Will the Military Be Used to Quell "Border Unrest"?
"Border Unrest" has moved away from the borders and seemingly no one in government is courageous enough to do anything about the enormous and still-growing problem, or so it seems.
Will the President invoke the "Insurrection Act," to help stop the chaos on the border?
Part of their job, the Pentagon is always looking for way that the military can be used for this and that situation. For decades "the situation" inside the United States has become chaotic for everyone is aware of the Civil-War-era Posse Comitatus Act that prevents the military from operating within the United States.
The original 1878 Posse Comitatus Act was indeed passed with the intent of removing the Army from domestic law enforcement. Posse comitatus means “the power of the county,” reflecting the inherent power of the old West county sheriff to call upon a posse of able-bodied men to supplement law enforcement assets and thereby maintain the peace. Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of the Reconstruction era, and to ensure that any lingering sentiments of rebellion were crushed. However, in reaching those goals, the Army necessarily became involved in traditional police roles and in enforcing politically volatile Reconstruction-era policies. The stationing of federal troops at political events and polling places under the justification of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original national defense mission. The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its role of defending the borders of the United States.
To understand the extent to which the act has relevance today, it is important to understand to whom the act applies and under what circumstances. The statutory language of the act does not apply to all U.S. military forces. While the act applies to the Army, Air Force, Navy, and Marines, including their Reserve components, it does not apply to the Coast Guard or to the huge military manpower resources of the National Guard. The National Guard, when it is operating in its state status pursuant to Title 32 of the U.S. Code, is not subject to the prohibitions on civilian law enforcement. (Federal military forces operate pursuant to Title 10 of the U.S. Code.) In fact, one of the express missions of the Guard is to preserve the laws of the state during times of emergency when regular law enforcement assets prove inadequate. It is only when federalized pursuant to an exercise of presidential authority that the Guard becomes subject to the limitations of the Posse Comitatus Act.
The intent of the act is to prevent the military forces of the United States from becoming a national police force or guardia civil. Accordingly, the act prohibits the use of the military to “execute the laws.”[4,5] Execution of the laws is perceived to be a civilian police function, which includes the arrest and detention of criminal suspects, search and seizure activities, restriction of civilian movement through the use of blockades or checkpoints, gathering evidence for use in court, and the use of undercover personnel in civilian drug enforcement activities.
The federal courts have had several opportunities to define what behavior by military personnel in support of civilian law enforcement is permissible under the act. The test applied by the courts has been to determine whether the role of military personnel in the law enforcement operation was “passive” or “active.” Active participation in civilian law enforcement, such as making arrests, is deemed a violation of the act, while taking a passive supporting role is not. Passive support has often taken the form of logistical support to civilian police agencies. Recognizing that the military possesses unique equipment and uniquely trained personnel, the courts have held that providing supplies, equipment, training, facilities, and certain types of intelligence information does not violate the act. Military personnel may also be involved in planning law enforcement operations, as long as the actual arrest of suspects and seizure of evidence is carried out by civilian law enforcement personnel.
The Posse Comitatus Act was passed in the 19th century, when the distinction between criminal law enforcement and defense of the national borders was clearer. Today, with the advent of technology that permits weapons of mass destruction—chemical, biological, or nuclear weapons—to be transported by a single person, the line between police functions and national security concerns has blurred. As a matter of policy, Western nations have labeled terrorists “criminals” to be prosecuted under domestic criminal laws. Consistent with this, the Department of Justice has been charged as the lead U.S. agency for combating terrorism. However, not all terrorist acts are planned and executed by non-state actors. Terrorism refers to illegal attacks on civilians and other nonmilitary targets by either state or non-state actors. This new type of threat requires a reassessment of traditional military roles and missions along with an examination of the relevance and benefits of the Posse Comitatus Act.
With tens of millions of illegal aliens and others marching in the streets and threatening more disturbances and a growing restive population, unhappy raised gas prices, the problems on the border, unemployment, it might be wise for the Pentagon to make a plan.
The Pentagon is looking at ways the military can help provide more security along the U.S. southern border, defense officials said Thursday, once again drawing the nation's armed forces into a politically sensitive domestic role.
Paul McHale, the assistant secretary of defense for homeland defense, asked officials this week to come up with options for the use of military resources and troops — particularly the National Guard — along the border with Mexico, according to defense officials familiar with the discussions. The officials, who requested anonymity because the matter has not been made public, said there are no details yet on a defense strategy.
The request comes as some Southern lawmakers met this week with White House strategist Karl Rove for a discussion that included making greater use of National Guard troops to shore up border control. The Senate is poised to pass legislation this month that would call for additional border security, a new guest worker program and provisions opening the way to eventual citizenship for many of the estimated 11 million illegal immigrants in the country.
"The Texas delegation is very concerned about the border and are pushing urgency," said Rep. Kevin Brady, R-Texas, who joined other Texas Republicans in a meeting with Rove this week. He said Rove was "very forthright" about border projects that Homeland Security is starting up, its current projects and what the needs are.
Rep. Ken Marchant, R-Texas, who also attended the meeting, said the lawmakers left "very encouraged."
Currently, the military plays a very limited role along the borders, but some armed forces have been used in the past to help battle drug traffickers. National Guard units, meanwhile, have been used at time by Southern and Western governors to provide assistance at border crossings.
Arizona Gov. Janet Napolitano said the military help "is basically what she has been asking for," spokeswoman Jeanine L'Ecuyer said. Napolitano has been asking the Pentagon to send more National Guard troops — but not regular military — to confront illegal immigration from Mexico. About 170 National Guard troops are helping in such efforts in the state now.
Similarly, Texas Gov. Rick Perry hadn't specifically requested assistance from the military, but he liked the idea, according to spokeswoman Kathy Walt. "The assets are stretched thin, at least in Texas, because of the war on terror," she said. "The governor would welcome any effort by the federal government in meeting its responsibility to secure our border."
Defense officials said they have been asked to map out what military resources could be made available if needed — including options for using the National Guard under either state or federal control. The strategy would also explore the legal guidelines for use of the military on domestic soil, the officials said.
On Capitol Hill on Thursday, the House voted 252-171 to allow Defense Secretary Donald H. Rumsfeld to assign military personnel under certain circumstances to help the Homeland Security Department with border security. The House added the provision to a larger military measure.
The National Guard is generally under the control of the state governors, but Guard units can be federalized by the president, such as those sent to the wars in Afghanistan and Iraq. Active duty military cannot be used for law enforcement unless the president specifically decides to exercise that option.
Officials wrangled over the use of the active military during Hurricane Katrina, with some suggesting that troops be used for law enforcement to quell violence and looters in New Orleans. There were also suggestions that Bush federalize the National Guard there — removing them from state control, but state officials opposed that proposal. In the end, neither move was made.
At its peak during Katrina, the military had about 22,000 active-duty troops in the Gulf region, along with about 50,000 National Guard troops operating under the state governors' command. The active- duty military provided ships, helicopters, search-and-rescue aid, evacuations and other assistance.
In the aftermath of the hurricane, Bush asked Pentagon officials to review ways to give the military a bigger role in responding to major disasters. But officials are somewhat reluctant to make major changes, leery of the image of armed military troops patrolling U.S. cities.
Under the Civil War-era Posse Comitatus Act, federal troops are prohibited from performing law enforcement actions, such as making arrests, seizing property or searching people. In extreme cases, however, the president can invoke the Insurrection Act, also from the Civil War, which allows him to use active-duty or National Guard troops for law enforcement.
Associated Press writers Suzanne Gamboa and Liz Sidoti contributed to this report.
Sheriff Joe Arpaio reflects the growing frustration of Americans with the border situation and the apparent non-response by the Federal Government to the already huge problem that is no longer confined to the border. Some, even the Mexican Government that hashired an attorney as they naturally condemn Arpaio's actions, but at least his tangible actions show that someone in government is willing to try.
Bermudez said Arpaio is "a good criminal sheriff, but he needs to go out there and find criminals. He wants to go after the poor, undocumented immigrant who is hungry and thirsty in the desert. That is totally inhumane."
In part, I agree. Arpaio should go after smugglers AND those employers in his county that are attracting the illegal aliens and all their enablers wherever he finds them: in the church, in schools, in homes, in the work force. Instead of pointing fingers are who is responsible, we should look in the mirror as individuals and small businesses are guilty of hiring the majority of these invaders.
Americans want difinitive and tangible evidence that their government is protecting them and working in the best interest of American citizens, not the "new citizens" that some are attempting to recruit.