A long sliver of federal land along the U.S.-Mexico border that President Donald Trump is turning over to the Department of Defense would be controlled by the Army as part of a base, which could allow troops to detain any trespassers, including migrants, U.S. officials told The Associated Press.
The transfer of that border zone to military control — and making it part of an Army installation — is an attempt by the Trump administration to get around a federal law that prohibits U.S. troops from being used in domestic law enforcement on American soil.
But if the troops are providing security for land that is part of an Army base, they can perform that function. However, at least one presidential powers expert said the move is likely to be challenged in the courts.
The officials said the issue is still under review in the Pentagon, but even as any legal review goes on, the administration’s intent is to have troops detain migrants at the border.
RELATED
The corridor, known as the Roosevelt Reservation, is a 60-foot-wide federal buffer zone that ribbons along the border from New Mexico to California, except where it encounters tribal or privately owned land. It had been run by the Interior Department until Trump directed control be transferred to the Defense Department in a presidential memo released Friday night.
For the next 45 days, the Defense Department will test taking control of a section of the Roosevelt Reservation in New Mexico, east of Fort Huachuca, which is an Army installation in Arizona, one of the U.S. officials said. During that period, the Army will put up additional fencing and signs warning people not to trespass.
People not authorized to be in that area could be arrested by the Army’s security forces, the officials said, who spoke on condition of anonymity to provide details not yet made public.
Any migrants in the country illegally who are detained by military personnel on those lands would be turned over to local civilian law enforcement agencies, the officials said.
Troops are prohibited from conducting civilian law enforcement on U.S. soil under the Posse Comitatus Act. An exception known as the military purpose doctrine allows it in some cases — but would not apply here and would likely be challenged in the courts, said Elizabeth Gotein, an expert on presidential emergency powers at the Brennan Center for Justice.
That’s because even though troops would be on land designated as an Army installation, they would have to prove that their primary mission there was not to conduct border security and law enforcement — and the whole point of Trump’s order transferring the Roosevelt Reservation to the military’s control is to secure the border, she said.
The military purpose doctrine “only applies if the law enforcement aspect is incidental,” Gotein said. “Does this [area] have a military purpose that has nothing to do with enforcing customs and security at the border?”
Rebecca Santana contributed from Washington.
Tara Copp is a Pentagon correspondent for the Associated Press. She was previously Pentagon bureau chief for Sightline Media Group.
