November 23, 2018
Washington, D.C. – House Armed Services Committee Ranking Member Adam Smith (D-WA) released the following statement about President Trump’s order regarding deployment of the military to the southern border:
“I strongly oppose the President's recent change in policy granting the military expanded authority regarding the use of lethal force, detention and search of civilians, and crowd control on our southern border. This guidance is unwise, unnecessary, and likely illegal. It is unwise because the President is creating a dangerous situation where thousands of armed troops are being asked to operate under vague and unclear rules of engagement. It is unnecessary because there is no evidence that the U.S. Border Patrol isn't capable of handling the situation on its own. The guidance is likely illegal because the military is prohibited from conducting law enforcement activities in the United States by the Posse Comitatus Act.
“This deployment has been a politically motivated stunt from its inception, and it is putting the U.S. military in an inappropriate position while undermining service members’ ability to train and perform their appropriate functions. At its core, this political stunt continues to be an exercise in fearmongering with the intention of inaccurately portraying asylum seekers as dangerous. Even more troubling, this decision appears to be driven by a group of anti-immigration fanatics in the White House who refuse to listen to legal and policy advice from experts while not even involving senior DOD and military leaders in the policy deliberations.
“I am extremely disappointed with the way that the administration has been stonewalling Congress. The public deserves transparency regarding the decision to initiate this deployment, and the justification for a change in the authority under which our troops are operating. We need to know what the mission is, what exactly our troops are doing, how long the deployments will last, and how much it is going to cost.
“President Trump’s actions have potentially grave implications for the rule of law and it is essential that Congress get to the bottom of this misuse of our armed forces. For these reasons, the border deployment will be among the first oversight issues that the Armed Services Committee takes up in the new Congress.”
House Armed Services Committee Ranking Member Adam Smith sent the following letter to President Trump regarding recent guidance to U.S. military forces at the southern border.
November 23, 2018
The Honorable Donald J. Trump
President of the United States
The White House
Washington, DC 20500
Dear Mr. President,
I am writing because of your administration’s recent decision to grant legal authority for active duty personnel along the southern border to act as an extension of law enforcement. This decision raises serious legal questions, puts our armed forces in an untenable position, and further reduces their readiness.
The activities described in the memorandum signed, at your direction, by your Chief of Staff include “a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search.” This is yet another unnecessary step towards the militarization of the southern border and is not a proportionate response to individuals that wish to legally seek asylum as they flee violence and persecution in their countries. Furthermore, the activities described in the memorandum may be a violation of existing federal laws, such as the Posse Comitatus Act (18 USC 1385) or limitations on troops’ participation certain law enforcement activities (10 USC 275).
I am also concerned by the continued lack of transparency and limited information being provided to Congress on Department of Defense operations along the southern border. Congress has frequently heard about decisions made or actions taken through the press rather than hearing directly from your Administration. This includes this most recent memorandum issued the week of Thanksgiving. With that in mind, I request the following information be provided in response to this letter:
(1) a detailed justification, to include any classified or unclassified threat assessment, for issuing the directive that military personnel be used to conduct activities that could be considered law enforcement activities;
(2) an assessment of the capability and capacity of U.S. Customs and Border Protection agents, and any gaps or limitations that were identified in the context of the current caravans, that warrant the use of active duty military personnel in potential law enforcement activities described in the memorandum;
(3) a legal opinion and specific statutory authorities cited to justify how the potential actions authorized by the memorandum are in compliance with current law and not in contradiction to previously referenced statutory limitations;
(4) a list of the equipment and weapons that military personnel will be authorized to carry and use in performance of the expanded mission;
(5) details of the specific training, to include foreign language training and training on the legal rights of individuals to seek asylum, that military personnel will be provided prior to the performance of the expanded mission;
(6) the cost to-date of utilizing 5,800 active duty and 2,100 National Guard personnel along the southern border, the expected length the deployment is expected to take place beyond December 15, 2018, and the expected total cost of the Department of Defense’s activities along the southern border, and specific funding sources, in fiscal year 2019;
(7) the specific mission assigned to each unit supporting the southern border deployment and plans to transition these responsibilities back to the Department of Homeland Security;
(8) what facilities military personnel would use to temporarily detain individuals under the new authority, what certifications are in place to ensure facilities are adequate for children and families, what time limits are in place for length of detention, what training and capabilities the troops have in providing care to asylum seekers in their detention, and what process is in place to ensure individuals detained by our military are transferred into the existing lawful asylum seeking process.
I hope that you will reconsider this recent decision and de-escalate the situation by removing active duty troops from the southern border.