Military force on the border? Get the facts

I have much agreement with my friend Mark Nevitt’s excellent post addressing some of the issues associated with the use of the military at the border. Unfortunately, in his essay he relies upon the assertion made by some in the media that Trump “initially stated that the military should and could ‘shoot rock-throwing migrants’.”

The problem? Trump never “stated” that. Here’s what the press conference transcript shows he actually said:

Q With the military, do you envision them firing upon any of these people?

THE PRESIDENT: I hope not.

Q Could you see the military (inaudible)?

THE PRESIDENT: I hope not. It’s the military — I hope — I hope there won’t be that. But I will tell you this: Anybody throwing stones, rocks — like they did to Mexico and the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico — we will consider that a firearm. Because there’s not much difference, where you get hit in the face with a rock — which, as you know, it was very violent a few days ago — very, very violent — that break-in. It was a break-in of a country. They broke into Mexico.

Later on he said:

Q Mr. President, you’re saying rocks are — rock-throwing, like happened in Mexico, will be considered —

THE PRESIDENT: We will consider that the maximum that we can consider that, because they’re throwing rocks viciously and violently. You saw that three days ago. Really hurting the military. We’re not going to put up with that. If they want to throw rocks at our military, our military fights back. We’re going to consider — and I told them, consider it a rifle. When they throw rocks like they did at the Mexico military and police, I say, consider it a rifle.

The next day, Trump further clarified his remarks. Again, from the transcript:

Q Mr. President, are you really okay with the U.S. military firing on the caravan people?

THE PRESIDENT: No, they won’t have to fire. What I don’t want is, I don’t want these people throwing rocks. It’s turned out — in fact, it was just announced by Homeland Security — you have, in just certain areas, over 300 people that they know are trouble.

What they did to the Mexican military is a disgrace. They hit them with rocks — some were very seriously injured. And they were throwing rocks in their face.

They do that with us, they’re going to be arrested. There is going to be problems. I didn’t say “shoot.” I didn’t say “shoot.” But they do that with us, they’re going to be arrested for a long time.

Obviously, Trump did say to “consider” rocks like “a rifle,” but that’s not the same thing as declaring that the military “should…shoot rock-throwing migrants.”

Let’s dig a little deeper into this. When U.S. military forces are operating within the United States, the use of force is not governed by rules of engagement (ROE), but rather by the law enforcement-like rules for the use of force (RUF)  Here’s a key extract of what the RUF provides (and which Trump has not changed):

a. De-Escalation. When time and circumstances permit, the threatening force should be warned and given the opportunity to withdraw or cease threatening actions

b. Use of Non-Deadly Force

(1) Normally, force is to be used only as a last resort, and the force used should be the minimum necessary. The use of force must be reasonable in intensity, duration and magnitude based on the totality of circumstances to counter the threat. If force is required, non-deadly force is authorized and may be used to control a situation and accomplish the mission, or to provide self-defense of DOD forces, defense of non-DoD persons in the vicinity if directly related to the assigned mission, or in defense of the protected property, when doing so is reasonable under the circumstances.

Another crucial part of the RUF specifically says:

c. Use of Deadly Force. Deadly force is to be used only when all lesser means have failed or cannot reasonably be employed. Deadly force is authorized under the following circumstances:

(1) Inherent Right of Self-Defense. Deadly force is authorized when DOD unit commanders reasonably believe that a person poses an imminent threat of death or serious bodily harm to DOD forces. Unit self-defense includes the defense of other DOD forces in the vicinity.

(2) Defense of Others. Deadly force is authorized in defense of non-DOD persons in the vicinity, when directly related to the assigned mission.

These rules are not unique to the Trump administration but have been in place for well over a decade. (For more details about the RUF, see the extract found here from the 2011 edition of the U.S. Army’s Domestic Operational Law handbook. Another useful source that grapples with a variety of legal issues is the after-action report of Task Force Resettlement, a 1980 operation where almost 4,000 Cuban refugees were housed on Ft. Chaffee, AR. It’s found here.)

So, is there anything wrong with warning people – to include the public – that rocks could pose as deadly a threat as rifles? Of course not. Rocks have been weaponized for thousands of years, and just yesterday it was reported that the last of five teens pled guilty in a recent rock-throwing case that killed a Michigan man and damaged cars on a highway. And, tragically, people are still being stoned to death around the world. Rocks can – and do – kill. As one source puts it:

In many places, rocks are readily available as weapons, more so than more sophisticated weapons. Because rocks are dense, hard objects, a forcefully thrown rock can do substantial damage to a target, particularly if the rock has sharp or jagged edges.

To be clear, however, I am definitely not suggesting shooting those in the migrant caravan; rather, I’m merely trying to explain that whether or not a rock (or anything else) constitutes a deadly menace in a particular situation is very fact-specific – as the RUF noted above makes clear.

Even where “the totality of circumstances” in a given case show that rocks pose as “imminent threat of death or serious bodily harm” as do rifles, deadly force is still not authorized under the RUF except as “a last resort” and “when all lesser means have failed or cannot reasonably be employed.” Nothing Trump has said alters those rules.

But, yes, particular circumstances could render any number of objects – including ones most people would consider benign – into serious threats. Indeed, a Florida court held that throwing a grapefruit at a passing tanker truck that shattered its windshield and superficially cut the driver could constitute the crime of throwing a deadly missile into an occupied vehicle. Even a “bed pillow” can be considered a deadly weapon under certain conditions.

Still, what about Trump’s statement that “[i]f they want to throw rocks at our military, our military fights back”? To military professionals, having rocks thrown at them is hardly unprecedented, and they wouldn’t consider authority to “fight back” in such a situation as some sort of directive that they “should” shoot anyone.

Our forces know how to “fight back” against rock throwers not by shooting people, but by using non-deadly means as the RUF indicates.

For example, in Iraq in 2006 NBC News reported that U.S. troops encountered “small groups of youngsters throwing stones, then escalated into bigger groups of children hurling larger rocks and even pieces of cement blocks.” The troops used “high-decibel speakers, to scare away children.” They evidently were so effective that some children “scampered away…as soon as a soldier pointed a hand-held speaker in their direction.”

Today, the U.S. military has an inventory of fielded non-lethal capabilities to “fight back” including “blunt impact, marking, and warning munitions; acoustic hailing devices; optical distracters; electro-muscular incapacitation devices; and vehicle stopping equipment.”

Why was Trump concerned about rocks being thrown at the troops? I don’t presume to know what he was thinking – but if I were guessing, I would suppose he was referring to incidents in this Oct 29th Los Angeles Times piece that reported that “[s]ome migrants threw rocks and glass bottles at police.” It also reported that Mexico’s interior secretary “said that migrants had thrown Molotov cocktails at police.”

Similarly, the Washington Post reported on Oct 31st (in reference to an earlier Trump tweet about Mexican security forces being attacked) that the “episode cited by Trump took place Sunday as a caravan of roughly 3,000 Central American immigrants crossed onto Mexican soil, with some throwing rocks and bottles.”

The civilian law enforcement assessment? Customs and Border Protection (CBP) Commissioner Kevin K. McAleenan said at an Oct 29th news conference (transcript here) that:

“The [migrants are] incentivized to try to cross our border by the gaps in our legal framework and the expectation that they will be allowed to stay. This means that at any given moment, there are tens of thousands of intending migrants between the Guatemala border and the U.S. border moving towards us at any given time. Within that flow are about 17,000 criminals — last year — along with hardened smugglers and people from over 100 countries around the world. 

CBP commissioner Kevin McAleenan

Our immigration system is unable to effectively process and repatriate those without the right to remain in the United States, due to extensive backlogs in our courts and because of court restrictions on detaining people through their immigration proceedings. 

What is new and challenging about this caravan phenomenon is the formation of multiple large groups, which presents unique safety and border security threats.  For the two large groups that we are following, we have already seen the first one make unlawful entry across two international borders. A second group, still in Guatemala, has deployed violent and dangerous tactics against both Guatemalan and Mexican border security teams. “

The military assessment was much the same. Here’s what General Terrence O’Shaughnessy, Commander of U.S. Northern Command, said at an Oct 30th news conference about “violence coming out of the caravan” (from the transcript):

Gen. O’Shaughnessy and CBP commissioner Kevin McAleenan

GEN. O’SHAUGHNESSY:  I think what we have seen is we’ve seen clearly an organization [of the migrant caravan] at a higher level than we’ve seen before.  We’ve seen violence coming out of the caravan and we’ve seen as they’ve passed other international borders, we’ve seen them behave in a nature that has not been what we’ve seen in the past.  So I think we’ll see further understanding and — and discussion of this from CBP. (Italics added).

In considering how to deal with the “violence” that “has not been what we’ve seen in the past,” keep in mind that sometimes the apparent ability to use deadly force serves to deter the need to actually do so. When President Eisenhower ordered the famed 101st Airborne Division to Little Rock in 1957, the paratroopers fixed bayonets to their rifles, presumably to be ready for use not just to defend themselves, but also to help them enforce the law, which in that instance was the desegregation of the schools as ordered by the Supreme Court.

In fact, the bayonets were actually used by the troops in Little Rock to prod protestors (who appear to be unarmed American youths) out of the way. Historian David Halberstam described the scene as follows in his book The Fifties:

“With the arrival of the 101st, the nation witnessed again a stunning spectacle on TV; elite paratroopers of one of the most honored divisions in the United States Army escorting young black children where once there had been a mob. The soldiers set up their perimeter. Their faces were immobile and, unlike the Guardsmen’s, betrayed no politics, only duty. As they marched in, the clear, sharp sound of their boots clacking on the street was a reminder of their professionalism. When the segregationists in the street protested, the paratroopers turned out to be very different from the National Guard soldiers who had so recently been their pals. The men of the 101st fixed their bayonets and placed them right at the throats of the protesters, quickly moving them out of the school area.”

Those soldiers did so in order to carry out the vital mission of any democracy: upholding the rule of law.

The military’s current mission at the border is much more modest, mainly rear echelon logistics and engineering support to civilian CBP personnel who will be the ones enforcing the law. Here’s the official statement as to what the active duty military will specifically be providing:

  • Military planning teams to coordinate operations, engineering, medical, and logistic support
  • Helicopter companies to support the movement of CBP tactical personnel
  • Engineer battalions to erect temporary vehicle barriers and fencing
  • Deployable medical units to triage, treat and prepare for commercial transport of patients
  • Temporary housing to support CBP and military personnel
  • Light towers, barrier material, barbed and concertina wire, as well as cases of meals ready-to-eat.

More specifically, Chairman of the Joint Chiefs of Staff General Joe Dunford said on Tuesday that there “is no plan for U.S. military forces to be involved in the actual mission denying people entry to the United States.” There isn’t even any planned contact with migrants as the Times also quoted Dunford as emphasizing there “is no plan for soldiers to come in contact with immigrants or to reinforce Department of Homeland Security as they are conducting their mission.”

In short, it is very unlikely that troops will become involved in any use-of-force situations, and that’s how it should be: let civilian law enforcement professionals deal with any purported law breakers.

It’s certainly very much a legitimate debate as to how to enforce the law in this situation, and how (or even whether) the military should be involved, but let’s have precision in that discussion, particularly when we are talking about the use of force. What sometimes happens is one source reports something incorrectly then others end up quoting that source and referring back to it. Regrettably, we can’t necessarily depend upon some media sources or others to get the story right, so, when possible, let’s take a look at the original source documents and get the facts right as we make up our minds about these difficult issues.

As we like to say on Lawfire, check the facts, assess the law and the arguments, and decide for yourself!

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