A fight is brewing over the annual defense policy bill as the Trump administration’s response to the protests against racial injustices roils the nation.
The protests have led to Democratic calls to defund the use of the military to respond to the demonstrations, amend the Insurrection Act and end a program that provides surplus military equipment to police.
Democrats are vowing to push those issues as amendments to the National Defense Authorization Act (NDAA), setting the stage for conflict when the Senate Armed Services Committee considers the bill this coming week, with the full chamber set to take it up later this month.
The amendments are unlikely to pass the Republican-controlled Senate, but House Democrats are also eyeing measures for their version of the NDAA later this month — setting up another potential fight when the two chambers must reconcile their versions of the bill.
President Trump provoked outrage among Democrats and retired officials, including former Defense Secretary James Mattis, as he threatened to invoke the 1807 Insurrection Act and deploy active-duty troops to quell protests spreading across the country in response to the death of George Floyd, an unarmed black man, while in police custody in Minneapolis.
Further igniting anger were the scenes of peaceful protesters being cleared from Lafayette Square near the White House by federal law enforcement officials using batons, projectiles and chemical irritants, followed by Trump walking through the area for a photo-op at St. John’s Episcopal Church.
Defense Secretary Mark Esper later publicly expressed his opposition to using the Insurrection Act and on Friday ordered home the last of the 1,600 active-duty soldiers deployed to the D.C. region to be on standby to enter the capital.
Trump said Wednesday he didn’t think he would ultimately have to send U.S. troops into cities, but the White House has said the option remains on the table.
With the civil unrest fresh in the minds of lawmakers, the Senate Armed Services Committee is taking up its version of the NDAA this coming week. Subcommittees are scheduled to consider their portions Monday and Tuesday, while the full committee will consider the bill Wednesday and, if necessary, Thursday. Except for one subcommittee, the markups are done behind closed doors.
Sen. Tim Kaine (D-Va.), a member of the committee, announced this past week he will propose an amendment during the markup to prevent funding for the Pentagon to deploy troops against protesters.
“I never thought we would have to use the NDAA to make clear that the U.S. military shouldn’t be used as an agent of force against American citizens who are lawfully assembling,” Kaine said in a statement announcing the amendment. “I thought that would seem obvious to everyone. But as we take up the NDAA next week, I’m going to be pushing to ensure the president can’t treat the U.S. military as his personal palace guard to try to ward off peaceful protests.”
Fellow committee member Sen. Richard Blumenthal (D-Conn.), meanwhile, has introduced a bill to limit presidential power under the Insurrection Act, with senators saying they will try to include it in the NDAA.
The bill would require consultation with Congress before a president uses the Insurrection Act and would limit use of the law to 14 days unless lawmakers pass a resolution to extend it, among other changes.
“President Trump has threatened to use a slavery-era law to silence calls for justice from thousands of Americans protesting centuries of racist oppression,” Blumenthal said in a statement. “I’m proposing urgently necessary reforms to impose oversight and accountability to the president’s broad, virtually unrestricted power.”
The protests have also thrown the spotlight back on a program in which the Pentagon transfers excess military equipment to U.S. police departments, known as the 1033 program.
Former President Obama curtailed the program in 2015 after local police suppressed protests in Ferguson, Mo., using military-grade equipment. But the Trump administration rescinded the restrictions in 2017.
Sen. Brian Schatz (D-Hawaii) said he would introduce an NDAA amendment to end the program, tweeting that “it is clear many police departments don’t train and supervise for restraint and de-escalation, and some officers are just plain racist and violent.”
Schatz is not a member of the Senate Armed Services Committee, meaning he would have to wait until the bill comes to the Senate floor, where few amendments get votes.
Senate Armed Services Committee Chairman James Inhofe (R-Okla.), who shepherds the NDAA through the Senate, has rejected the idea of using his bill to change the 1033 program.
“The program, because I’ve been involved in this for a long period of time — in my state of Oklahoma — in small communities, they really depend on getting equipment, and so I am not concerned about that,” Inhofe told reporters this past week.
More generally, Inhofe has also expressed support for the military’s potential role in responding to the protests.
“This would only be as a last resort,” Inhofe of using the Insurrection Act. “But if we do, I am confident that this decision will be made with the advice of top civilian and military officials, who were all confirmed with wide bipartisan support.”
But even if the amendments don’t make it into the Senate’s version of the NDAA, the fight is not over, as House Democrats eye similar amendments to their version of the bill.
Rep. Ruben Gallego (D-Ariz.) said this month he will advance an effort to restrict the 1033 program when the House Armed Services Committee considers its bill.
“Local law enforcement officers shouldn’t be confronting civilians with weapons designed for combat,” Gallego said in a statement. “A militarized police force makes our communities less safe and heightens the growing divide between police officers and the citizens they are sworn to protect. It also increases the likelihood that disproportionate or deadly force will be used, a problem that has led to these protests in the first place.
Gallego is a co-sponsor of a bipartisan bill that would prohibit transferring grenades, mine-resistant ambush-protected vehicles, armored or weaponized drones, silencers, long-range acoustic devices, and other specific weapons to police forces.
The House Armed Services Committee is scheduled to consider its version of the NDAA on July 1, with subcommittees considering their portions June 22 and 23.
House Armed Services Committee Chairman Adam Smith (D-Wash.) indicated this past week he expects to address the 1033 program in the bill.
“In the short term, I think the more concerning issue is how we’re using the U.S. military,” Smith told reporters. “But yes, there has long been concern about the militarization of law enforcement and the message that sends to the population that it is supposed to serve. And certainly selling excess military equipment to domestic law enforcement raises concerns about that, and that is something we will absolutely be talking about.”
House progressives, meanwhile, are also pushing for changes to the Insurrection Act. Congressional Progressive Caucus Co-chairmen Pramila Jayapal (D-Wash.) and Mark Pocan (D-Wis.), along with Rep. Ilhan Omar (D-Minn.), said they would introduce a bill to require congressional notification ahead of U.S. troops deploying under the Insurrection Act, though they did not specify if they would push it as an NDAA amendment.
“Even President Trump’s own secretary of Defense, Mark Esper, opposes deploying troops to silence the protests,” the trio said in a joint statement. “Deploying the military in an attempt to quash these protests would be an attack on our constitution, our democracy and our people. Congress must send an unequivocal message that this grotesque abuse of power will be stopped.”