State of California et al v. Trump et al

Filing 236

MOTION for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed 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. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 11/1/2019. Replies due by 11/8/2019. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Proposed Order)(Warden, Andrew) (Filed on 10/25/2019)

EXHIBIT 1

Joint Statement by
The Honorable John Rood
Under Secretary of Defense for Policy
Office of the Secretary of Defense
And
Vice Admiral Michael Gilday, USN
Director of Operations
The Joint Staff

Before the 116th Congress
Committee on Armed Services
U.S. House of Representatives
January 29, 2019

Introduction
Chairman Smith, Ranking Member Thornberry, distinguished Members of the
Committee: Thank you for the opportunity to testify before you today on Department of Defense
(DoD) support to the Department of Homeland Security (DHS) U.S. Customs and Border
Protection (CBP) mission to secure the southern border of the United States.

The Department of Defense Has a Long History of Supporting Border Security
DoD has a long history of supporting efforts to secure U.S. borders. Since the early
1990s, DoD has supported civilian law enforcement agency border security activities,
counterdrug activities, and activities to counter transnational organized crime and other
transnational threats. Active, Reserve, and National Guard personnel have provided operational
military support, such as aerial reconnaissance, ground surveillance, search and rescue support,
and medical support. DoD has loaned facilities and special equipment, such as aerostats, ground
surveillance radars, and ground sensors to CBP. DoD has also provided temporary housing
support to the Department of Health and Human Services (HHS) as part of the national response
to the surge of unaccompanied alien children (UAC) at the U.S. southern border. From 2012 to
2017, DoD provided shelter for nearly 16,000 UAC, who received 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 certified that
providing this sheltering support to HHS would not negatively affect military training,
operations, readiness, or other military requirements, including National Guard and Reserve
readiness.

At the direction of President Bush, in support of CBP’s Operation Jump Start, DoD
provided National Guard personnel (6,000 from June 2006 - July 2007; 3,000 from July 2007 July 2008) to augment and enhance CBP’s ability to execute its border security mission.
National Guard personnel provided aviation, engineering, medical, entry identification,
communications, vehicle maintenance, administrative, and other non-law enforcement support.
In addition, the National Guard improved the southern border security infrastructure by building
more than 38 miles of fence, 96 miles of vehicle barrier, more than 19 miles of new all-weather
road, and road repairs exceeding 700 miles. At the direction of President Obama, DoD provided
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up to 1,200 National Guard personnel annually from 2010 to 2016 in support of CBP’s Operation
Phalanx. National Guard personnel provided aerial reconnaissance, analytical support, and
support to counterdrug enforcement activities that enabled CBP to recruit and train additional
officers and agents to serve on the border.

DoD Works Closely with the Department of Homeland Security on Requests for Assistance
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 the law. When a request is approved, DoD works with the requester
to select the right forces and resources to meet the requester’s mission needs, and to avoid or
mitigate the potential impacts on military readiness. DoD has used the same process for every
DHS request for assistance related to DHS’s border security mission.

Current Department of Defense Border Security Support
In his April 4, 2018, memorandum, “Securing the Southern Border of the United States,”
the President directed the Secretary of Defense 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
the Secretary of Defense to request the use of National Guard personnel to assist in fulfilling this
mission, pursuant to section 502 of title 32, U.S. Code, and to use such other authorities as
appropriate and consistent with applicable law. The President also 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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From April 2018 to the present, National Guard personnel have supported CBP Operation
Guardian Support, augmenting CBP efforts to secure the southern border. National Guard
personnel have performed a range of administrative, logistical, and operational support tasks,
freeing U.S. Border Patrol agents from these duties and enabling more U.S. Border Patrol agents
to patrol the border. National Guard support to CBP Operation Guardian Support is scheduled to
continue through September 30, 2019.

From October 2018 to the present, active-duty military personnel have supported CBP
Operation Secure Line by providing: aviation support (e.g. transporting CBP quick reaction
forces); engineering support (e.g., hardening U.S. ports of entry (POEs), providing temporary
barriers, and emplacing concertina wire); planning support; last line of outward defense
protection for CBP personnel performing their Federal functions at POEs; and loaned personnel
protective equipment (e.g., helmets with face shields, hand-held shields, and shin guards).
Active-duty military personnel were selected because the Secretary of Defense determined them
to be the best-suited and most readily available forces from the Total Force to provide the
assistance requested by the DHS. Then, as now, the Department continually assesses the
necessary force composition and layout. We adjust as necessary to meet mission requirements,
while minimizing impacts on readiness, as well as consider future and global response military
operational requirements. For example, the protection of CBP personnel performing their
Federal functions at POEs will shift to a contingency basis (i.e., available when needed), starting
February 1, 2019. Likewise, with each approved request, we ensure that the assigned military
forces are trained and prepared to execute the mission in support of CBP.

On January 11, 2019, the Acting Secretary of Defense approved a DHS request for
additional active-duty military support of CBP Operation Secure Line. These military personnel
will operate mobile surveillance cameras in Arizona, California, New Mexico, and Texas in all
nine Border Patrol Sectors, and emplace concertina wire on existing barriers at areas designated
by CBP along the southern border between POEs in Arizona and California. The mobile
surveillance camera support is currently scheduled to continue through September 30, 2019.
CBP has requested that an additional 150 miles of concertina wire be emplaced no later than
March 31, 2019.
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All of this military support has been – and will continue to be – provided consistent with
the law, including the Posse Comitatus Act, section 1385 of Title 18, U.S. Code. Military
personnel have supported civilian law enforcement efforts, but do not participate directly in law
enforcement activities, such as search, seizure, and arrest. Military personnel protecting CBP
personnel performing their Federal functions at POEs are, consistent with the April 1971 opinion
of the Department of Justice Office of Legal Counsel, also complying with the Posse Comitatus
Act.

Conclusion
The military’s presence and support increase the effectiveness of CBP’s border security
operations, free U.S. Border Patrol agents to conduct law enforcement duties at the southern
border, and enhance situational awareness to stem the tide of illegal immigration, human
smuggling, and drug trafficking along the southern border. The ongoing temporary DoD support
is a continuation of DoD’s long history of supporting DHS and CBP in their mission to secure
the U.S. border. These decisions are far from static, as we continue to work with the Services, the
National Guard Bureau, and U.S. Northern Command to evaluate mission requirements and
associated risks.

Chairman Smith, Ranking Member Thornberry, distinguished members of the
Committee, thank you for the opportunity to testify before the committee.

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