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Statement

Coalition Letter Urges Congressional Leadership to Retain Reforms to the National Guard and Posse Comitatus Act

On December 6, 2021, the Brennan Center joined twenty other civil society groups in calling on congressional leadership to preserve crucial reforms to the laws governing domestic deployment of the military in the 2022 National Defense Authorization Act.

Published: December 6, 2021

The last eight­een months have revealed glar­ing flaws in the laws that govern the deploy­ment of milit­ary forces on Amer­ican soil. During the Janu­ary 6 insur­rec­tion at the U.S. Capitol, the D.C. mayor’s request to deploy local National Guard person­nel faltered before an unre­spons­ive pres­id­en­tial admin­is­tra­tion, hamper­ing the D.C. govern­ment’s hand­ling of an ongo­ing crisis. Months before, in response to protests follow­ing George Floy­d’s murder, the Trump admin­is­tra­tion had simil­arly exploited the D.C. Guard’s unique command-and-control struc­ture to circum­vent the restric­tions of the Posse Comit­atus Act. At the same time, Trump had summoned a cohort of National Guard troops to Wash­ing­ton, D.C. against the wishes of its elec­ted leader. Finally, in the early months of the Biden’s admin­is­tra­tion, the governor of South Dakota soli­cited private dona­tions to fund a deploy­ment of her state’s National Guard to the south­ern border, an act of polit­ical theater that eroded civil­ian over­sight and raised the specter of corrup­tion.

The Fiscal Year 2022 National Defense Author­iz­a­tion Act (NDAA) (H.R. 4350), as passed by the House, contains provi­sions to address each of these short­com­ings. The D.C. National Guard Home Rule Act (Subtitle F) would place the D.C. Guard under the routine control of the mayor rather than pres­id­ent, a change that would enable more flex­ible response in times of crisis and extend the protec­tions of the Posse Comit­atus Act. Section 504, proposed by Repres­ent­at­ive Mikie Sher­rill (D-NJ), would bar inter­state deploy­ment under Title 32 of the United States Code without the consent of the host juris­dic­tion, while Section 503, an amend­ment offered by Repres­ent­at­ive Veron­ica Esco­bar (D-TX), would largely outlaw the use of private funds for National Guard deploy­ments across state lines. Finally, Section 529F of the House NDAA, proposed by Repres­ent­at­ive Adam Schiff (D-CA), would deter viol­a­tions of the Posse Comit­atus Act by impos­ing a remedy of evid­en­tiary suppres­sion.

These reforms would shore up long­stand­ing stat­utory defenses against the abuse of domestic milit­ary deploy­ment. The Bren­nan Center urges congres­sional lead­er­ship to retain these four provi­sions in the final confer­ence agree­ment for the FY2022 NDAA.

Coali­tion Letter Urges Congres­sional Lead­er­ship to Retain Reforms to the National Guard and Posse Comit­atus… by The Bren­nan Center for Justice on Scribd