By Carly Greenfield
28 December 2018
On 21 November, a jury in Arizona found Border Patrol Agent Lonnie Swartz not guilty in the involuntary manslaughter of José Antonio Elena Rodríguez, a Mexican teenager shot and killed by Swartz in October of 2012. Swartz fired from the United States side of the border in Nogales, Arizona, into Nogales, Mexico, killing 16-year-old Elena Rodríguez. Elena Rodríguez is not the first teenager to be killed by U.S. law enforcement along the border; a similar situation occurred with another Mexican national, 15-year-old Sergio Hernández Guereca. When he was killed in 2010, however, his killing did not result in a lawsuit. Both cases raise questions surrounding authority in border zones.
While the majority of shootings along the border have been by U.S. Customs and Border Protection (CBP) agents, the military has also been involved in a similar incident. The killing of 18-year-old U.S. citizen Esequiel Hernández by U.S. marines deployed to the border in 1997, which resulted in no indictments for the marines involved, remains a blight on military involvement along the border. As active-duty troops are set to be deployed through the new year, the decades old case continues to inform military engagement in the region. The Elena Rodríguez case is not isolated, and the lack of clarity over who is responsible to whom in a national and joint-authority international space like the U.S.-Mexico border, now with both law enforcement and military bodies present, should bring considerable disquietude.
The role of the military on the border
In the wake of President Trump’s deployment of over 5,000 active-duty troops to the U.S.-Mexico border at the end of October, many pundits and commentators started mulling over the legality of the order in reference to the Posse Comitatus Act of 1878. This act is a misunderstood and largely non-enforced doctrine that enshrines, in the minds of many Americans, the separation between military and law-enforcement roles within U.S. territory.[i] The act itself, however, has many exceptions, and a 1981 reform further restricted its application. For starters, the law initially only applied to the Army, as it was created as a means to remove the Army from its role in the post-Reconstruction South.[ii] A 1956 reform brought the Air Force into the act, and a 1992 Department of Defense regulation folded in the Navy and the Marine Corps.[iii] The Posse Comitatus Act still includes allowances for National Guard forces operating under state authority, the role of the Coast Guard in peace time (through which the Navy can play a support role without breaching the Posse Comitatus act) or the Presidential power to use troops pursuant to subduing domestic violence.[iv] All of this to say Posse Comitatus has so many holes, and so few court cases holding up its authority, that it has had little influence on the use of the military in the interior.
The reform in 1981, called the Military Cooperation with Law Enforcement Officials Act, was in many ways a death knell for the Posse Comitatus Act as it relates to border security.[v] The 1981 act created space for the military to cooperate with law enforcement as it related to the growing ‘War on Drugs.’ This quickly ballooned into aiding enforcement or supplying intelligence as it relates to immigration and customs offenses.[vi]
However, the myth persists that this act keeps the military from taking part in law enforcement roles like border security management and enforcement. A New York Times piece ran last month concluded that ‘[t]he Posse Comitatus Act, a Reconstruction-era law, prevents active-duty troops from engaging in law enforcement activities within the United States.’ This is patently false — or else the 1997 killing of Esequiel Hernández by active-duty marines, sent to patrol the border as part of an anti-narcotics mission, would have raised further consequences past the shooting of an American. The U.S. military has the legal and historical precedent to support law enforcement missions on the U.S.-Mexico border. The larger query is whether or not these deployments are effective; due to the 1997 case, most troops are unarmed and aid in constructing barriers. The purpose of their current deployment on the border, then, remains in question, as they are instructed not to come into contact with migrants or patrol with Border Patrol agents. Journalists have noted that while troops were rapidly deployed prior to the midterm elections in ‘Operation Faithful Patriot,’ the name surreptitiously changed to the much less inflammatory ‘border support’ post-election, reinforcing critics claims of performed militarization and misuse of the military. The politically fraught nature of their presence contributes to a hyper-charged environment along the border, which adds to the misconception of a crisis on the U.S.-Mexico border. This ‘crisis’ perception makes violence, including fatalities, all the more likely, and easier to justify.
The U.S.-Mexico border as a non-combat zone
Active duty troops currently deployed on the U.S.-Mexico border are not receiving combat pay as they are not taking part in a combat mission. As mentioned, the rules of engagement for the deployed troops have resulted in most soldiers and marines not carrying weapons and instead taking part primarily in constructing additional security barriers. Yet the border continues to be militarized even without armed, active military missions. Of the nearly 20,000 border patrol agents employed in fiscal year 2017, more than 16,000 served on the southern border,[vii] compared to fewer than 5,000 agents in the entire agency in 1992.[viii] Notwithstanding, CBP is a civilian law enforcement agency, meaning they are meant to be held to account in the U.S. civilian court system, which handles cases involving U.S. agents on U.S. land. This is complicated when dealing with the area between the U.S. and Mexican fences and the distance a bullet can travel — namely, across a border.
The ramifications of an agency accountable to the U.S. government shooting and killing non-nationals on non-U.S. territory, then, remain unclear. In June 2017, the U.S. Supreme Court dismissed the case of Sergio Hernández Guereca, the Mexican 15-year-old killed on Mexican territory by a border patrol agent, upholding the U.S. Fifth Circuit Court of Appeals decision that the teenager’s parents did not have a right to pursue the case in U.S. courts.[ix] This contrasts with the decision made in the case of Elena Rodríguez, where the Ninth Circuit Court of Appeals held that Elena Rodríguez’s mother did have the right to sue. The conflicting decisions create an uneven application of the law at the border, one that recognizes U.S. responsibility in some cases and not others.
Rights of non-Americans on non-American soil
In the oral arguments made in Hernández Guereca’s case before the Supreme Court in February 2017, the petitioners’ lawyer Robert Hilliard claimed that the case was meant to:
‘(…) address the ongoing problem along the southwest border that has resulted in at least ten cross-border shootings and six Mexican national deaths. And every time the Constitution, according to the government, turns off at the border, even though all the conduct happens in the United States.’[x]
The justices, however, were skeptical of extending Constitutional rights to someone shot and killed on non-U.S. soil as it would cloud understanding over who has access to Constitutional protections.[xi] The conversation reached into hypotheticals comparing the space between the U.S. and Mexico border fences to Guantanamo Bay, the piloting of a drone strike from U.S. soil, or whether the case would be distinct if a military officer had shot and killed Hernández Guereca. This reveals the military and foreign policy implications for border shooting decisions, even if CBP is officially a civilian law enforcement agency. Ultimately, with Hernández Guereca’s case dismissed, the uneven application of the law stands.
It should also be noted that the agent involved was charged in Mexico for Hernández Guereca’s death — yet the U.S. government refused to extradite him, even with extradition agreements in place between the U.S. and Mexico.[xii]
So if the Constitution does not apply beyond U.S. international borders, and the U.S. government refuses to extradite border patrol agents charged in Mexico for the shootings, then what options do victims’ families in Mexico have to access a fair day in court? In the current system, very few.
Law enforcement accountability
The implications for allowing a case against border patrol agents into U.S. courts reach past border enforcement and risk granting victims of U.S. military missions abroad access to Constitutional rights in lands far beyond U.S. control. Still, the militarization of the border does not aid in preventing such cases— there continue to be border deaths with little recourse for border patrol agents. Like in other parts of the United States, calls for law enforcement accountability are occurring along the border, too. But since the population in question is primarily non-American and border patrol agents oftentimes work in barren areas with few possible witnesses, change is slow. The route to justice continues to be hazy as appeals drag on and cases are unable to move forward in Mexico.
What develops on the border has significance beyond the border — for military missions, Constitutional rights, and U.S.-Mexico relations. The dynamics of the U.S.-Mexico border raise large questions around how militarization contributes to violence and a lack of accountability for border patrol agents. When President Trump and the government espouse unfounded levels of fear around border work, agents are more likely to respond to incidences lethally and then be protected from prosecution by their government. The current dynamics should remind Americans that the armed forces are not required to militarize a space, and that tragic situations ensue on the border even when media attention is not focused on it. With President Trump escalating the rhetoric and looking to recruit more border patrol agents, the shared U.S.-Mexico border will likely become deadlier and hold less consequence for those who patrol it.
Carly Greenfield is a Dual Degree masters candidate between Sciences Po and the London School of Economics, currently studying international security at Sciences Po. She completed her BA in International Relations at King’s College London and is a former BA Representative for Strife. Her research focuses on securitization, migration, and the conceptualization of borders, particularly in the Americas. You can follow her on Twitter @carlygreenpeel.
[i] Lindsey P. Cohn, “Come What May,” Bombshell, Podcast Audio, 20 November 2018: https://warontherocks.com/2018/11/bombshell-come-what-may/.
[ii] Charles Doyle, “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law,” Congressional Research Service, (1 June 2000).
[iii] Eric V. Larson and John E. Peters, “Appendix D: Overview of the Posse Comitatus Act,” from Preparing the U.S. Army for Homeland Security, (2001): RAND Corporation.
[iv] Nathan Canestaro, “Homeland Defense: Another Nail in the Coffin for Posse Comitatus,” Washington University Journal of Law & Policy Vol. 12, (January 2003).
[v] Paul Jackson Rice, “New Laws and Insights Encircle the Posse Comitatus Act,” Individual Study Project, U.S. Army War College, (26 May 1983).
[vi] Richter H. Moore, “Posse Comitatus revisited: The use of the military in civil law enforcement,” Journal of Criminal Justice Vol. 15, (1987).
[vii] United States Border Patrol “Border Patrol Agent Nationwide Staffing by Fiscal Year,” Customs and Border Protection, (2017).
[viii] Christine Stenglein, “Struggling to hang on to 20K officers, Border Patrol looks to hire 5K more,” Brookings Institution, (7 July 2017): https://www.brookings.edu/blog/fixgov/2017/07/07/struggling-to-hang-on-to-20k-officers-border-patrol-looks-to-hire-5k-more/.
[ix] U.S. Supreme Court, “582 U. S. Hernandez v. Mesa,” Slip Opinion (2017).
[x] U.S. Supreme Court, “No.15-118 Hernandez v. Mesa,” Oral Arguments (2017).
[xii] “Extradition Treaty Between the United States of America and the United Mexican States,” (25 January 1980).
Image source: http://www.powerhousebooks.com/books/undocumented-immigration-and-the-militarization-of-the-u-s-mexico-border/