STEVE INSKEEP, HOST:
Richard Hayes is with us next. He's a former adjutant general of Illinois, which means he was the state's highest-ranking member of the National Guard. He led the Illinois Guard from 2015 to 2019. General Hayes, good morning.
RICHARD HAYES: Good morning. How are you?
INSKEEP: I guess some of the longer-serving - doing fine, thanks. I guess some of the longer-serving Guard members might have served under you. So how do you think about the troops who are being sent to Chicago, apparently?
HAYES: Well, I would say this. You know, the troops raised their right hand and swore an oath to the Constitution, and in my case, in the state, Illinois, as well as the federal Constitution. They did so to serve their country. It's that simple. So I have no doubt that they'll go and do whatever legal mission's put in front of them and do it to the best of their ability.
INSKEEP: I - it's interesting that you stress the word legal. They'll do whatever legal mission is put in front of them. It is famously said that troops do not have to obey an illegal order. But in practical terms, if you're a soldier out in the field or, in this case, on the South Side of Chicago, how do you know?
HAYES: Well, the reality is everybody has their own views. I mean, you can't take that away or strip that from a soldier, but the allegiance to the Constitution is what drives everything a soldier would do. At all levels in the military, there's judge advocate generals that determine and assist commanders to determine the legalness of what they're about to do in front of them. All soldiers, sailors, airmen, Marines, space guardians - they have a duty to follow legal orders just as much as they have a duty to not file - follow illegal ones. So you're duty-bound either direction. And so that is grounded in you since you really join the military, from basic training all the way through your career. And so they're going to drive everything they do against the criteria that would be appropriate between legal and illegal orders.
INSKEEP: So your answer to that is that the commander on the ground will have a lawyer accessible to him or to her and might ask the question and respond accordingly.
HAYES: Yeah. So one interesting thing - I think it's not well-understood - is - so Title 32 of the United States Code has been established to define the National Guard in the - of the several states. And it's the rules by which the National Guard operates under the control of the governors. Correspondingly, Title 10, which was mentioned a few minutes ago, governs the active forces. And those rules and laws basically impart what can and can't be done. When the Guard gets activated by the governor, they conduct operations either in a state active-duty status or under the Title 32 of the United States Code.
INSKEEP: OK.
HAYES: But when the president federalizes the guard, they revert and are put on Title 10 orders, just like if they were to go overseas and fight wars overseas on behalf of the nation. And in that, the governor and the adjutant general of the state cedes control of those troops to the active component. In the case here, what we're talking about is those troops are being activated, and they have been in California. We've seen that. The control of them went to U.S. Northern Command, which is the combatant command responsible for the defense of North America. So they're under the control of federal forces under the control of the present, not the governor or the adjutant general. And that's a unique distinction most people don't realize.
INSKEEP: Well, when I think about the deployments in Southern California, the deployments in Washington, D.C., we have seen troops guarding federal facilities. We have seen troops backing up police in various ways, guarding safe areas of Washington, like around the Lincoln Memorial. We've seen troops picking up trash and trying to be helpful in various ways. Are those the sorts of things and only the sorts of things that would be legal to do in Chicago?
HAYES: Well, so you asked kind of a nuanced question. I would say protection of any federal facility's a completely legal request. Protecting unarmed fed employees would be a reasonable request. Where it gets tricky and it's nuanced is any kind of link or support to law enforcement activities where you're part and parcel to them, even to the extent where you're maybe creating an outer cordon. That is an area that gets very tricky, and it's nuanced. And so support to law enforcement under the Posse Comitatus Act is prohibited by military members, period. Now, if you're under state active duty, working for a governor, your state code specifies what the Guard can and can't do. In the case of Illinois, I know it does. Illinois National Guard under state code can perform law enforcement duties, limited law enforcement duties. So...
INSKEEP: But...
HAYES: ...Each state has their own code.
INSKEEP: But under federal authority...
HAYES: But, no.
INSKEEP: ...They cannot perform law enforcement. Is that where you're going?
HAYES: They cannot perform law enforcement unless the Insurrection Act is invoked by the president, and that has not been done so far.
INSKEEP: Richard Hayes is a former adjutant general of the state of Illinois, the highest-ranking member of the National Guard. General Hayes, thanks so much.
HAYES: Yeah. Have a great day. Thank you. Transcript provided by NPR, Copyright NPR.
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