Military on border OK in certain instances

By: 

Richard W. Kucksdorf Special to the Leader

Is it legal for the military to be on the border? Has the military ever been on the border before? Is our National Security at risk? Can we use active duty, reserve and National Guard military?

The legal discussion for use of the military has been debated since our beginnings. In the early years of the United States, there were incidents involving use of the military by the U.S. government. In 1807, we had the Insurrection Act, designed to quell rebellions. Following the Civil War, abuses by occupying federal troops and carpet baggers in the South resulted in the law known as the Posse Comitatus Act.

The purpose and intent of these two laws is to limit the use of federal military troops to enforce domestic policies within the United States. To be clear these laws are aimed at the use of active military except for the Coast Guard, which operates under Homeland Security.

These laws do not apply to the National Guard and the Air National Guard under state authority nor to a National Guard unit when and if invited by another state. Wisconsin units have been in Florida, Texas, and Mississippi in recent years.

In 1957, Dwight Eisenhower sent federal troops to Little Rock, Arkansas, to support desegregation. In September 1962 and June 1963, John F. Kennedy mobilized National Guard troops to integrate schools. Lyndon Johnson mobilized the National Guard to assist with civil rights riots in Selma and Montgomery in 1965 and again in 1967 for the Detroit riots.

Following the murder of Dr. Martin Luther King in 1968, Chicago, Washington D.C. and Baltimore saw mobilized National Guard troops. Richard Nixon mobilized troops to help with the New York postal strike. George Bush the elder mobilized the National Guard to help stop looting following Hurricane Hugo in 1989 and again to help with riots in 1992 following the Rodney King verdict.

The military has always been on our borders. George Bush the younger mobilized the National Guard for operation Jump Start, and Barack Obama mobilized the National Guard for operation Phalanx.

President Donald Trump can also place the National Guard on the border, but it depends what the mission is. The United States Border Patrol (USBP) mission is to detect and prevent illegal aliens, terrorists and terrorists weapons from entering the United States, and prevent illegal trafficking of people and contraband into the United States. The USBP has been overwhelmed and will be overwhelmed when the many new caravans of migrants attempt to storm our southern border.

Do people storming our border present a national security issue? President Trump took an oath to protect American citizens from all enemies foreign and domestic, so is using the military an option?

Can you answer yes to the following questions? Do we have illegal aliens in the U.S.? Do we have illegal contraband and drugs coming across the border? Is there human trafficking? Are there gangs with illegal aliens operating in our large cities? Are there many families that have had family members killed by illegal aliens living in the U.S.? Do any of these describe a national security risk?

What can we do? Should we build a wall? How can we build a wall? The Army National Guard has 151 company-sized engineer units. Add to that Air Guard engineers, and then there are the reserves (Army, Navy, Marines) that also have company-sized engineer units, let’s not forget the active duty engineers.

The reserve and National Guard units are already funded for two weeks of annual training each year. I suggest diverting them to our southern border. Equipment from several states can be positioned at four different locations. Sixteen National Guard units building in opposing directions from four locations equals eight separate construction operations. These units, and other units to support them, could literally work around the clock, with units taking turns “on duty” and “off duty.”

Again, they are already funded under current budgets.

National Guard and reserve units are mobilized under two types of orders. Title 10 is federal, which are the orders I was mobilized under when I was activated for several years. Wisconsin National Guard troops can go to a neighboring state to assist and not be in violation of the Posse Comitatus Act when mobilized under Title 32.

The mission that these troops perform determines the orders under which they would be mobilized. If a governor opposes the mobilization of their state’s National Guard, the president will just mobilize them under Title 10 making that unit a federal unit and no longer under the control of the governor.

Richard W. Kucksdorf is a retired U.S. Army colonel residing in Bonduel. Kucksdorf has other writings on his website, “Observations From Flyover Country,” at rwkucksdorf.com.