Where the Presidential Candidates Stand on Military Action Against Americans or on Domestic Soil
After Sept. 11, an American citizen who had been arrested in Chicago and accused of terrorism ties was deemed to be an “enemy combatant” and transferred to military custody. He was held in wartime detention without trial for years before being transferred back to the civilian justice system before the Supreme Court could resolve his case. In 2011, an American drone strike targeted and killed an American citizen who had been deemed to be an operational terrorist leader whose capture was infeasible, but who had not been charged or convicted in a trial. Administrations of both parties have sent military forces to assist civilian agents at the Mexico border, but to date, they have not used the military to directly enforce immigration law.
Are any of these examples unlawful? Under what circumstances, if any, may a president use military force within the United States or against Americans?
In rare instances in our history, citizens of the United States have engaged in violence against our nation from outside of our borders. The Supreme Court has held that U.S. citizenship alone does not immunize such individuals from being detained or even targeted with lethal force. But even and perhaps especially in those unique circumstances, it is essential for our government to ensure attention to all applicable constitutional and legal requirements and protections.
If and whenever possible, U.S. citizens who are captured in the course of hostilities should be prosecuted through our law enforcement and civilian criminal justice system. D.O.D. has deployed active-duty military for support roles at the border, but they are not engaged in law enforcement or immigration enforcement actions, consistent with the law.
The ”enemy combatant” case, as well as the “targeted drone” attack, were violations of the Fourth, Fifth, Sixth, Seventh, Eighth and 14th Amendments, and, as such, represented watershed moments in American jurisprudence which must be recognized as deeply offensive encroachment.
American citizens, no matter how repugnant their actions may be, cannot be unilaterally denied constitutional rights. Due process of law is a must. Generally speaking, the U.S. military ought never be involved in civilian law enforcement except in very rare cases, such as natural disasters.
All three examples are unlawful.The Great Writ of habeas corpus — a recourse where a person can report an unlawful detention or imprisonment to a court and request the custodian bring the prisoner to court to determine whether the detention is lawful — can only be suspended in times of invasion or rebellion when the public safety so requires under the Constitution. Congress has not, post-9/11, suspended the Great Writ, which requires the executive to demonstrate to a civilian court legal justification for detention.
Due process prohibits the president from playing prosecutor, judge, jury and executioner to kill any American citizen the president secretly decrees is a national security threat based on secret unsubstantiated information.
I would not judge them unlawful, but that does not indicate how I would decide each case.
The longstanding principle of posse comitatus underscores the clear separation between military and civilian law enforcement functions to safeguard the liberties and rights of Americans. The use of military force within the United States or against Americans should be limited to the most exceptional and exigent cases that require an extraordinary response to safeguard the well-being of Americans.
The president has a constitutional duty to use military force to repel sudden attacks. If American citizens commit treason by taking up arms against America, or by seeking to kill American citizens through craven acts of terrorism, I will not hesitate to use lethal force to stop them, including — when appropriate — through use of military force outside the United States. Captured American citizens are entitled to due process. The Posse Comitatus Act appropriately limits use of the military for domestic law enforcement.
The southern border under the Biden administration has been an unmitigated disaster that threatens our national security, and use of military in a support role so that Border Patrol can do its job and secure our border is appropriate. I will work with Congress to ensure we have the legal authorities and resources necessary to secure our border.
Throughout our nation’s history, some Americans have taken up arms against our country as enemy combatants in service of foreign powers or entities. It has long been understood that they are subject to ordinary military operations, like any other enemy combatant, and that they can be imprisoned until the cessation of hostilities or tried in military tribunals for violation of the laws of war.
As president, I would ensure that all military operations, including those involving targeting U.S. citizens who have taken up arms against their country, comply with the Constitution, federal statutes and the laws of war. I support the position of the U.S. government regarding the prosecution of enemy combatants, operating under or with global terrorist organizations.
The president has the authority to use the military to secure the U.S. border.
The military should not carry out normal domestic law enforcement functions, which should be carried out by law enforcement.
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Will Hurd
Former United States representative
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