From the 'Lectric Law Library's Stacks
Martin Salvador Rocha, California State University, Long Beach
Recently we have been witness to rising anti-immigrant hysteria. As a result, numerous legislative proposals have been made & laws passed targeting immigrants namely, undocumented immigrants. Governor Wilson of California has proposed the denial of citizenship to U.S. born children of undocumented parents. California has recently passed legislation that denies driver's licenses & id cards to undocumented immigrants, & the list goes on.
Even the military has gotten into the picture. In November, for example, Senator Barbara Boxer succeeded in passing her proposal for National Guard deployment along the U.S.-Mexican border. This signals an increased militarization of our borders with Mexico Rico, a precedent setting trend that brings important Constitutional & human rights questions into light.
This report will chronicle the border militarization trend in the context of anti-immigrant backlash & discuss important questions of what, if any, role the military should play on issues of immigration.
Historical Separation between Military & Civilian Law Enforcement The separation of church & state is a fundamental doctrine of our nation, & so too is the separation between military & civilian duties. Unlike many other countries in the world whose police are the military, the United States has historically maintained maintained a civilian police force. Our constitution in fact put limits on the role of the military, the Third Amendment set conditions for housing of soldiers during time of peace or war. The Fourth Amendment protects civilians from "unreasonable search & seizure."
Both these two & the eight other Amendments to the Constitution encompass the Bill of Rights which were created to protect people from the abuses of government & from inevitable encroachment on civil liberties that any government eventually makes.
These amendments were written with the intent of protecting the U.S. population from government repression, a lesson learned after much suffering under British tyranny including the forced quartering of British soldiers & their impunity to civilian law. Other limits to the the military's role in domestic activities were later written into law.
The earliest & most far-reaching was the Posse Comitatus Act of the late 1800s which placed strict restrictions on the U.S. military at a time when they were be ing repeatedly used during election campaigns.
Militarization & Border History
The border has for most of this century been fairly free of direct military conflict. Tom Barry in his new book on the U.S.-Mexicp border writes:
Considering that the U.S.-Mexico border was largely the creation of the land grabbing Mexican-American War, the intl boundary has been mostly free of direct military conflicts between the two, especially since the 1920s.
The infamous 1 916 raid on Columbus, New Mexico, by Pancho Villa marked the beginning of the only serious cross-border military encounter with Mexican forces in the borderlands during this century. General "Blackjack" Pershing's "punitive expeditionary force" of twenty -thousand men spent more than a year in northern Mexico, unsuccessfully hunting down the revolutionary bandit.
On the U.S. side of the border some hundred thousand federalized National Guard troops kept order from Yuma Arizona to Brownsville, Texas. By 1919 U.S. control over the region was clearly established. With the creation of the Border Patrol in 1924, the United States had the beginnings of a permanent civilian enforcement on the border. #1 For the most part, border control operations remained a civilian law-enforcement operation until "Operation Wetback" in the 1950s. This military-style operation by the Border Patrol & other elements of the Immigration & Naturalization Service (INS)# 2J was led by an ex-general who participated in Pershing's expeditionary force. What ensued was the most massive roundup & deportation of undocumented Mexican immigrants in U.S. history. This was not the last time ex- generals would be involved with the INS.
President Carter in response to concerns about undocumented immigration & drug trafficking appointed another ex-general to head the INS in efforts to strengthen the Border Patrol. Under the Reagan & Bush administration this "concern" grew to to be called the "War on Drugs" or what many would call the "War on Immigrants": By the early 1980s the momentum toward an increased military presence in the borderlands was unmistakable.
Dictated by the concerns of the Reagan & Bush administrations, tighter immigration border controls emerged in response to mounting fears about the spread of narcotics & to new anxieties about job loss to "hordes" of immigrants from Central America & Mexico. As a result, the United States has steadily expanded the role of military & law enforcement agencies in the borderlands. Increasingly these agencies have a common mission that draws on military means to carry out law-enforcement tasks.
Using sophisticated communications & surveillance technology, civilian & military forces from federal, state, & local levels have tried to squeeze off the flow of illegal drugs & undocumented immigrants into the United States.
Although only partially successful, the scope of this new military presence sounds the alarm bells for concerned observers worried about the impact of militarization on human & civil rights in the borderlands.#3
A National Police Force?
In 1981 the U.S. Congress amended the Posse Comitatus Act loosening the military's restriction on involvement with domestic law enforcement. In 1986 President Reagan declared the narcotics trade a "national security" threat & shortly thereafter launched "Operation Alliance", a multi-agency law enforcement initiative targeting the border area.
This along with the added designation of the border as a "High Intensity Drug Trafficking Area" pushed this multi-agency effort forward to represent the "...largest st, most ambitious interagency actions of its kind ever attempted by the U.S. government. #4 Such multi-agency forces allow for the relative ease of "cross- deputizing." This refers to the now all too common practice of Civilian law enforcement agencies like the Border Patrol, Drug Enforcement Administrations, customs, & state police forces.cross- designating (deputizing) personnel from other agencies, giving such agents broad authority over a range of jurisdictions. Through cross- designation, such agencies take the role of a national police force. If "deputized" by customs, for example, agents can conduct warrantless searches if they suspect that someone is entering the United States illegally or with contraband.# 5 [emphasis added] Although weakened, the Posse Comitatus Act still places restrictions on the military assuming civilian law-enforcement roles. However, a loophole exists for the National Guard.
The National Guard Loophole
Because the National Guard is both a state & Federal militia it may be exempt from the limitations the Posse Comitatus Act when acting under the authority of the governor.
That is, the Posse Comitatus Act does not apply to state militias. The propos by Boxer takes advantage of this loophole by placing the Guard's new immigration role under the auspices of the state governor. The National Guard in addition to the Army & Marines have taken a more prevalent role along the border. Using their high tech equipment they carry out reconnaissance missions & other technical border-control activities. In addition they provide much labor in the inspection of cargo at the border, building & repairing fences & metal walls along the border, etc. The National Guard in addition to providing support for the Customs Service, the Drug Enforcement Administration & other federal law agencies in the interception of drugs, will now augment the border patrol in its campaign against undocumented immigrant s. Drug & immigrant interception are new & precedent setting roles for the National Guard whose traditional missions have been to fight in wartime & help states during natural disasters or civil disorders.
Responding to critics Boxer said the Guard would not carry out arrests but only "augment & support" the Border Patrol's efforts & is "modeled after the current counter-drug problem." #6. Boxer has pointed to the policing presence of National Guard in Puerto Rico as an example & in support of her own proposal.# 7
Excessive Force & Human Rights
The National Guard presence in Puerto Rico was also used by Washington D.C.'s mayor recently in her request to place troops in our nation's capital. Other cities are apparently following suit. Jeff Kellogg, a city council member & current candidate for r mayor of Long Beach, California, has requested the use of the National Guard for to seemingly combat crime in this city which separate Orange from Los Angeles County.
The success of such military missions in civilian areas are suspect to say the least. Often crime is temporarily suspended finding solace in other areas of town where the presence of these military troops are not as readily found, as in the case of Puerto Rico. Similarly, civil liberties & Constitutional rights also seem to be suspended as these "Weekend Warriors" a term used to describe National Guard recruits take on civilian roles that they have neither been trained for nor envisioned to have such as those involving immigration.
Timothy Dunn, whose book on the militarization of the border will be published next year sees the use of the military to combat immigration as a dangerous precedent: R[Boxer] is trying to make immigration look like a criminal act, undocumented immigration n is not criminal, it is a minor misdemeanor. The seriousness of undocumented immigration is in no way comparable to drugs, crime or war.
If they apply a hard crime mentality, they are more likely to apply excessive force."#8 Indeed several recent reports from the American Friends Service Committee & Human Rights Watch have documented repeated violations of human rights against immigrants along the U.S.-Mexican border perpetrated by the Border Patrol & other U.S. government t personnel & an unprecedented impunity to justice by those responsible.
The precedent-setting role that the military is now taking more & more so over civilian matters is a dangerous one.
Our government has historically & intentionally kept its military from performing civilian law enforcement duties. To change this doctrine should automatically bring caution, especially in light of the dire experiences other countries have had who have maintained a military police force. The issue of immigration is both a sensitive & complex one.
Soldiers who are trained for military combat are inherently poorly suited to resolve such issues, nor should they. We have embarked on a dangerous & far-reaching precedent at a time when anti-immigrant hysteria is rampant. We have set on this path because we choose to blame immigrants for much of our social & administrative mismanagement ills.
Immigration is not a criminal act, if so then we are all criminals. Militarizing our land & making it into a police state may provide for some short-term benefits, but at what cost?
#1 from Barry, T; Browne, H.; Sims, B. Crossing the Line:
Immigrants, Economic Integration, & Drug Enforcement on the U.S.
Mexican Border. Resource Center Press, Albuquerque, New Mxico; 1994.
p75. The Resource Center conducts research on U.S. government
policies, low intensity conflict, multinational corporations, & the
workings of private voluntary agencies in the Caribbean & Central
America. It distributes books & audio-visual materials on these
regions, & publishes its findings in a quarterly bulletin. It also
publishes a series on the border. Much of the discussion here draws
on their excellent work & that of Timothy Dunn author of the upcoming
The Militarization of the U.S. Mexican Border; 1978-1992; Low
Intensity Conflict Comes Home. Center for Mexican Amer Studies,
#2 The Border Patrol is part of the INS which in turn is part of the Justice Department.
#3 Barry, T. p76
#4 ibid.; p78.
#5 ibid.; p81.
#6 as quoted in an Editorial of The San Diego Union-Tribune, Oct 27, 1993
#7 In June the Governor of Puerto Rico sent in National Guard troops to 27 of the island's housing projects in force to "fight against crime." Troops are often stationed within the projects & frequently detain & question those they consider "suspicious." In October Mayor Kelly of Washington, D.C. was denied a similar request to deploy the National Guard in the nation's capital.
#8 from a telephone interview on Friday , December 10, 1993.
Barry, T; Browne, H.; Sims, B. Crossing the Line: Immigrants,
Economic Integration, & Drug Enforcement on the U.S. Mexican Border.
Resource Center Press, Albuquerque, New Mxico; 1994.
Castaneda, R. Guardsmen Await Answers to Call-Up Question; Soldiers Are Uncertain Of Duties If Mobilized. The Washington Post, October 25, 1993; A1.
Dunn, Timothy. The Militarization of the U.S. Mexican Border; 1978-1992; Low Intensity Conflict Comes Home. Center for Mexican American Studies, Austin TX (upcoming).
Dunn, Timothy. Telephone interview, December 10, 1993.
Harriston, K.A. Kelly Saw Risks of Troop Request, Aide Says; Mayor Said to Have Chosen Guard as Quickest Way to Attack Crime. The Washington Post, October 24, 1993; A1.
Harriston, K.A. Guard Plan Stirs Uproar In District; Mayor's Call Raises Confusion Over Role, Concern About Image. The Washington Post, October 23, 1993; A1.
JAMES BORNEMEIER. Boxer URGES AUGMENTED BORDER STAFF; IMMIGRATION: SENATOR SAYS NATIONAL GUARD TROOPS WOULD BE A COST- EFFECTIVE WAY TO BOLSTER PATROLS. THEY WOULD GET SPECIAL TRAINING BUT WOULD NOT MAKE ARRESTS. Los Angeles Times, Friday, July 30, 1993; A1.
Marcus, R. Clinton Rejects Call for Guard in D.C.; President Says he Can't Grant Power. The Washington Post, October 26, 1993; A1.
Ribadeneira,D. Puerto Rico Employs Guard to Fight Drugs. The Boston Globe Sunday, October 10, 1993, City Edition; A1.
Rohter, L. National Guard Joins Puerto Rico Police on Beat as Crime Rises. New York Times, Friday, July 28, 1993; A10.
---The San Diego Union-Tribune, Editorial; October 27, 1993. Sawyer, K. Reno: D.C. Request for Guard Under Review. The Washington Post October 25, 1993, Monday, Final Edition A5
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