Experts Praise McGuire For Objecting To Social Media Screening, And Questioning Role Of National Guard

Cannot "commit its outstanding citizen-soldiers and airmen to any mission without proper legal authority"

Maj. Gen. Michael T McGuire discusses the effort to help set up the first 24/7 Superpod at State Farm Stadium for the distribution of the COVID-19 vaccine. [Photo via Arizona National Guard]

The head of Arizona’s National Guard, Major General Michael T. McGuire, is being praised by constitutional experts for his letter to General Daniel Hokanson, Chief of the National Guard Bureau, questioning the role for his troops during inauguration week.

In that letter, McGuire advises Hokanson that his staff has “has worked diligently to find appropriate legal authority to support the provision of National Guard members in direct support of current law enforcement efforts, in the District of Columbia. We have been unable to find such authority.”

McGuire notes that his troops can provide “four Explosive Ordnance Disposal personnel in Title 10 status. In addition, we are providing administrative and food service personnel in Title 32 status. We are also providing military airlift, to the District of Columbia, incidental to our routine training missions.”

“Additionally, Arizona continues to maintain a Rapid Response Team, of more than 330 personnel, to project anywhere in the country, in State Active Duty status, when requested by the governor of a state in support of state efforts to quell any emergent civil disturbance,” continued McGuire.

“In December, I spent 3 days out of state teaching a National Guard Unit on a variety of Constitutional issues,” constitutional expert Jeff Utsch told the ADI. “Included in the topics we discussed was the Guard’s duties, responsibilities, and delegated powers depending on how they were called up (under State Active Duty, Title 32, or Title 10). It is incredibly encouraging to me to see Arizona’s Adjutant General, Major General Michael T. McGuire, have the knowledge of and hold true to the oath he has taken to support and defend the Constitution.”

“He seems to understand the specific authority that the Guard has depending on how they are activated and is willing to speak up if he is asked to do something outside of the Guard’s proper role when asked. It may not be the case but this seems rare to me and I am grateful that he holds the position he does. This is how the Constitution is defended and this is how someone who has taken the oath of office acts when asked to do something outside the bounds of delegated authority,” explained Utsch, a Leadership and History instructor at the Leadership and Freedom Center in Gettysburg, Pennsylvania. “Would that we have more like him.”

“As a full disclosure, I do not know nor have I ever met the Adjutant General but the fact he is asking these questions and taking the stance that he has chosen in his letter shows me he is a man of sound judgment and educated on the duties of his office,” said Utsch. “All too often when the federal government asks then it is assumed to be legal and people just proceed to obey.”

“These are no trivial matters as the separation of powers, and especially the policing power, is to be mostly a local affair for abundant reasons that ensure liberty,” asserted Utsch.

“I hope you take time to read our Adjutant General’s letter and understand that there are still Patriots alive today who actually live up to their oaths.” Utsch concluded, “It’s great to have one among us.”

A colleague of Utsch described McGuire as a “really courageous guy, who understands what is at issue.”

“I applaud Gen. McGuire for following the Constitution,” said Arizona State Rep. Walt Blackman, an Army veteran. “In the General’s oath, he swore to protect and defend the Constitution. He has done just that by questioning the orders of the officers above him is the order moral and lawful.”

Major General Michael T. McGuire’s letter dated January 15, 2021 to General Daniel Hokanson, Chief of the National Guard Bureau in its entirety:

General Daniel Hokanson
Chief, National Guard Bureau
1636 Defense Pentagon, Suite 2E630 Washington, DC 20301-1636

Dear General Hokanson:

The great men and women of the Arizona National Guard are always prepared to answer the call to duty in all operations, foreign and domestic, under proper authority. Be it wildfires, hurricanes, pandemics, multiple border missions, civil disturbance, and other domestic operations, or defending our democracy and our way of life during times of war and armed conflict abroad, the Arizona National Guard is “Always Ready, Always There.”

The events of 6 January 2020, in our Nation’s capital, were appalling and intolerable. Without regard to political affiliation or ideology, criminal action should, after proper due process, be prosecuted and those found guilty appropriately sentenced. The ongoing need to ensure the protection of Americans and our great institutions, in accordance with the law, is of paramount importance.

In support of the Presidential Inauguration, Arizona is providing four Explosive Ordnance Disposal personnel in Title 10 status. In addition, we are providing administrative and food service personnel in Title 32 status. We are also providing military airlift, to the District of Columbia, incidental to our routine training missions.

Additionally, Arizona continues to maintain a Rapid Response Team, of more than 330 personnel, to project anywhere in the country, in State Active Duty status, when requested by the governor of a state in support of state efforts to quell any emergent civil disturbance.

Arizona has worked diligently to find appropriate legal authority to support the provision of National Guard members in direct support of current law enforcement efforts, in the District of Columbia. We have been unable to find such authority. In turn, beyond the forces described above, we cannot support the National Guard Bureau’s request that Arizona send six percent (6%) of its total force to the current District of Columbia operations.

On a previous telephone conference with the Chief of the National Guard Bureau and the other 53 adjutants general, I expressed my concerns regarding the current District of Columbia operation. To date, I have not received and am unaware of any written declaration or order, from the President of the United States, authorizing this civil disturbance operation. In addition, I have not been provided sufficient explanation, from the National Guard Bureau or Department of Defense, regarding the legality of National Guard members, in Title 32 USC 502(f)(2)(A) status, under the control of the Secretary of Defense, Secretary of the Army, and Commanding General of the District of Columbia (all federal officials) to provide direct support to civilian law enforcement including the performance of law enforcement activities. Such activity appears to be contrary to existing law and regulation including the Posse Comitatus Act (18 U.S.C. § 1385), DoDD 3025.18, and DoDI 3025.21.

My legal team raised the above concerns, regarding the Posse Comitatus Act and related DoD regulatory prohibitions on the use of the Title 32 USC 502(f)(2)(A) status to perform direct support to law enforcement and civil disturbance operations in the District of Columbia. They were informed by NGB-JA that our legal concerns were reviewed, and the Department of Defense elected not to follow its existing policy and regulation on the subject.

In addition to Posse Comitatus Act concerns, we have requested evidence of Presidential authorization for DoD support to civilian law enforcement/civil disturbance operations in the District of Columbia. It is my understanding that both DoDD 3025.18, and DoDI 3025.21 require Presidential approval for the use of DoD resources in support of civilian law enforcement and civil disturbance operations. We have yet to receive evidence of such Presidential authorization. To date, I have been provided only an 11 January 2021 White House press release referencing an, apparently, oral Presidential declaration of emergency in the District of Columbia and authorizing FEMA to provide disaster-relief to the District. The press release does not mention Presidential approval for the use of DoD resources in support of civilian law enforcement and civil disturbance operations.

Further, on 14 January 2021, the Director of the Army National Guard sent an email to all 54 adjutants general requesting we “screen” the National Guard Members participating in the District of Columbia operations, identify anyone we have “concerns about” after “reviewing their social media posts” and immediately report them to the NGB J34 Provost Marshal. According to the Director of the Army National Guard, the Judge Advocate General of the Army opined the social media screening is appropriate. I disagree.

I do not believe the above-described social media screening is appropriate. I raised my concerns to the Director of the Air National Guard. He agreed the screening was inappropriate and stated the Air National Guard would not participate in it.

Arizona stands fully-prepared to lawfully provide National Guard support to any state, territory, or district affected by a disaster or emergency, including civil disturbance. We also stand fully- prepared to lawfully support our federal partners. The Arizona National Guard cannot, however, commit its outstanding citizen-soldiers and airmen to any mission without proper legal authority.

Sincerely,
MICHAEL T. MCGUIRE Major General
AZ ANG The Adjutant General

According to the Arizona National Guard, approximately 30 guardsmen served in D.C. during inauguration week.

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