Syracuse University Magazine


Soldiers on the Home Front

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 that 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,” Banks explains, “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.”      —Martin Walls

Photo courtesy of U.S. Department of Defense