Rhetoric and reality may well be heading for a meeting at the southern border, and if President Trump isn’t very careful it could cause problems for his administration, and the country, far beyond the politics of immigration.
President Trump’s use of US military troops on the border is not anything new. Every president since Reagan has used the military at the border, both active duty and National Guard troops through cooperation with the states. But this latest version of border theater is starting to shape up as much more than just flexing by the president on security and immigration issues.
After weeks of troops assisting with border related tasks, publicized photos and videos of fresh concertina wire at border locations are becoming prominent in news reports. Those photos are needed for the PR side of things because the troops assigned to the border, mostly engineers, logistics, supply, and other supporting personnel along with some Military Police and other units, are not allowed to engage in any law enforcement activities. Despite the rhetoric from the White House and surrogates, military commanders on the ground and at the Pentagon made it clear that no uniformed troops would have any interaction with suspected illegal immigrants at the border or anywhere else, and their mission was to free up customs and border patrol officers for the law enforcement side while they assisted in support. The military can make such statements because despite what is said with words, there is very strict law involved here, and the military is very cognizant of it.
The administration decided that wasn’t good enough. After an executive order regarding asylum applications was stayed in federal court earlier in the month, the president through Chief of Staff John Kelly issued another declaration on Tuesday:
The memo, dated Tuesday and signed by White House chief of staff John Kelly, says troops at the border “may perform those military protective activities that the secretary of defense determines are reasonably necessary to ensure the protection of federal personnel, including a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search.”
“The deployed military personnel shall not, without further direction from you, conduct traditional civilian law enforcement activities, such as arrest, search and seizure in connection with the enforcement of the laws,” says the memo, which was obtained by CBS News national security correspondent David Martin.
The Military Times first reported that such a memo existed, and Newsweek later obtained the memo written by Kelly, and another one signed by Mr. Trump.
This isn’t the first time the White House has pushed for such a move. The Pentagon had already rejected a request for similar authorization from DHS Sec Nielsen to use troops for law enforcement purposes. The reporting on how this latest memo came to be became even more interesting when details of the previous day’s meeting about the subject began to emerge from Politico:
Several White House aides and external advisers who have supported the president’s hawkish immigration agenda attended the Monday meeting, which devolved into a melee pitting two of Trump’s embattled aides, White House chief of staff John Kelly and Department of Homeland Security Kirstjen Nielsen, against other attendees, according to three people briefed on the exchange.
Kelly and Nielsen argued against signing the declaration, which granted the military broad authority at the border, telling the president that the move was beyond his constitutional powers. They were vocally opposed by, among others, senior policy adviser Stephen Miller; Chris Crane, president of the National Immigration and Customs Enforcement Council; and Brandon Judd, president of the border patrol union. Also present was Vice President Mike Pence, who did not take a stand on the issue, according to one of the people briefed on the debate.
Kelly and Nielsen eventually came around to the president’s position, and the bitter dispute ended Tuesday evening when Kelly, on Trump’s orders, signed a Cabinet declaration granting the military the disputed authority. The move ran afoul of the guidance offered by the White House counsel, Emmet Flood, who cautioned that it was likely to run into constitutional roadblocks, according to a second source familiar with the conversations.
This order, like almost all of President Trump’s executive orders before, will no doubt be challenged in court. But the president has a larger problem looming if he remains insistent on his present course. It is not only legal and constitutional concerns at stake in this latest drama; it also has the potential to run him afoul of his own Secretary of Defense.
On Wednesday, during his own press gaggle, Sec. Mattis went into great detail, including a history lesson and personal experiences, about what the military can and cannot do along the border:
They are deployed in support of the Department of Homeland Security and the Customs and Border Police — Border Patrol. Their job includes supporting crowd control. That’s when you see Jersey barriers being forklifted into place or nearby so we can close the port of entry if someone tries to force it — force their way through. It’s concertina wire, it’s — it’s putting the stuff in, it’s moving their troops around using our helicopters, in some cases our C-130s if it’s longer legs, we’ll use the — the C-130 airplanes for that, helicopter for — more for local movement.
The one point I want to make again is we are not doing law enforcement. We do not have arrest authority. Now the governors could give their (National Guard) troops arrest authority. I don’t think they’ve done that, but there are — is no arrest authority under Posse Comitatus for the U.S. federal troops. You know, that can be done but it has to be done in accordance with the law, and that has not been done nor has it been anticipated.
The — the president did see the need to back up the — the Border Patrol, and we received late last night an additional instruction authorizing implementation — to implement additional measures. We’re sizing up what those are.
Someone didn’t tell the president, or more likely he is only hearing what he wants to hear from his meetings on the subject:
President Donald Trump said Thursday he has authorized American troops on the US-Mexico border to “use lethal force” if necessary against an approaching group of migrants while also threatening to close “the whole border.”
Trump, who was speaking with military members and reporters at Mar-a-Lago, also said there “certainly could” be a government shutdown over border wall funding in December.
“If they have to, they’re going to use lethal force. I’ve given the OK,” Trump said. “If they have to — I hope they don’t have to.”
“I have no choice,” Trump said, and, without providing evidence, added, “You’re dealing with a minimum of 500 serious criminals” and “rough people.”
Actually, President Trump has myriad choices available to him. Troops directly engaging the migrant caravan isn’t one of them, and certainly firing into unarmed civilians of any nationality, whether they are throwing rocks or not, definitely isn’t.
Setting aside the mind-numbing and never-ending “should President Trump be taken literally when he says things” debate, it might be useful to compare and contrast it to what Sec. Mattis is saying. Unlike the president, Mattis’ record and long career of service is one of saying exactly what he means and then following through with it.
Trump’s assertion that he has “given them the OK” for use of force is not for the whole border, but only for the instances in which Border Patrol or other federal personnel are in imminent danger, and that, according to Mattis, would be “Probably M.P. — unarmed M.P.s with — with shields, batons, no — no firearms.”
“No firearms?” the reporter repeated to this explanation. After all, the president, in his own unique speaking style emphasized “lethal force” when discussing it. And, pointed out another reporter, a marine corporal had shot and killed an 18-year old goat herder in 1997 at the border.
“They’re not even carrying guns for Christ’s sake,” replied Mattis before breaking down the history of Clinton, Bush, and Obama each sending troops to the border at various times, including Mattis himself during the Clinton-era “Gatekeeper” operation.
As for the politics of immigration and border enforcement, the retired Marine general also managed a better, and more accurate, answer than the president did.
We’re a welcoming country, legally as you come in. But it is — frankly, it’s — it’s up to the American people and their Congress what the law says.
And the Border Patrol is charged with carrying out the law, it’s that simple. So people who have the responsibility for doing this can’t say, well, we’re okay with allowing illegal to happen.
So the American Congress, the American — for the American people, write the law, we carry out the law and that’s what Border Patrol is doing. I was just down there. These are great guys, I’ll tell you. They have a very difficult job and they’re carrying a heavy load with a country that, right now, has been unable to-date to deal with a legal accommodation for how we’re going to address immigration into this country.
This is Congress’s responsibility. And down on the border are young men and women…that have got to try to carry out the law as it’s written right now.
It’s the kind of answer you would expect from a lifer Marine, but it also shows the problem with the president’s current approach. Trump saying “I have no other choice,” rings hollow and hypocritical when his administration, despite running on immigration and border enforcement themes, made little effort to push legislation through a congress controlled by his own party. With a lame-duck session unlikely to do anything before the end of the year, and an incoming Democratic House majority looming in January, Trump will no doubt claim victimhood and continue with pushing his agenda through executive means. But such a situation is just as much his fault as Congress’s.
This paints President Trump into a corner of his own making, where issuing executive orders such as this week’s that are highly questionable in legality will bring not only legal challenges but opposition from administration officials themselves. Mattis, as he well knows, serves at the pleasure of the president, and if Trump continues to insist on pushing the limits of his presidential powers, there could well be more changeover in an administration already setting records for turnover. DHS Sec. Nielsen and CoS Kelly are always at the top of such a list, and Sec. Mattis has been rumored to be on the outs with Trump personally. While the current strategy of using troops in support of DHS as described by Mattis is par for the course, if President Trump really does have visions of uniformed troops physically intervening with the migrant caravans or any other immigration issues, things will come to a head and not just in court challenges.
Matters of authority and law are, or at least should be, far bigger issues than just the current political debate of the day. No matter how fiery the internal debate before Tuesday’s order was, once the president says “Do this,” Kelly and Nielsen either had to do it or resign. They both chose, in this case, to do it. Mattis hinted as much when asked about receiving the directive signed by Kelly, quipping “(he) has the authority to do what the president tells him to do.” But pushing much further, or any further, with regard to troop usage on the border, will be touching the bright red line of posse comitatus. “There’s no violation of Posse Comitatus, there’s no violation here at all. We’re not going to arrest or anything else. To stop someone from beating on someone and turn them over to someone else,” Mattis told reporters. Then after confirming that “The president has delegated that to me, yes,” with regard to troops using force at the border, “and at that point, things like posse comitatus and that sort of thing obviously are in play. So we’ll stay strictly according to the law.”
With President Trump increasingly under fire and continually thwarted in his executive actions in court, administration officials saying “strictly according to the law,” will be more important to the country than ever. It is probably a matter of when, not if, such sentiments become unbearable to President Trump in a top level cabinet official such as the Secretary of Defense. But conflict with Mattis would be a huge mistake by the president. With his popularity among the troops already underwater, forcing out someone who is as nearly worshiped by the defense community as Mattis is on something as clear cut as obeying lawful orders, or, if it comes to it, not obeying an unlawful one, would have repercussions far beyond the news cycle. Make no mistake; foreign adversaries have varying opinions on President Trump, but they fear and respect Mattis, and knowing the man nicknamed long ago “Mad Dog” would helm any military response should it come to it does plenty in keeping the wolves away. Beyond that, with John Kelly clearly capitulating to the president more and more lately and rumored to be on his way out, Mattis’ departure would leave the administration with very few apolitical adults left in the room when the decisions that really matter are made. In the turbulent days to come, that would be bad for the country, and all of us.