Boxer’s Bid to Put National Guard at Border Is Stymied : Immigration: Pentagon refuses to implement senator’s plan, which it says lacks legal authority.

Ten months after Sen. Barbara Boxer secured federal funds to deploy National Guard troops to hinder illegal immigration, the program has not been implemented anywhere in the country and the Department of Defense has no plans to do so.

Last year, the first-term California senator hailed her so-called “Boxer National Guard Plan” as an innovative solution to the state’s illegal immigration problem. Supplementing federal Border Patrol agents with “well-trained, well-equipped” military personnel, Boxer said at the time, “could prove the most cost-effective way to bolster enforcement at the California border.”

Soon after Congress passed the legislation, however, the Defense Department ruled that the plan lacked any legal authority and decided not to carry it out. Thus, no state has been allowed to apply for the program and no federal money has been allocated for assigning National Guard units to deter illegal immigration.

At a time when California’s politicians are rushing to offer solutions to the problems many voters believe are caused by illegal immigration, this is an account of one major initiative that generated tremendous publicity, yet has accomplished little or nothing. The failure of the Boxer plan reveals the difficulties of finding answers to the vexing problem of unlawful immigration as well as the risks of proposing quick fixes.

“Frankly, (Boxer’s office) didn’t do their homework in terms of the legal requirements,” said one Pentagon official, who spoke on the condition of anonymity. “What was accomplished was not what they represented.”

Boxer declined to be interviewed about her border plan for this story. In a statement released by her office Friday, she said her objectives had been achieved, but she did not acknowledge that the Defense Department has refused to carry out her plan.

“To our knowledge no state has applied but the option is still available,” the statement said.

Like many politicians in California, Boxer succeeded in attracting favorable attention for her efforts to crack down on the tide of immigrants who enter the country illegally. The senator’s staff pointed to a Times poll last fall that found that 73% of Californians supported using the National Guard to halt illegal border crossings.

Although the Boxer plan appealed to the public, it has continued to draw widespread criticism from immigration reformists and immigrant rights activists--two sides that rarely see eye to eye.

The Boxer legislation is “an irresponsible suggestion at a time when the California Democratic Party needs strong, sensible leadership on a divisive issue,” said Frank Sharry, executive director of National Immigration Forum, a Washington-based immigrant rights organization.

Dan Stein, executive director of the conservative Federation for American Immigration Reform, said the press release that initially floated the Boxer plan produced no more than a paper airplane.

“I’m not aware of any other senator last year who tried to so brazenly exploit the issue without having done any kind of homework or without even a pretense of follow-up,” Stein said. “The initiative had so many obvious legal pitfalls and potential constitutional problems that needed to be worked out that it was never entertained as a legitimate proposal.”

The Boxer plan was neither scrutinized by the Senate nor voted on separately by Congress. Instead, at Boxer’s request, language was inserted into the Senate’s $239-billion defense appropriations bill directing the Pentagon to make available “not less than $2 million” for Border Patrol-related activities by the Guard. The money, subject to Pentagon approval of applications submitted by individual states, would come from the same federal account used by the Guard to assist law enforcement agencies in anti-drug operations.

However, Defense Department policy states that anti-drug funds cannot be used for immigration or any other non-drug purpose, Pentagon officials said. Because Boxer’s language did not grant specific legal authority to spend defense dollars on border enforcement, the Pentagon refused to allow states even to request money to fight illegal immigration under the Boxer plan, said Maj. Toivo Nei, a spokesman for the National Guard Bureau in Washington.

The Boxer plan “did not give us any legal authority to do anything differently, nor did it give us any additional funding,” Nei said.

So while California officials expressed interest in applying for the funds, they were prevented from doing so by the Defense Department.

“We have a document from the National Guard Bureau saying (the Boxer plan) is not legal and we can’t do it,” said Lt. Col. Tim Callan, executive officer of the California National Guard.

Moreover, the use of military troops to upgrade border enforcement is not supported by the Immigration and Naturalization Service.

“The notion of putting the National Guard on the border, I hope you’ll agree with me, is simply not in this agency’s or this country’s best interests,” INS Commissioner Doris Meissner wrote to employees last fall.

The Guard initiative stood out as Boxer’s major immigration proposal during her first year in the Senate. She also supported the hiring of 400 new Border Patrol agents and spending $350 million to reimburse states for the cost of incarcerating undocumented felons. A Boxer proposal to double the criminal penalties for forging identification papers passed as part of the Senate crime bill and awaits final action.

When Boxer unveiled her National Guard proposal in July of last year, she suggested assigning 4,000 personnel to spend their obligated 15 days of annual training at the border. Under the plan, the troops would provide administrative assistance and accompany federal agents on patrol, but would not be authorized to make arrests or searches.

The prospect of armed forces in military uniforms assisting in immigration patrols at the nation’s borders for the first time in history drew protests from civil rights groups and criticism even from Republican hard-liners on the issue such as Gov. Pete Wilson. He called the plan “not helpful” and a violation of an international treaty that bans armed troops on the border.

But the Wilson Administration embraced parts of the Boxer proposal that would provide federal funding for non-enforcement jobs such as manning observation posts, repairing roads, erecting fences, transporting prisoners and maintaining vehicles.

These types of support services already were being provided at the border by the California National Guard at a cost of $19 million in federal anti-drug funds. In April, Wilson announced plans to triple the number of National Guard troops assisting the Border Patrol at the state’s southern boundary to work exclusively in the anti-drug, backup role. Under Wilson’s order, 127 additional National Guardsmen were assigned to the California-Mexico border using a combination of federal drug interdiction funds and state money.

Boxer was quick to issue a statement applauding Wilson’s order, even though her legislation did not provide any of the financing.

“I’m very pleased the governor has agreed that there is a good way to use the resources of the National Guard, in a civilian capacity, so Border Patrol officials can be freed up to do the important work of securing the border,” Boxer said in April.

In her statement Friday, Boxer said she saw no need to revise her legislation because the National Guard was being deployed at the California-Mexico border. She acknowledged that the Guard was already being used in the anti-drug role before she offered her plan.

Political analysts remain baffled why Boxer, one of the most liberal members of Congress who counts civil rights and minority leaders among her most loyal constituents, staked out territory that is normally the domain of much more conservative politicians.

Some suggested that Boxer felt pressure to come up with a solution to keep pace with her California colleague, Sen. Dianne Feinstein, who has proposed a wide range of reforms that include a border crossing fee to pay for more patrol officers.

In any case, the National Guard initiative brought Boxer considerable discomfort. She became so upset with criticism from civil rights groups and Latino activists that she stormed out of a meeting with them in her San Francisco office last summer, according to participants. Also, two Latino aides on Boxer’s Washington staff told colleagues that they resigned partly in frustration over the senator’s National Guard proposal.

Before Boxer unveiled her plan, proposals to put the Guard at the border were considered far removed from the political mainstream, said Robert Rubin, assistant director of the Lawyers Committee for Civil Rights in San Francisco.

Now, Rubin said, Boxer has “allowed herself to be used by the extremist forces to push the debate in the exclusionary direction that it was going.”