This is an adapted excerpt from the Jan. 25 episode of Velshi.
In the first hours of Donald Trump’s second presidency, his new administration started directing the nation’s most powerful agencies to carry out his campaign promises regarding immigration, including activating the Defense Department, the strongest military in the world, to aid in the effort.
The law’s lack of clarity, combined with the vagueness of some of Trump’s executive actions, gives a concerning amount of leeway to the president.
On Trump’s first day in office, he signed a handful of executive actions to launch his promised crackdown on immigration. One of those actions invoked the National Emergencies Act at the southern border, which empowers the military to support border patrol.
On Friday, the first wave of active duty U.S. troops arrived in El Paso, Texas. Military officials told NBC News that in the coming days, they expect to receive 1,500 active duty troops in the city to help support the 2,500 already on the ground with the southern border mission.
The Trump administration is also using military planes to deport migrants to countries who are already in detention in the U.S.
According to a briefing document obtained by The Washington Post, Trump plans to send 10,000 troops to the southern border. Sending active-duty troops to the border is not new and it is legal — both Presidents Joe Biden and Barack Obama sent active-duty troops to the border at certain points in their presidencies. But, it becomes illegal when active-duty members of the U.S. military start carrying out law enforcement functions.
There is a federal law that limits what the military can and can’t do on U.S. soil. The Posse Comitatus Act was passed in 1878 as a response to the abuse of military power during the Civil War and Reconstruction. The act says clearly that federal military forces cannot participate in civilian law enforcement.
On paper, that means U.S. military personnel cannot interfere in civilian affairs or execute laws. This would mean, in theory, that the troops sent to the border cannot detain immigrants, seize drugs from smugglers, or have any direct involvement in deporting migrants.
It’s not that that work isn’t important, but it’s police work, customs work, ATF work — not military work. And that’s an important distinction. However, the Posse Comitatus Act is vague and contains gaps.
For example, not all members of the military are covered by the act. Despite its name, activated members of the National Guard are not, actually, national. According to the Brennan Center for Justice, “Members of the National Guard are rarely covered by the Posse Comitatus Act because they usually report to their state or territory’s governor. That means they are free to participate in law enforcement if doing so is consistent with state law.”
The law’s lack of clarity, combined with the vagueness of some of Trump’s executive actions, gives a concerning amount of leeway to the president. One of his executive orders tests the legal limits of using the military to enforce domestic operations.
That order, titled “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States,” states: “It is the policy of the United States to ensure that the Armed Forces of the United States prioritize the protection of the sovereignty and territorial integrity of the United States along our national borders.”
The words “sovereignty” and “territorial integrity” are written a total of 19 times throughout that one executive order — an executive order that focuses on immigration, not physical territory or land borders.
Under the section titled “Implementation,” Trump orders the secretary of defense to come up with a plan that assigns U.S. Northern Command — which is tasked with providing military support in North America — the mission to:
“[S]eal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”
The term “territorial integrity” is typically used in regard to border disputes and annexations by other countries — like, if Canada tried to take over an American state. In fact, it’s a principle under international law, cemented in the United Nations charter, that says sovereign states have the right to defend their borders and territories from other nations trying to take their land by force. For example, Ukraine might accuse Russia of disrespecting its “territorial integrity” by invading its borders and attempting to claim parts of its sovereign land. So, you can see how Trump’s invocation of “territorial integrity,” as it relates to migrants coming into America, is not the same. What Trump appears to be doing is equating immigration with territorial integrity in order to justify the use of the military at the border. Trump has spent years fearmongering about immigration. It dates all the way back to his foray into politics in 2015 and that fateful ride down the escalator at Trump Tower. He’s painted migrants who cross the border from Mexico as drug dealers, criminals, murderers and rapists. What Trump appears to be doing is equating immigration with territorial integrity in order to justify the use of the military at the border. For many people in America, that tactic worked. They listened and they believed him. And now he’s using the fear that he created to validate the use of the military to deter immigration and “ensure that the Armed Forces of the United States prioritize the protection of the sovereignty and territorial integrity of the U.S.” Now, you may have strong opinions about migrants, asylum-seekers and refugees. You may think they don’t belong here. But the fact is, they don’t threaten America’s sovereignty. They are not a risk to our territorial integrity. That’s just another fear tactic that gets us dangerously close to crossing the Rubicon — and dangerously close to the U.S. military becoming the commander-in-chief’s own personal police force or militia. Using the military to police civilians on U.S. soil flies in the face of core American values. The situation at the border is a problem that needs to be addressed. But there are solutions that don’t involve compromising the integrity of the military and lying about its purpose. That includes appointing more immigration judges, investing in technology that helps secure the border and building more barriers like Trump is always talking about. (Of course, the president didn’t forget to include “the wall” in at least one of those executive orders.) But at the end of the day, this crisis does not demand the closure of the border with the assistance of the U.S. military. Despite what Trump may want you to believe, this is not a national emergency; this is not an invasion; this is not a war. Dina Moss and Allison Detzel contributed.
Ali Velshi is the host of “Velshi,” which airs Saturdays and Sundays on MSNBC. He has been awarded the National Headliner Award for Business & Consumer Reporting for “How the Wheels Came Off,” a special on the near collapse of the American auto industry. His work on disabled workers and Chicago’s red-light camera scandal in 2016 earned him two News and Documentary Emmy Award nominations, adding to a nomination in 2010 for his terrorism coverage.
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