Mattis: New White House directive doesn’t change border mission

The statement made by Defense Secretary Jim Mattis reflects ongoing tension between the White House and Pentagon over the border mission that President Donald Trump ordered. | Win McNamee/Getty Images

The 5,800 active-duty troops deployed to the U.S.-Mexican border will remain mostly unarmed and won’t expand their duties to arresting migrants, Defense Secretary Jim Mattis said on Wednesday — despite a new White House order giving him discretion to provide new types of protection to Border Patrol agents.

“I’m reviewing that now,” Mattis said of the order. But he added: “We are not doing law enforcement. We do not have arrest authority.”

The development reflects ongoing tension between the White House and Pentagon over the border mission that President Donald Trump ordered just before the midterm elections. Trump has repeatedly said the numbers of troops would grow and argued they are defending the United States against a migrant “invasion” moving north through Mexico, only for the Pentagon to send smaller numbers and insist that their only role is to support civilian authorities.

The new order, signed Tuesday night by White House chief of staff John Kelly, does not give new tasks to the military but allows Mattis to expand the troops’ duties if Homeland Security Secretary Kirstjen Nielsen requests it. Neither the Pentagon nor the White House would immediately release the text of the document.

“I now have the authority to do more. Now we’ll see what she asks me” to do, Mattis said Wednesday, referring to Nielsen. He also referred to the Posse Comitatus Act, the 19th-century federal law that prohibits the use of active-duty troops for domestic law enforcement.

“We’ll decide if it’s appropriate for the military, and at that point, things like Posse Comitatus obviously are in play,” Mattis said. “We’ll stay in strict accordance with the law.”

Asked why the White House issued the memo if it does not significantly change the troops’ role, Mattis seemed to suggest that Trump himself had directed Kelly to issue it out of concern for the protection of Border Patrol agents.

Kelly “has the authority to do what the president tells him to do,” Mattis said. “It’s not an unreasonable concern on the part of the president that we may have to back up Border Patrol.”

But Mattis said the military’s main way of protecting the agents will be what it has been — stringing concertina wire and constructing other barriers at U.S. ports of entry.

The Army commander overseeing the border mission, Lt. Gen. Jeffrey Buchanan, told POLITICO this week that his troops do not have the authority to defend Border Patrol agents — only to defend other military personnel. “We have the authority to protect ourselves, but essentially this becomes a law enforcement task, and so it takes the president to direct us to do so,” Buchanan said.

On the other hand, the rules governing military activity in the U.S. already grant troops the explicit authority to protect nonmilitary personnel involved in their missions. It was not clear whether the Kelly memo constituted the extra step Buchanan referred to.

Mattis also downplayed the risk that the military mission could lead to troops firing on migrants — a possibility Trump has raised by saying he would respond to anyone throwing rocks as if they had firearms.

“They’re not even carrying guns, for Christ’s sake,” Mattis said when asked how the military would avoid a repeat of a 1997 incident in which Marines on the border mistakenly shot a teenager. The military has said the work parties building fortifications on the border include one pistol-armed military police officer for every three or four unarmed combat engineers.

If troops are used to defend Border Patrol agents in violent situations, either under the existing authorities or new ones, they will be “unarmed MPs with shields, batons, no firearms,” Mattis said.

The only circumstance under which troops might detain migrants even for “minutes” at a time, he added, would be if they were “beating on a Border Patrolman and we’re in a position to stop them.” In such a case, the troops would promptly turn the detainee over to civilian authorities, he said.