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August 12
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OAKLAND – In a federal courtroom in Oakland, California, on Wednesday, the Department of Justice clashed with lawyers for the Sierra Club, the state of California and a slew of other states looking to block the Pentagon from diverting $3.6 billion from the military to build a southern border wall.

Justice Department attorney James Burnham told U.S. District Judge Haywood Gilliam that proposed border barriers in California, New Mexico and Arizona are covered by 10 U.S. Code § 2808, which allows the Department of Defense, in the event of a national emergency requiring the armed forces, to spend military construction funds on projects necessary to support the armed forces.

Burnham said several thousand military personnel are already at the border to help law enforcement with the Department of Homeland Security to deter illegal entry into the United States.

“How would you articulate the argument for why this construction is necessary to support the armed forces?” Gilliam asked Burnham.

“Based on the evidence, the installation of barriers will lessen the burdens on those troops and allow them to do other things. Or maybe obviate the need for them,” he answered.

Burnham said the land is also clearly under the military’s jurisdiction, since it was transferred to the Defense Department by the Department of Interior. In October 2019, the Secretary of the Army then assigned all land needed for the projects to U.S. Army Garrison Fort Bliss, Texas, making them part of that military installation.

Burnham said this further bolsters the argument that the wall projects are “military construction” for the purposes of § 2808.

And he noted a portion of the proposed border wall in Arizona is already part of the Goldwater Range, a 70-mile bomb testing site southeast of Yuma that extends all the way to the Sonoran Desert National Monument.

Gilliam said he was curious whether land in other states can actually be assigned to Fort Bliss, and if the government is actually allowed to create a “military installation” by transferring land to the Department of Defense. He asked Burnham for further briefing on these issues by noon next Monday.

Megan Barbero with the General Counsel’s Office for the U.S. House of Representatives called Burnham’s reasoning about Fort Bliss “not a good faith reading of § 2808,” and said the Trump administration was using it “to circumvent an appropriation by claiming the land is a military installation.”

Gilliam also seemed to take exception to Burnham’s contention that it is up to the Secretary of Defense to decide whether a project is necessary to support the use of the armed forces.

“Why can’t a court review the asserted basis – with some deference or great deference or whatever the standard is – and make a determination as to whether on its face it suffices?” Gilliam asked. “It sounds like you’re saying the assertion is unchallengeable by anyone.”

Burnham answered, “It is just the kind of military judgment that courts don’t review and Congress has not given courts the authority to review.” He added that “if the court were to go there, then there would be extraordinary deference due.”

In addition to the Sierra Club, California – along with Colorado, Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and Wisconsin – sued to stop the funds from being moved around. They claim the Department of Defense overstepped its authority by trying to circumvent Congress, which refused to allocate more than $1.375 billion for border security in January 2019 after a month-long government shutdown.

Arguing for the Sierra Club, ACLU attorney Dror Ladin said the president’s declaration of a national emergency at the border was an unprecedented move designed to bypass Congress’ authority to appropriate funding for the border wall.

“There are so many ways in which what’s happening here is unlike anything that has ever happened,” Ladin said – from President Donald Trump’s national emergency determination to the Defense Department’s “novel theories of what a military installation might be.”

Ladin said border security falls under the purview of the Department of Homeland Security, a civilian law enforcement agency, and it cannot use military funding to support its operations.

He said § 2808 contemplates an emergency situation in which Congress would be unable to appropriate funding for necessary military construction.

“For the president to say, ‘How about if I use it if I disagree with an appropriations decision’ is completely opposed to the purpose and function of 2808,” Ladin said.

The Sierra Club also says the border wall projects will harm local wildlife and detract from their members’ enjoyment of the natural landscape. Ladin said 93% of the Goldwater Range is designated as a wilderness area, adding, “It’s not this missile-cratered expanse on the border it is being claimed to be.”

Justice Department attorney Eric Grant disputed the Sierra Club’s claims, saying not a single western burrowing owl, checkerspot butterfly, or vernal pool species will be disturbed by the projects.

Gilliam took the arguments under submission and said he will try to rule soon on whether the cases survive summary judgment.

The Ninth Circuit is still weighing whether to overturn an injunction barring the use of $2.5 billion in Pentagon funds for the border wall under § 8005 of the Department of Defense Appropriations Act.

— By Mario Dinzeo

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