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Institutional Integrity: Learning the Right Lessons from the Capitol Siege By Suzanne Spaulding, Devi Nair

This is the third installment of a series looking at how to reinforce institutional integrity with regard to the use of federal forces—active-duty military, federalized National Guard units, and civilian federal law enforcement, particularly under the Department of Homeland Security (DHS) and Department of Justice (DOJ)—in the context of U.S. presidential elections and transitions. Each paper was informed by ongoing events; deployment laws, norms, and practices; and insights from operational leaders and academic experts.
On January 6, for reasons that are still under investigation, rioters participating in a pro-Trump rally were able to breach security barricades at the U.S. Capitol building, engage in a violent rampage inside and around the Capitol that resulted in at least five deaths, and put Congress on lockdown for much of the afternoon. Although there were individual acts of courage and professionalism, the U.S. Capitol Police (USCP) was unprepared for the violence, despite clear indications from multiple sources in the weeks leading up to the rally, and were quickly overwhelmed. The D.C. National Guard was mobilized late in the process, arriving four hours after the USCP requested their help, and a formidable federal force presence was noticeably absent as chaos ensued.There are reports that additional demonstrations by similar insurgent groups are planned for the coming days, including a call to storm state capitols on January 17 and a “Million Militia March” in Washington, D.C., on January 20, and we are still seeing death threats made against election and elected officials. We do not have months, or even weeks, to learn the right lessons from the Capitol siege.

In our pre-election analysis, following federal deployments at racial justice demonstrations over the summer that were seen as excessive and exacerbating rather than de-escalatory, we noted that the United States has a strong framework of laws and norms that guide deployments. These guardrails reflect basic principles: the domestic deployment of federal forces must be guided by law and not by politics or race. It must be based on the actual threat, evenhanded, and impartial. Moreover, the military, particularly active-duty military, should be deployed only as a last resort and with a clear mission, training, and guidance. These concepts still apply despite the very different context presented by this recent insurrection and ongoing threat. As details emerge, it will be important to properly understand where and how established guardrails were tested so that those responsible for protecting our democracy, its institutions, and the public make informed decisions that restore trust and security.

Tested Norm: Troop Deployment Only as a Last Resort

Normally, the default in cases of civil unrest should be to local law enforcement. However, since D.C. is not a state and contains much federal property, automatically necessitating federal force protections, the lines clearly differentiating local and federal roles and missions are blurrier (see our analysis in Defense360: “The Use of Federal Forces in Washington, D.C.”). Additionally, the default to local law enforcement does not apply to protecting a federal building, like the U.S. Capitol, or members of Congress. Still, the norms that the military should only be deployed as a last resort and that civilian federal forces must operate within the confines of their legal authority are still applicable.

The threshold question, then, is whether civilian federal law enforcement could have prevented the security breach at the Capitol. In this case, the USCP had primary responsibility to secure the Capitol and the functions underway inside, but there is a long history of security planning and coordination with other federal forces as appropriate and necessary. That does not seem to have happened here.

In recent days, the USCPFBI, and even the Department of Defense have released statements indicating that they did not plan for anything more than a peaceful exercise of First Amendment activities, despite clear indications that many coming to D.C. on January 6 planned to bring weapons and disrupt the process in the Capitol. The arrest of Proud Boy leader Enrique Tarrio with firearms in his possession in advance of the rally should have served as further evidence that some individuals did not intend to engage in purely peaceful demonstrations.

It will be important to determine what information these various federal law enforcement entities had regarding the threat on January 6, what they did to prepare, and the specific actors and agencies with whom the information was shared. The U.S. Secret Service, which is part of the Department of Homeland Security, is responsible for protecting the vice president. It was known far in advance that Vice President Pence would preside over the certification of electoral votes in the Capitol on January 6. What role did they have in the planning? Were they confident that the plans in place were adequate?

If the USCP had properly planned for the potential that the crowds would be influenced by individuals intent on disruption and potential violence, and incited by language from the president and other speakers, could they have deployed a significantly more robust force properly equipped to deal with the rioters? There are roughly 2,000 officers in the USCP. Specific plans should have been in place to augment their defenses from other local and federal forces such as the Metropolitan Police Department and forces from Virginia and Maryland, as well as Park Police, with the D.C. National Guard close by as a reserve if needed.

This leads to a second issue: reports that the USCP, apparently at the direction of the House and Senate sergeants at arms, did not seek outside assistance ahead of time. We will discuss some of the potential reasons for this below. However, many of the federal forces in D.C. carry some form of authority with regard to the protection of federal buildings or federal functions. If they were rebuffed by the USCP in the security planning for January 6, did these other entities nevertheless properly assess the threat and make plans for how they could rapidly respond if needed?

A key issue under review is the failure to deploy National Guard troops at the Capitol until the crisis was largely over. Under § 49–409 of the D.C. Code, the president has the power to deploy the D.C. National Guard without a request. This power has been delegated to the secretary of defense, and further delegated to the secretary of the army. Approval by the president may ordinarily be prudent but is not required. (Mayor Bowser of D.C. has noted that “D.C.” National Guard may be a misnomer, given that, unlike governors, she has no authority to call out the National Guard.)

Which is to say, D.C.’s unique status makes it inconceivable that the Capitol did not have enough security support to resist the mob had the USCP, as well as other federal forces and local leaders, planned properly. There are enough federal forces that have authority to deploy to the Capitol in situations of unrest, and instead of impulsively looking for ways to ease norms of restraint, we should instead look at the coordination, communication, intelligence collection, and escalation protocol failures that took place on January 6.

Tested Norm: Consistent and Apolitical Deployment Decisions

A key overarching norm that applies to all federal force deployments—whether they occur in D.C. or elsewhere in the country—is that they must be, and be seen as, apolitical in nature. Unfortunately, the lack of a strong and timely response to the mob violence on January 6, which contrasted so sharply with the federal force responses to this summer’s racial justice protests, greatly tested this norm.

At a minimum, there is a concern that political determinations altered senior leaders’ willingness to properly assess and respond to threats, which ultimately resulted in dissimilar deployments between disparate groups with different political objectives and of largely different races. It is hard to escape the conclusion that if this mob had been largely people of color they would have been treated very differently. This disparity undermines public trust in government and, ultimately, in U.S. democracy.

This is why we have such strong norms against active-duty military personnel making political statements. It also explains why there is so much concern about seeing military and civilian law enforcement, particularly federal law enforcement officers, in uniform being used as props at political rallies. And it is why photos of military wearing patches and other insignia of conspiracy and other political groups raised alarms. As we now learn of involvement by active-duty military and law enforcement, as well as elected officials, in the breaching of the Capitol, it is clearer than ever that these norms must be strengthened and enforced.

Defense Department officials were reportedly concerned about the optics of military forces, including National Guard personnel, being in or around the Capitol. Optics are important, and to have troops conspicuously prepositioned at the Capitol on this momentous occasion could have been subject to multiple, problematic interpretations. But the optic of favoritism in the application of force is more damaging to public trust than an appropriate deployment in support of law enforcement that is clearly overwhelmed.

It will be important to get clarity on the concern about “optics.” To what degree was reported reluctance on the part of Defense Department and congressional security leaders, and perhaps even D.C. local officials, to have the National Guard as part of the planned force structure influenced by earlier talk at the White House about martial law and possible use of the military to overturn the election? Was there a concern, for example, that (1) it might look like the military was there to intimidate members in an effort to disrupt the process, or (2) having the National Guard at the ready might make it easier for the president to activate them as a way of disrupting the process? Did the norm-busting precedent of the president warp normal decisionmaking?

Decisionmakers at these agencies need to understand this dynamic so as to avoid making similar mistakes in the days to come. The military needs to be confident in its responsibility to identify and defy an unlawful order. Our federal forces cannot lurch from one extreme to the other; failures to act can be as damaging to public confidence as overaggressive actions. The imperative that these decisions be apolitical means that they must be based upon the law and anticipated threats. As we have seen, consistent and impartial decisionmaking is essential to sustaining public trust and ensuring effective security.

Recommendations

Our previous and upcoming reports on the broader issues of federal force deployments related to elections include a series of recommendations, all of which can be found here. With respect specifically to the events of January 6, we make the following urgent recommendations:

Congress

  • Congress, which directly oversees the USCP, should immediately review the agency’s protocols for requesting assistance and ensure that preparations include not just large gatherings, but the potential for high-impact, violent actions by individuals, in the planning and execution phases. One of our interviewees noted that while the Defense Department has established protocols to coordinate with forces like the Park Police, U.S. Marshals, and the Metropolitan Police Department, protocols are less well established with the USCP.

 

  • In the upcoming confirmation hearings for the Biden administration’s Defense, Homeland Security, and Justice Departments, members of relevant committees should ask about restoring and sustaining public trust, specifically asking nominees to commit to apolitical decisionmaking with regard to domestic deployments. These should become standard questions for similar hearings in future administrations.

State and Local Governments

  • Given the ongoing threat of violence at state capitols and other locales around the country, state and local officials should ensure that they have tapped all appropriate sources of information on the threat and have plans in place to safeguard their buildings and people. Coordination with federal forces, such as Department of Homeland Security’s Federal Protective Service, to understand their plans and posture with respect to federal missions, is essential, in addition to planning with the state’s adjutant general with regard to appropriate use of the National Guard. Relevant officials should be familiar with the laws applicable to organized armed groups planning events in their city or state, as well as the means for enforcing them, and ensure collaboration between law enforcement investigators and prosecutors. State and local officials should also clearly communicate to the public that they are prepared.

Whole of Society

  • The nation, at all levels of government and in civil society, should elevate civic education as a national security imperative. Our democracy is strong but not invincible. It must be fought for in the face of attacks from enemies domestic and foreign. It is worth fighting for not because it is perfect, but because, unlike authoritarian regimes, it is capable of change through peaceful, constitutional means. On January 6, we witnessed an effort at change through violence—an insurrection. All Americans should be equipped to be effective agents of change within our system and to do their part in sustaining our democracy. Civics education is a national security imperative because it is how we empower ourselves to preserve our republic.

Suzanne Spaulding is senior adviser for homeland security and director of the Defending Democratic Institutions project at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Devi Nair is a program manager and research associate with the CSIS International Security Program.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2021 by the Center for Strategic and International Studies. All rights reserved.

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The Center for Strategic and International Studies (CSIS) is a bipartisan, nonprofit organization founded in 1962 and headquartered in Washington, D.C. It seeks to advance global security and prosperity by providing strategic insights and policy solutions to decisionmakers.

              

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