After 27 years in immigration law (mostly in Washington), I am still gobsmacked by certain news, but this could take the cake: House Democrats who control the Armed Services Committee want to know specifically where troops who are sent to the southern border to assist U.S. Customs and Border Protection (CBP) in its mission are deployed and where they sleep. Why? No idea. This intelligence can only be useful to the drug cartels who control vast swaths of the Mexican side of the border and to Antifa goons.
H.R.2500, the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020) passed the House on July 12, 2019, by a vote of 220 to 197, with 16 members not voting. All of those who voted in favor of the bill were Democrats, and eight voted against. The bill itself is 1,976 pages long, but section 1044 (captioned "MODIFICATION AND TECHNICAL CORRECTION OF AUTHORITY FOR DEPLOYMENT OF MEMBERS OF THE ARMED FORCES TO THE SOUTHERN LAND BORDER OF THE UNITED STATES"), about seven pages long, is the most interesting.
Among other things, that bill requires the Secretary of Defense to notify the Committees on Armed Forces of the Senate and House of Representatives 30 days in advance of any "deployment of any member of the Armed Forces or unit of the Armed Forces to the southern land border of the United States in support" of CBP. I will leave alone for the moment the constitutionality of this provision, which requires the commander in chief to provide Congress with advance notice of the movement of troops within the United States I will also leave alone for the moment the very concept that Congress in H.R. 2500 seeks to control the commander in chief in his efforts to protect the borders of the United States.
With those caveats, I want to focus on two specific provisions in section 1044 of H.R. 2500, which amend paragraph 1059(f)(1) of the National Defense Authorization Act for Fiscal Year 2016 (NDAA 2016), and in particular add subparagraphs (H) and (I).
That paragraph, as amended, itself would require the Secretary of Defense to submit a report to the Senate and House Committees on Armed Services, the House Homeland Security Committee, and the Senate Committee on Homeland Security and Governmental Affairs, within 30 days of the deployment of troops at the request of the Department of Homeland Security (DHS) along the southern border, and every 90 days thereafter, that includes:
(H) A map indicating the locations where units so deployed are housed [and]
(I) A map indicating the locations where units so deployed are conducting their assigned mission and an explanation for the choice of such locations.
Before I proceed any further, I will state that I spent seven years of my career working for Congress and doing oversight of the activities of the executive branch when it was controlled by each respective party. I was zealous in this endeavor, and did not care whether the president was George W. Bush or Barack Obama — if you got a letter that listed me as a contact, my boss and I had questions and the administration had better give me the answers. If not, my boss's "interest" was going to increase to a point that would make the average bureaucrat uncomfortable. It is nether sanctimony nor puffery to say that the government is answerable to the people (and in particular to the people's representatives), and when that stops being the case, our Republic is in deep trouble.
That being said, there are still limits to how far I would go, and what Congress would do with the information that it got. No member for whom I worked (or knew) ever wanted any information that could potentially be used to endanger the lives or safety of any government employee or U.S. citizen, or national or alien for that matter.
With that in mind, what possible legitimate purpose is served by demanding that he Department of Defense (DOD) provide Congress with the address of the hotels in which soldiers deployed to the border to assist CBP are staying? To make sure that the breakfast bar has a waffle maker? That the bathrooms have sufficient soap and towels? None comes to mind, and I was a busy, and nosy, staffer.
Now, think about the harm that could come from the disclosure of such information. Imagine what would happen if it became public that the Holiday Inn in Yuma houses troops who are supporting CBP? (NB: I have no reason to believe that they do, or even if there is a Holiday Inn in Yuma.) How many sanctimonious trolls would call for a "boycott of Holiday Inn" because they are supporting the detention of "asylum seekers", and how long would it be able to oppose such efforts before tired soldiers got turned out into the streets? Worse, can you imagine what Antifa would do with this information? Protests at these locations are the baseline.
Further, what legitimate purpose is served by providing Congress with "[a] map indicating the location where units are so deployed?" The best explanation is to allow members to second guess that troops should be set up at mile marker 175 instead of mile marker 282. That said, members seem to have forgotten that there was an attack on the U.S. consulate in Benghazi seven years ago in which our ambassador was killed by terrorists. Do you really think that they have the ability to make tactical considerations about deployments along a 1,954-mile border?
Worst case scenario: This information becomes public knowledge and the information is used by drug cartels as intelligence to direct their operations. In fact, this is the most likely outcome. You do not become the head of a "multi-billion dollar, multi-national criminal enterprise" without a sophisticated intelligence operation. In this instance, your source for intelligence is not Aldrich Ames or Bob Hanssen, it would be the Congress of the United States.
But wait, you say — that cannot possibly happen. Except for the fact that paragraph 1059(f)(2) of NDAA 2016, as amended by section 1044 of NDAA 2020, would provide:
Each report submitted under this subsection shall be submitted in unclassified form and without any designation relating to dissemination control, but may include a classified annex. [Emphasis added.]
Good luck with keeping this information under wraps. Congress plainly wants this information to be in the public sphere. And no wonder: Look at what the author of this bill, Adam Smith (D-Wash.), thinks about U.S. Immigration and Customs Enforcement (ICE) detention:
The people that fill our detention centers came to the U.S. to live a better life, including many who are here seeking asylum. Nearly all detained immigrants pose no threat or danger to society, and in many cases, these immigrants were already meaningfully contributing and living in our communities. Yet our immigration system operates on the misguided presumption that immigrants pose an inherent threat to communities. Rethinking our system means repealing mandatory detention, incorporating strong protections for vulnerable populations and, if an individual needs to be placed in detention, placing the burden of proof on the government to clearly show that person poses a threat to the community.
Or how about his "Statement on Trump Shutdown and Continued Border Wall Demands":
"From the beginning, President Trump's justification for a border wall was not rooted in a need for border security, but in the misguided notion that immigrants are somehow inherent threats to American society. This racist and xenophobic view has been the basis for Trump's entire immigration agenda and could not be further from the truth.
As Chairman of the House Armed Services Committee, Rep. Smith would be the guy who would actually be told where the troops are stationed and where they sleep at night. Does he sound like a person who understands the disaster that has been unfolding at the border, or supports beefing up security there?
Well, you respond, perhaps DOD can just put that information in the "classified annex". Good luck with that. Congress specifically wants to know this information so that they can make it public. That is why they are demanding the information in the report.
But let's assume that DOD tries to keep this information classified. Do you really think that it will not leak? House Select Committee on Intelligence Chairman Adam Schiff is conducting questioning in connection with impeachment in a "sensitive compartmented information facility" (SCIF), which is "a secured place where sensitive information can be viewed and discussed without the risk of spying". I have been in that room many times, and it is supposed to be so private that I had to leave my IPhone and Apple Watch in a compartment outside, and was told I could not talk about what was discussed without the risk of prosecution.
But, despite these facts, House Democrats keep leaking the information that is discussed therein (at least to the extent that it advances their agendas). Could people who believe that the president's border agenda is premised on a "racist and xenophobic view" be trusted with information about that agenda that they themselves demand? I would like to think so, but given the chairman's bombastic view, I cannot be certain. Plus, what about the staffers who share the chairman's views? Ben Franklin famously said: "Three may keep a secret, if two of them are dead." What if all three want the information to be public knowledge?
Fortunately, there is no similar language in S. 1215, the companion NDAA 2020 in the Senate. That said, there is no guarantee that similar language will not sneak in during conference. House Democrats really want it, obviously. It is up to the Chairman of the Senate Armed Services Committee, Sen. James Inhofe (R-Okla.), to make sure that does not occur.