Above photo: Without apparent provocation, though there were approximately 200 to 300 protesters demonstrating, police scattered gas and crowd control munitions throughout Downtown Portland. July 16, 2020. Beth Nakamura/Staff.
That’s the question I asked policing and privacy expert Tracy Rosenberg, Executive Director of Media Alliance, and coordinator of Oakland Privacy.
Ann Garrison: What do you think Trump and his goons might be up to in Portland and the cities with “liberal Democratic mayors” that he’s threatening to invade next? Is this much more than politics, an attempt to win the election with law and order extremes?
Tracy Rosenberg: Certainly, first and foremost, it is a political stunt to capture the law and order crowd and press on divides between the coastal cities and inland voters. But it’s also more sinister than that. The use of federal forces is designed to weaken local accountability by freezing out local government that constituents can reach. Portland’s mayor might not even have opposed some “help” from the feds, but he wasn’t asked. In other words, this wasn’t mutual aid. This was indeed an invasion.
AG: Who are these federal goons under Trump’s command? What branch of the enforcement apparatus are they drawn from? Some say there are US Marshals involved.
TR: An alphabet soup of federal agencies have been employed to crack down on police brutality protests, including the National Guard, the US Marshals, and the Secret Service (the National Guard being the only one of these organizations whose mission even arguably includes civil unrest). But the highly publicized Portland kidnappings or detentions, depending on which you want to call them, were carried out by Customs and Border Patrol, specifically the Border Patrol tactical squad which is called BORTAC . Trump has recently tweeted that he intends to mobilize the Homeland Security Investigations (HSI) divisions of ICE, notably to the city of Chicago. HSI is the wing of ICE that handles criminal actions involving immigrants, as differentiated from Enforcement and Removal (ERO),” the wing of ICE that handles deportations. Both the ICE divisions and the Border Patrol are part of the Department of Homeland Security.
AG: And what’s their legal authority, assuming they have any? What gives them the right to drive around in unmarked cars, dressed and armed like paratroopers, without badges or anything else identifying them and the enforcement agency they work for? What gives them the right to snatch people off the streets, then hold them without charge?
TR: Those are, of course, the questions. Legal authority derives from two sources: firstly, the organizational mission and jurisdiction and, secondly, the Constitution and the power it provides to the executive branch.
The mission of the US Marshals is to protect the judiciary, judges and witnesses and to pursue fugitives.
The mission of the Secret Service is to defend the President, his/her family and upper level government officials from personal harm.
The mission of the Border Patrol is to police the international borders, both land and air.
The mission of ICE is to enforce immigration laws away from border areas.
You see where I’m going. Chasing protesters around cities in response to graffiti on federal buildings is not the mission of any of these agencies or federal officers. Trump claims that, in the state of emergency he has declared, he can redefine the mission of these agencies as he pleases, but that is a highly questionable assertion.
When it comes to the Constitution, assemblies to petition the government for redress of grievances, aka protest, is an absolute right of the people. Where that gets blurred is when criminal activity of some kind gets mixed in with the assemblies, and government has spent much of the past forty years greatly expanding the penal code with more and more new crimes.
But even when protests include particular actions defined as criminal: vandalism, trespassing, or property damage, or even physical violence, the due process protections in the 4th, 5th and 6th Amendments do not magically disappear. Unidentified personnel cannot simply snatch people off the street and take them into custody without a charge—at least not legally—but we know that BORTAC just did that in Portland.
AG: Can cities and states assert authority over them?
TR: Federalism, i.e., the rights of states, has a long history in American jurisprudence and is largely upheld in the courts. Certainly, the intention of the Third Amendment was to prevent the new federal government from attacking the states with military personnel. That framework largely doesn’t extend to cities and other local municipalities, so the invocation of federalism to send the Trump troops away would likely have to come from the governors of states.
Oregon’s governor has already made statements to that effect. Trump’s claim has been that federal buildings are federal property and indeed they are, but that authority would not extend beyond those specific buildings without the consent of the states. Or at least it normally doesn’t. The authors of the Constitution did hedge a bit, saying that authority would not extend beyond federal buildings “in times of peace,” which opens up the question of whether the feds are pursuing an undeclared “war” against Democratic-led cities or against Black Lives Matter, or against “Antifa” or whatever.
“The invocation of federalism to send the Trump troops away would likely have to come from the governors of states.”
As we know, US presidents are in the habit of waging undeclared wars in foreign countries. We may be looking at an expansion of those tactics and as a messaging point, the metaphorical defining of the population of some liberal cities as “foreign” or “un-American” and therefore exempted from constitutional protections that protect “real Americans.” Dehumanizing immigrants, Black people, Muslims, and those who stand with them can be taken to this logical extreme. At least in Trump’s head and those of his sycophants.
AG: The ACLU and other rights groups in Portland have sued Trump to stop this. What do you think their chances of success are, especially given the way Trump has packed the federal courts?
TR: Their chances on the West Coast are quite good. The 9th Circuit remains the most reliably liberal circuit court in the country and has issued a long string of rebukes to the Trump administration. In other circuit courts, the outcome is less certain, although federalism, aka states rights, has a long bipartisan tradition. Of course, the 9th Circuit is not the final level of the courts, and it is difficult to predict what the Supreme Court would do if presented with an emergency request to overrule the 9th Circuit. However, the courts move slow and there is an election in three and a half months. So I expect the intent here is messaging as I outlined above. Trump becomes the protector of the “ordinary white Americans” against their enemies, the foreigners and the race traitors who side with them.
AG: Nancy Pelosi and all sorts of other pious Democrats who’ve voted to militarize the police with Pentagon surplus and protect them from prosecution for Constitutional violations have been wringing their hands about Trump’s overreach, and Congresswoman Ayanna Pressley, D-MA, has introduced the Ending Qualified Immunity Act, but I can’t imagine that political pressure will persuade the Republican Senate to roll either back. What impact do you think the November election might have?
TR: Mark Pocan introduced an amendment to the National Defense Authorization Act to roll back the 1033 military surplus program, but it was roundly defeated today—July 21st—in the Democratic House by something like a 323-93 vote. So it is right to say that much of their hand-wringing is exactly that.
Local government is more inclined to take things seriously because they are more accessible to constituents and more easily voted out. Ro Khanna, Pramila Jayapal, and Bernie Sanders, among others, have introduced a number of federal law enforcement bills that are promising in substance, but most don’t have much chance of becoming law. The centrist Democrats are looking for symbolic acts that both express seeming solidarity but don’t really change things all that much.
The November election probably will be a blue wave. This likely means federal agencies will not attack blue cities out in the open; the language will be that we value everyone regardless of race, religion or creed, and you are all welcome to pursue life, liberty and profit. (Without much help.) In other words, the neoliberal equation.
It will be better than Trump, and safer for protesters and marginalized communities, but that doesn’t make it good. The question is whether generational and demographic shifts will reform that equation and, if so, how? I don’t think we know the answer yet. I always try to be hopeful.
AG: As more and more prominent leaders and activists articulate demands well beyond the end of police brutality, including the abolition of prisons and the end of US wars, we seem to be seeing a national revolt against what’s come to be known as the carceral state, even as academics, lawyers, and social critics continue trying to define it. Is there anything you’d like to say about that?
TR: Sure. I think what we’ve seen grow is a broad understanding, outside of left circles and academia, that there is a carceral state. In other words, the language that policing itself is irretrievably flawed and possibly unsalvageable is no longer a fringe idea but one that has broken into the mainstream. This is one thing that social media and cellphones have accomplished. A picture, as they say, is worth a thousand words, and a thousand videos can change the agenda. I don’t think this mainstream awareness has quite translated into mainstream support for any particular policy agenda yet, but the first step is always, “Oh my God, we have to do something,” and we have reached that point. The argument that police should not be dealing with mental health crises may be the most widely accepted policy point right now.
AG: The carceral state, if we agree that it includes military might, exists to uphold systems of racial, gender, and other forms of oppression, and to enforce grotesque wealth and income inequality and exploitation, both domestically and internationally. I haven’t seen the movements against the two merge, but I imagine I’m missing something. Any thoughts about that?
TR: They are merging, but when movements merge, they necessarily lose a bit of their focus. The police should stop killing Black people for no reason is the clear demand of the Black Lives Matter movement. When that becomes the police should stop killing Black people for no reason, and we should all have health insurance, and capitalism should die, then things necessarily become more complicated.
What ties things together is exploitation, corruption, and a caste system tied to both race and class. But it is hard to envision a completely different organizational system for society and that is what you crash into because it is all connected. So movements need a short-term policy agenda within the current system that reduces harm in meaningful ways and a long-term dream for a society based on people thriving, not largely caught in an interlocking web of oppression. (And fighting about which part of the web is the worst part.)
That said, the deployment of federal agents as secret police, scary as it is, is a sign that the movement, however, fractured it may be, is scaring the most authoritarian elements in the federal government.
Ann Garrison is an independent journalist based in the San Francisco Bay Area. In 2014, she received the Victoire Ingabire Umuhoza Democracy and Peace Prize for her reporting on conflict in the African Great Lakes region. Please help to support her work on Patreon. She can be reached at ann-at-anngarrison.com.