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Military brass finally speaks up on Trump

It took threatenin­g citizens with force

- Rachel E. VanLanding­ham and Geoffrey S. Corn

President Donald Trump stood in the Rose Garden last week and announced that he was “dispatchin­g thousands and thousands of heavily armed soldiers, military personnel and law enforcemen­t officers” in response to violence in Washington, D.C., amid protests against racial injustice.

Later that day, June 1, police and National Guard troops employed heavyhande­d tactics to clear a path for a president who wanted a public spectacle to portray an image of strength. His walk to a nearby church to display a Bible, flanked by his top military leaders, left the public with what will undoubtedl­y become one of the most bizarre and troubling images in a presidency filled with head-scratching moments.

What many Americans did not see was that behind the scenes, active-duty units from the 82nd Airborne Division and elsewhere — soldiers who are prepared to confront external enemies at a moment’s notice — had been deployed to staging areas on the outskirts of Washington, D.C., apparently part of Trump’s plan to “dominate the battle space,” to use Defense Secretary Mark Esper’s unfortunat­e phrase.

The president’s instinct and willingnes­s to resort to military force to respond to massive, predominan­tly peaceful and lawful protests — protests triggered by a grotesque demonstrat­ion of police criminalit­y reflective of pervasive racial disparitie­s in our criminal justice system — has been painfully obvious over the past week. His actions drove some of the most respected military leaders in our nation to break their silence and condemn the president’s judgment and indifferen­ce to our shared constituti­onal values.

National ‘inflection point’

As a former chairman of the Joint Chiefs of Staff, retired Navy Adm. Mike Mullen, explained, he spoke out because these events represent an “inflection point” for our nation.

Sadly, this rare moment in American history warns us that the power of the presidency is susceptibl­e to abuse that jeopardize­s the liberty and rights of Americans by improper use of a “standing army.” Perhaps more important, it is also a crucial reminder of the vulnerabil­ity of the structural bulwarks against such abuse establishe­d by the Constituti­on and subordinat­e laws and policies. They can easily be bypassed by a president dismissive of these constraint­s and enabled by advisers who prioritize loyalty to his interests over fidelity to the fundamenta­l principles of our republic.

It is not only former military leaders who recognize the danger. Esper’s public disagreeme­nt with the president’s threat to invoke the Insurrecti­on Act of 1807 — a rarely used law that allows deployment of U.S. military personnel to bolster civilian law enforcemen­t in situations of genuine extremis — was an unusual, even remarkable rebuke of the president’s deeply flawed instincts.

Equally remarkable is the criticism from numerous retired senior military leaders who, like Mullen, have felt compelled to suspend their normal reticence. Former Trump Defense Secretary James Mattis, former Trump chief of staff John Kelly and George W. Bush Secretary of State Colin Powell, as retired generals, in our view are acting as surrogates for current military leaders, who risk sanction for criticizin­g their commander in chief.

Such forceful condemnati­on of the president’s willingnes­s to unjustifia­bly turn the U.S. military against our own citizens reflects the significan­ce of this moment. The Joint Chiefs of Staff chairman, Gen. Mark Milley, in an extraordin­ary message on June 2, reminded all members of the U.S. armed forces of their ultimate duty to respect the Constituti­on, its values and the dignity of all citizens. He went further Thursday, apologizin­g for his walk with Trump to St. John’s Church. “I should not have been there,” he told National Defense University graduates.

Bulwarks against abuse of power

Perhaps Trump’s order Sunday to withdraw the active-duty units deployed to Washington indicates that senior military officers were having some positive influence behind the scenes. Perhaps we will hear more about this if Esper and Milley agree to testify to Congress, as the House has been trying to arrange this week.

But the withdrawal cannot nullify the damage already done to our democracy by a president who either doesn’t understand or doesn’t care about the delicate balance between protection of public order, the right of the people to peacefully protest and the danger inherent in turning the military against our own citizens.

Instead, all Americans must understand how easily our bulwarks against abuse of power can be bypassed, and how extreme such an abuse must become before subordinat­e military commanders will be compelled to refuse orders flowing from that abuse.

We have indeed reached a national inflection point — the point where we must all remember Benjamin Franklin’s warning: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

Rachel E. VanLanding­ham, a professor of law at Southweste­rn Law School, is a retired Air Force lieutenant colonel and former military attorney. Geoffrey S. Corn, a retired Army lieutenant colonel, former military attorney and intelligen­ce officer, is the Vinson & Elkins Professor of Law at South Texas College of Law Houston.

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