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Donald Trump's decision to send thousands of soldiers to the US-Mexico border to intercept migrants who want to apply for asylum is not just a bald political stunt, it is also illegal.
Adopted in 1878 to end the use of federal troops in the supervision of elections in the post-civil war, the Posse Comitatus law bans the use of the military to enforce the US national laws, including immigration laws. For this reason, Trump's decision to deploy the army at the border to enforce US immigration law to thousands of desperate immigrants from Central America – who have undertaken the perilous journey of 1000 km through Mexico up to the US border in order to apply for illegal order asylum.
Kathleen Gilberd, executive director of the National Lawyers Guild's Military Law Task Force, told Truthout: "The deployment of US troops on the southern border is an illegitimate political ploy and a serious hijacking of the military. This action shames a government that considers refugee claimants as enemies. "
The unlawfulness of the order given by Trump to the army opens the door to the possibility of members of the service resisting it: under the uniform Code of Military Justice, Nuremberg principles and manuals In the army campaign, service members are required to obey legal orders and disobey illegal orders.
Prior to the mid-term elections, near his nativist base, Trump had begun deploying 5,200 soldiers on active duty in Texas, California, and Arizona, on the southern border of the United States, with the promise of nearly 10,000 additional men. On October 29, describing the imminent arrival of asylum seeker migrants as an "invasion," Trump told Twitter: "It's an invasion of our country and our military waiting for you!"
The Trump administration originally called the military operation "Operation Faithful Patriot," but quickly abandoned the name, ostensibly to minimize the military's law enforcement duties. Trump's lawyers have always understood that the use of the army to enforce laws is prohibited by the Posse Comitatus Act.
It is forbidden for the army to enforce the right of immigration
The Posse Comitatus Act prohibits the voluntary use of "any part of the Army or Air Force as a comitatus or for the enforcement of laws". It has also been applied to the navy and marine corps. The only exception to the prohibition of the Posse Comitatus Act is "in the cases and in the circumstances expressly authorized by the Constitution or the law of Congress".
Department of Defense officials told the New York Times that troops deployed at the border would help build tents and fences, and that some might "potentially" use drones at the border.
Whether drones are armed or used for surveillance purposes, they would contribute to the enforcement of immigration laws.
In addition, according to the Los Angeles Times, "Black Hawk helicopters equipped with night sensors will be available to transport border patrol personnel" exactly where needed "to" spot groups "and to" quickly stop "migrants who are trying to move. cross the border. Military aircraft will provide surveillance. "
Troops performing these functions would also participate in the enforcement of immigration laws.
It is only in case of invasion or insurrection on American soil that the President has the power to order the use of the army to United States.
The caravan of migrants creates neither invasion nor insurrection. In an interview with The New York Times, Admiral James G. Stavridis, a former commander of the US Army's Southern Command, described Trump's "fictional invasion by the caravan."
Indeed, "It is legally forbidden for the military to engage in immigration control, and no emergency or cost-benefit analysis justifies this sudden deployment," said Shaw Drake, Center Policy Advisor. border rights of the ACLU, in a statement.
The duty to disobey illegal orders
The Uniform Code of Military Justice (UCMJ) requires all military personnel to obey legal orders. Article 92 of the Uniform Code of Military Justice provides: "A general order or regulation is lawful, unless it is contrary to the Constitution, the laws of the United States …". The Nuremberg Principles and the Army Campaign Manuals create a duty of disobedience. illegal orders.
"Sending troops to the US border with Mexico is as immoral and illegal as sending them to invade and occupy foreign lands," said Gerry Condon, president of Veterans For Peace. "Donald Trump is waging a racist war against asylum seekers fleeing extreme violence, which is in turn caused by decades of US support for repressive regimes in Central America."
Members of Veterans For Peace stretch along the US-Mexico border from California to Texas to reach the troops Trump has commanded to the border.
Condon added, "Soldiers who follow their conscience and refuse to follow illegal orders will have our support. We can also connect GIs with legal resources to help them achieve an honorable release from the military. "
The cynical and illegal attack of Trump against the right to seek asylum
Trump's verbal attacks against the migrants and his deployment of troops at the border were a cynical ploy to help Republican candidates in the mid-term elections. Although he led a consistent tirade against the "caravan" in the weeks leading up to the intermediate courts, Trump has barely mentioned it since Nov. 6. He did mention it when he announced his new proclamation limiting asylum requests.
Under the 1951 Refugee Convention, anyone who arrives in the United States has the right to apply for asylum. Applicants must demonstrate that they can not or do not want to return to their country of origin, fearing with good reason to be persecuted because of their race, religion, nationality, nationality, belonging to a particular social group or political opinion.
Yet Trump's new proclamation would deprive migrants of the right to seek asylum unless they enter the United States through a designated entry point, in violation of the 1951 Refugee Convention. .
On November 9, the ACLU, the Southern Poverty Law Center and the Center for Constitutional Rights filed a lawsuit in the United States District Court for the Northern District of California, seeking an injunction to block new restrictions of Trump asylum. The complaint states that Trump's proclamation is "in direct violation of the order indicated by Congress that the mode of entry can not constitute an obstacle to categorical asylum".
Congress refoulement
In a November 1 letter to Defense Secretary James Mattis, the House of Democratic Democrats in the House of Representatives (108) denounced the "militarization of the southern border to mark political points and stoke immigrants' misleading fears. vis-à-vis the Americans ". the United States to seek asylum for its own political gain, and continues to politicize and militarize this humanitarian crisis as these men, women and children flee violence and persecution in an unstable region of the world. "
Congress members asked Mattis to specify the duration of the deployment, the number of troops deployed, the rules of engagement, the type of training received by the troops and the cost of deployment for US taxpayers.
Nearly 2,500 optimistic migrants have already arrived in Tijuana and thousands more are on their way. Several organizations, including the National Lawyers Guild, have sent a legal backup copy to the border. Veterans For Peace members are also at the border and offer their support to troops who refuse illegal orders to enforce immigration laws.
The Trump border deployment order ends on December 15th. It is important that every member of Congress loathes. But Trump reacts to negative publicity, so it is the massive mobilization of opposition that can make him back down.
Copyright © Truthout. Reprinted with permission.
Marjorie Cohn
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