The Brooklyn Rail

Tom Nichols, writing in The Atlantic on October 7, reminds us that an authoritarian takeover of a democratic country “must control three sources of power: the intelligence agencies, the justice system, and the military.” And he concludes that, in America today,

The intelligence community has effectively been muzzled, and the nation’s top lawyers and cops are being purged and replaced with loyalist hacks. Only the military remains outside Trump’s grip. . . . Trump clearly wants to use military power to exert more control over the American people, and soon, top US-military commanders may have to decide whether they will refuse such orders from the commander in chief. The greatest crisis of American civil-military relations in modern history is now under way.

Judge Karin Immergut of the US District Court for the District of Oregon, appointed by Trump, has blocked Trump’s attempt to send armed troops into Portland. “This is a nation of Constitutional law,” she declared last week, “not martial law.” And she wrote that the United States “has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs.” Stephen Miller (who Timothy Snyder has compared, quite convincingly, to Stalin, in form¹) immediately lashed back, claiming that a “large and growing movement of leftwing terrorism in this country” is being “shielded by far-left Democrat judges, prosecutors and attorneys general.” And Trump has threatened to invoke the Insurrection Act, which could make it possible for him to use the military to attack peaceful protestors and suppress dissent, detain political figures, and disrupt elections.

The Insurrection Act is the primary exception to the Posse Comitatus Act. It is a combination of a handful of different statutes enacted by Congress between 1792 and 1871 that now occupy sections 251 through 255 in Title 10 of the US Code. Presidents Eisenhower and Kennedy invoked the Act to deploy troops to desegregate schools in the South after Brown v. Board of Education. The last time the Act was invoked was in 1992, when the Governor of California and the Mayor of Los Angeles asked President George H.W. Bush to help respond to civil unrest in Los Angeles when four white police officers were acquitted of beating Rodney King. Unfortunately, because of the way it was written, the Insurrection Act is ripe for abuse by a tyrant, and it’s been lying in wait for 150 years, for the rise of Trump.

On September 22, Trump signed an executive order “Designating Antifa as a Domestic Terrorist Organization.” Like so many of Trump’s executive orders, this one has no force of law, but has unleashed a torrent of threats. Attorney General Pam Bondi said the Trump administration will use the same lethal force they’ve been using against Tren de Aragua on Antifa. Homeland Security Secretary Kristi Noem said that Antifa is as sophisticated and as dangerous as MS-13, Tren de Aragua, Hamas, Hezbollah, and ISIS. In truth, antifa methods are mostly nonviolent, designed to stop white supremacists, fascists, and neo-Nazis as easily as possible. But recently, “Antifa” has become a conservative catch-all term for any acts of resistance against the Trump regime and all counter-protestors. Because Antifa is such an amorphous entity organizationally, it makes for a highly malleable adversary and a screen for right-wing projections, and this has provided another imaginary rationale for the use of the US military against civilians.

Tom Nichols again:

Military officers are human beings, not Vulcans or robots. Even the most virtuous young officer may tremble at the idea of refusing a direct order—especially one from the president of the United States. Others may be tempted to abandon their oath, either by ideology or a misplaced sense of obedience, and they should recall [Air Force General and then head of the US Strategic Command John] Hyten’s warning from 2017: “If you execute an unlawful order, you will go to jail. You could go to jail for the rest of your life.” Most American military personnel, however, need no reminder of their constitutional duty. But they do need some reassurance that they have support from their chain of command to resist illegal orders. And the rest of us, whether we’re elected officials or ordinary citizens, should do everything we can to let our fellow Americans in uniform know that if they risk their careers and even their freedom to protect the Constitution, we will stand with them.²

Once again, it comes down to the People standing up. As Tom Nichols rightly observes, “Congress, so far, has been useless in restraining Trump: The Democrats are too timid, and the Republicans are too compromised.” Nichols also calls for senior military officials, including the Chairman of the Joint Chiefs of Staff, General Dan Caine, to stand up and make it clear to Trump that “they will not obey illegal orders to act against American citizens or disrupt the American political process.” Military leaders did this in the first Trump term, but they’ve all been fired. It’s going to take a new concerted initiative from the present leaders to stop the takeover.

In February, Trump fired the JAGS (judge advocates general) of the Army, Navy, and Air Force, each of which had hundreds of lawyers working under their command. One of the things these JAGS did was to advise commanders on the legality of their operations. JAG officers have been called “the conscience of the military.” Trump and Hegseth prefer a military without a conscience.