No, it isn’t illegal for troops to intervene if Customs and Border Protection personnel are being assaulted

Recently Secretary of Defense Jim Mattis was asked to clarify what the new “Cabinet Order” meant for the use of force by troops at the border, and he explained with this example: “If someone’s beating on a Border Patrolman and if we were in position to have to do something about it, we could stop them from beating on them and take him over and deliver him to a Border Patrolman, who would then arrest him for it.” Does that seem illegal to you?  It doesn’t to me, but apparently some people might think otherwise.

Here’s context: I’m a faithful listener to the National Security Law Podcast presented by my friends’ professors Steve Vladeck and Bobby Chesney at the University of Texas School of Law School. Typically, the podcast is quite reliable, but the Nov 27th edition went slightly awry in its discussion of the Posse Comitatus Act (PCA) and its relationship to the so-called “Cabinet Order” of Nov 20th signed by the White House Chief of Staff. That announcement said that the military may perform “military protective activities” to ensure the safety of Customs and Border Protection [CBP] personnel.

The podcasters seem to think that the document has no legal effect and is, indeed, “bizarre” and “ridiculous” – and some pundits go further to call it “dangerous.”  Why?  Mainly, it seems, because it was signed by White House Chief of Staff who – they correctly note – is not himself in the chain of command over the armed forces.

However, the critics are mistaken about the document’s efficacy. The law of military orders is succinctly expressed in the Manual for Courts-Martial (which is itself an Executive Order authorized by 10 U.S.C. §836).  Paragraph 14.c.(2)(c) of the Manual makes it clear that “as long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted…”  Thus, simply because the order was transmitted over the signature of the Chief of Staff does not mean, ipso facto, that it has no legal effect.

Let’s examine the actual text of the document (courtesy of Just Security).  It says that there was “credible evidence” indicating that the situation with migrant caravans at the border “may prompt incidents of violence and disorder that could threaten U.S. Customs and Border Protection [CBP] and…prevent them from performing the Federal functions.”

Accordingly, the document further states that:

“The President has determined that it is necessary to use units and personnel of the Armed Forces to support the Department of Homeland Security by temporarily protecting U.S. Customs and Border Protection and other United States Government personnel and by protecting their performance of Federal functions.” (Emphasis added.)

The document then states that:

“To carry out that mission, these deployed Department of Defense military personnel may perform those military protective activities that the Secretary of Defense determines are reasonably necessary to ensure the protection of Federal personnel, including a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search. Department of Defense personnel shall not, without further direction from the President, conduct traditional civilian law enforcement activities, such as arrest, search, and seizure in connection with the with the enforcement of the laws.” (Emphasis added.)

It concludes by saying that the “Secretaries of Defense and Homeland Security may delegate to subordinate officials of their respective Departments any of the authority conferred upon them by the President’s order.” (Emphasis added.)   Thus, the most reasonable reading of the document reveals rather plainly that the Chief of Staff was merely transmitting the order of the President.

The podcasters also appeared to believe that the “order” might be violative of the Posse Comitatus Act (PCA), an 1878 statute that makes is a crime for anyone who “willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws.” How did this law come into being? University of Georgia history professor Stephen Mihm observed earlier this year that:

“In 1878, Southern Democrats in Congress managed to secure passage of the Posse Comitatus Act, which barred the use of federal troops in domestic law enforcement. Its bland language notwithstanding, the law’s intent was to prevent Republican presidents from using troops to enforce election laws protecting the rights of African Americans in the South.

The unsavory origins of the Posse Comitatus Act make it hard to view it as a high-minded stand against military involvement in civil affairs. To make matters even more complicated, the original prohibition and subsequent amendments have been diluted by a number of exceptions.”

Importantly, 6 U.S.C. § 465 stresses the “continued importance and applicability of the Posse Comitatus Act” but in this 2002 enactment Congress also found that:

“[B]y its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.” (Emphasis added.)

As the legislation indicates, there are “Act[s] of Congress” that do permit the use of the military for law enforcement functions (see e.g., here) but they typically require a proclamation to disperse, which did not occur here. That, however, is not unprecedented in our history. For example, the Congressional Research service reported just a few weeks ago that “President Hoover used federal troops in 1932 to oust the Bonus Marchers from federal property in Washington, DC, but did not issue a proclamation.” (Emphasis added.)

As one source explains, the Bonus March occurred in Washington at the height of the Great Depression when thousands of veterans gathered in Washington demanding early payment of their Adjusted Compensation Certificates for wartime service. Most vets then left for home when it appeared their effort failed. However:

The rest, variously estimated at 2,000 to 5,000, over the next few weeks engaged in protests and near-riots, producing an atmosphere of restlessness and threats of turbulence. Local authorities requested that President Herbert Hoover intervene. Troops led by Brigadier General Perry L. Miles, accompanied by General Douglas MacArthur, the U.S. Army chief of staff, drove out the demonstrators and destroyed their encampments, using tanks and tear gas.”

In other words, tanks and tear gas were used against American citizens (one was killed) in order to restore public order and safety, and there was no suggestion that the PCA was breached, and there certainly were no PCA prosecutions.

Consider as well that in 6 U.S.C. § 465 Congress recognizes that in addition to pursuant to one of its acts, the President can also use the military to fulfill his obligations under the Constitution “to respond promptly in time of …serious emergency.” Accordingly, where, for example, the military is simply taking emergency and temporary action in furtherance of public safety (as opposed to enforcing the law, per se) as Mattis’ scenario suggests, it would seem that the Posse Comitatus Act is not engaged.

In fact, military commanders have long had the authority to act in an emergency, even without the explicit authorization of the President. Consider the following extract of DoD Directive 3025.18 (based on 32 CFR Part 185) provides:

Federal military commanders are provided EMERGENCY AUTHORITY under this Directive. Federal military forces shall not be used to quell civil disturbances unless specifically authorized by the President in accordance with applicable law (e.g., chapter 13 of Reference (d)) or permitted under emergency authority, as described below. In these circumstances, those Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:

(1) Such activities are necessary to prevent significant loss of life or wanton destruction of property and are necessary to restore governmental function and public order; or,

(2) When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect the Federal property or functions. (Emphasis added.)

Furthermore, let’s keep in mind that the PCA is a criminal statute, not a restriction on the use of funds or other means of control of the armed forces. In that regards, consider that 18 U.S.C. § 2236 provides that the criminal penalties for unlawful searches do not apply to “any person” who is “arresting or attempting to arrest a person committing or attempting to commit an offense in his presence, or who has committed or is suspected on reasonable grounds of having committed a felony.

Thus, if a member of the armed forces witnesses a scenario like the one Secretary Mattis posited, that is, where “someone’s beating on a Border Patrolman,” then 18 U.S.C. § 2236 may provide sufficient authority for an exception. Additionally, there are the common law defenses of necessity and/or the defense of others which would likely excuse criminal liability in such a circumstance.

So the much-discussed “Cabinet Order” appears to really not be new authority, but rather more of a clarification of existing authority. Still, was it needed?  Prof Vladeck seemed skeptical that there was a rock-throwing justification at the border at all, but Vox  reported on November 26th that “[v]ideo taken of the incident shows rocks being thrown at agents before the tear gas was fired.” As discussed previously (see here), rocks can present a serious safety threat. In a 2016 news report a Customs and Border Protection agent explained that rock attacks have caused “pretty bad injuries, broken cheekbones, stiches, eye sockets” and said that for the agents, “rocks are very dangerous.”

Notably, the Washington Post reported that despite “high-profile exceptions” the “use of force by Customs and Border Protection officers and agents is declining.” This year, the Post says, there have been “743 cases of agents and officers using less-lethal force…[but] those figures represent a drop from 2013, during the Obama administration, when there were 1,168 incidents of less-lethal force.”

The situation at the border is obviously a very difficult one for all concerned – to include the migrants – but the answer cannot be violence against those tasked with enforcing the law. That said, if law enforcement is attacked, the PCA does not require the military to stand by while CBP agents are beaten.

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

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