However, the mere deployment of troops on the border under federal, rather than
state, command might violate the Posse Comitatus Act barring U.S. forces from
domestic law enforcement work, said Maj. Gen. Paul D. Monroe, who commands the
22,000-member California National Guard.
The 1878 law, crafted to curtail the use of Army soldiers in law enforcement
after the Civil War, forbids the military from engaging in police activities
"except in cases or under circumstances expressly authorized by the Constitution
or Act of Congress." It does not apply to National Guard troops under state
control.
Monroe said he and other officials from border states favored deploying the
troops under state command, using federal funding as provided for under Title 32
of the U.S. Code. Monroe said that arrangement would avoid potential legal
questions surrounding the use of soldiers for law enforcement on U.S. soil.
He expressed concern that Guard members could be exposed to lawsuits stemming
from their border duties if they are found to be working in violation of the
Posse Comitatus law. "It's very risky for our people. Most of our people are
good soldiers, and they're going to do what they're asked to do," Monroe said.
The military's role in domestic security has prompted new discussion since the
terrorist attacks, which to many blurred distinctions between crime and warfare.
Sen. John Warner, a Virginia Republican, has proposed that the Posse Comitatus
doctrine be reexamined in light of the recent events.
"The world has dramatically changed; our way of life has forever changed. Should
this law now be changed to enable our active-duty military to more fully join
other domestic assets in this war against terrorism?" Warner wrote to Defense
Secretary Donald H. Rumsfeld in October.
Other experts say placing troops on the border is inappropriate except under
narrow circumstances or a national emergency.
"As real as the terrorist threat is--and it is very real--we have no dire,
temporary emergency on our borders of the kind and quality to warrant a
constitutionally based use by the president of our federal troops to enforce the
civil law inside the United States," retired Brig. Gen. Joseph R. Barnes, a
former ranking military law specialist, wrote in a recent commentary.
Others who have long decried the use of troops at the border said the planned
deployment represents a dangerous new militarization. "This is setting a new
level of the federal government on the border that's not trained to deal with
civilians," said Roberto Martinez, a migrant rights activist.
A spokesman for Sen. Dianne Feinstein (D-Calif.) said she is considering
legislation to expand the role of the Guard in homeland security. She also is
willing to sit down with Defense officials and California National Guard
commanders to try to resolve misgivings about federal control over troops on the
border.
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