DOJ Issues Memo Saying There’s Nothing Illegal About The Military Arresting Migrants
A little more than a year ago, the Trump administration pushed a novel legal theory in order to juice its migrant arrest stats. It was a two-part process. First, the administration unilaterally declared expansive areas near US military bases to be national defense areas."
This meant that areas surrounding bases - like (especially) Fort Bliss in El Paso, Texas (which is also home to one of ICE's largest detention centers) - were subject to a separate set of rules governing military zones." In these areas, military officers could effect arrests on anyone intruding" into these areas. The outlines of these areas were deliberately large - so much so that they butted up against US-Mexico border.
The point of this effort was obvious: Trump hoped to see more arrests at the border by allowing the military to pitch in with his mass deportation efforts. This was the administration's Posse Comitatus Act" workaround. That law, passed in 1878, forbade the federal government from co-opting military members to perform regular law enforcement work. It's the same thing that was a sticking point in many of Trump's National Guard deployments to major US cities.
By pretending massive areas surrounding US bases were now so essential to US national security that the government absolutely needed to draft soldiers into its immigration law enforcement effort, the Trump administration hoped to avoid adverse court rulings.
That hasn't really worked. National Guard deployments have been blocked by federal courts. And while there hasn't been a precedential ruling on this novel interpretation of national defense areas," the DOJ has decided to issue a legal memo - more than a year after this had already happened - that says this is all cool and legal.
On Aug. 14, the Department of Justice's Office of Legal Counsel (OLC)released a 15-page memorandumcontending that thePosse Comitatus Actdoes not prohibit military personnel from effecting arrests in the immediate vicinity" of a designated national defense area" for alleged crimes there. The opinion followed President Trump'sApril 2025 orderdesignating swaths of the Mexico-U.S. border asnational defense areas.
There's a lot of bullshit in the OLC's memo [PDF], but let's start with this:
Even though substantial portions of the NDAs may be presently unoccupied or have no standing structures on them, there is a military necessity to ensure that unauthorized persons are not establishing a position to monitor the activities of U.S. forces for intelligence gathering purposes or conducting reconnaissance in preparation for a terrorist attack. Individuals may also be drawn to remote and unoccupied locations to engage in criminal activity, which poses a threat to military personnel who may come upon them in the course of their duties or where the activity itself poses a danger, such as the operation of methamphetamine laboratories. As there is no way for military personnel to know a priori the identity or intent of an unauthorized person, there is a military purpose in apprehending, at least temporarily, anyone whose presence is unauthorized, in order to ensure appropriate measures can be taken to protect national security and the safety of military personnel. That military purpose continues even if the trespassers have exited the installation before they were apprehended.
It's insanely hilarious to actually claim in an official legal memo that if soldiers aren't allowed to detain migrants, some of them are just going to fire up a meth lab within the vicinity of a US military base.
But once we're done laughing, we have to recognize the obvious side effects of this declaration by the DOJ: that anyone is subject to this interpretation of the law, which turns troops into cops just because the administration says it does.
One of the many troubling aspects of this assertion (and of the executive order underlying it) is that it places no burden on the government to clearly, physically denote the outlines of these supposed national defense areas." This means migrants crossing borders will just assume they're walking on land and only find out after the fact that the government has unilaterally declared that area to largely be exempt from commonly accepted restrictions on US military officers.
And even if you don't care what happens to migrants, especially those who have very recently illegally crossed in the US, you might want to take a moment to consider your fellow citizens who also won't know they're in a national defense area" until they're greeted at gunpoint by members of the US military. It's already scary enough to get jumped by cops when you're just minding your own business. Now, imagine this same experience, except with an armored vehicle featuring a top-mounted .50 cal machine gun.
The DOJ doesn't seem to find much support for its assertions in the memo. And yet the OLC has delivered one all the same. The memo pretends there's no difference between the military enforcing the law within the confines of US military base and enforcing it in large, unmarked areas whose confines can only be defined by those with access to information the Trump administration certainly isn't going to be sharing with everyone.
But the DOJ OLC is also (sadly) correct to point out that this interpretation of the law is not subject to any adverse precedent. Do you know why that is? BECAUSE NO ONE BUT THIS ADMINISTRATION HAS TRIED TO DO THIS EXTREMELY FUCKED UP THING BEFORE. Opening an Overton Window in a legal vacuum doesn't make you the smartest people in the room. It just makes you the pioneers of martial law fuckery.
Finally, the OLC says not even the vague boundaries of any supposed national defense areas" should prevent military officers from arresting migrants (or anyone else in the area).
In sum, we conclude that the use of military personnel to arrest trespassers just outside of an NDA would not violate the PCA, given the express statutory authorization and the military-purpose of a commander's traditional protective power.
Even the confines are not the confines. The OLC doesn't bother to describe what it considers to be just outside of an NDA." Nor is it going to. That's a problem for arrestees to try to suss out in courts that already give the federal government plenty of leeway any time it starts talking about national security or national defense. How far away can someone (as the DOJ's hypothetical puts it) engage in criminal activity" or reconnaissance?" What's the acceptable distance between an NDA and a meth lab? Any distance could be considered just outside" as long as someone's will to swear they saw some reconnaissance or criminal activity happening.
We're fortunate that we haven't seen this novel interpretation of the PCA abused excessively. So far! But the late arrival of this legal justification seems to indicate we'll be seeing a lot more of that in the near future.