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On the Border, Mattis Once Again the Adult in the Room


Rhetoric and reality may well be heading for a meeting at the southern border, and if President Trump isn’t very careful it could cause problems for his administration, and the country, far beyond the politics of immigration.

President Trump’s use of US military troops on the border is not anything new. Every president since Reagan has used the military at the border, both active duty and National Guard troops through cooperation with the states. But this latest version of border theater is starting to shape up as much more than just flexing by the president on security and immigration issues.

After weeks of troops assisting with border related tasks, publicized photos and videos of fresh concertina wire at border locations are becoming prominent in news reports. Those photos are needed for the PR side of things because the troops assigned to the border, mostly engineers, logistics, supply, and other supporting personnel along with some Military Police and other units, are not allowed to engage in any law enforcement activities. Despite the rhetoric from the White House and surrogates, military commanders on the ground and at the Pentagon made it clear that no uniformed troops would have any interaction with suspected illegal immigrants at the border or anywhere else, and their mission was to free up customs and border patrol officers for the law enforcement side while they assisted in support. The military can make such statements because despite what is said with words, there is very strict law involved here, and the military is very cognizant of it.

The administration decided that wasn’t good enough. After an executive order regarding asylum applications was stayed in federal court earlier in the month, the president through Chief of Staff John Kelly issued another declaration on Tuesday:

The memo, dated Tuesday and signed by White House chief of staff John Kelly, says troops at the border “may perform those military protective activities that the secretary of defense determines are reasonably necessary to ensure the protection of federal personnel, including a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search.”

“The deployed military personnel shall not, without further direction from you, conduct traditional civilian law enforcement activities, such as arrest, search and seizure in connection with the enforcement of the laws,” says the memo, which was obtained by CBS News national security correspondent David Martin.

The Military Times first reported that such a memo existed, and Newsweek later obtained the memo written by Kelly, and another one signed by Mr. Trump.

This isn’t the first time the White House has pushed for such a move. The Pentagon had already rejected a request for similar authorization from DHS Sec Nielsen to use troops for law enforcement purposes. The reporting on how this latest memo came to be became even more interesting when details of the previous day’s meeting about the subject began to emerge from Politico:

Several White House aides and external advisers who have supported the president’s hawkish immigration agenda attended the Monday meeting, which devolved into a melee pitting two of Trump’s embattled aides, White House chief of staff John Kelly and Department of Homeland Security Kirstjen Nielsen, against other attendees, according to three people briefed on the exchange.

Kelly and Nielsen argued against signing the declaration, which granted the military broad authority at the border, telling the president that the move was beyond his constitutional powers. They were vocally opposed by, among others, senior policy adviser Stephen Miller; Chris Crane, president of the National Immigration and Customs Enforcement Council; and Brandon Judd, president of the border patrol union. Also present was Vice President Mike Pence, who did not take a stand on the issue, according to one of the people briefed on the debate.

Kelly and Nielsen eventually came around to the president’s position, and the bitter dispute ended Tuesday evening when Kelly, on Trump’s orders, signed a Cabinet declaration granting the military the disputed authority. The move ran afoul of the guidance offered by the White House counsel, Emmet Flood, who cautioned that it was likely to run into constitutional roadblocks, according to a second source familiar with the conversations.

This order, like almost all of President Trump’s executive orders before, will no doubt be challenged in court. But the president has a larger problem looming if he remains insistent on his present course. It is not only legal and constitutional concerns at stake in this latest drama; it also has the potential to run him afoul of his own Secretary of Defense.

On Wednesday, during his own press gaggle, Sec. Mattis went into great detail, including a history lesson and personal experiences, about what the military can and cannot do along the border:

They are deployed in support of the Department of Homeland Security and the Customs and Border Police — Border Patrol. Their job includes supporting crowd control. That’s when you see Jersey barriers being forklifted into place or nearby so we can close the port of entry if someone tries to force it — force their way through. It’s concertina wire, it’s — it’s putting the stuff in, it’s moving their troops around using our helicopters, in some cases our C-130s if it’s longer legs, we’ll use the — the C-130 airplanes for that, helicopter for — more for local movement.

The one point I want to make again is we are not doing law enforcement. We do not have arrest authority. Now the governors could give their (National Guard) troops arrest authority. I don’t think they’ve done that, but there are — is no arrest authority under Posse Comitatus for the U.S. federal troops. You know, that can be done but it has to be done in accordance with the law, and that has not been done nor has it been anticipated.

The — the president did see the need to back up the — the Border Patrol, and we received late last night an additional instruction authorizing implementation — to implement additional measures. We’re sizing up what those are.

Someone didn’t tell the president, or more likely he is only hearing what he wants to hear from his meetings on the subject:

President Donald Trump said Thursday he has authorized American troops on the US-Mexico border to “use lethal force” if necessary against an approaching group of migrants while also threatening to close “the whole border.”

Trump, who was speaking with military members and reporters at Mar-a-Lago, also said there “certainly could” be a government shutdown over border wall funding in December.

“If they have to, they’re going to use lethal force. I’ve given the OK,” Trump said. “If they have to — I hope they don’t have to.”

“I have no choice,” Trump said, and, without providing evidence, added, “You’re dealing with a minimum of 500 serious criminals” and “rough people.”

Actually, President Trump has myriad choices available to him. Troops directly engaging the migrant caravan isn’t one of them, and certainly firing into unarmed civilians of any nationality, whether they are throwing rocks or not, definitely isn’t.

Setting aside the mind-numbing and never-ending “should President Trump be taken literally when he says things” debate, it might be useful to compare and contrast it to what Sec. Mattis is saying. Unlike the president, Mattis’ record and long career of service is one of saying exactly what he means and then following through with it.

Trump’s assertion that he has “given them the OK” for use of force is not for the whole border, but only for the instances in which Border Patrol or other federal personnel are in imminent danger, and that, according to Mattis, would be “Probably M.P. — unarmed M.P.s with — with shields, batons, no — no firearms.”

“No firearms?” the reporter repeated to this explanation. After all, the president, in his own unique speaking style emphasized “lethal force” when discussing it. And, pointed out another reporter, a marine corporal had shot and killed an 18-year old goat herder in 1997 at the border.

“They’re not even carrying guns for Christ’s sake,” replied Mattis before breaking down the history of Clinton, Bush, and Obama each sending troops to the border at various times, including Mattis himself during the Clinton-era “Gatekeeper” operation.

As for the politics of immigration and border enforcement, the retired Marine general also managed a better, and more accurate, answer than the president did.

We’re a welcoming country, legally as you come in. But it is — frankly, it’s — it’s up to the American people and their Congress what the law says.

And the Border Patrol is charged with carrying out the law, it’s that simple. So people who have the responsibility for doing this can’t say, well, we’re okay with allowing illegal to happen.

So the American Congress, the American — for the American people, write the law, we carry out the law and that’s what Border Patrol is doing. I was just down there. These are great guys, I’ll tell you. They have a very difficult job and they’re carrying a heavy load with a country that, right now, has been unable to-date to deal with a legal accommodation for how we’re going to address immigration into this country.

This is Congress’s responsibility. And down on the border are young men and women…that have got to try to carry out the law as it’s written right now.

It’s the kind of answer you would expect from a lifer Marine, but it also shows the problem with the president’s current approach. Trump saying “I have no other choice,” rings hollow and hypocritical when his administration, despite running on immigration and border enforcement themes, made little effort to push legislation through a congress controlled by his own party. With a lame-duck session unlikely to do anything before the end of the year, and an incoming Democratic House majority looming in January, Trump will no doubt claim victimhood and continue with pushing his agenda through executive means. But such a situation is just as much his fault as Congress’s.

This paints President Trump into a corner of his own making, where issuing executive orders such as this week’s that are highly questionable in legality will bring not only legal challenges but opposition from administration officials themselves. Mattis, as he well knows, serves at the pleasure of the president, and if Trump continues to insist on pushing the limits of his presidential powers, there could well be more changeover in an administration already setting records for turnover. DHS Sec. Nielsen and CoS Kelly are always at the top of such a list, and Sec. Mattis has been rumored to be on the outs with Trump personally. While the current strategy of using troops in support of DHS as described by Mattis is par for the course, if President Trump really does have visions of uniformed troops physically intervening with the migrant caravans or any other immigration issues, things will come to a head and not just in court challenges.

Matters of authority and law are, or at least should be, far bigger issues than just the current political debate of the day. No matter how fiery the internal debate before Tuesday’s order was, once the president says “Do this,” Kelly and Nielsen either had to do it or resign. They both chose, in this case, to do it. Mattis hinted as much when asked about receiving the directive signed by Kelly, quipping “(he) has the authority to do what the president tells him to do.” But pushing much further, or any further, with regard to troop usage on the border, will be touching the bright red line of posse comitatus. “There’s no violation of Posse Comitatus, there’s no violation here at all. We’re not going to arrest or anything else. To stop someone from beating on someone and turn them over to someone else,” Mattis told reporters. Then after confirming that “The president has delegated that to me, yes,” with regard to troops using force at the border, “and at that point, things like posse comitatus and that sort of thing obviously are in play. So we’ll stay strictly according to the law.”

With President Trump increasingly under fire and continually thwarted in his executive actions in court, administration officials saying “strictly according to the law,” will be more important to the country than ever. It is probably a matter of when, not if, such sentiments become unbearable to President Trump in a top level cabinet official such as the Secretary of Defense. But conflict with Mattis would be a huge mistake by the president. With his popularity among the troops already underwater, forcing out someone who is as nearly worshiped by the defense community as Mattis is on something as clear cut as obeying lawful orders, or, if it comes to it, not obeying an unlawful one, would have repercussions far beyond the news cycle. Make no mistake; foreign adversaries have varying opinions on President Trump, but they fear and respect Mattis, and knowing the man nicknamed long ago “Mad Dog” would helm any military response should it come to it does plenty in keeping the wolves away. Beyond that, with John Kelly clearly capitulating to the president more and more lately and rumored to be on his way out, Mattis’ departure would leave the administration with very few apolitical adults left in the room when the decisions that really matter are made. In the turbulent days to come, that would be bad for the country, and all of us.

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Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire.

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26 thoughts on “On the Border, Mattis Once Again the Adult in the Room

  1. The entire purpose of this operation is just another variation on the theme of a display of dominance and performative cruelty.

    It is Trump’s most essential campaign pledge, to instill fear in anyone outside his base, and to grind the axe of ethnic grievance.

    If I sound repetitious on this point, well, it has to be repeated since there really is nothing else to this administration other than variations on this same theme. Hatred and loathing of nonwhite people is Trumps sole hit, and every policy initiative is some sort of extended dance remix of the hit, unplugged remix of the hit, seasonal themed version of the hit, and so on.

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  2. Good post.

    By all accounts, Mattis dislikes/hates ‘Mad Dog’, but will answer to Chaos, which I think was his unit’s callsign in Gulf War Uno, and thus he was Chaos Actual.

    The biggest thing I don’t get about this is that I was always taught (several times) that operational command of military forces flowed exclusively from the President through the Secretary of Defense and onward to the COCOMs (in this case USNORTHCOM). I always belelieved there is no authority for anyone else to give orders absent a 25th amendment situation.

    (The thing most emphasized is that the JCS has no role in the operational chain of command, but I gotta think that also applies to the DHS Secretary & especiallly the White House CoS, who is not even Senate confirmed)

    So, this “cabinet memo” (I’ve heard a couple different names) is seriously vexxing to me.

    Eta- also I’ve been bearish in Mattis for a while. He’s always managed his press deliberately – though he’s done a good job with it. Granted, he’s done good at his jobs which makes good press easier.

    What the DoD absolutely does not need is a ‘Super CJCS’. He also didn’t pay any price for the Theranos debacle, but that indicates where his head is at on the business side of things – which is the more important side for the SecDef.

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    • You are correct and if you read Mattis’ press gaggle that is linked a couple of times in the piece, he actually goes into detail of how DHS is a “subordinate”-that’s his word-department to DOD on all matters military even when supporting one of their agencies like Border Patrol.

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      • “Interagency Joint Task Force” orgs are totally mundane, but also always have some serious MOU/MOA bureacratic heft behind them. What’s confusing are all the reports of ‘going around’ Mattis and/or the one’s where he was caught unawares of the directive Kelly signed.

        (Has anyone published the memo itself? All I’ve seen is “we’ve seen the memo, here’s what it says in our own words”)

        Eta- Kelly does have some substantial experience with this sort of thing, being Panetta’s military aide for a year or two, and especially being SOUTHCOM commander, which has longstanding agreements with DEA, Coast Guard, and Customs & Border Patrol

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        • This is more guess than fact, but depending on who you believe, the “going around” narrative stems from Trump apparently thinking DHS and Nielsen could make the troops part of the law enforcement effort. DHS has requested as much at the first of Nov and were summarily shut down by DOD. Now here we are again. Mattis isn’t going to give up operational control of active duty forces, and certainly not in a way that will break the law and put the troops needlessly in harms way.

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            • Part of me wants to say, “Checks & Balances should be perfectly adequate to keep Trump from going off the rails”, and then I remember that Congress and the Courts have been letting the executive get away with so much these past few decades that the checks are badly shorted out, and the balances are in desperate need of a depot level re-calibration.

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          • Kelly is clearly trying not to get fired again. I mean his apparently did get fired, ignored it and continued working, and Trump refused to press the issue.

            But Ivanka is clearly trying to throw her weight around and isn’t a Kelly fan (he keeps stopping things from happening that she and Trump want), and she might give Daddy enough spine to actually follow through.

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  3. As soon as this hit the news, my first thought was, “The White House chief of staff, a position that does not require Senate confirmation, clearly has no authority over either DHS or the military. How the hell does a memo signed by Kelly authorize anything?” Can anyone shed any light on that?

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    • I had the same question. this answer seems correct, though I can’t vouch for the source or its accuracy (it was among the first tweets that came up in a search for ‘cabinet memo’)

      to clear things up regarding “use of lethal force cabinet order”. Later reports show trump signed the actual order, & Kelly signed the forwarding memo, as opposed to Kelly signing actual order. A difference w/ little distinction. Kelly still complicit, but facts are important.

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  4. The crux, I think, it whether we trust the military to continue to refuse to obey illegal orders from the president. Apparently they are doing so in this case. I’d still be much more comfortable if the commander-in-chief weren’t going to continue to issue them, as we all know goddamned well he will.

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    • Just imagine speaking to a time traveler in 1956 or so:
      Yes, the current President’s supporters acknowledge he must be disregarded as an imbecile, and his statements carefully filtered through various intermediaries to become recognizable English, then shaped and modified more so as not to cause general panic and confusion.
      What’s that?
      No, on the contrary, much of the American public supports him and wants more of this sort of thing. And basically the media pretty much just presents this as the way normal functioning democracies work.
      Because you see, we have faith that the military junta will ignore any dangerous orders, and take command to prevent anything bad from happening.
      Impeachment? Oh, that’s a bit drastic, we think.

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      • During the early days of the Trump administration, Mattis apparently made a joke about tackling President Trump if he got close to touching the nuclear button. I think this was more dismissive towards Trump’s critics, a kind of drubbing but still eerily possible.

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      • Even more ridiculous to the hypothetical time traveler:

        Meanwhile, the President is personally profiting from selling $200,000-a-year memberships in his private clubs to CEO’s and he spends about one day out of every four outside of the White House schmoozing with the rich and influential at these clubs. And he owns hotels and other hospitality businesses where foreign diplomats trying to do business with the United States prefer to stay.

        Also, his son is administering, but he still owns, the licensing of his name on land developments around the world. Same son that was so eager to have that meeting with the Russian agent offering political dirt on the President’s campaign opponent.

        No, I told you the President is a Republican. Yes, that was a Russian agent helping out Republican candidates. Also other Russian agents have infiltrated and influence the National Rifle Association. Yes, the marksmanship group, only they’re really worried about gays and blacks now. They say there’s no such thing as an assault rifle and that everyone should be able to own one. And Republican politicians are in mortal terror of this group and its members, and they just sort of pretend that the Russians aren’t influencing it. …Yes, the marksmanship group.

        Anyway, the President’s closest advisors include his son and his daughter-in-law, who hold private business and real estate interests while they’re taking government salaries, and the son-in-law hasn’t been able to qualify for a full security clearance in two years because he keeps on forgetting things on his financial disclosure form. Still, that’s the guy in charge of negotiating peace in the middle east.

        Oh, I almost forgot! The President inexplicably sides with dictators and kings who are wildly unpopular with the electorate, in toadying, subordinate terms, and openly cites their financial transactions in and with the United States as the reasons why. He got fleeced by North Korea on the nuclear deal. …Well, yes, but we’re just going to have to live with North Korea having nukes now. And most recently, the President ignored the CIA’s findings that the effective head of government of Saudi Arabia personally ordered a murder in an embassy. They’re under contract to buy weapons from American contractors, you see.

        What’s that you say? No, impeachment’s kind of off the table because the President’s party has a majority in the Senate and that means they can get the judges they want, so they just put up with all the rest of it.

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        • When we hear the histories of societies that fall from democracy into autocracy its often laid at the feet of the singular individuals- a Stalin, or Hitler.

          What’s often neglected is how it was the surrender of the rest of the institutions of those societies that allowed the malignancy to grow.
          There were always would-be dictators lurking in every society, but normally kept in check by various forces.

          No, Trump isn’t a dictator, but only due to his own laziness and incompetence.

          What’s alarming to me is the passivity and surrender of our institutions- Congress, the media, the Christian churches.

          They do remind me of the Weimar institutions like the aristocracy, military, and business interests who smugly assumed they could control the dark forces.

          The damage being done will get worse after Trump, not better unless there is a strong concerted effort to contain it. Because somewhere out there is a more competent, more determined and more skillful Trump who is watching, learning, and planning his or her next move.

          I know a lot of people have noted that this same sort of criticism was leveled at Nixon, as evidence that we shouldn’t be so alarmed.

          But my memory was that the predictions failed to come true, precisely because there was so much pushback. He only resigned because members of his own party came to him and warned him they would impeach him otherwise. Because the institutions all became alarmed and indignant.

          Had they not done that, our history might have turned out very differently. There isn’t some magic autopilot spell that demands that American history have a happy outcome.

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          • @chip_daniels

            One of the things I find somewhat encouraging is the number of people who are starting to realise that the President of the United States holds way too much power with little to no accountability.

            My hope is, in the aftermath of the Trump administration, changes will be made to ensure the President’s power is more tightly circumscribed and overseen. My fear, is that nothing will change and the next wanna-be strongman will be smart an charismatic enough to seize control entirely.

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            • As long as whoever is president can be the useful idiot for those with a policy agenda, no changes will be made. The nightmare scenario, as Chip points out, is when the president is useful but not an idiot.

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  5. I remember reading an anecdote about LBJ being barred from using a Senator only door after he became part of the executive branch, but I’ll be damned if I can find it right now.

    How did we go, in 60 years, from that to what we have now?

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    • Congress went on a bender of throwing most of the details, and in some cases things much bigger than details, over the wall to executive branch agencies and departments. Want to lobby for/against regulation of CO2? Forget Congress — the action’s all at the EPA and the courts. Impose work requirements on Medicaid recipients? At the discretion of the Secretary of DHHS. Federal land use policy? Assorted executive branch agencies, from Department of Interior to Federal Energy Regulatory Commission (FERC can, for example, override all of the other groups and create energy transport corridors pretty much wherever they damned well please).

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