The controversial deployment in late October 2018 of 5,800 US servicemembers to the US-Mexico border in response to a perceived migration and asylum crisis has caused a media stir. Not unsurprisingly, questions about the legality of the deployment have arisen, especially in the wake of a November 20 White House “Cabinet Order” allowing troops to perform law enforcement roles and to use lethal force, potentially in violation of the Posse Comitatus Act. Professor Emeritus William C. Banks, author of Soldiers on the Home Front: The Domestic Role of the American Military, has answered some of these questions for Military Times, Vox, and PRI, as well as on the Just Security blog.
What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border
(ACSBlog | Dec. 3, 2018) … What about the “crowd control, temporary detention” and “cursory search” permitted by the order? Secretary Mattis responded to a question about involvement in law enforcement this way: “We do not have arrest authority. Detention, I would put it in terms of minutes. . . . [We would stop an assault on a CBP agent] and deliver them to a Border Patrol man, who would then arrest them” …
What Trump’s “lethal force” authorization means at the border
(Vox | Nov. 27, 2018) “On one hand, it is kind of ridiculous because there is nothing approaching an invasion there,” William Banks, a national security expert with Syracuse University, said. “There is no indication that there is a force lining the border that [Customs and Border Protection] couldn’t take care of. But on the other hand, if you take the Cabinet order’s language at face value, and take what the president is saying as credible threats, then it becomes grayer.”
Military at the southern border and the Posse Comitatus Act
(PRI The World | Nov. 23, 2018) The White House has signed a memo allowing troops stationed at the border to take on some law enforcement roles including using lethal force, if necessary. Some experts say the directive is at odds with the Posse Comitatus Act. The federal law, which dates back to the 19th century, forbids active military members from engaging in civilian law enforcement roles. The World’s Carol Hills interviews William C. Banks, a professor of law at Syracuse University, and co-author of “Soldiers on the Home Front: The Domestic Role of the American Military.”
White House approves use of force, some law enforcement roles for border troops
(Military Times | Nov. 21, 2018) Posse Comitatus is “always looming in the background. You never invoke it as such because it is such a background principle,” said William Banks, author of “Soldiers on the Home Front: The Domestic Role of the American Military” and the former director of the Institute for National Security and Counter-terrorism at Syracuse University’s College of Law.
Legal Analysis of “Cabinet Memo” on the Military’s Role at Southern Border
(Just Security | Nov. 26, 2018) More important is what the Constitution, Posse Comitatus Act, and other federal laws represent – a longstanding legal norm disfavoring military involvement in domestic affairs except in dire circumstances. It is no exaggeration to say that avoidance of military involvement in civil society is part of our cultural heritage. Let’s hope that Secretary Mattis’ cool head prevails in the days ahead.