Working with the Border Patrol, Marines have been used in the past. In a well publicized incident in May 1997 that brought an outcry from people across America (Amnesty International), High School student Esequiel (Zeke) Hernandez from Redford, Texas was shot and killed by a Marine conducting surveillance in an area heavily used by drug smugglers crossing the Rio Grande. President Clinton and Congress decided to use the Marines in conjunction with the Border Patrol to fight the War On Drugs. The shooting was ruled justified since young Hernandez fired 2 shots in the direction of the Marines. The Marines, assuming they were being fired upon, requested and got orders to lock, load and return fire. For 2 years there was public outrage for the shooting and for the use of our military along the border.
In 1999 the Clinton Administration settled the wrongful death lawsuit brought by the Hernandez family for $1.9 million. Due to past court decisions the Administration didn't want to argue it in court. In decisions of using the military to complement law enforcement the courts have looked at whether the military was being used in a "passive" or "active" roll. Being used for patrol and surveillance purpose only, might be considered "passive". Taking action by returning fire might have been considered "active."
Courts have always held making arrests while working with civilian law enforcement would be considered active and is a violation of the "Act". They have also held providing training, equipment, logistics and administrative assistance, and certain types of intelligence information is permitted. In this case President Clinton did not want the courts involved.
Since this incident the government has made limited use of the military along the border. When President Bush sent the National Guard to the border areas he was well versed on the Hernandez incident. It was well understood that the National Guard would be in strict compliance with the statutory act of Posse Comitatus. Performing administrative duties and building fences keeps them well within the 'Act'. In any other capacity, such as patrolling, would place our soldiers and the Commander-In-Chief in extremely difficult positions. Congress would have to pass a law allowing immunity for our troops acting in a law enforcement capacity and give them full law enforcement authority.
Congress would further have to authorize the President the authority to use the military in an active roll along the border. With all the outrage from the Hernandez incident, I can only imagine what would happen if President Bush took the same action as President Clinton.
Governor Richardson along with other governors have been calling for more troops along the border. I wonder if they have ever heard of