Legal experts have warned that use of deadly force could run in violation of the Posse Comitatus Act, described here by the Military Times.
The Congressional Research Service, the non-partisan research agency for Congress, has found that “case law indicates that ‘execution of the law’ in violation of the Posse Comitatus Act occurs (a) when the Armed Forces perform tasks assigned to an organ of civil government, or (b) when the Armed Forces perform tasks assigned to them solely for purposes of civilian government.” However, the law also allows the president “to use military force to suppress insurrection or to enforce federal authority,” CRS has found.
Military forces always have the inherent right to self defense, but defense of the border agents on U.S. soil is new. In addition, troops have been given additional authorities in previous years to assist border agents with drug interdictions, but the widespread authorization of use of force for thousands of active-duty troops is unique to this deployment.
In remarks Wednesday reported by the Military Times, Sec. Mattis said he had no plans at present to change the nature of the military’s border mission away from providing non-lethal support to civilian leadership. But ultimately, Sec. Nielsen could put Mattis on the spot, asking him to deliver on force he hasn’t shown an inclination to use.
Mattis said Wednesday while the authorities for U.S. troops along the border have expanded, the Standing Rules for the Use of Force for troops deployed to the border have not changed — unless he decides they need to.
The memo directs Mattis to decide which authorities border troops may need to carry out.
“If I change the mission then something like that could happen,” Mattis said. “We have no intent of doing that right now.”
Mattis said any use of the new authorities would be shaped by what follow-on requests he gets from Department of Homeland Security Secretary Kirstjen Nielsen.
“I now have the authority to do more,” Mattis said. “Now we’ll see what [Nielsen] asks me for.”
Nielsen has a history of making unconscionable decisions and then willfully lying about them.
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