxes are still with us: The United States is a republic of laws, born of mob insurrection, forged in the smithy of anti-tax populism only to be overseen by domestic aristocrats, against whose police intrusions and taxes the plebs will occasionally bridle. Our founders, from the very first days of the republic, made all manner of provisions to protect the interests of the gentry from those whose rights they administrated. In fact, as William C. Banks and Stephen Dycus suggest in Soldiers on the Home Front: The Domestic Role of the American Military, the paradoxes that defined “liberty” for the founders have continued to bedevil our leaders’ uses and abuses of the nation’s armed forces—and the associated body of precedent in its courts. Hardly elementary, the volume nonetheless offers an engaging refresher for anyone who happens to have forgotten the various guarantees of the Calling Forth Act and the statutory additions and exceptions thereunto. Soldiers on the Home Front also exhumes minority opinions from dissenting Supreme Court justices—texts that are staples in law school but that any layperson too can appreciate, with due reward.
Banks and Dycus, professors of international affairs and public administration at the Syracuse University College of Law and of law at the Vermont Law School, respectively, recapitulate the British roots of early American thinking about the military and the police, with useful invocations of the 1689 Bill of Rights under William and Mary, the 1714 Riot Act meant to quell political violence born of religious schism in London, and especially Sir William Blackstone’s injunctions against mercenaries in his Commentaries on the Laws of England. These cautionary examples from across the Atlantic were common touchstones for the delegates in Philadelphia, whether, like Patrick Henry, they recoiled from the idea of centralization or whether, with James Madison and Alexander Hamilton, they believed federalism should also empower the national government to administer military action in the various states. One crucial check introduced at the 1787 convention was the stipulation that Congress must approve and renew federal military (and military police) appropriations every two years. No one present could have predicted a republic in which the Pentagon budget is renewed practically by automation, and has rarely dipped below a quarter of the federal budget since 1945.
The book is organized handily around the various roles the military has played in domestic life: “Soldiers as Peacekeepers, Soldiers as Cops,” for example, and, later, “Soldiers as Judges” (courts martial and military trials for civilians) and “Soldiers as Investigators” (covert surveillance of labor groups from industrialization onward, as well as of black and socialist citizen-activists).
Exercised properly, domestic intervention by the armed forces protects citizens from one another and advances the cause of liberty: When Congress passed the Ku Klux Act in 1871 it was a crucial move for protecting freed slaves, but it would also empower President Eisenhower to deploy the army’s 101st Airborne Division to oversee the integration of Little Rock Central High in 1957. The chapters on surveillance and internment are more cautionary, laying out the reasons—and legal mechanisms—that could precipitate new internments in the future. Our camps at the borders that detain Central American immigrants for indefinite periods do not house anywhere near the numbers of Japanese Americans interned under Franklin Roosevelt (close to 120,000), but their ranks reach into the thousands. Each day more flood in, are detained, and hang in limbo; each day, major American political leaders speak of them as if they were animals. You don’t need ideology anymore, or even war, to demonize an alien population.
Other historical examples are yet more damning. In 1968, the Kerner Commission’s response to rioting in Detroit, Philadelphia, Baltimore, Los Angeles, and elsewhere stated: “Our nation is moving toward two societies, one black, one white—separate and unequal. … Discrimination and segregation have long permeated much of American life; they now threaten the future of every American.” The response from the subsequent president, Richard M. Nixon, was a guaranteed-income plan; the response from Nixon’s Federal Bureau of Investigation (and from the Pentagon) was to keep tapping the phones of black activists.
Implicit throughout this methodical yet lively volume is the running element of paradox in American governance; the paradox of freedom-versus-security is not unique to the American republic, but at the very least it elicits unique tension on these shores.
A paradox is dissonant symmetry—a crosscheck, in which two mutually dependent notions or values are likewise mutually opposed. The checks and balances ratified in Philadelphia nearly 250 years ago emerged from aggressive debate and fundamental divisions over the nature of good governance, producing a final document in which the only point federalists and statists could agree on was that they’d left things reasonably difficult for the other side. Thomas Jefferson didn’t decide until he became president that he was a federalist, and that the very modest domestic police force he originally championed would not be nearly as useful for sovereign expansion as a standing army.
As we continue our War on Terror, as we brace for major climatic events that might require domestic military intervention, as we suffer through the unchanging truth of the Kerner Commission’s “two societies,” Banks and Dycus offer a lucid interpretive history of our peculiar Constitution, our statutory law, the righteous eloquence of minority court opinions, and the many reasons—both good and bad—devised by our attorneys general to justify military policing at home.
Civil-Military Relations Scholarship
Research Papers & Chapters
- Banks, W. “Soldiers on the Home Front.” Paper presented at 2017 AALS Annual Meeting, San Francisco, CA (Jan. 7, 2017).
- Zoli, C. & R. Rubinstein. “Civil-Military Relations in the United States: Notes on Mutual Discontents & Disruptive Logics.” In Rethinking Civil-Military Relations: Anthropological Perspectives. Eds. B. Refslund Sørensen & E. Ben-Ari. Forthcoming 2017.
- Zoli, C. & R. Rubinstein. “Military Culture & Humanitarian Actions: Short-term Gains & Long-term Losses.” In Lost in Translation. Ed. H.C. Breede. Forthcoming 2017.
The Lawfare Podcast: Bill Banks on “Soldiers on the Homefront: The Domestic Role of the American Military”
In November 2016, at the Hoover Book Soiree, Benjamin Wittes sat down with Bill Banks, Professor of Law at Syracuse University and the Founding Director of the Institute for National Security and Counterterrorism, to talk about Bill’s book with Stephen Dycus, Soldiers on the Homefront: The Domestic Role of the American Military. The book examines how both law and culture has shaped and constrained the military’s domestic activities, reviewing the legal history of the various different roles that soldiers have played at home, from law enforcement to martial law. Given the widespread concern over the strength of the next administration’s commitment to civil liberties and the rule of law, it’s a conversation that’s unfortunately more relevant than ever.
Civil-Military Relations in the Era of Hybrid Threats
Duke Law School LENS Conference | Feb. 26, 2016
What is the Domestic Role of the Military as Shaped by Law?
In “Soldiers on the Home Front,” co-author, interim dean of Syracuse University College of Law, and director of the Institute for National Security and Counter Terrorism William Banks systematically analyzes the domestic role of the military as it is shaped by law, surveying America’s history of judicial decisions, constitutional provisions, statutes, regulations, military orders, and martial law to ask what we must learn and do before the next crisis. Co-authored by Stephen Dycus.
- Introductions by Grant Reeher, Director of the Campbell Public Affairs Institute at the Maxwell School of Citizenship and Public Affairs, which sponsored this discussion.
- Moderated by James B. Steinberg, dean of the Maxwell School of Citizenship and Public Affairs at Syracuse University and former US Deputy Secretary of State (2009 – 2011).