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President Trump and Secretary of Defense James Mattis [Public domain] via Wikimedia Commons

On the Border, Mattis Once Again the Adult in the Room

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.

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.

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.

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.

Writer. Mountaineer diaspora. Vet. Managing Editor @ordinarytimemag, Writings found @arcdigi & elsewhere. Writing about food, folks, & faith at Yonder & Home

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