Nominee to Lead Army: Deployment of Soldiers to Border Was a 'Lawful Order’

Acting Army Secretary Ryan D. McCarthy answers questions from members of the Senate Armed Services Committee during his confirmation hearing Sept. 12, 2019. (Army photo by Sgt. Dana Clarke)
Acting Army Secretary Ryan D. McCarthy answers questions from members of the Senate Armed Services Committee during his confirmation hearing Sept. 12, 2019. (Army photo by Sgt. Dana Clarke)

During his Senate confirmation hearing to be the permanent secretary of the Army, Ryan McCarthy described President Donald Trump's use of military funds for the border wall as a "lawful order" after several lawmakers questioned the legality of the commander in chief's decision.

The Pentagon's support of Trump's effort to build sections of a wall on the southern U.S. border has angered many Democrats because it takes $3.6 billion away from more than 100 military construction projects across all services. The projects had been approved by Congress.

McCarthy, who is now serving as the acting secretary of the Army, told Sen. Mazie Hirono, D-Hawaii, that he used the legal opinion of the Defense Department's Office of the General Counsel as justification for the Army's support of the 11 border barrier construction projects.

When the request came down to support this effort, Gen. Joseph Dunford Jr., chairman of the Joint Chiefs of Staff, conducted a military assessment that ultimately approved of the value of the border wall projects, McCarthy said.

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Hirono shot back, "So, in other words, your effort was to comply with what the president wanted to do? That is how you see your role?"

McCarthy answered the question without emotion. "This was a lawful order, and we intend to follow it," he said.

Hirono didn't let the issue drop.

"And so, if the president wants to do this further, you will continue to support making reductions in duly funded projects by this Congress, that you will comply [with] that?" she asked. "Is that what you are telling me?"

McCarthy replied, "On lawful orders, senator, we will comply with the president's intent. We will provide the appropriate military advice about these projects and the offsets associated with the choices being made."

Earlier in the hearing, Sen. Angus King, D-Maine, said he believed Trump's directive to use military construction funds for the border wall is illegal.

"I believe you have been given an illegal order," King said. "I think that what is being done here is a gross violation of the Constitution, and the fundamental principles of the Constitution, which is a separation of powers and the bestowing of the appropriation and spending power on the Congress. I want to see that legal opinion because I just can't believe it holds any water."

Most members of the Senate Armed Services Committee recognized McCarthy's experience from serving as undersecretary of the Army for the past two years and commended him for his performance.

But that didn't stop them from asking him tough questions about how he intends to handle long-standing problems such as sexual assault if confirmed as the Army's top official.

Sen Joni Ernst, R-Iowa, described sexual assault in the ranks as a "scourge that we absolutely must push against and bring to an end."

"The shift that we have seen in our military culture is difficult to stomach, and I think those that are in positions of leadership and responsibility really need to see this through; they need to see that we are addressing this situation with the seriousness that it requires," she said.

Ernst said she recently attended a day-long, interactive training event at the U.S. Military Academy at West Point, New York, that forced cadets to respond to various scenarios involving sexual assault.

"If confirmed, what would you like to see that would change the culture that we see existing in our military today?" she asked. "What else can we be doing to affect that change?"

McCarthy, a former infantry officer in the 75th Ranger Regiment, said he believes it will come down to giving teams more time to train together.

"The things that I remember as a junior officer in a unit was how much I ate breakfast and lunch and dinner with my teammates; I was with them all the time," he said.

McCarthy said he intends to continue an effort that former Army Secretary Mark Esper and former Army Chief of Staff Gen. Mark Milley began last year that involved eliminating many mandatory types of training and other taskings that take units away from training together.

"That is where the trust, the foundation of great units is really codified, and so we need to do more of that," he said.

-- Matthew Cox can be reached at matthew.cox@military.com.

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