'Stunt or an attempt to please POTUS': Bizarre report suggests White House is expanding military's 'use of force' at the U.S.-Mexico border
On Wednesday, the Military Times reported that White House Chief of Staff John Kelly had signed a "cabinet order" directing Defense Secretary James Mattis to give the troops stationed at the border in anticipation of the approaching Honduran migrant caravan the authority to use deadly force to protect Border Patrol agents, and to engage in some law enforcement activities like crowd control, detention, and searches.
The order represents yet another show of force by the administration, which has tried to gin up public fear about the caravan as an "invasion" and possibly a cover for terrorists, even though it is not a national security threat. But this new move is bizarre and unsettling on a number of levels.
First, the law enforcement provisions of the order raise questions about the 1878 Posse Comitatus Act, which restricts the military from serving domestic law enforcement functions. Until now, the military has only been serving in a support role, including surveillance and transportation. Mattis gave assurances that the order complies with Posse Comitatus. Retired Army lawyer and Lt. Col. Geoffrey Corn, however, is unconvinced, calling the order "troubling" and noting that "absent the invocation of a law called the Insurrection Act, the president is not supposed to deploy federal active-duty military forces" for law enforcement:
President Trump has issued a new directive to the troops stationed at the U.S.-Mexico border that allows them to use "lethal force" to defend border patrol agents. Federal law, however, restricts domestic military force. @NickSchifrin examines the legality of this directive. pic.twitter.com/spowVKHCOQ— PBS NewsHour (@NewsHour) November 21, 2018
Second, although this order does follow a "memorandum of understanding" signed by the president, some are questioning why Kelly, a White House official with no role in the military chain of command, was the one who signed the order to the Secretary of Defense:
So uh, my understanding is that John Kelly isn’t in the military chain of command. How can he authorize the use of… https://t.co/RVO7s5TOew— southpaw (@southpaw)1542816117.0
In addition to Posse Comitatus concerns, hard to see how John Kelly has the authority to issue any such "order," ev… https://t.co/EuPQriSbKG— Hina Shamsi (@Hina Shamsi)1542816730.0
Third, it is unclear why this order is needed at all. Kelly, a former Marine General and the initial Homeland Security Secretary, has claimed there is "credible evidence and intelligence" that the first group of migrants near Tijuana "may prompt incidents of violence and disorder." But the claim that the situation is dangerous is undercut by the recent report that the Pentagon is preparing to start withdrawing the troops in the coming days. Moreover, even though Mattis claims this order expands his authority to protect border agents, New York Times reporter and former Marine Thomas Gibbons-Neff has pointed out that existing rules already allow troops to use force to protect nonmilitary personnel:
@AaronMehta @TaraCopp Worth noting that the standing rules for use of force for title 10 units already allows prote… https://t.co/PA5iUTgYMr— Thomas Gibbons-Neff (@Thomas Gibbons-Neff)1542814444.0
Dara Lind of Vox has a more cynical theory about why this order was signed: it's yet another political stunt to make Trump feel powerful:
1) DHS is anxious about security. They closed down a bunch of lanes of the San Ysidro port Monday based on reports… https://t.co/HrQMd7bOMQ— Dara Lind (@Dara Lind)1542817635.0
This would certainly make sense, as Trump has openly fantasized about the military using force on migrants. A few weeks ago, Trump said that troops should shoot migrants if they throw rocks, which would be a war crime and which was met with such an uproar that Trump hastily backtracked.