Defend or depart: Ambiguity jeopardizes US border mission

In a bizarre story recently, two U.S. Army soldiers encountered Mexican military personnel along the U.S. southern border. According to an incident report obtained by Newsweek, Mexican troops crossed the border and moved “tactically fast” toward the U.S. troops’ position before ordering them out of their vehicle at gunpoint. A Mexican soldier then relieved a U.S. soldier of his pistol during the exchange. Media reports emphasized confusion over the actual border locations, but this misses the bigger issue: Mexican military forces violated U.S. sovereignty and demonstrated hostile intent by maneuvering armed and uncontested on U.S. military personnel.

If ever there were a time for the U.S military to get “a little rough” at the border, this would have been it.

{mosads}With roughly 3,000 active duty military personnel deployed to a border at its breaking point, interactions such as this likely will increase. The legal ports of entry are over capacity; more migrants will, in desperation, seek unlawful entry into the United States. Now that we know U.S. military personnel are patrolling remote areas of the border, it is only a matter of time before the next interaction turns to conflict. Despite a “no contact with migrants” policy for border troops, the military is expanding its role. Given the growing probability of troop interactions, what are the standing rules for the use of force for military personnel at the border? To answer that question, we must first know what the military mission is.

According to Department of Defense instruction, the mission informs the rules for the use of force — but what is the mission? In February, Gen. Terrence O’Shaughnessy, commander, U.S. Northern Command (NORTHCOM), testified that “threats to our nation from our southern border are not military in nature.” More recently, Department of Homeland Security (DHS) spokesman Tyler Houlton lauded the Department of Defense’s (DOD) border security assistance, noting their “storied mission of providing humanitarian aid around the world.”

President Trump’s rhetoric, meanwhile, remains unchanged. In essence, we have a president who views the border situation as a national emergency necessitating military forces to “protect the homeland and restore our sovereignty.” DHS labels the military’s border role as a humanitarian mission, and yet the NORTHCOM commander claims the border threat is not of a military nature. So which is it?

Is the military providing humanitarian assistance? No. Humanitarian assistance is a military mission and there is a humanitarian crisis at the border. However, the U.S. military does not provide humanitarian assistance domestically. Foreign Humanitarian Assistance (FHA) consists of DOD relief activities “conducted outside the U.S. and its territories.” This sounds like semantics, but words matter. The U.S military border support operation falls under Defense Support of Civil Authorities (DSCA) rather than FHA. This is an important distinction for use-of-force guidelines.

In particular, DOD guidance permits military personnel to “retain the option for immediate use of lethal weapons” during FHA operations, provided there is a lethal threat. By contrast, DOD regulation states that “weapons will not be carried during DSCA operations” unless authorized by the secretary of Defense or other DOD guidance.  Moreover, with the exception of self-defense situations, military personnel involved in DSCA may not provide direct assistance to law enforcement and are prohibited from “brandishing … discharging or using a weapon.”

If the military’s role at the border is a DSCA mission and troops performing DSCA missions may not carry, brandish, or discharge weapons, why then are some armed troops patrolling the border and establishing “observation posts” independent of law enforcement? Observation could equate to surveillance — and surveillance is an unauthorized law enforcement activity for military personnel, according to DSCA guidelines and federal law.

So is the military mission in defense of the homeland, rather than in support of civil authorities? If so, these laws and guidelines do not apply.  

The president’s authorization for troops to use lethal force, coupled with his statements that migrant caravans are invading the country, produces a narrative more consistent with homeland defense than it does with DSCA. Such contradiction risks greater politicization of the military as the most trusted institution. A politicized military is antithetical to an apolitical organization that must remain above the political fray.

If we cannot clarify the military mission and establish clear rules for the use of force, the military’s border support role will continue to be politically manipulated. The military must have a defined mission and act in its accordance. If the military does end up getting a little rough at the border without such clarification, President Trump is right: “Everybody would go crazy.”

Ryan P. Burke, Ph.D., is an associate professor of military and strategic studies at the U.S. Air Force Academy and a former Marine Corps officer. The views expressed here are his and do not reflect the official position of the United States Air Force Academy, Department of the Air Force, or Department of Defense.