The
following op-ed from Tuesday’s Guardian is by Claire Finkelstein, a
distinguished professor of law and philosophy at the University of
Pennsylvania Carey Law School, and founder and faculty director of the
Center for Ethics and the Rule of Law at Penn’s Annenberg Public Policy
Center.
Last
weekend I argued here that the United States is no longer merely “at
risk” of authoritarianism, as major scholars writing in Foreign Affairs
now concede, but that we have entered what Barbara Walter would call the
pre‑insurgency phase of civil war, with Minnesota as a decisive test of
what comes next. The current operation there is not just another
crackdown; it is a trial run, a template for how similar campaigns could
unfold in other cities unless there is meaningful pushback.
One
obvious form of such pushback did not materialize last night. In a
House vote, all but one Republican supported pouring billions more into
the DHS/ICE apparatus now targeting residents, citizens, protesters, and
migrants with near impunity—disappearing people by the tens of
thousands into a rotating archipelago of detention sites that
effectively nullify habeas corpus. Seven Democrats joined them, a
sobering reminder that there is still no unified opposition party
willing to draw a clear line against this machinery.
We ran high-level US civil war simulations. Minnesota is exactly how they start
Developments
in Minnesota closely mirror a scenario explored in a 2024 exercise
conducted at the Center for Ethics and the Rule of Law at the University
of Pennsylvania, which I direct
Since 6 January, roughly 2,000 ICE agents have been deployed to Minnesota under the pretext of responding to a fraud investigation. In practice, these largely untrained and undisciplined federal agents have been terrorizing Minneapolis
residents through illegal and excessive uses of force – often against
US citizens – prompting a federal judge to attempt to place limits on the agency’s actions. The Trump administration is encouraging the lawlessness by announcing “absolute immunity”
for ICE agents. But if the secretary of homeland security, Kristi Noem,
does not heed the court ruling, the consequences may be nothing short
of civil war.
In just the past week, ICE agents shot and killed Renee Good, a 37-year-old mother of three, shortly after she returned from dropping her child off at school. They blinded two protesters by shooting them in the face with so-called “less deadly” weapons. They fired teargas bombs
around the car of a family carrying six children, sending one child to
the emergency room with breathing problems. They violently dragged a woman out of her car and on to the ground screaming. They have shot protesters in the legs. They have forcibly taken thousands of individuals to detention facilities, separating families and casting people into legal limbo – often without regard to their legal status.
Rather than investigate this conduct and the officer who shot Renee Good, the justice department has opened a criminal investigation
into the Minnesota governor, Tim Walz, and Minneapolis mayor, Jacob
Frey, accusing them of conspiring to impede federal agents. Renee Good’s
widow is also under investigation, a move that prompted six US attorneys in Minnesota to resign in protest.
As public outrage grows, ICE has escalated its actions, increasingly engaging in what appear to be random acts of violence regardless of immigration status. Governor Walz has placed the Minnesota national guard
on standby to support local law enforcement, while Trump has threatened
to invoke the Insurrection Act – an extraordinary move that would grant
him sweeping domestic military powers and potentially sidestep recent
supreme court limits on the use of federal troops in law enforcement. One thousand additional ICE agents have been sent to Minnesota,
suggesting that Trump is essentially using ICE as a specialized
paramilitary force to target protesters and suppress dissent. And the
Pentagon has readied the army’s 11th Airborne Division – roughly 1,500 active-duty soldiers – to back up the president’s threat.
This scenario closely mirrors one explored in an October 2024 tabletop exercise conducted by the Center for Ethics and the Rule of Law (CERL),
which I direct, at the University of Pennsylvania. In that exercise, a
president carried out a highly unpopular law-enforcement operation in
Philadelphia and attempted to federalize the Pennsylvania’s national
guard. When the governor resisted and the guard remained loyal to the
state, the president deployed active-duty troops, resulting in an armed
conflict between state and federal forces. The core danger we identified
is now emerging: a violent confrontation between state and federal
military forces in a major American city.
While
our hypothetical scenario picked a different city and a slightly
different sequence of events, the conclusions we reached about the
possibility of green-on-green violence are directly applicable to the
current situation. First, none of the participants – many of them senior
former military and government officials – considered the scenario
unrealistic, especially after the supreme court’s decision in Trump v
United States, which granted the president criminal immunity for
official acts.
Second, we concluded that in a
fast-moving emergency of this magnitude, courts would probably be unable
or unwilling to intervene in time, leaving state officials without
meaningful judicial relief. State officials might file emergency motions
to enjoin the use of federal troops, but judges would either fail to
respond quickly enough or decline to rule on what they view as a
“political question”, leaving the conflict unresolved. This is why Judge
Menendez’s ruling is so critical: it may be the last opportunity a
federal judge has to intervene before matters spiral completely out of
control.
Third, we warned that senior military
leaders could face orders to use force not only against state national
guard units, but against unarmed civilians – and that they must be
prepared to assess the legality of such orders. Any domestic deployment
of federal troops must comply with the Department of Defense’s Rules for the Use of Force
and with the constitution, including the Bill of Rights. Even under the
Insurrection Act, federal troops may not lawfully shoot protesters
unless they are literally defending their lives against an imminent
threat – yet such conduct is already happening in Minneapolis at the
hands of federal agents.
Finally, it is not legal for federal troops to back up ICE agents who are behaving illegally.
Every
member of the US military has sworn an oath to defend the constitution.
That oath carries legal force. Service members are not only permitted
but obligated to refuse patently illegal orders.
That obligation is now under pressure. Senator Mark Kelly is under investigation
by the Pentagon for publicly reminding service members in a video he
made with five other members of Congress that they may – and in some
cases must – refuse illegal orders. But they were essentially correct:
troops must refuse to carry out patently illegal orders.
For members of the 11th Airborne Division, this may soon cease to be a theoretical question. Minnesota
may be the first test of whether constitutional limits on domestic
military force still hold – or whether the United States is about to
cross a line from which it cannot easily return.
-
Claire Finkelstein is the Algernon Biddle
professor of law and professor of philosophy at the University of
Pennsylvania Carey Law School. She is also the founder and faculty
director of the Center for Ethics and the Rule of Law at Penn’s
Annenberg Public Policy Center
The following NYT Op‑Docs video, released two months ago, remains one of
the clearest short overviews of what DHS is doing with public money
behind the scenes: an expanding network of long‑term detention sites
where due process is systematically undermined. The vast majority of
those held have no criminal convictions. In the weeks since the film
appeared, the population has increasingly come to include lawful
residents and even citizens swept up in mass operations and effectively
disappeared into this rotating system of confinement.
