Legal limits on military deployment along US border

On Tuesday, President Trump said he plans to deploy military personnel to the United States border with México. The President’s plans may run into problems with longstanding prohibitions against using the military for domestic law enforcement purposes.

Sitting next to Secretary of Defense Jim Mattis, President Trump said: “We have very bad laws for our border, and we are going to be doing some things — I’ve been speaking with General Mattis — we’re going to be doing things militarily…Until we can have a wall and proper security, we’re going to be guarding our border with the military. That’s a big step. We really haven’t done that before, or certainly not very much before.” Trump’s reference to “guarding the border” is key.

The Posse Comitatus Act, codified at 18 U.S.C. § 1385, provides: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

Often described as a prohibition against deploying the military within the United States, § 1385 doesn’t do anything of the sort. Instead, it narrows the ways in which the military can be used domestically. Defense Department equipment can be used domestically. Military personnel can be used to support law enforcement activities by other agencies. President Bush and President Obama both did that with National Guard troops. President Clinton’s Marine deployment resulted in the tragic death of eighteen-year-old Esequiel Hernández, Jr. a United States citizen, in 1997 when troops shot him as he grazed his family’s sheep in rural Texas. No one was every held accountable for Hernández’s death.

Starting in the early 1980s,

the military became involved in immigration regulation. Usually justified by a concern about keeping illicit drugs out of the country, the military quickly took a role in enforcing immigration law. The 1981 Military Cooperation with Law Enforcement Officials Act, for example, authorized military involvement in drug and immigration enforcement activities. Separately, because Congress did not think the Border Patrol was up to the task on its own, it “forced the military to aid the Border Patrol in guarding the border” and soon provided approximately $1 billion in funding for border-related drug activities. With time the military wound up playing a significant role in assisting to identify and apprehend suspected clandestine entrants. A secret National Guard initiative launched in 1989, Operation Border Ranger II, for example, deployed armed troops to the border to assist civilian law enforcement agencies with drug and immigration enforcement efforts by, among other things, informing INS agents about the presence of suspected clandestine entrants.The next year, a Marine unit working alongside the Border Patrol in Texas and Arizona utilized then-novel surveillance from an unmanned aerial vehicle (a “drone”). This helped the Border Patrol double the number of clandestine entrants it usually identified, while also confiscating marijuana shipments.

That same year, the military created Joint Task Force-6 (“JTF-6”), an initiative intended to coordinate military support of civilian law enforcement agencies along the border as well as in Houston and Los Angeles, two large interior metropolitan areas with large immigrant communities. Involving at least 500 troops—including Army Rangers and Green Berets—JTF-6 primarily assisted Border Patrol agents with their drug-fighting duties. Importantly, though JTF-6 personnel were ostensibly deployed to support law enforcement officers and not to enforce laws themselves, they were nonetheless authorized to shoot to kill if military or civilian law enforcement personnel were endangered—a far cry from the long-standing practice of prohibiting the military from engaging in domestic law enforcement practices. This power proved fateful in 1997 when Marines participating in a JTF-6 operation shot and killed Esequiel Hernández, Jr., an eighteen-year-old United States citizen who was tending his family’s livestock when the troops mistook him for a drug trafficker. Though JTF-6 was later disbanded, its successors continue to be deployed to the border ostensibly to assist with antidrug efforts while also engaging in immigration law enforcement. Joint Task Force-North, for example, “assisted in the apprehension of 3,865 undocumented aliens” in fiscal year 2010, while its manned aerial support program “[a]ssisted in the apprehension of 6,500-8,000 undocumented aliens” during fiscal year 2011.

César Cuauhtémoc García Hernández, Creating Crimmigration, 2013 BYU Law Review 1457, 1509-1510.

Despite this pattern of domestic use of military resources, the Posse Comitatus Act does impose meaningful limits on the military. Troops are barred from “executing the law” which includes taking an active role in direct law enforcement activities. As explained by a federal district court in South Dakota several decades ago, “the clause ‘to execute the laws’, contained in 18 U.S.C. § 1385, makes unlawful the use of federal military troops in an active role of direct law enforcement by civil law enforcement officers. Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities. Such use of federal military troops to ‘execute the laws’, or as the Court has defined the clause, in ‘an active role of direct law enforcement’, is unlawful under 18 U.S.C. § 1385…” United States v. Red Feather, 392 F. Supp. 916, 925 (D.S.D. 1975). Historically, this is an important decision; it concerned the prosecution of American Indian Movement activists who were forcefully displaced from their occupation at Wounded Knee, South Dakota in 1973.

In 2012, the Government Accountability Office, the federal government’s official auditing agency, issued a critical report about the Defense Department’s role along the border. It found that National Guard and active duty military forces were deployed to the border at substantial cost: $1.35 billion for two National Guard deployments and $10 million per year since 1989 for active duty personnel deployments. Despite this cost, key government agencies were wary about further troop activity along the border. Defense Department, State Department, Homeland Security, and Federal Aviation Administration officials all expressed concerns unique to their own missions. Ironically, sending National Guard to the border might hurt recruitment and retention; it might also, according to Customs and Border Protection, “impact long-term border security planning.”

Trump’s comments about “guarding the border” suggest an active role. Without that, I’m lost as to what it means to guard something. Admittedly, I don’t fancy myself as someone who can read the president’s mind and, from where I sit, he has a habit of speaking in ways that don’t conform to my understanding of the ordinary meaning of words.