How can the U.S. Capitol, surrounded by one of the largest concentrations of law enforcement and national security personnel in the world, be so quickly overrun by Trump insurrectionists hell-bent on “stopping the steal,” halting our cherished democratic processes, and potentially harming lawmakers?
This tragedy and breach of the Capitol Building on Wednesday is a failure of leadership and planning at the highest levels. A full and comprehensive investigation will be conducted. And it is important not to jump too quickly to conclusions without having a full understanding of the events and decisions that took place that day and the days leading up to it. Nevertheless, several key questions and themes are beginning to emerge. These must be addressed prior to President-elect Joe Biden’s inauguration on Jan. 20. These questions center around the difficulty in swiftly coordinating a response across overlapping federal, state, and local jurisdictions. Despite being surrounded by the nation’s vast national security and law enforcement apparatus, the U.S. Capitol response appears to have been plagued by and not taking the threat of right-wing extremism seriously. This was further exacerbated by different chains of command, overlapping legal authorities, and complex jurisdictional issue.
In what follows, I highlight four initial questions to focus on:
- Was the District of Columbia National Guard properly deployed and resourced?
- What prevented other state National Guards from being expeditiously deployed?
- What role do other federal law enforcement have and why did the DC police have to play such a critical role in the Capitol’s defense?
- What other assets may have assisted?
Was the District of Columbia National Guard properly deployed and sufficiently resourced?
Prior to Wednesday’s events, D.C Mayor Muriel Bowser requested that 340 D.C. guardsmen be deployed (but not armed or equipped in a law enforcement capacity) to help control traffic and monitor Metro stations. It was well after the Capitol’s insurrection was underway that the D.C. guardsmen re-equipped at the D.C. Armory (20 blocks away from the Capitol) and responded to the violence unfolding.
As Liza Gotein and Joseph Nunn have astutely noted in Just Security, the D.C. Army & Air National Guard are a true anomaly. Unlike the other 54 National Guards in the United States (and its territories) the president is the commander-in-chief of the D.C. Guard. There is no governor as D.C. is not a state. This authority over the D.C. National Guard is further delegated to the secretary of defense (today: Acting Defense Secretary Chris Miller) via a 1969 executive order. When the D.C. Guard is called to support civil authorities via a law enforcement function, the secretary of the Army (Ryan McCarthy) exercises operational control over both the D.C. Guard.
What role does the D.C. mayor have? As the chief executive of D.C., Mayor Muriel Bowser, lacks any direct command authority over the D.C. National Guard, whose very mission is “protector of the District of Columbia.” Instead, she must submit a request to the D.C. commanding general when she desires the D.C. Guard to provide civil support. As I have argued before, the D.C. mayor, as chief executive should have more say in the D.C. National Guard, whose chain of command remains fully outside her control. The D.C. mayor has enormous responsibilities to protect the nation’s capital, but lacks the commensurate authorities.
Why weren’t other state National Guards expeditiously deployed to the Capitol?
The process to bring outside state National Guards into D.C.–even during a clear emergency—is fraught with delays. Indeed, fundamental questions of “who has the authority” to bring in outside National Guards to D.C. was brought home this summer when over 3,800 National Guard troops from 11 states arrived in the District without the mayor’s permission.
Under D.C. Emergency Management Assistance Compact (EMAC), other state National Guards can enter the District. Any request, however, has to run back via the Pentagon for approval. Maryland Governor Larry Hogan and Virginia Governor Northam wanted to help bring in their respective National Guards to the Capitol on Wednesday after fielding desperate requests from lawmakers, but the authority had to run via the Pentagon. Any investigation should address why there was a delay in this response, why Governor Hogan was allegedly repeatedly denied the approval to send in his Maryland Guardsmen to help, and whether the EMAC should be modified to clarify authorities and coordination.
What role do other law enforcement agencies have in the response?
There is no shortage of federal law enforcement agencies in the area that could have assisted in defending the Capitol and protecting members of Congress. This includes the highly trained U.S. Park Police, U.S. Marshalls, FBI, and even local federal police at neighboring military installations. The secretary of homeland security, for example, possesses broad law enforcement authority to protect the buildings, grounds, and property owned by the federal government.
Under existing law, executive departments and agencies can assist the U.S. Capitol Police. The Capitol Police is the law enforcement agency tasked with protecting Congress, the Capitol, and its grounds, and is comprised of 2,300 officers and civilians members with an annual budget of $460 million. Such assistance can include personnel or equipment from a wide swath of nearby federal law enforcement agencies. But any request must first be initiated by the Capitol Police Board. The Capitol Police Board consists of the sergeant-at-arms and doorkeeper of the U.S. Senate, the sergeant-at-arms and doorkeeper of the U.S. House of Representative, and the architect of the Capitol. The chief of the U.S. Capitol Police serves in an ex-officio, non-voting capacity. As of this writing, three of these four members have resigned or have planned to resign. In an emergency —which Wednesday surely was— federal law enforcement assistance shall be provided at the request of either the Senate or House sergeant-at-arms.
Despite the thousands of federal law enforcement officers nearby that could have assisted, it appears that the local city police force (D.C. Metropolitan Police) was the first to arrive on the scene to assist the Capitol Police. Reports indicate that the D.C. police actually took charge of the Capitol’s protection during a particularly critical moment when the mob had infiltrated nearly every corner of the U.S Capitol. Think about this – the defense of our citadel of democracy was led at one point by an overtasked, city police department, not other federal law enforcement assets. One police officer said, “If it wasn’t for Inspector [Robert] Glover, we would have probably lost both chambers to looting and had a complete overtaking of the building.” Any investigation should address why federal law enforcement was not requested upfront and what caused this delay.
What other assets could have feasibly assisted?
Outside of federal law enforcement and city police, there are thousands of military service members within a short distance of the U.S. Capitol. As a general matter, under the Posse Comitatus Act, active-duty federal military forces are prohibited from directly participating in domestic law enforcement activities. There are exceptions, of course, with the most important being the Insurrection Act. This can be invoked by the president to quell riots or disturbances. But that was never going to happen on Wednesday as the insurrectionists were actually supporting the president. Outside of the Insurrection Act, federal military forces can be used in a law enforcement capacity to protect the president or vice-President, which surely was triggered with Vice President Mike Pence presiding over the proceedings and then rushed to safety when the assault began.
Under DoD regulations, federal military forces can assist in a law enforcement capacity “in extraordinary circumstances where prior authorization by the President is impossible . . .to engage temporarily in activities that are necessary to quell unexpected civil disturbances.” This authority can be used “to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order.” It continues:
When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions . . .Federal action, including use of Federal military forces, is authorized when necessary to protect Federal property or functions.
To be sure, this is a regulatory authority whose precise outer scope remains untested. But this authority seems tailor-made to address what was happening at the Capitol on Wednesday. There was a complete breakdown in governmental order and an assault on federal property.
Consider: just eight blocks from the U.S. Capitol lies the ceremonial home of the U.S. Marine Corps at 8th and I streets, a five-minute sprint from the Capitol. Or the 3rd Infantry Regiment is just across the Potomac in Virginia. Was using this extraordinary emergency authority ever considered by DoD and federal military commanders? If not, why not?
Further, it is unclear what role the military’s Joint Forces Headquarters-National Capital Region played in the events of the day. This organization was established in the aftermath of 9/11 with the sole purpose of preventing and responding to future terrorist attacks within the Washington, D.C. area. Its very mission is to deter, prevent and respond to crisis, disaster, or security requirements in the National Capital Region (NCR). Were they prepared for the assault on the Capitol? What role (if any) did the Joint Forces Headquarters play that day? This organization also plays a key role in providing both ceremonial and security support to presidential inaugurations, so they must learn quickly from Wednesday’s security failures and make rapid changes.
Where do we go from here?
What happened on January 6th can never be allowed to happen again. And as the investigation into the incident unfolds, focus on these four key questions and streamlining the response.
Finally, it was always drilled home from my time in the military the importance of unity of command and unity of effort. These are absolutely essential to succeed in any mission. The protection of our nation’s capital should be no different. This requires a straightforward chain of command, clear understanding of the underlying legal authorities, rapid decision-making processes, and a clear understanding of the mission. Unity of command is particularly difficult to achieve in the nation’s capital, where there are so many overlapping jurisdictions and legal authorities as outlined above. And unity of command requires the person at the top of the chain of command—the president, as commander-in-chief—to provide clear direction and be fully invested in the mission. But prior to the insurrection, Trump himself incited it, in tweets and in a speech that morning. Shockingly, the person at the very top of the chain of command was not interested in protecting the Capitol nor the lawmakers inside during a time of national crisis, a point not lost on lawmakers calling for his immediate impeachment.