Law & the Courts

‘Dominating’ the Streets

Detroit police line up next to an armored vehicle in preparation to enforce a curfew in Detroit, Mich., June 1, 2020. (Rebecca Cook/Reuters)
Right now providing security must be a higher priority than law enforcement.

Since the revolution in policing that began in the early 1990s, we have had a generation of peace and prosperity. Without the rule of law — i.e., without order, without the presumption that the laws will be enforced — that kind of societal flourishing is not possible.

We are seeing now what happens when the rule of law breaks down. It is frightening, but it is hardly unprecedented, even in modern history. Bryan Burrough’s spellbinding history Days of Rage: America’s Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence, which I reviewed for NR about five years ago, reminds us that in 1972 alone, there were 1,900 bombings in the United States, carried out, for the most part, by domestic terrorist groups and enraged individual American citizens. Regrettably, the radical “small-c communists” were not ultimately regarded as the sociopaths that they were. They eroded public support for our war effort in Vietnam, wrote the history in which they were lionized as social-justice icons against racist America, and triumphantly marched into academe, where they have taught and influenced the sociopaths who are making mayhem today.

Throughout our 30 years of domestic tranquility, which seems to be in its twilight, we have had debates that are relevant to the rioting and looting now underway in American cities. Specifically, we have argued over the War on Terror, so-called.

It wasn’t really a war. That is, the nation was not on a wartime footing. Our enemies did not present as traditional armed forces, but melded into the civilian populations that they attacked. While there were domestic attacks, the most catastrophic one on 9/11, the courts always remained open and functioning. There was no cessation of domestic law enforcement. Yet it wasn’t truly peacetime, either. Our enemies were projecting force on the scale of a nation-state and were backed by hostile foreign regimes. Congress authorized combat operations, and our military was dispatched. The laws of war were invoked to justify detaining enemy combatants and even trying them by military commission — though few such trials actually took place.

The question at the heart of all this was: What is our default condition: peace, war, or some kind of hybrid?

In peacetime conditions, we proudly take the position that liberty is supreme. In any contest between freedom and order, we’d rather see the government lose — we’d rather see the guilty escape justice than see a single innocent person wrongfully convicted.

When the rule of law itself is vulnerable, however, we soon realize we may not have the luxury of that posture. If national security truly is at risk, if lives and property are threatened on a large scale, we cannot take the position that we’d rather see the government lose. We need government to prevail, because without order, our liberties are just parchment promises.

On Monday, before yet another night of rioting, President Trump and Attorney General William Barr both spoke about “dominating the streets” — i.e., the need for the government to restore order. It’s the kind of aggressive rhetoric that rubs some people the wrong way, but the point is not to be dictatorial. It is to reestablish the rule-of-law presumption.

This is going to be more difficult because of post-9/11 excesses and abuses. Obviously, the public was deeply concerned about jihadist mass-murder attacks, but there was never a sense — as there was during, say, World War II — that the nation was invested in a real war effort. Progressive critics argued that War on Terror security measures were more a cause of than a legitimate reaction to anti-American terrorism; libertarians contended that these measures were wildly out of proportion to the threat, and that government power grabs would lead to ever greater abuses.

Almost 20 years later, with two wars having devolved into failed experiments in sharia-democracy building, it is hard to be mindful now that there really was a point to all of this. There has been no reprise of 9/11. Our military and intelligence services have done a spectacular job of keeping our homeland safe, notwithstanding that our enemies remain committed to attacking us.

Instead, what is most visible to us are the abuses, including the use of foreign-intelligence surveillance authorities to spy on innocent Americans, interfere in a political campaign, and hamstring an incoming administration.

So now, what I’ve long feared has happened: We have a real national-security crisis, but government officials have lost the trust of the American people to use security powers for their intended purposes.

While our foreign terrorist enemies are more amorphous than traditional foes in foreign wars, they are identifiably foreign, despite the stray American who aligns with them. That makes dealing with organizations such as al-Qaeda and ISIS easier for us. They simply do not have the same array of constitutional protections that Americans have, and we are not required to afford them the same presumption of innocence. To neutralize them, there is scant need for judicial warrants.

In marked contrast, what’s happening on the streets right now is reminiscent of those Days of Rage. The violent radicals are Americans, and they are threading through crowds of Americans who are exercising their constitutionally protected rights to assemble and protest.

There is no domestic-terrorism analogue to FISA (the Foreign Intelligence Surveillance Act). FISA permits monitoring in the absence of probable cause of crimes if a person is acting as an agent of a foreign power — though, as I’ve noted time and again, if the government wants to monitor an American as a clandestine agent, FISA nearly mandates a probable-cause showing of a crime. When investigating Americans, even in the domestic-terrorism context, law-enforcement officials must presume innocence unless there is criminal evidence to the contrary amounting to probable cause.

But that’s law enforcement. The first responsibility of government is not law enforcement, though the last 30 years may have lulled us into that misimpression. The first responsibility of government is to provide security. The rule of law is not just the result of law enforcement; it is a prerequisite of law enforcement.

Police organizations, even if we combined all federal and state forces, do not have the capacity to impose order. They certainly could not simultaneously impose it and investigate crime. When there is mass violence or insurrection, that is a security problem, not a law-enforcement problem. That is why police departments in major cities are on their heels at the moment.

This is the situation where we need government to win, not where we’d prefer for it to lose. If you are truly a peaceful protester, you grasp that — you don’t want to be running cover for violent radicals, regardless of your anger. Like every other law-abiding American with whom you agree or disagree, you have to understand that unless we have order, your rights, including your rights to assemble and protest, are illusory. It is said that the radicals are “hijacking” the protests, but that’s a cop-out. It couldn’t happen unless the protesters let it happen. Knowing that they are being exploited for violent ends, they continue, prioritizing their right to self-expression — which could be exercised many ways other than on the streets, alongside sociopaths — over our collective right to ordered liberty.

That is why the government has to dominate the streets, including by deploying the National Guard and any other armed forces to the extent that is necessary to restore order. The understanding that mass violence and insurrection will not be tolerated has to be revived.

In this, as in most things, the niceties of law are subordinate to political reality. Legally, the president has all the authority he needs to deploy federal forces — law-enforcement and security forces — to quell the uprisings, with or without the consent of the governors. For their part, the governors have the authority they need to call in the National Guard to fortify their beleaguered police. But as a practical matter, we are doomed to failure unless the president and the governors cooperate, unless they get beyond heated partisan politics and present a united American front against anti-American violence.

It is not hard for the radicals to read the pols. If the rhetoric of the president and Democratic governors continues to imply that they are setting each other up to take the political blame for failure, the radicals glean that failure is assumed, that chaos reigns. This must not be a matter of President Trump dominating the streets. It has to be the rule of law dominating the streets. It has to be the states and the feds together, facing down anti-American insurrectionists.

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