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GUEST COMMENTARY - As the situation in Southern California is settling down, it is useful to take the time to understand how the military can be used in a domestic crisis. None of this is easy. Leaders are having to make decisions when none of the options are very good. They are having to choose what I call the “Least-Worst Option” and own it. Striking a balance between not being too impulsive nor being paralyzed is the goal: a timely decision that has a positive outcome. I know the pressure these leaders are under during any crisis. In this case, what adds even more pressure is the use of military assets on America’s streets. The background to making such decisions is not well understood by many. Let me try and briefly explain it so you can tell your friends.
In my last assignment in the military as a 2-Star general, working through crises was my full-time job. During my time as the Director of Operations for USNORTHCOM, I was responsible for coordinating the use of Department of Defense assets to support crises in America. Our primary resource was our military forces. These forces provide logistics, security, communication, transportation, medical care, and a variety of other capabilities to help. While most Americans see the military in uniform as a single type, there are really two different kinds available in a crisis.
The first are what most Americans would associate with the military. These are the federal active-duty forces provided by the military services under rules established by U.S. Code Title 10. That’s the legal framework for the use of active-duty forces. In the situation in the news today, the most relevant issue for these federal military forces is that they are subject to the rules of the Posse Comitatus Act of 1878, which prohibits them from traditional law enforcement activities, including making arrests.
There is a second version of uniformed military forces that people would know as the National Guard. They operate under U.S. Code Title 32. National Guard forces normally operate under these separate rules because they are assets of the states they are assigned to, under the control of the Governor. In this status, the Governor can use the forces for logistics, security, and even law enforcement as desired. The Posse Comitatus Act doesn’t apply to the National Guard when they are acting as state forces.
To further muddy the waters, a unique aspect of National Guard forces is that under certain circumstances they can be moved under Title 10, become federal forces, and are no longer under the control of the Governor. This is how National Guard forces were deployed overseas to combat zones, but it can also occur in the United States if the forces are deemed needed by the federal government.
How does this actually work? Imagine a large hurricane that strikes America’s southeast coast. Before the event, we could position Title 10 (Federal), Title 32 (State), and some Title 32 forces moved to Title 10 (now Federal) to support evacuation, emergency response, and recovery after the storm. Americans generally consider this an appropriate use of these different forces to help people in need. Yet what is happening across America today feels different to people.
The Trump Administration made the choice to step into the events in Southern California with the National Guard converted to Title 10 as federal forces, and active-duty U.S. Marine Corps units that are always Title 10. Because of the Posse Comitatus Act, these forces are prohibited from any law enforcement activities. So, what is the value of deploying these forces? Here are several:
- These forces provide extensive coordinated capabilities such as logistics support, heavy equipment, communications, infrastructure protection, medical care, and security.
- These forces free up law enforcement organizations to focus on law enforcement activities.
- These forces are paid for by the federal budget and not a state budget.
You would be surprised how important that last one normally is for a Governor.
Here are some questions I have been asked recently: Can the President assign National Guard forces to Title 10 without a governor’s approval? Yes. There are provisions in Title 10 and laws such as the Insurrection Act of 1792 that give the President that authority. Are these forces useful? Yes. Is it a good idea? When public safety is threatened by violence, looting, and illegal occupation of public property such as roadways, yes. Does it have an impact on how the public views the military? Yes.
According to a survey by The Hill in 2018, 70 percent of Americans had "a great deal of trust and confidence" in the military. By 2021, that number had decreased to 56 percent in a survey done by the Military Times. More recently, in 2023, in a survey by the Reagan Foundation regarding public perception of the military, trust dropped to 45 percent, a sharp decline from previous years. While there may not be hard data to indicate the exact reason for the decline, one can assume that when military forces of any kind are used in ways the American public sees as controversial—especially since 2020—it will have an impact.
It should be noted that this isn’t the first time active-duty and federalized National Guard forces have been used in L.A. On 1 May 1992, then-President George Bush mobilized the California National Guard under the Insurrection Act in response to widespread violence after the verdict acquitting the officers on trial in the Rodney King case. The major difference from today is those forces were requested by then-Governor Pete Wilson.
What does all this mean for today and tomorrow? While politicians will debate the reasons for the deployment of forces, what is clear is that once the forces were deployed, the additional security capacity allowed the mayor’s curfew to be more effective and freed local law enforcement to pursue their mission. In terms of future impact, here are some things I am watching:
- Will the deployment be challenged in court, affecting future uses of the National Guard in Title 10 roles?
- Will there be a continuing degradation of confidence in the military by the public? This may be the most worrisome result of the current situation. If confidence in the military continues to erode, are there consequences for future public support for national security and defense operations?
- Is this a sustainable reaction by the federal government if these situations become widespread?
These questions will play out over the next months. We should all be concerned with individual rights, the proper role of government, and active citizenship. Each of these is a hallmark of our democracy. The current situation shows the complexity of protecting all three, and we should all watch closely.
(Jack Briggs, Maj. Gen. (Ret.), brings 40+ years of high-stakes leadership—from commanding 30,000+ troops in Afghanistan to advising top university leaders. He now equips decision-makers to lead with clarity when the stakes are highest. Learn more or inquire for speaking/consulting via LinkedIn or Voices to Connect.)
