National News

New Troops on Border Face Rules About Mexico

Posted May 15, 2018 6:52 p.m. EDT

HOUSTON — The hundreds of National Guard troops deployed by President Donald Trump in April are now busy securing the southern border. But when it comes to surveillance, they are forbidden from looking across it.

The troops operating and monitoring high-tech surveillance equipment along the border have been told they are prohibited from using it to look into Mexico. The little-known caveat is part of the legal ground rules for the new National Guard deployment along the southwest border, which calls for troops to operate “up to” the U.S.-Mexico border, state and federal officials said.

Here in Texas, the other side of the Rio Grande is off limits for Guard members overseeing 24-hour surveillance video feeds from camera towers, tethered helium balloons and other equipment.

“We are not doing foreign intelligence collection on the border,” Army Lt. Col. Jamie Davis, a Defense Department spokesman, said in a statement explaining the policy.

The troops face other limitations: They are prohibited from performing law-enforcement duties, making arrests or interacting with migrants. And while troops are allowed to look across the border with their eyes, the rules on electronic surveillance place a significant restriction on the monitoring capability that federal officials have said is key to preventing illegal entries from Mexico.

Mexico serves as a staging ground for illegal entry into the United States, as groups of immigrants, smugglers and guides assemble on the Mexican side of the border before crossing the river or scaling the fence in daylight and darkness. The Border Patrol, which is not bound by the National Guard limits on surveillance, routinely watches both sides of the border.

“They have their hands tied,” said Rep. Vicente Gonzalez, D-Texas, whose district includes the border city of McAllen. “This is not what the National Guard was designed for.” He said the money spent on putting troops on the border should be used instead to hire additional Border Patrol agents.

But Republicans in the four states that share a border with Mexico — Arizona, California, New Mexico and Texas — have largely supported the call-up.

National Guard and Border Patrol officials played down any effect the rules were having on the troops and touted the deployment’s achievements so far. The roughly 800 troops already working in Texas, New Mexico and Arizona have so far helped Border Patrol agents apprehend more than 1,600 people making illegal border crossings and seize more than 1,000 pounds of marijuana, officials said.

The soldiers have been providing air support in Lakota helicopters, repairing roads and vehicles, and monitoring stateside surveillance footage from hundreds of camera towers and other equipment. In Southern California on Monday, Border Patrol officials formally welcomed the first wave of about 50 troops in the region. There are generally three types of National Guard deployments.

Troops can be called to active duty by governors in a state duty status, by presidents in a federal status or in a hybrid role known as Title 32, named for a Guard-related section of the U.S. Code intended for homeland defense.

Trump’s National Guard mobilization on the border is a Title 32 deployment, in which the soldiers are under the command and control of their governor, but the federal government finances the operation. In a purely federal deployment, troops can perform their duties anywhere in the world, but in a Title 32 mobilization, soldiers are limited to the continental United States, and foreign intelligence collection cannot be part of such an operation.

“Guardsmen in Title 32 status do not have the authority nor is that the intent,” said Davis, the Defense Department spokesman. “At this time there is no effort to update the policy,” he added.

In April, in rural Starr County in South Texas’ Rio Grande Valley, the soldiers stationed at two observation posts appeared to be following the guidelines.

The troops stood on rocky, muddy cliffs on the river’s edge, peering through binoculars and focusing most of their attention on the banks and the brush on the U.S. side. The official boundary between the two countries at that point is not the border fence but the middle of the Rio Grande, and several of the troops at the outposts stood facing east and west, but never directly focused their binoculars south across the river into the brush in Mexico.

National Guard officials said the troops were carrying out their approved mission, and they did not view the surveillance rules as a prohibition or restriction but simply as part of the parameters of the deployment.

Their mission, National Guard officials said, is to monitor and detect, and to perform many of the administrative, logistical, maintenance and surveillance tasks that Border Patrol agents would be doing, so those agents can be freed up to be out in the field. Officials refer to the troops’ support role as being a “force multiplier.”

But critics of the deployment say the Guard’s usefulness is likely minimal.

“To me, the whole thing smacks more and more of the absurdity of this call-up,” said Terri T. Burke, executive director of the American Civil Liberties Union of Texas. “I’m not endorsing surveillance in Mexico. I don’t think our government should be doing that at all. But I have yet to figure out why we need the Guard on the border.” The number of troops along the border was expected to increase in the coming weeks. Defense Secretary James Mattis signed orders authorizing Defense Department funds to be used for up to 4,000 National Guard personnel.

Retired Lt. Gen. H. Steven Blum, the former chief of the National Guard Bureau who oversaw former President George W. Bush’s deployment of 6,000 troops to the border in 2006, said the surveillance policies do not hinder the Guard’s capabilities.

“National Guard forces, when operating under Title 32, are under the command of the governor,” he said. “Their authorities cannot exceed those of the constitution of the state where they are performing their assigned duties.”