Legal Limits Blur for National Guard Deployments in the Nation’s Capital

The National Guard troops activated in Washington, D.C., are navigating intricate legal guidelines that dictate their actions—guidelines that may become even more ambiguous if they are sent to other urban areas.

Approximately 2,000 Guardsmen are assisting local law enforcement in the capital; however, legal experts caution that the distinction between military support and policing authority can often be ambiguous. Pentagon Press Secretary Kingsley Wilson stated on Aug. 14 that Guardsmen “will not be arresting people,” although they are permitted to “temporarily limit the movement of an individual” under specific conditions.

In a notable exception to typical domestic regulations, the 1878 Posse Comitatus Act, which limits military participation in civilian law enforcement, is not applicable in the District of Columbia. Troops are currently operating under state activation orders, referred to as “Title 32 status.” Furthermore, a legal precedent established in 1989 permitted the National Guard to participate in law enforcement activities within the district, encompassing drug enforcement, without invoking the Insurrection Act.

Rachel VanLandingham, a former Air Force judge advocate and law professor at Southwestern Law School, stated that the president effectively serves as “the quasi-governor” of the district, possessing powers akin to those of a state governor when it comes to deploying the Guard.

Specialists regarding the training of the Guard have voiced concerns. Alex Wagner, who previously served as the chief of staff for the Army secretary and is currently a professor at Syracuse University, noted that variations in training across different units might result in challenges.

“I’m worried that even with their good intentions, they could find themselves in circumstances they aren’t ready for and lack the necessary training,” Wagner said.

Kate Kuzminski, a senior fellow at the Center for New American Security, highlighted that, although active-duty troops may prioritize other objectives, Guard units frequently prepare for state-specific missions, including disaster response. “I have considerable confidence in the expertise and training of the guardsmen,” she stated.

A new legal hurdle emerges in clarifying what constitutes legitimate directives. Joshua Kastenberg, a former Air Force judge advocate, stated that service members must adhere to all orders unless they can demonstrate that those orders are unlawful.

He remarked that the difference between detaining and arresting civilians is merely “artful wording.” “The military is not authorized to arrest and hold individuals in custody, but it can detain them temporarily,” Kastenberg stated. “Temporary detention is merely a rebranding of custody … and it could very well be unconstitutional.”