Pentagon & Congress

Loophole in law governing American military use on U.S. soil raises concerns

Following vows from President Donald Trump last month to use active-duty troops to help enforce order in American cities, a Democratic senator wants lawmakers to close a loophole in federal law allowing such actions without congressional approval.

Sen. Tom Udall, D-N.M. and a member of the Senate Appropriations Committee’s defense panel, on Wednesday will offer an amendment to the pending defense authorization bill to make the Posse Comitatus Act apply to all military troops, regardless of their activation orders.

“The American military should not be the president’s tool to enforce his dangerous political agenda against his own citizens,” Udall told Military Times. “Congress must work to prevent any scenario in which our military, an institution sworn to protect and uphold our Constitution and freedom, is instead used as a weapon to suppress Americans’ First Amendment rights.”

Texas Guardsmen from El Paso's 3rd Battalion 133 Field Artillery Regiment assist at the Del Rio sector's weapons range for U.S. Customs and Border Protection in this May 16, 2018, photo. The troops' efforts cut the workloads of the CBP agents by running the range and lessens the time the range is down. (Sgt. 1st Class Suzanne Ringle/Army)
This federal law limits what US troops deployed at the border can do

The more than 5,200 active-duty troops being sent by President Donald Trump to the U.S.-Mexico border will be limited in what they can do under a federal law that restricts the military from engaging in law enforcement on American soil.

Whether the proposal gets serious legislative consideration remains unclear. Republican Senate leaders have not clarified which if any amendments will be debated and voted on by the full chamber in coming days.

But the New Mexico lawmaker hopes that the measure can spark a conversation about the potential limitations of the Posse Comitatus Act, an 1878 law which prohibits federal troops from engaging in most domestic law enforcement activities.

The issue has come up several times in recent years, with Trump’s decision to deploy active-duty troops to the U.S. southern border to help with some Department of Homeland Security operations there.

More recently, amid nationwide protests on racial inequality and police brutality, Trump suggested he may use active-duty troops to “dominate” the streets of American cities, with or without the blessing of state governors.

In addition, Defense Secretary Mark Esper and Joint Chiefs Chairman Gen. Mark Milley are scheduled to testify before the House Armed Services Committee next week about the potential overreaction of National Guard forces in the protest response.

Under current law, the Posse Comitatus Act applies to active-duty forces and National Guard units activated under Title 10 orders, for federal-level missions.

But Guardsmen can also be activated under Title 32 orders, for state-level missions. The limitations on domestic law enforcement activities aren’t the same, and Udall called Trump’s recent comments about using those forces to rein in protesters troubling.

Udall believes passing the amendment would prevent the president from taking any such actions in the future.

The proposal exempts disaster relief efforts and would not affect Guard units’ ability to conduct certain counter-drug and homeland defense activities.

Nor would it make any changes to the Insurrection Act, which allows the president to activate troops during emergencies to perform certain law enforcement duties, with or without a governor’s request.

Senate officials are expected to pass the defense authorization act later this month.

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