Border Patrol and Customs Agents?
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Recognized as an expert on the Posse Comitatus Act, Brigadier General Joseph Barnes has extensive experience in the Department of the Army’s Office of the Judge Advocate General as Assistant Judge Advocate General in both the civil and military law divisions. General Barnes also worked as a member of the Chief of Staff of the Army’s Transition Team and as the senior legal advisor to the Commander of Forces Command. General Barnes’ experiences include service as a legal advisor to the Army Reorganization Commission following the Goldwater-Nichols Act and as Staff Judge Advocate for the 9th Infantry Division (Motorized). General Barnes received his Juris Doctor from Kansas University School of Law and his Bachelor of Arts in Biochemistry and Physiology at the University of Kansas. He was also a Research Fellow and Distinguished Graduate at the National War College. |
(The views expressed in this commentary are solely the views of the author and do not necessarily represent the views of ANSER or the Institute for Homeland Security.)
For over a century, since Congress first enacted what is now known as the Posse Comitatus Act, federal troops have been prohibited from engaging directly in domestic law enforcement “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Over the years, and for very good reasons, Congress has been sparing in enacting such authorizations, and the Executive Branch and the courts have narrowly construed the constitutionally based authorizations for using soldiers as domestic police.
Apparently, that’s all about to change. According to statements by various officials, the Department of Defense is on the verge of swallowing hard and (very quietly) agreeing to allow 1,600 federal soldiers to deploy as deputized Border Patrol and Customs Service agents at our borders.
This, if true, would be a truly major shift in legal and policy views long held by the Justice Department, the Defense Department, and Congress and would in effect authorize soldiers to do what was first proposed by Representative Deal in the Border Integrity Act of 1995, an act strongly opposed by the Defense Department and rejected by Congress.
So, what’s actually happening? Requests for information from the Defense Department’s Public Affairs Office have been met with stony silence, and neither the Border Patrol nor Customs Service has replied to inquiries about the plan. However, the following story emerges from what little has been released and from information obtained from sources on Capitol Hill and elsewhere.
Under pressure
from the Department of Justice and the Treasury Department, both hard put to
come up with manpower to meet post–
Under federal statutes (not to mention the Constitution), the National Guard is not actually part of the Army or Air Force unless “in actual federal service,” so the Posse Comitatus Act clearly wouldn’t have applied to troops deployed to the border in a state status. So far, so good.
However, this plan hit a snag when the fiscal lawyers nixed the proposal to use the Economy Act to shift money around to pay for the mission. Here, the state status that would have taken the troops outside the limitations of the Posse Comitatus Act also prevented use of the Economy Act, which is limited to reimbursements between federal entities.
The Defense Department, under pressure to find a way to sidestep the Posse Comitatus Act, apparently has decided to do so by stretching a brief two-page letter opinion, written in 1970 by then-Assistant Attorney General Rehnquist. That opinion somewhat tentatively went along with a proposal for the Department of Transportation to deputize federal soldiers as “sky marshals” on U.S. civil aircraft.
It is often said that hard cases make bad law. Is the hard case of needing tightened security along our borders about to make not only bad law, but bad policy as well?
First, the law.
The opinion that the Department of Defense
is apparently relying on relied heavily in turn on the particular wording of
a statute (then section 1657 of title 42 of the US Code, now recodified as section
324 of title 42) authorizing the detail of members of the armed forces to the
Transportation Department to carry out its functions. Significantly, the statute
in effect in 1970 specifically excluded any troops detailed to Transportation
from the strength ceilings imposed by law on the Defense Department. Even more
significantly, the soldiers, while so detailed, were, in the words of
No equivalent statute exists for either the Border Patrol or the Customs Service. However, the position apparently now being taken is that if federal soldiers are placed under the “operational control” of federal law enforcement agencies, they also are no longer “part of the Army or Air Force” for purposes of the Posse Comitatus Act. Apparently, the absence of any authorizing statute, the fact that the soldiers will remain subject to strength limits placed on the military by Congress, and the much less absolute shift of authority contemplated by “operational control” are not being viewed as problems.
This shaky legal rationale puts any troops who deploy as deputy agents of the Border Patrol or Customs Service at risk. In one of the cases interpreting the Posse Comitatus Act, a court has held that any soldier acting in violation of the act is not acting “within the scope of his office” for purposes of the Federal Tort Claims Act—which means that the soldier is on his own if sued for any death, injury, or damage he causes. Should we really bet our soldiers’ financial future on the hope that some court will later agree with the Defense Department’s stretched interpretation of the Posse Comitatus Act?
In the early 19th century, when U.S. Marshals deputized soldiers under a general authorizing statute, those soldiers clearly came under the “operational control” of the U.S. Marshals. In 1854, the power of U.S. Marshals to deputize soldiers was upheld in a formal opinion of then-Attorney General Cushing. That authority, and the basis for that opinion, ended in 1878, when Congress passed the original version of the Posse Comitatus Act. For the Administration to conclude now that a similar deputization, accomplished by agreement between Executive Branch Departments, makes the Posse Comitatus Act inapplicable is remarkable indeed.
But let’s move past the legal issue for now. It may be that there is some other rationale supporting their conclusion, though that can’t be known until or unless the specific legal basis for the plan is released, something that is not likely to happen—it is unclear whether it has been released even to Congress.
Reams have been written on the serious policy issues involved in using federal troops for coercive law enforcement. Whatever the pros and cons, it is clear that our constitutional tradition and collective political wisdom, reinforced by our historical experience as a nation, is that the use of federal troops for law enforcement is at best fraught with peril and should be resorted to only under very narrow circumstances or in dire emergencies. As real as the terrorist threat is, and it is very real, we have no dire, temporary emergency on our borders of the kind and quality to warrant a constitutionally based use by the President of our federal troops to enforce the civil law inside the United States. In any case, the emergency power of the President is apparently not being cited as the basis for the legality of the deployments. The rationale apparently being used does not depend on the existence of any emergency and can be applied at any time, whether or not there is a threat to our security.
National Guard
troops assisting the Border Patrol in controlling access to the country and
helping the Customs Service screen imports may not seem like a big deal. But
make no mistake; these are federal troops about to become instant cops. They
may come from the National Guard, but they will serve in a federal status—they will be every bit as much a part of the Army as the
As we learned in the McCarthy era of the 50s and in the antiwar days of the
60s and 70s, political pressure to respond to real or imagined security threats
can lead to very bad policies indeed, policies adopted in haste and regretted
at leisure. Similar intense pressure after the Centennial Park bombing at the
1996 Olympics very nearly led to the deployment of large numbers of federal
troops to perform direct police functions; the pressure was averted only by stalwart
resistance by the Defense Department and the straightforward technique of temporarily redeploying
federal police agents from less-pressing duties to Atlanta.
In a brief reference to the plan in recent testimony on the proposed Defense budget, Secretary Rumsfeld stated that any detail of federal forces to act as police agents will be temporary and that the Defense Department will have an “exit strategy.” A wise man once defined temporary as “one day short of permanent.” Border security will be a problem as long as there are terrorists in the world—a very long time indeed. (If the detail is to be temporary, it is not clear why General Pace said in his brief public statement that the operation will be performed under the oversight of Northern Command, a command not due to stand up until next fall. It is also unclear, if full operational control is to be given to the police agencies, what will remain for Northern Command to “oversee.”)
Even if the planned deployment of 1,600 soldiers in fact turns out to be temporary, the apparent legal rationale behind the deployment is not. Later pressures, and the nearly irresistible fiscal and political attractions of tapping Defense Department manpower and dollars will result in more, larger, and longer “details” unless wiser heads prevail or Congress intervenes.
But whatever legal or policy arguments one can make, pro and con, one thing seems crystal clear: We are about to make a significant departure from a time-tested and wise policy. Whether we should start down that murky road should first be vigorously and openly debated, especially in Congress. Whatever the pressures, we are not in such a dire crisis that the President’s power as Commander-in-Chief or his obligation and authority under the “take care” clause of Article II of the Constitution can or should trump Congress’ constitutional authority and responsibility to make “Rules for the Government and Regulation” for the armed forces.
What Congress can do, and should do quickly, to properly address our legitimate needs to improve our security posture at the borders and elsewhere is to enact a security emergency analog of the Stafford Act, allowing clean and direct federal reimbursement to the states (through the Federal Emergency Management Agency, not the Defense Department) for the expenses in calling up the National Guard in a state status for security emergencies and giving those troops the pay, benefits, and protections they would have if they were federalized.
Our security needs can be met while still preserving the primary role of states in our federal system for response to domestic security emergencies. Under such an act, we could also fully protect our troops and absorb emergency surge costs at the federal level—all without abandoning the policy behind the Posse Comitatus Act or, indeed, the rule of law itself.
But that is the
subject of another commentary.