National Guard in Texas Could Get Arrest Power

New York Times

By Manny Fernandez

July 24, 2014

National Guard in Texas Could Get Arrest Power 

HOUSTON — When Gov. Rick Perry of Texas announced plans to deploy 1,000 National Guard troops to help with the border crisis, it came with a power unexpected by some. By deploying them himself rather than through Washington, he has the power to order the troops to make arrests and apprehensions, something Guard troops in past border deployments have been prohibited from doing.

Immigrant rights advocates and others, including former federal officials involved in previous National Guard mobilizations, said the troops would lack both training and federal oversight, creating a risk of civil rights violations and deadly encounters with immigrants.

“This does not come from the federal government,” said Jayson P. Ahern, a former Customs and Border Protection acting commissioner who helped coordinate deployment of the National Guard to the border in 2006. “That’s the biggest distinction here. This is the governor taking unilateral action. Not having that oversight and supervision and direction as part of a plan from the federal authorities, I think it is reckless and could lead to significant safety issues.”

In 2006, President George W. Bush sent 6,000 troops to the four border states where they repaired and built fences and roads, conducted surveillance and took over administrative and logistical duties. In 2010, Mr. Obama deployed 1,200 troops to bolster border security. Troops in those deployments did not have arrest and apprehension powers.

The ones due at the border next month will work side by side not with federal Border Patrol agents but with state police officers of the Department of Public Safety. They will not be able to enforce federal immigration laws but may be able to enforce state law. A 19th-century federal law that makes it a crime for military personnel to perform civilian law enforcement activities does not apply to state-duty troops.

Critics worry that the Guard will be ill trained to deal with an immigrant population.

“It’s going to complicate the scenario of civil and human rights at the border,” said Fernando Garcia, executive director of the Border Network for Human Rights. “Border Patrol agents have to go through a number of certifications in academy and post-academy training on immigration law, on civil rights law. Now you’re talking about putting in soldiers doing that kind of work. Legally, it’s going to be a disaster if they start enforcing criminal, civil or immigration laws.”

Mr. Perry and Maj. Gen. John F. Nichols, the adjutant general of the Texas National Guard, emphasized the supporting role the 1,000 troops would play. They said the troops were needed because Mexican drug cartels and other criminal organizations were taking advantage of the federal government’s focus on the wave of Central American immigration that has flooded the border in recent months.

General Nichols said the troops would undergo training, and he described their mission as “referring and deterring” — having their presence on the border act as a deterrent and referring people who they suspect are illegal immigrants to state law enforcement officers.

It remains unclear if Mr. Perry will grant the troops the authority to make apprehensions. General Nichols suggested this week that Guard troops could do so if the governor requested it but that they had no plans to.

Mr. Perry has previously favored such powers. In a letter to President Obama last month, he asked him to deploy 1,000 troops under presidential authority and to give those troops “arrest powers to support Border Patrol operations.”

Homeland Security Secretary Jeh Johnson has indicated the limited involvement federal officials have had in Mr. Perry’s plans. “We don’t know yet exactly what they intend to do,” he said Tuesday. Asked about possible federal coordination, he said, “I would certainly hope so.”

Gov. Chris Christie of New Jersey, visiting Colorado on Thursday as part of his national tour to test his presidential prospects, also entered the debate about the wave of unaccompanied children flowing across the border.

Mr. Christie mocked the system of putting the new arrivals in the homes of temporary guardians — some also in the country illegally — and blamed Mr. Obama for failing to go see the problem first hand.

“The president didn’t find the time to go to the border, even though it’s such a crisis, and it’s a sign of his unwillingness to lead,” Mr. Christie said Thursday at a security forum held at the Aspen Institute, speaking alongside four other Republican governors.

Mr. Christie was not the only one of the governors to argue during an hourlong discussion that the federal government was dropping the problem, and costs, on the states. Gov. Nikki R. Haley of South Carolina said she had told Mr. Johnson, who spoke at the conference earlier in the day, “You haven’t told any of the governors anything” about how to deal with the influx of children and youths.

She contended that the federal government was dumping the costs on the states.

“You want me to educate them, right, you want me to pay their health care, right?” she said she told Mr. Johnson. While she wanted to make sure the newly arrived refugees were safe, she also noted, “We have our own children to take care of.”

The White House sent a team of officials to Texas this week to assess whether a federally organized National Guard deployment was warranted to deal with the surge of immigrants.

Mr. Perry intends to ask the federal government to pay for the deployment, estimated to cost $12 million a month. Federal laws permit the Pentagon to pay states for National Guard deployments, including for antidrug and homeland security missions, but it is unclear if Mr. Perry’s will qualify for reimbursement.

Advocates say their concerns about what might happen once the National Guard troops arrive on the border are based on previous problems.

In 2012 in the border town of La Joya, a state police sharpshooter in a helicopter shot at a pickup truck suspected of carrying drugs. The truck was not carrying drugs, but illegal immigrants from Guatemala hiding under a blanket. Two of the immigrants were killed by the officer, angering Guatemalan diplomats.

In 1997 in West Texas, a Marine assigned to work with the Border Patrol shot and killed a high school student herding his family’s goats, in a confrontation military officials called self-defense.

“That is an example of how things can go wrong,” said Doris Meissner, a senior fellow at the Migration Policy Institute who was the immigration commissioner in the Clinton administration.

For more information, go to:  www.beverlyhillsimmigrationlaw.com