Overnight Defense: Shanahan expects more troops to deploy to border | Transgender ban takes effect | International court rejects probe into alleged Afghanistan war crimes

Happy Friday and welcome to Overnight Defense. We're Rebecca Kheel and Ellen Mitchell, and here's your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond. CLICK HERE to subscribe to the newsletter.


THE TOPLINE: Acting Defense Secretary Patrick ShanahanPatrick Michael ShanahanDefense chief calls on European allies to be wary of China's investments, blasts Russia Pentagon chief approves 20 more miles of border wall Why Dave Norquist is the perfect choice for DOD's deputy secretary MORE said Friday that he expects the Pentagon will soon send additional troops to the border, though the Defense Department (DOD) has yet to receive a formal request for such support.

"It shouldn't come as a surprise that we'll provide more support to the border," Shanahan told reporters prior to meeting with German Defense Minister Ursula von der Leyen at the Pentagon.


"Our support is very elastic and given the deterioration there at the border you would expect that we would provide more support."

Asked if troops would be involved in detaining migrants in any way, he said "we haven't received any details on that, but I expect an increase in support will occur."

White House hints at more: President TrumpDonald John TrumpTrump says he doesn't want NYT in the White House Veterans group backs lawsuits to halt Trump's use of military funding for border wall Schiff punches back after GOP censure resolution fails MORE earlier this week said that he may send more troops to the U.S.-Mexico border to deal with the spike in migrant families entering the country.

"I'm going to have to call up more military," Trump said Wednesday.

NBC News reported that Shanahan was among the top national security advisors that gathered at the White House Tuesday night to discussed whether the military could build tent city detention camps for migrants and whether it could legally run the camps.

The numbers now: There are roughly 3,000 active-duty troops at the southern border after Trump first deployed troops there last fall to assist in addressing a migrant caravan traveling from Central America.

The troops are in addition to about 2,000 National Guard members ordered there in April 2018 to assist in border security.  

No formal request, yet: Shanahan said he had not yet received a formal request from the Department of Homeland Security (DHS) for more support, but that Pentagon officials have "been having a number of conversations" with the department.

He added that defense officials will gather "a planning team" at the Pentagon on Saturday to "follow up with where are we on barrier construction, where do we stand on troops deployed and then in the areas we anticipate, what type of preliminary plans should we be doing prior to receiving a request for assistance."


TRUMP'S MILITARY TRANSGENDER BAN TAKES EFFECT: The Trump administration's policy banning most transgender people from serving in the military is now in effect.

The Fridauy implementation day was met with a slew of statements from LGBT groups blasting the move and the Pentagon continuing to insist the policy is not a ban.

"That the Trump administration has pushed so hard to be allowed to implement this baseless, immoral and un-American ban is nothing short of shameful," Jennifer Levi, transgender rights project director at GLBTQ Legal Advocates and Defenders (GLAD), said in a statement Friday.

"As of today and until this policy is overturned, transgender people are barred from service, regardless of their qualifications and ability to meet military standards," she added.

How we got here: Transgender troops have been serving openly since the Obama administration lifted a previous ban in 2016.

But in July 2017, President Trump tweeted he would "not accept or allow transgender individuals to serve in any capacity in the U.S. military."

Four lawsuits against the ban followed, and courts issued injunctions in all four cases that prevented the policy from being implemented.

But those injunctions have since been lifted, paving the way for Friday's policy change.

Pentagon's stance: "I would reiterate that the department will continue to treat all individuals with dignity and respect, and every service member is able to express their gender identity," Pentagon spokeswoman Jessica Maxwell said in an email Friday. "DOD will take no action solely based on gender identity."

Under the new policy, outlined in a March memo, currently serving transgender service members or anyone who has already signed an enlistment contract can continue to serve openly and receive medical care.

But transgender individuals who join the military going forward will have to serve in the gender they were assigned at birth. Anyone diagnosed with gender dysphoria will not be allowed to enlist unless a doctor certifies they have been stable in their biological sex for 36 months.

Also, anyone serving now who receives a gender dysphoria diagnosis after Friday will fall under the new rules.

"Those diagnoses will be dealt with on an individual basis," Maxwell said. "If a service member can continue to meet all standards, including deployability standards and all those associated with their biological sex, [they] can continue to serve without a waiver."

Troops diagnosed with gender dysphoria can be discharged if they are "unable or unwilling to adhere to all applicable standards, including the standards associated with their biological sex," the March memo says.

Ahead of Friday's implementation, the Pentagon has been educating the force on the new policy by distributing fact sheets to military medical providers, service members, applicants, commanders, recruiters and human resources, Maxwell said.


ICC REJECTS AFGHANISTAN WAR CRIMES PROBE: The Trump administration is taking a victory lap Friday after the International Criminal Court rejected its chief prosecutor's request to investigate alleged war crimes in Afghanistan, including accusations against U.S. troops.

A three-judge panel unanimously decided to deny chief prosecutor Fatou Bensouda's request, citing the limited chances of success for prosecution.

"The Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited," the court said in a news release.

Court's reasons: Despite rejecting Bensouda's request, the court said she established "a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan."

Still, the statement highlighted the time that has elapsed since the preliminary investigation in 2006 and the lack of cooperation Bensouda has received, which is "likely to go scarcer should an investigation be authorized."

Those factors are "hampering the chances of successful investigation and prosecution" and the court needs "to use its resources prioritizing activities that would have better chances to succeed," the statement said.

Trump's pressure: Friday's decision came after the Trump administration pressured the court to drop the issue.

Last month, Secretary of State Mike PompeoMichael (Mike) Richard PompeoDiplomat who raised Ukraine concerns to testify in Trump impeachment probe Overnight Defense: Trump weighs leaving some troops in Syria to 'secure the oil' | US has pulled 2,000 troops from Afghanistan | Pelosi leads delegation to Afghanistan, Jordan Mulvaney faces uncertain future after public gaffes MORE announced the United States would restrict the visas of anyone investigating U.S. military personnel. And last week, Bensouda, said the United States had revoked her visa.

President Trump hailed the court's decision Friday, saying "it is a major international victory" for U.S. personnel and for "the rule of law."

"We welcome this decision and reiterate our position that the United States holds American citizens to the highest legal and ethical standards," Trump said in a statement. "Since the creation of the ICC, the United States has consistently declined to join the court because of its broad, unaccountable prosecutorial powers; the threat it poses to American national sovereignty; and other deficiencies that render it illegitimate."

What's next: Bensouda can appeal the court's decision. Her office said in a statement it will "further analyze the decision and its implications, and consider all available legal remedies."



The Heritage Foundation will host an expert panel on "Deciphering the Navy's 2020 Budget Request and Shipbuilding Plan" at noon. https://herit.ag/2P9ndPt



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