Summary: The Lawfare Podcast – “Lawfare Archive: The Dangers of Deploying the Military on U.S. Soil”

Date: November 8, 2025
Host: Scott R. Anderson (Senior Editor, Lawfare)
Guests: Laura Dickinson, Joseph Nunn, Chris Mirasola, Mark Nevitt, Elaine McCusker, Lindsey P. Cohn, Alex Dasanovich
Main Theme:
A comprehensive exploration of the legal, historical, and policy dimensions—and deep risks—of deploying the U.S. military domestically, including the evolving statutory landscape, executive power, public opinion, effects on civil-military relations, and urgent reform recommendations.

Episode Overview

This archive episode brings together contributors from a Lawfare essay series, originally published in 2024, to dissect the expanding use of the U.S. military on American soil. Prompted by contemporary examples (such as deployments during protests, disaster relief, and border missions), the guests analyze the legal regimes—especially the Posse Comitatus Act and the Insurrection Act—historical precedents, practical risks, public and military sentiment, and what’s at stake for democracy and civil-military trust.

Key Discussion Points & Insights

1. Why This Conversation, Why Now?

[02:26–10:08]

• Context: Recent deployments of the National Guard and federal troops in U.S. cities have raised the profile of domestic military use.
• Alex Dasanovich (Protect Democracy):
  • Recent years have seen “more routine and more non-traditional roles” for U.S. military domestically (e.g., enforcing immigration, quelling protests).
  • “We really need to make sure that we’re making wise choices about how we use the military” and “… avoid using the military as a one-size-fits-all solution.” (05:05)
  • Protect Democracy’s concerns are about guarding against executive overreach, protecting democratic institutions, and resisting the normalization of military policing.

2. Legal Foundations: Constitutional, Statutory, and Historical Context

[10:08–44:43]

a. Constitutional Framework

• Laura Dickinson:
  • Framers intended a limited domestic role for the military, reflecting dangers experienced under British rule.
  • Article II (Presidential power) provides only “very limited emergency powers.”
  • Congress holds principal authority over the armed forces (funding, regulations, war aims).
  • “The US Constitutional framework… contemplates a quite limited, limited role for the military domestically, outside a context when the U.S. is actually the theater of war.” (11:12)

b. What Is the ‘Militia’?

• Chris Mirasola:
  • Differentiates federal military (active, reservists) from state-controlled National Guard (can be “federalized”).
  • Introduces “Title 32 status”—National Guard in state status, but on a federally funded, federal mission—a key legal gray zone.

c. The Posse Comitatus Act

• Joseph Nunn:
  • Limits federal military from acting in civilian law enforcement “except when expressly authorized by Congress.”
  • Applies to federalized National Guard, not to state-controlled Guard.
  • Fuzzy line between “support” and “law enforcement” activity: “There’s a gray area. And within that gray zone, the principles for determining what constitutes law enforcement are less clear than they should be.” (18:19)
  • Courts variously use “direct active use,” “regulatory/prescriptive” role, and whether military “pervades” the law enforcement operation as tests.

d. The Insurrection Act

• Laura Dickinson:
  • Reviewed Act’s broad triggers—state request, presidential discretion in extreme circumstances (Section 252), and suppression of insurrection/violence.
  • Warns that text could allow even minor unrest to trigger military deployment, including use of private militias (“potentially even... Proud Boys or paramilitaries.” 24:22)
  • Historic use is rare—only “30 crises in which the act has been used over our nation’s history”.
  • Argues for reading Insurrection Act narrowly, in deference to constitutional limitations and norms.

e. Title 32 and Section 502(f): A New Controversy

• Joseph Nunn:
  • Title 32 status enables the President/DoD to request National Guard deployments for “federal missions” while the troops remain under state command.
  • Used during protests in Washington, D.C., June 2020. 11 state governors complied, sending their National Guards to support federal objectives over the D.C. mayor’s objections (34:18).
  • This situation “can’t be right” as an unlimited executive tool; would “blow a giant hole” in existing statutory safeguards.

f. Congress’s Appropriations Power

• Chris Mirasola:
  • Congress can more effectively limit deployments through appropriation bills, which are renewed annually and can be highly detailed.
  • Direct conditions or prohibitions on use in certain scenarios (e.g., bar using funds for law enforcement missions in D.C.) are possible, but rarely used.

3. Operational & Policy Implications

[56:40–96:50]

a. Military and Civil-Military Norms

• Mark Nevitt:
  • National Guard views disaster relief as core mission; federal military (Title 10) “focused on fighting and winning the nation’s wars.”
  • “There’s sort of a strong historical reluctance for the military to get overly involved in civilian matters...” (58:16)

b. Public and Military Attitudes

• Lindsey P. Cohn:
  • Public more accepting of military deployments than military professionals—“the American public is certainly less averse to the idea of deploying the military domestically than the military is.” (62:42)
  • Military officers “strongly against having the active duty forces deployed for domestic law enforcement purposes.”
  • Cites recent research showing this norm cuts across partisan lines.

c. Practical Challenges: Capabilities and Resources

• Elaine McCusker:
  • Non-core missions strain already underfunded military; emergency deployments “distract resources and attention from what the military should be doing and what only it can do.” (69:01)
  • Risks: delayed training, increased accidents, logistical strain, and negative impact on traditional readiness vis-à-vis global threats.

d. Rule Compliance and Fit

• Mark Nevitt:
  • Military policies stress "support" for civilian authorities, maintaining clear roles and time-limited interventions.
  • Transitions between “rules of engagement” (for combat) and “rules for use of force” (for domestic law enforcement) are difficult in real time; terminology misunderstandings can be dangerous (e.g., Marines firing 200 bullets during the 1992 LA riots due to a crossed verbal command).

e. Risks to Democratic Institutions

• Lindsey P. Cohn:
  • “If the military appears to be acting in a one-sided manner… that tends to damage public trust in the military.”
  • Biggest risk is the military being seen as a partisan tool, leading to “a real, very serious problem that all leaders should be looking to avoid unless they themselves are trying to split the country that way.” (84:46)
  • Erosion of deeply internalized norms is dangerous; if “stay out” ceases being a workable ethic, “we do not currently have a replacement norm.”

4. Takeaways & Reform Recommendations

[89:55–100:29]

| Speaker | Key Recommendations & Quotes | |-------------|----------------------------------| | Joseph Nunn | - “Congress should look at extending the Posse Comitatus Act to cover state deployments of the National Guard that occur at the request of the President or Secretary of Defense under section 502.” (89:55) | | Chris Mirasola | - Loopholes allow the Executive to “use the military in potentially really problematic ways.”<br>- “Making the purposes and the scope and the duration of domestic deployments transparent to the public, particularly at a time when we’re concerned about misinformation…” (91:24) | | Laura Dickinson | - Congress should amend and narrow the Insurrection Act (tighten triggers, require reporting/authorization, restrict privatized militias).<br>- “Our normative tradition is to… be very careful about using the military domestically, particularly in a law enforcement capacity, and it would really violate that tradition.” (93:21) | | Lindsey P. Cohn | - “The best way to avoid this problem… is to invest in preventive measures and more appropriate responsive measures.”<br>- “The military cannot fix… sociopolitical problems they are being called upon to respond to.” (95:49) | | Mark Nevitt | - Local policymakers: Build relationships with military units pre-crisis (“You can’t surge trust in an emergency…”).<br>- Congress: Reform the Insurrection Act; require reporting and time limits.<br>- Executive branch: Prefer National Guard and Coast Guard for domestic needs before Title 10 federal forces. | | Elaine McCusker | - Policymakers should ask: “Is this something only the military can do and that it’s best at doing? And is it more important than the US Role as a global power and keeping the nation secure?” If not, don’t do it. (99:57) |

Notable Quotes & Memorable Moments

• On tradition and legal limits:
  “The fear of military intrusion into civilian affairs has become part of our cultural and political institutions.” — Laura Dickinson, [11:12]

• On legal gray zones:
  “There’s a gray area. And within that gray zone, the principles for determining what constitutes law enforcement are less clear than they should be.” — Joseph Nunn, [18:19]

• On the risk of ‘mission creep’:
  “If federal mission requested by the President means any mission the President could conceivably request, then… the President no longer has a strong incentive to ever invoke the Insurrection act.” — Joseph Nunn, [34:18]

• On civilian-military culture:
  “There’s sort of a strong historical reluctance for the military to get overly involved in civilian matters, particularly... in law enforcement type operations.” — Mark Nevitt, [58:16]

• On public views:
  “The American public is certainly less averse to the idea of deploying the military domestically than the military is, but they would still probably rather see a more local and more law enforcement response if possible.” — Lindsey P. Cohn, [62:42]

• On institutional trust:
  “We have a lot of need for normative trust in institutions… that is breaking down… and the military cannot fix that.” — Lindsey P. Cohn, [95:49]

Important Segment Timestamps

• Legal & Historical Framework: [10:08–44:43]
• Insurrection Act Deep Dive: [24:22–33:01]
• Title 32 / Section 502(f): [34:18–44:43]
• Policy Norms & Civil-Military Relations: [56:42–73:04]
• Public/Military Attitudes Discussion: [61:56–67:56]
• Resource/Strategic Risks: [69:01–76:38]
• Broader Democratic Implications: [83:51–89:41]
• Consensus Recommendations: [89:55–100:29]

Conclusion

This episode underscores the dangers of expanding military roles within U.S. borders, both legally and practically. The panel agrees: U.S. tradition, legal safeguards, resource constraints, and the integrity of democracy all counsel against using the military as a default domestic problem-solver. There is broad support for legislative reform, greater transparency, and a return to more robust civil and institutional responses outside of military channels.

For all policymakers, military professionals, and concerned citizens: Use the military domestically only with utmost caution, as a true last resort, and only after exhausting—reforming if necessary—our democratic civilian institutions.