November 20, 2018
The White House late Tuesday signed a memo allowing troops stationed at the border to engage in some law enforcement roles and use lethal force, if necessary — a move that legal experts have cautioned may run afoul of the Posse Comitatus Act.
The new “Cabinet order” was signed by White House Chief of Staff John Kelly, not President Donald Trump. It allows “Department of Defense military personnel” to “perform those military protective activities that the Secretary of Defense determines are reasonably necessary” to protect border agents, including “a show or use of force (including lethal force, where necessary), crowd control, temporary detention. and cursory search.”
However an earlier “decision memo” that came to the same recommendations that were contained in the “cabinet memo” was signed by President Trump, according to documents obtained by Newsweek.
Some of those activities, including crowd control and detention, may run into potential conflict with the 1878 Posse Comitatus Act. If crossed, the erosion of the act’s limitations could represent a fundamental shift in the way the U.S. military is used, legal experts said. [Emphasis added]
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.
Military forces always have the inherent right to self defense, but defense of the border agents on U.S. soil is new. In addition, troops have been given additional authorities in previous years to assist border agents with drug interdictions, but the widespread authorization of use of force for thousands of active-duty troops is unique to this deployment.
Each domestic deployment of troops to any of the 50 states or U.S. territories is governed by Chairman of the Joint Chiefs of Staff Instruction 3121.01B, “Standing Rules of Engagement, Standing Rules for the Use of Force by U.S. Forces.” Two annexes, L and N, are specific to Defense Department missions in support of civilian authorities.
However, each mission is unique, and the standing rules for the use of force can be adjusted except for the limitation against active-duty U.S. forces conducting law enforcement on U.S. soil, which is enshrined in the 1898 act.