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Campus "Unrest" demonstrations and consequences, 1970-1971

1971-11-12 American Report: Review of Religion and American Power Page 11

AMERICAN REPORT  7-S

ASSESSING THE ROLE OF THE NATIONAL GUARD
Subordinating Military Power
[Cont. from p 6-S]

tary techniques of reconstructing the defeated South. Even after reconstruction, troops were frequently called out by Federal marshals to intimidate or over power civil officers as well as private citizens in the South. It was claimed that military intimidation at the polls actually swung the Presidential election of 1876. 
Congress moved to end these excesses in 1878; but because the war and reconstruction years had obscured the notion that troops could be used as civilians under civil law, the act of 1878 had disastrous unintended effects. The Mansfield doctrine as applied earlier in America had meant two things: first, that a sheriff or a marshall could use soldiers as a posse without the chief executive assent; and second, that whenever used in law enforcement situations - whether by sheriff or marshall or president - they were civilians subject to civilian command and law. 
The second and more critical point had been forgotten in the fury of the war; so instead of re emphasizing the subordination of such troops to civilian institutions and law. Congress merely prohibited the use of Federal troops as a posse. This foreclosed their use by marshalls or others than the President himself, but did not negate the statutes authorizing the President to use troops in domestic situations. What it did do, by explicitly forbidding their use as a posse, was to reinforce the erroneous notion that when the President did use troops in a civil disorder they could be treated as soldier rather than civilians. A parallel development occurred in popular understanding concerning the use of militia, or National Guardsmen, in the states. 
The rest is familiar history. The use of soldiers as soldiers in civil disorders has become a routine practice. What has not, until now, been apparent, however, is that this is precisely the practice which was forbidden at the very birth of the English common law which precipitated revolutions in 17th century England; which inflamed the first patriots of the American nation; which was early and insistently decried in the chambers of state legislatures and the Congress, and which was sedulously avoided until the civil war ! 
Massachusetts is Ohio, and Boston is Kent; March 5, 1770 is May 4, 1970, and the "Boston Massacre" is "Kent State" Will there be revolution by 1976?
Revolution takes various forms. In England in the 17th century it took two revolutions to establish safeguards against military oppression. The first was resisted, and consequently was won only after bitter civil war. The second, however, was led by men who themselves held positions of legitimate power in the state; hence it was bloodless, and earned the title "The Glorious Revolution" What may be done toward a "Glorious Revolution" in these United States?
On one front, litigation is seeking to enforce the same standards of liability under the standards of due process for the acts of soldiers against civilians, that would apply to civilian officials. State statutes, unheard of before the Civil War, granting special immunities to soldiers for their violence in civil disorders, must be invalidated or repealed. But this is only the beginning. Perhaps the use of "soldiers" in riots - even their use "as civilians" - should be prohibited altogether. Or if not that, at least steps must be taken to modify their indoctrination and training and their techniques of riot control to make it perfectly and emphatically clear to themselves and all others that on such duty they are in no sense soldiers, not bound by military discipline or orders, but are wholly governed by civilian officers and the restraints of civil law. Legislation very carefully designed, can do much toward this goal, and is now being urged; but its enactment will depend upon the extent to which citizens apprehend and insist upon the principle that is at stake. 
The revolution that is needed is not the espousal of some new innovative creed, but rather a new attention to the lessons of our history and the fundamental principles of our heritage. It is revolution akin to revival; and like the self assessment and repentance involved in revival, it may entail reassessment of other practices as well. Seeing how wrong is our use of military force in domestic situations, we may come to question our use of it even abroad. Or perhaps, seeing how utterly repugnant to our deepest traditions is this one current practice, we may be spurred to examine other features of our contemporary polity with the same critical bent of mind. 
No effort can undo the tragedy of Kent State; and to seek only retribution for the wrong that was done would be vain. But what a memorial to the victims of the tragedy would be our steady resolve to accomplish the redemption of that fundamental safeguard of liberty, the uncompromising subordination of military power to ordinary civilian authority and law!

David E. Engdahl , 31, is Associate Professor of Law and Director of The Law Revision Center at the University of Colorado School of Law, Boulder where he taught Constitutional Law since 1966. He is active in the litigation and efforts toward legislative action concerning the National Guard and civil disorder. An article this brief cannot avoid some over simplification and elipsis; for a more adequate treatment see Mr. Engdahl's article "Soldiers, Riots and Revolution: The Law and History of Military Troops in Civil Disorders." in the October, 1971, issue of the Iowa Law Review, published by the University of Iowa College of Law, Iowa City, Iowa, 52240. 

An Ohio Guardsmen Speaks Out 

The following letter, from an Ohio National Guardsmen was printed in the Akron Beacon Journal August 17, 1971.

"With so many unanswered questions surrounding the four murders at Kent State to burden the American conscience, I find it is almost incomprehensible that the U.S Attorney General could close the official books on the May 4 tragedy while paradoxically agreeing with previous investigations that the shooting deaths were 'unnecessary, unwarranted and inexcusable."
"How can four 'unnecessary, unwarranted and inexcusable' murders (whether premeditated or not) be locked away in a virtual, vacuum of suspended legal animation? This hypocritical action is tantamount to admitting we live in a police state where having a uniform gives one the legal right to take a life in the name of law and order without semblance of due process or legal recrimination. 
"As a Guardsman who was present at Kent State. I cannot wholly dismiss the possibilities of a deadly collusion. Just as I know many fellow Guardsmen who were appalled by the murders, I know others who welcomed the deadly confrontation. 
"Guardsmen are no more than a representative cross-section of the society on which the live. We share the same prejudices, resentments,. life styles, philosophies, neuroses, and politics as our non uniformed peers. We are minimally trained in military proficiency and virtually untrained in the discipline and personal restraint so necessary for critical civil duty. 
"Guardsmen share one common denominator - we have successfully avoided real military duty - and the wearing of a Guard uniform does not insure rational action any more than the wearing of bell bottoms, beads and peace buttons insures irrational action. 
"I sincerely hope that our sword of 'justice' is not single edged, operating only on behalf of the State, and that the American Civil Liberties Union is successful in pursuing the truth. For only when armed with the truth can we hope to avoid future Kent States and Jackson States."
OHIO NATIONAL GUARDSMAN

Interviewing Chaplain Simons 
"We've Got To Shut Him Up"
The following is a transcript of an interview with John Simons, senior chaplain of the 107th Armored Cavalry Regiment, who witnessed the Kent State shootings, by Robert Schakne on the Walter Cronkite C.B.S evening news, October 3, 1970

Schakne: Last May, four days after the Kent State shooting, C.B.S News learned that a National Guard chaplain who'd been on the scene was sharply capital, at the time tried to keep the chaplain from making his criticisms public. I was in the office of the Deputy Guard Commander, Brig. Gen. robert Canterbury, when I overheard him say on the telephone, referring to the chaplain "We've got to shut him up. This could be fatal" 
Until today, that chaplain had said nothing in public. He's the Rev John Simons, Major United States Army, Ohio National Guard, Senior Chaplain of the 107th Armored Cavalry Regiment, In civilian life. Simons is pastor of an Episcopal Church in a Cleveland suburb. Raised in a military family with generals and West Pointers his close relatives, John Simons has worried and agonized privately about what he saw last May 4 at Kent State. 
Simons: I think the initial mistake was made at the state level with the Adjutant General and the Governor, who apparently feels that every campus disorder is another Normandy invasion, so you go in with weapons loaded with rounds, which is not, you know, Kent campus or any other college campus is not coming up Iwo Jima  And secondly, I think that we did not have the men in enough numbers or the equipment to control that situation at noon on that day. Had we waited until, for instance, the shotguns arrived, and reserves arrived from Ravenna, and where they had been awakened the night before. I think we could have done a better job, without - I think we could have done the job without bloodshed. 
I have no idea why the shooting started excerpt, as I reconstruct it from talking to the men immediately afterwards, and doing some counseling in the weeks that followed, that some were legitimately afraid and confused as to what was going on. A few were angry, and so they were in a posittion where someone, or some, could act out their feet and singer in a very lethal 

"For Conspicuous Bravery In The Face Of Four Letter Words."

way, and I think this is what occurred. Schakne: And what did the men who had fired say?
Simons: Some said they had fired in the air. Some said they had not fired. One said he had fired right down the gulley, meaning- I'm sure he meant that he had put it where it hurt. 
Schakne: Did he say why?
Simons: No I don't think he had to say why. I think he was just mad and angry and tired, and sick of it. 
Schakne: Are you saying in effect that the Guard unit was not a controlled disciplined military unit?
Simons. Absolutely. Somebody fired without orders. 
Schakne: The unit that went up, or the men who went up, were they fresh troops, were they tired?
Simons: No, they were not fresh. They'd been - those men had been pulling duty, between the truckers and the campus thing, for several days and nights. Secondly, this was for some of those men. especially those men of the 107th, the third time, in a sense, that they'd been out within a month. 
Schakne: There are a lot of people in Ohio who say the students had it coming : if they didn't want to get shot they shouldn't have been rioting. The Guard simply did what it had to do because the men were endangered. You've heard that argument. 
Simons: I think that these perhaps bloodthirsty types who have never either fired or heard a shot fired in anger. I think they're very naive, hunting for a simple solution. After all, one of the tests of democracy is how much dissension it will allow and how peaceful it can keep that dissension and I think democracy lost that round. 
Schakne: If I had to put it simply to you, should shooting have taken place in Kent that day? Was the situation so bad that the men had to fire?
Simons: No
Schakne: You care something about the Army and care something about the National Guard. Why then are you sitting here this afternoon criticizing what they did?
Simons: Well, I happen to believe that I did not give my soul to the church when I was ordained, or to my wife when I was married, or to the Guard when I was commissioned So I have no feelings about not criticizing if I feel it can be helpful. 
Kuralt: A spokesman for the Ohio National Guard said  there would be no comment from the Guard or its commanders about the critical remarks of Chaplain Simons.

Saving...

AMERICAN REPORT 7-S ASSESSING THE ROLE OF THE NATIONAL GUARD Subordinating Military Power [Cont. from p 6-S] tary techniques of reconstructing the defeated South. Even after reconstruction, troops were frequently called out by Federal marshals to intimidate or over power civil officers as well as private citizens in the South. It was claimed that military intimidation at the polls actually swung the Presidential election of 1876. Congress moved to end these excesses in 1878; but because the war and reconstruction years had obscured the notion that troops could be used as civilians under civil law, the act of 1878 had disastrous unintended effects. The Mansfield doctrine as applied earlier in America had meant two things: first, that a sheriff or a marshall could use soldiers as a posse without the chief executive assent; and second, that whenever used in law enforcement situations - whether by sheriff or marshall or president - they were civilians subject to civilian command and law. The second and more critical point had been forgotten in the fury of the war; so instead of re emphasizing the subordination of such troops to civilian institutions and law. Congress merely prohibited the use of Federal troops as a posse. This foreclosed their use by marshalls or others than the President himself, but did not negate the statutes authorizing the President to use troops in domestic situations. What it did do, by explicitly forbidding their use as a posse, was to reinforce the erroneous notion that when the President did use troops in a civil disorder they could be treated as soldier rather than civilians. A parallel development occurred in popular understanding concerning the use of militia, or National Guardsmen, in the states. The rest is familiar history. The use of soldiers as soldiers in civil disorders has become a routine practice. What has not, until now, been apparent, however, is that this is precisely the practice which was forbidden at the very birth of the English common law which precipitated revolutions in 17th century England; which inflamed the first patriots of the American nation; which was early and insistently decried in the chambers of state legislatures and the Congress, and which was sedulously avoided until the civil war ! Massachusetts is Ohio, and Boston is Kent; March 5, 1770 is May 4, 1970, and the "Boston Massacre" is "Kent State" Will there be revolution by 1976? Revolution takes various forms. In England in the 17th century it took two revolutions to establish safeguards against military oppression. The first was resisted, and consequently was won only after bitter civil war. The second, however, was led by men who themselves held positions of legitimate power in the state; hence it was bloodless, and earned the title "The Glorious Revolution" What may be done toward a "Glorious Revolution" in these United States? On one front, litigation is seeking to enforce the same standards of liability under the standards of due process for the acts of soldiers against civilians, that would apply to civilian officials. State statutes, unheard of before the Civil War, granting special immunities to soldiers for their violence in civil disorders, must be invalidated or repealed. But this is only the beginning. Perhaps the use of "soldiers" in riots - even their use "as civilians" - should be prohibited altogether. Or if not that, at least steps must be taken to modify their indoctrination and training and their techniques of riot control to make it perfectly and emphatically clear to themselves and all others that on such duty they are in no sense soldiers, not bound by military discipline or orders, but are wholly governed by civilian officers and the restraints of civil law. Legislation very carefully designed, can do much toward this goal, and is now being urged; but its enactment will depend upon the extent to which citizens apprehend and insist upon the principle that is at stake. The revolution that is needed is not the espousal of some new innovative creed, but rather a new attention to the lessons of our history and the fundamental principles of our heritage. It is revolution akin to revival; and like the self assessment and repentance involved in revival, it may entail reassessment of other practices as well. Seeing how wrong is our use of military force in domestic situations, we may come to question our use of it even abroad. Or perhaps, seeing how utterly repugnant to our deepest traditions is this one current practice, we may be spurred to examine other features of our contemporary polity with the same critical bent of mind. No effort can undo the tragedy of Kent State; and to seek only retribution for the wrong that was done would be vain. But what a memorial to the victims of the tragedy would be our steady resolve to accomplish the redemption of that fundamental safeguard of liberty, the uncompromising subordination of military power to ordinary civilian authority and law! David E. Engdahl , 31, is Associate Professor of Law and Director of The Law Revision Center at the University of Colorado School of Law, Boulder where he taught Constitutional Law since 1966. He is active in the litigation and efforts toward legislative action concerning the National Guard and civil disorder. An article this brief cannot avoid some over simplification and elipsis; for a more adequate treatment see Mr. Engdahl's article "Soldiers, Riots and Revolution: The Law and History of Military Troops in Civil Disorders." in the October, 1971, issue of the Iowa Law Review, published by the University of Iowa College of Law, Iowa City, Iowa, 52240. An Ohio Guardsmen Speaks Out The following letter, from an Ohio National Guardsmen was printed in the Akron Beacon Journal August 17, 1971. "With so many unanswered questions surrounding the four murders at Kent State to burden the American conscience, I find it is almost incomprehensible that the U.S Attorney General could close the official books on the May 4 tragedy while paradoxically agreeing with previous investigations that the shooting deaths were 'unnecessary, unwarranted and inexcusable." "How can four 'unnecessary, unwarranted and inexcusable' murders (whether premeditated or not) be locked away in a virtual, vacuum of suspended legal animation? This hypocritical action is tantamount to admitting we live in a police state where having a uniform gives one the legal right to take a life in the name of law and order without semblance of due process or legal recrimination. "As a Guardsman who was present at Kent State. I cannot wholly dismiss the possibilities of a deadly collusion. Just as I know many fellow Guardsmen who were appalled by the murders, I know others who welcomed the deadly confrontation. "Guardsmen are no more than a representative cross-section of the society on which the live. We share the same prejudices, resentments,. life styles, philosophies, neuroses, and politics as our non uniformed peers. We are minimally trained in military proficiency and virtually untrained in the discipline and personal restraint so necessary for critical civil duty. "Guardsmen share one common denominator - we have successfully avoided real military duty - and the wearing of a Guard uniform does not insure rational action any more than the wearing of bell bottoms, beads and peace buttons insures irrational action. "I sincerely hope that our sword of 'justice' is not single edged, operating only on behalf of the State, and that the American Civil Liberties Union is successful in pursuing the truth. For only when armed with the truth can we hope to avoid future Kent States and Jackson States." OHIO NATIONAL GUARDSMAN Interviewing Chaplain Simons "We've Got To Shut Him Up" The following is a transcript of an interview with John Simons, senior chaplain of the 107th Armored Cavalry Regiment, who witnessed the Kent State shootings, by Robert Schakne on the Walter Cronkite C.B.S evening news, October 3, 1970 Schakne: Last May, four days after the Kent State shooting, C.B.S News learned that a National Guard chaplain who'd been on the scene was sharply capital, at the time tried to keep the chaplain from making his criticisms public. I was in the office of the Deputy Guard Commander, Brig. Gen. robert Canterbury, when I overheard him say on the telephone, referring to the chaplain "We've got to shut him up. This could be fatal" Until today, that chaplain had said nothing in public. He's the Rev John Simons, Major United States Army, Ohio National Guard, Senior Chaplain of the 107th Armored Cavalry Regiment, In civilian life. Simons is pastor of an Episcopal Church in a Cleveland suburb. Raised in a military family with generals and West Pointers his close relatives, John Simons has worried and agonized privately about what he saw last May 4 at Kent State. Simons: I think the initial mistake was made at the state level with the Adjutant General and the Governor, who apparently feels that every campus disorder is another Normandy invasion, so you go in with weapons loaded with rounds, which is not, you know, Kent campus or any other college campus is not coming up Iwo Jima And secondly, I think that we did not have the men in enough numbers or the equipment to control that situation at noon on that day. Had we waited until, for instance, the shotguns arrived, and reserves arrived from Ravenna, and where they had been awakened the night before. I think we could have done a better job, without - I think we could have done the job without bloodshed. I have no idea why the shooting started excerpt, as I reconstruct it from talking to the men immediately afterwards, and doing some counseling in the weeks that followed, that some were legitimately afraid and confused as to what was going on. A few were angry, and so they were in a posittion where someone, or some, could act out their feet and singer in a very lethal "For Conspicuous Bravery In The Face Of Four Letter Words." way, and I think this is what occurred. Schakne: And what did the men who had fired say? Simons: Some said they had fired in the air. Some said they had not fired. One said he had fired right down the gulley, meaning- I'm sure he meant that he had put it where it hurt. Schakne: Did he say why? Simons: No I don't think he had to say why. I think he was just mad and angry and tired, and sick of it. Schakne: Are you saying in effect that the Guard unit was not a controlled disciplined military unit? Simons. Absolutely. Somebody fired without orders. Schakne: The unit that went up, or the men who went up, were they fresh troops, were they tired? Simons: No, they were not fresh. They'd been - those men had been pulling duty, between the truckers and the campus thing, for several days and nights. Secondly, this was for some of those men. especially those men of the 107th, the third time, in a sense, that they'd been out within a month. Schakne: There are a lot of people in Ohio who say the students had it coming : if they didn't want to get shot they shouldn't have been rioting. The Guard simply did what it had to do because the men were endangered. You've heard that argument. Simons: I think that these perhaps bloodthirsty types who have never either fired or heard a shot fired in anger. I think they're very naive, hunting for a simple solution. After all, one of the tests of democracy is how much dissension it will allow and how peaceful it can keep that dissension and I think democracy lost that round. Schakne: If I had to put it simply to you, should shooting have taken place in Kent that day? Was the situation so bad that the men had to fire? Simons: No Schakne: You care something about the Army and care something about the National Guard. Why then are you sitting here this afternoon criticizing what they did? Simons: Well, I happen to believe that I did not give my soul to the church when I was ordained, or to my wife when I was married, or to the Guard when I was commissioned So I have no feelings about not criticizing if I feel it can be helpful. Kuralt: A spokesman for the Ohio National Guard said there would be no comment from the Guard or its commanders about the critical remarks of Chaplain Simons.