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Gov. Brown will deploy Cal Guard troops, but not for immigration enforcement

In a letter addressed to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James Mattis, California Gov. Jerry Brown outlined the scope of state troops' mission.
In a letter addressed to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James Mattis, California Gov. Jerry Brown outlined the scope of state troops' mission.
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On Wednesday, Governor Brown responded to President Trump's request to add National Guard members to the U.S.-Mexico border to prevent illegal crossings and stop drug trafficking.

"Until we can have a wall and proper security, we're going to be guarding our border with the military. That's a big step," Trump said last week.

In a letter, Brown said he would accept federal funding to boost the number of activated California National Guard members, but they will not be used to stem illegal immigration. Brown plans to use the extra personnel to assist teams currently combating crimes like the drug trade, gang activity, human trafficking and arms smuggling.  

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400 members of the Guard will be added to the already 250-strong force tasked with the mission statewide. 55 of those Cal Guard members are now at the border doing things like providing surveillance support at the San Diego Harbor and engineering for road, fence, and culvert repairs. 

"But let’s be crystal clear on the scope of this mission," Governor Brown wrote. "This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws."

Brown added the number of border apprehensions dropped to a 50-year low last year.

The governor's office also clarified not all of the 400 Cal Guard will be stationed at the border. A spokesman said in an email, "the location of Guard personnel – and number specifically working in support of operations along the border, the coast and elsewhere in the state – will be dictated by the needs on the ground."

“The governor has all the cards. He’s the commander in chief of the Cal Guard," said Dwight Stirling, co-founder of the Veterans Legal Institute and lecturer at USC’s Gould School of Law. "He gets to set the scope of how his troops are used. The president can offer advice or make requests, but the governor gets to make the decision. That’s where it ends.”

​The deal still awaits a green light from the Trump administration. The terms of the agreement were submitted to the Secretaries of Homeland Security and Defense for federal review and approval on Wednesday afternoon.

In the proposal, Brown stipulated the mission will extend until September 30th, and Cal Guard members will remain under his control.

The scope of the mission laid out by Brown would include stopping human trafficking, arms smuggling, gang activity and drug shipments at the border, on the coast, and statewide.

Cal Guard members “shall not enforce immigration laws, arrest people for violation of immigration laws, guard people taken into custody for immigration-related violations, nor support the enforcement of immigration laws,” the agreement said, echoing the Governor's letter. The proposal also prohibits Cal Guard from helping to build any "border barrier."

An 1878 law bars the use of the military for domestic law enforcement, except in specific circumstances allowed by Congress.

However, "it is notable that [federal law] does not prohibit National Guard members from engaging in construction," said Kyndra Rotunda, Professor of  Military and International Law at Chapman University. "In fact, President Obama and President Bush utilized National Guard members for construction, along with other duties. The law doesn’t prohibit it – but Governor Brown does."   

Brown was the final border state governor to respond to the call from the Trump administration. The Republican governors of Arizona, Texas and New Mexico have committed 1,600 members of their National Guards to the border security effort.

This story has been updated.

Read the full text of Brown's letter below:

April 11, 2018

Dear Secretary Nielsen and Secretary Mattis:

Pursuant to your request, the California National Guard will accept federal funding to add approximately 400 Guard members statewide to supplement the staffing of its ongoing program to combat transnational crime. This program is currently staffed by 250 personnel statewide, including 55 at the California border. 

Your funding for new staffing will allow the Guard to do what it does best: support operations targeting transnational criminal gangs, human traffickers and illegal firearm and drug smugglers along the border, the coast and throughout the state. Combating these criminal threats are priorities for all Americans – Republicans and Democrats. That’s why the state and the Guard have long supported this important work and agreed to similar targeted assistance in 2006 under President Bush and in 2010 under President Obama.

But let’s be crystal clear on the scope of this mission. This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws. 

Here are the facts: there is no massive wave of migrants pouring into California. Overall immigrant apprehensions on the border last year were as low as they’ve been in nearly 50 years (and 85 percent of the apprehensions occurred outside of California).

I agree with the Catholic Bishops who have said that local, state and federal officials should “work collaboratively and prudently in the implementation of this deployment, ensuring that the presence of the National Guard is measured and not disruptive to community life.” 

I look forward to working with you on this important effort.

Sincerely,

Edmund G. Brown Jr.