President Donald Trump is clearly eager to implement hard line immigration and border security policies, including his signature promise to build a new border wall, and now says he will order the U.S. military to help secure the border with Mexico. Though his exact plans remain unclear and legal hurdles certainly exist, he might be surprised to find that American troops – and not just those assigned to the National Guard – are already supporting domestic law enforcement missions, conducting surveillance on the ground and in the sky and performing construction projects, including those related to the border.
On April 3, 2018, Trump reiterated to reporters his desire for the U.S. military to take an active role at multiple events. Previously, in March 2018, the president called for using defense funds to pay for border wall after Congress passed an omnibus spending bill that included little money specifically for immigration or border security issues. By the end of the month, the Pentagon was reportedly drafting potential options for how such an arrangement might work.
“I spoke with [Defense Secretary James] Mattis, we're going to do some things militarily,” Trump said during a lunch with the heads of the Baltic States of Estonia, Latvia, and Lithuania. “Until we can have a wall and proper security, we're going to be guarding our border with the military. That's a big step.”
He has not yet explained how the military could be involved, but there are already mechanisms in place that the Pentagon and the various service branches regularly use to get out on the border. A small, obscure office in El Paso, Texas called Joint Task Force-North (JTF-N), is responsible for reviewing and managing requests for military support on American soil from law enforcement agencies at the federal, state, and local levels and in coordination with tribal authorities on Native American reservations.
Now, these requests can’t be for anything at all, such as asking for battery of howitzers to shell drug traffickers. They have to fall into one of a number of well established categories that include helping repair vehicles and equipment, information technology and other administrative support, and the loaning of certain types of advanced systems, such as surveillance tools and communications devices.
Military units, or private companies under contract to military commands, can provide actual military support, as well. Predominantly these missions take the form of providing intelligence, surveillance, and reconnaissance assets on the ground, at sea, or in the air – including unmanned aircraft and remotely operated sensors – moving personnel and materiel rapidly across long distances or to remote locations, and engineering services, such as building roads, bridges, barriers, and outposts.
If you think this puts very narrowly defined limits on what the U.S. military can do domestically, that really isn’t the case. It’s definitely true that a lot of the work is relatively mundane, such as adding military mechanics to a motor pool or having combat and civil engineers clear paths or erect towers.
But U.S. Army ground reconnaissance units, dismounted or traveling in Humvees or Strykers, have also patrolled up and down the border using electro-optical and infrared surveillance systems to keep watch. Troops man tactical air surveillance radars to monitor for low-flying aircraft and other similar threats. Intelligence analysts and linguists pore over various pieces of information and intelligence products.
The U.S. military treats many of these activities as effectively training exercises, as well, since the units in questions are likely to be headed off in the near future to perform similar missions in Afghanistan or Iraq and Syria. Watching for small groups of individuals in austere areas along the Mexican border is good preparation for doing the exact same thing in very similar terrain overseas.
And, as noted, it’s not just actual U.S. military units performing these tasks. JTF-N sometimes coordinates with different services to hire contractors to provide various services just as they might in a combat zone.
Between 2008 and 2013, private companies flew small, discreet intelligence, surveillance, and reconnaissance aircraft along the border in support of Customs and Border Patrol under at least three separate contracts to the U.S. Army. Documents The War Zone obtained via The Freedom of Information Act show that these programs – known as Big Crow, Big Miguel, and Big Ricardo – involved various planes with U.S. civil registrations carrying at least electro-optical and infrared cameras.
Records describing additional mission equipment, which could include other sensors such as signals intelligence suites or devices to geo-locate or monitor cell phone transmissions, are entirely redacted. Joint Task Force North, Customs and Border Protection, and the Army all declined to respond to questions regarding these activities and whether or not the missions continued after 2013 under a different name.
The records we did obtain show that the Big Ricardo aircraft flew 600 hours along the border between Jan. 1 and May 15, 2013. During that time, the planes assisted in the apprehension of 3,000 suspected criminals and the seizure of more than 45,000 pounds of marijuana. Another 200 individuals got away and JTF-N credited the program with leading another 1,000 to turn back before reaching the border.
Now, the requests JTF-N handles can’t be for help with any law enforcement activity at all, such as chasing down shoplifters or collecting parking tickets, either. U.S. laws and regulations allow U.S. military units to only help out domestically in counter-drug missions, efforts to curtail so-called “trans-national criminal organizations,” and fighting terrorism.
The definitions give a pretty wide latitude for when these labels apply, though. When it comes to border security, drug smugglers and human traffickers generally occupy the same physical space as actors that don’t fall into those categories, such as illegal immigrants, too. Troops monitoring for the approved groups have the authority to report other suspicious individuals even if it isn’t their primary mission.
Still, per the Posse Comitatus Act of 1878, the federal military, or National Guard units acting under the direction of the federal government, cannot directly perform any actual law enforcement activities. The U.S. government generally understands this to mean that troops cannot actually arrest suspected criminals and that their participation otherwise in support of law enforcement activities does not automatically qualify as "executing the law" in violation of the statute.
The sensitive legal nature of the issue does mean that JTF-N has to follow a number of steps to approve requests. The chart below shows the process, but here’s a slightly more simplified explanation of how this works. Law enforcement agencies can ask the task force for support that falls into one of the aforementioned categories, but they have to do so at least 180 days ahead of whenever they want the mission to start.
Once JTF-N approves the request, the National Guard in the state in question then has the right to take on the mission itself, ask for additional federal support, or decline it entirely. In the latter two cases, the task force then solicits federal active and reserve military units to participate.
With the help of their higher headquarters or senior service officials, those units then develop a plan of action and get it approved. Depending on the funding requirements or if there’s a need to waive the unit’s existing training and operational requirements, the final mission may need a sign-off from the Under Secretary of Defense for Policy. Money-wise, depending on the exact nature of the mission, the Pentagon decide to pull from its relatively small multi-million dollar budgets set aside for "counter-narcotics and global threats" or have the law enforcement organization reimburse the appropriate U.S. military component.
All of these regulatory demands need to be met at least a month before the mission’s start date in order to allow for the unit to prepare and eventually deploy. After all that is in order, the military unit heads off to the border – or any other domestic location – to perform the task at hand.
Of course, ordering federal troops to the border through JTF-N isn’t the only option Trump has to get the military onto the border and it might not necessarily be the fastest. The U.S. military could find a legal justification to tap into its emergency construction budget to support work on the border wall or otherwise improve other border infrastructure, such as roads, observation posts, and the removal of obstructions that can block various surveillance systems.
The Pentagon typically only asks for around $10 million in funding for that contingency construction account each year though, and Trump's wall has an estimated price tag of at least $18 billion. The counter-drug and global threat line items are usually less than $1 billion annually, too, and that money supports a host of projects at home and abroad.
Deploying large numbers of National Guard troops in a federal capacity might be another option, but it would be limited by the Posse Comitatus rules to performing the same kind of support missions JTF-N facilitates. Presidents George W. Bush and Barack Obama did just this for years as part of Operation Jump Start and Operation Phalanx, respectively, but weathered criticism that the efforts were overly expensive and ineffective, especially since the troops could not actually perform law enforcement activities.
Governors can also use their own authority, based on state laws, to deploy the National Guard for such similar missions, but in many cases face the same sort of legal restrictions. Only under very specific legal authorizations can federal military personnel actually take on active law enforcement duties, typically to quell domestic unrest.
There is always the possibility the U.S. military could look to reinforce the border protection mission indirectly by performing increased activities outside of the United States where there are different legal restrictions. Various branches already perform these sort of international counter-narcotics operations throughout Latin America and the Caribbean and can do so even when operating from bases within the United States.
Again, U.S. forces tasked with this missions focus primarily on aerial and land-based surveillance and reconnaissance activities, though they also conduct training and civil construction type activities. Regardless, it is still illegal for those forces to detain and arrest criminals though, and they have to work closely with the US Coast Guard, the State Department, federal law enforcement agencies, and foreign partners who do have that authority.
But whatever legal and functional mechanisms the Trump administration might employ to put military personnel on the border, the truth is that they will be in addition to those that are already there and will continue to be in the future.
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