BY Daya Gamage Foreign Service National Political Specialist (rtd) US Department of State Courtesy The Island

During the summer of 2020, protests against police violence and racial injustice erupted throughout the United States. May 25, 2020-death of George Floyd, a Black man who died in police custody, renewed the people’s outrage regarding police treatment of Black Americans and caused protests and demonstrations to erupt across the nation. Over 10,000 demonstrations by millions of protesters occurred across nationwide in a mobilisation estimated the largest mass movements in American history.

More than ninety-five percent of the protests remained peaceful, then-President Donald Trump delivered a speech during the height of the protests in which he threatened to deploy the United States military and quickly solve the problem”. The comment referred to the President of the United States’ unilateral power to invoke the Insurrection Act, send in active duty military to quell the mass agitation.

The Executive branch of the United States along with many Members of the Legislature considered these protests not as an expression of anger and opposition to human rights violation but as an insurrection.

What’s discussed in this write-up is the use of a draconian law that has given despotic powers to the Executive Branch headed by the president: The Insurrection Act, an Act authorising the deployment of the military in case of mass agitations often described by authorities as insurrections to suppress such events.

The Insurrection Act describes itself as Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

The importance, at this time, of ‘disclosing’ or ‘revealing’ that the United States has such a ‘draconian’ law that facilitates the deployment of the armed military to suppress mass agitations mostly connected with civil rights abuses, racial discrimination and socio-political issues is when the American ambassador to Sri Lanka Julie Chung, on many occasions, agitated Sri Lanka to either repeal or amend the Prevention of Terrorism Act (PTA). In the United States, instead of finding solutions to the outcry of the masses, these outcries are labeled as insurrections to deploy the armed military, which the American authorities have done in the past.

This writer found appropriate and vital to ‘disclose’ or ‘reveal’ the existence of a draconian law in the United States as the Sri Lankan policymakers and lawmakers have not shown any signs or indication that they were aware of the existence of such a law in the American statute books.

This writer who had a very long service with the Government of the United States as a Foreign Service National Political Specialist thought this was an opportune time to bring this issue to the forefront so that when Sri Lankan policymakers and lawmakers next meet American diplomatic representatives in Colombo they could raise the existence of the Insurrection Act when the later raise issues connected to the PTA as well as human rights.

In a forthcoming analytical-investigative book, Defending Democracy: Lessons in Strategic Diplomacy from US-Sri Lanka Relations, this writer along with another retired Senior Foreign Service and Intelligence Officer of the U.S. Department of State Dr. Robert Boggs discloses how the US foreign policy approaches largely harmed Sri Lanka, and the inability of the policymakers and lawmakers of Sri to comprehend their own country’s socio-political-economic development and structure, along with covert and overt US foreign policy decisions. Such an understanding and gained knowledge would have helped to have a better rapport and fruitful dialogue with the United States while safeguarding the sovereignty and independence of Sri Lanka.

The Insurrection Act authorises the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The statute implements Congress’s authority under the Constitution to provide for calling forth the Naval and Armed Forces of the United States to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

Crucial provisions of the Insurrection Act are in Sections 251 through 254 in the Title of the United States Code, some of them being as follows:

251. Federal aid for State governments Whenever there is an insurrection in any State against its government, it shall be lawful for the President to, upon the request of its legislature or the executive if the legislature cannot be convened, call forth such of the militia of the other States, in the number requested by that State, and use such of the land or naval forces of the United States, as he considers necessary to suppress the insurrection.252. Use of militia and armed forces to enforce Federal authority .

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, it shall be lawful to call forth the militia of any or all the States, and use of the land and naval forces of the United States, as he considers necessary to enforce those laws or to suppress the rebellion.

253. Interference with State and Federal law The President, by using the militia or the land and naval forces of the United States, or both, or by any other means, it shall be lawful for the President and it shall be his duty to take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

254. Proclamation to disperse

Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.

Section 251 allows the president to deploy troops if a state’s legislature (or governor if the legislature is unavailable) requests federal aid to suppress an insurrection in that state. This provision is the one that has most often been invoked.

While Section 251 requires state consent, Sections 252 and 253 allow the president to deploy troops without a request from the affected state, even against the state’s wishes. Section 252 permits deployment in order to enforce the laws” of the United States or to suppress rebellion” whenever unlawful obstructions, combinations, or assemblages, or rebellion” make it impracticable” to enforce federal law in that state by the ordinary course of judicial proceedings.”

Section 253 has two parts. The first allows the president to use the military in a state to suppress any insurrection, domestic violence, unlawful combination, or conspiracy” that so hinders the execution of the laws” that any portion of the state’s inhabitants is deprived of a constitutional right and state authorities are unable or unwilling to protect that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this provision to deploy troops to desegregate schools in the South of the United States after the Supreme Court’s landmark decision in Brown v. Board of Education. Most famously, Presidents Eisenhower, Kennedy, and Lyndon B. Johnson all invoked the Insurrection Act during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South.

The Insurrection Act was invoked in 1992, when the governor of California requested military aid from President George H.W. Bush in response to civil unrest in Los Angeles that followed the acquittal of four white police officers charged with beating Black motorist Rodney King.

The second part of Section 253 permits the president to deploy troops to suppress any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This provision is so confusing and difficult to understand that it cannot possibly mean what it says, or else it authorises the president to use the military against any two people conspiring to break federal law.

The US Congress and the Supreme Court have failed to provide adequate checks on the president’s domestic military power, to determine the source of this power, and to accurately describe the limits of the president’s power under the Act. By failing to adhere to the conception of military involvement in domestic law the United States is left vulnerable to serious abuses of power for the sake of expediency.

Professionals who are concerned about the draconian nature of the Insurrection Act propose that Sections 252 and 253 of the Insurrection Act should be amended to require additional checks and a method for obtaining independent approval for the mobilisation of armed forces within the United States. The power to use federal troops within a state against the state’s will should not be conditioned upon the discretion of a single individual the President; this is an opinion widely expressed by legal luminaries.

Texas A&M University School of Law student Jeremy C. Campbell in a very erudite presentation to his law school journal said: Sections 252 and 253 of the Insurrection Act should be amended to require additional checks and a method for obtaining independent approval for the mobilisation of armed forces within the United States. The power to use federal troops within a state, against the state’s will, should not be conditioned upon the discretion of a single individual. Any proposed amendments should leave the president’s power to request the use of federal troops and to retain or delegate command of those troops, once approval is received, intact.

The importance of the Congress to have the authority to curb presidential authority by requiring congressional approval before the president invokes the Act has been widely discussed, and the motive of this write-up is to show Sri Lankan policymakers and lawmakers the draconian power the President of the United States has under the Insurrection Act. What is been ‘disclosed’ and ‘revealed’ to Sri Lankan lawmakers and policymakers who maintain constant rapport with American diplomats is the existence of a law which lets the president to deploy the military domestically and use it for civilian law enforcement and the urgent need of reform.

Both the (U.S.) Insurrection Act and (Sri Lanka) Prevention of Terrorism Act can then be discussed on equal terms.

The Insurrection Act is a model of how not to draft major legislation. Key terms like insurrection” and rebellion” are left undefined. The language is so outdated that no modern American can be sure of its meaning. The few times the law was reformed, it was changed to give the president more power rather than less. And courts have interpreted it to grant the president exclusive and unreviewable authority to decide whether the conditions to deploy the military have been met.

At a time when there is a strong possibility that former president Donald Trump could win a second term at 2024 November elections and enter the White House February 2025, the Washington Post on 6 November 2023 ran a chilling piece about Trump’s plan for a second term. It starts: Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.”

(The writer is a retired Foreign Service National Political Specialist of the U.S. Department of State).