Building on their already epic failure of a political stunt at the southern border, the White House has taken steps to authorize use of deadly force by U.S. troops should the circumstances arise—an authority military leaders never seemed keen on using in the first place.
The effort, first reported by the Military Times, appears to have come at the behest of the Department of Homeland Security, which reached out to White House Chief of Staff John Kelly. Kelly reportedly orchestrated the signing of two White House memos—one signed by him and one signed by Donald Trump—that appear to empower the troops to use “lethal force, where necessary.” (Author’s note: No, I really have no idea whether these memos would stand up under legal scrutiny—it looks like a clusterf*ck to me, for lack of a more searing technical term.) Newsweek published a copy of both memos at the end of their story here. The key graph from Trump’s memo reads:
To carry out that mission, these deployed personnel may perform those military protective activities that are reasonably necessary to ensure the protection and safety of Federal personnel, including a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search. (emphasis added)
The memo goes on to say that Defense Sec. Mattis will “execute these responsibilities in consultation with” Homeland Security Sec. Kirstjen Nielsen—who frankly has presided over executing some of the most horrific human rights abuses related to immigration policy in the history of the country.
Legal experts have warned that use of deadly force could run in violation of the Posse Comitatus Act, described here by 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.
Military forces always have the inherent right to self defense, but defense of the border agents on U.S. soil is new. In addition, troops have been given additional authorities in previous years to assist border agents with drug interdictions, but the widespread authorization of use of force for thousands of active-duty troops is unique to this deployment.
In remarks Wednesday reported by the Military Times, Sec. Mattis said he had no plans at present to change the nature of the military’s border mission away from providing non-lethal support to civilian leadership. But ultimately, Sec. Nielsen could put Mattis on the spot, asking him to deliver on force he hasn’t shown an inclination to use.
Mattis said Wednesday while the authorities for U.S. troops along the border have expanded, the Standing Rules for the Use of Force for troops deployed to the border have not changed — unless he decides they need to.
The memo directs Mattis to decide which authorities border troops may need to carry out.
“If I change the mission then something like that could happen,” Mattis said. “We have no intent of doing that right now.”
Mattis said any use of the new authorities would be shaped by what follow-on requests he gets from Department of Homeland Security Secretary Kirstjen Nielsen.
“I now have the authority to do more,” Mattis said. “Now we’ll see what [Nielsen] asks me for.”
Nielsen has a history of making unconscionable decisions and then willfully lying about them.
This is a Creative Commons article. The original version of this article appeared here.