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Does Trump’s new border directive violate federal law?

More than 5,700 service members are providing support at the U.S.-Mexico border. Now, the president has authorized troops to defend border patrol agents, “including a show or use of force (including lethal force).” Nick Schifrin talks to former Army lawyer Geoffrey Corn, who teaches at South Texas College of Law Houston, about how Secretary of Defense James Mattis is walking a legal “tight rope.”

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  • Judy Woodruff:

    For weeks, U.S. military forces have been deployed to defend the U.S. border with Mexico, as news reports spread about almost 10,000 migrants and asylum seekers.

    Until now, the military has insisted these troops were not armed and would not confront would-be migrants.

    But a new directive from the White House includes the words "lethal force," leading to new questions about what those troops are authorized to do.

    Nick Schifrin has the story.

  • Nick Schifrin:

    More than 5,700 service members are deployed to the U.S.-Mexico border. Their mission has been support, installing concertina wire, reinforcing ports of entry, sending helicopters to move Border Patrol agents.

    But, overnight, the president went further than that, issuing a directive that authorized troops to defend Border Patrol agents — quote — "including a show or use of force, including lethal force where necessary, crowd control, temporary detention, and cursory search."

    Federal law restricts when military force can be used domestically. So does this directive violate the law? And what does it actually mean troops will be doing?

    To talk about that, I welcome retired Lieutenant Colonel Geoffrey Corn, professor of law at South Texas College of Law-Houston and a former Army lawyer.

    Professor Corn, thank you very much for being on the "NewsHour."

    Does the phrase show or use of force, including lethal force where necessary, violate the law?

  • Geoffrey Corn:

    Well, it's definitely troubling because the law is clear that, absent invocation of a law called the Insurrection Act, the president is not supposed to deploy federal active-duty military forces to engage in law enforcement-type activity.

    Having read the order, it seems to me that the administration is trying to walk a tightrope, arguing that this use of force, if necessary, would be limited to extreme situations, where it was necessary to protect a vital federal function, namely, the actual Customs and Border Patrol agents, if they were to be subjected to some type of mass attack that would overwhelm them.

    But whenever you start to cross that line, you're going to raise a lot of questions about whether this very significant law called the Posse Comitatus Act is being set up for violation.

  • Nick Schifrin:

    So, Secretary Mattis tried to walk the tightrope, as you said. And let's take a listen to how he defended this order that he has been given.

  • James Mattis:

    There has been no call for any lethal force from DHS. We don't have guns in their hands right now, so there is no armed element going in. I will determine it based upon what DHS asks for in a mission analysis.

  • Question:

    Just to clarify, there's no call for it, but they do have the authority to use lethal force if needed?

  • James Mattis:

    I have the authority.

  • Question:

    You do, yes?

  • James Mattis:

    Yes, but we are not — we are not even employing — you have seen the pictures of the guns. They're not even carrying guns, so just relax.

  • Question:

    OK.

  • James Mattis:

    Don't worry about it, OK?

  • Nick Schifrin:

    "Relax. Don't worry about it," because the Department of Homeland Security hasn't asked for the use of force.

    And relax, frankly, because, to quote James Mattis, I'm James Mattis.

    Is that good enough?

  • Geoffrey Corn:

    Well, look, I think the secretary is trying to emphasize that whatever interpretations of this authority people like me or other observers might want to adopt, his view is extremely limited, and that it would only be relevant, again, in a situation where these forces that are performing lawful support missions were to encounter a situation where somebody, a Custom Border Patrol agent's life was actually put in jeopardy by some type of overwhelming assault.

  • Nick Schifrin:

    Is part of the problem here that Secretary Mattis is basically saying, trust me, as James Mattis, rather than having some kind of institutional arrangement?

  • Geoffrey Corn:

    Well, I don't think that's a problem. I think that's something we should all be — take some comfort in.

    The secretary is the conduit between the president and the forces that are going to conduct these missions through the chain of command, through Northern Command. And the secretary is advised by very competent lawyers, and those lawyers are advising the secretary that there are strict limits on when federal military forces can engage in activity like using force, like detaining people, and like searching or seizing them in any way.

  • Nick Schifrin:

    The directive also mentions temporary detention and cursory search.

    And let's listen to what Secretary Mattis had to say about that.

  • James Mattis:

    We do not have arrest authority. Detention, I would put it in terms of minutes. In other words, if someone's beating on a Border Patrol man, and if we were in position to have to do something about it, we could stop them from beating on them and take them over and deliver them to a Border Patrol man, who would then arrest them.

    There's no violation of Posse Comitatus. There's no violation here at all.

  • Nick Schifrin:

    Again, is that good enough?

  • Geoffrey Corn:

    Well, look, this is a manifestation of what is actually embedded in certain Department of Defense regulations and instructions called the Commander's Emergency Response Authority.

    So, what Secretary Mattis again is emphasizing is that it really is a commonsense principle. If a junior commander or squad leader is out in the field conducting a logistics mission, and they observe somebody's life being put in jeopardy by an unlawful act of violence, what would we expect them to do? To stand by and watch a Border Patrol agent be beaten to death? Of course not.

    If this is all this means, then I think it is consistent with the kind of customary, very, very narrow limit of the ability of the military to act in response to a dire emergency that's right in front of them.

    But, again, if it's implemented in a broader fashion, if we start to deploy federal military forces to look for situations where they might be needed, then I think it's a recipe for a violation of the Posse Comitatus Act, because they might end up intervening in situations where that extreme need is not apparent.

  • Nick Schifrin:

    Professor Geoffrey Corn, thank you very much.

  • Geoffrey Corn:

    Thank you for having me.

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