Continuing in its recent practice of wasting taxpayer dollars on non-existent threats, the Trump administration issued an executive order late yesterday authorizing the active-duty troops that the president deployed to the southern border in a politically motivated scare tactic immediately before the midterm elections to take on law enforcement duties and use lethal force, if necessary.
According to The Military Times, the authorization was signed by White House Chief of Staff John Kelly rather than President Trump himself, who left Washington D.C. early for the holidays to spend his Thanksgiving golfing at his Mar-a-Lago resort in Florida, and was described as a “cabinet order,” a previously unused designation for executive branch orders.
The order is likely to face legal challenges since it stands in direct opposition to the terms of the Posse Comitatus Act, a 19th- century federal law that restricts military participation in law enforcement activities unless Congress specifically authorizes it, preventing direct contact with civilians, including immigrants.
The move is also likely to revive questions about the huge expenditure of federal funds behind the deployment, particularly in light of the report yesterday in The New York Times detailing a recent internal Homeland Security Department document that concluded that American border guards face a “minimal” risk of facing violence from refugees, no matter how much Trump ratchets up his fear-mongering rhetoric.
The order issued by John Kelly allows the approximately 5,900 active-duty “Department of Defense military personnel” to “perform those military protective activities that the Secretary of Defense determines are reasonably necessary” to protect border agents, including “a show or use of force (including lethal force, where necessary), crowd control, temporary detention. and cursory search.”
According to The Military Times:
“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.”
Despite that last exception, Defense Department officials say that the language used in the order was carefully constructed to avoid violating the bedrock legal restrictions outlined in the Posse Comitatus Act. While the law was initially enacted to prevent states from being occupied and controlled by federal troops, it has in practice evolved into a rule that prohibits the president from using the armed forces from conducting any types of domestic crowd control or law enforcement, ensuring that the U.S. military is not used to control or defeat American citizens on U.S. soil.
Given the president’s proven disregard for the rule of law and his status as Commander-in-Chief of the nation’s armed forces, any violation of the Posse Comitatus Act is a major cause for concern, particularly when he makes comments promising a “war-like posture” if the newly-elected Democratic House Of Representatives begins to investigate him.
With Trump already used to rallying his base into acts of violence like the attempted assassination of the entire Democratic leadership with mailed pipe bombs and the assault on a Pittsburgh synagogue, allowing him the power to order troops to deploy on U.S. soil is a major turning point that the country may never be able to survive as a democracy.
Follow Vinnie Longobardo on Twitter.
Original reporting by Tara Copp at The Military Times and by Ron Nixon, Helene Cooper and Thomas Gibbons-Neff at The New York Times.