Pentagon Chief Weighs Broader Approach to Border Security
(Foreign Policy | Feb. 25, 2019) The US military is sending an additional 1,000 troops to the border with Mexico, bringing the number of US military personnel there—both active-duty and National Guard—to about 6,000, a senior defense official told reporters at the Pentagon on Feb. 22.
That’s a significant chunk of military resources going toward a mission that can only legally be performed by domestic law enforcement such as Customs and Border Protection (CBP) officers: border security. Under the Posse Comitatus Act, the US military is prohibited from taking any direct role in law enforcement—including search, seizure, apprehension, or arrest.
So what, then, are those 6,000 troops actually doing there? So far, the US military has functioned primarily in a supporting role—installing concertina wire, transporting law enforcement officers by air, providing medical services to migrants, hardening points of entry, and helping with surveillance. In addition to stringing another 140 miles of concertina wire, the troops will be supporting the CBP officers between the points of entry, as well as installing ground-based detection systems, the senior defense official said.
The goal is “freeing up agents and putting them in a law enforcement role instead of administrative duties,” according to the official.
Despite their restricted role, it now seems like the troops on the border are there for the long term. As the Trump administration trumpets the so-called national security crisis of border security—and seeks to divert billions of dollars in military funding to building his long-promised border wall—the Pentagon is reassessing the role of the US military in securing the border …
… But William Banks, an emeritus professor at Syracuse University’s College of Law and Maxwell School, believes there is no “clear, positive legal authority” for active-duty US troops to be at the US-Mexico border. The surveillance and detection role could pose a particular problem, he added.
The laws allowing US military forces to conduct surveillance in support of CBP officers dates back to the “war on drugs” in the 1980s and were specifically designed for counter-drug activities, Banks explained.
That means that any surveillance the US military is conducting that is not directly related to drug trafficking—for example, monitoring the border for illegal crossings—could be challenged in a court of law …