Lawfare Daily: Domestic Deployment of the National Guard

[Audio Excerpt]

Craig R. McKinley, General (Ret.)

Primarily, what the National Guard does is it saves lives. It protects property and it's usually an assist to the first response.

Scott R. Anderson

It's the Lawfare Podcast. I'm Lawfare Senior Editor Scott R. Anderson.

Allyson Solomon

How can you sustain a force? As a reserve force for the United States active duty, as an individual who needs to be prepared to respond when you're unable to find the time or have the time to do the training that you need in order to be fully prepared.

Scott R. Anderson

Today, we're bringing you the audio for a panel I recently moderated at the Brookings Institution with several former senior National Guard and Defense Department officials, discussing the increasingly common and increasingly controversial domestic use of the National Guard and what it might mean for the future of this important part of our military.

[Main Podcast]

I'm Scott Anderson. I'm a fellow here at Brookings in Governance Studies. I'm thrilled to be moderating an event this event about a very important topic that is certainly on the front pages these days about this question of state active duty deployments and the use of the National Guard in new, innovative, and sometimes very politically charged ways that are creeping up in all sorts of corners of our country and all sorts of policy issues. And we could not ask for a better panel of people with an absolute wealth of experience to talk about this with. So I'm going to take a minute to introduce our panelists before we get started. Directly to my left, we have General Craig McKinley, who served as the 26^th Chief of the National Guard Bureau from 2008 to 2012, capstoning 38 years of service. In his capacity, he was a military advisor to the president, the Secretary of Defense, and the National Security Council, and was the Department of Defense's official channel of communication to the governors and to State Adjutants General on all matters pertaining to the National Guard.

To his left, General Joseph Lengyel. General Joe Lengyel culminated his 39-year career as the 28^th Chief of the National Guard Bureau from 2016 to 2020. As the most senior National Guard officer in the nation, General Lengyel was responsible for ensuring 450,000 members of the National Guard were trained and ready across the spectrum of all National Guard military capabilities.

To his left, we have our third general, Brigadier General Allyson Solomon, who served nearly 36 years in the National Guard, both in enlisted and officer roles, retiring as Assistant Adjutant General for Air Maryland Air National Guard. Brigadier General Solomon serves as a member of the Defense Advisory Committee for Women in the Services and President of the National Guard Youth Foundation.

To her left we have Major General Daryl Bohac. Major General Daryl Bohac recently stepped down as the Adjutant General of the Nebraska National Guard after nearly 10 years in the position. Major General Bohac also served as the immediate past president of the Adjutant General Association of the United States.

And finally, at the end of our line, we have our sole non-general who joins me on the stage, Dr. Paul Stockton. Dr. Stockton served as the Assistant Secretary of Defense for Homeland Defense and America's Security Affairs from 2009 to 2013, strengthening defense partnerships with partner nations in the Western Hemisphere.

We are here to talk about a unique use of the National Guard, which is itself a unique aspect and an element of our military. And it's unique in part because of the fact that it wears multiple hats. General Lengyel, let me turn to you and ask you to give our audience, for people who might not be familiar with, a little bit of a brief orientation for us. When we hear about the National Guard, people don't always realize that sometimes there is a Title 10 National Guard, a Title 32 National Guard, and then what we're here to discuss today, primarily, state active duty National Guard. Walk us through a little bit those different hats and statuses and why they're relevant to our discussion.

Joseph L. Lengyel, General (Ret.)

Sure. Yeah. And first, thanks for bringing us together. Thanks to Brookings for hosting us out here today, and thanks for [inaudible] for bringing this discussion together. I hope hopefully it's helpful.

So the National Guard is a huge piece of the Department of Defense. I think I would point out that, of the almost two million soldiers, airmen, sailors, marines, and guardians who wear uniforms, all components, all active in reserve and guard, the National Guard makes up almost 20 percent of it. It's a big piece of our national defense. And I think that the status that they work in is very important, as you mentioned, and as Kyle mentioned in his remarks, there's basically three statuses.

And I think most of us are familiar with the first one, which is the Title 10 status, the U.S. Code title 10, which essentially the president mobilizes the National Guard in time of war, and there's various levels of mobilizations that the president can call the National Guard to force. And then, essentially for all intents and purposes, they are part of the United States Army, part of the United States Air Force. They are subject to the Uniform Code of Military Justice. They have the same restrictions, the same everything that the United States Army, including Posse Comitatus, restrictions that applies to them when they are part of the United States Army and the United States Air Force. And the country benefits greatly from being able to call together the National Guard in Title 10. As we're talking today, I suspect that there's somewhere between 20 and 30,000 members of the National Guard who are on Title 10 right now somewhere around the world helping to protect the national security of the United States. And those authorities are outlined in law.

And the World War II scenario of total mobilization where everyone's in the active duty component until the end of the war plus six months. Then there's a partial mobilization which is up to a million members of the military for up to two years which we had done mostly over the past 30 years for the global war on terror. And then there are smaller subsequent levels of mobilization that can be called the Title 10 as well, but it's a big part of the United States Army and a big part of the United States Air Force. And the principal role of the National Guard is to be the combat reserve force to surge the force in time of war. So option number two is—and most importantly, I think I'll point out is when the Guard is mobilized in Title 10, you are under the command and control of the President of the United States as your Commander in Chief. That's a very important part.

Title 32 is how the National Guard sits and organizes, trains, and equips when they're not a mobilized force. They sit in the states, their commander in chief are their governors, and they train their drill weekends, their summer camps. They are federally funded. Federal dollars pay for their training, they pay their pain allowances, they pay for all of the benefits that go with serving in Title 32 status. They are not subject to the Uniform Code of Military Justice. They are subject to the laws of their individual states. Some states have their own state UCMJs. Some states have—they are subject if they break a law, to the laws of their states, but they are not subject to, like our army and active duty forces, the Uniform Code of Military Justice. So every month there are people that come together, they have their drill weekends, that's paid for by the United States government, and they are Title 32, and they are brought together and called to serve and to train by their governors.

And then the last and probably most common thing you're aware of, what the National Guard does, is called State Active Duty. And most commonly, this is state funded activity. They are called or mobilized in state active duty by their governors in their states. So just like the president, who can make them leave their jobs, leave their schools, they can come to work and serve the people of their individual state. And they are actually brought together and they do various things. Mostly, you see them every time there's a hurricane, a national emergency, or forest fires, or ice storms or many other things that states need the National Guard to come. And generally, when they come, they are augmenting the first responders in the states, they are augmenting the law enforcement or the police in their states, and they are doing things to support the first responders, law enforcement authorities in their states. State-funded, state-controlled. So those are the three ways.

And then there is the hybrid state active duty where you have seen it's 502F, which is Title 32. And 502F is a very common authority. That is when there is a federal nexus, a mission to be done that has federal implications, such as post-9/11 when they needed assistance in TSA to work security in airports, the federal government will come to the National Guard and say, we would like you to use your forces under your control, and the federal government will pay for it. But it's not necessarily training for their combat military operational skill set. It is some other duty as needed, but federally funded because there's a federal nexus. Much of COVID was done under 502F. It was deemed that the COVID, the pandemic, was keeping the United States Army from training, from deploying, from recruiting. It was impacting the readiness of the United States military to be ready to fight our nation's wars, therefore deemed appropriate for use of federal dollars in the states to sustain it.

So those are the main categories that we'll talk about today. I think Kyle mentioned some of them in his remarks, and there are more in-depth questions that will go from there. But Title 10, Title 32, state active duty, and then the hybrid mode of 502F that does that. And I'll stop there.

Scott R. Anderson

That's phenomenally useful. Thank you. Gentlemen, let me turn to you. In your wealth of experience in the National Guard and seeing it from both policymakers, chair, or advising policy makers, and from the National Guard yourself, the National Guard has a domestic role. And it has for a very long time. We think back to my generation, Hurricane Katrina, and the National Guard being deployed there. More recently we've seen protests and civil unrests at various times in recent years, we see National Guard deployed for various purposes. Tell us a little bit about what the traditional domestic role, the fairly well-trodden and well accepted National Guard role, is domestically before we go and talk about these other more novel applications we've seen become increasingly frequent in recent years. What is the best well-trodden path for the National Guard here in the United States?

Craig R. McKinley, General (Ret.)

Thanks, Scott. Appreciate you moderating to my good friend Joe Lengyel, to Allyson, to Daryl, and to Dr. Paul Stockton. It's great to be panelists with you all. Thanks to Brookings and Count Every Hero for all the hard work you put in. This has been a labor of love for about a year and a half for us now. We may have raised more questions than we have answers to some of these perplexing situations.

But having been the chief of the National Guard Bureau, having been the first chief not because of me, but because of Senator Lindsey Graham and Senator Patrick Leahy, who put together the Empowerment Act, we were putting 40-50,000 young men and women in Iraq and Afghanistan for many years. The orders books were coming across my desk pretty rapidly and my predecessor, Steve Blum, and we went to the Secretary of Defense to get those orders books approved. And we were supporting the Army and the Air Force in a great way. So for 25 years we've been at this mission. And I'll characterize a little bit later the transition from the 20^th century National Guard, which was basically a strategic force, not highly trained, but we had time to mobilize, train on the run, and then augment our forces. And then we moved into what we called the Operational Reserve in the 20th century following September 11^th. I'd like to acknowledge Linda Singh, a former TAG of Maryland, here today. We may have other National Guardsmen and women in the room today, so thank you, Linda, for your time and your attention and your service.

Primarily, what the National Guard does is it saves lives. It protects property. And it's usually an assist to the first response, whether it be police or fire or whoever the on-scene commander might be on a natural disaster, manmade or natural, or some type of calamity, where the forces are extended critically at the beginning, and they come to help those forces. Can last a day, a week, a month. Katrina lasted six months. It just depends on the time. One of the novel things that I think General Lengyel mentioned was the fact that we now have an election coming up and we have many National Guard units, General Singh, and our other folks in Maryland have an intelligence operation, and we also have a computer operation now too, which as we lead up into the election could be critical.

Let me make sure I cover all the other things that we do. Because it is an extensive list. With the elections coming up, cybersecurity, as I mentioned, is critical, important, and we have people who are in civilian lives, in the cyber business. And when they mobilize or they put on their uniform, they're also able to assist in those realms too. So those are the traditional missions.

Scott R. Anderson

Over the last few years, and I think particularly really in the last five years or so, we've seen an increasing trajectory of what can generally, I think, be described or classified as nontraditional deployments. And what has brought this group together on stage, as I understand, along with others you all have been working with, is a concern over this increased frequency and use of the National Guard for these nontraditional deployments. Examples I know we've discussed have been guarding prisons in Florida, serving as substitute teachers in New Mexico, augmenting police forces in New York City, and perhaps most well-known at this point, Operation Lone Star on the southern U.S. border in Texas, enforcing immigration restrictions. Tell us a little bit about what makes these nontraditional domestic missions such a departure from the domestic vision and domestic practices you're familiar with and what makes them concerning for that reason.

Craig R. McKinley, General (Ret.)

I think this really is why Count Every Hero got involved in this thing is because we don't traditionally train for some of these one-off missions. The ones you just mentioned are some of those. We train, organize, equip the way the Army trains and organizes its Army Guard and our Air Force and the Air National Guard. When we send our young men and women downrange, we want to make sure they understand the mission. How do you train, organize, and equip yourself for these one-off missions? And I would say it creates some tension, some conflict, and when you mix these statuses that General Lengyel spoke to, it causes confusion.

When you're all Title 10, we're all marching to the same beat, the same drummer. When we go to Texas and we have Title 10, which is there now in support of Customs and Border Protection, this is all in support of them trying to get their forces situated. We have Title 10 National Guard, we have Title 32 Guard, and then we have the Texas National Guard, and then we even have the Texas State National Guard, which is another anomaly or one-off. So when you put all those forces in an area, it causes confusion, and that, as we as former commanders don't like to do that. So it's a risk to that mission set. The coordination is very difficult. What rules of engagement? What rules for the use of force? What do we do if we come across a group of immigrants? The Customs and Border Protection doesn't have time to explain all of that to us, nor do we train to it. We just put them in trucks, and send them and say, go do the job and don't screw up. And that's a tough job for a young person to do and do it well.

These deployments can last up to a year. That's a long time to be away from your employer, who in the National Guard, most of our soldiers and airmen work outside of the Guard and our employers are glad to give eagerly these young men and women to do these types of missions, but there needs to be a purpose and a mission set and a mission statement.

And then finally, as General Lengyel admitted, it's a different funding stream. Allyson will talk about funding. Every state has its own funding mechanism. If you're in one state's status, you might be earning less than in another state, and it causes confusion. And again, as we've seen in some of these one-off missions, it's tough to keep the force together and to retain them and their families, which is really important. Thanks.

Scott R. Anderson

So a particularly notable aspect of some of these recent missions, particularly those that have found themselves on the front pages of newspapers, that they are politically charged. They are around issues where there may be a profound disagreement between state and federal authorities or where there is an assertion of a desire to take policy steps that are controversial among some corner of the country for policy reasons, for political reasons. General Lengyel, I want to turn to you on this one. tell us a little about how it impacts the National Guard to participate in these politically charged missions, to have this level of political division around their mission, both at the individual level, the Guard unit. And given the role of the National Guard in society, the line it's walking with its multiple hats and multiple leaders, how does that in fact impact the Guard?

Joseph L. Lengyel, General (Ret.)

So I think part of the National Guard's strength is its fit, it's trained, it's equipped, it's ready. There's very few missions they can't be called on to do on short notice. And my concern is it's hard to be a guardsman. In that, as General McKinley said, guardsmen have civilian jobs, lives. They work for employers who don't like it when they leave. To be good at your military operational specialty, you have to train, you have to be fit, you have to use your weapon system, you have to go in the field and do these kinds of things, and that takes time. And the guardsman's time that he has away from his full-time job, which is every week, every day, Monday through Friday. That's why we train on the weekends. It's not because we like to work weekends. It's because most people have jobs during the week that they need to come together on the weekend and train and then in the summer for two weeks. And employers, luckily for us and for the country, have supported that ability to make them be a ready part of the United States Army and the United States Air Force.

So first and foremost, I'm concerned that, while it's hard just to stay a guardsman, to train for your military skill set, now we're going to ask you to go do other things. I think everybody understands when hurricanes come and ice storms come and these things. But other enduring mission sets that take people away from their employers and away from their families, and, oh, by the way, you're probably, in some cases, not doing the things that you're supposed to do for the United States Army and the Air Force. There is a readiness impact, to the United States Army and the United States Air Force. And I think the services and the service secretaries are concerned about that. They would want the force to be as ready as they can to do those kinds of things.

I think that some of these longer-term mission sets that happen—Southwest border might be a good one—and when you deploy to the Middle East, we would deploy to a fully functioning base. We would deploy to a location and garrison that was built to support men and women who are serving over there. They were in the Army and there were support systems to help them do their jobs and do their missions. Sometimes when you go to these border outputs or rest, you're staying in hotels, you're not together as a unit, no cohesion's there. There's been issue with suicides and ability to keep units trained and good morale and discipline. It's hard for some units to do these kinds of things.

And then, I think you want America, when they see the National Guard, to come out to be happy. Generally, things get better when they see the National Guard roll up. National Guard rolls up with equipment, communications, power, water, food. When you see National Guard for national emergencies, generally it's because things are not going well wherever you are. And now, you're going to use National Guard members longer term for these other things. And I want to separate the soldier and the airman from politics. Even though it tends to be, in this case on the southwest border, Republican states that are sending their units there, the impacts on the individual soldiers are the same. And you have to take care of the soldier, take care of his family, take care of the person, regardless of politics.

So I think I think in the longer term, you want to be able to sustain and have them stay in the National Guard. You don't want to overuse them, burn them out, make their employers not support them, make their families not support them, so that it's a very efficient way to sustain our Army and our Air Force and our combat capability to have a ready National Guard. If we overuse them for other things like bus drivers and school teachers and prison guards and all the rest, that's not, I think, really what the thought was behind the creation of a National Guard. Domestic Ops was saving lives, protecting property, and helping restore order if you need it. Some of these other things are new and growing and emerging missions. So maybe out of COVID, maybe a lot of that seemed to start with COVID.

Scott R. Anderson

So a foundational principle of the military in the United States is civilian control, the idea that the military reports to civilian leadership. And Dr. Stockton, you're unique on our stage in that you were a member of that civilian leadership at the Department of Defense. So I'll turn to you on this.

Dr. Paul Stockton

The formal term is unwashed civilian.

Scott R. Anderson

Let me turn to you with this question, as our unwashed civilian, or my fellow unwashed civilian on the stage. This obviously raises complex questions about civilian control in some ways and civil military relations just more generally. This idea of both the National Guard being in this difficult two-hatted, three-hatted, depending on how you think about it, position with multiple leadership and multiple authorities pulling them in different directions potentially. But it really bears on the whole idea between the relationship between the military, the role it plays, and society, not least in part because while under state active duty, restrictions that we're familiar with, like Posse Comitatus, which restricts the use of the military for law enforcement purposes in the United States, doesn't apply because it's not a federal use, it's a state use. Tell us a little bit about how those different issues come into play in your mind. What is the relevance of this issue set for civil military relations and civilian control questions and what issues does it raise?

Dr. Paul Stockton

Great questions. Before I answer, let me just say the usual, that nothing I say necessarily represents the positions of the Department of Defense or any other federal department.

Everybody believes in civilian control of the military, but saying that papers over really important issues that we need to grapple with for the rest of the discussion today. First of all, civilian control, I love it. It's great. But civilian control is not enough. Stalin had excellent civilian control. He murdered a dozen officers, general officers, before Hitler invaded the Soviet Union. Things didn't go so well. You need more than civilian control. You need democratic control of the military, and you need respect for the rule of law. And when we look at some of these nontraditional, maybe politicized missions, soldiers and airmen, they do not have to follow unlawful orders. In fact, they're not supposed to. Now that's a foundational lesson learned from the Nuremberg trials. If you're given an unlawful order, you shouldn't be obeying it. But what kind of training do we have for soldiers and airmen to know that an order is unlawful? Yeah, for Title 10 missions abroad, there's all kinds of training on that. But these domestic, these nontraditional missions, there's nothing there. And we'll talk about some potential remedies for that gap later on. So, civilian control isn't enough, we need to uphold the rule of law.

And then secondly, yeah, civilian control. Which civilians? We're in a situation today where governors and the president may not be kissing on the lips. And that's true going forward. We may have the presidency and governors of different political parties. So what happens when they're in conflict on the utilization of the National Guard? We had a brief discussion of Operation Lone Star, and I hope we'll go back to that in greater detail. But I'd urge you to think about the federalization of the National Guard, the transition of the National Guard from being under the governor's control to the president's control in the context of Little Rock, Arkansas in 1957. And we all think it's a great idea now that the president, President Eisenhower, federalized the Arkansas National Guard to allow black kids to go to Little Rock High School, especially in the aftermath of the Supreme Court decision. We're using the National Guard in federal status to make sure that integration went forward. So that's the good side of federalization.

I urge you to think about the evil side. What if federalization is used by some future president, regardless of party, to enforce on a state missions that are deeply inappropriate?

Scott R. Anderson

So that actually is a great transition to our next questions. I want to come to you, General Bohac, because this kissing metaphor that we just heard, I think, usefully sets up one of the big tensions that's facing National Guardsmen and particularly National Guard leadership around the country, which is this prospect that particularly around these categories of missions that are politically charged, they're nontraditional, they're innovative maybe in good ways sometimes, but maybe in other ways not in good ways, they raise this question about saying, what if there's not agreement around this being a necessary step. You have, as a National Guardsman, these two Commanders in Chief:  the State, your governor, and your president. Talk to us a little bit about how the National Guard and members of the National Guard de-conflict with potentially contravening orders or orders intention from those two channels and the difficult position that they might be finding themselves in on account of this new mission set.

Daryl L. Bohac

Yeah, thanks, Scott. It's a pleasure to be with this group as well and be a part of the discussion today. I think when it comes to the potential conflict, it's inherent in our system, by the way, between the federal government and the state's government, the sovereignty of the states and the governor's role, and that's not what this discussion is about, is impinging on the governor's role, by the way. I think what it's gotta be about and how you mitigate some of the conflict is what's the framework that you're going to use for a discussion with, at the unit level, at the individual soldier, airman level, about that. And I think it starts with reminding them and ourselves as leaders, as military leaders, and then also our civilian leaders, that we took an oath to protect and defend the Constitution of the United States and, in the National Guard, which makes us constitutionally unique as a component of the armed forces, the Constitution of the state that we serve in.

So you can't be in both statuses at once. But I can tell you as an adjutant general, you're always mindful of the other status you're not in at any given moment, right? And so, you have to take that and use that as the framework to have the discussion with your subordinate leadership and conveying that. Now, the truth of the matter is, just like in Little Rock, the president usurped the governor in that case. But we had coalesced around a social issue as a nation and come to grips with that to one degree or another, but it was time to start the integration of our schools. And the president saw that, I think, that President Eisenhower judged correctly that this was going to be a pivotal moment and was able to really, in some ways, depoliticize the governor's role here in terms of the integration of the schools and therefore allow this to go forward. I really think that's the beginning of the discussion with the governor.

And then when the mission comes to you, when you're asked by your governor, I think, as the senior military officer in any state, you are duty-bound to walk the governor through the risk from a military perspective. The political risk is the governor's issue, not the military's issue. The military risk, to some things that have been mentioned earlier: Will this impact the readiness of our units? Will we be ready for planned deployments that are already on the books? What are the impacts, I think, thinking carefully about the impacts to our members and did they just come home from a Title 10 rotation and now we're asking them to go again and do something else, this time on behalf of the state or another state as the case may be. All those considerations have to be carefully thought about and then conveyed.

Our young people that join the military today have the propensity to serve because they've already raised their arm, but they also have a propensity to ask why. And we have to be prepared as leaders to address that question and explain where we're at. Now, it certainly is true, whether it's a Title 10, Title 32, state active duty mission, at the individual level, people may object to it. And then we have mechanisms to work through that process and that situation, that challenge. But all, it's all about being part of the team and remembering that you're serving something larger than yourself.

Scott R. Anderson

General Solomon, I want to come to you on this issue of readiness that I think we've heard echoed in multiple comments so far. Because readiness really gets to a lot of issues concerns underlying some practices. Because it's a question not just of the readiness of individual units to serve their roles and other functions that may be called upon, readiness in terms of ensuring recruitment and preparing and ensuring sustainability for members and individual members of the National Guard participating, but also the foundational role of the National Guard as our reserve military forces. The idea that they will still be available and trained and equipped adequately to step into that role if it becomes necessary. Talk to us a little bit about some of the concerns about the impact of this diversification of the National Guard mission set, this innovative, expansive use of it domestically on those readiness questions and morale and welfare questions for the National Guard and its members. Because I think that is a big thread of concern underlying many of the comments we've heard from here. And I want to dig into it a little bit. Talk to us a little bit about the concrete concerns there.

Allyson Solomon

Yeah, absolutely. And I think that, as was stated before, everyone that raises their hand understand that they may be asked to do something that they personally may not agree with. They know that they may be called involuntarily for X period of time. But I think what we've seen over the past decade or more is that call comes more and more frequently, and the call for those non-conventional missions comes more and more frequently. What kind of effect does it have on the individual, their families, their employers, the training that they need to have in order to be called for that mobilization? And also, it's about sustainability. How can you sustain a force? As a reserve force for the United States active duty, as an individual who needs to be prepared to respond when you're unable to find the time or have the time to do the training that you need in order to be fully prepared, how can you sustain the costs to, whether it's the federal government or if you're in state active duty, it costs money to put guard people in these statuses. Can you afford to continue that on a state level? Families that are no longer collectively together on a less regular basis. How do you sustain the family unit? Childcare issues, mental health issues associated with the constant up and down, the variety of being asked to do something that is not your core competency and is outside of, might be your personal comfort. How do you access those resources, understanding that if you are in a state active duty status, you do not receive certain benefits. Medical insurance may not be available to you. If you get hurt, something could happen. Will the state cover your expenses and that of your family?

And it varies by state. So not all states have the same protections for our National Guard folks when they're on state active duty. And they could all be standing right next to each other doing the same thing and have a variety of benefits associated with. And so that compounds the readiness issue because at the end of the day, we still have to be able to respond should the call come, that yeah, we need to defend the homeland or we need to go abroad because as many people that continue to be abroad today, there are just as many calls.

We had tornadoes in Oklahoma and Nebraska. Guess what? The Guard folks were there too. They were on state active duty status. So how do you continue to be a ready force and still preserve the individual and their ability to do that? That's a critical part of it.

Scott R. Anderson

We've laid out some of the problems and concerns we have here. I want to start talking a little about solutions and ways we may be able to address these sorts of concerns. General Bohac, I want to start with you. Let's talk a little about what we could do in terms of existing frameworks. Are there ways that National Guard offices, relevant offices in the Pentagon or at the state level could better prepare guardsmen or better think about their role to help individual, whether it's leaders and National Guard at various levels, individual guardsmen, better navigate the challenges of these new types of deployments, provide better resources for them? What would be necessary, if these are something that people are insistent on pursuing, what sort of resources are necessary to make sure they're done responsibly and in a way that's not detrimental to the broader mission of the National Guard? And as part of that, I want to pull back a thread that I want to pull a little bit from your earlier comments as well, talking about that thing about competition between federal and state. What are the levers and tools that the federal and state governments have to push back on each other for who can control these missions? We should dig into that a little bit. We can talk about the ones they have and use now, and then talk about some of the other ones they might be able to use if they thought it through a little bit more.

Daryl L. Bohac

Okay, so I'm going to try to remember everything you just asked, Scott, so you'll help me out, I'm sure. But we can start with the levers that currently exist today and there are two clear levers from the federal side. One is money, so resources could be withdrawn from the state as a lever. And then again, we've talked about the ability of the president to federalize the National Guard as the second one to take control literally of the guard of the state of concern or wherever it might be as to control measures. And I must say that we've rarely seen the president usurp a governor's authority by taking control of the guard, except in the case we've already talked about, and I think three others in our history of our country. And then I've not seen withdrawal of federal resources, quite frankly, but that is there. And the Fifth Circuit actually ruled on that and said that was not one of Governor Abbott's prevailing matters in his lawsuit, that he could prevail on, and that the federal government still retained that responsibility.

The pragmatic reality is in a state National Guard, somewhere around 95% of our budget is from federal resources. And as an adjutant general, and quite frankly as a governor, you can't ignore that reality. If you do, it's at your peril, I think. And you have really limited state resources put into play in terms of how you organize, train, and equip your state National Guard.

I think that we have some lessons in our history about things where we've tried to achieve some consistency across the states and the territories where we have National Guard forces. One was a model state UCMJ piece of legislation that was offered to the states as a way to try to level the playing field, if you will, and eliminate some of the differences that General Solomon just talked about. And I think there's the opportunity, also, to do something similar for domestic operations. When we prepare forces, part of our readiness training is annually, we go through a briefing on the laws of armed conflict to go into combat. And what are those rules? And that gives the framework to the soldier, the airman, or to any member of the United States Armed Forces, the framework to determine, did I receive a lawful order or not? But we don't have that for domestic operations. And the question is, could you build a framework that would be similar, at least in type, for domestic operations that could govern how we train and get our folks ready and how to help enable them. Did I receive a lawful order for this domestic operation or not? I think that would go a long way because what happens in my experience is every time you had an event, you were revisiting the rules of use of force and rules of engagement dependent on the situation, and you can't create a template that's going to answer every question for every event. But you certainly could have a framework that would help us walk through that process in a consistent manner, so that when General Solomon's soldiers or airmen from the great state of Maryland joined soldiers and airmen from the great state of Nebraska somewhere, we were operating in the same moral understanding of what constitutes a lawful order.

Scott R. Anderson

Thank you. Dr. Stockton, something to add here?

Dr. Paul Stockton

Yeah, it's very well said. And I think that we need to get ready for the new security environment in this regard. The intelligence community assesses that a prime People's Republic of China goal in attacking the homeland, talking about homeland defense now, is to create societal panic and disorder. And you know the National Guard is going to be on point in Title 32 status to manage societal disorder, so China can't achieve the goals it's going to seek by disrupting electric systems, water service, etc. And so, thinking about exactly what you've said and getting ready for that now in a homeland defense context is vitally important.

Scott R. Anderson

Please.

Allyson Solomon

If I can also follow on in, the young people that come to the guard today, as Daryl said, ask questions and probably will certainly ask a lot more questions than I did. Maybe I should have asked a few more questions. But I think it's a responsibility of the leadership to be able to put them—they're trusting us to put them in situations where they will be as safe as possible. That they don't have to be concerned about the political swayings of whomever or whatever. They can just do the job. So if we expect them to perform optimally, this framework we're talking about to help prepare those that are leading them to be able to answer those questions because we believe the questions will be asked.

And so, how do you best lay the foundation so that when they are called, they are called fully prepared and accepting of the fact that you have done the work ahead of time to put them in a situation where they can perform at an optimum level?

Scott R. Anderson

So those are some possible solutions or steps in a particularly, hopefully better direction that we could pursue in the current scope of authorities. But let's kick the doors down a little bit and Bluesky this. And imagine that we got our Congress or a state legislature to pay attention to this issue set and say, we need to think about the way these broader mission sets impacts the National Guard, and either find a way to change the mission set or adjust the National Guard to prepare it for it. What legislative proposals, whether state or federal, could be on the table that seem realistic to some extent that could help address some of these foundational concerns you all are talking about. Dr. Stockton, I know you've done some thinking on this. I'll start with you, but then I urge the other panelists also to jump in.

Dr. Paul Stockton

There's been some terrific work done earlier this month by a bipartisan commission looking at potential legislative improvements to the Insurrection Act criteria by which a president might employ and federalize the National Guard and employ forces, including Title 10 forces, when there's an insurrection in a state. I don't think that commission went far enough. It's good what they did, but we need to go a lot further. They didn't address this question of what constitutes the criteria for employing military force to achieve the purposes that the president has laid out.

Let me give you a use case, a prime example here. I'm concerned that some future president, could be of either party, might direct the National Guard, could happen at the state level too, to provide, quote, “security” at ballot boxes in the voting process. Not to actually secure the voting process, but to suppress voter participation by the party that she or he doesn't want in power. That's the kind of use case I think we need to have in mind as we think about how do we build consensus on a bipartisan basis for things that we don't really want to be within the criteria for applying the Insurrection Act. These are tough questions, but if we don't ask and if we don't attempt to build consensus, we're still lost in the swamp.

Craig R. McKinley, General (Ret.)

Let me take a stab too. We've talked about some of the concerning issues we have. A mentor for all of us up here and some of you in the audience was John Conaway. He was the father of the National Guard. He turns 90 here in a couple months. He used to coin the phrase that the National Guard is a national community-based state and federal military organization. He encapsulated it in one statement. And that's who really we are. It's a magnificent force of over 400,000 men and women. And they do anything they're asked to do. I've never seen any National Guard man or woman turn down a mission. So we have to be very concerned that what we ask them to do is both in the interests of either their state or their nation, and it's lawful.

And so how we get groups like the National Governors Association, state legislatures, commissions of former adjutants general to come together and sit at a table like Count Every Hero is attempted to do with this little kick start here to really give these young men and women more granularity so that they don't ever wonder if what they're doing is the right thing to do.

Joseph L. Lengyel, General (Ret.)

And I'll just throw out, one more consideration as we ponder maybe new what ifs in terms of the National Guard has traditionally and customarily been used in numerous ways that we all watch and see all the time. But you hear and read about documents being drafted where the military would be asked to seize voting machines in some regard. And the way we disseminate information now is half of our country believes one thing about what's happened in the last election, and half believes another, and information is as good as where you get it. And you worry about somebody in a nontraditional role, Dr. Stockton mentioned secure voting booths or secure ballots or secure any part of an election. Again, to maintain, there are really rules in state active duty, no rules that govern what they might be asked to do. And there are rules in, in Title 10, I think, to say what the military forces can do. But in, in most states, every state, it's either written in their legislative process on what they can do, or it's not written at all, there's no guidance. but as long as the state has money, and the governor, who is accountable to the voters, wants to do something, he pretty much can do it. Unless somebody can come out and say, that's an illegal order.

And that is the part of the discussion. What is an illegal, what's an illegal order? How do we get to that part based on what people think the information is, what the scenario is? A governor who assesses a fraudulent election to happen and wants to stop ballots from being counted. Not that would ever happen, but it could. And the National Guard, I say, should not be in the middle of that. It should be other mechanisms.

Allyson Solomon

I'll also point out that I think what we haven't seen with the increase in the National Guard being involved in these nontraditional, unconventional missions is how it affects retention. We already know the military in general has a recruiting issue, light bulb moment, but how is this going to impact retention? While we may not be immediately seeing it, I can just share about people that I talked to that may not stay 36 years like I did. They walk when they get to 20. What kind of force are we building if we're unable to maintain people past that initial 20-year point, so that they can continue to share what they've learned with the younger generation. So I don't think we know yet how this can impact the National Guard writ large if we don't get some structure and guidance around giving them some kind of sense of that they can trust the organization.

Scott R. Anderson

Actually, Joe, while I have you, let me ask you a follow-up question. This is an advanced question from Alicia, working in the Office of Representative Stefanik from New York. So I want to ask about this specifically. She raises the point that National Guard service members acting under state active duty don't qualify for federal disability benefits. And really, she mentions disability specific, but in fact, that's actually the tip of the iceberg in terms of federal benefits. Reemployment or continued employment, USERA, things like that also don't qualify. Is that a gap that Congress should consider filling? Is that something that, what is the trade-off there in terms of thinking about the disabilities benefit and these sorts of missions if National Guards can be used in this way more commonly?

Allyson Solomon

I think it goes to the issue of sustainability because, the states, as mentioned before, are all individual, and their variations are just as varied as the number of states and territories that there are. Unless the state legislators—and here's where actually having some kind of conversation with the council of governors or the governor's associations can help mitigate to standardize across the states how guardsmen are protected when they're in a state active duty status, because some states will pay them X number of dollars a day. Some pay them based on their rank. Some cover them for insurance. Some do not cover them on the workman's comp. Some will pay for health insurance, which is a huge deal for National Guard folks when they switch from statuses to statuses, and they earn no veterans benefits when they're under state active duty. And yet, it depends on each state what that individual may have a benefit of. And it is a huge issue, I think, in terms of that unanswered question of those continued missions. How will they affect the long term? And especially, the more you have folks interacting in one location from different states. Guess what? They talk to each other, and suddenly you find out what the difference is between this state and that state. And how does that writ large affect the institution across the board?

Scott R. Anderson

As you may have noticed, I've gone to audience questions, perhaps a little prematurely there because I thought that fit in well. But as now we've got, I think, a little about half an hour left, so we're going to turn to audience questions here. We've got a number that also came in advance or came in online, so I'm going to be going back and forth between those two. I'm going to start with one that came in advance, and we'll come to the audience in just a second.

Let me start with this question. It's actually a pair of questions that paired well with each other. This first one comes from Diego who works at Secure Democracy USA, wrote in to ask a note. In 2020, the New Jersey Army National Guard, although we were having a conversation earlier, we're not sure it was actually the New Jersey Army National Guard, but at least one National Guard, maybe more than one, activated more than 120 of its soldiers and reported in civilian clothes to county election boards and polling sites in seven counties in support of the state's primary election. With the current environment and rising threats leading to high attrition rates among clerks and poll workers, how can and should the current military be leveraged to keep our elections running smoothly? What are the dangers of this and how can we mitigate? We talked a little bit about some of the role the National Guard has for a while now played in elections. This is a new one, not unprecedented, but a newer one. General Bohac, can I turn to you on this? I think you've had some experience in this space.

Daryl L. Bohac

I do. I actually, I think he confused New Jersey with Nebraska. And that happens from time to time for some reason. Actually, we did in 2020 in the midst of COVID, and I think that's the really important caveat here. We need to remember the state and the counties are responsible for conducting the elections of this nation, not the federal government. And the Secretary of State was concerned that in several rural counties, that poll workers wouldn't show up for fear of COVID and other things, and then, therefore, not having sufficient staff present, the polling site could not open and afford citizens the right to vote. And so we did. We put 131 soldiers and airmen in state active duty. They wore clothing that would not identify themselves as a military member because we were informed by the, I think it's in code or perhaps federal regulation at the very least, that military equipment or military members in uniform shall not be present at election sites. It's the federal law. And that informed us in the state about how to conduct the mission.

But when you think about again, our oath to support the Constitution state of Nebraska, it seemed to me to fit very well in terms of the mission. It's how you conduct the mission that really, at the end of the day, really matters, and again, the guidance that's given to your individual soldiers and airmen about who are going to go out and support the poll workers. So I think that's a special case. I wouldn't discount the risk that General Lengyel brought up about, other perhaps untoward uses of the National Guard in the election cycle. But I think by and large, there's probably, I hope, I should say that, I hope there are sufficient guardrails there to prevent the abuse of the National Guard in those kinds of situations. And that's where an adjutant general has to be willing to stand tall, he or her, have to stand tall with their governor and inform the governor, the leadership, of the risk, and then you play the cards you're dealt.

Scott R. Anderson

Does anyone have any thoughts on this issue? I know we've had elections come a few times more generally. How should we see the National Guard interfacing with these elections questions? And if there is a situation where we see a problematic avenue, there's another question we had from Adrian in Greenville, North Carolina, which I'm paraphrasing, apologies. Insofar as we had a situation where we had in order to observe or do something else in elections or polling site that would be problematic. What remedies might be available?

Daryl L. Bohac

I'll take a stab at that because I think the remedy is it gets referred to law enforcement because if you believe that a crime has occurred or there's criminal behavior occurring, if there's voter fraud occurring, that's a criminal matter. It's not really a homeland defense matter. It's, I'd say, a criminal matter, and my guidance to the governor at that point would be, Governor, that sounds like a law enforcement problem to me. You should be asking your law enforcement folks. And not condoning that, by the way, I want to be clear on this. But that's where I think that problem set belongs.

Craig R. McKinley, General (Ret.)

I think it bears saying that most governors who run and succeed at becoming governor do not know their commanders in chief of their National Guard. Sounds crazy, doesn't it? But I've been around some governors who on Inauguration Day say, what is this? And I have 12,000 men and women in uniform. And it's really the relationship that that adjutant general, who, in all states but one, is picked by the governor to be his or her representative to run the National Guard in peacetime. That relationship they have with the governor to call out early on—and that's why we're here now—early on before this becomes a crisis and say, let's define for our state or territory how this is going to work. So there's no ambiguity. I've seen, as former Chief of the Bureau, a degradation in some states where the governor has put the adjutant general two or three levels down below in his administration. Therefore, you don't have that face-to-face. You don't see the governor weekly at staff meetings. You see the emergency manager, or how do we have these discussions? Let's not make the Office of Adjutant General relegated to third or fourth order effect. So I would encourage governors today to take the appropriate action to set up the rules of engagement for the next eight months.

Daryl L. Bohac

So I think this drives us to the second framework that needs to be talked about. And that's the reality is not all states belong to the National Governors Association. And so why is that important in the context of this discussion? It's because the National Governors Association has at least historically offered new training for governors, and in fact, General Lengyel, you spoke at one of those training events in during your tenure. But if you don't belong to the Association, you're likely not to go to the training. And therefore, it is left often to the Adjutant General and his or her staff to inform the governors about, hey, this is how it works on day one. If day one they're inaugurated in the office and some event occurs, you don't want them learning their role and responsibilities that day. You need to be in that vein much sooner.

I think there's a lack of a consistent framework for that discussion with governors. And what should be the elements that then can be this template that could be then adapted to peculiarities of state statutes, or that the state of which we're concerned with and to ensure that, there's some consistency across the 54 governors that well, 53 governors to be accurate, in terms of how to use the National Guard and what should be some of the things that you should be thinking about when events come to bear toward you.

Allyson Solomon

And I just wanted to point out, so the 54^th is the D.C. Guard, which is, their line of authority is through the Secretary of the Army. So that's not the Mayor of D.C., for clarification.

Scott R. Anderson

Alright, let's go to the audience for questions. Let's start over here.

Audience Member

Okay, thanks. Hi, Janessa Goldbeck. I'm the CEO of VetVoice Foundation. We did a tabletop exercise two years ago here in D.C. with about 35 members of senior folks from the last five administrations about what happens if there's a contested election in the future and the National Guard is called in to play a role greater than what we saw in the last election. And the biggest learning from that was the gray area for governors, to the point you all just made so beautifully, understanding their authorities, understanding state's attorneys general, understanding their authorities, and having a relationship with their TAG ahead of the bang, so to speak. So we're actually conducting tabletops with governor's and TAGs and attorneys general this year. And I just want to throw a shout out to the room. If you're interested in participating, we're assembling a team of folks who was going to go in state to do that work. And we'd love to work with anybody who's in the room. Come see me after.

Scott R. Anderson

Sounds great. Great. Thank you for that. Yeah, why don't we start up front? We'll take a pair of questions before you go back to the list.

Audience Member

Hi, Lauren Voss. I'm a law professor at GW and I teach a class on domestic deployment of the U.S. military. Also a reservist.

Craig R. McKinley, General (Ret.)

Why don't you come up here and talk?

Audience Member

So I was just curious, we talked about the National Guard really expanding missions starting with COVID going on. And we really focused on the idea of a lawful mission and identifying that. But I'm curious, when we talk about the limitations that you were saying, saving life, saving property, restoring order if needed, that's more of custom and practice, right? And there is a whole range of things at the state level that can be done by a governor that are absolutely lawful, but maybe get us into that awkwardness of is this what's actually good for the state or is this what is good for democracy? And so I'm curious for that specific area, how do you think about it? What do you do? Because you don't necessarily want the individual guardsman saying, I don't know if this is what's good for America. But is that civil society? Is that the federal government and raising questions of federalism? How do you think about that narrow sliver?

Allyson Solomon

I'm going to preface it, and then I'm going to let them go on because I think there is a part of it that every individual has to understand coming into, when you raise your hand that you may not agree with what you're asked to do. And how many of us have been asked to do something that we personally did not agree on. So how do you continue to support the apolitical nature of a culture that's, I know, the concern that we want to foster and continue to foster an apolitical nature of that individual understanding. Yeah, I have my own thoughts. However, I'm part of this larger organization.

Joseph L. Lengyel, General (Ret.)

That is a great question. I talk about it as the reason we're having this is because there's a spectrum of utility of the National Guard and domestic operations, and it moves from pretty easy stuff, where we're reacting and saving lives, protecting property from natural disaster. The threat is the weather or some event. And then the next bucket is missions that are harder. Linda Singh will tell us about civil unrest in Ferguson or Baltimore or Black Lives Matter here. Now the issue and the friction is with human beings that may or may not see things the same way. I recall I was here during Black Lives Matter this summer, or past four summers ago, seems like yesterday when it was. And there were family members on one side of the fence and guardsmen on the other side of the fence and it is a hard, dangerous mission that we don't think about a lot. And we need to have that discussion.

I frequently talk about if I was a company commander of security forces in Lafayette Square—and in Lafayette Square the guardsmen did not push protesters out. They were present, but they did not push protesters out. They were peacefully protesting, and there was not a curfew, and there was not a legal reason to remove them. And I wonder, if I was a commander or a guardsman that day, and somebody said, the police—because I'm there and assisting the police—if they had said, let's go, we're pushing them out, I might have, without knowing, without thinking, I would not have known this is unconstitutional. That is their civilian right. That is a constitutional right to protest. They're not breaking any laws. They're peaceful. They're not doing any damage. I don't know that I'd have been aware. The way we have it is to have the discussion and educate people and talk through these things before those events happen.

The other kinds of events that were used in the National Guard that no legal issues matter, the other bucket are your school teachers or your lawyers. You're on the southwest border. You're driving buses. You're guarding prisons. That's a different, and again, probably less complex mission than the civil unrest. And then there's this whole other bucket that we're all talking around is, what if somebody asks us to do something that might impact the outcome of an election? And do you know if there was fraud in that precinct where they're saying, go guard those ballots? Is it right? Do we know? And that's why it's so important to have the discussion now of what is the Guard? What are the guardrails? What are the authorities? It sounded reasonable to me to facilitate the execution of election to have some men and women of the Guard put on civilian clothes and actually be there to sign people in and direct them. Here's a ballot. Go to that machine and vote. That seems reasonable. It seems low threat. There's COVID. People don't want to come out. Guarding and securing an election site might be different, totally. But I think, these buckets of where they might use us and we fundamentally rely on leaders that will do the right thing. That normal and customary behavior says they will do the right thing. And I don't know if that's a valid assumption. If I can say that, I don't know. That's it. Any other comments?

Craig R. McKinley, General (Ret.)

I'm scared now.

Joseph L. Lengyel, General (Ret.)

You should be.

Scott R. Anderson

Let me go back, take a couple more online questions. We'll come back to the live audience. We've got, I think, time for a couple more questions. I'm going to go back to two related questions again to throw out to you all. First one from Nikki Wentling, who's a reporter at the Military Times. She asks, what are your thoughts about Texas Governor Greg Abbott building an operating base for the National Guard at the border and contesting federal authority? Something we've touched on a few times. Let's address it a little more squarely. And a second, a related question from Mike Board reporter at WOAI News in San Antonio, Texas, asked, from the start of Operation Lone Star, the aforementioned mission on the border, there's been low morale and a surprisingly high number of suicides. What needs to be done to protect guardsmen who are being called upon to enforce immigration law in that particular mission? Would anybody like to start?

Craig R. McKinley, General (Ret.)

We're lucky we've got a Texan and lives in San Antonio right here.

Joseph L. Lengyel, General (Ret.)

Great, I'm sorry Governor. No, I think that the issue of contention between federal and state activities that I would say and offer that we work through these things slowly through the courts, and we try not to inflame the situations. We've had disagreements between state and federal issues before. When the DOD said, for instance, same-sex couples can get ID cards in your bases now, it's federal law. We're making that happen. Some states objected to that. And it took us a while to work through a scenario. We worked through it methodically with state facilities and federal facilities, and ultimately, it's no longer a problem.

But if we get into a contest of butting heads, we don't make progress. So I think we should have the courts work through these issues, and they're doing that. We don't want to make the situation worse by putting guardsmen against Title 10 versus state forces or military members. That would be silly. And I think slowly and methodically, we have to work through the specific issues that they're working with on the border. And that Texas has a right to use the courts and the federal system has a right to engage in the courts, and we will see ultimately where this works out. And I think the idea is not to turn the temperature up, but to turn the temperature down, have a discussion, and work through it methodically until we come up with a solution.

Alyson Solomon

I do think that there needs to be some kind of survey of the force specifically related to this. You talk about the mental health issues. Everybody has seen the impact of the pandemic on the general public writ large and people who would even have considered themselves in a mentally good place and how things affected them. And then you put people in stressful situations that are outside their norm and the core of what they're trained to do, it probably heightens. You would take them away from their family, on and on and on. So how is that force, what do they need? I think we need to ask them because I think, as an outsider sitting in, I can't answer that question for that young soldier or airman that's been on the border for however many months. That’s been away from their family, that may not be receiving the same benefit as the person next to them and chooses to end their life because of whatever the reason is. So we have an obligation, as a country, if we're going to put them in that situation, to ask them.

Craig R. McKinley, General (Ret.)

Also, Dr. Stockton and I, in our time in the building, we visited all the border states on the southwest border. Customs and Border Protection was undermanned, understaffed, and they are still today. And we've been at this now for three rotations that I know of. And if you define the problem, it's CBP needs more people. The Guard conveniently can do that and work with that organization. But that's not the answer. It's going to be one of the large election issues, obviously, border security and immigration. So the American public are going to speak by who campaigns to fix that. It may be unfixable, at least from Dr. Stockton's and my viewpoint. We thought we had it fixed with 10,000 National Guardsmen on orders to support Customs and Border Protection. They weren't able to recruit, and it's a tough job for them. I don't underestimate what they do.

But that's the problem. Is we're going to continue to be called to do things when there are shortages of staff. And governors will take the political risk to do what Governor Abbott has done. And he's got a big bright spotlight on Eagle Pass and the park that he claims is his. And the federal government right outside the gate wants to get in and do their thing and not being allowed to get in. That's an amazing situation that maybe doesn't get a lot of press up here, but I know in Texas, it's a big deal. In my home state of Florida, our governor's big on border security. We have immigration coming in from central South America and Haiti and Dominican Republic. So it's not going to go away overnight. And there's probably enough blame to go around for everybody. But until we get it fixed, Dr. Stockton, they're still going to have a recruiting problem.

Dr. Paul Stockton

Completely agree with you, General McKinley, and I don't have anything to add.

Craig R. McKinley, General (Ret.)

It's not satisfying.

Scott R. Anderson

Let's go back to the floor a little bit. This gentleman has been very patient, thank you.

Audience Member

Hi, I'm Alberto Mora. I'm a former General Counsel, Department of the Navy. Could we drill down into Operation Lone Star for a bit more detail/ What happened? Were federal forces blocked from performing their mission on the border? How was that resolved? If that was the case, what's been the impact on the National Guard structure? And what's ahead for the forces, given the likelihood of another repetition of that scenario?

Craig R. McKinley, General (Ret.)

I can't give you the full details, but I know that at one point, Governor Abbott asked his adjutant general to put 10,000—they have a large Army National Guard in Texas, it's huge—10,000 soldiers on the border. And that was for a year. Now this is two or three years ago. And then he felt that the Customs and Border Protection were not stopping enough immigrants. They weren't incarcerating them. They were getting into Texas and actually moving further north. And so, he then got more governors to say, this is a national problem, not just a state problem. And they agreed with him. So they're contributing force structure, a tune of about 500,000 more in state active duty. So he's got a significant footprint on the border. I think the Justice Department has asked Governor Abbott to take down the fences at this park to allow both groups of people to get to the river and he said, no, it's Texas land. That's what I've heard. I could be dead wrong on the facts.

So it's a standoff. The federal force has not gone through the gate, I don't believe, to help. They're not there to fight the Texas National Guard. They're just there to try to see how we do it better. They put the barricades in the middle of the river. Justice Department said, you can't do that because people are losing their lives. But that's what people in Texas feel is such a significant issue that it's become a flashpoint. And I don't know how it resolves. Dr. Stockton and General Bohac said you can federalize Governor Abbott's troops behind that barbed wire. And is that going to solve the problem? Or is this going to cause more hard feelings? But there are only two ways to fix it. And we need to come together to try to solve that problem because National Guard men and women don't want to be confronting either the federal force or CBP. We're all on the same side down there.

From a legal perspective, do you have any thoughts on can a state declare their territory personally theirs and the federal government cannot get into that territory? Is that legal? That's where we are, I think.

Scott R. Anderson

We may be able to follow up the conversation a little more after. We've got a few minutes left. Anything more? Any other questions? I saw a few other hands up. Yes, right here.

Audience Member

Hi, thank you guys so much. I'm Joseph Nunn from the Brennan Center for Justice. Dr. Stockton mentioned a need to think big in this area. And I have a big idea that I want to hear your opinion on. The Posse Comitatus Act obviously only restricts federal military participation in law enforcement, and that's, arguably, one of the big weaknesses of the law. Thinking about the sort of innovative uses of the Guard in state active duty status that we've talked about, and also unprecedented uses of the Guard through section 502F, what would be your reaction to the idea of extending the Posse Comitatus Act to cover the Guard when it is under state command and control? Either if it was possible through federal legislation or having each of the 50 states implementing their own version of the Posse Comitatus Act?

Dr. Paul Stockton

I'll take a whack. I think it's a terrible idea. I love that the National Guard can serve and support law enforcement agencies at the direction of the governor because in extremis, when we really need the National Guard to save and sustain lives and maintain public order, I love it that the National Guard can help support law enforcement. So I'd keep things the way they are. But as I briefly mentioned before, I think I agree with my colleagues. We need to start looking at the hard cases, the difficult cases.

So I mentioned briefly the PRC’s, People's Republic of China, objective to incite societal panic. I'm not talking about the day-to-day corrosion of faith in democratic governance and efforts to divide Americans against each other—because that's going on and they're making some progress. And so my friend Vladimir Putin. The risk is that in a crisis, adversaries will use social media to inflame actual conflict at the societal level. And then I think we need to ask that hard case, what is going to be the role of the National Guard in helping law enforcement maintain order against adversaries that seek to inflame the divisions that they've already helped stoke amongst us.

Daryl L. Bohac

Yeah, I would agree with that. Dr. Stockton here about not taking away Posse Comitatus availability to the states. And I'll just give you an example. And following the murder of George Floyd and the Black Lives Matter protests in Lincoln, Nebraska. So the Black Lives Matter organizers worked with law enforcement about where they would be protesting, what the routes were going to be. It worked very well. But it also created the opportunity for others, and I know we can speculate on who those others were, but in a four-block area from the Hall of Justice to the State Capitol, did over $15 million worth of damage in two nights. And without the National Guard to support local law enforcement— and it's worth reminding us all that we're always in support. We are not in charge when we're brought into those situations. We are in support of law enforcement. So we were able to protect facilities while law enforcement could do their work with anarchists, or whoever they were, that were firebombing buildings and doing other things. I don't think any governor, and I don't think any state legislature would be very willing to give that up, quite frankly. And if I was still serving as an adjutant general, I would not recommend it.

Craig R. McKinley, General (Ret.)

It's a good question though. So when Dr. Stockton, who's a professor, said, I think it's a terrible idea, that's how he used to conduct his class. I'm just kidding, Dr. Stockton.

Scott R. Anderson

We have, I think we have time for one more question, Eliza. I suspect this might be a follow-up, so we'll go to you.

Audience Member

My follow up question is, as we all know, the Posse Comitatus Act is not a prohibition on using law enforcement. It is a rule, it's a clear statement rule, that law enforcement can only be used as provided by statute and by the Constitution, but that's a little asterisk there. I think the idea of extending it at the state level would be the same, that it would be the notion that in order for governors to use the National Guard for law enforcement purposes, it would have to be as provided under statute, which would be state statute and would presumably have pretty generous allowances for use in supporting law enforcement, as it should. But that would prevent governors who, because this authoritarian movement that we're all concerned about, it's not just at the federal level, it's at the state level. We're seeing that too. And I think in terms of thinking to the future, I think we want to think about ways that governors could misuse the National Guard, and whether there's a way to bring, to think about some of those potential misuses, and how to make sure that there is law in place that can prevent against some of those.

Daryl L. Bohac

Yeah, and I wouldn't disagree with your point here. I would just offer that I think, first, before we think about extending Posse Comitatus into the states, rather, let's look at what's available to the governors now. For example, in Nebraska, in order to arm people on state active duty requires another order and review by the attorney general's office. And also, in all of these cases, I think that we would probably be talking about the governor would be required to declare an emergency, which required well, it requires public notice, though, and the governors have to publish that.

And so there is at least some level of transparency. Maybe not as much as some would like. I think there are some controls there. But I think your idea’s got some worthiness from the standpoint of looking at what's in the state statutes that help provide some guardrails for those kinds of situations. And you could extend that argument to every other case we've talked about today.

Scott R. Anderson

That’s what I was going to say. That Posse Comitatus maybe is a bad parallel as much as state regulation because gubernatorial use of National Guard isn't restricted to law enforcement or things like that in the same way. That's a rich topic that we will dig into more.

Thrilled to have you all join us. Thank you all so much. Thank you so much to our panelists. Thanks to all our friends for organizing with us.

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