How we deploy the military domestically, and why

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, Lee Rawles, and today I’m joined by Jonathan D. Bratten, editor of the book, Forging the Framework: Evolving Law, Policy, and Doctrine for the US Military’s Domestic Response. Jonathan, thank you so much for joining us.

Jonathan Bratten:

It is my pleasure. Thank you so much for giving me the opportunity to nerd out about history stuff.

Lee Rawles:

So Jonathan, can you tell us a little bit more about who you are and how you came to edit this book?

Jonathan Bratten:

Sure. So I am by a sort of trade profession. I am a historian and I was selected to be the US Army Scholar and Residence. I’m also a National Guard officer, so I should probably preface this with saying anything that I say here is my personal opinion does not necessarily reflect the position of my employer, but I was selected to be a scholar and resident for the Army Center of Military History, which involved a one year tour teaching at the US Military Academy at West Point, and then one year working at the Army Center of Military History in DC. And as a National Guardsman, part of that background is a lot of our dual status nature, dual status as in Title X of United States Code, Federal Title 32, United States Code State. Those are two big two terms that we’ll probably be throwing out a lot, so I want to get those right out there.

But when it was time for my utilization tour, we were looking at what is sort of something that I could provide to the National Guard or the field writ large that would help us further our scholarship and our understanding of who we are. And one big piece of that was looking at the history of domestic military operations. And there’s a lot of really, really good works out there. So military history in itself has, I think, a three or four volume set on the role of federal forces in military irrid civil disorder. You’ll note the word federal, not a lot on state. And as I was sort of going through all of this, I was going, “All right, well, man, we’ve got this really robust framework today, this legal framework for what to do when military forces are called up.” There’s not a lot talking about why that is.

And so my millennial brain just sort of triggered there and I was like, “I want to know more about … I want to know why a lot of our laws came into being. Why is it set up this way?” And so that is the birth of this book.

Lee Rawles:

And the title, as I said, was Forging the Framework. And you actually also said the framework. Let’s talk about what framework are we discussing here?

Jonathan Bratten:

Yeah. So this is not a thing I would expect anyone to know because most of us in uniform also don’t really know it either. It’s not, unless you are called on as either a National Guard soldier or even in the regulars or US Army Reserve, unless you’re called up for defense support to civil authorities, as it’s called, or domestic operations, DOM OPS. And of course, we make everything into an acronym because you got to save a few seconds. Unless you’re activated for one of these missions, you’re probably not going to know much about it. But the framework that we have today for defense support to civil authority is sort of a robust set of laws and regulations governing what happens when a unit or a person from the military is activated for domestic support. And that can happen in sort of three capacities or duty statuses, and the framework governs that.

You can call up for state active duty, which is exactly what it sounds like. You are in your state, you might even, if there is a arrangement between neighboring states, you might cross over into another state, but you’re still in state service. Under Title 32 service, you are, again, still state service. There’s certain requirements that have to be met to activate personnel under a Title 32 activation. And then for a Title X federal activation, you have to meet very, very certain specific requirements and it is a lot more rare. All these requirements are the outgrowth of certain things that happened in our nation’s history. And if I can summarize the framework briefly, it is to try to provide order to what is, in a sense, a very disordered activity of activating military for domestic operations under our state and federal laws, which of course aren’t confusing at all.

Lee Rawles:

Not at all. Not at all. Very clear cut. So

Jonathan Bratten:

Hopefully that was clear as mud, but the framework is just sort of meant to be a thing that cuts down on as much of the friction as possible in these situations. And I can go into more details as we go on.

Lee Rawles:

Well, what I really loved as a reader of this book and great news to everyone, the Army University Press has this available for free. You could search Army University Press, forging the framework. I’ll also have a link in the bio to this episode, but what I loved about it is it takes us back through history and says, “Oh, this is why we do it this way.” And a lot of the times I was reminded of that old maxim about how you’re always preparing to fight the last war. So the country faced some sort of crisis, things went well or poorly, and then the army or National Guard tried to cobble together some regulations and laws to fix what went wrong in the hope that it would be useful in the future. And I really liked seeing where some of these things came from. You start out the book talking about the militia beginnings.

So before the Revolutionary War, when these were colonies, and I learned some stuff in there, one of the things I found fascinating was the different focus of Northern militias versus Southern. I’d love to have you talk a little bit more about that and what this pre-constitution era ended up resulting in when it comes to the framework or how we were setting up our domestic army.

Jonathan Bratten:

Man, this chapter was so fun to research because I also learned a lot. One, I learned that our forebearers were just as paranoid in conspiracy theory prone as we are today. The

Lee Rawles:

Catholics are coming.

Jonathan Bratten:

The Catholics are coming. Yep. That’s just a massive panic in the late 17th century without one. I want no spoilers, so people can go read that. But yeah, the looking at … It probably comes as no surprise that so much of our law about how the military can be used domestically comes from British common law, right? Just like so much of the rest of our legal framework. That’s really where we tend to draw a lot of it. And so a lot of what I would sort of call the foundational basis of military for domestic purposes comes from this era. So something like how that it is a multi-branch governmental responsibility for employing the militia domestically. And let me break that down. So I guess I would say it is the governor or the lieutenant governor may call up the militia in the case of a domestic emergency with the consent or the request of a magistrate.

All right, so we’ve got two branches there. If the legislature does not fund the militia appropriately for training, manning, and equipping, then there’s no militia to call up. So we have, in essence, you have the three branches of a colonies government are required to actually get this whole doggone system to actually work. And it gets very specific also when you look at what conditions have to be met before you resort to essentially calling up a military force. The British are, with a lot of experience, don’t love use of the military domestically. That’s not a big thing that they enjoy. They have a long history of distrust of standing armies, usually due to how the Crown used them. And this also kind of goes for the militia as well. There’s a distrust there. And so one of the precedents that we also get is that if you’re going to request military support for suppressing a riot or a forest fire issue or pirates off your coast, you’ll have to show that you’ve exhausted all additional assets at your disposal.

This is something that is going to … It continues on to this day. Today we have RFAs, requests for assistance that literally one of the first questions that’s asked is, “What are all the resources at your disposal and have you exhausted them?”

Lee Rawles:

It’s kind of the equivalent of an IT person saying, “Well, have you checked to make sure the computer is plugged in?

Jonathan Bratten:

” Exactly. It is the, “Have you tried turning it on and off again?” And so it was really cool to see the way that the roots of our processes are built into the colonial era, just as the roots of a lot of our frictions are built into the colonial era. And I would say one of the big themes of domestic military law and policy and regulation is friction … It’s the federalism friction is, I guess, the easiest way to say it, is it is the friction between the state level and the national level, the local level and the state level is really looking at this is the thing that stresses the framework as it develops, as people are trying to keep both of those things in balance.

Lee Rawles:

Well, and in the colonial era, you point out that there’s kind of mistrust by the British of using military forces versus civil forces. And part of that is, especially with these colonists, the colonial militias, not the British army, but the colonial militias are just the colonists and their sympathies, if you’re trying to use them to address civil unrest, very probably will be with the people who are civil unresting, who are- Oh yeah.

Jonathan Bratten:

It

Lee Rawles:

Gets

Jonathan Bratten:

So messy.

Lee Rawles:

Who are the rioters? Are you going to go wave your bayonet, your cousin?

Jonathan Bratten:

And that right there is also … Yes, in fact, you are going to do that. But that is also one of the roots of it. But there’s also this … So there’s another … You get at two pieces of the 250, 300 years of the themes in this work. One is regular military forces do not want to be used domestically. They hate it. There’s a great quote from Major General Jeffrey Amherst, who’s the commander-in-chief of British forces in North America in the seven years war in 754 to 7063. And when he’s asked to send regulars against anti-military rioting, he wrote that to do so would be quote, “entirely foreign to their,” the regulars, command, and belongs of right to none but the civil power.

That is the key piece is that it is defense support to civil authorities that use of the military domestically, especially in the cases of civil unrest and extending to hurricane response and wildfire, disaster relief, everything like that, it is always the military is the support to the civil authority and the civil authority calls the shots. That gets tested real big as time goes on. And one of the big tests is sort of this, you mentioned the dual piece of the militia and then the north and the south, this dual evolving roles where the northern militias are much more looking outward, mainly towards Canada.

Lee Rawles:

They did burn down the White House a little bit.

Jonathan Bratten:

Well, the British-

Lee Rawles:

We had it coming.

Jonathan Bratten:

I refused to give a … I checked all the troop lists and made sure that there were no Canadians in the group that burned the White House. Can’t give them that satisfaction. But yeah, the Northern militias definitely develop looking with an outward focus. While Southern militias, as chattel slavery takes root in the South, and then as there’s a growing … As the enslaved population begins to approach the number of the free population-

Lee Rawles:

And surpass it in South Carolina.

Jonathan Bratten:

And surpasses in South Carolina, you go from a tacit sort of understanding … I mean, you have free blacks and enslaved blacks fighting in the Yamasy War in the early 1700s, and then right afterwards, it’s like, “Oh, no, you lose all your civil liberties whatsoever.” And then soon, the militia is required to take up the duty of slave patrolling because this idea of a enslaved person’s revolt is the most terrifying thing for enslavers through their entire … I mean, Haiti, the uprising in Haiti absolutely threw these guys for a loop and changed so many laws in the South that reduced civil liberties for everyone, not only the enslaved, but the free white population basically saying, “Hey, your free time isn’t actually your free time. You have to do slave patrols. You have to garrison plantations.” And so very different ways that the militia evolves and looking at how forces used domestically.

Lee Rawles:

And there were a lot more slave revolts, the enslaved people fighting back rebelling than I think were taught about in at least public school. There were a number of times while reading this book that I paused, went and looked into some more of the events that you brought up that were totally foreign to me.

Jonathan Bratten:

And not just enslave revolts, just unrest at all levels. Remember, we have the First Amendment providing that demonstration of free speech is so huge. When you don’t have the English colonists in North America don’t have something like that, there’s sort of this understanding, this almost tacit understanding in the 17th and 18th centuries that civil unrest targeted rioting against a specific image of a thing. So say the stamp acts in 1765, and then following the 1766 Stamp Act riots, two years of riots, really. These riots are really focused at physical examples of the thing, whether it’s a representative of the Crown or it’s the stamps themselves, the collectors. It’s not widespread rioting and looting and vandalism. And so there’s almost this tacit approval from people, especially people in positions of power, governors, lieutenant governor, if they agree with the mob, they’ll go, “Okay, yeah, we’ll just sort of look the other way.” If they don’t, they’ll call out the militia.

And then as you pointed out earlier, you get the problem of this great moment in Boston, I think it was, where Lieutenant Governor Thomas Hutchinson threatens the crowd that he was going to raise the militia and some wag says, “They’re already raised. They’re the ones outside holding clubs.” And so there’s lots of violence. There’s lots of public organized violence through this era, which is acceptable as long as it’s by the right people and in the right way. And by right people, I mean white people and specifically middle class white people, as soon as you begin to have sort of the peasants revolt, as we see in the 1760s and ’70s in upstate New York or any revolt or active petitioning or anything from the enslaved community, it is met with violence, whether from the militia or from British regulars as in the case of upstate New York.

So we have a long proud American tradition of rioting for various purposes. And yeah, using the militia as your stop gap for civil unrest means that a lot of times the militia is not going to be siding with sort of law and order as the Crown sees it in this revolutionary era, bringing about, really, you can see the confluence of all of this coming together in the American Revolution.

Lee Rawles:

And it takes a twist when we come to kind of the gilded age and labor unrest. And I definitely want to get there, but it also, you raised the fact of the militias being drawn from the middle class, upper middle class white male population and the regular army as it exists, when it exists, there are class differences, it seems, between the regular army and the militia. And I’d love to hear a little bit more about that.

Jonathan Bratten:

There are. And you have to be real careful with this as you look at, well, one, the evolution of American class systems, and two, what era of the army are we talking about? As I’m sure a lot of people know, the Constitution just gives the … It says that Congress may raise an army. It shall keep a Navy, it may raise an army. And this idea of a standing military force from a founding generation that had just seen what happens when regular forces are used domestically, because we have to remember that the American Revolution is not a foreign war. This is considered domestic on behalf of the Crown. They’ve just seen what happens when you have a large regular force. And so there’s a choice made to keep the regular army very, very small. And about every 10 years or so in Congress, someone says, “Hey, we should really reform the militia act to give it more teeth and actually provide the state’s money for maintaining their militias and a uniform standard of training, as well as also increase the size of the regular army.” And then there’s the rest of Congress going, “Nah, we don’t want to do that.

That sounds like authoritarianism. No way.” And that’s basically the history of the US army until the Civil War is just the resistance to change. There’s a militia act in the 1790s, a national militia act that does not get changed until the 1860s, literally because the civil war is going on right at that moment. Sort of to your earlier point that we muddle along as best we can, always suddenly we hit a crisis and everyone goes, “Oh my God, we need laws and policies and statutes and what do we do? “

Lee Rawles:

Maybe now after the fact, we should do something.

Jonathan Bratten:

Right. The horse has left the barn. Let’s put up a brand new barn door. And so much of our laws and policy come about because of

Things that have just passed. I mean, you have the whiskey rebellion is the impetus for Congress going, “All right, yeah, we need to actually revise the Insurrection Act Act and a calling forth act in 1795 and things like this. ” Anyway, but as the army is developing, yes, it is the regulars are usually drawn, the enlisted ranks of the regulars are usually drawn from lower class portions of American society or immigrants or people who would be sort of considered lower class, even though they may not economically be sitting in those circumstances versus militia service through the 19th century is really running the gamut. I mean, you’ve got dirt poor companies out in the sticks and you’ve got the white collar worker … You got the rich kids with their fancy uniforms in the cities where their militia is basically their little club that they get together at to get drunk together and fall off horses.

So really, that runs the full gamut. And when you think about use of domestic forces, your use of military forces domestically, it begins to make a huge difference. I shouldn’t say begins. It’s always made a huge difference who is answering the call, if that makes sense. There’s always sort of experimentation of, all right, well, is it best to activate a unit from a specific area? So if there’s a riot in Boston, do you call up the regiment in Boston? You had that example in the 1760s of, yeah, they’re the ones outrioting. Massachusetts tries to activate units, call in units from outside Boston, and there’s this sort of class contest and solidarity where most of the enlisted soldiers don’t show up. And a few of the officers show up sort of shamefacily going, “Yeah, my bad. I don’t know where my soldiers are. ” The governor of Massachusetts is like, “I’m taking your charter away for several companies for not responding.” So it really does sort of matter who is serving in the military and which units are called up.

And that makes a huge difference really looking in the 19th century looking at labor and industrial disputes. Well,

Lee Rawles:

We’re going to take a quick break to hear from our advertisers. When we return, we are going to dive into those labor disputes. Welcome back to the Modern Law Library. I’m here with Jonathan D. Bratton, editor of Forging the Framework: Evolving Law, Policy and Doctrine for the US Military’s Domestic Response. So one thing that I found really interesting was you acknowledged that many of the racism riots, so for example, what happened in Tulsa or just violent attacks against Black Americans, that was done by, or the military was involved in that, but that didn’t necessarily lead to a lot of changes to the framework. On the other hand, the labor unrest did. So can you talk more about that period of time and how it changed things for military use domestically?

Jonathan Bratten:

Can I? Man, how much time do you have? Because this is a huge piece. And I want to say before I forget, I am absolutely indebted to all the authors who worked on this with me. Luke Hargrove.

Lee Rawles:

Yeah, let’s take a moment if we could just list the other authors.

Jonathan Bratten:

Yeah. Luke Harger does a great job looking at the early Republic and how sort of the domestic unrest and really the Wild West era. I mean, the Vice President of the United States is off doing treason, but Jefferson can’t actually prove that he’s doing treason.

Lee Rawles:

He just wanted his own Mexican kingdom. This is Aaron Byr. Aaron

Jonathan Bratten:

Berr just going off and doing his thing. I mean, it is a wild era and everyone’s trying to make laws about how do we get after whatever this is? And Luke does a great job of outlining that. Aaron Halft, poorer guy, I threw him the Civil War and Reconstruction, which is an enormous … I mean, we could do an entire episode looking at the thing that everyone knows, the Posse Comatatus Act, and then everything that they don’t know about it, which is probably a lot because I did not know as much of the background on this. Aaron lays it out masterfully, the violence endemic, essentially that the Civil War does not end in 1865. It continues as sort of a low grade insurgency that’s fought out both with violence and also politically. These become political campaigns that reshape the South and then reshape national law with the end of Reconstruction, the Posse Comatatus Act, basically the South getting a guarantee that they will not have federal troops back in their communities to enforce the Constitution and to protect the voting and civil rights of freed persons.

And then Aaron was a huge help with me as well in the labor chapter as he got into the 1877 railway strike, which is another area that I was not familiar with. And he found out the great tidbit of that the Pennsylvania National Guard … I always hate giving Pennsylvania credit for anything, because they’re going to do it themselves. So why should I bother?

Lee Rawles:

Oh, and we have not actually said. I believe you’re from Maine, the Maine National Guard. Is that right?

Jonathan Bratten:

My origins are actually in Ohio, the state that’s superior to Pennsylvania and almost everything. I’m required to say that because of my birth rate. But yes, I spent about 10, 15 years in Maine, but Aaron did a great job of identifying that the Pennsylvania National Guard was actually the first organization to develop some type of regulation for its military, one called into service for domestic response. Granted, the regulation was cavalry works really well against mobs. So maybe not the best, but at least it is a step towards encapsulating a lot of this. And then Ryan Hovatter did a really excellent job on looking at how the 50s, 60s, 70s shaped our collective consciousness about the use of the military

Lee Rawles:

Through- Including a closer look at the Kent shooting, I learned a lot in that chapter.

Jonathan Bratten:

Yes. Really looking at how the army, and especially the National Guard for the first time, go, all right, machine guns, bayonets, and rifles are probably not the best tools for answering riots. And we will actually come up with a less than lethal response to riot duty, and we will train units in it. We will have training manuals only last for a very brief time. The Cold War sort of overtakes that. But really, really crucial eras and really good summation of what that era meant for the US military when it looked at domestic response. And then the laws and regulations that came out of it. And Meg Church then hitting the 90s and the 2000s, really looking at the development of emergency management assistant compacts, which are legal agreements between states to share resources, which fascinatingly goes back to the colonial era. You have essentially those things existing between various states, these mutual assistance compacts to help each other in the case of a crisis.

So I love finding the tiebacks back to the colonial era and then all the way today. And of course she has to talk about Katrina, which is the big one. I mean, that and the Stafford Act in 1988 are the two big events that sort of build our entire framework that we have today. It’s the compelling historical event that shifts a lot of things in law and policy that were not shifting prior to that. And then Joe Miller coming in at the end with the final chapter, looking at what does the future look like? And given that we really wrote most of this in 2023, the future is shifting rapidly. And I think we’re about fifty fifty on what it looks like, but just all that to briefly say really indebted to their hard work.

Lee Rawles:

So let’s dive into the labor history part of it. And this is something I was raised in Illinois. My high school US history teacher specialized in labor history. So the Pullman Strike and events like that are known to me, but I mostly, when I think about it, I’m like, oh yeah, the Pinkertons, et cetera. Let’s talk about the actual US military and how these labor strikes, riots, rebellions were handled and what it led to.

Jonathan Bratten:

Yes. And I’m going to center in on Pullman because more than any other event, this is always a problem with books, is you write something and then immediately after you write something and it’s published, you discover a thing and you’re like, oh man, that would have been great. We should have gone

Lee Rawles:

In.

Jonathan Bratten:

Pullman, I think more than any other event, except for Hurricane Katrina, shapes how the military is used domestically. And I want to back it up by, again, looking at our class question from earlier. You have a US Army officer corps that is identifying mostly as upper class, definitely upper middle class. They do not consider themselves working class. Now, let me paraphrase that. That is a broad generalization where I’m talking about general officers, sort of colonels and higher. Again, it’s a still very small regular army in the 1890s. We’re looking at around 35 to 45,000 troops spread all over the place. But army officers as a group tend to decide with elitists. And to a point where the secretary of war, so many members in government and in members at higher levels within the war department that associate themselves with corporations, big business, et cetera, that the secretary of war basically just says, “Hey, what if we just put all of our future military bases outside large industrial cities, that way we’ll have troops on hand and in any case that there’s an incident.” That’s how hand in glove the army and corporations are at this point.

And I mean, it’s very open. I mean, officers are talking openly about the kickbacks that they get. They’re talking about any type of labor organizing as this like, they don’t call it a fifth column yet because that idea hasn’t really come into being. But there’s this idea that there’s like the secret enclaves, as Major General Nelson Miles calls them. And it’s sort of like law and order versus the bad guys definitely. And there’s definitely overtones of like painting them all as a socialist and communists. And this is anyone who’s just like striking for a slightly better situation. So that’s sort of how dire it is at the army level when we’re looking at like, what role are these guys going to play in a crisis? And the crisis really hits … I mentioned the railroad strike of 1877, that’s big. It’s all across the East Coast in the Midwest, but the big one is, as you said, Pullman in 1894, panic of 1893, utterly devastating, leaving whole community, whole states with massive unemployment.

And it really hits the Pullman Car Company, which makes these luxury sleeper cars in Chicago.

Lee Rawles:

Yes, for railroads. And George Pullman was such a character. And I encourage anyone to go out and read about him as well. He really saw himself as this benevolent father figure to his workers who were like, “We have fathers and we don’t need you. “

Jonathan Bratten:

Exactly. Yeah. He had this paternalism of like, he considered himself a progressive that he was doing, he was uplifting the common man. And the common man’s like, “Hey, you’re paying me in company script. I can’t buy anything outside of the company town and you won’t raise my wages even though our work has dropped off and prices for everything in the company town of Pullman is higher than everything that costs in Chicago itself.”

Lee Rawles:

And he would control things like what color curtains. I mean, he was like the worst HOA president ever. He would control personal aspects of his workers’ lives and he had them kind of trapped in this company town and spoiler alert. But the legend is that when he was buried, they did so under several tons of concrete and steel because they were so worried that people would dig up his grave and dust create his body. So that’s how it went for George Pullman.

Jonathan Bratten:

Yeah. Not the most well-liked guy.

Lee Rawles:

No, but the Pullman Strike.

Jonathan Bratten:

There’s so many great books and there’s so much work out there on the Pullman Strike. I really recommend that people go look. There’s a great book, Edge of Anarchy that looks at the Pullman Strike writ large across the entire country because spoiler, it does this. So it starts in Pullman, the strike begins. I’m not going to get into the details of all of that, but you have … Pullman is a great example because it shows what happens when you pit local and state versus federal. The Attorney General of the United States, Richard Olney, he had just been representing the large railroad companies, the Managers Association as a special attorney before he became Attorney General. So you knew where his loyalties lay. And he was not like a, “Ooh, twist, this guy actually supports workers.” He in fact does not. And as Attorney General, he immediately goes into Chicago to visit and wires back and says that he needs a force that is “overwhelming and prevents any attempt at resistance as a solution to end the strike.”

Lee Rawles:

And this was not being requested by the Chicago mayor or the Illinois governor. They supported the strikers.

Jonathan Bratten:

Right. They supported the strikers. The strikers were peaceful. So Mayor Hopkins and Illinois Governor John Altgeld saying, “Hey, things are chill.” The chief of police is like, “Hey, things are chill.” Until a whole bunch of federal marshals and deputy federal marshals show up at the request of attorney general only and then Edwin Walker of the manager’s association, who is the special attorney for the national government with a pulmon strike and also representing the managerial association. So no conflict of interest. And they use … So we talk about how posse comatatus is used to prevent federal troops being called in. And so here you’ve got the attorney general saying, “Hey, we need federal troops.” And an intelligent reader is like, “Hey, what gives? How does this happen?” Congress is not going to just take away a tool of the national government at the behest of one section of the country.

So almost immediately after the Posse Commatatus Act goes into effect in 1876, 77, Congress passes four revised statutes. These revised statutes authorize the use of federal troops to protect interstate commerce, the mail, any sort of federal or national vested interest, I guess is the best way to put it. So almost immediately you have an end run around established this law that is established that everyone quotes all the time. I was like, “We can’t do that. Possicomatatist, posse comatatus. Federal troops cannot be sent in. We can only use state troops.” Well, Congress put a loophole in and they also, using also the 1890 Sherman Antitrust Act as well, just throw that one in for good measure, ironically. And these revised statutes, this is what President Grover Cleveland uses to send troops into Chicago. So you have a situation where, and the army is a little bit like … I mentioned the army doesn’t love being involved and the irregulars don’t love being involved in domestic disputes.

The regular army is a little sort of like, “Hey, maybe we should go in, but also no one’s requested us, so I’m not sure.” But Cleveland sides with his attorney general and overrides General Miles, the commander of US Army forces at this time, in this region. And Cleveland approves Olney’s request and you have the garrison of Fort Sheridan outside Chicago inside Chicago. And ironically, Fort Sheridan was posted there because a whole bunch of local industrialists paid for that base to be outside of Chicago, but that’s a different story. Anyway, what you have now is suddenly federal troops and federal marshals in this city. And in response, Governor Altgeld sends a message to the president saying, “Hey, I didn’t request this.

What happened to the law? I have not exhausted all my … I haven’t even called on my local resources. I haven’t called up the National Guard,” which he now does. And now you have a situation where you have city police, you have state National Guard, you have federal marshals, and you have the regular army. So who’s the civil authority in this case that they’re all answering to? And the answer is there isn’t. And it’s a absolute mess. You have examples of friendly fire, you have examples of US deputy marshals, the Chicago police catch deputy marshals setting fires in cars to make it look like there’s mob activity. You have reports of incidents and the militia and the regulars rushing to the same spot. No one really knows who’s in charge. And of course, all of this just fans the flames inside Pullman and around in the Chicago stockyards.

Mobs do begin to get violent. They do begin stopping trains. More and more trains, this is the authority to use the revised statutes gets called up. They’re stopping interstate commerce. The strike goes nationwide all the way out to California. And you have a very tragic example of state troops firing on a group of strikers as the state troops are being, they’re getting hit with rocks and bottles and a lieutenant gives the order to fire and then charge and seven people are killed. While the regulars do not kill anyone in Chicago, they do in other cities around the US as the strike goes nationwide and violence spikes and it’s met with very different approaches in different areas. So California is a fascinating example where you have the California National Guard called up for a strike, I think it’s Sacramento, and there’s this showdown between guardsmen and strikers, and it’s along the picket line, and a striker walks up to a guardsman and says, “Bill, if you kill me, your sister’s going to be a widow.” And that gets to the nature of the heart of this issue is you have neighbors sort of being placed in these really tough family members throughout the entire history of defense support to civil authorities, this is a constant.

And the California case is fascinating because literally the strikers and the National Guardsmen sit down to sort of talk it all out and the National Guard Unit just disbands. They just walk away.

Lee Rawles:

Nevermind.

Jonathan Bratten:

Nevermind. We actually, we like these guys. We get along with them. The big result of Pullman is that it is a black eye for everybody. No one looks good coming here. The Illinois National Guard doesn’t look good. The regular army doesn’t look good. The strike is sort of a failure from the perspective of the strikers and the labor organizers. And for the army, it is this sort of gut check of what are we doing? You have General Scofield publishing General Order 23, which is one of the first federal sort of tactical guidelines for what to do in their civil unrest. But from a larger sense, the state militia and the regular army look at this and they go, “That was bad.”

Lee Rawles:

Nobody liked that. Yes.

Jonathan Bratten:

Nobody likes this. What are we going to do about it? And so that plus the absolute disaster, really sort of logistically and organizationally speaking, that is the wars of 1898 in Cuba and Philippines and Puerto Rico causes the army to do some real soul searching and be like, “What are we doing? We need to be a professional organization.” And it really causes the states to do some soul searching where you have, in 1903, you have the states come together and with the assistance of the National Guard Association of the United States say, “Hey, we want out of this riot business. We are being tarred with a brush that all we are is a riot force. We are going to enter an agreement with the regular army that we are going to be the combat reserve, the strategic reserve of the US Army, and in payment, we will surrender our state’s rights to govern our militia as we choose.” And this is the 1903 Militia Act, the official birth of the National Guard.

This is the bit that I really wish I could have put in the book because when I say the Pullman shapes the future of the US military more than almost any other historic event, asides a war, this is what I mean, is you have states, and this is very rare, as we all know, states giving up authority and a measure of sovereignty in order to say, “Yeah, we don’t want to be a part of this. ” We just don’t want to be a domestic constabulary. Not to say that states aren’t in the future, but it gets them … It’s a beginning of changing that image and getting out of the business.

Lee Rawles:

Well, we’re going to discuss what comes next after we hear a word from our advertisers. Welcome back to the Modern Law Library. I’m Lee Rawles here with Jonathan Bratton. And Jonathan, certainly people still encounter the National Guard in riot situations, but I know that my first encounter with National Guard forces might be a little more representative. I was 12 years old. I was at summer camp and the 1993 great flood was happening. And instead of regular summer camp activities, I ended up helping sandbag the town of Hardin, Illinois for several days before I was evacuated. And I did so alongside National Guardsmen and prisoners from the local jail and community members, it was disaster response. And I think that that’s probably nowadays how most Americans domestically encounter the National Guard. So let’s talk about that portion of domestic response. It isn’t only coming from post Pullman, but it’s become a large part of National Guard duties, even though we theoretically have FEMA, which is not under the Department of Defense.

And it somehow becomes the Department of Defense’s problem whenever we have these emergency response domestic events. So let’s talk about that portion of the framework.

Jonathan Bratten:

I love that because that’s also my first domestic response mission was in 2011. I’d just been commissioned as an engineer officer, and we went and did flood assistance in Vermont as a response to Tropical Storm Irene. And it was a really amazing mission. And it’s one of the reasons that a lot of guardsmen actually join is this idea of being able to give back to your community. It’s funny, we look at sort of the 80s and 90s on, and we’re like, “Oh yeah, National Guard, transitioning to that disaster response.” Really, the National Guard’s always been there for disaster response. It’s just not always highlighted. One, usually it’s the way we look at reporting and how sort of natural disasters are reported, whether they’re local or nationwide. But two, it comes about as this, as you said, we have FEMA now. Well, FEMA is an outgrowth of a lot of this, developing this framework, right?

This need for why would we need an emergency management associate? Why would we need, oh yeah, because emergency management’s really difficult and we’re trying to figure out who’s in charge, when and where and why, and who pays for it is really the biggest question. But by virtue of it being the largest body of trained and organized manpower in our history, the militia’s always been the quote easy button, whether it’s … I go into detail on the miscellaneous and other stuff that the colonial militia are called upon to do. It’s like, “Oh, we have an escaped convict. Okay. Send the militia out. Oh, pirates are nearby. Oh, okay. Send the militia out. ” The British regulars are drunk and rioting in our town. Well, better call up the militia.

Lee Rawles:

There’s a big fire.

Jonathan Bratten:

There’s a

Lee Rawles:

Big

Jonathan Bratten:

Fire, or we need to learn how to train on firefighting equipment. Oh, have the militia train everyone in New York City on this. It’s just always been that way. So militia companies and national guard companies, in their private histories, they will say, “Call it up for this flood, called up for this fire, call it up for this earthquake. And we guarded stuff or we carried messages or we brought food.” And that’s sort of always been there. It’s just that you have this, the ’80s and ’90s bring this scale of natural disasters that we kind of hadn’t seen before. And also we were beginning to meet them at a national response level. So earlier I mentioned the Stafford Act in 1988, the Disaster Relief Act or Disaster Relief Emergency Assistance Act, I should call it, but we say the Stafford Act all the time. This is a response to … We create a sort of national organization and response network for nuclear weapons in the ’40s and ’50s.

We create the civil of defense force.

Lee Rawles:

We actually got a lot of civilian things out of our fears about nuclear war.

Jonathan Bratten:

Yes.

Lee Rawles:

I mean, our roads, our storm shelters, lots of stuff.

Jonathan Bratten:

Absolutely. And so you have all these state level organizations that are all about emergency preparedness. And while that emergency is like an atomic bomb coming out of the sky, I also love the fact that the civil defenses mascot was a turtle.

Lee Rawles:

Duck and cover, Jonathan, duck and order. Exactly.

Jonathan Bratten:

A little turtle with a little helmet on. And as the Cold War is going on and the nukes aren’t falling yet, you see that a lot of these civil defense agencies at the state and national level are beginning to sort of do other stuff on the side because like every organization, you got to justify what the taxpayer’s putting into you. And what they’re doing is a lot of emergency management for disasters. And this is what morphs into FEMA. And then also, again, how do we pay for this? Is this Disaster Relief and Emergency Assistance Act, the Stafford Act, that enshrines the federal government’s responsibility as to meet natural disasters. And so this is really the big wave of where you see the National Guard in Disaster Relief. I mean, there’s a quintessential, and I would urge everyone to go watch this video because it’s like peak ’90s, but there’s a National Guard recruiting video from the ’90s that open one, it’s a song, so how could you not be drawn in?

But it’s literally a kid watching a natural disaster happen on TV, and then he gets sucked into the television and becomes a National Guardsman assisting his community, like stacking sandbags.

Lee Rawles:

Oh my gosh. GI Joe stacked sandbags. Wow.

Jonathan Bratten:

GI Joe giving defense support to civil authorities.

Lee Rawles:

I don’t remember it. It’s very romantic. I remember having to soak my feet in diluted bleach to not get trench foot.

Jonathan Bratten:

Yeah, that sounds about right. Yeah. There’s nothing romantic about disaster relief. It’s usually a lot of being really going and being in some tough situations, but it is … I said it before, it is one of the most rewarding things for National Guard soldiers. It’s very interesting. So I’ve been mobilized twice. All the authors in this book have experience in sort of natural disaster or being mobilized domestically. My first one, as I mentioned, was for hurricane relief. The second one was post January 6th, where I brought my company down to the Capitol, and we guarded the Library of Congress through the inauguration. And two very, very different experiences, right? One is very much out in the community and people are dropping off donuts and stuff like that. And I will give respect to DC. They dropped off pizza. People just dropped off tons of pizza, but you had to find a way to get it through the fences and stuff like that.

But very different feelings, right? Very different vibes. One, you’re not worried about force protection. And the other one, you’re showing up in full military kit and are armed. It’s very different things. And guardsmen,

When you look at how this affects those who serve, I just think about the number of people who got called off of the COVID-19 mission where helping your community members to go deploy, to protect, go into support of law enforcement during the George Floyd protests. There’s just that weird duality that exists in the guard and these experiences sort of ripple through. You can see a ripple through the book in the similar way that they ripple through people’s careers where it sort of means something different each time.

Lee Rawles:

And the last chapter by Dr. Joe Miller really talks about this whiplash. And he warns that, listen, we’re all very proud of what we were able to do in 2020 when it came to our COVID response in addition to a lot of the, say, protests. And there were many calls on the National Guard and we didn’t collapse. That does not mean we couldn’t have. And they talk about … I’d never heard the phrase free chicken or easy button, but he warns that going forward as we look at this framework, if there continues to be an overwhelming call for domestic military defense against adversaries like Russia or China, and an increase because of climate change of natural disasters, we don’t necessarily have a robust enough framework. So I’d love to hear what you think now. We’re talking in 2026, so it’s been a few years. Do you see this getting better or are you concerned?

Jonathan Bratten:

So I think we sort of addressed the framework evolves, right?That is its nature, is that it evolves to meet developing situations. There’s always been this dual threat to domestic infrastructure. When you think about the National Guard’s role in war and peace, and there’s this sort of hybrid area where we talk about the civil defense forces, what happens if Russia drops a nuke and the community has to react? It becomes a lot weirder when, say, Russia or let’s just say a foreign actor, state or non-state, sabotages an electrical grid, or knocks out a sabotage does a cyber attack, denial of service attack on a hospital or a dam. We’ve seen examples of that in the war in Ukraine of targeting critical infrastructure and then having a National Guard domestic response to that in addition to if this is say a declared war, preparing to mobilize mass mobilization for overseas duty, while also meeting the other, the regular domestic needs at home.

I think those are all very, very valid concerns. And I think Dr. Miller does a very good job of shaping a lot of the stresses on the system. And I think the system will need to evolve as events shape it. What I’ll say this about the guard is we’ve kind of always had that fraught problem. I mean, through two world wars, disasters didn’t just stop happening when there were world wars. There were still fires, there were still floods, there were still hurricanes. There was a lot of civil unrest and states and the federal government had to cope with that as best they could with their National Guard forces mobilized. Sometimes it was creating state guard forces. Sometimes it was looking at creating state police. The state police is a creation in a lot of places post World War I because their National Guard had been deployed.

So to say that just because things are challenging now, they weren’t always challenging as a little…That’s something I want to dispel with this book. Hopefully Radars will come away with going, “Oh wow, it’s always been a challenge.” Especially looking at the ’60s and what a fraught time that was in our nation and how many of our cities looked like war zones. And we were able to come out of it and look back and go, “All right, what do we do to move forward from here?” So that’s sort of my perspective. It’s hedging a lot of bets. I try not to be a chicken little … The sky is falling, looking at the future, I want to remind people as a historian that, hey, things have always been fraught and things have always been difficult. There have always been multiple problems in complex times, right?

Lee Rawles:

And people have always tweaked how things are done in response to those. Exactly. You can change things.

Jonathan Bratten:

Exactly. Our constitution is great. It is meant to be changed. It’s so cool. It comes with a built-in self-correction mechanism to take into this into account. And just like with that, our laws as well, the constant Institution being the fundamental governing bit of the framework and then the United States code and revised statutes and the national policy and the state policy as well. So as we look to the feature, I think if I were to forecast anything, I would say that we’re still looking at the tension, the underlying federalism tension that exists within the framework. A lot of people say, “Hey, well, can we have one large blanket training policy for the National Guard for domestic deployment?” And our regulation, the joint regulations for the National Guard say, “No, because there’s 54 different sets of laws and policies. The states all have different laws and policies.” So when we say defense support to civil authority, what is the civil authority we’re support and how do we best meet their requirements within the framework that we have?

So I think everything will evolve as we move along, but that underlying tension, and I use the word tension as a good thing. I think there should always be, it’s a net positive. We like that in our republic. And I think that will be something that continues as a thread going forward.

Lee Rawles:

Well, Jonathan, thank you so much for coming on the Modern Law Library to talk about forging the framework, evolving law, policy, and doctrine for the US military’s domestic response. As I mentioned, this is available for free from the Army University Press, and we will have a link to that. You also wrote a book about World War I, and I’m going to give you a chance to promote that really quick. If people are interested in reading that book, where could they go?

Jonathan Bratten:

I’m a creature of habit, right? So one stop shop, go to Army University Press, and you can either download a free digital copy or request a free hard copy from our Army University Press. The book is called To The Last Man: A National Guard Regiment in the Great War, I’m sorry, 1917 to 1919. It is a look at one specific unit in World War I as part of the American Expeditionary Force. It follows the 103rd Infantry Regiment, which is an amalgamation of Northern New England pre-war National Guard units, follows them through the conflict, specifically looking … For me, it’s the soldier’s stories. And so looking at how the war shaped or changed people, and it’s also a look at how the reserve component is used in large scale combat operations, from mobilization to demobilization and coming home. But as I said, specifically looking at the soldier stories, some really fascinating individuals that I follow, and as some very interesting pet mascots as well, for those of you who are animal lovers.

Lee Rawles:

But nothing happens to them, right? The dogs are all okay?

Jonathan Bratten:

The dogs are all okay. Sorry, I’m doing a quick scan across my memory. Brownie gets wounded, but she comes home after they discover that he is a she when she has puppies. Men and figuring out anatomy, not always the best, and the cat comes home and yes, the dogs are okay.

Lee Rawles:

All right. Well, thank you to Jonathan and thank you listeners of the Modern Law Library. If you enjoyed this episode, please rate, review, and subscribe in your favorite podcast listening service. And if you want to reach out to suggest another author who I should speak to, you can always do that by mailing Modern Law Library at legaltalknetwork.com.

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