he last time an American president deployed the U.S. military domestically under the Insurrection Act — during the deadly Los Angeles riots in 1992 — Douglas Ollivant was there. Ollivant, then a young Army first lieutenant, says things went fairly smoothly because it was somebody else — the cops — doing the head-cracking to restore order, not his 7th Infantry Division. He and his troops didn’t have to detain or shoot at anyone.
“There was real sensitivity about keeping federal troops away from the front lines,” said Ollivant, who was ordered in by President George H.W. Bush as rioters in central-south LA set fire to buildings, assaulted police and bystanders, pelted cars with rocks and smashed store windows in the aftermath of the videotaped police beating of Rodney King, a Black motorist. “They tried to keep us in support roles, backing up the police.”
By the end of six days of rioting, 63 people were dead and 2,383 injured — though reportedly none at the hands of the military.
But some in the U.S. military fear next time could be different. According to nearly a dozen retired officers and current military lawyers, as well as scholars who teach at West Point and Annapolis, an intense if quiet debate is underway inside the U.S. military community about what orders it would be obliged to obey if President-elect Donald Trump decides to follow through on his previous warnings that he might deploy troops against what he deems domestic threats, including political enemies, dissenters and immigrants.
On Nov. 18, two weeks after the election, Trump confirmed he plans to declare a national emergency and use the military for the mass deportations of illegal immigrants.
One fear is that domestic deployment of active-duty troops could lead to bloodshed given that the regular military is mainly trained to shoot at and kill foreign enemies. The only way to prevent that is establishing clear “rules of engagement” for domestic deployments that outline how much force troops can use — especially considering constitutional restraints protecting U.S. citizens and residents — against what kinds of people in what kinds of situations. And establishing those new rules would require a lot more training, in the view of many in the military community.
“Everything I hear is that our training is in the shitter,” says retired Army Lt. Gen. Marvin Covault, who commanded the 7th Infantry Division in 1992 in what was called “Joint Task Force LA.” “I’m not sure we have the kind of discipline now, and at every leader level, that we had 32 years ago. That concerns me about the people you’re going to put on the ground.”
In an interview, Covault said he was careful to avoid lethal force in Los Angeles by emphasizing to his soldiers they were now “deployed in the civilian world.” He ordered gun chambers to remain empty except in self-defense, banned all automatic weapons and required bayonets to remain on soldiers’ belts.
But Covault added that he set those rules at his own discretion. Even then Covault said he faced some recalcitrance, especially from U.S. Marine battalions under his command that sought to keep M16 machine guns on their armored personnel carriers. In one reported case a Marine unit, asked by L.A. police for “cover,” misunderstood the police term for “standing by” and fired some 200 rounds at a house occupied by a family. Fortunately, no one was injured.
“If we get fast and loose with rules of engagement or if we get into operations without a stated mission and intent, we’re going to be headline news, and it’s not going to be good,” Covault said in the interview.
Trump has repeatedly said he might use the military to suppress a domestic protest, or to raid a sanctuary city to purge it of undocumented immigrants, or possibly defend the Southern border. Some in the military community say they are especially disturbed by the prospect that troops might be used to serve Trump’s political ends. In 1992, Covault said, he had no direct orders from Bush other than to deploy to restore peace. On his own volition, he said, he announced upon landing in LA at a news conference: “This is not martial law. The reason we’re here is to create a safe and secure environment so you can go back to normal.” Covault said he believes the statement had a calming effect.
But 28 years later, when the police killing of another Black American, George Floyd, sparked sporadically violent protests nationwide, then-President Trump openly considered using firepower on the demonstrators, according to his former defense secretary, Mark Esper. Trump asked, “Can’t you just shoot them? Just shoot them in the legs or something?” Esper wrote in his 2022 memoir, A Sacred Trust. At another point Trump urged his Joint Chiefs chair, Gen. Mark Milley, to “beat the fuck out” out of the protesters and “crack skulls,” and he tweeted that “when the looting starts, the shooting starts.” Esper wrote that he had “to walk Trump back” from such ideas and the president didn’t pursue them.
Some involved in the current debate say they are worried Trump would not be as restrained this time. He is filling his Pentagon and national security team with fierce loyalists. The concern is not just in how much force might be used, but also whether troops would be regularly deployed to advance the new administration’s political interests.
This topic is extremely sensitive inside the active-duty military, and a Pentagon spokesperson declined to comment. But several of the retired military officials I interviewed said that they were gingerly talking about it with their friends and colleagues still in active service.
And Mark Zaid, a Washington lawyer who has long represented military and intelligence officers who run afoul of their chain of command, told me: “A lot of people are reaching out to me proactively to express concern about what they foresee coming, including Defense Department civilians and active-duty military.” Among them, Zaid said, are people “who are either planning on leaving the government or will be waiting to see if there is a line that is crossed by the incoming administration.”
After the D.C. National Guard was ordered to clear demonstrators from Lafayette Square across from the White House in 2020 using tear gas, rubber bullets and flash-bang grenades, a group of lawyers founded “The Orders Project” aimed at connecting up lawyers and troops looking for legal advice.
One of the founders, Eugene Fidell of Yale Law School, said that the group disbanded after the first Trump administration but is now being resurrected.
“With the return of President Trump, we’re ready to help people in need,” Fidell said.
The Lafayette Square incident remains a topic of some debate inside the military community. One DC guardsman, Major Adam DeMarco, an Iraq war veteran, later said in written testimony to Congress that he was “deeply disturbed” by the “excessive use of force.” “Having served in a combat zone, and understanding how to assess threat environments, at no time did I feel threatened by the protesters or assess them to be violent,” he wrote. “I knew something was wrong, but I didn’t know what. Anthony Pfaff, a retired colonel who is now a military ethics scholar at the U.S. Army War College, said this confusion reveals a serious training deficiency: Domestic crowd control and policing “is not something for which we have any doctrine or other standard operating procedures. Without those, thresholds for force could be determined by individual commanders, leading to even more confusion.”
For active military, most of the current debate is happening behind closed doors. As a result, some retired military as well as scholars and lawyers are trying to bring the issue into public view.
“It’s legally and ethically dicey to have open conversations about this,” says Graham Parsons, a philosophy professor at West Point who urged military officers and troops to consider resisting “politicized” orders in a New York Times op-ed in September. One concern is whether the military could tarnish itself with an incident like Kent State, when four college students were shot to death by jittery and poorly trained Ohio National Guardsmen in 1970.
“Soldiers are trained predominately to fight, kill and win wars,” says Brian VanDeMark, a Naval Academy historian and author of the 2024 book Kent State: An American Tragedy. “Local police and state police are far better trained to deal with the psychology of crowds, which can become inherently unpredictable, impulsive and irrational. If you’re not well trained to cope, your reaction might be inadequate and turn to force.” He adds that at the Naval Academy as well as West Point, “my impression is this is an issue that is being thought about and worried about a lot but it’s not openly discussed.”
Some lawyers and experts in military law say a great deal of confusion persists — even among serving officers — over how the military should behave, especially if Trump invokes the Insurrection Act and calls up troops to crush domestic protests or round up millions of undocumented immigrants. In most cases, there is little that officers and enlisted personnel can do but obey such presidential orders, even if they oppose them ethically, or face dismissal or court-martial.
But as Covault puts it bluntly: “You don’t always follow dumb orders.”
Under long-standing military codes, troops are obliged to disobey only obviously illegal orders — for example, an order to conduct a wholesale slaughter of civilians as happened in the village of My Lai during the Vietnam War. But under the more than 200-year-old Insurrection Act, Trump would have extraordinarily wide latitude to decide what’s “legal,” lawyers say.
“The basic reality is that the Insurrection Act gives the president dangerously broad discretion to use the military as a domestic police force,” says Joseph Nunn, an expert at the Brennan Center for Justice. “It’s an extraordinarily broad law that has no meaningful criteria in it for determining when it’s appropriate for the president to deploy the military domestically.” Nothing in the text of the Insurrection Act says the president must cite insurrection, rebellion, or domestic violence to justify deployment; the language is so vague that Trump could potentially claim only that he perceives a “conspiracy.”
The Insurrection Act, a blend of different statutes enacted by Congress between 1792 and 1871, is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.
Most Americans may not realize how often presidents have invoked the Insurrection Act — often, in the view of historians, to the benefit of the nation. While it’s been 32 years since Bush used it to help quell the Los Angeles riots, the Insurrection Act was also invoked by President Dwight Eisenhower following the Supreme Court’s 1954 Board v. Board of Education decision, when Ike deployed the 101st Airborne Division (with fixed bayonets on their rifles) to help desegregate the South. George Washington and John Adams used the Insurrection Act in response to early rebellions against federal authority, Abraham Lincoln invoked it at the start of the Civil War, and President Ulysses Grant used it to stop the Ku Klux Klan in the 1870s.
But when it comes to the next Trump administration, the real question for most military lawyers and personnel will likely be less purely legalistic and more ethical: Even if Trump decides something is legal and the courts back him up, are troops still bound to do as he says under the Constitution?
One lawyer, John Dehn of Loyola University — a former Army career officer and West Point graduate — calls this the “Milley problem,” referring to the well-documented angst of the former Joint Chiefs chair during Trump’s first presidency. Milley stirred controversy by publicly apologizing after Trump used him in a staged photo of the Lafayette Square incident. During the Jan. 6, 2021 insurrection, he reportedly assured then-Speaker Nancy Pelosi that he would “prevent” any unwarranted use of the military, and he has acknowledged calling his Chinese counterparts to assure them that no nuclear weapons would be launched before Trump left office.
Milley, who has called Trump “fascist to the core,” later told Bob Woodward for the 2024 book War that he feared being recalled to active duty to face a court-martial “for disloyalty.” At one point Trump himself suggested Milley could have been executed for treason.
In a newly published law review essay, Dehn argues that while Milley might have breached his constitutional duties, the Constitution “is not a suicide pact,” and Milley served a higher purpose by protecting the nation. He quotes Thomas Jefferson as writing “strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. [T]he laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.”
Similarly, some within the military community are urging troops to “lawyer up” and prepare to resist what they consider unethical orders, saying resistance can be justified if the soldier thinks it would jeopardize the soldier’s own conception of military “neutrality.”
“By refusing to follow orders about military deployment to U.S. cities for political ends, members of the armed forces could actually be respecting, rather than undermining, the principle of civilian control,” wrote Marcus Hedahl, a philosophy professor at United States Naval Academy, and Bradley Jay Strawser, a scholar at the Naval Postgraduate School, in a blog post on Oct. 25.
Others within the military community disagree, sometimes vehemently. Such thinking is seriously misguided and could lead to widespread legal problems for military personnel, says retired Air Force Maj. Gen. Charles Dunlap, a former deputy judge advocate general now at Duke Law School. “I am concerned because I do think there’s been some mistaken information that’s out there. The fact is, if an order is legal then members of the armed forces have to obey it even if they find it morally reprehensible.”
In a Washington Post op-ed published after the election, another retired general, former Joint Chiefs Chair Martin Dempsey, agreed, saying it was “reckless” to suggest that “it is the duty of the brass to resist some initiatives and follow the ‘good’ orders but not the ‘bad’ orders that a president might issue.”
Dunlap cites the military’s standard Manual for Courts-Martial, which states clearly that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” Dunlap and other lawyers also note that Supreme Court precedent backs that up; in 1974 the Supreme Court ruled: “An army is not a deliberative body. It is the executive arm. Its law is that of obedience.”
Inside the military this conundrum is known as “lawful but awful”: Active-duty troops have no choice, especially if the order comes from the commander-in-chief. “No one should be encouraging members of the military to disobey a lawful order even if it’s awful,” says Nunn. “And it’s crucial that is as it should be. We do not want to live in a world where the military picks and chooses what order to obey based on their own consciences. We don’t want to ask a 20-year-old lieutenant to interpret an order from the president.”
Indeed, that could set another dangerous precedent, some military lawyers say, by undermining the principle of civilian control that the Founders said was fundamental to the U.S. republic. “You don’t have to look far for examples of countries where the military is picking and choosing which orders to follow,” says Nunn.
Most legal experts agree that troops must obey all nominally legal orders. But military lawyers say it’s important for troops to remember that even if called into action they must obey peoples’ constitutional rights — including the right to assemble and to be protected from unlawful arrest and seizure or unreasonable force.
“You have to follow the Fourth, Fifth and Sixth amendments. They don’t get waived,” said Dehn. When it comes to the Fourth Amendment, for example, which protects people from unreasonable searches and seizures by the government, “the requirement of reasonableness applies” to the military just as it does to police, said Dehn. So do protections for due process and other rights of the accused enshrined in the Fifth and Sixth Amendments.
“Due process still applies,” Nunn agreed. “Military personnel deployed under the [Insurrection Act] can’t do what law enforcement can’t do. They can’t shoot peaceful protesters.”
Yale’s Fidell says any successful legal challenges to Trump’s orders will likely be more “retail than wholesale.” By this he means that even if the president can broadly justify the Insurrection Act legally, “you might able to show a particular order is unlawful, for example if you’re ordered to use your helicopter to create a downdraft to disperse rioters — remember that happened at Lafayette Square — or shoot at students.”
In the end much will depend on what Trump’s senior legal advisers tell him and what courts decide, lawyers say. But for the first time in memory, “we have to consider the possibility we could have a commander-in-chief who is willing to order the military to do something that is pretty threatening to the constitutional order,” says Parsons, the West Point scholar.
“Even if we get the law straight, what’s the right thing to do?” adds Parsons. “If the president invokes the Insurrection Act we don’t really know what the ethical boundaries are. Among the military lawyers this is just uncharted territory.”
Says one lawyer who has studied many cases of military-civilian conflict and spoke on condition of anonymity because he fears retribution from the new Trump administration: “I think things are going to be bad, really bad. This is going to be worse than last time. Trump is angry. He desperately wants to turn on his TV and see guys in uniform on the streets.”
But Dunlap, for one, hopes that “cooler heads will prevail”: “I’m cautiously optimistic that people are going to realize that not all the campaign rhetoric is going to be translatable into action.”
