Border Security and Military Support: Legal Authorizations and Restrictions

Border Security and Military Support:

Legal Authorizations and Restrictions

name redacted

December 14, 2006

Congressional Research Service

7-....

www.crs.gov

RS22443

CRS Report for Congress

Prepared for Members and Committees of Congress

Border Security and Military Support: Legal Authorizations and Restrictions

Summary

The military generally provides support to law enforcement and immigration authorities along the

southern border. Reported escalations in criminal activity and illegal immigration, however, have

prompted some lawmakers to reevaluate the extent and type of military support that occurs in the

border region. On May 15, 2006, President Bush announced that up to 6,000 National Guard

troops would be sent to the border to support the Border Patrol. Addressing domestic laws and

activities with the military, however, might run afoul of the Posse Comitatus Act, which prohibits

use of the armed forces to perform the tasks of civilian law enforcement unless explicitly

authorized. There are alternative legal authorities for deploying the National Guard, and the

precise scope of permitted activities and funds may vary with the authority exercised. This report

will be updated as warranted.

Congressional Research Service

Border Security and Military Support: Legal Authorizations and Restrictions

Contents

Background ..........................................................................................................................1

Military Assistance Along the Border ....................................................................................2

Restrictions .....................................................................................................................2

Authorizations ................................................................................................................2

The National Guard...............................................................................................................4

State Drug Plan ...............................................................................................................4

Other Duty......................................................................................................................5

Homeland Defense Activity ............................................................................................5

Contacts

Author Contact Information ........................................................................................................6

Congressional Research Service

Border Security and Military Support: Legal Authorizations and Restrictions

Background

The Secretary of the Department of Homeland Security (DHS) is charged with preventing the

entry of terrorists, securing the borders, and carrying out immigration enforcement functions. The

Department of Defense’s (DOD) role in the execution of this responsibility is to provide support

to DHS and other federal, state and local (and in some cases foreign) law enforcement agencies,

when requested. Since the 1980s, the DOD (and National Guard), as authorized by Congress, has

conducted a wide variety of counterdrug support missions along the borders of the United States.

After the attacks of September 11, 2001, military support was expanded to include

counterterrorism activities. Although the DOD does not have the “assigned responsibility to stop

terrorists from coming across our borders,”1 its support role in counterdrug and counterterrorism

efforts appears to have increased the Department’s profile in border security.

Some states, particularly those along the southern border that are experiencing reported

escalations in crime and illegal immigration, are welcoming the increased military role and have

taken steps to procure additional military resources. Governor Janet Napolitano of Arizona, for

example, sent the DOD a request for federal funding to support the state’s deployment of National

Guard troops to the border after reportedly exhausting available state resources for combating

illegal immigration and drug trafficking.2 Others view the increased presence of military support

along the borders as undiplomatic, potentially dangerous,3 and a further strain on already

overextended military resources.4 Nonetheless, the concerns over aliens and smugglers exploiting

the porous southern border continue to grow, and some now argue that the military should play a

much larger and more direct role in border security.

On May 15, 2006, President Bush announced that up to 6,000 National Guard troops would be

sent to the southern border to support the Border Patrol. According to the President, the Guard

will assist the Border Patrol by operating surveillance systems, analyzing intelligence, installing

fences and vehicle barriers, building roads, and providing training.5 Guard units will not be

involved in direct law-enforcement activities and will be under the control of the Governors. The

Administration has indicated that the vast majority of the force at the border would be drawn

from Guardsmen performing their regularly scheduled, two- or three-week annual training,

pursuant to Title 32 of the U.S. Code (see later discussion). 6 Initial deployments of Guardsmen to

the border began in June 2006 under the mission name, “Operation Jump Start.” As of November

2006, approximately 5661 guardsmen were participating in the mission.7

1

Dep’t. of Defense, Strategy for Homeland Defense and Civil Support, at 5 (June 2005) available at

http://www.fas.org/irp/agency/dod/homeland.pdf.

2

See http://azgovernor.gov/dms/upload/NR_030706%20Rumsfeld_Chertoff%20Letter.pdf.

3

In 1997, a Marine who was part of a four-man border observation team near Redford, Texas, shot and fatally

wounded an 18-year old man after reportedly taking fire. See Oversight Investigation of the Death of Esequiel

Hernandez, Jr., A Report of Chairman Lamar Smith to the Subcommittee on Immigration and Claims of the Committee

on the Judiciary, 105th Cong. 2d Sess. (Nov. 1998).

4

Peter Baker, Bush Set to Send Guard to Border, THE WASHINGTON POST, May 15, 2006.

5

Stephen Dinan, Bush Calls for Guard on Border, THE WASHINGTON TIMES, May 16, 2006.

6

The White House, Press Briefing on the President’s Immigration Reform Plan, May 16, 2006, available at

http://www.whitehouse.gov/news/releases/2006/05/20060516-2.html.

7

See CRS Report RS22451, National Guard Personnel and Deployments: Fact Sheet, by (name redacted) and

JoAnne O’Bryant.

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Border Security and Military Support: Legal Authorizations and Restrictions

In the 109th Congress, Senate-passed S. 2611 and House-passed H.R. 5122, as well as H.R. 1986,

H.R. 3938, and H.R. 3333, would have authorized, under certain parameters, the use of military

forces or the National Guard along the border.

Military Assistance Along the Border

The military does not appear to have a direct legislative mandate to protect or patrol the border or

to engage in immigration enforcement. Indeed, direct military involvement in law enforcement

activities without proper statutory authorization might run afoul of the Posse Comitatus Act.8 The

military does have, however, general legislative authority that allows it to provide support to

federal, state, and local law enforcement agencies (LEA) in counterdrug and counterterrorism

efforts, which might indirectly provide border security and immigration control assistance.

Military personnel for these operations are drawn from the active and reserve forces of the

military and from the National Guard.

Restrictions

The primary restriction on military participation in civilian law enforcement activities is the Posse

Comitatus Act (PCA).9 The PCA prohibits the use of the Army and Air Force to execute the

domestic laws of the United States except where expressly authorized by the Constitution or

Congress. The PCA has been further applied to the Navy and Marine Corps by legislative and

administrative supplements. For example, 10 U.S.C. §375, directs the Secretary of Defense to

promulgate regulations forbidding the direct participation “by a member of the Army, Navy, Air

Force, or Marines in a search, seizure, arrest, or other similar activity” during support activities to

civilian law enforcement agencies. DOD issued Directive 5525.5, which outlines its policies and

procedures for supporting federal, state, and local LEAs. According to the Directive, the

following forms of direct assistance are prohibited: (1) interdiction of a vehicle, vessel, aircraft,

or other similar activity; (2) a search or seizure; (3) an arrest, apprehension, stop and frisk, or

similar activity; and (4) use of military personnel in the pursuit of individuals, or as undercover

agents, informants, investigators, or interrogators. It is generally accepted that the PCA does not

apply to the actions of the National Guard when not in federal service.10 As a matter of policy,

however, National Guard regulations stipulate that its personnel are not, except for exigent

circumstances or as otherwise authorized, to directly participate in the arrest or search of suspects

or the general public.11

Authorizations

The PCA does not apply “in cases and under circumstances expressly authorized by the

Constitution.” Under the Constitution, Congress is empowered to call forth the militia to execute

the laws of the Union.12 The Constitution, however, contains no provision expressly authorizing

8

For a more complete discussion of the Posse Comitatus Act, see CRS Report 95-964, The Posse Comitatus Act and

Related Matters: The Use of the Military to Execute Civilian Law, by (name redacted).

9

18 U.S.C. §1385.

10

See CRS Report 95-964, at 42 (citing numerous cases); see also DOD Directive 5525.5.

11

NGR 500-2/ANGI 10-801, National Guard Counterdrug Support, March 31, 2000.

12

U.S. Const. Art. I, §8, cl. 15. In addition, the PCA does not apply to actions furthering a military purpose. See CRS

Report 95-964, at 31 (describing the exception).

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Border Security and Military Support: Legal Authorizations and Restrictions

the President to use the military to execute the law. The question of whether the constitutional

exception includes instances where the President is acting under implied or inherent constitutional

powers is one the courts have yet to answer. DOD regulations, nonetheless, do assert two

constitutionally based exceptions—sudden emergencies and protection of federal property.13 The

PCA also does not apply where Congress has expressly authorized use of the military to execute

the law. Congress has done so in three ways: by giving a branch of the armed forces civilian law

enforcement authority (e.g., the Coast Guard), by addressing certain circumstances with more

narrowly crafted legislation, 14 and by establishing general rules for certain types of assistance.

The military indirectly supports border security and immigration control efforts under general

legislation that authorizes the armed forces to support federal, state, and local LEAs. Since the

early 1980s, Congress has periodically authorized an expanded role for the military in providing

support to LEAs. Basic authority for most DOD assistance was originally passed in 1981 and is

contained in Chapter 18 of Title 10 of the U.S. Code—Military Support for Civilian Law

Enforcement Agencies. Under Chapter 18 of Title 10, Congress authorizes DOD to share

information (§371); loan equipment and facilities (§372); provide expert advice and training

(§373); and maintain and operate equipment (§374). For federal LEAs, DOD personnel may be

made available, under §374, to maintain and operate equipment in conjunction with

counterterrorism operations (including the rendition of a suspected terrorist from a foreign

country) or the enforcement of counterdrug laws, immigration laws, and customs requirements.

For any civilian LEA, §374 allows DOD personnel to maintain and operate equipment for a

variety of purposes, including aerial reconnaissance and the detection, monitoring, and

communication of air and sea traffic, and of surface traffic outside the United States or within

25 miles of U.S. borders, if first detected outside the border. Congress placed several stipulations

on Chapter 18 assistance, e.g., LEAs must reimburse DOD for the support it provides unless the

support “is provided in the normal course of military training or operations” or if it “results in a

benefit...substantially equivalent to that which would otherwise be obtained from military

operations or training.”15 Pursuant to §376, DOD can only provide such assistance if it does not

adversely affect “the military preparedness of the United States.” Congress incorporated posse

comitatus restrictions into Chapter 18 activities in §375.

In 1989, Congress began to expand the military’s support role. For example, Congress directed

DOD, to the maximum extent practicable, to conduct military training exercises in druginterdiction areas, and made the DOD the lead federal agency for the detection and monitoring of

aerial and maritime transit of illegal drugs into the United States.16 Congress later provided

additional authorities for military support to LEAs specifically for counterdrug purposes in the

National Defense Authorization Act for FY1991.17 Section 1004 authorized DOD to extend

support in several areas to any federal, state, and local (and sometimes foreign) LEA requesting

counterdrug assistance. This section has been extended regularly and is now in force through the

end of FY2011.18

13

32 C.F.R. §215.4.

See, e.g., 10 U.S.C. §§ 331-333 (to suppress insurrections).

15

10 U.S.C. §377.

16

National Defense Authorization Act for FY1990 and 1991, P.L. 101-189, Div. A, Tit. XII, §1202(a)(1), codified at

10 U.S.C. §124. A similar provision was first passed as part of the National Defense Authorization for FY1989 (P.L.

100-456), but was repealed by P.L. 101-189.

17

P.L. 101-510, Div. A, Tit. X, §1004, codified at 10 U.S.C. §374 note.

18

P.L. 109-364, Div. A, Tit. X, §1021 (extending §1004 through FY2011).

14

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Border Security and Military Support: Legal Authorizations and Restrictions

As amended, §1004 authorizes the military to: maintain, upgrade, and repair military equipment;

transport federal, state, local, and foreign law enforcement personnel and equipment within or

outside the U.S.; establish bases for operations or training; train law enforcement personnel in

counterdrug activities; detect, monitor, and communicate movements of air, sea, and surface

traffic outside the U.S., and within 25 miles of the border if the detection occurred outside the

U.S.; construct roads, fences, and lighting along U.S. border; provide linguists and intelligence

analysis services; conduct aerial and ground reconnaissance; and establish command, control,

communication, and computer networks for improved integration of law enforcement, active

military, and National Guard activities. Section 1004 incorporates the posse comitatus restrictions

of Chapter 18.19 Unlike Chapter 18, however, this law does allow support which could affect

military readiness in the short-term, provided the Secretary of Defense believes the support

outweighs such short-term adverse effect.

The National Guard

The National Guard is a military force that is shared by the states and the federal government

and often assists in counterdrug and counterrrorism efforts. After September 11, for example,

President Bush deployed roughly 1,600 National Guard troops for six-months under Title 10

authority to support federal border officials and provide a heightened security presence. 20 Under

“Title 10 duty status,” National Guard personnel operate under the control of the President,

receive federal pay and benefits, and are subject to the PCA.21 Typically, however, the National

Guard operates under the control of state and territorial Governors. In “state active duty” National

Guard personnel operate under the control of their Governor, are paid according to state law, can

perform activities authorized by state law, and are not subject to the restrictions of the PCA.

Because border security is primarily a federal concern, some states have looked to the federal

government for funding to support some of their National Guard activities. Under Title 32 of the

U.S. Code, National Guard personnel generally serve a federal purpose and receive federal pay

and benefits, but command and control remains with the Governor. This type of service is

commonly referred to as “Title 32 duty status,” and examples are discussed below. According to

the Administration, the deployment of the 6,000 Guardsmen derives its authority from 32 U.S.C.

§502(a), which allows the Secretary of the Army and Air Force to prescribe regulations for

National Guard drill and training and §502(f), described below. 22

State Drug Plan

Federal funding may be provided to a state for the implementation of a drug interdiction program

in accordance with 32 U.S.C. §112. Under this section, the Secretary of Defense may grant

funding to the Governor of a state who submits a “drug interdiction and counterdrug activities

19

Id. at §1021(g).

20

Maj. Gen. Timothy J. Lowenberg, The Role of the National Guard in National Defense and Homeland Security,

(Sept. 2005) available at http://www.findarticles.com/p/articles/mi_qa3731/is_200509/ai_n15638615/print [hereinafter

Lowenberg, The Role of the National Guard].

21

10 U.S.C. §§12301-12304. However, it appears that the National Guard could be deployed by the President under 10

U.S.C. §§331-333 and §12406 to “execute the laws of the United States.”

22

Memorandum of Agreement between the States of Arizona, California, New Mexico, and Texas and the Department

of Defense, Operation Jump Start (June 2, 2006).

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Border Security and Military Support: Legal Authorizations and Restrictions

plan” that satisfies certain statutory requirements. The Secretary of Defense is charged with

examining the sufficiency of the drug interdiction plan and determining whether the distribution

of funds would be proper. While the emphasis is certainly on counterdrug efforts, a state plan

might include some related border security and immigration-related functions that overlap with

drug interdiction activities. Arizona’s drug interdiction plan, for example, recognizes related

border issues created by human smuggling and terrain vulnerabilities with respect to the illegal

entry of aliens into the United States.23 By approving the State of Arizona’s drug interdiction plan,

the Secretary of Defense has enabled the Arizona National Guard to engage in some border

security measures.

Other Duty

Section 502(f) of Title 32 has been used to expand the operational scope of the National Guard

beyond its specified duties. This provision provides that “a member of the National Guard may ...

without his consent, but with the pay and allowances provided by law ... be ordered to perform

training or other duty” in addition to those he is already prescribed to perform (emphasis added).

This is the provision of law that was used to provide federal pay and benefits to the National

Guard personnel who provided security at many of the nation’s airports after September 11 and

who participated in Katrina and Rita-related disaster relief operations. States, such as Arizona,

have argued that the “other duty” language should be liberally applied (like it was for Hurricane

Katrina and Rita) to include activities associated with border security efforts.24 Some question,

however, whether domestic operations, in general, are a proper use of this Title 32 authority.25

Homeland Defense Activity

In 2004, Congress passed another law that could arguably provide federal funding for National

Guard personnel conducting border security operations under Title 32.26 Chapter 9 of Title 32 of

the U.S. Code authorizes the Secretary of Defense to provide federal funding at his discretion to a

state, under the authority of the Governor of that state, for the use of their National Guard forces

if there is a “necessary and appropriate” “homeland defense activity.”27 A “homeland defense

activity” is statutorily defined as “an activity undertaken for the military protection of the territory

or domestic population of the United States ... from a threat or aggression against the United

States.” Although a deployment of National Guard troops for border security purposes could

arguably be an activity “undertaken for the military protection” of a “domestic population,” it is

unclear whether the porous nature of the border or illegal entry of aliens is the type of “threat” or

“aggression” that would be “necessary and appropriate” for National Guard troops. The State of

Arizona requested federal funds for its National Guard under Chapter 9 for the performance of

homeland defense-border security activities.

23

State of Arizona, Press Release, Title 32: Statutory Funding Options (Mar. 6, 2006) http://azgovernor.gov/dms/

upload/NR_030906_%20Border%20Veto%20Legal%20Support%20Letter.pdf.

24

Id.

25

Lowenberg, The Role of the National Guard.

26

Defense Authorization Act for Fiscal Year 2005, P.L. 108-375, Div. A, Tit. V, Subtitle B, §§901-908.

27

32 U.S.C. §905.

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Border Security and Military Support: Legal Authorizations and Restrictions

Author Contact Information

(name redacted)

Congressional Research Service

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