Donald Trump said Thursday that he is ordering the active-duty U.S. troops he is sending to the southern border to open fire on migrants if they throw rocks.
Trump is using the last days before the midterms to conjure up an “invasion” scenario to rile up his political base.
But in threatening to actually use the military against would-be asylum seekers, he’s also making a mockery of the rule of law, which specifically prohibits U.S. troops from engaging in domestic law enforcement. (His proposal to limit the ability of migrants to request asylum also appears to break U.S. and international law.)
Asked by a reporter if U.S. troops might fire on the migrant caravan full of women and children that is currently about 900 miles away, and moving very slowly, Trump said: “I hope not, I hope not — but it’s the military.”
Then he explained: “They want to throw rocks at our military, our military fights back. We’re gonna consider, and I told them consider it a rifle. When they throw rocks like they did at the Mexico military and police, I say consider it a rifle.”
The scenario is absurd. When what’s left of the rag-tag caravan makes it to the U.S. border, their intent is to apply for asylum, not storm the barricades.
The Pentagon has insisted that the troops being sent to the border would operate purely in a supporting role, helping with logistics, transportation and engineering. That’s because the troops’ activities on domestic soil are strictly limited by the Posse Comitatus Act, which establishes the prohibition of military involvement in domestic law enforcement.
University of California at San Diego law professor Harry Litman does a particularly effective job of explaining the significance in a Washington Post op-ed today:
Its obscure name and rare deployment notwithstanding, the Posse Comitatus Act enshrines the bedrock democratic idea that civil society is separate from and superior to military force, and that regulation of citizens by military is antithetical to liberty.
Civil law enforcement is governed by constitutional protections and accountability to the court. Military force is governed by the law of war and the imperative of national defense against other militaries. They serve critically different functions, practically and morally; and they ought not overlap.
I wrote on Tuesday about the danger posed by Trump’s casual use of active-duty troops for nakedly political purposes.
Vermont Senator Patrick Leahy expressed outrage at Trump’s lates comments: “I didn’t think I’d live to see the day when an American president threatens lethal military force against individuals who are throwing rocks. The professionals in our military are among the best in the world, and have invested countless hours and tax dollars in training about the lawful use of force to accomplish their mission. The illegal and immoral practice the President endorsed is beneath their and our country’s dignity.”
Jamil Dakwar, director of the ACLU’s human rights projects, tweeted:
That’s blatant incitement to violence and extra-judicial killings. https://t.co/dCJk4x1Koo
— Jamil Dakwar (@jdakwar) November 1, 2018
Also today, Deborah Pearlstein, a Cardozo law school professor, pointed out that the current deployment of about 2,000 National Guard troops is arguably a violation of the law.
The Guard deployment was authorized under Title 32 of the U.S. Code, which allows the Guard to be used for operational homeland defense activities. That means providing protection that is “critical to national security, from a threat or aggression against the United States.”
Pearlstein, in a conference call arranged by the American Constitution Society, said there is obviously no immediate threat to the homeland – nothing remotely like an “invasion” of the sort Trump warns about.
“I actually think it is a national security concern,” she said, but only “because it is a national security threat for the president to apply troops in this way.”
She continued: “The word ‘war’ and the words ‘national security’ get used all the time…. If you care about those kinds of threats out there, avoiding the temptation to let that language be overused and misused is very important.”