On late November 20th, White House Chief of Staff John Kelly signed a memo allowing troops stationed along the southwest border to use lethal force.
Donald Trump didn’t sign the memo, however an earlier “decision memo” that came to the same recommendations that were contained in the “cabinet memo” was signed by him, according to documents obtained by Newsweek.
This is a significant escalation of the support role they had been tasked with and is directly against a 140-year-old law that bars the military from operating within US boundaries.
The mission of the 5,800 troops stationed at the border now includes protecting Customs and Border Protection agents. Until this change of orders, the troops currently deployed in California, Arizona and Texas, who had been lining the border with concertina wire and providing only logistical support to CBP personnel.
US Secretary of Defense Jim Mattis confirmed the new guidelines on November 21st, downplaying how much interaction troops would have with migrants. He claimed that most soldiers do not carry weapons and that the military would steer clear from civilian law enforcement such as arrests, which are forbidden under in the Posse Comitatus Act.
Mattis further emphasized that he would only use his expanded authorities in response to a request from the Secretary of Homeland Security Kirstjen Nielsen.
“I now have the authority to do more,” Mattis told reporters. “Now we’ll see what she asks me.”
The Military Times cited legal experts who claimed that this could potentially represent a fundamental shift in the way the US military is used.
“The Congressional Research Service, the non-partisan research agency for Congress, has found that “case law indicates that ‘execution of the law’ in violation of the Posse Comitatus Act occurs (a) when the Armed Forces perform tasks assigned to an organ of civil government, or (b) when the Armed Forces perform tasks assigned to them solely for purposes of civilian government.” However, the law also allows the president “to use military force to suppress insurrection or to enforce federal authority,” CRS has found.”
According to John Kelly, the directive was signed because there is a necessity for additional authorities because of “credible evidence and intelligence” have indicated that the thousands of migrants who have now made their way to the U.S. checkpoint near Tijuana, Mexico, “may prompt incidents of violence and disorder” that could threaten border officials.
Trump has been trying for months to use the military to seal the US-Mexico border, because he has been unsuccessful in persuading the Congress to fully fund a border wall. Thus, he has sought to make the military’s border presence more aggressive and suggested that he might send as many as 15,000 US troops to the border.
In October, just before the mid-term elections, Trump told troops they could consider migrants throwing rocks at them the use-of-force equivalent of migrants threatening them with firearms. Under current military rules of engagement, that would authorize a return of deadly force. The US President later backtracked on his comments saying that he never directed troops to shoot migrants and that Customs and Border Protection would take the lead in any such scenario.
This development contradicts an early report by the Military Times which cited the emergence of news that the Pentagon may bring some forces home several weeks after they were dispatched at the border. According to the incoming chairman of the House Armed Services Committee the operation was racially motivated, had politicized the military, and called for the troops to be pulled back home.
“The reports that President Trump is planning to withdraw some of the troops he sent to the border two weeks ago indicate just how empty, demagogic and racially motivated this political stunt was,” said Rep. Adam Smith, D-Wash. “It appears to be an admission that there was no justification for the mission in the first place. It was not a respectful use of our military to take service members away from their duties and send them to the border as politicized props, and President Trump should not have done it.”
On November 19th, Customs and Border Protection closed the San Ysidrio border checkpoint after receiving reports that migrants were planning to approach and overcome it en masse.
This AM, all of #SanYsidro Port of Entry's northbound lanes were temporarily closed to initiate additional port hardening efforts after @CBP officials were notified that a large # of caravan migrants were planning to rush the border in an attempt to gain illegal access to the US.
— Sec. Kirstjen Nielsen (@SecNielsen) November 19, 2018