Border Security: Observations on Costs, Benefits, and Challenges of a Department of Defense Role in Helping to Secure the Southwest Land Border
Published: 2012-04-17T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: DHS reports that the southwest border continues to be vulnerable to cross-border illegal activity, including the smuggling of humans and illegal narcotics. Several federal agencies are involved in border security efforts, including DHS, DOD, Justice, and State. In recent years, the National Guard has played a role in helping to secure the southwest land border by providing the Border Patrol with information on the identification of individuals attempting to cross the southwest land border into the United States. Generally, the National Guard can operate in three different statuses: (1) state statusstate funded under the command and control of the governor; (2) Title 32 statusfederally funded under command and control of the governor; and (3) Title 10 statusfederally funded under command and control of the Secretary of Defense.
This testimony discusses (1) the costs and benefits of a DOD role to help secure the southwest land border, including the deployment of the National Guard, other DOD personnel, or additional units; (2) the challenges of a DOD role at the southwest land border; and (3) considerations of an increased DOD role to help secure the southwest land border.
The information in this testimony is based on work completed in September 2011, which focused on the costs and benefits of an increased role of DOD at the southwest land border. See "Observations on the Costs and Benefits of an Increased Department of Defense Role in Helping to Secure the Southwest Land Border," GAO-11-856R (Washington, D.C.: Sept. 12, 2011).
section_title: What GAO Found
paragraphs: The National Defense Authorization Act for Fiscal Year 2011 mandated that GAO examine the costs and benefits of an increased Department of Defense (DOD) role to help secure the southwest land border. This mandate directed that GAO report on, among other things, the potential deployment of additional units, increased use of ground-based mobile surveillance systems, use of mobile patrols by military personnel, and an increased deployment of unmanned aerial systems and manned aircraft in national airspace. In September 2011, GAO reported that DOD estimated a total cost of about $1.35 billion for two separate border operationsOperation Jump Start and Operation Phalanxconducted by National Guard forces in Title 32 status from June 2006 to July 2008 and from June 2010 through September 30, 2011, respectively. Further, DOD estimated that it has cost about $10 million each year since 1989 to use active duty Title 10 forces nationwide, through its Joint Task Force-North, in support of drug law enforcement agencies with some additional operational costs borne by the military services. Agency officials stated multiple benefits from DODs increased border role, such as assistance to the Department of Homeland Security (DHS) Border Patrol until newly hired Border Patrol agents are trained and deployed to the border; providing DOD personnel with training opportunities in a geographic environment similar to current combat theaters; contributing to apprehensions and seizures and deterring other illegal activity along the border; building relationships with law enforcement agencies; and strengthening military-to-military relationships with forces from Mexico.
GAO found challenges for the National Guard and for active-duty military forces in providing support to law enforcement missions. For example, under Title 32 of the United States Code, National Guard personnel are permitted to participate in law enforcement activities; however, the Secretary of Defense has precluded National Guard forces from making arrests while performing border missions because of concerns raised about militarizing the U.S. border. As a result, all arrests and seizures at the southwest border are performed by the Border Patrol. Further, DOD officials cited restraints on the direct use of active duty forces, operating under Title 10 of the United States Code in domestic civilian law enforcement, set out in the Posse Comitatus Act of 1878. In addition, GAO has reported on the varied availability of DOD units to support law enforcement missions, such as some units being regularly available while other units (e.g., ground-based surveillance teams) may be deployed abroadmaking it more difficult to fulfill law enforcement requests.
Federal officials stated a number of broad issues and concerns regarding any additional DOD assistance in securing the southwest border. DOD officials expressed concerns about the absence of a comprehensive strategy for southwest border security and the resulting challenges to identify and plan a DOD role. DHS officials expressed concerns that DODs border assistance is ad hoc in that DOD has other operational requirements. DOD assists when legal authorities allow and resources are available, whereas DHS has a continuous mission to ensure border security. Further, Department of State and DOD officials expressed concerns about the perception of a militarized U.S. border with Mexico, especially when Department of State and Justice officials are helping civilian law enforcement institutions in Mexico on border issues.

section_title: Letter
paragraphs: I am pleased to be here today to discuss our observations on the costs,  benefits, and challenges of a Department of Defense (DOD) role in  helping to secure the southwest land border. The Department of  Homeland Security (DHS) reports that the southwest border continues to  be vulnerable to cross-border illegal activity, including the smuggling of  humans and illegal narcotics. Several federal agencies are involved in  border security efforts, including the Departments of Homeland Security,  Defense, Justice, and State. In recent years, the National Guard has  played a role in helping to secure the southwest land border by providing  the Border Patrol with information on the identification of individuals  attempting to cross the southwest land border into the United States. Last  year, we reported to the Senate and House Armed Services Committees  our observations on the use of the National Guard and active duty forces  to help secure the southwest land border of the United States as directed  by the Ike Skelton National Defense Authorization Act for Fiscal Year  2011.
My statement today is based on our work conducted in 2011 and will  examine (1) the costs and benefits of a DOD role to help secure the  southwest land border, including the deployment of the National Guard,  other DOD personnel, or additional units; (2) the challenges associated  with a DOD role at the southwest land border; and (3) considerations of  an increased DOD role to help secure the southwest land border.
To conduct this work, we reviewed our previous assessments of  southwest land border security and key documents related specifically to  DOD efforts at the southwest land border, such as the legal authorities  governing military forces operating under state, Title 32, and Title 10  status; the cost and benefits of recent efforts by DOD to assist DHS,  including Operation Jump Start (2006-2008) and Operation Phalanx  (2010-2011); DOD after-action reports and evaluations related to recent  DOD efforts to support law enforcement efforts at the southwest land  border; strategic and operational plans, and guidance related to  addressing security concerns at the southwest land border; funding and  cost data and sources of funding related to the deployment of DOD  personnel, equipment, unmanned aerial systems, and manned  surveillance aircraft; and other key documents.
In addition, to better understand the cost, benefits, and challenges of a  DOD role in helping to secure the southwest land border, we met with and  interviewed officials from DOD, including the Office of the Secretary of  Defense, military services, National Guard Bureau, U.S. Northern  Command, U.S. Army North, and Joint Task Force-North. Further, to  distinguish the impact of an increased DOD role in helping to secure the  border, we spoke with officials from DHS, Customs and Border Protection  (CBP) (including U.S. Border Patrol, Office of Air and Marine); the  Department of Transportation, Federal Aviation Administration; and the  Department of State, including the Bureau of International Narcotics and  Law Enforcement Affairs and Office of Mexican Affairs.
We performed the work on which this testimony is based in accordance  with generally accepted government auditing standards. Additional  information on our scope and methodology can be found in the published  report.
subsections: section_title: Background
subsections: section_title: National Guard
paragraphs: The National Guard, with its dual federal and state roles, has been in  demand to meet both overseas operations and homeland security  requirements. Over the last decade the National Guard has experienced  the largest activation of its forces since World War II. At the same time,  the Guard’s domestic activities have expanded from routine duties, such  as responding to hurricanes, to include activities such as helping to  secure U.S. borders. Generally, the National Guard can operate in three  different statuses: (1) state status—state funded under the command and  control of the governor; (2) Title 32 status—federally funded under  command and control of the governor (Title 32 forces may participate in  law enforcement activities); and (3) Title 10 status—federally funded  under command and control of the Secretary of Defense. Forces serving  in Title 10 status are generally prohibited from direct participation in law  enforcement activities, without proper statutory authorization, but may  work to support civilian law enforcement. Although National Guard forces  working in support of law enforcement at the southwest land border have  been activated under Title 32, the Secretary of Defense has limited their  activities with regard to law enforcement. Specifically, these National  Guard forces are not to make arrests. Since 2006, the National Guard  has supported DHS’s border security mission in the four southwest border  states (California, Arizona, New Mexico, and Texas) through two  missions:
Operation Jump Start (June 2006-July 2008) involved volunteers from  the border states and from outside the border states; its mission  included aviation, engineering, and entry identification, among others,  according to National Guard officials.
Operation Phalanx (July 2010-September 30, 2011) involved  volunteer units and in-state units. The Secretary of Defense limited  the National Guard mission to entry identification, criminal analysis,  and command and control, according to National Guard officials.
section_title: Active Duty Military Forces
paragraphs: In addition to the National Guard, DOD provided support at the southwest  land border with active duty military forces operating in Title 10 status.  While active duty forces are normally prohibited from direct participation  in law enforcement, Congress has at times authorized it. For example,  §1004 of the National Defense Authorization Act for Fiscal Year 1991, as  amended, allows the Secretary of Defense to provide support for the  counterdrug activities of any other department or agency of the federal  government or of any state, local, or foreign law enforcement agency if  certain criteria, set out in the statute, are met.
section_title: Costs and Benefits of a DOD Role in Helping to Secure the Southwest Land Border
paragraphs: Various factors influence the cost of a DOD role at the southwest land  border, such as the scope and duration of the mission. Federal agency  officials have cited a variety of benefits from having a DOD role at the  southwest land border.
subsections: section_title: Factors that Affect the Cost of a DOD Role at the Southwest Land Border
paragraphs: The National Defense Authorization Act for Fiscal Year 2011 mandated  that we examine the costs and benefits of an increased DOD role to help  secure the southwest land border. This mandate directed that we report  on a number of steps that could be taken that might improve security on  the border, including the potential deployment of additional units,  increased use of ground-based mobile surveillance systems, use of  mobile patrols by military personnel, and an increased deployment of  unmanned aerial systems and manned aircraft to provide surveillance of  the southern land border of the United States. In September 2011, we  reported that DOD estimated a total cost of about $1.35 billion for two  separate border operations—Operation Jump Start and Operation  Phalanx—conducted by the National Guard forces in Title 32 status from  June 2006 to July 2008 and from June 2010 through September 30,  2011, respectively. Further, DOD estimated that it has cost about $10  million each year since 1989 to use active duty Title 10 forces nationwide,  through its Joint Task Force-North, in support of drug law enforcement  agencies with some additional operational costs borne by the military  services.
As we considered the various steps we were directed to address in our  report, we found that the factors that may affect the cost of a DOD effort  are largely determined by the legal status and the mission of military  personnel being used, specifically whether personnel are responding  under Title 32 or Title 10 (federal status) of the Unites States Code. For  example, in considering the deployment of additional units, if National  Guard forces were to be used in Title 32 status, then the factors that may  impact the cost include whether in-state or out-of-state personnel are  used, the number of personnel, duration of the mission, ratio of officers to  enlisted personnel, and equipment and transportation needs. The costs of  National Guard forces working at the border in Title 32 status can also be  impacted by specific missions. For example, DOD officials told us that if  National Guardsmen were assigned a mission to conduct mobile patrols,  then they would be required to work in pairs and would only be able to  perform part of the mission (i.e., to identify persons of interest). They  would then have to contact the Border Patrol to make possible arrests or  seizures because the Secretary of Defense has precluded National  Guardsmen from making arrests or seizures during border security  missions. Border Patrol agents, however, may individually conduct the full  range of these activities, thus making the use of Border Patrol agents for  these activities more efficient.
At the time of our review, Title 10 active duty military forces were being  used for missions on the border, and cost factors were limited primarily to  situations whereby DOD may provide military support to law enforcement  agencies for counternarcotic operations. Support can include direct  funding, military personnel, and equipment. With the estimated $10  million that DOD spends each year for Title 10 active duty forces in  support of drug law enforcement agencies nationwide, DOD is able—  through its Joint Task Force-North—to support approximately 80 of about  400 requests per year for law enforcement assistance. These funds have  been used for activities in support of law enforcement such as operations,  engineering support, and mobile training teams. For example, DOD was  able to provide some funding for DOD engineering units that constructed  roads at the border. While DOD provided the manpower and equipment,  CBP provided the materials. In addition, DOD was able to provide some  funding for DOD units that provided operational support (e.g., ground  based mobile surveillance unit) to law enforcement missions.
We also reported on the cost factors related to deploying manned aircraft  and unmanned aerial systems. DOD officials did not report any use of  unmanned aerial systems for border security missions because these  systems were deployed abroad. DOD officials, however, did provide us  with cost factors for the Predator and Reaper unmanned aerial systems.  Specifically, in fiscal year 2011, the DOD Comptroller reported that a  Predator and a Reaper cost $859 and $1,456 per flight hour, respectively.  DOD uses maintenance costs, asset utilization costs, and military  personnel costs to calculate these figures. In addition, DOD officials  identified other factors that may impact operating costs of unmanned  aerial systems, including transportation for personnel and equipment,  rental or lease for hanger space, and mission requirements.
With regard to manned aircraft, DOD provided cost factors for a  Blackhawk helicopter and a C-12 aircraft, which were comparable to the  type of rotary and fixed-wing aircraft used by DHS. For example, in fiscal  year 2011, DOD reported that a Blackhawk helicopter and a C-12 aircraft  cost $5,897 and $1,370 per flight hour, respectively. DOD uses  maintenance costs, asset utilization costs, and military personnel costs to  develop their flight hour estimates. Furthermore, according to DOD  officials, in fiscal year 2011, DOD contracted for a Cessna aircraft with a  forward-looking infrared sensor (known as the Big Miguel Program),  which costs $1.2 million per year and assisted at the southwest land  border.
section_title: Federal Officials See Some Benefits of a DOD Role in Helping to Secure the Border
paragraphs: Federal officials cited a variety of benefits from a DOD role to help secure  the southwest land border. For example, DOD assistance has (1)  provided a bridge or augmentation until newly hired Border Patrol agents  are trained and deployed to the border; (2) provided training opportunities  for military personnel in a geographic environment similar to combat  theaters abroad; (3) contributed to apprehensions and seizures made by  Border Patrol along the border; (4) deterred illegal activity at the border;  (5) built relationships with law enforcement agencies; and (6) maintained  and strengthened military-to-military relationships with forces from  Mexico. Specifically with regard to Operation Jump Start (June 2006-July  2008), CBP officials reported that the National Guard assisted in the  apprehension of 186,814 undocumented aliens, and in the seizure of  316,364 pounds of marijuana, among other categories of assistance,  including rescues of persons in distress and the seizure of illicit currency.  Based on these reported figures, the National Guard assisted in 11.7  percent of all undocumented alien apprehensions and 9.4 percent of all  marijuana seized on the southwest land border. During the National  Guard’s Operation Phalanx (July 2010-June 30, 2011), CBP reported that  as of May 31, 2011, the National Guard assisted in the apprehension of  17,887 undocumented aliens and the seizure of 56,342 pounds of  marijuana. Based on these reported figures, the National Guard assisted  in 5.9 percent of all undocumented alien apprehensions and 2.6 percent  of all marijuana seized on the southwest land border. In fiscal year 2010,  active duty military forces (Title 10), through Joint Task Force-North,  conducted 79 missions with 842 DOD personnel in support of law  enforcement and assisted in the seizure of about 17,935 pounds of  marijuana, assisted in the apprehension of 3,865 undocumented aliens,  and constructed 17.26 miles of road, according to DOD officials.
With regard to unmanned aerial systems at the time of our report, DOD  had fewer systems available, since they were deployed to missions  abroad, including operations in Afghanistan, Iraq, and elsewhere.
Moreover, DOD’s access to the national airspace is constrained given the  safety concerns about unmanned aerial systems raised by the Federal  Aviation Administration, specifically the ability of the unmanned aerial  system to detect, sense, and avoid an aircraft in flight. We also reported  that, conversely, pilots of manned aircraft have the ability to see and  avoid other aircraft, and thus may have more routine access to the  national airspace. Further, DOD reports that manned aircraft are effective  in the apprehension of undocumented aliens. For example, during fiscal  year 2011, DOD leased a manned Cessna aircraft (the Big Miguel  Program) that was used to assist in the apprehension of at least 6,500  undocumented aliens and the seizure of $54 million in marijuana, as  reported to DOD by DHS.
section_title: Challenges of a DOD Role in Helping to Secure the Southwest Land Border
paragraphs: A number of challenges exist for both the National Guard and for active- duty military forces in providing support to law enforcement missions on  the southwest land border.
subsections: section_title: National Guard
paragraphs: National Guard personnel involved in activities on the border have been  under the command and control of the governors of the southwest border  states and have received federal funding in Title 32 status. In this status,  National Guard personnel are permitted to participate in law enforcement  activities; however, the Secretary of Defense has limited their activities,  which has resulted in the inability of the National Guard units to make  arrests while performing border security missions. The National Guard  mission limitations are based in part on concerns raised by both DOD and  National Guard officials that civilians may not distinguish between  Guardsmen and active duty military personnel in uniform, which may lead  to the perception that the border is militarized. Therefore, all arrests and  seizures at the southwest land border are performed by the Border Patrol.
Additionally, we found that the temporary use of the National Guard to  help secure the border may give rise to additional challenges. For  example, we reported that the use of out-of-state Guardsmen for long- term missions in an involuntary status may have an adverse effect on  future National Guard recruitment and retention, according to National  Guard officials. Finally, CBP officials noted that the temporary nature of  National Guard duty at the border could impact long-term border security  planning. These impacts are due to difficulties of incorporating the  National Guard into a strategic border security plan, given the variety and  number of missions that the National Guard is responsible for, including  disaster assistance.
section_title: Active Duty Military Forces
paragraphs: In meeting with DOD officials, we heard of multiple challenges to  providing support to law enforcement missions. Specifically, there are  legal restraints and other challenges that active duty forces must be  mindful of when providing assistance to civilian law enforcement. For  example, the 1878 Posse Comitatus Act, 18 U.S.C. §1385, prohibits the  direct use of Title 10 (federal) forces in domestic civilian law enforcement,  except where authorized by the Constitution or an act of Congress.  However, Congress has authorized military support to law enforcement  agencies in specific situations such as support for the counterdrug  activities of other agencies.
DOD further clarifies restrictions on direct assistance to law enforcement  with its guidance setting out the approval process for Title 10 forces  providing operational support for counternarcotic law enforcement  missions. meet a number of criteria, including that the mission must:   The request of law enforcement agencies for support must
Have a valid counterdrug nexus.
Have a proper request from law enforcement (the request must come
Provide a training opportunity to increase combat readiness.  from an appropriate official, be limited to unique military capabilities,  and provide a benefit to DOD or be essential to national security  goals).  Improve unit readiness or mission capability.
Deputy Secretary of Defense Memorandum, Department Support to Domestic Law  Enforcement Agencies Performing Counternarcotic Activities (October 2, 2003).
Avoid the use of Title 10 forces (military services) for continuing,  ongoing, long-term operation support commitments at the same  location.
Given the complexity of legal authorities and policy issues related to DOD  providing support to law enforcement and the number of DOD entities that  must approve a support mission by Title 10 forces, it can take up to 180  days to obtain final approval from the Office of the Secretary of Defense  to execute a mission in support of law enforcement. While supporting law  enforcement, DOD may be subject to certain limitations. For example,  one limitation is that DOD units working on border missions cannot carry  loaded weapons. Instead, DOD units working on the border rely on armed  Border Patrol agents, who are assigned to each military unit to provide  protection.
In addition, we reported in September 2011 that DOD’s operational tempo  may impact the availability of DOD units to fill law enforcement support  missions. While some DOD units are regularly available to meet specific  mission needs at the border (e.g., mechanized units to construct roads),  other DOD units (e.g., ground-based surveillance teams) are deployed or  may be deployed abroad making it more difficult to fulfill law enforcement  requests at any given time. Further, DOD officials we spoke with also  raised information-sharing challenges when providing support to law  enforcement missions. For example, DOD officials commented that  because there are different types of law enforcement personnel that use  information differently (e.g., make an immediate arrest or watch, wait, and  grow an investigation leading to a later arrest), it was sometimes difficult  for DOD to understand whether information sharing was a priority among  law enforcement personnel. DOD officials also noted that a lack of  security clearances for law enforcement officials affects DOD’s ability to  provide classified information to CBP.
section_title: Considerations of an Increased DOD Role at the Southwest Land Border
paragraphs: During our examination of an increased role for DOD at the southwest  land border, agency officials we spoke with raised a number of broader  issues and concerns surrounding any future expansion of such  assistance. Agency officials identified four areas of concern:
DOD officials expressed concerns about the absence of a  comprehensive strategy for southwest border security and the  resulting challenges to identify and plan a DOD role.
DHS officials expressed concerns that DOD’s border assistance is ad  hoc in that DOD has other operational requirements. DOD assists  when legal authorities allow and resources are available, whereas  DHS has a continuous mission to ensure border security.
Department of State and DOD officials expressed concerns that  greater or extended use of military forces on the border could create a  perception of a militarized U.S. border with Mexico, especially when  Department of State and Justice officials are helping support civilian  law enforcement institutions in Mexico to address crime and border  issues.
Federal Aviation Administration officials, who are part of the  Department of Transportation, stated that they are concerned about  safety in the national airspace, due to concerns about the ability of  unmanned aerial systems to detect, sense, and avoid an aircraft in  flight. The Federal Aviation Administration has granted DHS authority  to fly unmanned aerial systems to support its national security mission  along the U.S. southwest land border, and is working with DOD, DHS,  and the National Aeronautics and Space Administration to identify and  evaluate options to increase unmanned aerial systems access in the  national airspace.
We did not make any recommendations in our September 2011 report.
Chairman Miller, Ranking Member Cuellar, and Members of the  Subcommittee, this concludes my prepared statement. I am pleased to  answer any questions that you may have at this time.
section_title: GAO Contacts and Staff Acknowledgments
paragraphs: For future questions about this statement, please contact me on (202)  512-4523 or LeporeB@gao.gov. Individuals making key contributions to  this statement include Mark Pross, Assistant Director; Yecenia Camarillo;  Carolynn Cavanaugh; Nicole Willems; Lori Kmetz; Charles Perdue;  Richard Powelson; Terry Richardson; and Jason Wildhagen.
section_title: Related GAO Products
paragraphs: Border Security: Additional Steps Needed to Ensure That Officers Are  Fully Trained. GAO-12-269. Washington, D.C.: December 22, 2011.
U.S. Customs and Boarder Protection’s Border Security Fencing,  Infrastructure and Technology Fiscal Year 2011 Expenditure Plan.  GAO-12-106R. Washington, D.C.: November 17, 2011.
Arizona Border Surveillance Technology: More Information on Plans and  Costs Is Needed before Proceeding. GAO-12-22. Washington, D.C.:  November 4, 2011.
Observations on the Costs and Benefits of an Increased Department of  Defense Role in Helping to Secure the Southwest Land Border.  GAO-11-856R. Washington, D.C.: September 12, 2011.
Homeland Security: DHS Could Strengthen Acquisitions and  Development of New Technologies. GAO-11-829T. Washington, D.C.:  July 15, 2011.
Secure Border Initiative: Controls over Contractor Payments for the  Technology Component Need Improvement. GAO-11-68. Washington,  D.C.: May 25, 2011.
Southwest Border: Border Patrol Operations on Federal Lands.  GAO-11-573T. Washington, D.C.: April 15, 2011.
Border Security: DHS Progress and Challenges in Securing the U.S.  Southwest and Northern Borders. GAO-11-508T. Washington, D.C.:  March 30, 2011.
Border Security: Preliminary Observations on the Status of Key  Southwest Border Technology Programs. GAO-11-448T. Washington,  D.C.: March 15, 2011.
Moving Illegal Proceeds: Opportunities Exist for Strengthening the  Federal Government’s Efforts to Stem Cross-Border Currency Smuggling.  GAO-11-407T. Washington, D.C.: March 9, 2011.
Border Security: Preliminary Observations on Border Control Measures  for the Southwest Border. GAO-11-374T. Washington, D.C.: February 15,  2011.
Border Security: Enhanced DHS Oversight and Assessment of  Interagency Coordination Is Needed for the Northern Border. GAO-11-97.  Washington, D.C.: December 17, 2010.
Border Security: Additional Actions Needed to Better Ensure a  Coordinated Federal Response to Illegal Activity on Federal Lands.  GAO-11-177. Washington, D.C.: November 18, 2010.
Moving Illegal Proceeds: Challenges Exist in the Federal Government’s  Effort to Stem Cross-Border Currency Smuggling. GAO-11-73.  Washington, D.C.: October 25, 2010.
Secure Border Initiative: DHS Needs to Strengthen Management and  Oversight of Its Prime Contractor. GAO-11-6. Washington, D.C.: October  18, 2010.
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