Guard Troops to Be Assigned to Mexican Border

U.S. authorities next month will send about 300 National Guard troops to bolster security at California’s border with Mexico, despite the reservations of state Guard officials who say the arrangement may violate a law barring U.S. armed forces from domestic law enforcement.

The deployment is part of a six-month initiative that will send 1,600 Guard troops under federal control to the Mexican and Canadian borders. After the Sept. 11 terrorist attacks, the soldiers were sought by the three U.S. agencies primarily responsible for guarding the border: the Customs Service, Immigration and Naturalization Service and Border Patrol.

“They’ll be doing some cargo inspection, monitoring of crowds, possible crowd control if needed, and other activities which are deemed appropriate for the military,” said Pentagon spokesman Maj. Mike Halbig.

At a time when the Guard is assuming a bigger security role at airports and other facilities, the border plan has stirred fresh debate over the appropriate use of soldiers on U.S. soil. Although California National Guard personnel under state control for years have built border fences and helped federal inspectors hunt for smuggled narcotics, the Pentagon discontinued military anti-drug patrols after the fatal shooting by a Marine of a teenage goatherd in Texas in 1997.

The latest debate centers on a decision to place the troops, who normally serve under the states’ governors, under federal command during their stint on the border. It has taken months to work out details of the deployment, the costs of which will be picked up by the federal government.

The Pentagon ruled that the troops will operate under the supervision of the three federal border agencies they are assigned to help. “We were asked to give federal assistance on federal borders by federal agencies,” Halbig said.

Precise duties are still being worked out. Pentagon officials said the troops would not be armed, though a National Guard official in California said some would be.

Pentagon officials said they have no intention of allowing Guard members to act as police--or to turn the border into an armed camp.

“We do not want to militarize the border. That is not our desire,” Halbig said.

“The law of the land is still the law of the land, and we still respect that,” he added. “We won’t be putting our people in positions where they have to arrest or apprehend.”

However, the mere deployment of troops on the border under federal, rather than state, command might violate the Posse Comitatus Act barring U.S. forces from domestic law enforcement work, said Maj. Gen. Paul D. Monroe, who commands the 22,000-member California National Guard.

The 1878 law, crafted to curtail the use of Army soldiers in law enforcement after the Civil War, forbids the military from engaging in police activities “except in cases or under circumstances expressly authorized by the Constitution or Act of Congress.” It does not apply to National Guard troops under state control.

Monroe said he and other officials from border states favored deploying the troops under state command, using federal funding as provided for under Title 32 of the U.S. Code. Monroe said that arrangement would avoid potential legal questions surrounding the use of soldiers for law enforcement on U.S. soil.

He expressed concern that Guard members could be exposed to lawsuits stemming from their border duties if they are found to be working in violation of the Posse Comitatus law. “It’s very risky for our people. Most of our people are good soldiers, and they’re going to do what they’re asked to do,” Monroe said.

The military’s role in domestic security has prompted new discussion since the terrorist attacks, which to many blurred distinctions between crime and warfare. Sen. John Warner, a Virginia Republican, has proposed that the Posse Comitatus doctrine be reexamined in light of the recent events.

“The world has dramatically changed; our way of life has forever changed. Should this law now be changed to enable our active-duty military to more fully join other domestic assets in this war against terrorism?” Warner wrote to Defense Secretary Donald H. Rumsfeld in October.

Other experts say placing troops on the border is inappropriate except under narrow circumstances or a national emergency.

“As real as the terrorist threat is--and it is very real--we have no dire, temporary emergency on our borders of the kind and quality to warrant a constitutionally based use by the president of our federal troops to enforce the civil law inside the United States,” retired Brig. Gen. Joseph R. Barnes, a former ranking military law specialist, wrote in a recent commentary.

Others who have long decried the use of troops at the border said the planned deployment represents a dangerous new militarization. “This is setting a new level of the federal government on the border that’s not trained to deal with civilians,” said Roberto Martinez, a migrant rights activist.

A spokesman for Sen. Dianne Feinstein (D-Calif.) said she is considering legislation to expand the role of the Guard in homeland security. She also is willing to sit down with Defense officials and California National Guard commanders to try to resolve misgivings about federal control over troops on the border.

The six-month duty is meant to give customs and the INS time to hire and train more inspectors to ease the flow of traffic at crossings, where stricter controls since Sept. 11 have led at times to long delays, officials said.

“They’ll be used primarily to provide a heightened security presence at all the locations--primarily at the ports of entry,” said Virginia Kice, an INS spokeswoman in Laguna Niguel. “It’s not that the Guard will be doing immigration enforcement. They won’t. But they’ll be doing valuable support duties.”

The use of the National Guard at the border isn’t new. California Guard troops have helped inspectors on the Mexican border hunt for illegal drugs for more than a decade, and have built border fences and patrol roads. About 200 troops are assigned to aid the Border Patrol in construction and help customs inspectors find and remove drugs hidden in vehicles.

“They’ve acted as an extra set of eyes and hands, allowing inspectors to be freed up to man the booths and the pre-primary [inspection] areas,” said Vince Bond, a customs spokesman in San Diego.

Monroe said, however, that the Guard members on anti-drug duty have worked under the governor’s command, rather than that of the federal government.

The California troops are to be called up by March 4 and sent for training at a military base in Washington state before reporting to the border in mid-March.