Across the country, people are protesting police brutality and systemic racism. They are relentlessly demanding justice for George Floyd, Breonna Taylor, and the countless other Black people killed by police. In response, President Trump, supported by belligerent enablers in Congress and his administration, has threatened to deploy federal troops into states, and federal agencies are investigating protestors for domestic terrorism. These presidential threats and actions are authoritarian, irresponsible, dangerous, and wrong. 

Trump’s threat to invoke the Insurrection Act of 1807 was extraordinary — over the last 50 years, presidents have rarely used this extreme authority, and rightly so. In this country, we have a strong norm against deploying the military on domestic soil, recognizing the threat it poses to liberty and individual civil rights. This norm is reflected in law — Congress passed the Posse Comitatus Act in 1878 to prohibit the use of federal military forces “to execute the law” unless the Constitution or Congress authorize it. That means the federal military can’t, for example, search, seize, arrest, apprehend, stop and frisk, surveil, pursue, interrogate, or investigate civilians.

But Congress also passed exceptions to the Posse Comitatus Act, the most expansive and potentially dangerous of which is the Insurrection Act of 1807. In the Insurrection Act, Congress gave presidents the authority to deploy active-duty federal troops and National Guard members under federal control — to suppress insurrection, acts of massive or widespread violence that “make it impracticable” to enforce federal law, or similar violence that obstructs federal law or the course of justice. Historically, presidents have invoked this authority to deploy troops at the request of a state, but also sometimes over a state’s objections — for example, to enforce civil rights protections and court-ordered desegregation. That is the opposite of what Trump would do.

Much as Trump loves the rhetoric of “war” and sees Black and Brown protest as a threat, the reality is that we are not at war in this country. Nor is it impracticable for civilian authorities to respond calmly and responsibly to unrest, especially when it is over their own abuses. Protestors are demanding that law enforcement end decades of unjust, unequal, and racist treatment of Black communities.

What Trump doesn’t seem to understand when he threatens to unleash “unlimited” military power domestically is that there are limits. Even if he were to wrongly and unnecessarily invoke the Insurrection Act, federal troops would still be subject to all of the safeguards and restrictions the Constitution imposes. Even so, the escalation would carry obvious dangers of excessive government surveillance and use of force, in violation of the Constitution. Civilian police, National Guard forces in D.C., and some National Guard forces in states are already engaging in serious abuses and violence.

An even more militarized response to civilian dissent would escalate the tension, fear, and pain we’re seeing and feeling across the country, especially in communities already traumatized by police violence. It would worsen the over-policing of Black lives — the very reason why people around the country are protesting.
 
Current and former military leaders are rightly warning against calling out more troops, and reminding troops of the fundamentals of the Constitution. Still, the fact that military leaders are being hailed as calming influences is a stark marker of how broken our politics, norms, and country are. It was not so long ago that military leaders had to reaffirm the prohibition against torture when it was systematically used against Brown and Black men abroad.

We have not come a long way, America. Perhaps policymakers will finally wake up to the harms of decades of rights-violating, war-based foreign policy — and its connections to militarized policing and racism at home. Every politician who is quick to laud Dr. Martin Luther King Jr. needs to remember his radical call to action against “the giant triplets of racism, extreme materialism, and militarism.” There is so much to fundamentally reform, and the people in the streets are demonstrating their urgent will for change. Yet much like during Dr. King’s time, federal agencies are viewing civil rights protests and protestors as domestic terrorists — enemies of the state.

Public attention has mostly focused on Trump blaming Antifa for violence and asserting that he would designate it as a domestic terrorist organization, even though he does not have that legal authority. That the same day, the FBI’s Washington Field Office reported it “has no intelligence indicating Antifa involvement/presence” in violence, and a later Department of Homeland Security intelligence assessment reportedly found the violence that has occurred is opportunistic.

Focusing on the threat against Antifa alone, though, misses the broader harms and consequences. Attorney General Barr this week enthusiastically announced that the Justice Department is using its broad and abusive domestic terrorism investigative powers in response to civil unrest.

Terrorism is an inherently political label, easily abused and misused. Communities of color already know this from 20 years of experience being targeted for discriminatory surveillance and investigation under the Patriot Act’s broad and vague definition of domestic terrorism. Black communities have long been in federal law enforcement’s cross-hairs: in 2017, the FBI concocted the label “black identity extremists,” opening the door to bias-based profiling of Black people and Black-led organizations who use their voices to demand racial justice. The agency appears to have conducted similar investigations of indigenous activists and protest. Civil rights leaders and groups have long demanded reform of national security and criminal authorities that discriminatorily suppress and punish Black and Brown people, and raise significant equal protection, due process, and First Amendment concerns. But Congress has stubbornly refused to act. 

Now, Trump and Barr appear willing to bring the massive weight of the federal government’s expanded post-9/11 investigative powers and agencies down on new generations of racial justice and civil rights activists crying out for the right of Black people to live, and a more equal and just America. 

These are some of the real threats we face right now — and reject.

Hina Shamsi, Director, ACLU National Security Project

A police officer with his hand casually in his pocket knelt on George Floyd’s neck for almost 9 minutes while several colleagues watched or knelt on other parts of Mr. Floyd’s body. The officers knew people were filming, but they were confident no one would stop them. They were right, and they killed Mr. Floyd without interference from anyone, apart from the cries of horrified bystanders. After all, they had badges and guns. On that day, Minneapolis police conducted a racial terror lynching of George Floyd in broad daylight that was filmed by onlookers and then sent across America.  President Trump’s reaction tells you all you need to know about his commitment to seriously address racism in America. 
 
The President called Mr. Floyd’s family. The call was “so fast,” Mr. Floyd’s brother Terrence recalled. “He didn’t give me the opportunity to even speak. It was hard. I was trying to talk to him, but he just kept, like, pushing me off, like ‘I don’t want to hear what you’re talking about.’”
 
Once the call was finished, so was any expression of concern about the racism that enabled Mr. Floyd’s murder. When demonstrations turned violent, Trump quoted an infamous Miami police chief from the 60s: “When the looting starts, the shooting starts.” When people across party lines expressed outrage, Trump claimed he did not mean police should shoot people committing property crime. Yet when protestors showed up at the White House, he threatened to unleash vicious dogs and ominous weapons, later adding that the power of the federal military should be used. 
 
On a conference call with Governors, Trump was as clear as he could be when he said, “You have to arrest people, you have to try people, you have to put them in jail for 10 years and you’ll never see this stuff again.” He added, “You have to dominate. If you don’t dominate, you’re wasting your time.” His solution to the protests is the response that has always been embraced in America — suppress them aggressively. Send some people to prison. Harass some activists. Maybe next time, they will take the thoughts and prayers and shut up.
 
These demonstrations are about more than murder by police officers. Earlier this year, Trump claimed that there was a need to study the impact of COVID-19 on Black America. This is necessary only if, like the President, you have turned a blind eye to history and fact. COVID-19 stripped away any cover we had to avoid seeing the true impact of inadequate health care, under-funded education, gentrification, and economic disparities — conditions in communities of color, and in Black communities in particular, that are the direct result of centuries of intentionally created structural racism.
 
These are the things behind the unrest in America. However, the racism and hatred behind the murder of George Floyd has faded from our President’s focus because he has identified something more important than a racial terror lynching by police. He has identified the real enemy.
 
Who is it? Well, depending on the circumstances, for Trump it is Mexicans, Muslims or the Chinese. This time, the real enemy is not the racism in America that let police officers choke the life out of a man in front of numerous witnesses with unfettered confidence. It is the demonstrators — Trump calls them “thugs” — many of whom are Black Americans.
 
So instead of actions to eliminate the racism that pressed the knee into Mr. Floyd’s neck, we get threats about what is coming for these “thugs.” Unless cities respond with an overwhelming law enforcement presence, he will “deploy the United States military and quickly solve the problem for them.” If you wonder what he meant by domination, you have your answer.

How many times can a country offer thoughts and prayers in the face of senseless death with no progress or solutions before it becomes clear that the thoughts and prayers were meaningless? George Floyd must remind you of Eric Garner. Breonna Taylor and Terence Crutcher should be alive today. Trayvon Martin and Ahmaud Arbery are dead because their blackness alone marked them as criminal. If thoughts and prayers made a difference, why are we living in this moment of crisis 99 years after the Tulsa Massacre, 52 years after the King assassination, and 29 years after Rodney King was beaten?  
 
The federal government is pushing for cities and states to make a maximum effort to prevent property damage. The President is willing to commit federal law enforcement resources and even the military to defeat the enemy, protect property, and reinstate the status quo. What would America look like if we ever put the same commitment and resources into the elimination of and reckoning with racism?
 
Take a good look at Mr. Floyd’s lynching and the centuries of unaddressed racism in America. What’s it going to be this time — more thoughts and prayers, with Trump’s military threat waiting if anyone complains? Or, for the first time in our history, a maximum effort with dedicated local, state, and federal resources to transform America’s history of racism? 
 
Our President has given you his answer. America is going to have to answer the same question.

Jeffery Robinson, ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality

Around the country, people are bursting back onto the streets to protest police brutality and demand racial justice in the wake of the police murder of George Floyd in Minneapolis. Their message is vital, and it is correct: Police violence is one of the leading causes of death for Black men in America, and police officers who kill rarely face any type of accountability. This needs to stop.

Yet in too many cities, the police response has been only more brutality. In New York City, police vehicles drove into protesters and one officer pulled a Black protester’s mask down to directly pepper spray him in the face. Near the White House, police tear gassed peaceful protesters in order to facilitate President Trump’s scheduled photo op. Reporters have also suffered at the hands of police, including one reporter who was shot in the eye with a rubber bullet.

President Trump has insisted that police should “dominate” and “do retribution” against protesters. That is authoritarian, and the use of punitive measures or crowd control weapons to squelch peaceful protest violates both domestic and international law. In the context of protests, the proper role of law enforcement is to facilitate First Amendment activity by enabling peaceful protest. Officers cannot ban or interrupt speech because of the potential for disturbance or disorder. Where specific acts of illegality arise, officers can deal with those directly — not by breaking up a protest or painting all protesters with a broad brush.

Indeed, in cities like Newark, New Jersey where law enforcement officials consciously focused on de-escalation over last weekend, protesters were able to speak out in relative peace. Elsewhere, the extreme and indiscriminate brutality of officers against protesters, those documenting protests, and those doing both has only deepened the pain and anguish of Black communities, and serves as a pointed illustration of exactly how little Black lives matter to these police departments.

Amidst the COVID-19 pandemic, police failures to facilitate peaceful protest also increase health risks for police, protesters, bystanders, and the community at large. Specific police tactics like kittling — essentially trapping protesters and bystanders into a limited, often crowded area with only one point of exit controlled by officers — and mass arrests have been the subjects of past ACLU lawsuits. Today, they are even more troubling because they heighten the risk of infection by forcing large numbers of people closer together.

Similarly, arresting protesters and holding them overnight is only likely to exacerbate the spread of COVID-19, pushing more people into jails that have become hotbeds of infection. And public health experts have cautioned that the use of particular police weapons, including tear gas and pepper spray, can heighten COVID-19 risks by causing people to cough and gasp for air.

Now more than ever, law enforcement should be respecting the First Amendment rights of people who are protesting in the streets — not attempting to silence them with punitive measures, crowd control weapons, and blatant brutality. Racial justice and public health—not to mention the voice of the people — demand it.

Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project &
Carl Takei, Senior Staff Attorney, ACLU’s Trone Center for Justice and Equality