(Slip Opinion) Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act The Department of Defense’s proposed use of military personnel to provide limited assistance with respect to certain Customs and Border Protection inspection and observation functions along the southern border of the United States is permissible under the Posse Comitatus Act and applicable regulations. January 19, 2021 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF DEFENSE The Posse Comitatus Act, 18 U.S.C. § 1385, restricts the use of “any part of the Army or the Air Force” in civilian law enforcement, unless expressly authorized by law. Consistent with these restrictions, for many years, the Department of Defense (“DoD”) has provided assistance to the efforts by the Department of Homeland Security (“DHS”) to stem the illegal flow of persons and contraband across the southern land border between the United States and Mexico. This assistance is principally authorized by chapter 15 of title 10 of the United States Code, 10 U.S.C. §§ 271–284, which allows DoD to provide a number of different forms of support to civilian law enforcement. Congress endorsed DoD’s ongoing efforts in 2015 by providing that “[t]he Secretary of Defense may provide assistance to United States Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern land border of the United States.” National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1059, 129 Stat. 986‒87 (2015) (“FY 2016 NDAA”). In February 2020, DHS requested that DoD perform 26 specific duties in support of U.S. Customs and Border Protection (“CBP”) operations at the southern border for fiscal year 2021. See Memorandum for Oliver Lewis, Captain, USN, Executive Secretary, Department of Defense, from Juliana Blackwell, Acting Executive Secretary, Department of Homeland Security, Re: Request for Extension of Department of Defense (DoD) Assistance in Support of U.S. Customs and Border Protection’s (CBP) Southwest Border (SWB) Security Mission Through Fiscal Year (FY) 2021 (Feb. 3, 2020). DoD approved support for 22 of these 26 duties, most of which involved the kind of support that DoD already had been providing 1 45 Op. O.L.C. __ (Jan. 19, 2021) to DHS, such as motor-transport operations support and a crisis-response force for certain urgent needs. See Memorandum for the Executive Secre- tary, Department of Homeland Security, from David S. Soldow, Captain, USN, Executive Secretary, Department of Defense, Re: Request for Ex- tension of Department of Defense Assistance in Support of U.S. Customs and Border Protection’s Southern Border Security Mission Through Fiscal Year 2021 (June 23, 2020). DoD, however, held off on approving support for four duties pending further consideration as to whether they would be consistent with the Posse Comitatus Act and DoD regulations implementing chapter 15. Those four duties concern rail-support, seal-check, port-of-entry-observer, and checkpoint-observer functions. We understand that the rail-support duty would have military personnel assist CBP personnel responsible for inspecting unoccupied, unlocked vehicles being transported across the southern border in bulk on rail cars. The seal-check duty would ...
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