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By Sylvia Longmire
Columnist, In Homeland Security

Over the past several years, state governments and the Pentagon have sent an increasing number of National Guard troops and military soldiers to the southwest border. Historically, the intent has been to only provide logistical and surveillance assistance to Customs and Border Protection (CBP) and Border Patrol agents. However, the Department of Defense (DoD) is preparing to loosen rules that prohibit troops from interacting with migrants entering the United States.

According to the Washington Post, senior DOD officials have recommended that Acting Defense Secretary Patrick Shanahan approve a new request from the Department of Homeland Security (DHS) to provide military lawyers, cooks and drivers to assist with handling a surge of migrants along the southwest border. Complying with this request would require authorizing waivers for approximately 300 troops to a long-standing policy prohibiting military personnel from coming into contact with migrants. The request would cost an estimated $21.9 million.

Posse Comitatus Law

National Guard and military troops have had some measure of contact with migrants before. A waiver has previously been provided to allow soldiers to offer emergency medical care to migrants.

Due to the rules under the posse comitatus law, soldiers are not allowed to arrest, apprehend or otherwise detain illegal immigrants. They are only allowed to notify Border Patrol agents of their location so those agents can make the apprehensions. The proposal documents note that military personnel would remain in a “segregated driver’s compartment” when driving migrants to detention facilities. CBP officials would provide security on those transfers.

The Post report indicated that as part of the proposal, military lawyers would assist with deportation hearings in immigration courts across the country. Military officers and DoD leadership have expressed concern that this would politicize an organization that is supposed to remain nonpartisan.

Military attorneys also don’t have any experience or training in dealing with immigration disputes or proceedings. Troops would also be asked to hand out snacks and refreshments to migrants, a duty labeled as “babysitting” by CBP agents.

Partisan Domestic Engagement

The largest concern expressed by outside observers is that DoD is embarking on a slippery slope towards a law enforcement role, and potentially crossing the line between nonpartisan overseas military activity and partisan domestic engagement. Alice Hunt Friend, a former Pentagon policy official and senior fellow at the Center for Strategic and International Studies, told the Post, “To lean on the military to handle these functions that are not military in nature is essentially choosing to not invest in governance and relying on the military to make up the gap.” She continued, “We’ve seen that happen overseas for years, and now we’re seeing it at home and that’s very concerning.”

When President Trump invoked a national emergency several weeks ago in order to obtain additional funding for border fence construction, his first stop was DoD. More than $3 billion is being pulled from various military construction projects and counterdrug programs to be used ostensibly for border fence construction.

Border Patrol agents welcome the military assistance, especially since they have been taken away from law enforcement duties along the border in order to care for migrants at detention facilities. The proposal did not specify whether the military personnel conducting new border-related duties would be armed.