By Daniel Lao-Talens and Tim Tsai
Daniel Lao-Talens is a Captain in the U.S. Army and is still on active duty. Tim Tsai served as a First Lieutenant in the U.S. Army and separated in 2016. They are both Master of Public Policy candidates at the Goldman School of Public Policy and Editors of the Berkeley Public Policy Journal. Any opinions expressed in the article below are entirely their own and do not reflect the official position of the U.S. Army or the Department of Defense.
The recently announced military deployment to the U.S.-Mexico border, Operation (OP) Faithful Patriot, has already become a political football that both parties have sought to exploit ahead of the midterm elections. Regardless of the politics, OP Faithful Patriot is an actual military operation and deserves to be explained on its own merits. This article serves to provide a non-partisan, educational look at the operation, its stated military goals, the legal context in which it is being executed, and the possible issues that it raises for the personnel tasked with its execution. This article also seeks to inform the general public about the origins of the military’s traditional reluctance to police civilians and illustrate how these traditions have been integral to the identity of the U.S. Armed Forces since the very beginning.
Constitutional Origins of Domestic Military Policing in the U.S.
Historically, Americans have been suspicious of maintaining a standing army and are reluctant to use the military to enforce civilian laws. The Congressional Research Service (CRS) has done an excellent job summarizing the history of this issue in their 2012 report. The CRS researchers note that the Declaration of Independence and the Constitutional Convention set the tone for the role of domestic military policing in the United States. The founders listed 27 offenses as justifications for their rebellion against Britain in the Declaration of Independence. Three of these offenses were military in nature: keeping standing armies amongst the people without the permission of the legislature, holding military law independent from and superior to civilian law, and quartering troops in civilian residences. The Constitution itself does not expressly prohibit the use of the military for domestic purposes, but did implement safeguards to keep the military subordinate to the civilian government, such as making the president — a civilian — the commander-in-chief of the army and making the army dependent on Congress for its funds.
While the founders were suspicious of military rule, they also understood that sometimes domestic use of military force would be necessary. The common reading of the “necessary and proper” clause of the Constitution and the arguments put forth by Alexander Hamilton in Federalist Paper No. 29 imply that the federal government does have the power to call upon the armed forces to enforce domestic law when the circumstances dictate. Furthermore, the Calling Forth Act of 1792 — which George Washington used to put down the Whiskey Rebellion in 1794 — still exists today in Title 10 of the United States Code, Chapter 13: Insurrection.
Does the Posse Comitatus Act Apply to OP Faithful Patriot?
Most political commentators and even OP Faithful Patriot’s commanding officers cite the Posse Comitatus Act of 1878 (known in its modern incarnation as 18 U.S.C. Section 1385) as the primary law that governs the OP Faithful Patriot deployment, but the law’s relationship with this deployment is incidental at best. Military law scholars Gary Felicetti and John Luce wrote in the Military Law Review Journal in 2003 that the confusion over the law stems from a misunderstanding of the legislative intent behind it.
In the early years of U.S. history, the term “posse comitatus” meant the right by which federal marshals — and various other law enforcement entities in the U.S. — ordered civilians and bystanders into their service to restore order and enforce civilian laws. Anyone who has ever watched a Western movie will recognize the phrase “putting together a posse” referring to the sheriff rounding up citizens to chase down bandits and outlaws. Prior to 1878, posse comitatus meant that local officials could even draft federal troops to put down rebellions or restore order after disasters. Attorney General Caleb Cushing summarized this interpretation of posse comitatus in 1854 with the Cushing Doctrine, which simply stated that federal troops may be drafted into “posses” and must obey the orders of civilian law enforcement officials. Civilian law enforcement officials used this doctrine to justify the use of federal soldiers and sailors to enforce the Fugitive Slave Act shortly before the Civil War.
After the Civil War, federal troops occupying the former Confederate states enforced freedmen’s rights and put down periodic insurrections by the KKK and other anti-abolitionist groups. Local law enforcement officials, who were usually Republicans elected by coalitions that included freed slaves, often used posse comitatus to deputize federal troops and use them to protect freedmen and help maintain security at polling places.
Following the contentious presidential election of 1876, Democratic representatives from the newly re-inducted Confederate states and Republicans tired of maintaining the North’s occupation passed the Posse Comitatus Act in 1878 as a compromise to gain Congressional Democrats’ support for various funding bills. Federal troops withdrew from the South not long after. Without the protection of federal arms, anti-Reconstruction Democrats used a combination of intimidation and violent voter suppression to regain majorities in the local governments, reasserting their authority over the freedmen and ushering in the era of Jim Crow.
The Posse Comitatus Act also conspicuously leaves out the Navy. In fact, in United States v. Walden (1974), the court held that the act does not apply to the Navy because the text explicitly does not mention the Navy. However, the Navy voluntarily restricts its civilian law enforcement activities and leaves it to the Coast Guard in most cases.
Felicetti and Luce argue that the Posse Comitatus Act was never meant as a check on the military; it was meant to keep civilian authorities from enlisting federal forces for help in civilian policing without permission from the President or Congress. There are numerous examples of this being the case. President Rutherford B. Hayes deployed the military to the Arizona territory to police the frontier the same year he signed the Posse Comitatus Act. President Eisenhower skirted the Posse Comitatus Act in 1957 when he signed an executive order to send the 101st Airborne Division to enforce the Brown v. Board of Education decision in Little Rock, Arkansas. He justified doing this by declaring that resistance to the integration of the school was an insurrection, citing the same law which authorized Washington to crush the Whiskey Rebellion. This action, and the fact that Eisenhower was legally able to do this, imply that the insurrection laws present since the nation’s founding allow the President to overstep the Posse Comitatus Act by declaring any event an insurrection, and if Congress concurs with the President’s judgment and authorizes the funding for the deployment, then the Posse Comitatus Act is practically useless.
The one-paragraph law also doesn’t provide guidance for how the military should interact with law enforcement when there are legitimate avenues for cooperation, nor does it provide clear enough guidelines for when the military is exempted from the limitations of the act. In short, The Posse Comitatus Act is an arcane relic of a law under which there have never been any prosecutions; yet for some reason people continue using it as a catch-all reference for restrictions placed on the military by an entirely different set of laws and regulations.
What Laws Actually Apply to OP Faithful Patriot?
Since President Trump has not legally declared the border situation an insurrection and isn’t invoking those laws to justify the deployment, we must look at a different set of laws to determine what the troops at the border can or cannot do to support law enforcement.
The modern understanding of the military’s relationship with civilian law enforcement entities begins with the 1982 and 1989 Defense Authorization Acts, which increased the military’s involvement with law enforcement to stop drug smuggling. These changes are codified in Title 10 of the United States Code, Chapter 15, sections 271-284, which defines what kind of support the military may give to civilian law enforcement agencies. The allowed activities range from providing equipment and training to sharing intelligence. There is even a section explicitly authorizing deployments to the southern border. The code also states that the military may not participate “in a search, seizure, arrest, or other similar activity” and imposes various other limitations to the military’s cooperation with law enforcement. The only branch of the military exempted from this rule is the Coast Guard, which has this special status due to the unique nature of its structure and mission set.
Felicetti and Luce offer three other laws, rules, and regulations besides Posse Comitatus that legally place restrictions on operations like OP Faithful Patriot:
- Military personnel inherently have no arrest authority under U.S. law as upheld under United States v. Di Re. There are some exceptions to this rule, but in order to arrest people at the border, military personnel must be operating under Congressional authorization. This is further reinforced in 10 U.S.C. Section 275. No arrest authority has been authorized by Congress for OP Faithful Patriot as of this writing. Any migrant arrested by a service member on the border without explicit authorization from Congress could never be charged with a crime because he/she wasn’t lawfully arrested by an authorized law enforcement officer.
- 31 U.S.C. Section 1301 stipulates that only money that has been duly appropriated by Congress may be paid out, and may only be used for the expressed purposes of the appropriation. The 2016 National Defense Authorization Act allows for up to $75 million in spending for deployments by active duty troops to the border. It isn’t clear exactly how this operation is being funded, but the funds are most likely coming from this appropriation. This means that Congress may pull the plug on Operation Faithful Patriot at any time if they choose by simply passing a law rescinding their appropriation of funds for these activities authorized in the 2016 NDAA.
- Standards of Ethical Conduct published by the Office of Government Ethics (OGE) provide guidelines for how DoD personnel may be used in policing activities. They are far more detailed in their guidance than the Posse Comitatus Act and have a long history of prosecutions to set legal precedent should they be violated. Additionally, the DoD has strict regulations restricting the use of military forces for civilian policing which have force of law for service members under the Uniform Code of Military Justice. These regulations can be overruled by the President, but at the time of this writing there are no announced changes to these guidelines. Therefore, troops sent to the border will have instructions and rules of engagement (ROE) which should, in theory, prevent them from even interacting with any migrants or protesters, much less police them.
Who are the troops going to the border?
As a reflection of the support role that the military will be assuming on the border, the vast majority of the units being deployed are non-combat units. This means that while individual Soldiers may be armed, their units are not generally designed to fight or destroy an enemy. Instead, the units comprise a wide variety of functions such as air and ground transportation, medical care, construction, and logistics management. The Military Times has a list of these units, but additional insight into what each provides is necessary to help provide a clear picture of the operation. We have recreated the list below, but have rearranged the list to show the units by branch and specialty rather than place of origin.
The units deploying in support of OP Faithful Patriot will likely be structured under a “task organization” format, where each unit will be placed into a hierarchy based on their specific function, mission, size, and location. OP Faithful Patriot’s task organization would provide the clearest picture of how these units will be used, but it is likely confidential or in flux as the units are sent to the border. However, looking at the units themselves and the difference between their sizes, levels of responsibility, and specific functions of the units can provide relevant information on what how they will be used.
The current force size of roughly 5,000 Soldiers requires at minimum a Brigade-level headquarters to administratively and operationally manage. A “headquarters” refers not just to the central authority that governs a unit or operation, but also a specific type of military unit that contains the unit/operation commander and their staff. Within the army, a Headquarters and Headquarters Company contains the commanding staff and administrative personnel for a Battalion-level unit or higher, and several are on the list to deploy. Although there are multiple “headquarters” units being deployed, only one of them will be chosen to serve as the overarching authority for the operation. Northern Command (NORTHCOM), the military command that assumes responsibility over North America, may take control of the units deployed. Regardless, only one unit typically serves as the command for an operation, which may mean two additional possibilities for the other headquarters units. The first is that this deployment’s ad hoc nature and mission require that these units deploy in anticipation of more follow-on personnel. The second possibility is that these units were the only ones deemed available and relatively free to send on the mission despite having a diminished operational capacity.
Looking beyond the headquarters units, logistics and engineer units comprise the bulk of the force, which underscores the supporting nature of the operation; the various logistics units will likely be used to transport agents and supplies along the border and the engineers will be responsible for building up barriers and reinforcing the existing border infrastructure. Although they are among the fewest number of units being deployed, the medical and aviation units assume major roles within the operation. The aviation battalion (2nd Battalion [Aviation Assault], 82nd Airborne Division) at full strength contains 30 UH-64 Blackhawk helicopters, which will provide airlift and reconnaissance capability to the Border Patrol and the other units within the operation. The medical units also have a role to play in providing emergency medical services, but their relatively small size restricts the extent of their ability to render aid along the entire length of the border.
The military police units being deployed may appear to be cause for concern, especially given NORTHCOM’s insistence that OP Faithful Patriot would not involve the military enforcing laws. However, military police are often deployed to regulate and provide internal law enforcement for units and commands, so at least some of these military police personnel will be used for that purpose. Beyond that role, they may be used as an ad-hoc security force to augment the military’s self-defense capability or as an additional reconnaissance force to monitor the border.
Military Institutional Resistance to Civilian Policing
A final factor to consider when examining this deployment would be the military’s long and proud tradition of resisting the role of domestic policing.The military teaches this tradition to both enlisted recruits in basic combat training and officer candidates in the academies by using the vignette of George Washington during the Newburgh Conspiracy.
In 1783, the Continental Army, victorious from their battles in the Revolutionary War, camped out in Newburgh, New York while the Congress under the Articles of Confederation argued over how to pay them. The Articles of Confederation provided no reliable means of taxation and, as a result, the federal government at that time couldn’t come up with the funds to pay the soldiers. Several officers in the army grew impatient and hatched a plot to have the army march on Congress and force them to appropriate the funds. Washington put a stop to this with a fiery address to the assembled conspirators and with that action, set the precedent that no matter what, the United States Armed Forces will never interfere with civilian rule unless lawfully authorized by Congress.
As an extension of this golden rule, the military avoids taking on an institutionalized role of national policeman and has actively resisted requests from Congress and the President to take on such missions. In fact, the Pentagon refused several deployments during the course of OP Faithful Patriot which it viewed as placing troops in policing roles. The military has even taken an overly broad interpretation of the Posse Comitatus Act (an act which barely even applies to them) to avoid taking on certain policing duties both at home and around the world. Felicetti and Luce lament that this principle has reduced the military’s effectiveness in the fight against terrorism. Regardless of whether you agree with that assertion or not, the conflict demonstrates how seriously the military takes this norm.
The public needs to understand that noninterference in civilian law enforcement is a proud tradition which is integral to the identity of the U.S. Armed Forces, and that asking the military to take on an active border policing role contradicts over 200 years of tradition. There will be times when the military’s unique skills and capacities will be needed at the border, and existing U.S. law does provide a legal framework for those activities. However, calling for the military to actively arrest people at the border runs counter to this very deeply held value and should be resisted whenever it occurs. It is not enough to rely on those within the military to stand up for this norm and defend it themselves, the public needs to get involved in this discussion. A norm is only a norm if it is actively re-emphasized and enforced whenever there is an infraction.
The public needs to take active interest in OP Faithful Patriot and educate themselves about the relevant laws on the subject and what their armed forces are doing at the border in their name. We hope that this article injects some knowledge and rationality into the discussion which will allow the debate to rise above misleading partisan talking points and petty tribal posturing. The stakes are simply too high.