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Trump’s Possibly Illegal Border Posse

The Pentagon is set to expand its role in immigration enforcement—and that violates an important civil rights law with an obscure Latin name.

Thomas Watkins/AFP/Getty Images

Twelve days before the November 2018 midterm elections, the President of the United States ordered active-duty military forces to assist in immigration enforcement on the Southern border for the first time in American history. This was yet another dismally extraordinary fact of our dismally extraordinary times, but one for which you may be forgiven having forgotten not even six months later.

It was also almost certainly illegal under a 141-year-old law originally passed by Congress in support of the Ku Klux Klan.

For a dozen years after the end of the Civil War, the U. S. Army conducted a lengthy (and largely successful) campaign against the KKK. The Klan presented the single greatest organized threat to Reconstruction, and its brutal enforcement of antebellum racial norms would never have been contained by local law enforcement alone. The Klan and its many supporters were so upset by this Northern intrusion into local affairs that Southern Democrats made total withdrawal of these troops one of the leading demands of the election-deciding Compromise of 1876. They also forced President Rutherford B. Hayes to sign the Posse Comitatus Act, under which it became a federal crime—one carrying up to two years in federal prison—to intentionally “use any part of the Army… as a posse comitatus or otherwise to execute the laws.” (No one has ever been charged with or convicted of this offense.)

Despite these explicitly racist origins, the Act is a vital guarantor of our civil liberties. Deploying military forces as an armed posse comitatus (Latin for “power of the county”) to enforce domestic law is a distinctly un-American idea, and very much the kind of thing that pushed American colonists to rebel against British autocracy.

Posse comitatus has also always been a rule that threatens to be swallowed up by exceptions. At the time that the Act was signed by President Hayes, the Army was assisting local law enforcement in Lincoln County, New Mexico in hunting down “a band of miscreants” which included Billy the Kid. The military was so annoyed by the order to stand down that the President was almost immediately persuaded to sign a special proclamation permitting the operation to continue. Troops have since been deployed against everyone from “Bonus Army” WWI veterans to striking West Virginia coal miners to Waco Branch Davidian cultists, generally under circumstances which were never clearly legal. (At the request of state governors, Presidents Clinton, George W. Bush, and Barack Obama all briefly sent National Guard troops to the border —but none of them ever sent active-duty service members.)

All of which brings us to Donald Trump’s actual stated purpose for his unprecedented border deployment: Protecting the United States from “migrant caravans.”

In reality, the caravans are not some invading army rushing our borders, but individuals—several thousand Central American asylum seekers traveling peacefully together to escape violence and persecution in their home countries. The first members of the 2018 “caravan” were LGBTQ asylum seekers unable to live with the constant threats and persecution they had endured (often in the face of governmental indifference) from gang members. Traveling in large groups was the best way to avoid both the significant costs of paying traffickers and the inherent risks of physical and sexual violence, extortion, and other dangers associated with the dangerous journey north. As other desperate families who had themselves survived unimaginable violence and worsening immiseration began to join the stream of migrants, the “caravan” became a made-for-Fox-News, Trumpist obsession, seemingly ripe for election-year exploitation.

I have visited camps and shelters throughout Tijuana three times since December to meet with asylum seekers and hear their stories. They have shown me nothing but quiet resilience, fortitude, and sincerity. The simple truth is that the “caravan” is essentially the same population we already serve in my East Boston law office: peaceful, well-intentioned, and—perhaps most importantly—unmistakably traumatized Honduran, Guatemalan, and Salvadoran refugees.

All of the dozens of caravan members I have personally spoken with suffered threats and persecution at the hands of transnational criminals that their home governments remain unable (or, in many cases, unwilling) to control. They are small business owners who could no longer afford to pay protection money, pastors who had organized their congregations against gangs, women and children forced into sexual slavery. Above all, they are families, arriving in record numbers not for “a better life” but for their very lives. We have not only legal obligations to them under the international law of asylum, but moral ones, as they are the victims of well over a century of U.S. military, economic, and political meddling.

These, in short, are the people Trump has designated a threat to our national security. These are the people he claims necessitate thousands of armed troops and hundreds of millions of Treasury dollars.

Last week’s announced expansion of military roles in border security operations is pushing the limits of the Posse Comitatus Act beyond anything that has been tested in any situation short of an actual armed insurrection. This administration has already employed military forces for immigration enforcement in ways beyond anything we’ve seen in modern history, and there’s no reason to believe that these loosely defined, indefinite operations will end at engineers, drivers, cooks, and lawyers—or with merely assisting federal immigration authorities rather than taking on these responsibilities directly.

And it seems only Department of Homeland Security lawyers are stopping the President from going much further. According to the New York Times, DHS was considering legal options for the military to run “tent city” detention camps, and even floated the previously unspeakable idea of detaining migrant children in Guantanamo Bay. Trump himself recently complained to Fox host Sean Hannity that while “other countries” allow their militaries to shoot down asylum seekers with automatic weapons, “we can’t do it.”

The Department of Defense is, per last week’s memo, of the opinion that a posse comitatus violation may be avoided by maintaining a “segregated driver’s compartment”—literally a taxi-style divide between driver and passengers—such that the restraint and transport of asylum seekers in federal immigration custody in military vehicles driven by military personnel is apparently rendered legal so long as the detainees can’t communicate with the driver. (This, of course, from the same administration that routinely refers to the entire concept of asylum as a “loophole.”)

Everyone present at the Constitutional Convention of 1787 had borne witness to the dangers of an aimless fighting force maintaining civil order under the command of a restless empire. The former revolutionaries were rightly skeptical of a permanent federal military, and none more than James Madison. “A standing military force with an overgrown Executive,” he argued, “will not long be safe companions to liberty. The means of defense against foreign danger have been always the instruments of tyranny at home.”

It was obvious then; it should be equally obvious now. There is an unmistakable message when a Trumped-up threat as flimsy and fantastic as the “migrant caravan” can bring out such a nakedly authoritarian response to a genuine humanitarian crisis: You’re next.

From the Alien and Sedition Acts under John Adams, to the mass political deportations during the first Red Scare, to Trump’s recent “Muslim ban”—whenever the slightest hint of tyranny has been in the air—immigrants have always been the canaries in our nation’s civil rights coal mine. A very real threat to our way of life may well be gathering on the Southern border, but it won’t be found on the Mexican side.