The decision by South Dakota Gov. Kristi Noem to use a private donation to send 50 National Guard troops to Texas’s southern border has sent shockwaves through military and government oversight circles, with questions raised about the legitimacy of the move, which appears to be a first.

The move raised questions about the legalities of a privately funded deployment, not to mention the optics of sending troops across the country for what could be perceived as a political statement.

“If you go way back before the federal government, before anything close to the modern National Guard, the Guard used to approach people for money for armories,” John Goheen, spokesman for the National Guard Association of the United States, told Military Times on Wednesday.

But beyond that, he wasn’t aware of any time that Guard activities, much less a deployment, have been paid for by donation.

“You know, I’m sure the governor consulted with her attorneys,” he added.

As the Biden administration looks to lean more on civilian law enforcement to handle border crossings, a Republican governor sending in guardsmen has critics drawing comparisons to mercenaries.

“You know, that has an impact on the optics here,” Goheen said.

House Armed Services Committee Chairman Adam Smith, D-Wash., said he has asked Pentagon officials for clarification on the deployment.

“We need to question the use of the National Guard in that manner,” he told Military Times. “We need to find out what they’re doing there and how we can make it stop, because I don’t think it’s an appropriate use of the Guard.”

“I don’t know all the legalities of it. We need to understand what is going on, because this doesn’t seem to make sense.”

Legally, the Pentagon has no say in what Noem does with her state-activated troops. The National Guard is unique among military organizations in that each state’s governor is at the top of the chain of command, except in case of a federal activation, when the Defense Department has oversight.

Rep. Jared Huffman, D-Calif., wrote on Twitter that the deployment amounted to “using rightwing donor money to send National Guard troops to perform partisan political stunts.”

Rep. Eric Swalwell, D-Calif., used the social media platform to attack the move as “shameful” and blasted Noem for “using a big political donor’s money to mis-deploy troops who’ve volunteered to serve her state.”

What has disturbed so many is the appearance of Noem deploying troops as part of a political stunt.

Texas Gov. Greg Abbott announced Operation Lone Star in March, and inter-agency effort, and has since put out a call for law enforcement agencies to send back-up to the border. Noem’s response was to send in her state’s Guard.

“The border is a national security crisis that requires the kind of sustained response only the National Guard can provide,” she said in a statement. “We should not be making our own communities less safe by sending our police or Highway Patrol to fix a long-term problem President Biden’s administration seems unable or unwilling to solve.”

But if you can privately fund a deployment, can you offer up a few thousand dollars to send a couples guardsmen on temporary duty to your birthday party?

“I don’t know, time will tell on that,” Goheen said of the precedent this might set, and how it will be viewed by Americans. “I think if you polled our members, you probably get a split.”

In any case, he said, it’s likely that the 50 troops selected for the mission will be volunteers, which isn’t uncommon. Thousands have stepped up over the past year for pandemic support and support to local law enforcement in Washington, D.C.

Though state orders don’t include health care, or count as days toward federal education or retirement benefits, Goheen said it could be a good gig for guardsmen looking for the work.

As far as the unusual form of financing, Noem has authority under South Dakota law to accept donations for emergency management, spokesman Ian Fury tweeted on Tuesday.

Fury confirmed to Military Times on Wednesday that the deployment will be part of an Emergency Management Assistance Compact, a common mechanism for interstate Guard deployments.

But this one would be somewhat unconventional. For example, when Georgia sends troops to Florida to help with hurricane relief, Florida foots the bill, and those guardsmen are in the host state’s chain of command.

EMAC legislation does allow for other funding plans as long as all sides agree. The plan is to route the funds to Texas through South Dakota’s emergency and disaster fund, Fury said.

There’s nothing unprecedented about a state sending some of its troops to help out in a crisis. It happens every year during hurricane season, and has been going on for three years now at the southern border, where guardsmen from California, Arizona and Texas have been supporting Customs and Border Protection.

Roughly 4,000 guardsmen are still at the border, at least through September. After that, officials have said their mission will end, as President Joe Biden in January officially canceled former President Donald Trump’s declaration of an emergency at the southern border.

There has been talk of the Homeland Security Department requesting continued support, however.

Noem hasn’t yet released details about the military occupational specialties of the guardsmen, or what their mission will be. Federally activated troops are supporting CBP at the request of DHS. South Dakota’s guardsmen would likely integrate into the Operation Lone Star chain of command, which includes Texas guardsmen.

The South Dakota National Guard referred all questions to the governor’s office.

“For operational security reasons, I cannot get into specific details of the mission,” Fury said.

The unusual mobilization isn’t lost on NGAUS.

“This has gotten more attention than any other deployment of 50 troops I’ve ever seen,” Goheen said.

Davis Winkie contributed to this report.

Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.

Leo covers Congress, Veterans Affairs and the White House for Military Times. He has covered Washington, D.C. since 2004, focusing on military personnel and veterans policies. His work has earned numerous honors, including a 2009 Polk award, a 2010 National Headliner Award, the IAVA Leadership in Journalism award and the VFW News Media award.

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