News reports claim that Secretary of Defense James Mattis will order an additional 800 troops to the U.S. border with Mexico in response to the new migrant caravan.
UPDATE 1 p.m. EDT: Responding to an inquiry from Breitbart News, DOD Spokesman Capt. Bill Speaks (USN) said:
At this time, I can only confirm that the Department of Defense continues to monitor events along the Southwest U.S. border, including the status of the migrant caravan heading north through Mexico. We anticipate receiving a request for assistance (RFA) from the Department of Homeland Security and are currently working with DHS to determine the specifics of our support to Customs and Border Protection (CBP).
DoD is committed to continuing its support to ensure the safety and security of CBP personnel involved in border security operations, increase the effectiveness of those operations, as well as support DHS efforts to stem the tide of illegal entry into the United States.
As of right now, the NG soldiers deployed at our southern border are in a non-LEO situation, they are not allowed to carry firearms and they are not allowed to detain any illegals crossing over, they are there as a support roll only.
The Posse Comitatus Act, which passed after the Civil War to keep federal troops from policing the South, limits federal troops’ deployment on U.S. soil and forbids using them to enforce domestic laws.
18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):
10 U.S.C. § 375. Restriction on direct participation by military personnel The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
Interestingly enough, despite the Posse Comitatus Act apparently forbidding this, DoD policy recognizes two situations where the military may directly assist civil law enforcement in an emergency without any statutory authority. DoD bases this on implicit constitutional authority, specifically:
The inherent legal right of the U.S. Government – a sovereign national entity under the Federal Constitution – to insure the preservation of public order and the carrying out of governmental operations within its territorial limits, by force if necessary.
When there is an unexpected large-scale civil disturbance that local authorities are powerless to stop, local military commanders may intervene to stop widespread loss of life or wanton destruction and restore order to the point that civil authorities can take over, as well to protect federal property and functions if civil authorities cannot.
There’s also National Security Presidential Directive 51, an executive order issued in May 2007 that defines the president’s unilateral authority to maintain continuity of the government in the instance of a “catastrophic emergency.” In the directive, a “catastrophic emergency” is defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government function.”
So the blunt truth is that there are provisions set forth that allow the President to bypass the Posse Comitatus Act, if the President and DoD deem that an event is a catastrophic emergency to United States Civilians.
As of now, the President nor DoD has “officially” stated that the caravans are are an imminent threat.
Chris “Badger” Thomas is a Veteran who served our country as an Army Combat Medic.
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