OPINION:
President Trump’s action in dispatching troops to the southern border is meant to deter the caravan of illegal immigrants approaching from Mexico. Whether or not this works remains to be seen. However, the past use of the use of federal troops on Mexican border has largely been a paper tiger. Without some significant changes, this deployment will be no different. The problem is Posse Comitatus legislation, which forbids the use of Army — and later Air Force personnel — from arresting civilians in this country.
In past deployments of federal forces to the border, troops using advanced detection and observation devices were able to spot vast numbers of illegal immigrants and drug runners as they made crossings, but there were not enough law enforcement officials to act on these sightings and a significant majority of the line crossers eluded apprehension. The military personnel could observe and report, but could not make apprehensions. In the late 1990s, Marines from the organization that I commanded on Okinawa were deployed to the border to assist law enforcement personnel — particularly the Border Patrol.
It was good training for people from my Force Reconnaissance Company and Intelligence Battalion in operating their advanced night vision and a sensor equipment, but it was a very frustrating experience for the Marines as 80 percent of their sightings were not acted on. Until Posse Comitatus is modified, the use of military forces on the border will remain only marginally effective.
In theory, Posse Comitatus is a natural extension of the American tradition of not wanting to use military forces in a police capacity. After all, it was the use of British troops to enforce unpopular tax laws that was the spark that ignited the American Revolution. In theory, the original Posse Comitatus legislation was in reaction to President Lincoln’s alleged abuse of the law in allowing Union soldiers to detain rebel sympathizers during the Civil War. But the actual cause of the original 1879 legislation was far more sinister.
In the aftermath of the Civil War, federal occupation troops were used to enforce voting rights and other civil rights laws for freed black Americans in the states that comprised the defeated Confederacy. This reform legislation was very unpopular with many Southern whites. When those citizens regained voting rights, they began to pressure Congress to withdraw the federal troops knowing that state and local law enforcement would not enforce existing civil rights laws.
This all came about because Samuel Tilden, a Democrat, had beaten Republican nominee Rutherford Hayes in the popular vote during the 1876 presidential election. In the compromise off 1877, several Southern states agreed to support Hayes in the Electoral College in exchange for the withdrawal of federal troops from the South. Posse Comitatus was the eventual result. Consequently, it can be argued that Posse Comitatus was the root cause of a century of Jim Crow repression south of the Mason-Dixon line.
If President Trump wants to effectively use troops on the border, he needs to find a way to amend the 1878 Posse Comitatus Act to allow arrest of foreign nationals violating the border or to take advantage of weaknesses in the law. Amending the current law would have been relatively easy when Republicans controlled both houses of Congress, and he can still do it during the lame duck session. If he waits, a Democratic-controlled House will make things difficult for him. If he acts promptly, it would only take a couple of amended sentences to change the law to allow the military to apprehend illegal aliens.
Mr. Trump can also use a little-known loophole in the present law if he so desires. The present law only mentions the Army and Air Force (the Air Force was included in 1956). Although the Navy and Marine Corps are not specifically mentioned, Navy Department internal policies have brought those two armed services in line with Posse Comitatus restrictions on the use of Marines and sailors for law enforcement purposes. The president can easily overrule the Navy Department by Executive Order and use naval personnel for apprehension of illegal border crossers. That would provide a much-enhanced deterrent.
A word of caution is in order here. Any use of the military on the border should be limited to such a time when a greatly enlarged Border Patrol presence can be funded, recruited and trained. Historically, armies used primarily for enforcing civil laws have been poor at war fighting. Funding more real border cops is the only long-term answer.
• Gary Anderson lectures on alternative analysis at the George Washington University’s Elliott School for International Affairs.
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