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OpEdNews Op Eds    H2'ed 11/19/18

Trump's Military Deployment to the US-Mexico Border Is Illegal

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From Truthout

Troops at the US Border are Stringing Wire and Building Barracks
Troops at the US Border are Stringing Wire and Building Barracks
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Donald Trump's decision to send thousands of troops to the US-Mexican border to intercept migrants who intend to apply for asylum is not just a bald-faced political stunt -- it is also illegal.

Passed in 1878 to end the use of federal troops in overseeing elections in the post-Civil War South, the Posse Comitatus Act forbids the use of the military to enforce domestic US laws, including immigration laws. For this reason, Trump's decision to deploy the military to the border to enforce US immigration law against thousands of desperate migrants from Central America -- who have undertaken the perilous journey over 1,000 miles through Mexico to the US border in order to apply for asylum -- is an unlawful order.

Kathleen Gilberd, executive director of the National Lawyers Guild's Military Law Task Force, told Truthout, "The deployment of US troops to the Southern border is an illegitimate political ploy and a serious misuse of the military. This action casts shame on a government that treats refugees seeking asylum as enemies."

The illegality of Trump's order to the military opens the door to the possibility that service members will resist it: Under the Uniform Code of Military Justice, Nuremberg Principles and Army Field Manuals, service members have a duty to obey lawful orders and a duty to disobey unlawful orders.

Before the midterm elections, pandering to his nativist base, Trump began the deployment of 5,200 active duty troops to Texas, California and Arizona at the southern US border, with the promise of nearly 10,000 more. On October 29, describing the impending arrival of migrants seeking asylum as an "invasion," Trump tweeted, "This is an invasion of our Country and our Military is waiting for you!"

The Trump administration had originally dubbed the military deployment as "Operation Faithful Patriot," but it soon abandoned that name, ostensibly to downplay the law enforcement duties of the military troops. Trump's lawyers invariably realized that using the military to enforce the laws is prohibited by the Posse Comitatus Act.

The Military Is Legally Forbidden From Enforcing Immigration Law

The Posse Comitatus Act forbids the willful use of "any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws." It has been applied as well to the Navy and Marine Corps. The only exception to the Posse Comitatus Act's prohibition is "in cases and under circumstances expressly authorized by the Constitution or Act of Congress."

Defense Department officials told The New York Times that troops deployed to the border would help construct tents and fencing and some would "potentially" operate drones on the border.

Whether the drones are armed or used for surveillance, they would be assisting in the enforcement of the immigration laws.

Moreover, the Los Angeles Times reported, "Black Hawk helicopters equipped with night sensors will be available to ferry Border Patrol personnel 'exactly where they need to be' to 'spot groups' and 'to fast-rope down' to intercept migrants trying to cross the border. Military aircraft will conduct surveillance."

Troops who carry out these functions would also be participating in the enforcement of the immigration laws.

Only in the event of an invasion or insurrection on US soil does the president have the power to order the use of the military within the United States.

There is no invasion or insurrection occasioned by the migrant caravan. In an interview with The New York Times, Adm. James G. Stavridis, former commander of the US military's Southern Command, called out Trump's "fictitious caravan invasion."

Indeed, "Military personnel are legally prohibited from engaging in immigration enforcement, and there is no emergency or cost-benefit analysis to justify this sudden deployment," Shaw Drake, policy counsel for the ACLU Border Rights Center, said in a statement.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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