August 19, 1970
Page 29446
Mr. McCARTHY. National Guard officials are expressing some concern over the fact that the rules of procedure which they generally apply when a National Guard is federalized have not been adopted by all States. There is no indication how many States have accepted that manual of procedure. But on those occasions in which "the Guard has been federalized" their actions have been restrained and their direction much more prudent.
If this amendment is enacted a President can stop a Governor from sending armed guardsmen into action, if he feels that he should. A President could make the choice of authorizing the Governor to send in the Guard, under the direction of the Governor and State officials, or with a federalized guard, as has been done in the past and send it in under Presidential authority, under Presidential control, and Presidential direction.
Mr. President, it seems to me that this amendment would not, except under the most unusual circumstances which might be conceivable, which are highly unlikely to arise, in any way interfere with the proper use of National Guard units in the kind of emergency in which the use of live ammunition and weapons would be justified as absolutely necessary. It leaves many options open to officials of the State, and, of course, the local authorities, and also it leaves, I think, the President with all the options that he should have.
The responsibility of Congress is quite clear. Training guardsmen is primarily under our direction under the law. Under the law and the regulations of the Federal Government, the financing of these operations is almost 100-percent Federal. In view of this fact; I think we have an obligation to look to the manner in which this kind of military power is used within the confines of the United States itself.
This is the very limited purpose of the amendment which I have offered.
Mr. HART. Mr. President, will the Senator yield?
The PRESIDING OFFICER. Who yields time?
Mr. McCARTHY. I yield 1 minute to the Senator from Michigan.
Mr. HART. I am embarrassed to know which side of this amendment I am on at this point. I do not know which side of the argument I will come out on. I am not sure whether time should be yielded to me by the Senator from Mississippi or the Senator from Minnesota.
Mr. McCARTHY. I yield 3 minutes to the Senator from Michigan.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 3 minutes.
Mr. HART. As I understand it, under the Constitution, unless the Guard is federalized, the Federal Government cannot direct the use, deployment, or conduct of the troops. However, the Senator from Minnesota uses the peg in such cases as the Federal Government, in whole or in part, finances certain material; namely, guns and ammunition, so that we can constitutionally set up conditions as to the employment of those using such material. I assume that is a solid constitutional base.
I share with the Senator from Minnesota the unease that results when, we see the indiscriminate use of firearms by National Guardsmen, whether on or off campus.
I would think that we might approach it more effectively and, in the long run, with greater safeguard both to State and Federal jurisdictions, if we could attach as a condition for the grant of the materiel and its employment and require that the State shall have adopted and made applicable to its Guard, when in the field, the Federal field manual requirement that would apply and operate on the Guard; and, if it had been federalized, might it not be better to condition the issuance of ammunition by guardsmen to those cases where the State Guard had adopted the Army field manual that bears on troop conduct in civil disobedience.
I wonder whether the Senator from Minnesota would think it appropriate to insert that as a condition, rather than an approval from the President. I take it that the sweep of the amendment is concerned not only with the use but also the issuance of it?
Mr. McCARTHY. The Senator is correct.
Mr. HART. Has the Senator from Minnesota given any thought to the appropriateness of trying to tie the Army field manual to the conduct of troops during civil disobedience, to the ammunition limitation he suggests?
Mr. McCARTHY. I have generally opposed that kind of refinement of the amendment to the general statutes. It seems to me that if the President is concerned over that, by direct communication with the respective Governors he could say, "You will accept and establish, first, that you will conform to the provisions of the field manual, and if you do that and give me any indication that you want to call out the Guard, you will go ahead and have permission immediately." That is, in effect, what we are saying.
It seems to me, in the interim, until we find out what the National Guard is doing, what it has done about trying to get the State guard to establish some of these standards, we could simply give the President approval, and the President could say, "Get the manual in shape and you will have no problem. Call me up and I will say “go ahead, Governor. " Until we have that protection, I want to take a look at each Governor, because if we look at the record, some Governors are especially prone to call out the National Guard. They called out the National Guard in the motorcycle riots, we remember. In California, they have called out the National Guard seven or eight times, I believe, in the past 2 years. South Carolina and North Carolina are States which have called out the National Guard.
Mr. HART. Will the Senator from Minnesota yield me 2 more minutes?
Mr. STENNIS. Mr. President, I would be glad to accommodate the Senator but we have very little time.
Mr. McCARTHY. The Senator from Michigan is on the side of the Senator fom Mississippi on this one. I will yield 2 minutes to the Senator from Michigan,or 3.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 3 additional minutes.
Mr. HART. I thank the Senator. Mr. President, when a guardsman is called out, even if it is on an occasion that seems to us lacking in justification – for example, a motorcycle crowd in convention and their riot – I wonder whether it would not be a little easier to permit officers of the Guard at least to be in a position to move the troops who do have ammunition, although, perhaps, not issued to them, because, maybe, when we get the motorcycle riot it is a real Donnybrook and the option might be to try a feint and move away, or run – which is not an appropriate way for a soldier to perform, of course. I think I am familiar with what the field manual suggests is the appropriate method of handling small arms in the case of civil disobediences, assuming that the manual would be adhered to, so that I think we would be doing justice, both to the innocent bystander, to the motorcycle rioter, and to the guardsman. Why can we not condition the grant of the ammunition for the release of the ammunition provided that each State national guard department has certified that it has ordered, even though it remains in State status, the field manual requirements with respect to the handling of ammunition?
Mr. McCARTHY. That would be helpful if we had any assurance that it would be handled properly.
The PRESIDING OFFICER. How much time does the Senator yield himself?
Mr McCARTHY. Mr President, I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. STENNIS. Mr. President, I yield myself 4 minutes.
The PRESIDING OFFICER(Mr. HUGHES). The Senator from Mississippi is recognized for 4 minutes
Mr. STENNIS. Mr. President; we find ourselves here in the midst of a Senate debate on a far-reaching amendment that has legal complications and upon which there have not been any hearings and no judgment rendered by any responsible official, including a judgment from the standpoint of the Governors.
Let us remember that the National Guardsmen are members of a State organization. They are responsible primarily to the Governors of their States.
I think the Senator from Michigan has made a fine point here; that there should be effective regulation and that we cannot let them have these guns and ammunition in the first place until they have made a showing that they have restrictions.
I would add with reference to the enforcement of the law by the National Guardsmen, that it would have to be limited to trained and seasoned troops who had been specially trained in this field.
It is impossible to get an intelligent consideration of this matter on such short notice. I do know that this is an affront to the honest, efficient, and loyal National Guardsmen in every State. They might be called out for riot duty or anything along that line and be cut off from the right of self-defense.
I want to see that this matter is regulated and that there are restrictions and that we make whatever safeguards we can. But I do not think that we can legislate here on a subject that we are not advised on and do not know the regulations in the different States.
We have men serving in the Senate that have been members of the National Guard.
Mr. President, I yield 3 minutes to the Senator from Arizona, a former member of the National Guard of his State.
Mr. GOLDWATER. Mr. President, the forces of the National Guard are the militia. Under the Constitution, Congress can regulate the militia, even to calling them out. But they do not come under Federal regulation until they are called out for active duty. The commander of the National Guard is the Governor of the State.
We would be taking a very serious and dangerous step if we were to try to go into a State and regulate the only weapon the Governor has with which to defend the people in his State when matters get so bad that the local police, the sheriff’s office, and the highway patrolmen cannot handle it. Mr. President, I might say to my good friend the Senator from Minnesota, that this might work if we can get the people in this country who carry guns and demonstrate with Molotov cocktails and knives and chains to stop their activities. Then we would be able to get the National Guardsmen to agree not to use bullets.
This is extremely dangerous. I have been in the National Guard. The Governors I have known have been very judicious in the use of the National Guard.
I think I am safe in saying that the majority of the State National Guardsmen have been trained under the Regular Army concept of mob control and that the States operate in that way.
I might ask my good friend, the Senator from Minnesota, what we would do if we had a serious uprising like the ones in Newark, Watts, or Chicago? This seems to be constantly going on in Chicago. Are we going to write the President a letter and say, "Dear Mr. President: A number of our people have been shot and a number of stores have been burned down. We think the only way to handle the situation is to send out the National Guardsmen with live ammunition."
That would take a week.
I suggest this is no way for a Governor to maintain law and order in his State. I think it would be extremely dangerous to ban the use of weapons by the National Guard.
I do not like what is going on in this country and in some of our cities any more than the Senator from Minnesota does.
I suggest that it would get worse, in my opinion, if the hoodlums and fascists and people in this country who set about to disturb our country and, in fact, create a new form of government in our country, knew that they could do anything they wanted and that nothing would happen to them. In fact, I think our National Guard should have the right to defend themselves. I think that the police should have the right to defend themselves.
It is time that the American people call loud and clear for protection in their homes. I would say that there has never been a time in the history of our country when so many people have armed themselves in their home against the danger of being invaded.
There has never been a time when so many people have spent money for electronic devices or other means of protecting themselves.
I think the amendment is dangerous. I do not think it is called for in the bill. It is a completely new concept.
I hope that the amendment will be rejected.
[Applause in the galleries.]
The PRESIDING OFFICER (Mr. HUGHES). If there is any further display in the galleries, the galleries will be cleared.
Mr. STENNIS. Mr. President; I yield 3 minutes to the Senator from Ohio.
The PRESIDING OFFICER (Mr. GOLDWATER). The Senator from Ohio is recognized.
Mr. SAXBE. Mr. President, I speak with some knowledge of the National Guard, having served for over 30 years at every level – from private to battalion command and general staff officer. I cannot see where this would operate in such a way that it would help the National Guardsmen.
As we know, when the guardsmen are called out, it is against their wishes. They do not want to go. It is a distasteful service. It would be especially distasteful to be called out in the face of armed opposition. I am not speaking of kids who are out for a good time. We have seen the Weathermen faction and what they can do in New York and in Chicago. They are people bent upon mischief. They are armed and they mean business.
A young man called out on this type of duty, duty that he does not want, certainly should not carry an ad saying, "I do not have any live ammunition."
That is what we would be doing if we required the Governor to go to the President to ask for permission. Even if it involved a telephone call, it would then be too late for them to do the job. they are supposed to do.
The National Guard consider civil disturbances as one of their minor duties. Their principal duty is to train as trained forces of the U.S. Army or Air Force. Ninety-five percent of their training involves training as combat units. To achieve a combat skill does not mean skill in handling a civil disturbance. That is one of the incidental duties.
I believe that the Governors of the several States do exercise control. I know for a fact that there are times when there is no live ammunition. But I do not believe there should be a general policy that advertises to every hoodlum that there is no live ammunition.
There are times when it is necessary. There are times when ammunition must be close at hand, even if it has not been issued. This type of amendment, no matter how well intended, will contribute to the loss of morale and contribute to the confusion that now exists in the Guard.
I can foresee the time when the States will say, "We have to have effective law enforcement based on a State level. We will forget about the National Guard and go back to our own militia and buy our own ammunition."
It has not been too long ago when there was a militia in most States and not a National Guard. I. want to keep it the way it is at the present time.
The National Guard has served valiantly in many wars. They are always ready to go. I feel that if we are going to restrict the National Guard in this manner, we should do away with it. Let us not make it a Sunday afternoon group of picnickers, as we will be doing if we reduce it to a status of not having ammunition.
These men are soldiers. They are trained to kill, they are trained to serve their country. If you do not want them to do that, do not call them out; but do not make them into something less than they are supposed to be. They deserve this recognition and this honor.
I fail to see how this proposal would work to make them a more effective arm of the State, or how they would be able to control anything.
Mr. STENNIS. Mr. President, I yield 2 minutes to the Senator from California.
Mr. MURPHY. Mr. President, the experience of the city of Berkeley was mentioned earlier. Last week I had in my office the mayor, chief of police, members of the city council, and some business leaders of the city of Berkeley. I assure Senators they are not concerned with whether or not the militia has live ammunition. They were here to beg me to make a plea to the Secretary of Defense that they be supplied with flak jackets, helmets, and gas masks so they would have a chance to try to preserve law and order in an area where organized disruptions are taking place almost on a regular timetable.
I think the suggested amendment would be a complete invitation to more permissiveness where already too much permissiveness exists.
Mr. STENNIS. I wish I had more time. I yield 2 minutes to the Senator from Iowa, who is the former Governor of his great state.
Mr. HUGHES. Mr. President, I thank the senator for yielding.
I want to say, as I began, that I have stood with the distinguished Senator from Minnesota in the midst of very trying times, and I have advocated his candidacy for the office of President of the United States. I stand with the goals he is trying to accomplish today because I think the misuse, misdirection, and perhaps miscommand of National Guard troops can be a very bad force in this country.
But over three terms as Governor of my native State of Iowa I have had to call out the National Guard many times. There was never a time when I willingly called up the National Guard for use in my State. There was never a time in my State that ammunition was fired to protect the lives of people or to protect property. They were well commanded, and they were basically well trained. They acted well under the most tense conditions.
Many times I had to call out the National Guard when there was no trouble. I did it, even though I was highly criticized for it, because the presence of the National Guard prevented trouble from developing.
I am sure that the circumstances the distinguished Senator from Minnesota has described could be satisfied by calling the President of the United States, and I agree it could be done. But the Governor, as the commander in chief of his National Guard, has to make decisions, he is basically responsible for the training of the National Guard, and he hopes to see them as the best equipped force in his State. They are used for broad and diverse reasons. I would hope they would never be used on campuses of colleges in the United States. I am opposed to the use of the National Guard on the campuses of colleges in our country.
I would like to point out one thing that has not been brought up. We could use the National Guard without making arrests, whereas, when we mobilized the State police, the county sheriffs, or the local police, they were compelled to make arrests for every single violation that seemed evident. That could result in a more severe confrontation than by the exercise of the use of the National Guard to maintain peace and order by their presence.
In my opinion the National Guard has been under excellent command in my State.
It is with some reluctance that I rise to say that I would vote against the amendment offered by the distinguished Senator from Minnesota but while I shall vote against the amendment I want Senators to know that I am sympathetic with the goals he is trying to achieve. We should look into this matter and determine a better way to control the use of guns and ammunition in the hands of people in all circumstances, particularly on the campuses of the colleges of this country.
I thank the Senator for yielding.
Mr. STENNIS. Mr. President, I yield 3 minutes to the Senator from Oregon, the former Governor of his State.
Mr. HATFIELD. Mr. President, I would like to associate myself with the comments which have been made; and particularly those which have been made by my former fellow Governor, the Senator from Iowa (Mr. HUGHES), who is now my colleague in the Senate.
Any one who has been in the role of commander in chief of the National Guard, as the Governor is, and who has the responsibility for the maintenance of law and order in every community of his State appreciates the fact that the National Guard plays a very vital role, and it must be maintained on a very flexible basis.
I would like to share two experiences that occurred while I was Governor of my State in which we had riots in one of our coastal communities. We had anticipated the problem and, therefore, had called the National Guard leadership together and indicated our feeling that there should be special riot control training for certain elements of the National Guard. The National Guard had certain elements prepared for this type special duty and they were placed in this riot city.
The point is that the State police of my State were in command of the force. To maintain law and order, they worked with the county sheriff and the city police, and they had the National Guard backing them up. That is a vital role. I do not think we could maintain law and order as we were able to if we had not had that show of force of the National Guard..
If anyone in the Nation today questions the National Guard, let him assume the role of a Governor, who is the commander in chief, and who must be responsible for the actions and the training of the National Guard, or the lack of training of the National Guard.
Therefore, I plead that we reject the, amendment, not because I disagree with the Senator’s concept or his goal, but because as a former Governor I recognize that it is imperative that we maintain flexibility to have the National Guard able to move in and meet any occurrence in any crisis.
Mr. STENNIS. Mr. President, I yield 2 minutes to the. Senator from Florida.
Mr. GURNEY. Mr. President, I thank the Senator from Mississippi.
Mr. President, the permanent Subcommittee on Investigations, otherwise known as the
McClellan committee, has just completed extensive hearings on bombings and terrorism in this country. The hearings were most revealing. They showed that bombing, terrorism, and violence in general increased dramatically in the last 10 years, but even more dramatic is the fact that in the last years, or 2 years the scale of increase is sharply rising. Therefore, it would seem to me that a more inappropriate time could not be chosen to offer an amendment like this. It seems to me that this is an open invitation to more violence.
We found in our investigations by the permanent subcommittee that violence is being committed by people who are revolutionaries, and who have in their hearts and minds the destruction of this Government and our society. Certainly any society should have the right to protect itself.
Of course, one of the chief means of protection from civilian violence in this country is through the use of the National Guard. Certainly, at this time in our history we should not do anything to make this organization less effective; if anything, we should make it more effective.
I urge Senators to reject the amendment.
Mr. STENNIS. Mr. President, I am sorry I do not have more time. I am going to yield to the Senator from Rhode Island.
First, Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. There is not a sufficient second.
Mr. STENNIS. I yield 2 minutes to the Senator from Rhode Island, who is the former Governor of his State.
Mr. PASTORE. Mr. President, I realize the emotional impact that is behind this amendment. I do not question the motive of the sponsor of the amendment. However, as a former Governor of my state I realize the danger of this particular amendment.
I had the honor of serving as Governor or 6 years. I never once called out the National Guard. I do not know of any Governor in this Republic of ours who relishes the idea of calling out the National Guard. But if we are going to call out the National Guard uniform, say to a young man in a soldier’s uniform, "You can carry a gun, but you cannot have a bullet in it,"then I say do not give him a gun at all. Do not give him a gun at all. Not only that but in many instances we find that these men are called out not through any choice of their own, but are ordered to do so
I am afraid that unless we do this in a proper manner, we are going to invite anarchy. When we realize that it would mean a young man in a soldier’s uniform could have stones thrown at him or bags of fecal mattersmashed into his face, or snipers, without having anything with which to defend himself, I am afraid we are toying here with explosive situations. I would regret the day when we would come to that kind of thinking and that kind of action in this country.
I know what happened at Kent. I regret that, too. I made a statement in my State that it was a pity that the lives of these four young people should have been snuffed out. I regret very much that it happened. But we must take the long view. If the National Guard is to be called out to repress anarchy, to suppress riots, the young men who are in those soldiers’ uniforms must be properly equipped to cope with the duties and the dangers to which they are assigned. Moreover; the proper response to these situations is training and restraint on all sides.
Mr. STENNIS. Mr. President, how much time do I have left?
The PRESIDING OFFICER. The Senator has 5 minutes remaining.
Mr STENNIS. Mr. President, I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. There is not a sufficient number.
The yeas and nays were not ordered.
Mr. STENNIS. Mr. President, I yield 2 minutes to the Senator from Wyoming (Mr. HANSEN), a former Governor of his State.
Mr. HANSEN. Mr. President, I should like to associate myself with the observations just made by the distinguished Senator from Rhode Island. Let me say that no Governor relishes the duty and responsibility of calling out the National Guard, but I think it must be apparent to everyone in this country that if we are going to put an end to anarchy, if we are going to restore and maintain order, there must be some mechanism by which the States can face emergencies and can deal with those emergencies adequately. It is with that thought in mind that it seems wholly unthinkable to me that we should ask young men serving in the Guard to assume the very grave responsibility of maintaining order; of seeing that the law is adhered to, and not giving
them the proper equipment in all manner, in order that they may enforce an order issued by a Governor.
During the 4 years I was Governor of Wyoming, I called upon the National Guard on several occasions. Historically, its mission has been, generally, to respond to emergencies such as floods, fires, and blizzards. Insofar as I know, never in the history of Wyoming has a guardsman fired a shot in order to quell a riot situation; but I think the very knowledge that the members of the Guard have ammunition obviates the necessity for firing a shot.
Mr. STENNIS. Mr. President, I yield 1 minute to the Senator from Michigan.
Mr. GRIFFIN. Mr. President, because it would not be in order, until all time had expired for me to offer an amendment, I merely send an amendment to the desk as an amendment which I may offer at the appropriate time.
The PRESIDING OFFICER. The amendment will be stated by the clerk.
The legislative clerk read as follows:
At the end of the proposed amendment, add the following: “This provision shall be applicable if all the participants in any riot or civil disturbance shall have certified to the Governor in advance that they will use no live ammunition in their weapons.”
The PRESIDING. OFFICER. The Senator from Michigan.
Mr. GRIFFIN. Mr. President, I would have the roll called on my amendment, which provides that the amendment offered by the Senator from Minnesota shall be effective only if all–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. HANSEN. Mr. President, I ask for the yeas and nays and suggest that if there is not a sufficient number of Senators present, a live quorum be called.
The PRESIDING OFFICER. A Senator’s time has to be yielded for that purpose.
Mr. STENNIS. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has2 minutes remaining and the Senator from Minnesota has 13 minutes remaining.
Mr. PASTORE. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. PASTORE. Mr. President, will the Senator yield for that purpose?
Mr. STENNIS. I yield.
Mr. PASTORE. Is an amendment in order until all time has been yielded bark or consumed?.
Mr. GRIFFIN. I have not offered the amendment.
Mr. STENNIS. It was read for the information of the Senate.
I yield 1 minute to the Senator from Wyoming.
Mr. HANSEN. Mr. President I again request the yeas and nays; and if there is not a sufficient number of Senators present to have the yeas and nays ordered, I suggest the absence of a quorum, and suggest that it be followed by a live quorum.
The PRESIDING OFFICER. The Chair would suggest that the Senator would have to wait until all time on the amendment had expired, because under the precedents there is not sufficient time left for the calling of a quorum.
Is there a sufficient second for the ordering of the yeas and nays on the amendment?
There is now a sufficient second.
The yeas and nays were ordered.
Mr. STENNIS. Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator has 1 minute remaining.
Mr. McCARTHY. Mr. President, how much time do I have?
The PRESIDING OFFICER. The Senator has 13 minutes.
Mr. McCARTHY. Mr. President, I think possibly all former Governors will disqualify themselves on this question as having a conflict of interest. I do not expect that suggestion to be honored; it is just a suggestion, since all former Governors who have spoken have said, "As a former Governor, I have had experience."
All this talk about sending guardsmen into action without ammunition or means of defending themselves against rioters, anarchists, and all the other people that have been listed here is completely irrelevant.
The substance of my amendment is that guardsmen could not be sent in to use live ammunition under present conditions unless the Governor had requested it and the President had honored that request with an affirmative reply.
The essence of the argument has been that the guardsmen are not prepared to deal with situations into which they have been sent. The President could say to any Governor, "I am satisfied that your Guard is not prepared for this kind of riot activity; therefore, I hope it will be trained," or at least that the provisions of the manual which is used when the Guard is federalized be recognized and adhered to under the Governor’s direction.
It seems to me a simple proposition. Some of the debate here suggests that communications are still carried out by pony express. Someone has suggested that a Governor could not get to the President for a week. On an issue of this kind I assume the Governor could get in touch with the President in 5 or 10 minutes. I cannot think of any National Guard in which the officer of the Guard could not be found in 5 minutes if the Governor were looking for him. So there would be as much access to the President as to the commanding officer of the State.
The question is whether we want the Guard to be used rather freely, as it has been under the various Governors, without any real assurance that they have been adequately trained or that they are subject to careful regulation, or whether we want a minimal regulation or requirement that the Governor of the State have the approval of the President before he acts – with the hope that this kind of pressure will provide some incentive for training the Guard properly and put some restraint on Governors who have too readily sent the Guard into situations in which they have no business being.
Mr. President, I reserve the remainder of my time.
Mr. THURMOND. Mr. President, I oppose Amendment No. 843 proposed by the distinguished Senator from Minnesota (Mr. MCCARTHY).
The amendment would prohibit the use of live ammunition in the weapons of members of the National Guard unless the Governor of the particular State requested permission from the President of the United Stations for use of ammunition in the weapons of the National Guardsmen.
First, it should be realized that the responsibility for law enforcement in each State is vested in the Governor of that State and not in the President of the United States.
Under the Constitution, the Governor is the chief law enforcement officer of his particular State and he must have the authority to act quickly in maintaining order, should such action be necessary.
If this amendment had been law during the riots which occurred throughout the Nation following the assassination of Martin Luther King; we would have had a chaotic situation. At that particular time each Governor exercised his authority in applying what force he felt necessary to maintain order.
Mr. President, it should also be realized the President of the United States has tremendous responsibilities which require his attention. He is often far away from situations in the various States to which the Governor would be able to give close attention. The Governor could obtain facts quickly and act on the authority under the Constitution, whereas the president would be placed in the decision making process possibly with only second-hand information.
Even worse, Mr. President, adoption of this amendment might lead to a national police system if unnecessary powers are handed to the President of the United States. Most Americans abhor suggestions of a national police system which could spring from this amendment.
I urge my colleagues to join with me in rejecting this proposal to the military authorization bill.
Mr. MUSKIE. Mr. President, the aim of the amendment before us is laudable; namely, to help prevent the senseless and tragic killing of civilians involved in a volatile situation like the one that occurred at Kent State last spring. However, the amendment raises two important questions which concern me.
First, it fails to provide for exceptions for National Guardsmen who might be involved in situations requiring a reasonable right to self-defense.
Second, on those occasions when the Governor of a State did seek Presidential approval for the use of live ammunition, the President might be forced to make a quick and difficult decision without the benefit of the most up-to-date, on-the-spot information about the current situation. That information is available only to officers on the scene.
Mr. President, the Department of the Army has developed a reasonable set of guidelines governing the use of force by Federal forces involved in civil disorders. I ask unanimous consent that these guidelines be printed in the RECORD at this point.
There being no objection, the guidelineswere orderedto be printed in the RECORD, as follows
GUIDELINES
4. Application of. Force
(a) Operations by Federal forces were not authorized until the President was advised by the highest officials of the state that the situation could not be controlled with the non-Federal resources available. Your mission therefore is to help restore law and order and to help maintain it until such time as state and local forces can control the situation without your assistance. In performing this mission, your Task Force may find it necessary actively to participate not only in quelling the disturbance but also in helping to prevent criminal acts and in helping to detain those responsible for them. You are authorized and directed to provide such active participation, subject to the restraint on the use of force set forth below.
(b) The principal rule of use of force which controls all others is that you will at all times use the minimum force required to accomplish your mission. Due respect will be shown for the great number of citizens whose involvement in the disturbance is purely accidental. Your force options for determining how your troops may be armed to accomplish your mission are enumerated in Appendix 9 to Annex C of Department of the Army Civil Disturbance Plan.
(c) You are authorized to use non-deadly force, including riot control agents, to control the disturbance, to prevent crimes and to apprehend or detain persons who have committed crimes, but the degree of force used must be no more than that reasonably necessary under the circumstances. For example, riot control agents should not be used if saturation of an area with available manpower will suffice. You are authorized to delegate the authority to use riot control agents and other forms of non-deadly force at your discretion.
(d) The use of deadly force (i.e., live ammunition or any other type of physical force likely to cause death or serious bodily harm) in effect invokes the power of summary execution and can therefore be justified only by extreme necessity. Accordingly, its use is not authorized for the purpose of preventing activities which do not pose a significant risk of death or serious bodily harm (for example, curfew violations or looting). Use of deadly force is authorized where (1) lesser means have been exhausted or are unavailable, (2) the risk of death or serious bodily harm to innocent persons is not increased by its use and (3) the purpose of its use is one or more of the following
(i) self-defense to avoid death or serious bodily harm;
(ii) prevention of a crime which involves a substantial risk of death or serious bodily harm (for example, to prevent sniping);
(iii) prevention of the destruction of public utilities or similar property vital to public health or safety;
(iv) detention or prevention of the escape of persons against whom the use of deadly force is authorized in subparagraphs (i), (ii) , and (iii) immediately above.
In addition the following policies in the use of deadly force, will be observed
(1) When deadly force is used, aim where possible to wound, not to kill.
(2) In order to avoid firing which creates a hazard to innocent persons and can create the mistaken impression on the part of citizens that sniping is widespread, warning shots will not be employed.
(3) Where other means have failed and firing is necessary to control sniping, well-aimed fire by expert marksmen will be used wherever possible and the number of rounds will be kept to a minimum to reduce the hazard to innocent persons (i.e. You are authorized to have live ammunition issued to personnel under your command. They are not to load or fire their weapons except when authorized by an officer in person; when authorized in advance by an officer under certain specific conditions; or when required to save their lives (including the prevention of serious bodily harm).
You will insure positive control over use of weapons. You may at your discretion delegate that authority to use deadly force provided such delegation is not inconsistent with this paragraph and that the persons to whom such delegation is made understand the constraints upon the use of deadly force set forth in paragraph d.
b. Custody and Detention of Civilians. Whenever possible; civilian police authorities should take civilian personnel into custody; however, when assistance is necessary or in the absence of the civilian police, Federal military forces have the responsibility to detain or take into custody rioters, looters, or others committing offenses.
Mr. MUSKIE. Mr. President, following the incident at Kent State last May, I wrote to Secretary Laird inquiring whether all National Guard units throughout the country complied with these regulations. I learned that this is not presently the case. It seems to me that we should be working toward insuring that all National Guard units in every State comply with these Army guidelines, which are reasonable and seem to me to provide an appropriate balance between preventing indiscriminate use of deadly force by Federal authorities on the one hand, and protecting lives on the other.
Because of the reservations I have listed, I shall vote against the McCarthy amendment, but I shall work to help insure that all Federal forces, including the National Guard, comply with Army regulations.
Mr. McCARTHY. Mr. President, I am ready to yield back my time, if the chairman is agreeable.
Mr. STENNIS. Mr.President, I yield back the remainder, of my time.
Mr. MCCARTHY. I yield back the remainder of my time.
The PRESIDING OFFICER. All remaining time having been yielded back, the question is on agreeing to the amendment of the Senator from Minnesota
Mr. STENNIS. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will station it.
Mr STENNIS. What is the pending question?
The PRESIDING OFFICER. The pending question is on agreeing to the amendment (No. 843) of the Senator from Minnesota (Mr. MCCARTHY).
Mr. STENNIS.This is the question on whether the amendment will be agreed to or rejected?
The PRESIDING OFFICER. Up or down; the Senator is correct.
On this question, the yeas and nays have been ordered, and the clerk will call the roll.
The legislative clerk called the roll.