DOJ Lets Troops Arrest Illegal Immigrants Off Base

DOJ Lets Troops Arrest Illegal Immigrants Off Base

The News

The Justice Department issued a legal opinion Friday concluding that military personnel may arrest illegal immigrants who trespass into the government's border "National Defense Areas" — and may pursue and arrest them just outside those zones, after they have left Defense Department land.

The opinion, from the Office of Legal Counsel, says that does not violate the Posse Comitatus Act, the law that generally bars the military from enforcing civilian law on U.S. soil.

Six National Defense Areas have been set up along the southern border, in Arizona, California, New Mexico and Texas, according to CBS News. The opinion says the military has suggested it may designate more.

What the Opinion Says

"In sum, we conclude that the use of military personnel to arrest trespassers just outside of an NDA would not violate the [Posse Comitatus Act], given the express statutory authorization and the military-purpose of a commander's traditional protective power," Hyde wrote.

Hyde also argued that empty land still carries a military purpose. "Even though substantial portions of the NDAs may be presently unoccupied or have no standing structures on them, there is a military necessity to ensure that unauthorized persons are not establishing a position to monitor the activities of U.S. forces for intelligence-gathering purposes or conducting reconnaissance in preparation for a terrorist attack," he concluded.

The Washington Times reported that Hyde said the finding does not give troops "free license to enforce civil law."

Timeline

Early 2025

The Pentagon made the U.S.-Mexico border its first mission of President Trump's second term, announcing plans to ramp up forces there. The Defense Department says more than 20,000 service members have since served deployments on the border.

Spring 2025

The administration began designating large strips of border land as National Defense Areas, closed to civilians, allowing soldiers to detain people who enter them. The first was established near El Paso, Texas, according to The Washington Times.

April 2025

The Justice Department began charging people apprehended in the zones, CBS News reported. The most common charges are violating a military security regulation and entering military, naval or Coast Guard property — both misdemeanors.

Friday, Aug. 14, 2026

Deputy Assistant Attorney General William D. Hyde Jr. issued the OLC opinion extending the arrest power to just outside the zones.

Reactions

U.S. Northern Command, which oversees U.S. forces in North America, says on its website that service members can apprehend people who trespass onto a National Defense Area and hand them to the appropriate law enforcement authorities.

The courts have been less uniform. Some judges have tossed trespassing cases, ruling that the migrants did not know they were on Defense Department land and so lacked the intent to commit the crime, The Washington Times reported. Because the zones cover wide strips of ground that do not look like a military base, the Defense Department has posted signs in English and Spanish warning that entry is prohibited.

The two sources differ on scale: CBS News reported the department has charged hundreds of people since April 2025; The Washington Times reported thousands have been charged.

What's Next

The opinion is advisory only and sets no legal precedent, CBS News noted — but OLC opinions guide how the executive branch acts, so the practical effect is that commanders now have written cover to make arrests outside the zone lines.

Expect the Posse Comitatus question to be litigated. Defense lawyers already contest the trespassing charges on intent grounds; the new arrest power adds a second front over where military authority stops.

More

Border apprehensions have fallen sharply during the crackdown. Border Patrol reported fewer than 240,000 apprehensions along the southern border in fiscal 2025, down from 1.5 million in fiscal 2024 and 2 million in fiscal 2023, according to agency data cited by CBS News. Fiscal 2026 stands at 81,000 with two months left in the year.

The administration has also virtually closed the asylum system to those entering the country illegally.

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