State of California et al v. Trump et al

Filing 212

NOTICE of Filing of Administrative Record For Section 2808 Border Barrier Projects by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson (Attachments: # 1 Exhibit Certification, # 2 Exhibit 2808 Administrative Record - Part 1, # 3 Exhibit 2808 Administrative Record - Part 2, # 4 Exhibit 2808 Administrative Record - Part 3)(Warden, Andrew) (Filed on 9/16/2019) Modified on 9/17/2019 (jjbS, COURT STAFF).

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Statement by
Robert G. Salesses
Deputy Assistant Secretary of Defense
for Homeland Defense Integration and Defense Support of Civil Authorities
Department of Defense

Before the 116th Congress
Committee on Homeland Security
Subcommittee on Border Security, Facilitation, and Operations
U.S. House of Representatives
June 20, 2019

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Introduction
Chairwoman Rice, Ranking Member Higgins, distinguished Members of the
Subcommittee: Thank you for the opportunity to testify today on Department of Defense (DoD)
support to Department of Homeland Security (DHS), Department of Health and Human Services
(HHS), and Department of Justice (DOJ) missions related to the security of the southern border
of the United States.

The Department of Defense Has a Long History of Supporting Border Security
Using the substantial authorities Congress has provided, DoD has a long history of
supporting efforts to secure U.S. borders.
Steady State
Active-duty and National Guard personnel have supported Federal and State counterdrug
activities (e.g., detection and monitoring of cross-border trafficking, aerial reconnaissance,
transportation and communications support, and construction of fences and roads) beginning in
the early 1990s. Most recently, U.S. Northern Command’s Joint Task Force-North executed 53
counterdrug support missions in fiscal year (FY) 2017 and 23 missions in FY 2018. When the
Secretary of Defense approved the four border States’ plans for drug interdiction and counterdrug activities, DoD committed $21 million in funds in FY 2017 and $53 million in FY 2018.

When needed, DoD has provided planners to help DHS develop its Southern Border and
Approaches Campaign (2014) and CBP’s Crisis Migration Plan (2018).

DoD has also loaned facilities and special equipment, such as aerostats, ground
surveillance radars, and ground sensors, to CBP.

Surge Support
•

Post-9/11 (2002): 1,600 National Guard personnel were detailed to the U.S. Customs
Service, the Immigration and Naturalization Service, and the Border Patrol at northern and
southern borders.

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•

2004-2005 – Operation WINTER FREEZE: 129 Active-duty and National Guard personnel
were deployed to northern border to interdict suspected transnational threats.

•

2006-2008 – Operation JUMP START: 6,000 National Guard personnel were deployed at
the southern border from 2006-2007 and 3,000 National Guard personnel from 2007-2008.
National Guard personnel improved infrastructure at the southern border by building more
than 38 miles of pedestrian fence, 96 miles of vehicle barrier, more than 19 miles of new allweather road, and repairing more than 700 miles of roads.

•

2010-2017 – Operation PHALANX (2010-2017): Up to 1,200 National Guard personnel
were deployed at the southern border from 2010 to 2012 and 200-300 National Guard
personnel at the southern border from 2013-2017, conducting detection and monitoring,
aviation support, aerial reconnaissance, and analytical support missions.

•

2012-Present – Housing Support for Unaccompanied Alien Children. DoD has provided
temporary housing support to the Department of Health and Human Services (HHS), on a
reimbursable basis, as part of the national response to the surge of unaccompanied alien
children (UAC) at the U.S. southern border. Since 2012, DoD has provided DoD property
for HHS to shelter nearly 16,000 UAC, who receive care, security, transportation, and
medical services from HHS. Consistent with section 2815 of the National Defense
Authorization Act for FY 2017 (Public Law 114-328), the Secretary of Defense has certified
that providing this sheltering support to HHS will not negatively affect military training,
operations, readiness, or other military requirements, including National Guard and Reserve
readiness. A summary of this support is provided in the following table:

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DoD Installation
Lackland, AFB, TX
Lackland, AFB, TX
NAVBASE Ventura, CA
Ft. Sill, OK
Holloman AFB, NM
Ft. Bliss, TX

Duration
April 4-June 13, 2012
May 18-August 8, 2014
May 18-August 8, 2014
May 18-August 8, 2014
January 25-February 27, 2016
September 6, 2016-February 8,
2017
TOTAL

# of UACs
800
4,357
1,540
1,861
129
7,259
15,946

DoD’s presence and support at the southern border increases the effectiveness of CBP’s
border security operations, helps free up Border Patrol agents to conduct law enforcement duties,
and enhances situational awareness to stem the tide of illegal activity along the southern border
of the United States.

The numbers and types of migrants arriving at the southern border of the United States
has exceeded the capacity of CBP, prompting the need for additional DoD support.

The President Directed DoD to Support DHS
Since April 2018, DoD support to DHS has been provided pursuant to the President’s
direction, including his April 4, 2018, Presidential memorandum, “Securing the Southern Border
of the United States.” In this memorandum, the President directed DoD to support DHS “in
securing the southern border and taking other necessary actions to stop the flow of deadly drugs
and other contraband, gang members and other criminals, and illegal aliens into this country.”
The President also directed DoD to request use of National Guard personnel to assist in fulfilling
this mission, including pursuant to Section 502 of Title 32, U.S. Code. Finally, the President
directed the Secretary of Defense and the Secretary of Homeland Security, in coordination with
the Attorney General, to determine what other resources and actions are necessary to protect our
southern border, including Federal law enforcement and U.S. military resources.

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DoD Works Closely With DHS
Across the full-range of support that DoD has provided DHS – border security support,
disaster support, special event security support, and support for protection of the President –
DoD has worked closely with DHS as DHS develops its requests for DoD assistance as
deliberately, expeditiously, and effectively as possible to meet mission needs.

DoD carefully considers all requests for assistance, including in order to determine
whether DoD has the requested capabilities and resources and whether providing the requested
assistance is consistent with applicable law. When a request is approved, DoD works with the
requesting department or agency to select the right forces and resources to meet the requested
mission needs. DoD has used the same process for every DHS request for assistance related to
DHS’s border security mission.

Specific DoD support is driven by DHS requirements. DoD, consistent with the
President’s order, statutory authority, and operational considerations, helps DHS develop
requests that will meet DHS requirements while mitigating potential impacts on military
readiness, to the extent practicable. Consistent with the law and the President’s order, DoD
support is currently being provided on a non-reimbursable basis, to the extent legally available.
DoD support is also provided consistent with Section 275 of Title 10, U.S. Code, and the Posse
Comitatus Act (Section 1535 of Title 18, U.S. Code), which do not permit direct participation by
military personnel in a search, seizure, arrest, or other similar activity.

DoD Support

April 2018 to September 2019 – Augmentation (Badges Back to the Border)
•

In support of CBP Operation Guardian Support, DoD has authorized National Guard
personnel to support CBP in a duty status under Section 502 of Title 32, U.S. Code, with the
consent of, and under the command and control of, their governors.

•

Types of support: aviation; communications; fleet maintenance; intelligence analysis;
planning; and surveillance.

•

At its peak, on November 26, 2018, 2,295 National Guard personnel supported CBP
Operation Guardian Support (369 in California; 603 in Arizona; 119 in New Mexico; and
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1,204 in Texas). As of June 5, 2019, 1,776 National Guard personnel were supporting CBP
Operation Guardian Support (137 in California; 550 in Arizona; 18 in New Mexico; and
1,227 in Texas).

June to December 2018 – Attorney Support for the Department of Justice
•

DoD detailed 21 attorneys with criminal trial experience to the Department of Justice (DOJ)
to serve as Special Assistant United States Attorneys (SAUSAs).

•

This detail of DoD personnel was executed pursuant to the Economy Act and was on a fully
reimbursable basis.

October 2018 to January 2019 – Enhanced Security of Ports of Entry
•

Active-duty military personnel support to CBP Operation Secure Line. Active-duty military
personnel were selected because the Secretary of Defense determined that such personnel
were the best-suited and most readily available forces from the Total Force to provide the
assistance requested by DHS.

•

Types of support:
o Military planning teams to coordinate operations, engineering, medical, and logistics
support.
o Medium-lift rotary-wing aviation support, on-call 24-hours a day, to supplement the
movement of CBP quick-reaction force tactical personnel in and around locations
determined by CBP day or night.
o Strategic lift aviation support, available with 12-hour notification, to move up to 400
CBP personnel and equipment to a location determined by CBP.
o Engineering capability support that can provide temporary vehicle barriers and
pedestrian-style fencing at and around a port of entry (POE), including but not limited
to: continuous anti-personnel intrusion fencing; one-way retractable vehicle antiintrusion barricades; configurable pedestrian fencing; and fixed vehicle barricades.
Based on an additional DHS request, concertina wire emplacement continued through
March 2019. Ultimately, DoD personnel hardened 33 POEs and emplaced 200 miles
of concertina wire.

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o Deployable medical units to triage and treat, up to 1,000 personnel every 24 hours.
Such units were prepared to stabilize and prepare injured personnel for commercial
transport to civilian medical facilities, as necessary.
o Temporary housing for up to 2,345 CBP personnel.
o Loan of personnel protective equipment (e.g., helmets with face shields, hand-held
shields, and shin guards) for 500 CBP personnel.
•

At its peak, on November 7, 2018, 5,622 active-duty military personnel supported CBP
Operation Secure Line.

November 2018 through March 2019 – Force Protection for CBP
•

On November 20, 2018, the President authorized DoD to use military personnel to protect
CBP personnel performing their Federal functions within property controlled by CBP at or
adjacent to one or more designated POEs.

•

Although DoD military personnel were prepared to protect CBP personnel, they were not
required to do so.

February 2019 – Crisis Support
•

The Acting Secretary of Defense approved a DHS request for support at CBP-designated
POEs in the Del Rio and Laredo Sectors in Texas.

•

Types of support:
o Military protection of CBP personnel performing their Federal functions on property
owned by CBP at or adjacent to one or more designated land POEs where caravan
members presented a risk of disrupting or otherwise interfering with CBP’s ability to
carry out its Federal functions.
o Immediate lifesaving medical care for CBP personnel and migrants pending
expeditious movement to civilian medical facilities.
o Placement of temporary vehicle barriers and pedestrian-style fencing and
emplacement of concertina wire at and around CBP-designated POEs.
o Medium-lift rotary-wing aircraft and support personnel for tactical movement of CBP
personnel (24-hour on-call ability to employ two simultaneous lifts of six-to-eight
personnel and associated equipment).
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March to September 2019 – Crisis Response Force
•

The Acting Secretary of Defense approved a DHS request for crisis response support.

•

Types of support:
o On a contingency basis (i.e., available when needed), a medical response capability to
treat up to 100 persons during a violent incident. DoD medical personnel would
provide immediate life-saving care at the point-of-injury.
o On a contingency basis, a minimum of two Military Police platoons, and not to
exceed one Military Police company, capable of responding to multiple locations
designated by CBP to provide force protection of CBP personnel performing their
Federal functions on property owned by CBP at or adjacent to POEs.
o One Military Police platoon to conduct, at a minimum, monthly exercises and training
with CBP personnel.
o Engineering support to: (a) emplace temporary vehicle barriers, temporary fencing,
and concertina wire at and adjacent to CBP-designated POEs; and (b) harden land
POEs at the southern border in Texas.
o Medium-lift, rotary-wing aircraft and support personnel for the tactical movement of
six to eight CBP personnel at and around POE locations designated by CBP.
o Extension of DoD’s loan of personnel protection equipment.

January through September 2019 – Detection and Monitoring
•

The Acting Secretary of Defense approved a DHS request for DoD detection and monitoring
support.

•

Type of support: mobile surveillance camera operators in 146 vehicles operating in Arizona,
California, New Mexico, and Texas in all nine Border Patrol Sectors. In May 2019, the
Acting Secretary of Defense approved a request to increase the number of mobile
surveillance camera vehicles to 155.

March through Present 2019 – Blocking Drug-Smuggling Corridors
•

In accordance with Section 284(b)(7) of Title 10, U.S. Code, the Secretary of Defense may,
in support of the counter-narcotics activities of Federal civilian law enforcement agencies,
construct roads and fences, and install lighting, to block drug-smuggling corridors across the
international boundaries of the United States.
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•

In March 2019, the Acting Secretary of Defense approved a DHS request to use this authority
to block drug-smuggling corridors in the Yuma Sector in Arizona and the El Paso Sector in
New Mexico, specifically by constructing 51 miles of fencing, constructing and improving
roads, and installing lighting.

•

In May 2019, the United States District Court for the Northern District of California issued a
preliminary injunction prohibiting the use of the $1 billion transferred pursuant to Section
8005 of the Department of Defense Appropriations Act, 2019, into the Defense Drug
Interdiction and Counter-Drug Activities, Defense, account for construction under Section
284 of Title 10, U.S. Code (i.e., construction in the Yuma and El Paso CBP Sectors).

•

In May 2019, the Acting Secretary of Defense authorized construction of an additional 78
miles of fencing pursuant to Section 284(b)(7) – this time to block drug-smuggling corridors
in the El Centro Sector in California and the Tucson Sector in Arizona.

•

In total, the Acting Secretary of Defense directed the transfer of $2.5 billion into the Drug
Interdiction and Counter-Drug Activities, Defense account to block drug-smuggling corridors
designated by DHS along 129 miles and in four Sectors along the U.S. southern border (i.e.,
El Centro in California; Yuma and Tucson in Arizona; and El Paso in New Mexico).

June through September 2019 – Migrant Processing Support
•

The Acting Secretary of Defense approved a DHS request for support with migrant
processing.

•

Types of support:
o 160 licensed DoD military drivers to operate secure CBP vehicles to transport
migrants from remote locations, POEs, and Border Patrol stations
o 100 DoD military personnel to heat and distribute meals and conduct welfare checks.

May through September 2019 – Housing
•

Unaccompanied Alien Children
o DoD has agreed to support HHS by being prepared to provide capacity to temporarily
house up to 5,000 UAC on DoD installations.
o Consistent with Section 2815 of the National Defense Authorization Act for FY 2017
(Public Law 114-328), the Secretary of Defense is required to certify that providing
this sheltering support to HHS would not negatively affect military training,
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operations, readiness, or other military requirements, including National Guard and
Reserve readiness.
o DoD is currently providing HHS with capacity to house approximately 1,400 UAC at
Fort Sill, Oklahoma, consistent with Section 2815.
o This support is provided on a reimbursable basis.
•

Adult Migrants
o The Acting Secretary of Defense approved a DHS request for support to shelter up to
a total of 7,500 single migrant adults in CBP custody at six CBP-designated locations.

The President Declared a National Emergency
On February 15, 2019, the President declared that “situation at the southern border
presents a border security and humanitarian crisis that threatens core national security interests
and constitutes a national emergency.” In support of this national emergency, the President
invoked two statutory authorities:
•

Section 12302 of Title 10, U.S. Code, which authorizes the Secretary of Defense to order to
active duty up to 1,000,000 members of the Ready Reserve for up to 24 months.

•

Section 2808 of Title 10, U.S. Code, which authorizes the Secretary of Defense to use
unobligated military construction funds to undertake military construction projects, and to
authorize the Secretaries of the Military Departments to undertake military construction
projects, not otherwise authorized by law that are necessary to support the use of the armed
forces in connection with the national emergency.

Conclusion
Chairwoman Rice, Ranking Member Higgins, distinguished Members of the Committee:
This ongoing, temporary DoD support is a continuation of DoD’s long history of supporting
DHS and CBP in their mission to secure U.S. borders. Thank you for your continued support to
DoD and the men and women of the U.S. Armed Forces.

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