The De­fense

The Washington Post - - FRONT PAGE - BY PAUL SONNE AND NICK MIROFF [email protected]­post.com [email protected]­post.com

De­part­ment in­formed Congress it will di­vert $3.8 bil­lion in fund­ing from its bud­get to build 177 miles of Trump’s bor­der wall.

The De­fense De­part­ment said it is di­vert­ing $3.83 bil­lion from else­where in its bud­get to build 177 more miles of Pres­i­dent Trump’s bor­der bar­rier, set­ting in mo­tion a broader White House plan to take some $7.2 bil­lion from the Pen­tagon bud­get this year for the project with­out con­gres­sional ap­proval as Trump heads into the elec­tion.

The Pen­tagon in­formed Congress on Thurs­day of its plans to di­vert the $3.83 bil­lion from the pur­chase of air­craft and other equip­ment and in­stead use the funds for the con­struc­tion of bor­der bar­ri­ers. The Pen­tagon is mov­ing the money us­ing a coun­ternar­cotics law that al­lows the De­fense De­part­ment to build fenc­ing for other fed­eral, state and lo­cal agen­cies in known drug-smug­gling cor­ri­dors.

Ac­cord­ing to bud­get doc­u­ments re­viewed by The Wash­ing­ton Post, the Pen­tagon is pulling the fund­ing from two F-35 fighter jets and two Osprey tilt-ro­tor air­craft for the Ma­rine Corps; one P-8A re­con­nais­sance air­craft for the Navy; and four C-130J trans­port planes and eight MQ-9 Reaper drones for the Air Force.

In ad­di­tion, fund­ing will be di­verted from pro­grams to up­date Humvees and trucks for the Army, buy $1.3 bil­lion in “mis­cel­la­neous” new equip­ment for the Na­tional Guard and Re­serves and de­velop cer­tain U.S. Navy ves­sels. The Pen­tagon told Congress the fund­ing is ei­ther in ex­cess of the mil­i­tary’s needs or is not yet needed given the time­line of the pro­grams in ques­tion.

The $7.2 bil­lion the White House is targeting in the Pen­tagon bud­get this year would give Trump enough money to com­plete nearly 900 miles of new bar­ri­ers by 2022, a plan that al­lows him to cam­paign for re­elec­tion on his sig­na­ture im­mi­gra­tion ini­tia­tive — and the bud­get to pay for it.

Robert G. Sa­lesses, deputy as­sis­tant sec­re­tary of de­fense for home­land de­fense in­te­gra­tion, said he was aware of dis­cus­sions to take more money from the Pen­tagon bud­get apart from the $3.83 bil­lion an­nounced Thurs­day but that no de­ci­sions had been made.

The lat­est di­ver­sion of Pen­tagon funds, Sa­lesses said, comes in re­sponse to a re­quest the De­part­ment of Home­land Se­cu­rity made in mid-jan­uary. The $3.83 bil­lion, he said, will pay for the con­struc­tion of 177 miles of 30-foot bol­lard­style bar­ri­ers on fed­er­ally con­trolled land in six bor­der sec­tors: San Diego, El Cen­tro, Yuma, Tuc­son, El Paso and Del Rio. It will be con­tracted through the Army Corps of Engi­neers.

“It’s clear that we are meet­ing the re­quire­ments that have been iden­ti­fied by the pres­i­dent to ac­cel­er­ate and build the bor­der bar­rier as quickly and as ef­fec­tively as we can,” Sa­lesses said.

Crit­ics from both par­ties say Trump’s move over the past two years to take what now amounts to nearly $10 bil­lion ap­pro­pri­ated by Congress for the mil­i­tary has set a dan­ger­ous prece­dent in ex­ec­u­tive over­reach, which could open the door for a fu­ture ad­min­is­tra­tion to defy Congress’s con­sti­tu­tion­ally man­dated power of the purse. Trump reg­u­larly said on the cam­paign trail that Mex­ico would pay for his bor­der wall.

“Congress has re­peat­edly voted in a bipartisan way to refuse fund­ing the Pres­i­dent’s waste­ful, in­ef­fec­tive bor­der wall,” Se­nate Mi­nor­ity Leader Charles E. Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-calif.) said in a state­ment. “This lat­est ef­fort to steal Con­gres­sion­ally-ap­pro­pri­ated mil­i­tary fund­ing undermines our na­tional se­cu­rity and the sep­a­ra­tion of pow­ers en­shrined in our Con­sti­tu­tion.”

Even Repub­li­cans who sup­port in­creased bor­der se­cu­rity have bris­tled at the ques­tion­able way Trump is de­riv­ing funds to see through one of his pri­mary cam­paign promises.

Rep. Mac Thorn­berry (R-tex.), the top Repub­li­can on the House Armed Ser­vices Com­mit­tee, crit­i­cized Thurs­day’s move, em­pha­siz­ing that Congress has the con­sti­tu­tional re­spon­si­bil­ity to de­ter­mine how de­fense dol­lars are spent.

“The re-pro­gram­ming an­nounced to­day is con­trary to Congress’s con­sti­tu­tional au­thor­ity, and I be­lieve that it re­quires Congress to take ac­tion,” Thorn­berry said in a state­ment.

On Mon­day, the White House re­leased its bud­get re­quest for 2021, which in­cluded $2 bil­lion in bor­der wall funds, far less than what Trump is planning to take from de­fense fund­ing.

The Trump ad­min­is­tra­tion is mak­ing the moves with­out ap­proval from Congress, which un­der the U.S. Con­sti­tu­tion is given the power to ap­pro­pri­ate fed­eral funds. Some U.S. states and ad­vo­cacy groups are chal­leng­ing the le­gal­ity of the ad­min­is­tra­tion’s plans in fed­eral courts.

While lower courts have tem­po­rar­ily halted the use of mil­i­tary funds, the Supreme Court and a fed­eral ap­peals court in a sep­a­rate case have al­lowed the Trump ad­min­is­tra­tion to go for­ward with the trans­fers — and bar­rier con­struc­tion — while lit­i­ga­tion is pend­ing.

Last year, Trump by­passed Congress to take $6.1 bil­lion from the Pen­tagon bud­get for the bor­der project.

The Amer­i­can Civil Lib­er­ties Union, which is chal­leng­ing the le­gal­ity of the ad­min­is­tra­tion’s ac­tions on bor­der bar­rier fund­ing in court, said it would move to stop the lat­est trans­fer of mil­i­tary funds.

“Mul­ti­ple courts have ruled that it is il­le­gal for Trump to pil­lage mil­i­tary funds for his xeno­pho­bic bor­der wall,” said Dror Ladin, an at­tor­ney with the ACLU’S Na­tional Se­cu­rity Project. “Not one court has given his un­law­ful power grab the stamp of ap­proval. We’ll be back in court to block these ad­di­tional, unau­tho­rized trans­fers.”

To take the fund­ing, Trump used the coun­ternar­cotics law, as well as an­other lit­tle-known statute in U.S. code that al­lows the Pen­tagon, in the event of a na­tional emergency re­quir­ing the de­ploy­ment of troops, to di­vert mil­i­tary con­struc­tion funds to pay for in­fra­struc­ture needed by those forces.

About 5,000 troops — in­clud­ing Na­tional Guard and ac­tive-duty forces — re­main deployed to the U.S. south­ern bor­der. The Joint Chiefs of Staff determined last year that the con­struc­tion of bor­der bar­ri­ers would sup­port those troops — the ac­tive-duty com­po­nent of which is deployed un­der a na­tional emergency Trump de­clared early last year.

The Pen­tagon sug­gested the $3.6 bil­lion in mil­i­tary con­struc­tion funds it di­verted to bor­der bar­ri­ers last year would be “back­filled” by Congress, po­ten­tially leading to no de­lays in the projects that were de­funded. But the money wasn’t re­plen­ished, so the projects are de facto can­celed un­til they re­ceive fund­ing.

The White House is ex­pected to take a sim­i­lar amount again this year from mil­i­tary con­struc­tion funds, but Pen­tagon of­fi­cials have not said which projects Congress has ap­proved would be de­funded to free up that money. The Pen­tagon’s civil works bud­get could also be di­verted to pay for bar­rier con­struc­tion.

Sa­lesses said he wasn’t aware of plans to tap the Pen­tagon’s civil works bud­get. He de­clined to comment on dis­cus­sions about tak­ing money from the mil­i­tary con­struc­tion bud­get again this year.

Sa­lesses said the Pen­tagon has been given the au­thor­ity by Congress to move around $6 bil­lion within its bud­get this year un­der a process known as re­pro­gram­ming.

The de­fense sec­re­tary must de­ter­mine the money is going to a higher-pri­or­ity mat­ter than what it was ap­pro­pri­ated for ini­tially, and in this case De­fense Sec­re­tary Mark T. Esper did so, Sa­lesses said.

Sa­lesses said at the in­struc­tion of the pres­i­dent, the ad­min­is­tra­tion is pro­gress­ing rapidly to­ward ful­fill­ing DHS’S plan to build 722 miles of bor­der bar­ri­ers over 10 years at a cost of ap­prox­i­mately $18 bil­lion.

“This will obviously meet a lot of those goals that were set,” Sa­lesses said, cit­ing “sig­nif­i­cant na­tional se­cu­rity chal­lenges on the south­west bor­der of the United States.”

The top Pen­tagon of­fi­cial said he didn’t an­tic­i­pate re­ceiv­ing more re­quests from DHS for fund­ing from the De­fense De­part­ment bud­get for the bor­der bar­rier next year, as a re­sult of the ac­cel­er­ated progress al­ready made.

Projects whose fund­ing was pulled last year in­clude the restora­tion of U.S. mil­i­tary fa­cil­i­ties de­stroyed by Hur­ri­cane Maria in Puerto Rico, in­stal­la­tions the U.S. mil­i­tary said it would build in Europe to help de­ter Rus­sia and schools on U.S. mil­i­tary bases in the United States and abroad.

In a let­ter to the Pen­tagon’s act­ing comptrolle­r, Rep. Peter J. Vis­closky (D-ind.), chair­man of the House sub­com­mit­tee on de­fense ap­pro­pri­a­tions, said his sub­com­mit­tee re­jected the De­fense De­part­ment’s lat­est re­quest to re­al­lo­cate the funds.

The Pen­tagon has pre­vi­ously said that by law it doesn’t need ap­proval from Congress to move funds when the amount is lower than the re­pro­gram­ming cap. It does have a duty to in­form Congress, as the Pen­tagon did Thurs­day.

In ear­lier ad­min­is­tra­tions, De­fense De­part­ment of­fi­cials typ­i­cally sought ap­proval from lead­ers of the rel­e­vant con­gres­sional com­mit­tees as a mat­ter of course for large re­al­lo­ca­tions, even if the ap­proval wasn’t tech­ni­cally re­quired by law.

In his let­ter to the act­ing comptrolle­r, Vis­closky said that with its uni­lat­eral ac­tion, the De­fense De­part­ment was con­tin­u­ing to breach “the his­toric and un­prece­dented comity” that has ex­isted be­tween his com­mit­tee and the Pen­tagon.

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