In a move no doubt designed to give his hateful, violent followers a warm tingly feeling, Trump has signed an executive order allowing the thousands of troops at the border to use force and assist in law enforcement duties, which seems a clear violation of the Posse Comitatus law.
The White House late Tuesday signed a memo allowing troops stationed at the border to engage in some law enforcement roles and use lethal force, if necessary — a move that legal experts have cautioned may run afoul of the Posse Comitatus Act.
The new “Cabinet order” was signed by White House Chief of Staff John Kelly, not President Donald Trump. It allows “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.”
There are approximately 5,900 active-duty troops and 2,100 National Guard forces deployed to the U.S.-Mexico border.
Some of those activities, including crowd control and detention, may run into potential conflict with the 1878 Posse Comitatus Act. If crossed, the erosion of the act’s limitations could represent a fundamental shift in the way the U.S. military is used, legal experts said.
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.
The good news is that this depends on the specific orders given by Secretary of Defense Jim Mattis, it isn’t a direct order from Trump. Mattis seems far more squeamish about using the military for such purposes and is quite careful about setting the rules of engagement. I would expect him to allow the use of force only in clear cases of self-defense or to protect civilians. And those rules of engagement are generally taken very seriously by the unit commanders, subordinate officers and enlisted men as well. So hopefully this become of another of Trump’s shouts into the wind with no effect on what actually happens.
Frankly, I think this is just Trump striking the tough guy pose for the benefit of his followers. He loves doing that. If he was a middle manager at some company, he would be exactly the kind of guy who drove a Hummer, thinking it made him look macho when, in reality, it does the exact opposite.