Reports: Texas National Guard Won't Have Power to Arrest

Wednesday, 23 Jul 2014 07:40 PM

By Cathy Burke

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Texas National Guard troops headed for the Rio Grande Valley to help stem the surge of children and adults pouring across the southern border into the United States won't be able to arrest any illegal immigrants, two reports say.

The mission of the approximate 1,000 guardsmen —  expected to start within 30 days —  will involve establishing listening and observation posts along the border and using helicopters with infrared sensors to alert the Texas Department of Public Safety if they see illegal immigrants crossing into the United States, Air Force Maj. Gen. John Nichols told ArmyTimes.

"We're going to be in observation posts, so we won't be patrolling," he said. "If we see people cross the border then we're going to call the DPS to go interview them."

Texas Gov. Rick Perry has mobilized the National Guard in response to the thousands of undocumented children, mostly from Central America, crossing into the United States through Mexico.

The guardsmen will be armed.

"They're allowed to defend themselves,” he said. “They will be armed, but it's for personal safety, to defend themselves. We've done Operation Jump Start, Operation River Watch, which were federally funded operations, where in those cases we helped U.S. Customs and Border Protection. We were armed then. The same rules applied."

Operation Jump Start was initiated under President George W. Bush in 2006, when 6,000 guardsmen were sent to the southwestern border, the Houston Chronicle noted. 

President Barack Obama followed suit in 2010, ordering 1,200 Guard troops to the border. 

Since the guardsmen are being called up by the state, they don't fall under "Posse Comitatus," a post-Civil War law that prevents federal troops from performing law enforcement functions in the United States, Nichols told ArmyTimes.

Under current law, guardsmen deployed on state active duty can act in a law enforcement capacity if granted that power by that state's governor. But the arrest power applies only to state laws, such as theft and drug offenses, the Chronicle notes.

Nichols said he didn't know how long the mission will last.

"We've been asked to plan up to a year, so a date hasn't been assigned as an end-date," he said. "It's going to be more of an effects-based end date."

Democratic critics say the Guard's presence is little more than a political statement, the Chronicle reports.

"If anybody thinks National Guard is going to be at the border with rifles they're wrong," Texas Democratic Rep. Henry Cuellar told the Chronicle. "I can't speak for Governor Perry, but the authority the National Guard has is provide support service. They can provide intel support. They can be lookouts. But can they go out there and apprehend? … they cannot do that."

The deployment, Perry spokeswoman Lucy Nashed countered, "is to support the Texas Department of Public Safety's surge operations, which are focused on combating crime and cartel activity that is resulting from our unsecured border."

"This is a separate issue from the influx of unaccompanied minors along the border," she told the Chronicle, "but they're closely related."

"Criminals are taking advantage of the opportunity to ramp up their illicit activities," she said. "The Guard will be working seamlessly and side-by-side with law enforcement, who can detain individuals and refer them to the appropriate federal authorities."

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