Los Angeles Troop Deployment Was Illegal, Judge Says
The battle over troops in America's streets is just beginning.
When Maj. Gen. Scott Sherman, a seasoned Army National Guard officer, questioned the way homeland security was carrying out its operations in Los Angeles earlier this year, Border Patrol chief Gregory Bovino questioned his loyalty to the country.
That fascinating nugget is contained in the 52-page ruling by federal judge Charles Breyer, who today said that President Trump violated the Posse Comitatus Act, a 150-year-old law that severely restricts how the military can engage in domestic law enforcement.
Whether Judge Breyer’s ruling ends Donald Trump’s assault on America’s blue cities or not — and no matter how far Secretary of Defense Pete Hegseth is willing to go in being the White House’s enforcer — it is a reminder that the uniformed military is hardly an eager participant in the administration’s designs.
Sherman, a combat officer who fought in Iraq and commanded Colorado’s task force dealing with the George Floyd protests in 2020, is typical of the unformed leadership, even those handpicked by Trump.
I’ve spoken to countless soldiers since Trump took office and from the bottom to the top, they all share one view: that what they are asked to do has to be “legal,” that the plan to do it has to make sense and be viable, that how they are asked to operate has to lead to some kind of mission completion, and that what they end up doing has to have the support of the American people. It is a wholly intuitive understanding of the fact that they are not formed to enforce the law and are not troops serving the president: they serve the Constitution and the laws of the land.
Herein lies the conundrum that every soldier must face, that they follow orders while also following established law. The mindset is quite different than that of the homeland security agencies.
What Judge Breyer’s ruling says is that soldiers have violated a bedrock Constitutional right of all Americans, that of going about their daily lives without interference from the military.
The Declaration of Independence itself cites among its grievances the British crown’s decision to “render the Military independent of and superior to the Civil power.” That principle is enshrined in the Posse Commitatus Act.
Judge Breyer’s ruling begins with explicit reference to the Act, saying:
“Congress spoke clearly in 1878 when it passed the Posse Comitatus Act, prohibiting the use of the U.S. military to executive domestic law. Nearly 140 years later, Defendants — President Trump, Secretary of Defense Hegseth, and the Department of Defense — deployed the National Guard and Marines to Los Angeles, ostensibly to quell a rebellion and ensure that federal immigration law was enforced.”
Put simply, the judge’s ruling is based not on some technicality, but on the fundamental question of whether the unrest in LA amounted to a rebellion, as the Trump administration has argued.
“There was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law,” he ruled.
That certainly tracks with my reporting. When I obtained several internal Army documents on the deployment, it quickly became clear that Chief Bovino’s actions were part of an elaborate “show of presence,” as one Army briefing put it, a briefing that also served to remind commanders not to emulate homeland security goons in their zeal to provide Donald Trump with good video.
The exact language of this slide appears in the judge’s ruling, which identifies an operation as intended to “enable and protect the execution of joint federal law enforcement missions in a high-visibility urban environment, while preserving public safety and demonstrating federal reach and presence.”
When I first reported the codename of Trump’s deployment of National Guard troops to Los Angeles, “Operation Excalibur,” I hadn’t realized its significance. Army sources chalked the medieval-era codename up to some Dungeons and Dragons enthusiast in leadership. The notion that we were dealing with dorks here seemed like a safe bet, given the reference at one point in the military documents to "Cthulhu” — a reference to the H.P. Lovecraft cosmic horror universe.
But either by inference or access to information I don’t have, the judge noticed something I didn’t about Excalibur.
“Excalibur is, of course, a reference to the legendary sword of King Arthur, which symbolizes his divine sovereignty as king,” he says.
The interpretation is apt, given the question at the heart of this whole matter: Which is more in keeping with the preservation of America and its rule by laws, the president’s so-called “protective authority” or the Posse Comitatus Act?
The military has been clear in its internal documents that its mission is mere support to federal law enforcement agencies. It isn’t in the lead. It doesn’t seek nor does it want to find itself facing the American people. Many National Guard soldiers have expressed unease about the mission privately and even publicly in the Defense Department’s own media releases. So much so, I’ve been told, that morale is in the toilet.
Maybe that’s why another National Guard commander expressed his gratitude to those soldiers deployed in Washington, DC this weekend in a bizarre video, apologizing that they were missing their families over the long Labor Day weekend and reassuring them that their cause was just and important. What else is he going to say? Certainly not that they are being loyal to the country or to Donald Trump.
While stressing that he wants to restore a so-called "warrior ethos” to those in uniform, I’m glad to say that Pete Hegseth is out of touch with both the brass and the rank-and-file in uniform. Judge Breyer’s ruling today helps them to fortify their backbones, but the ultimate showdown is still coming, which is some sort of confrontation, especially if something goes wrong as a result of Hegseth’s overzealousness to engage in combat, in Mexico, in Venezuela, in Iran, in Yemen, Somalia, at the border, or on the streets of America.
The military is not synonymous with the arrogant and inhumane culture of the Department of Homeland Security — ICE, Border Patrol, Customs, and Homeland Security Investigations (HSI) — who have shown themselves to be rudderless goons.
— Edited by William M. Arkin
The irony of the Posse Comitatus act which could be very helpful to keeping the military out of law enforcement in America now is that when passed in1878 it was to pull Union troops out of the Southern states where they had been active in keeping those states from coming down hard and illegally on their former slaves after defeat in the Civil War.
After the Union troops were pulled out, all hell broke loose for African Americans in those Southern states where humiliated whites were determined to see blacks put "back in their place" which whites proceeded to do from then right on into most of the 20th century. Trumpism is a remnant of this. powered by it.
"States' rights" has traditionally been a southern state Democratic Party effort to secure absolute white authority over African Americans, so it is good to see Posse Comitatus finally (if it actually does so) coming to the rescue of we the people rather than providing freedom for unlimited bigotry for which it was passed.
SCOTUS next?