Too bigoted to fail?
by Tom Sullivan
Image via Army Times.
“Relax. Don’t worry about it, okay?” Defense Secretary James Mattis told Pentagon reporters Wednesday. His troops aren’t even carrying guns, Mattis reminded them.
Mattis responded to press questions about a Military Times report of a “Cabinet order” signed by White House Chief of Staff John Kelly that authorizes lethal force against migrants approaching the southern border. A White House decision memorandum obtained from a Defense Department source bears the same instructions and the signature of the president. Kelly signed the memorandum late Tuesday, reports Newsweek. (The web site has both.)
No violation
As justification, the documents argue “migrant caravans” fleeing gang violence and poverty in Central America represent a national security threat.
The documents reportedly authorize military forces deployed along the southern border to perform “military protective activities” including “a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search … in consultation with the Secretary of Homeland Security.” The document specifies military personnel shall not carry out “traditional civilian law enforcement activities” without further direction.
“There’s no violation of Posse Comitatus,” Mattis continued. “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 — this is minutes, not even hours.” Mattis was quick to add most active-duty troops along the border have no weapons.
Military Times supplies some background on Posse Comitatus:
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.
Civil rights groups were quick to raise objections. Public Citizen filed an immediate Freedom of Information Act request for the Kelly memo. Michael Breen, president of Human Rights First, issued a statement saying, “This legally dubious ‘cabinet order’ creates confusion, undermines morale, and may very well lead to violence.” Breen added, “Americans should be thankful that those currently serving are likely to exhibit more judgment than their commander in chief.”
Mattis last month objected to the use of force on the border to protect border agents, not necessarily on principle but because the Pentagon lacked authority, reports Daily Beast. So the Department of Homeland Security went over Mattis’ head to secure “the potentially lethal military force for which immigration hardliners in the administration had clamored.”
The administration has already suggested deadly force against migrants was acceptable. “Anybody throwing stones, rocks, like they did to Mexico … we will consider that a firearm,” the president said. “I told them to consider it a rifle.” He walked back those comments the next day.
This is a slippery slope tread by an especially slippery administration. Posse Comitatus “is a norm that cannot be allowed to fall,” writes Charlie Pierce at Esquire. There is no insurrection, no national security threat. DHS has identified 270 individuals among the migrants it claims have criminal backgrounds and are thus ineligible for asylum. Newsweek is unable to verify that claim.
The Washington Post reports Mattis now says the cost of Donald Trump’s military deployment to the border will exceed the $72 million estimate released on Tuesday: “All told, the cost of both the active-duty and National Guard deployments looks set to total more than $483 million by the end of this fiscal year in late September 2019.”
Walking right up to the line, stepping over it, and daring someone to push them back is a familiar tactic among hardliners. With these memos, the administration has walked up to another one. Immigration hardliners facing criticism for spending $72 million on an election-year stunt to put the fear of brown-skinned women and children into Trumpers now need a way to justify it. A single Army-issued bullet fired at migrants at the border will do.
Happy Thanksgiving.