Abstract
Historical and legal accounts of domestic military and militarized use abound, but there is no systematic normative treatment of the issue. This article argues that an important normative principle that governs domestic military use is that citizens ought not to be treated as enemies. Using examples drawn from the United States, it shows that apart from any instrumental considerations such as fears of military coups and excessive violence, domestic military use is prohibited in principle when it relates to citizens as enemies. To treat citizens as enemies undermines their standing as members of the state’s political community, and so violates governments’ duty to not commit expressive harms against them. This principle has implications for current dilemmas regarding domestic military use, as well as militarized domestic law enforcement. The latter gain the normative commitments of militaries as they militarize, and in so doing lose permissions to operate domestically.
Keywords
Events of recent years in the United States and around the world have again highlighted the role of militaries and militarized forces in domestic democratic life. First, global governmental responses to the public-health crisis of COVID-19 relied on military forces for logistical support, information, and even enforcement. Then, as Americans took to the streets to protest the murder of George Floyd and the systemic racism of which it was a symptom, the involvement of National Guard and other U.S. military and militarized forces in law-and-order enforcement became a topic of major debate. In the former case, military involvement was largely perceived positively. In the latter, it was argued to be a threat to democracy (89 Former Defense officials, 2020). Assuming this distinction is broadly correct, what justifies it? When and under what conditions is domestic military use permissible?
Discussions of domestic military use in earlier periods abounded, as for instance during the standing army debate in 17th century England, and among the American founders who feared a large permanent army might spell the end of American self-government (Nevitt, 2014; Pocock, 2003). Contemporary U.S. scholarship on this question tends to focus on the historical role and legal permissions the military has in domestic cases. Historical accounts of domestic military use in the United States (Coakley, 1988; Laurie & Cole, 1997; Mertuka, 2013; The Use of the Military to Execute Civilian Law [Congressional Research Service (CRS)], 2018) show that the President has significant discretionary power in the matter, and that this power has been used on multiple occasions including in riot response, and enforcing desegregation. Current normative theoretical work that focuses on these issues and that considers the changes in institutional, political, and social realities, is not as common as the weight of the issue would dictate.
One field that has generated some expressly normative work on domestic military use, is the legal literature on the Posse Comitatus Act (PCA), which limits the use of the military in law enforcement missions, and on adjacent laws. 1 Vladeck (2004) in his analysis of the legislative sources of executive emergency powers points at the centrality of Congressional authorization for domestic military use, especially in its coercive form, gesturing toward the moral requirement for representative permission for such action. Others (Bennett, 2006; Nevitt, 2014, 2020) in their historical analyses of the PCA and in their normative proposals focus on instrumental concerns. Mainly the fear of military coup and executive take over, and fears of excessive violence. These are crucial concerns, but they do not exhaust the relevant normative dimensions of domestic military use.
Moreover, the PCA—enacted in 1878 as part of the effort to halt the Reconstruction—is a problematic source to draw normative conclusions from (Nevitt, 2014). It was originally designed as an instrument for rolling back the liberation of Black Americans in the South under the protection of the U.S. Army. As such, the PCA had a different aim in mind than that of opponents of the standing army, who feared the military’s effect on liberty. Also, since the PCA has not been applied to the National Security Agency, it fails to address a major area of domestic military use, intelligence collection. A central distinction in the literature is between federal and state military forces, primarily the National Guard. This distinction is enormously important to discussions of relevant American law and as a safeguard against presidential overreach but is less germane to the foundational question of the place of military and militarized force in dealing with citizens. For all these reasons, alongside the fruitful debate focusing on U.S. law, there is room for systematic discussions of the normative principles that govern the permissibility of domestic military use per se.
This would usually be the role of normative political theory, but when normative theorists discuss military power, it is almost exclusively in the context of just war theory. Despite the immense domestic economic, social, political, and physical power of militaries, little explicitly normative work has been done on civil–military relations by normative theorists, understood as the relationship between the military, society, and the state and inside the military organization itself (Brooks, 2019). 2 A normative account of major questions in the area of civil–military relations, and specifically of domestic military use, could be useful to scholars of civil–military relations and law enforcement in explaining the moral background of the questions they study, and to professionals and decision makers faced with questions about domestic military use, whether in protests, natural disasters, or routine government work.
The account offered here applies the analytic method common to contemporary practical normative democratic theory. It triangulates between the normative commitments implicit in the democratic conception of citizenship and the realities of domestic military use as captured by reporting, research, and military doctrine. Practices that are judged to be in contradiction to this well-established normative principle should be avoided unless there are compelling reasons to override this objection. The conceptual analysis points at the relevant normative principle. Real-world examples are used to support the argument’s empirical assumptions and explore its applicability (Tersman, 2018).
The examples used are drawn from the U.S. context, given its significance for global democracy and global trends in use of force. The principles argued for will apply outside this context, but their application will have to be reexamined when considering other local contexts, and what type of organizational behavior codes enmity. For example, in some parts of the world such as France or Italy, certain paramilitary forces have been employed almost exclusively domestically in ways that likely make their use closer in meaning to policing than to military action. In other regions such as parts of Latin America militaries are almost exclusively used domestically (Pereira, 2021; Succi Junior, 2022). This problem is addressed in part in the fourth section, although a thorough expansion of the argument to other national contexts is outside the scope of this article. Finally, going forward the discussion on the legality of domestic military use will be sidestepped. The focus will be on the normative principles that should govern the matter, not on the descriptive facts of U.S. law; the state may be legally allowed to use the military when doing so is normatively objectionable, and even when the law generally permits domestic military use, decision makers must decide whether they should resort to it.
The main argument of the article is that apart from any instrumental considerations, principles stemming from the basic concepts of democracy govern the permissibility of domestic military use. Specifically, the principle of citizenship prohibits domestic military use when it unduly relates to citizens as enemies. Treating citizens as enemies undermines their standing as members of the political community, thereby violating the government’s duty to not commit expressive harms against citizens. This principle helps explain why domestic use of military intelligence is wrong, why resorting to military use in some protests is permissible but not in others, and why logistics assistance does not generate the same problems even when it gives the military a more central role in domestic life than a strict reliance on civilian power would call for. This principle also suggests why the use of militarized but non-military forces in domestic settings is problematic.
This article offers three contributions to the existing work on the timely question of domestic military use. It lays out a clear normative standard against which laws and policies concerning domestic military use should be measured; if such laws and policies unduly treat citizens as enemies, they are objectionable on principled democratic grounds. 3 If they do not do so, they may be permissible and can be weighed against other principled and outcome-oriented considerations, some of which are discussed here. Based on this principled distinction the article demonstrates how observers and decision makers ought to judge prominent and mostly recent examples of U.S. domestic military use, proving that such uses can be debated apart from whether we agree with their purported aim. The article also builds on and contributes to scholarly understanding of the wrong inherent in the trend of law enforcement militarization.
The first section defines domestic military use and surveys major categories of such use in the United States. It proceeds to suggest why observers and decision makers might think that domestic military use is permissible. The second section outlines instrumental objections to domestic military use and explains why they don’t provide a stable theory for its permissibility. The third section presents the argument for determining domestic military use permissibility stemming from expressive harms against citizens and outlines a theory of just enmity. The fourth section discusses several objections to the argument. The article concludes with practical upshots for contemporary, mostly American domestic military use and militarized law enforcement, and avenues for future work in this area.
The Many Faces of Domestic Military Use
A key assumption of the article is that militaries are distinct enough from other state coercion organizations that they warrant their own normative framework. Later, the argument will be extended to civilian organizations undergoing militarization, defined as the process in which civilian law enforcement adopts military tactics, gear, culture, and organizational structures (Kraska, 2007). “Military” refers to the armed organization of the state primarily tasked with fighting interstate (or state vs. non-state actors) conflicts over a range of intensities culminating in war. Militaries engage in other activities—intelligence, logistics, human resources, rescue, engineering, and entertainment—but these ancillary functions, and the gear, culture, tactics, and organizational forms that accompany them, mostly exist to support the ability to prepare for conflict or as side effect for this preparation. The distinctiveness assumption is supported by empirical work on the vocational and job features of militaries (Campbell & Campbell, 2010). 4
This reality is historically contingent. During the 19th and 20th centuries in the European-style nation state, external security separated from domestic coercion, increasingly deposited in the hands of police (Tilly, 1990, pp. 53–56). This distinction was never sharp, and it has been growing murkier (Kraska, 2007; Lutterbeck, 2005, 2016). So much so that more than a decade ago scholars were already describing the process of militaries accepting constabulary responsibilities and police forces militarizing as role convergence (Campbell & Campbell, 2010). Yet, this is not a sufficient reason to deny the distinctiveness of militaries. Organizations are a case of “family resemblance” (Wittgenstein, 1997). The more features they share, the closer the relationship. With a clear idea of the characteristics of a standard military in mind—missions, command structure, uniform, equipment, training, language, and doctrine—observers can note how less-obvious cases proximate it. 5 The fact that militarization is commonly used both as a term of art and as a common political term, is an indication that most people understand what militaries typically are. Accordingly, if “police” organizations become similar enough to militaries, their name should not prevent us from thinking about them as such.
The historical contingency of the police/military distinction is consistent with it being normatively meaningful. For example, the separation of powers developed under contingent historical conditions, yet democratic theorists argue about the ethics of core democratic institutions. In the case of militaries, normative meaning rests on two bases. First, militaries are capable, and may be prone to behaving in uniquely objectionable ways explored in the following section. Second, when the military acts, it raises issues of enmity not raised in the same way by the activity of other non-militarized organizations. This possibility is explored in the remainder of the article. 6
A military can find itself operating against the citizens of its own state either in defiance of civilian authority, or under its orders. Assuming militaries should generally be subordinate to civilian authority, no other explanation is needed for why unauthorized domestic military use is problematic. This article is focused exclusively on authorized domestic military action. The question in such cases is whether and when it is permissible for governments to order their militaries to operate domestically. 7 Furthermore, our only interest is in permissible use of force. If the state is interested in impermissibly using force, for example to commit a genocide, then the act itself is forbidden. The military should not be used for this purpose, but nor should any other coercive organization. The state simply shouldn’t do what it seeks to do. The question is in which cases where the state is morally permitted to act, it may rely on its military if it has one, and in which it may not. The clearest expression of any relevant principle suggested here would be situations in which the state may not do something if the military is the organization tasked with carrying out the mission, but would be permitted to carry out the same mission if another organization, say a properly structured police carries it out.
As for the word domestic in domestic military use, it is usually used to describe the area inside a state’s international borders. The argument offered here pertains to the use of the military to treat citizens and those under the state’s rule, and not to geography. It happens to be that citizens and others to whom the law applies are typically located domestically, and constitute most individuals domestically located. In the interest of brevity, these cases are described as domestic. Democracy is used in the sense of a system of government in which ultimate political power comes from citizens, and that is committed to the political equality of all citizens.
Citizenship is defined not merely as a legal status, but in accordance with the normative ideal of political membership in a self-governing political community and its protection is in the interest of citizens (Bellamy, 2008, p. 17). The view that citizenship is a good that serves the interests of citizens is broadly but not universally accepted. Some call attention to how citizenship offers a false hope for equality and entrenches structures of social control (Brandzel, 2016), and normative cosmopolitan theorists call into question the exclusionary force of citizenship practices suggesting global arrangements to replace it (Benhabib, 2004). A defense of citizenship as a good is outside the scope of this article, but rejecting this view does not negate the argument. This will depend on whether a critic’s preferred alternative to citizenship is compatible with enmity.
There is a common belief expressed in U.S. discourse, in the existence of a norm prohibiting domestic military use. This norm is implicit in the PCA that forbids the U.S. President from deploying military forces for law enforcement purposes under normal conditions, as well as in public speech by defense officials who take it for granted that domestic military use requires special justification (89 Former Defense officials, 2020). But if there is such a norm, it is regularly violated (Cohn, 2020).
Domestic military use in the United States can be grouped under three headings: logistics, coercion, and intelligence. 8
Logistics: Standing missions like those of the U.S. Army Corps of Engineers, responsible for building and maintaining much of the U.S.s crucial infrastructure. Emergency response.
Coercion: Local law enforcement intervention like the Federal use of the military units to desegregate Little Rock Central High School in 1957. Augmenting police forces dealing with public disturbances, like the 1992 Los Angeles riots where both National Guard and Active-Duty forces were deployed. Anti-terror operations like the deployment of Massachusetts National Guard units after the Boston Marathon bombing in 2013. Overseas operations against citizens like the targeted killing of Anwar al-Awlaki in 2011 by military forces.
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The American Civil War. Although citizens of the confederacy saw themselves as citizens of a separate nation, from the Union’s perspective they were (rebellious) U.S. citizens. Military rule over citizens as in the Reconstruction era.
Intelligence: The NSA is headed by a military officer, is part of the Department of Defense (DoD), and has used its means to process the information of U.S. citizens. Courts haven’t considered this a violation of the PCA (Nevitt, 2014) and this intelligence is regularly shared with civilian law enforcement agencies (Reid, 2015; Savage, 2017).
Is there a guiding principle for which of these cases of domestic military use is permissible? One possibility is that a state should use its military whenever it wishes to. This highly permissive approach draws its intuitive force from the assumption that the state’s paramount responsibility is to provide security. From this, arguably, it follows that the state can do everything needed to provide security, and even if not everything, it may use the military domestically. One way to justify such an approach is if militaries have no moral distinctiveness. That is, if the moral rules that apply to the use of military aren’t different than those that apply to other state coercion organizations. Militaries are equipped with more lethal weapon systems, but that doesn’t make them qualitatively different from the police or any other similar organization. If this were true, it would not take an emergency to justify domestic military use. This view harkens back to Hobbes’ Leviathan. There are no major contemporary democratic theorists who espouse this approach, although some versions of political realism veer close (Galston, 2010). Echoing this Hobbesian outlook Sen. Tom Cotton (2020) called to use the military during the George Floyd protests citing the need “to maintain basic law and order” as “the most basic responsibility of government.”
In contrast, a more reluctant approach concedes militaries are special, but sometimes states must rely on them domestically and when they do, there is no moral remainder. Ironically, this might be precisely because of their uniqueness; logistics capabilities, the number of people militaries can mobilize, their ability to deter with a show of overwhelming force, availability to central national authority, etc. (Campbell & Campbell, 2010). On this account, it is consequentially preferable not to use the military, yet sometimes there is no alternative. The next section explores this approach and its limitations.
Instrumental Arguments Against Domestic Military Use
The reluctant view of domestic military use relies on how domestic military use contributes to unfavorable results. The strength of this argument will depend on the likelihood and magnitude of the negative results, and not on the preemptive moral power of the rights and duties of the relevant parties.
One group of concerns is risks to democracy. Domestic military use might lead to normalization of military action against citizens, allowing those who control the military to usurp power. Another possible concern is that domestic military use will increase militarism. As civilian government functions are transferred to the military, and the military becomes more present in the daily lives of citizens, citizens may come to expect military involvement, leading to tendencies that might be incompatible with democracy. A related concern is that the military will displace civilian labor (A. Cohen & Shafran-Gittleman, 2020). Finally, civilian authorities sometimes have difficulties overseeing security organizations (A. Cohen & Shafran-Gittleman, 2020). It might be harder to oversee the military than the civilian bodies it replaces, risking negative outcomes.
A second group of concerns relates to national security: If the military is used against citizens, then “support for our troops” among citizens might decline. This will make it more difficult for the military to recruit for foreign wars (89 Former Defense officials, 2020). Domestic military use might also damage readiness. The more a military becomes embroiled in tasks further from its core mission, the less prepared it will be for that mission (Parker, 2020). Domestic military use might increase political tensions within the military, damaging its cohesion and thus its combat effectiveness. Security also depends on foreign policy effectiveness that can be negatively affected by domestic military use. When domestic military use can be construed as attempts to stifle dissent, it may undermine the ability of the United States to criticize authoritarian regimes and pressure them to change their behavior (Finnemore, 2009).
Third, domestic military use risks inefficiency and bad conduct. Civilian-facing tasks require skill or expertise militaries typically lack and are likely to underperform at them (Parker, 2020). Moreover, even with ongoing police militarization, most militaries, and specifically the U.S. Military, are equipped and trained to use more force than any other government organization. Domestic military use risks subjecting citizens to extreme violence, as in the Watts riots of 1965, and the Kent State massacre of 1970.
As compelling as these arguments may seem, instrumental arguments against domestic military use suffer from weaknesses. For them to succeed, their proponents need to show that (1) the intended use is likely to lead to the materialization of the concern, (2) the concern cannot be mitigated by some other means such as: special training, limits on the duration of the use, or political, judicial, and social oversight, (3) the problem is worse than if other available forces were used, and (4) if the concern relates directly to security, the harm caused by domestic military use is not outweighed by its commensurable security benefits. 10
This leaves two options. One is to concede that whenever instrumental concerns against domestic military use are defeated, such use is permissible. The other is to point to non-instrumental reasons. The next section presents the argument in favor of the latter option. 11
The Non-Instrumental Argument from Enmity Against Domestic Military Use
According to Anderson and Pildes (2000, p. 1527) 12 “[a] person suffers expressive harm when she is treated according to principles that express negative or inappropriate attitudes toward her.” If the expression of the negative or inappropriate attitude is meant to convey this message to the recipient, it is a communicative harm. They offer the following example: When a neighbor throws trash into your lawn, the inconvenience of picking up the trash is compounded by the insult of the rudeness and disregard. If the neighbor means the insult, the expressive harm becomes a communicative harm. Individuals and groups suffer an expressive harm when social and political institutions treat them in a way that expresses negative attitudes toward them through action or inaction. Institutions, therefore, have a duty to avoid such treatment. Consider the feelings of a disenfranchised citizen. On top of any worry about reduced political influence—voting after all exerts notoriously little of it—there is the added insult of inequality and exclusion expressed by this denial (Fishkin, 2011).
Based on our shared understanding of what militaries do, domestic military use is liable to express, and even communicate, that the target of such state action is an enemy. As legal scholars Lieblich and Shinar (2018) establish in their argument against police militarization, 13 being treated by the state as an enemy excludes the target from the political community. This message is inappropriate because the core of citizenship is membership in the political community of the state, bestowed by the state (E. F. Cohen, 2009). Citizens whose membership is questioned by official state institutions can justifiably claim to be harmed (Fishkin, 2011). When the calling-into-question targets already-marginalized groups, the expressive harm compounds and reinforces preexisting expressive harms. When military force is mobilized against citizens engaged in oppositional political activity, the message expressed is that their activity is illegitimate, devaluing their participation in democratic politics. 14
Being inappropriately marked as an enemy is itself an expressive harm. And if done intentionally, it amounts to a communicative harm, and state institutions have a duty not to unjustly harm people. Formal definitions and political language demonstrate that military action in fact establishes enmity.
Formally, the U.S. Department of Defense Dictionary of Military and Associated Terms and other U.S. military doctrine documents distinguish between four categories of entities soldiers might encounter: Enemy, adversary, neutral, and friendly. Friendlies are those who enjoy the military’s protection, neutrals are neither friendly nor hostile to friendly forces, and adversaries are defined as: “[a] party acknowledged as potentially hostile to a friendly party and against which the use of force may be envisaged” (Department of Defense, 2018, p. 9). An enemy is a hostile party toward whom the use of force has already been authorized (Department of the Army, 2012). According to these definitions, the military protects friendlies from hostile forces with whom it is already authorized to engage (enemies) or preparing to engage (adversaries), in an environment that may include neutral elements, i.e., the targets of military action are enemies or potential enemies. This is also reflected in the U.S. Department of Labor’s definition of the military profession as “concerned with protecting the nation from enemies” and the repeated reference to enemies in the description of a combat rifle crewmember’s job (Campbell & Campbell, 2010, p. 340).
Recent events demonstrate that the enmity-generating tendency of military action persists despite any job convergence with law enforcement. During the 2020 George Floyd protests, President Trump called on governors to rely on military forces to disperse the protests. He claimed to have placed the Chairman of the Joint Chiefs of Staff (CJCS), in charge of the situation and described him as “a fighter, a warrior” (Macias & Wilkie, 2020), terms used as praise in the context of what he might contribute to states’ handling of citizens. On the same call, the Secretary of Defense Esper, a veteran, called on Governors to mobilize National Guard units “to dominate the battle space.” Esper later regretted using the term battle space, saying “[i]t is part of our military lexicon that I grew up with and it’s what we use to describe that area of operations,” disclosing how large the logic of war, to which enmity is closely tied, looms on the military. The expressive meaning of Esper’s words was not lost on fluent speakers of this language. Former CJCS Martin Dempsey tweeted in response that “America is not a battleground. Our fellow citizens are not the enemy” (McLaughlin & Martinez, 2020, emphasis added). That same day, an audience of protestors outside the White House was violently dispersed so that President Trump could walk for a photo-op at St. John’s Church in Washington, DC. A National Guardsman stationed there captured the dissonance they experienced thus: “unlike in combat when you have an enemy, these are our neighbors, our friends, our family” (Lippman, 2020, emphasis added). Enmity, even today, is the ultimate meaning of military action. 15
But not of all military action. Enmity is implied in domestic military use when the target of the action stands in the same logical relation to the soldier as would an enemy if this were armed conflict. Much of what the military does, even at war, takes one of two non-enmity inducing relational structures: First, typical military action has the state’s citizens in mind as the beneficiaries of the security it provides. Second, the military’s own forces are the recipients of its support capabilities. When the military operates in these capacities, and where exclusion is not implicated in the process, domestic military use does not violate the state’s duty not to commit expressive harm.
In addition, sometimes negative attitudes are appropriate, as when individuals are being justly punished (E. S. Anderson & Pildes, 2000, p. 1567; Shelby, 2016, p. 242). In the case of military coercion against citizens, the expression of enmity and subsequent exclusion would be unobjectionable if the citizen truly is an enemy. This suggests a need for a liberal theory of political enmity that can only be gestured toward here. Nazi legal theorist Carl Schmitt (2008) argued that the friend/enemy distinction is the foundational political distinction. On his account, a homogenized in-group constitutes its existence by recognizing an out-group with which there exists a possibility of war and which they are willing to kill. The centrality of this distinction in his thought leads Schmitt to condemn the liberal order for its individualistic and pacifying aspirations.
Rejecting Schmitt’s prescriptions does not prevent us from calling on his conceptual analysis. The enemy of the liberal-democratic state should not be whomever that state is willing to fight simply for their otherness. Instead, the liberal state should be ready to recognize the enmity of those who stand ready to unjustly go to war with it and kill its citizenry. Injustice here should be read as a qualifier of the reason for killing and war, and of the method. 16 If someone is willing to mark out the citizens of the state as a target simply for being citizens, the state is permitted to view them as enemies. If their chosen tactics are in flagrant defiance of human rights, the state is also permitted to view them as enemies. This means that at least prima-facie, domestic military use against property-damaging citizen rioters is impermissible, whereas domestic military use against citizens who engage in terror activities is acceptable. 17 However, liberal judgments of enmity should be made restrictively and not of entire groups, 18 if they are to adhere to the respect owed to individuals’ choices and independent standing, and to principles of due process. 19 Furthermore, liberal democracies should be open to revising judgments of enmity, because enmity encourages the use of violence, toward which liberal principles are resistant. Finally, a government isn’t required to use its military against a just enemy, it is merely permitted to do so with consideration of relevant instrumental concerns.
This is far from a satisfying account of enmity, but with the preceding discussion of expressive harms, it begins to give us a sense of why our intuitions might justifiably differ between the cases in the first section. The domestic activity of the U.S. Army Corps of Engineers and logistical crisis relief operations are permissible, because in them citizens take the place of the military’s own forces, or are exclusively experiencing its protective role. Citizens here share the relation to the military of a friendly unit calling on its military’s engineers to construct a bridge needed for its operations or provide it with necessary logistical support.
Deploying military units to assist in response to terror attacks like the Boston Marathon bombing is permissible, as is military involvement in operations against citizens who join organizations or nations at war with the United States because the targets in those cases acted in ways that plausibly justify treating them as enemies even on the rudimentary theory of enmity proposed earlier. Accordingly, and because it had recently concluded a war with them, the United States had grounds to view the citizenry of the American South after the Civil War as enemies pending evidence to the contrary, justifying the resort to military power during reconstruction. The justifiability of military force during the Civil War itself turns on the justness of the war and, therefore, so does the justice of treating citizens of the seceding states as enemies despite still seeing them as the state’s own citizens.
However, domestic military use during the George Floyd protests is objectionable even had riots been a more significant part of the goings-on than they have been. 20 Normatively, the separation-of-coercive-powers of the state between police and military exists precisely to differentiate crime, even violent crime, from enmity (Lieblich & Shinar, 2018).
Finally, the case of military intelligence surveillance of citizens might involve little physical harm, but the fact that it relates to citizens as enemies-in-need-of-surveillance, makes it objectionable apart from privacy considerations. As for intelligence sharing, when it is objectionable for the military to collect information, passing it on to civilian authorities for analysis is preferable to pursuing the data within the military as continuing to process it would add an instance of objectionable of domestic military use. Yet, military intelligence collection is not made permissible by the fact that the information is then passed on. And again, it is important to emphasize that the question discussed here assumes that the problem is with the collecting organization, not the collection itself.
One case that does not easily sit in either group is military assistance in desegregation. Here, those being coerced by the military are citizens, and it is not obvious that their actions, although morally reprehensible, justify enmity. Ideally, desegregation should have been enforced by police. Once local government refused to carry out the court’s order in Brown V. Board of Education, it fell to the federal government to do so. The relevant expressive act, in this case, was to uplift and make equal the citizenship status of the Little Rock Nine, and by proxy of anyone who identified with them. 21 The expressive objection to the use of military force is directly commensurable to the value being defended by domestic military use, and so domestic use is justified as a second best to law enforcement action.
Some Objections
The conclusion that domestic military use is permitted when it respects citizenship and prohibited when it treats a citizen as an enemy raises several objections, discussed in this section.
Prioritizing Practical Harms Over Expressive Harms
The first question the reader might ask is whether it is not better to use the military domestically if it turns out that it is less likely than police to violate practical harms despite its expressive harms. Evidence suggests that under certain conditions militaries behave in a more restrained fashion than domestic agencies (Cohn, 2020; Lippman, 2020). There is truth in this concern. If force must be used domestically, and significant practical harms would be averted by using the military, the objection from expressive harms can be defeated. However, there are four reasons that the concession to the realities of rights violations by police does not make the principled argument superfluous.
First, when practical harms outweigh expressive harms to the same people, states should generally prefer averting practical harms. However, if the practical harms at stake are relatively minor, states should refrain from domestic military use even if the instrumental concerns are all satisfied. Second, highlighting the expressive harm of some domestic military use will make it possible to weigh them in decision-making processes, occasionaly leading governments that would otherwise rely on the military domestically to forego its use. It could help engrain principled objections to domestic military use into military ethos and into broader social norms making it easier for officers to push back against executive tendencies to rely on the military for domestic coercion (E. N. Saunders, 202; Ulrich, 2021). In cases where domestic military use is unavoidable, a government that is aware of its expressive harms is more likely to take steps aimed directly at mitigating them than a government that is unaware. Third, when crises erupt, a government’s options are constrained to the means available. When the streets are already overrun with protestors or rioters, it might be difficult to restore order and protect practical rights without military force. Discussing in advance the expressive harm involved in domestic military use can motivate the institutional changes required to avert crises in which the use of military force would be practically necessary but normatively impermissible. Effectively, it would remove a coercive tool from decision makers’ toolboxes and would force them to consider systemic change to reduce the injustices that contribute to violations of public order. Finally, similar arguments also allow us to criticize police and other militarized law enforcement agencies (Lieblich & Shinar, 2018).
The Meaning of Military Use Can Change
The argument from citizenship rests on the claim that some modes of military action express enmity toward their targets. But social meanings and institutional division of labor vary across contexts and can change over time. Most of us no longer see a saddled horse and think of war, and the same can happen to domestic activities by militaries. This is especially pertinent considering increased military/police role convergence (Campbell & Campbell, 2010; Edmunds, 2006; Lutterbeck, 2005, 2016; Weiss, 2011). Moreover, the war-making meaning of militaries is more ambiguous where militaries are regularly deployed domestically. This might perversely lead to extending domestic military use in order to blunt the military’s war-making meaning.
On the account offered here, if a military ceased to fight foreign wars and reorganized accordingly, such that its perception was only historically tied to war, given family resemblance, it would be correct to apply to it the normative standards that apply to non-military organizations. Currently, this is not the trend for U.S. paramilitary forces. In the United States, elements of the military that in the past were less involved in foreign wars, such as the National Guard, have become regular participants in foreign campaigns (Bacevich, 2013), increasing their enmity-expressing capacity. As for the increased role of militaries in operations under the law enforcement paradigm outside the state, where much of the role convergence on the part of the military is occurring, such action is not conducted with claims of democratic legitimacy but as part of foreign intervention. Given that domestic law enforcement, and enforcement as a result of armed conflict appeal to different moral bases, 22 the fact that militaries enforce law abroad does not establish their meaning as permissible law enforcement organizations domestically.
Paramilitary Forces and Domestic Coercion
Arguably, the salient issue today is not so much domestic military use as it is paramilitary organizations. Forces such as the Department of Homeland Security units deployed in Portland, Oregon, during the summer of 2020, the heavily militarized police forces in the streets of Ferguson, Missouri in the summer of 2014, or even the National Guard, which is not part of the active-duty component of the military. Internationally too, paramilitary forces have become more prominent (Lutterbeck, 2005). The growing presence of paramilitary forces in domestic operations adds to a long history of internal military forces common to some nations, including democracies in the “global north” such as France (Gendarmerie), Italy (Carabinieri), and Spain (Guardia Civil) to name a few (Gobinet, 2008).
Generally, and without examining each of these cases, the principle of militarization and enmity applies here too. Because militaries are a family of institutions, the more military-like paramilitary forces they are or become (Kraska, 2007), the more bound they are by normative principles that apply to militaries. Moreover, as Lieblich and Shinar (2018) show, the special exclusionary power of police should lead us to object to the militarization of law enforcement. By extension, those responsible for the matter should reduce the military characteristics of other organizations mainly tasked with operating domestically.
This is the process French Gendarmerie, one of the best-known examples of a paramilitary force engaged primarily in domestic missions, has been undergoing. As M. Anderson (2011) notes: “They are seen progressively, consider themselves, and are treated by the government not as soldiers but simply as gendarmes, belonging to a police force with highly specific characteristics” (p. 185). Increasingly, the enmity-generating expression of their use is being erased. Paramilitary organizations elsewhere that routinely operate vis-a-vis citizens should follow this example. Nevertheless, as these forces civilianize, they are not required to change their formal designation to shed the military meaning once associated with their use.
Is All Domestic Military Use Permitted Against Non-Citizens?
In recent years, immigration and its control emerged as a divisive political issue across European and North-American democracies. Relatedly, in the United States, some of the most militarized law enforcement agencies are border and immigration control agencies such as the U.S. Custom and Border Protection (CBP) (Horton, 2020). A pressing question then is whether the argument of this article permits indiscriminate domestic military use aimed at non-citizens. The answer is negative for three reasons.
First, the argument from expressive harms against citizens is not the only principle that governs domestic military use. Even if it turns out that expressions of enmity are permitted against any non-citizen, domestic military use against non-citizens may still be restricted for other principled reasons.
Second, although the argument dealt with the clear-cut case of full citizens, in many cases those that exist in a status of semi-citizenship such as legal residents and even some immigrants have come to see themselves as members of the political community, or of a local subsection of it (E. F. Cohen, 2009). Whether this perception of belonging is correct will depend on a broader theory of the limits of political community, which is not defended here. But to the degree more permissive theories or membership apply, the limitations set on domestic military use by the requirement to avoid expressions of enmity would apply to some non- or semi-citizens.
Third, even if there were no other relevant principles, and even if duties toward members of the political community apply only toward full citizens, instrumental concerns should still stay the hand of democratic governments from ordering domestic military use against non-citizens. As the use of CBP officers in Portland and in Washington DC in 2020 and in border communities elsewhere in the United States before then demonstrated, concerns about the use of such forces against citizens of the state are well founded. These examples show that militarized use against non-citizens inflicts material and expressive harm against citizens and is, therefore, objectionable.
The answer to whether it is permissible to use military force to block immigrant rafts or for border deployment against non-military threats will depend on these considerations. In some cases, military use that would be impermissible against citizens is likely on this account to be permitted against non-citizens, although not in all cases.
Conclusion
This article contributes to the normative discussion of domestic military use and the militarization of law enforcement. There is considerable scholarly and public discussion of whether and how militaries should take part in missions within the state. This debate has been ongoing for over a decade but its relevance is underscored by the use of militaries across the democratic world in response to the COVID-19 pandemic and the events of the final year of the Trump administration in the United States. By focusing on the normative commitments tied to the basic democratic status of citizenship, this article defends three main arguments.
First that the duty of state institutions not to commit expressive harms, controls domestic military use in a principled way that goes beyond instrumental considerations. From this duty, it follows that states are required not to use the military where doing so would expressively harm citizens—and possibly residents and visitors—by placing them in the position of enemies. Domestic military use is permitted on this account when its subjects take the place of the military’s own forces or purely protected population. It is also permitted, although still not required, in cases where judgments of enmity are appropriate. Second, the article applies this principle to practical cases of domestic military use in the United States, demonstrating that it can guide policy and action, or at least allow for reasoned disagreement about domestic military use beyond mere political benefit. Third, because the principle relies on a family resemblance definition of a military, it extends to domestic law enforcement. When such forces militarize, they acquire the normative commitments of militaries, including the duty not to express enmity. In other words, by militarizing, non-military organizations undermine the moral standing they had to enforce law domestically. The upshot is that domestic law enforcement should be organized and operated with the explicit purposes of expressing civic inclusion, resisting enmity, and respecting the standing of citizens.
This article does not end the conversation on the ethics of domestic military use. Future normative work on domestic military use should expand on it in four directions. First, this article focused on U.S. cases, but the question it poses is not unique to the United States. Military police forces have been part of the European landscape for generations, and in Latin America (Pereira, 2021) states routinely turn to militaries for domestic missions. It is, thus, an area worthy of detailed comparative work that could shed light on the conditions under which military organizations can deemphasize their enmity-generating capacity. Second, the discussion here was mostly dedicated to presenting and defending the principle that domestic military use ought not treat citizens as enemies. The examples discussed were used to demonstrate the usefulness of the principle. Focusing on the practical ethics of additional contemporary real-world cases of domestic military use such as domestic counter-terrorism operations will help test the limits of this principle, how it interacts in practice with other considerations, and further our understanding of the democratic status of contemporary state practices.
Third, a key component in being able to apply the view defended in the article to real cases is an account of when democracies are justified in viewing citizens as enemies. The discussion above of what justifies judgments of enmity is at most a first step in the direction of a theory of just enmity. Fourth, a comprehensive normative account of the permissibility of domestic military use will need to move beyond the question of enmity, to examine how the decision to resort to military power implicates democratic values other than citizenship. Prime candidates are moral legitimacy, equality, and freedom. This step will broaden our normative understanding of how militaries may or may not be used against non-citizens outside the context of war and foreign occupation, a matter of vital importance as navies and military border guards are commonly deployed today against migrants and asylum seekers.
Footnotes
Acknowledgements
This article benefited from discussions at the Harvard University Political Theory, and International Relations Workshops. I am grateful to Shai Agmon, Eric Beerbohm, Hillel Ben-Sasson, Talia Ben Sasson-Gordis, Idan Dershowitz, Edmund T. Flanigan, Katrina Forrester, Jonathan Gould, Nathan Pippinger, Michael Sandel, and Adam Shinar, for their frank and generous feedback on drafts of this article, as well as to David Enoch, Moshe Halbertal, Eric Nelson, Justin Pottle, and Richard Tuck for their thoughts. I would also like to thank Patricia Shields and the four anonymous reviewers for their thoughtful comments that greatly improved this article. An earlier version of this article was presented at the 2021 MPSA panel on “War, violence and the military: reflections on domination, power and fascism.”
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
