Getting it Wrong: Pursuing a Military Solution to Law Enforcement Problems on our Border with Mexico
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This post was guest-authored by George Withers, a senior fellow for Regional Security Policy at the Washington Office on Latin America. A former staffer for the House Armed Services Committee, Mr. Withers has closely followed the growing use of the U.S. military and National Guard in the U.S.-Mexico border region.
A bill introduced at the end of the last Congress, and again at the beginning of this one, would greatly expand the U.S. National Guard’s mission on the border with Mexico. Introduced by Representative Ted Poe (R-Texas), the bill would require that “not less than” 10,000 additional National Guard troops be deployed along the border on what would turn out to be a permanent basis.
While the bill itself has little chance of passage – none of its co-sponsors in either Congress comes from a border district – it still merits a critical analysis. Rep. Poe and the bill’s other sponsors clearly intend to spark a debate about the role of the U.S. military, particularly the National Guard, on U.S. soil. What they propose, however, would set a disastrous precedent for U.S. civil-military relations and for the legal framework governing the National Guard’s mission, while having little impact on U.S. citizens’ security.
The bill responds to a political impulse. The worsening epidemic of drug-fueled violence on the Mexican side of the border has claimed a great deal of attention in recent years, and especially in the past few months. Also under the media spotlight have been illegal immigration and the steady flow of illicit drug trafficking from Latin America through Mexico and the Caribbean into the United States. As these challenges continue to mount, the need for a response has been felt more urgently, both in Washington DC and in border states.
In May 2010, President Obama announced that 1,200 National Guard troops would be stationed along the border in support of the effort to address these problems. While they were sent with specific instructions not to be directly involved in searches or detention of suspected lawbreakers, the Guardsmen are armed and are meant to provide a visual and physical deterrent at the border. As such, their presence implies a threat to use military force.
This deployment, the Poe bill, and similar proposals appear to respond to a belief that if law enforcement personnel are good, then the military is even better. The higher level of potential violence catapults the armed soldier into the role of “Supercop.” Indeed, in Mexico and in several other countries in Latin America, especially Central America, several governments have turned in desperation to their militaries to do the work of outgunned and/or corrupt police agencies. But is deploying the military the appropriate response? In particular, is it the right answer – even temporarily – in the United States, where the legal concept of separate police and military roles has a strong and relatively successful history?
Rep. Poe, an original founder of the Victims’ Rights Caucus, has more than once taken admirably strong stands in opposition to violence against women in Mexico and elsewhere. But when it comes to protecting U.S. citizens from law enforcement problems on the border with Mexico, he opts for militarization. His bill would not only deploy an additional 10,000 National Guard troops, it would do so in the following ways:
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The bill would add a very comprehensive new section to the U.S. Code, entitled “border control activities.” This provision would enable greater federal assistance to the states’ use of the National Guard and significantly broaden the Guardsmen’s activities and authorities. These would mean allowing – or requiring – the National Guard to participate in, among other duties:
- Armed vehicle and foot patrols on U.S. soil along the international border.
- Interdiction of vehicles, vessels, or aircraft, including those of U.S. citizens on U.S. soil.
- Search, seizure, and detention of suspects, including U.S. citizens.
- Intelligence gathering, surveillance, and reconnaissance, including against U.S. citizens.
- Aviation support.
All of these activities are currently – appropriately – assigned to the U.S. Customs and Border Protection and Immigration and Customs Enforcement personnel, both of them entities of the Department of Homeland Security. Most or all of these new military activities would go far beyond what the National Guard currently practices in its current border deployment missions, as defined by the border states’ governors and the National Guard Bureau. They also are in contravention of the legal principles and practices of the federal Posse Comitatus Act, which generally disallows the military’s use in law enforcement.
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The Poe bill would set a 10,000-person minimum troop strength level (which is in addition to any and all troops already deployed) and keep it in place until “operational control” of the border is achieved. “Operational control” is defined, by reference to a 2006 law, as when the Secretary of Homeland Security can certify “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” This “all unlawful entries” language sets a very high standard: it is highly unlikely that the prevention of every single illegal entry into this country could ever be certifiably achieved. Thus these troops would, in effect, be deployed permanently.
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It is highly unusual, if not entirely inappropriate, for the U.S. Congress to pass a law dictating the appropriate level of troop strength in any specific mission deployment, as the Poe bill would do through its “required” 10,000 level. Such an operational decision falls under the core competency of military leadership, not politicians.
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The bill chooses to authorize the troops’ deployment under a section of the U.S. Code that allows for “training” purposes only. However, since the bill would call on the Guard to carry out extraordinarily increased police activities that the military does not have a traditional legal mandate to perform – including searching and apprehending U.S. citizens – it contemplates use that goes way beyond “training.” These duties are “operational.”
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The bill would exempt the deployment from end-strength limitations that are key to a well-balanced and militarily ready National Guard. To deploy large numbers of Guard members away from their home units, without consideration for how they would be replaced or how units might return to their designated force levels, would be disruptive to say the least.
Beyond these mostly technical problems with the bill, there remains the larger issue of militarizing our border law enforcement. Whether through the Poe bill or any other policy change, the circumstances do not warrant such a large, risky and potentially counterproductive step.
Rather than a threat of violence “spilling over” from Mexico into the United States, FBI Uniform Crime Reports actually point to an overall decrease in violent crimes in metropolitan areas along the border. El Paso, Texas, directly adjoining the border with Ciudad Juarez in Mexico, is statistically one of the safest cities in the United States: with 5 murders in 2010, it registered its lowest homicide rate since 1965. Individual, anecdotal incidents aside, the overall trend points away from the need to arm against an “invasion” or significant threat of violence.
Vastly increased numbers – and increasing strengths – of civilian law enforcement personnel, including U.S. Customs and Border Protection and Immigration and Customs Enforcement agents, are already demonstrating success in keeping the U.S. side of the border area safe. To turn to the military serves more of a political purpose than a practical one.