By Tom Carter
16 November 2016
Milwaukee County Sheriff David Clarke has unleashed a series of tweets calling for a “state of emergency” to be declared and for the ongoing anti-Trump protests to be violently “quelled” by the military.
On Friday, Clarke wrote on Twitter: “How to stop riots. 1) Declare state of emergency. 2) Impose early curfew. 3) Mobilize Nat Guard. 4) Authorize ALL non lethal force. 5) Tear gas [sic].”
The significance of this rant is relatively plain. This is a proposal for the imposition of martial law and the complete lockdown of American cities in which anti-Trump protests continue to take place. Clarke’s language recalls the extraordinary Boston lockdown of 2013, in which the population was ordered to “shelter in place” while militarized police units conducted house-to-house searches. Curfews were also used as part of efforts to suppress the protests against police brutality in Ferguson, Missouri in 2014, following the killing of Michael Brown.
The phrase “ALL non-lethal force” (and the capitalization for emphasis) signifies a bloodthirsty eagerness to inflict violence against anti-Trump protests: rubber bullets, pepper spray, tear gas, sound cannons, tasers, punches, kicks, and baton strikes.
Clarke is a celebrity sheriff known for taking provocative far-right positions while posturing, strutting, and preening for the cameras in his police uniform. He is one of two candidates being considered for the post of director of the Department of Homeland Security in the Trump administration, according to Politico. The post is currently occupied by Jeh Johnson.
The other candidate named by Politico is also a celebrity sheriff: Maricopa County Sheriff Joe Arpaio, who made a name for himself through the flagrantly racist and discriminatory treatment of immigrants and provocative defiance of court orders to stop.
Many people in the US were introduced to Clarke for the first time when he delivered a fascistic rant—in a black uniform, decorated with various badges and ribbons—at Trump’s Republican National Convention in July.
This speech featured Clarke shouting “Blue lives matter in America” into the microphone, while the audience chanted “U-S-A, U-S-A.” Clarke went on to define Black Lives Matter and Occupy Wall Street protests as illegal and illegitimate, describing them as “anarchy.”
On November 9, Clarke wrote on Twitter: “These temper tantrums from these radical anarchists must be quelled. There is no legitimate reason to protest the will of the people.” The irony of the phrase “the will of the people” is lost on Clarke, under conditions where Trump received roughly a quarter of the votes of eligible voters and lost the popular vote.
On November 11, Clarke wrote: “These riots are not protest [sic] and should be quelled quickly. These goon anarchists do not believe in the US Constitution or the rule of law.”
This drivel is coming from the supposed chief “law enforcement officer” of an entire county, who is being considered for a senior position in the Trump administration. It provides a glimpse of the pseudo-legal categories that will be invoked to suppress opposition once president-elect Donald Trump takes office. Demonstrations are labeled “riots.” Protesters are labeled “goon anarchists.” The “rule of law” is redefined as “the majesty of Trump,” such that anyone who does not “believe in” it is not entitled to democratic rights.
One hesitates to engage in any serious legal analysis of the positions of celebrity provocateurs like Clarke, but it must be said all the same that Clarke’s conception of the “rule of law” turns the classical idea into its opposite. From a democratic legal standpoint, protests are entirely consistent with the “rule of law” and are protected by the First Amendment to the US Constitution, which expressly prohibits any restriction on “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” If anything, it is figures like Clarke that “do not believe in the US Constitution or the rule of law.”
The use of a unilaterally declared “state of emergency” to suppress protests is a tactic familiar to anyone who has studied the history of the 20th century’s most authoritarian regimes. The essential formulation of this doctrine was provided by Nazi “crown jurist” Carl Schmitt (1888-1985). Under Schmitt’s infamous “state of exception” (Ausnahmezustand) doctrine, the government can invoke a national emergency to override all democratic rights and disregard the rule of law. More recently, this formula has been invoked in France to crack down on all expressions of oppositional political sentiment. (See: “The state of emergency and the collapse of French democracy”)
With respect to Clarke’s proposal to call in the National Guard, as a historical and legal matter, the use of the national military to suppress domestic protests is illegal. While examples can be provided of its violation by a long line presidents, this principle dates back to the Posse Comitatus Act of 1878 and nominally remains in effect.
It is worth noting that in 2007, the federal legislature attempted to legalize the suppression of protests using the military. Section 1076 of the 2007 Defense Authorization Bill, titled “Use of the Armed Forces in major public emergencies,” included the following language:
“The President may employ the armed forces … to… restore public order and enforce the laws of the United States when … the President determines that … domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order… or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such … a condition … so hinders the execution of the laws … that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law … or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
This language was repealed in 2008, to be replaced in 2011 with the Obama administration’s vague and equally ominous formulation that the military can be used domestically to target any “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Clarke’s Twitter rants are so full of legal non-sequiturs that one does not know where to begin or end. Under existing law, the police are only authorized to use force in self-defense or when it is reasonably necessary under the circumstances to overcome resistance to lawful objectives. Therefore, it makes no sense to employ the phrase, “Authorize ALL non lethal force.” Even within the existing American legal system—which is already weighted dramatically in favor of the police—a government official cannot “authorize” a violent attack on a protest.
While Clarke rants now about the “goons” who have no respect for the “rule of law,” he struck a different tone when Trump appeared to be down in the polls. On October 15, three weeks before the election, he wrote: “It’s incredible that our institutions of gov, WH, Congress, DOJ, and big media are corrupt & all we do is bitch. Pitchforks and torches time [sic].”
So much for the rule of law!
Clarke’s response to the election of Trump was an effusive series of tweets like the following: “God truly does love America to not have allowed evil to triumph over good. Our prayers have been answered!” And: “Ding, dong the witch DEAD! President elect Donald Trump has prevailed!”
Clarke’s twitter feed is a relentless parade of right-wing nostrums, amalgams, and provocations. In one tweet, he wrote, “Black Lies [sic] Matter will join forces with ISIS to being [sic] down our legal constituted republic [sic].” In another, he described the protests against police brutality in Ferguson, Missouri as “vultures on a rotting carcass.” One wonders how much time Clarke actually spends on his official duties versus on his Twitter account. It is a scandal that he has been permitted to collect a sheriff’s salary for so long while basically functioning as a professional internet troll.
In the final analysis, Clarke’s eagerness to inflict violence on anti-Trump protesters—and the fact that he is nevertheless being considered for a post in the Trump administration—reflects the homicidal class hostility with which the political establishment views any form of opposition to its policies or its rule. It confirms the analysis made by the World Socialist Web Site that the so-called “war on terror,” together with the militarization of the police, were never about protecting the American population from harm. Instead, these policies—implemented relentlessly through both the Bush and Obama administrations—were designed to build up the framework of a police state and abrogate democratic obstacles to authoritarian rule. These are tools the incoming Trump regime is now itching to deploy against any opposition to its unpopular policies.