Hearing on Department of Defense
The House Committee on Armed Services held a hearing last week titled, “Department of Defense’s Support to the Southern Border," during which it examined the deployment of U.S. troops on the U.S. southwestern border, as well as the President’s threat to declare a national emergency as a way of diverting funds from the Department of Defense in order to fund the construction of a wall along the U.S. border with Mexico.
- Chairman Smith. In his opening statement, House Armed Services Committee Chairman Adam Smith (D-WA) asserted that the impact of the deployment of the National Guard at the border “isn’t fully understood.” He also asserted that there has not been “a full justification for why the Administration subsequently diverted Active Duty personnel to the border or details regarding when that deployment will end.”
The Chairman declared that “the deployments to the border seem to conflict with the Department’s stated efforts to rebuild readiness. For example, we have heard the Army raise concerns about the negative impact to readiness due to the high operational tempo of units deploying overseas and insufficient time to perform home station maintenance or training. This deployment to the southern border seems to exacerbate that problem by further disrupting unit training cycles.”
The Chairman added that “It is also unclear why this is an appropriate use of the military’s time and resources. We have all seen the pictures of our service members on the southern border during the holiday season, away from their families, unable to reset from overseas missions, or to train and prepare for future missions in response to legitimate national security threats. It appears service members are laying concertina wire and performing other tasks that are better suited for civilian law enforcement agencies. “
Chairman Smith said he found the President’s characterizations of the military’s activity on the border as that of repelling an invasion “have not been factually accurate, are deeply troubling. While there may be more groups, many of the people coming to our borders are fleeing poverty, persecution, and violence in their home countries and turn themselves over to authorities with hopes of receiving asylum. For years, the Congress and previous administrations have repeatedly authorized additional funding in support of border security, including additional border agents, technology, and barriers in areas where they make sense. As a result, unauthorized entries at the southern border are at historic lows. “
The Chairman posed the rhetorical question, “So, what is the emergency? “
He observed that “if the President does declare a National Emergency, there are reports that the Department of Defense may be planning to divert billions of dollars in military construction funds to construct additional portions of a border wall. Such an action could adversely affect military training, readiness, or service and family member quality of life programs if military construction funding is diverted away from critical military projects.”
- Ranking Member Thornberry. In his opening statement, Committee Ranking Minority Member Mac Thornberry (R-TX) expressed agreement with Chairman Smith that “the questions the chairman asked at the beginning of his statement; what are we doing down there, how much does it cost, what affect does it have on readiness and so forth are perfectly legitimate questions.” He opined, though, that the use of the military on the border by President Trump is not unlike deployments used by other presidents since the early 1990s.
Process of Considering Requests for Support. They described the process used within the Department of Defense when the Department of Homeland Security requests assistance, asserting that “DoD carefully considers all requests for assistance, including in order to determine whether DoD has the requested capabilities and resources and whether providing the requested assistance is consistent with the law.
When a request is approved, DoD works with the requester to select the right forces and resources to meet the requester’s mission needs, and to avoid or mitigate the potential impacts on military readiness. DoD has used the same process for every DHS request for assistance related to DHS’s border security mission.”
April 2018 Deployment. With respect to current Department of Defense activities on the border, the witnesses indicated in their prepared statement that the President directed the Secretary of Defense in April of 2018 to support DHS “in securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband, gang members and other criminals and illegal aliens into this country.” They testified that “The President also directed the Secretary of Defense to request the use of National Guard personnel to assist in fulfilling this mission.”
Use of National Guard. With respect to the National Guard, the witnesses said in their statement that “National Guard personnel have performed a range of administrative, logistical, and operational support tasks, freeing U.S. Border Patrol agents from these duties and enabling more U.S. Border Patrol agents to patrol the border. National Guard support to CBP Operation Guardian Support is scheduled to continue through September 30, 2019.”
October 2018 Deployment. The witnesses said in their statement that “From October 2018 to the present, active-duty military personnel have supported CBP Operation Secure Line by providing: aviation support (e.g. transporting CBP quick reaction forces); engineering support(e.g., hardening U.S. ports of entry (POEs), providing temporary barriers, and emplacing concertina wire); planning support; last line of outward defense protection for CBP personnel performing their Federal function sat POEs; and loaned personnel protective equipment (e.g., helmets with face shields, hand-held shields, and shin guards).Active-duty military personnel were selected because the Secretary of Defense determined them to be the best-suited and most readily available forces from the Total Force to provide the assistance requested by the DHS. Then, as now, the Department continually assesses the necessary force composition and layout. We adjust as necessary to meet mission requirements, while minimizing impacts on readiness, as well as consider future and global response military operational requirements. For example, the protection of CBP personnel performing their Federal functions at POEs will shift to a contingency basis (i.e., available when needed), startingFebruary1,2019. Likewise, with each approved request, we ensure that the assigned military forces are trained and prepared to execute the mission in support of CBP.
January 2019 Deployment. The witnesses said in their prepared statement that “On January 11, 2019, the Acting Secretary of Defense approved a DHS request for additional active-duty military support of CBP Operation Secure Line. These military personnel will operate mobile surveillance cameras in Arizona, California, New Mexico, and Texas in all nine Border Patrol Sectors, and emplace concertina wire on existing barriers at areas designated by CBP along the southern border between POEs in Arizona and California. The mobile surveillance camera support is currently scheduled to continue through September 30, 2019.CBP has requested that an additional150 miles of concertina wire be emplaced no later than March 31, 2019.
The witnesses said in their prepared statement that all of the support that the Department of Defense provides is permissible by law, specifically citing the Posse Comitatus Act.
They concluded their prepared statement by declaring that “The military’s presence and support increase the effectiveness of CBP’s border security operations, free U.S. Border Patrol agents to conduct law enforcement duties at the southern border, and enhance situational awareness to stem the tide of illegal immigration, human smuggling, and drug trafficking along the southern border. The ongoing temporary DoD support is a continuation of DoD’s long history of supporting DHS and CBP in their mission to secure the U.S. border. These decisions are far from static, as we continue to work with the Services, the National Guard Bureau, and U.S. Northern Command to evaluate mission requirements and associated risks.”
Controversy After the Hearing. Shortly after the hearing ended, word leaked that the Administration was planning to deploy 3,500 additional troops to the border in the coming weeks. Chairman Smith said he was “deeply troubled” that the two witnesses did not disclose the increase in U.S. troops, “even though we asked them multiple times during a two-and-a-half-hour hearing what would happen next at the border.”
“They never mentioned it, despite the fact that the Secretary of Defense was revealing an increase in personnel that same day,” Smith wrote, referring to acting Pentagon chief Patrick M. Shanahan. “This was at best an error in judgment, and at worst flat-out dishonesty.”
Chairman Smith expressed his displeasure in a a sharply worded letter to the Acting Secretary that he sent on Thursday, January 30th, one day after the hearing.