John Kelly Authorizing Troops to Use Lethal Force at the Border Is Unlawful and Alarm

John Kelly Authorizing Troops to Use Lethal Force at the Border Is Unlawful and Alarming

By Heather Hurlburt
@natsecHeather

https://pixel.nymag.com/imgs/daily/i....w700.h700.jpgOnly one of these men is in the military chain of command. Photo: Chip Somodevilla/Getty Images


The first casualty of President Trump’s deployment of active-duty troops to our southern border – or maybe the second, if you count the line between military policy and naked partisanship as the first – has been clarity. Over the last ten days, we’ve had reports that troops were finishing their mission and leaving the border, and then reports that they weren’t. The administration changed the rules to limit where would-be refugees could apply for asylum, until a court said it couldn’t.

Now there’s been another bewildering development. According to Military Times’ Tara Copp, a memo came down from the White House on Tuesday evening authorizing active-duty troops at the border to fulfill some functions of law enforcement for the “protection of border agents” – including searching and detaining people, crowd control, and “lethal force, where necessary.”

National security lawyers all over the country lifted their heads from their Thanksgiving preparations in alarm. It has been very settled law for more than a century that active-duty troops may not be used for law enforcement functions within U.S. borders. That law, the Posse Comitatus Act, was passed just after the Civil War and Reconstruction, specifically to protect state governments from having policies they didn’t like enforced by federal military personnel on their soil. The exceptions are extreme: the president can “use military force to suppress insurrection or enforce federal authority,” per the Congressional Research Service. It’s worth noting that servicemembers always have the right to use force for self-defense – but the idea is that troops are not to be used in roles where they might choose to use force for other reasons.

There are several strange things about this document that immediately jump out. It was called a “Cabinet order,” but the Cabinet has no constitutional authority to make orders, and certainly not of the military. Sometimes in past administrations, the White House has sent “Cabinet memos” – but those merely enumerated explicit presidential guidance. This memo, instead of invoking the president’s authority, was signed by Chief of Staff John Kelly – but chiefs of staff have no authority to command anyone except White House employees. (And in my experience from the Clinton White House, that’s certainly not a group you would want to put in charge of crowd control.) The fact that Kelly is a retired four-star general is irrelevant; no chief of staff fits anywhere in the military chain of command.

Legal and defense experts on Twitter came up with several theories as to why Kelly might have signed the document. National security lawyer and Hill veteran Mieke Eoyang wondered whether the relevant legal advisers had refused to sign off on such an order.

Former Pentagon senior official Brian McKeon theorized that the document was a deliberate ploy by Kelly, to mislead Trump into thinking that he had ordered that lethal force be used without the Pentagon ever executing the move. Lawfare editor Scott Anderson asked whether Trump might be protecting himself by having Kelly sign – because violations of the Posse Comitatus Act can carry criminal penalties.

This might be a bit funny – another crazy Trump spectacle – except that it concerns the president’s most solemn responsibility, and thus threatens to put the world’s strongest fighting force crossways of our democratic practices.

Veterans’ groups have said all the way along that the deployment of roughly 5,900 troops to the border enmeshes them in American politics and is a waste of their training and skills. Now we’re in a situation where some authority figures seem to be saying troops can act as law enforcement officers, while others disagree. Secretary Mattis took time with a press gaggle Wednesday afternoon to stress that the military would not violate the Posse Comitatus Act. “I have the authority,” Mattis said when asked about the Cabinet order, noting that pictures of troops at the border show they’re unarmed.

“Relax. Don’t worry about it.” Nevertheless, this is still a recipe for confusion, and potentially for tragedy – what happens if stressful, chaotic situations arise on the border, like demonstrations?

Lawyers had another concern: was the White House asserting its right to skip legal review or, even more broadly, was it saying that the president’s responsibility to defend the country allows him to ignore laws he doesn’t like? That’s a precedent that could affect lives and freedoms all across the country, and far from the border, from surveillance to search to immigration and more.

It’s worth noting that there are American clergy, activists, and media traveling with the Central American migrants. It’s very likely that, in the case of a confrontation at or near the border, U.S. troops would be pointing their weapons at U.S. citizens. The idea that you could use Americans who swore an oath to defend their country to attack and kill other Americans whose political views you don’t like is the very thing the Posse Comitatus Act was intended to protect us from.
Members of Congress from both parties should be speaking up to demand clarification.

http://nymag.com/intelligencer/2018/...at-border.html

The Posse Comitatus Act does not prohibit US Military on our borders.

US Military is allowed as authorized by the Constitution or Act of Congress This is from Carlton Meyer’s new book: The Spectrum of Future Warfare.
http://www.g2mil.com/border.htm

Myth #1 The US Constitution prohibits posting US troops on the border.The US Constitution says no such thing. In fact, Article IV states: Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. So the US Constitution clearly requires the federal government to protect states from invasion. Almost a million aliens illegally pouring across the border into states each year is clearly an invasion.

Myth #2 The Posse Comitatus Act prohibits US troops from guarding US borders.
This 1878 act was enacted to prevent Union troops from continuing to enforce federal laws in the defeated South after the American Civil war. Here is the text as modified by Congress in recent years:

Sec. 1385. – Use of Army and Air Force as posse comitatusWhoever, 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.

Guarding US borders from foreign invasion is not “law enforcement.” The US Army exists to defend the US from foreign invasion, which is expressly authorized by the US Constitution. Guarding the Mexican border was the Army’s primary peacetime mission until 1940, and no one ever declared this was in violation of this 1878 act. The US Border Patrol wasn’t even formed until 1924, so claiming the intent of this law was to prevent US Army troops from guarding the border is absurd. The map at left shows US Army forts in Texas in the late 1880s when the entire US Army had fewer than 40,000 soldiers; it has 500,000 today. Clearly, defending the US border was a primary mission of the US Army for decades after this act was passed.Some may argue that Chapter 18, Section 375 of Title 10 US Code prevents military personnel from direct participation in law enforcement. However, defending US borders from foreign invaders is not law enforcement, it’s the basic purpose of the US military. While defending these United States from invasion, civilian law enforcement may be called upon to assist the US military. Does anyone believe the Border Patrol must operate fighter aircraft because the US Air Force can’t intercept aircraft crossing into the US because that’s “law enforcement”? When you read about proposals in Congress to put US troops on the border, those are not proposals to allow US troops on the border, but proposals to force the President to put troops back on the border. However, recent Presidents have listened to their corporate advisors and their slogans and ignored the threat of unsecured US borders.

Myth #3 The National Guard should guard the border, not active duty troops.
The National Guard is an organized militia to deal with state and national emergencies. Guarding the US border is a full-time mission that the federal government is required to perform by Article IV, Section 4 of the US Constitution. The few states along the border shouldn’t be expected to defend the entire country from invasion. This myth is also spread by imperial minded Generals who prefer to rule an empire overseas than to defend their own citizens. Whenever citizens demand the Army protect their nation, Generals dodge this issue by stating that it may be a mission for the National Guard, so as not to waste resources of the US Army. This is absurd; the primary mission of the US Army is to protect US citizens, and the US Constitution requires the federal government to protect states from invasion. If there is a major war and the Army would like to deploy its border troops overseas, then National Guard troops from any state can be mobilized to guard the border until the war ends.

Myth #4 The US Army hasn’t the resources for border troops. The active duty army has 500,000 full-time troops supported by over 300,000 civilians. The Border Patrol has 9700 agents. Certainly, the Army can form a infantry division of 10,000 troops to actually defend the USA, or Congress can authorize more troops. This G2mil article: Cut Surplus Army Units identifies more than 10,000 unneeded positions in the US Army that can be cut to form an infantry division. There are several US military bases along the border that can host an infantry battalion for border security: NAS Whidbey Island, WA; Minot AFB, SD; Selfridge ARNG base, MI; Fort Drum, NY; Laughlin AFB, TX; Fort Bliss, TX; Fort Huachuca, AZ, Yuma Proving Grounds, AZ; and NAS El Centro, CA; plus several military facilities in the San Diego area. Some Army officers may express concern that border duty will hurt readiness for Army missions overseas. They don’t understand that defending the USA is their primary mission!

Myth #5 Soldiers aren’t trained for such missions Soldiers are ideally trained to guard remote areas of the border. All they need are a few days of orientation training and to learn some Spanish or French phrases they can shout into a bullhorn: “Stop, you cannot enter the United States here, go back!” They will not process arrestees, fill out paperwork, search houses, run checkpoints, appear in court, or conduct investigations. They will just confront people who they directly view invading the USA. They will insist that foreign intruders turn back or face arrest by the Border Patrol. This will prevent odd incidents like in 1997 when a marine on drug war duty near the border shot a local goat herder who had fired in his direction. Some suspect this young man was paid by drug dealers to provoke an incident in hopes of getting the marines removed. He succeeded, but didn’t expect to die. The marines were there because the President had authorized their use after Army Generals refused. The Marine shooter was there on temporary duty and did not view the goat herder entering the USA illegally. The establishment of orientation training and strict rules of engagement can ensure that US troops have no contact with US citizens.

Myth #6 Illegal immigration cannot be stopped Of course it can. There is no illegal immigration from North to South Korea because that border is heavily guarded. Perhaps some of the 20,000 US troops there can transfer to the US border. Guarding the border will not stop the hundreds of thousands of visitors who overstay their visas in the USA, but at least they were checked and inspected prior to arrival. The Border Patrol estimates that 700,000 unknown persons slipped past them last year, cutting that to 7000 a year is not unrealistic. Some claim that illegals will just find another way to cross. However, most illegals cannot obtain a visa or shopping pass because they haven’t an address and job.

http://www.unitedpatriotsofamerica.c...r-borders.html

FIRE JOHN KELLY AND KIRSTJEN NIELSON!

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Originally Posted by JohnDoe2

John Kelly Authorizing Troops to Use Lethal Force at the Border Is Unlawful and Alarming


There are several strange things about this document that immediately jump out. It was called a “Cabinet order,” but the Cabinet has no constitutional authority to make orders, and certainly not of the military. Sometimes in past administrations, the White House has sent “Cabinet memos” – but those merely enumerated explicit presidential guidance. This memo, instead of invoking the president’s authority, was signed by Chief of Staff John Kelly – but chiefs of staff have no authority to command anyone except White House employees. (And in my experience from the Clinton White House, that’s certainly not a group you would want to put in charge of crowd control.) The fact that Kelly is a retired four-star general is irrelevant; no chief of staff fits anywhere in the military chain of command.

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Strange indeed.