A recent article in the MilitaryTimes, “Creating a D.C. National Guard quick-reaction force is a bad idea,” provides some prudent resistance to the recent push by the U.S. House of Representatives to establish and fund a National Guard quick-reaction force (QRF). However, the argument falls short about what drives sound military planning—that is, what is the requirement and, more importantly, what is the threat driving it? Without understanding these two issues, filling the requirement becomes whatever you suppose it to be, and produces unnecessary recommendations, pointless debate and, worse, wasteful taxpayer expenditures.

Background

In May 2021, the House of Representatives unveiled a $1.9 billion supplemental appropriations bill to address security shortfalls highlighted in the Jan 6^th U.S. Capitol riots. The bill would provide $200 million to establish a “quick reaction force” staffed by the National Guard. A recommendation from a non-partisan Task Force, directed by the Speaker of the House, to “identify actions or decisions…to improve the security of the Capitol.”

The breach of the Capitol is reason enough to review security shortfalls, as intelligence failed to identify possible antagonists before the event occurred and significant coordination and response missteps. However, the task force report added other recommendations for military forces post-Jan 6^th, which appear to go well beyond the events of the day and suggest that a continued “domestic extremist threat” exists in the Capitol. This finding appears to be more supposition than fact.

The “Domestic Extremist” Dilemma

Nearly five months after the Capitol riots, there has been no legitimate threat assessment to warrant continued military forces in the Capitol. Even the Department of Homeland Security’s (DHS) recent threat bulletin, most likely a key driver in arguing for the QRF, uses vague, nondescript language about “domestic extremist” threats, such as “may seek,” “likely,” or “with the intent” to describe potential (not actual) “violence against elected officials, political representatives, government facilities, and law enforcement.”

The DHS bulletin further obscures any rationalization for maintaining a military presence at the Capitol by offering no data or facts about possible attacks or thwarted “domestic extremist” plans. In fact, the only attack on Capitol police following the Jan 6^th riot came from a left-wing Nation of Islam extremist who ran his vehicle into several Capitol police, killing one officer and injuring another.

Further, of the 465 currently arrested for breaching the Capitol on Jan 6^th, none are charged with sedition, insurrection, or terrorism, and many of the conspiracy charges have been successfully challenged since there is little evidence of a “conspiring agreement” with intent to commit a crime. The vast majority—425 of the 465 arrested—were charged with a minor offense of “entering or remaining in a restricted building or grounds.” This hardly supports the domestic extremist argument to warrant a QRF.

Well-Intended Solutions Can Lead to Legal Repercussions

The lack of proper threat analysis or basis for a military requirement generates debate that, though well-intended, does more to confuse the issue than shed light on it. For instance, according to the MilitaryTimes article, “There is no issue if the Guard is used in their civil support role with proper notice, training, and command and control,” which, though superficially true, is inappropriate for a civil disturbance operations mission involving “search, seize, and arrest” duties that would be the case for the QRF.

Let’s take a moment to look deeper into the argument. The Guard can support law enforcement but only under the condition of “non-lethal support that is unrelated to law enforcement functions such as arrest, search, seizure, or crowd or traffic control,” as the defense department’s ruling “defense support to civil authorities” directive dictates.

In addition, public statutes (law) come into play when using the military to “carry out the laws,” such as section 275 of Title 10 USC, that restrict direct military participation with law enforcement involving “search, seize, arrest, or other similar activity.” Even in the National Guard’s Title 32 status, which is the case here, this would present a possible unlawful backlash.

The QRF Proposal Gets Murkier

Laws against military policing of its citizens, which is essentially the assigned role for the QRF, date back to post-civil war reconstruction law. One such law, the Posse Comitatus, prohibits any military activities that “execute [carry out or enforce] the laws” unless the President invokes an Insurrection Act—a rare Presidential decree allowing federal troops to quell rebellion but only in dire situations.

Invoking the act first requires the President to “by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes”; that is, the President must warn the rioters “within a limited time” to desist before calling on troops to quell the sedition. This would be a non-conducive prerequisite for a quick-reaction response.

Even the congressional Task Force’s recommendation for “clarification” of defense directive 3025.18 granting “emergency authority” to a local commander, without presidential approval, “to quell large-scale, unexpected civil disturbances” seems dubious. The Insurrection Act, which requires presidential approval, is public law (Title 10 USC Ch 13), while agency directives are “broad policy documents containing what is required by law” and should not counter any legislation that rules over it.

Where Does this Bring Us?

The breach of the Capitol on Jan 6^th was indefensible, and those involved should be charged and prosecuted according to the law. But we first need to identify the requirement using sound military planning and threat analysis. A prudent examination of what drives any security review is essential for ensuring that solutions fit the requirement and do not devolve into wasteful and unlawful proposals, such as a QRF. What we do not need are empty debates that do more to confuse than enlighten.

It is time to acknowledge the elephant in the room. The lack of a proper threat analysis for the Capitol riots not only makes the “domestic extremist” threat questionable but also delegitimizes any other proposal and invites pointless discord. It is the role of sound threat analysis to distinguish real from imagined threats, to avoid wasting very real resources and funding.

No doubt there were security missteps that need addressing, but allowing a task force or the media to travel down solutions well past the event of that day invites political mischief—and worse, solving security missteps with whatever you suppose them to be. This is a recipe for misidentified recommendations, pointless debate, and wasteful taxpayer spending.

Donald McGregor, Major General, U.S. Air Force, Retired, is an accomplished national security leader, fighter pilot, and career Air Force Officer with a diverse career, and expertise in Homeland Defense and National Guard issues. He was a former lead advisor to the Chief of the National Guard Bureau, who is a member of the Joint Chiefs of Staff. In this lead advisor role, he was the National Guard’s Director of Strategy, Policy, Plans, and International Affairs, developing overall strategy, Secretary of Defense (SECDEF) policy, and civil support planning for the National Guard’s warfighting, homeland, and international partnership missions. A leading military-civil response expert, General McGregor was Deputy Director of Operations for United States Northern Command (NORTHCOM), overseeing daily operations of NORTHCOM’s homeland defense and civil response. He has held several command and director-level positions worldwide. He also served in combat tours in Iraq and Afghanistan. General McGregor has a Master of Arts in Diplomacy and International Conflict Resolution from Norwich University, and a Bachelor of Arts in Computer Science from The University of Minnesota.