President Donald Trump late Friday signed a presidential memo that will allow the U.S. military to patrol a swath of land in New Mexico along the border with Mexico, and arrest migrants they encounter there. If it’s successful, the plan is to expand the operation along the entire border from New Mexico west to California.
The memo hands the public land over to the Defense Department and makes it a part of an army base. But the entire plan is likely to face legal challenges.
Tara Copp, Defense Department correspondent for the Associated Press, joined The Show to discuss what exactly is the Defense Department doing on the southern border here.
Full conversation
MARK BRODIE: Tara, what exactly is the Defense Department doing on the southern border here?
TARA COPP: Sure, well, it took, it took a couple of days to figure that out actually. The order came in late Friday night, and, you know, Monday, the Defense Department was still trying to figure out, and is still trying to figure out now, what are the legal issues here, what does it mean for troops. The order that Trump, the executive order Trump signed basically establishes this long sliver of federal land known as the Roosevelt Reservation.
It was set aside in 1907 right along the U.S.-Mexico border, so that there was basically a buffer zone along the entire border where there wouldn't be development. There are a couple of exceptions to this. If there are tribal lands, the Roosevelt Reservation doesn't go through those tribal lands. The border between Texas and Mexico is also exempt because Texas joined the U.S. as an independent country in 1845, and so was exempted from this Roosevelt Reservation.
But basically, it's, it really, if you think about it, it's only 60 feet wide. It's just a buffer zone. It was meant to, you know, make sure that right along the U.S.-Mexico border, there weren't going to be buildings. There weren't going to be impediments if you do need areas that have a border fence.
BRODIE: So you mentioned that the Defense Department is still trying to figure some of this stuff out, like, what are the questions that that the Pentagon is trying to get answers to still?
COPP: Sure. So the whole reason that President Trump signed this was that his administration looks at this as a way to get around posse comitatus, which is a federal law that prohibits troops under federal control from conducting civilian law enforcement on domestic soil. Now there are a couple of exceptions to this, if troops are, you know, say, in an emergency situation, a hurricane response, something like that, where they accidentally or not accidentally, but have to do some sort of law enforcement, but is not the main purpose of their being there, they can do that.
So the Trump administration has figured out that if they just turn this long swath of land from the Department of Interior, who currently owns it, to the Department of Defense. And then the Department of Defense says, OK, this land is actually now part of a military base. So for the next 45 days, there's going to be a small kind of test case in New Mexico, where part of the Roosevelt Reservation right along the border, is going to be made part of Fort Huachuca, which is an Arizona army base.
Now, if you've ever been to an army base or any military installation, there's a gate, there are security guards. You can't just walk onto the military base. And that's the idea here is that if someone just kind of walked on to this area, say, a migrant crossing the border illegally, and encountered U.S. troops along that reservation, they could detain that migrant because they're trespassing on a military facility.
There's still some questions about this as to whether or not it can actually be done because the executive order really was establishing this swath of land specifically for border control, border protection, and the kind of exception that allows U.S. troops to be able to do civilian law enforcement is supposed to be on an emergency case only. It's not supposed to be that they can do law enforcement because it's now their primary mission of this little swath of land. So, legal experts I talked to yesterday said that this is still kind of shaky territory and is likely to be challenged in the courts.
BRODIE: Well, President Trump though has said that this is an emergency situation, hasn't he?
COPP: Yes, but the, so the there's an emergency situation like a hurricane, there's an emergency situation like border control. The U.S. troops can't be used as their primary mission to do law enforcement for border control, even under this kind of special case scenario, because they basically the exemption that allows them to do this is called the Military Purpose Doctrine, which means if they happen to be doing something like helping out after a severe hurricane, and there's looting or there's something where a crime is being committed and the troops are the only ones there who can react.
They can act as civilian law enforcement for a very limited specific amount of time. And they turn over those people to then actual civilian law enforcement. They can't have their primary mission along the border be to be patrolling and being able to detain and arrest migrants as they cross the border.
BRODIE: So in the Trump administration's imagining of this scenario, if a military member arrests a border crosser, what, what do they do with that person then?
COPP: So the idea right now is if they do come across migrants, they would be able to arrest them and then immediately turn them over to whatever law enforcement agency is there on the ground, whether that's Customs and Border Protection, whether that's, you know, local sheriff's office. Again, there's still, you know, there still needs to be some kind of vetting of this, I'm sure, and the experts that I talked to are also sure that this will probably be immediately challenged by lawyers representing those migrants who are detained.
BRODIE: So you mentioned that, you know, obviously most military bases have gates and guards and other security. Is the plan to build any of that on this sliver of land, or is it just declared an army base and You know, it is, even though it doesn't look like one.
COPP: Yes, there are plans in this 45-day test case and kind of this limited part of the Roosevelt Reservation to put up signage, you know, issue warnings, to put up some additional fencing, and see if that is an effective deterrent.
BRODIE: Has this ever been tried before?
COPP: To my knowledge, this has not been tried before. The Roosevelt Reservation has been used as in the past to allow for border protection, for example, in the early 2000s and even during Trump's first term when they were putting up the border wall. Because the Roosevelt Reservation was owned by the Department of Interior, they were allowed to, you know, construct things along that path as long as they were conscientious of some environmental concerns.
And the, you know, the fact that this was a 60-foot swath of land that was federal assisted in the construction of, if you remember, there were sections of the wall that were put up during Trump's first term. And so this isn't the first time that the administration has considered the use of the Roosevelt Reservation, but it is the first time that I can recall that they have used it in a way that they think will allow troops to basically patrol it as they would their own military base.
This really represents the biggest expansion of the Trump's administration's use of the military to conduct border protection and border control, not only during his first term, but now. In the past, you had troops assigned to help with the border wall, like unroll concertina wire, help get the wall up, fill in some of the back administrative jobs to allow the border agents to actually conduct the law enforcement activities at the border.
You know, we've seen in his first 100 days in office, it's expanded slightly, so the Air Force has been flying a lot of military air flights to return migrants who've been deported to their home countries or to send them to the naval facility at Guantanamo Bay, Cuba. But now you're talking about actually having troops on the ground that might be conducting civilian law enforcement.
