BORDER-COP ROLE IN DISPUTE

Walking The Line To Keep Nation Safe

As National Guardsmen reported for duty at the San Ysidro border crossing
this week, the move was under fire from an unexpected quarter - their
commanding general.

The weekend warriors were called up by the Pentagon to assist three civilian
law enforcement agencies - the U.S. Customs Service, Immigration and
Naturalization Service and Border Patrol - along the Mexican and Canadian
borders.

In all, about 1,600 troops will be posted in 12 states to help keep out
terrorists, drug smugglers and illegal crossers. While on duty in San Diego
County and elsewhere, the troops will be unarmed. Nor can they enforce laws.

And that's the rub for California National Guard Maj. Gen. Paul Monroe and
his counterparts in other states.

"I'm worried about these troops," Monroe said.

While he supports National Guard use, Monroe, the state adjutant general,
said border duty puts guardsmen in harm's way - both physically and legally.

He is concerned that guardsmen will be working beside armed federal agents
who are conducting inspections and doing other potentially hazardous duties,
yet the guardsmen have no weapons for their own defense.

Also, Monroe warned, guardsmen could be sued if they are involved in
questionable searches and seizures.

Monroe's counterparts in other states signed a resolution calling on
President Bush to leave the border troops under state control, similar to
the airport guards on duty since late last year.

"It usurps the governors' role and goes against the grain of the recent
successes of putting the Guard in the nation's airports," said John Goheen,
spokesman for the National Guard Association of the United States, which
represents Guard officials.

The Pentagon has largely ignored the generals' pleas, and the generals have
no power to block the mobilization. Once called up, the guardsmen come under
Pentagon command.

Yesterday, dozens of troops completed on-the-job training at San Ysidro, the
world's busiest border crossing, in preparation to begin work Monday with
inspectors. The troops, about 260 from California, have been transferred to
the regular Army and will be supervised by federal law enforcement
officials.

District INS director Adele Fasano downplayed the top brass's concerns,
saying she is "very comfortable with this arrangement."

She said the guardsmen won't be enforcing laws, but instead will help search
vehicles and provide traffic and crowd control. Troops will not be placed in
areas where they could be in danger, she said.

Further, Fasano believes it would be unwise to arm guardsmen in this case
because they haven't received the months of specialized training given
border inspectors.

"We couldn't properly train soldiers in a short period of time," she said.

The Guard's assistance is a stopgap measure until more federal agents are
recruited and trained, she added.

Several guardsmen at San Ysidro yesterday said they weren't troubled about
not carrying weapons.

"We've been trained to get out of the line of fire," said 1st Sgt. Mark
Koehler, the top noncommissioned officer at San Ysidro.

Added Sgt. 1st Class Lou Nunez, a retired sheriff's deputy from Santa Rosa,
"It's not a concern at this point."

His issue is border vehicle traffic.

"My concern is that drivers don't get excited and hurt one of my soldiers,"
Nunez said. "Safety is the utmost importance."

The disagreement between National Guard officials and federal authorities
revolves around three relatively obscure sections of federal law and how the
guardsmen are mobilized.

Under what is known as Title 10, guardsmen can be transferred to active duty
and put under Pentagon command. That's how the guardsmen called to protect
military bases and patrol the airways were mobilized.

The second section, Title 32, involves the guardsmen being activated by a
governor. That is the method used to station guardsmen at the nation's
airports.

The third, the Posse Comitatus Act, is a Reconstruction-era law restricting
the active-duty military from enforcing civilian laws. However, guardsmen
under state control through Title 32 are exempt from the enforcement ban.

In its mobilization orders, the Pentagon called up the troops under Title
10. National Guard supporters say that decision effectively prohibits the
guardsmen from enforcing civilian laws, making them vulnerable if they
conduct searches, for example.

"We're putting soldiers on the borders without protection legally and
without weapons to protect themselves. That's what Title 10 does," said
Goheen, the National Guard Association spokesman.

Monroe faults the Pentagon's civilian leadership for putting his troops in a
precarious position. But Pentagon and law enforcement officials disagree,
pointing to agreements setting the rules for the Guard's use.

By federalizing the troops, the military and federal agencies can have
better coordination and control over them, said Maj. Mike Helbig, a Pentagon
spokesman. Guarding the border is a national law enforcement issue, not a
state or local jurisdiction, such as airports, he added.

And, concerning the Posse Comitatus Act, Helbig said the issue has been
carefully studied and Pentagon officials don't believe it will cause an
added risk of lawsuits against soldiers.

An additional perspective comes from a local INS inspectors union official
who questions the utility of troops at the entry points.

"We appreciate the National Guard being sent here," said Edward Bell,
president of Local 2805 of the American Federation of Government Employees.

However, Bell said, union members are in the unusual position of having to
defend themselves and the unarmed soldiers. "That's an odd situation," he
added.

Having guardsmen is "just window dressing," Bell said. "They're standing
around saying, 'Just shoot me.' "