DOD Official: Department Can Begin Wall Construction Without State of Emergency
By Randy DeSoto January 30, 2019
A top Pentagon official testified before Congress on Tuesday President Donald Trump would not have to declare a state of emergency in order to direct the Defense Department to erect barriers at the U.S. border with Mexico.
GOP Rep. Vicky Hartzler of Missouri raised the matter with Under Secretary of Defense for Policy John Rood during his appearance before the House Armed Services Committee.
She pointed to Title 10, Section 284 of the U.S. Code, which authorizes the DOD to provide support for counter-drug operations, if requested by the appropriate federal and state authorities.
Among other provisions, the law allows for the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
Rood first acknowledged that the DOD has been providing support for counter-drug missions for decades and that support continues.
“As you correctly point out, Section 284 of Title 10 does provide the secretary of defense the authority, in performance of that counter-drug mission, such as blocking drug smuggling corridors, to erect barrier fencing, provide road construction, things of that nature, to aid in that counter-narcotics mission,” the undersecretary said.
Hartzler followed up: “So you’re saying that Congress has authorized the Department of Defense to build a fence to counter drugs? That is already law?”
“Yes, that’s right, if it meets that criteria in Section 284, yes ma’am,” Rood responded.
Republican Rep. Mo Brooks of Alabama picked up where Hartzler left off, observing, “It seems to me that 10 U.S. Code 284 can be used by the president of the United States to direct the U.S. military to build a wall.”
Rood replied, “You are correct, however, that that use of authority would authorize the secretary of defense to erect barriers, roads, fencing, those type of materials, to disrupt drug smuggling.”
“Does 10 U.S.C. 284, as you understand it, require the declaration of a national emergency before it is implemented?” Brooks asked.
“No,” Rood said.
“Has President Trump, to your knowledge, ever used 10 U.S.C. 284 to direct the military to build the wall that is necessary for border security?” Brooks asked.
“No, not to my knowledge, congressman,” the defense official answered.
“If President Trump were to direct the Pentagon, the United States military, pursuant to 10 U.S.C. 284 to build such barriers as are necessary to secure our Southern border from drug trafficking and international crime cartels, would the United States military obey that order?” Brooks asked.
“If we judge it to be a lawful order, yes, sir,” Rood replied. “And I assume it would be.”
On Friday from the White House, Trump placed the drug trafficking problem front-and-center in announcing his decision to reopen the government for three weeks while a bipartisan group of lawmakers works on a border security compromise.
“Vast quantities of lethal drugs — including meth, fentanyl, heroin, and cocaine — are smuggled across our southern border and into U.S. schools and communities. Drugs kill much more than 70,000 Americans a year and cost our society in excess of $700 billion,” he said.
“As commander in chief, my highest priority is the defense of our great country.” the president contended. “We cannot surrender operational control over the nation’s borders to foreign cartels, traffickers, and smugglers.”
“So let me be very clear,” Trump concluded. “We really have no choice but to build a powerful wall or steel barrier. If we don’t get a fair deal from Congress, the government will either shut down on February 15th, again, or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency.
“We will have great security.”