MICHEL MARTIN, HOST:
We wanted to understand more about the legality of American military deployments inside the U.S., so we've called William Banks for this. He has studied the issue for decades. He's a professor emeritus of law at Syracuse University, and he's also the founding director of what is now the university's Institute for Security Policy and Law. Good morning. Thanks for joining us.
WILLIAM BANKS: It's good to be with you. Thanks.
MARTIN: So the judge ruled that the federal government cannot use troops for arrests or even things like traffic and crowd control. Riot control was also on his list, but the Guard has been deployed in the past to just stop civil unrest, riots. What's different in how it was used in Los Angeles, to your understanding?
BANKS: What's different about the Los Angeles deployment is that Governor Newsom didn't ask for it. That's point No. 1. It was a decision by the president to go in, unilaterally. And another thing that was different about it is that the original mission or operation of the forces sent to Los Angeles was to provide protection for federal resources - stand outside federal buildings, stand near the ICE personnel that were attempting to enforce immigration law. But they crossed various lines, as Judge Breyer said in his decision yesterday, to engage in direct law enforcement, affecting civilians in the city of Los Angeles. That's forbidden by the law known as Posse Comitatus. Posse Comitatus Act has been around since the 1870s, and it establishes a bright line that we don't want soldiers on our streets enforcing domestic laws.
MARTIN: Professor, I'm not sure everybody listening to our conversation will see the problem. I mean, people - some people might think, well, you know, somebody needs to, you know, enforce order. It doesn't matter who it is. So why does it matter if the military is used to enforce the law?
BANKS: I think it's always mattered. It's a historical point of privilege in the United States. We actually fought a revolution and separated from England because - largely because their king, King George, used the military to great effect to terrorize the colonists in the early United States. So when we formed our government, we were very careful to entrust law enforcement to civilians. We didn't want soldiers on the streets. We knew that they may be needed in extraordinary circumstances, and there were mechanisms put in the Constitution and in state laws to allow that to happen. But it's the exception, not the rule.
MARTIN: So, you know, the White House said yesterday's ruling came from a, quote, "rogue judge," unquote. A spokeswoman said far-left courts are trying to stop him from carrying out a mandate to make America safe again. So does the California ruling affect the administration's stated plans to send National Guard troops to cities like Chicago or Baltimore?
BANKS: It doesn't have a direct effect because it's limited to California, Judge Breyer's ruling. But the principles announced in Breyer's decision - interpreting the Posse Comitatus Act and trying to distinguish what constitutes a law enforcement action by military from what might be called protection or show of force - is guidance, I think, that would be very relevant, if not decisive, in another place, such as Illinois.
MARTIN: So how might the administration comply?
BANKS: They can comply by asking for permission or request from a state government to arrange an operation, maybe such as Mayor Bowser has done in the district. Course, the president has greater authority in the district than he does in a state. Another way would be to strictly limit any military deployment to the kind of presence and posturing and protection orders that were initially being applied in Southern California. That's not what the president says he wants to do. That's not what he says is needed, so we'll see if they can come to terms.
MARTIN: So just to be clear, are there any scenarios where the deployment of the National Guard to U.S. cities without the consent of the governor is legal?
BANKS: Yes. There's the - you know, it's the big gun. The big gun is called the Insurrection Act. And the president could, as President George H. W. Bush did in 1992 in Los Angeles, invoke the Insurrection Act and essentially federalize an incident.
MARTIN: And so before we let you go, as we - you heard that Illinois' governor has been very critical of what the president has said. He's said that, authoritarians thrive on your silence. Be loud for America. He's telling people to film things that they see happening in your neighborhoods, etc. Do you think that's good advice?
BANKS: I do. I think it's good guidance for the White House. It's good guidance across the United States. And I think, you know, the governor is certainly fully aware of the circumstances in Chicago.
MARTIN: That is William Banks. He's professor emeritus of law at Syracuse University. Professor Banks, thank you.
BANKS: Good to be with you. Transcript provided by NPR, Copyright NPR.
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