Senators thought the idea of an abusive president with a secret police force was so absurd they allowed it — now they regret it

'The majority of training the agents do is military-style, so they're going to deal with crowds of people like you would see soldiers dealing with crowds in Iraq or in Afghanistan'

Andrew Feinberg
Washington DC
Tuesday 21 July 2020 16:21 BST
Scenes from Portland have shocked the nation this week
Scenes from Portland have shocked the nation this week (Getty Images)

For weeks now, camouflage-clad officers — including members of the United States Border Patrol’s elite Tactical Unit and the US Marshal Service Special Operations Group — have roamed the streets of downtown Portland, Oregon. They are part of a White House-backed push to aggressively confront Black Lives Matter protesters — and to damage the fortunes of the political party that runs the cities where most of the protests happen.

These officers, many of whom spend their days patrolling the desert of the US-Mexico border or manning checkpoints at which most constitutional protections and civil liberties do not apply, have been filmed pulling suspected protesters off the street after emerging from unmarked vehicles, wearing no visible badges or identification.

Portland’s mayor, Ted Wheeler, has called the unwanted DHS presence “an attack on our democracy.” Oregon Governor Kate Brown described the officers’ actions as “a blatant abuse of power,” while Senator Jeff Merkley said DHS and DOJ “are engaged in acts that are horrific and outrageous in our constitutional democratic republic”. And Oregon Attorney General Ellen Rosenblum has filed a lawsuit seeking a restraining order to prevent DHS and DOJ officials from making any more arrests in Portland absent a clear showing of probable cause.

But Acting Homeland Security Secretary Chad Wolf doesn’t care.

Wolf, who has not been confirmed by the Senate to serve in the job he has held since he replaced another Acting Secretary of Homeland Security last November, went to Portland last week to personally oversee the operation. He claims that the officers are targeting “violent anarchists” who he blames for spray-painting graffiti on some federal buildings (while stretching the definition of “violent” beyond all logic).

In a tweet posted over the weekend, Wolf pushed back on Oregon officials’ criticism by calling his officers “patriots” and vowing that DHS “will never surrender to violent extremists on [his] watch”. And in a defiant Fox News appearance on Monday, Wolf rejected the idea that the Department of Homeland Security should work with local elected officials when operating in the cities they run.

"I don't need invitations by the state, state mayors, or state governors to do our job. We're going to do that, whether they like us there or not,” he said.

The “job” Wolf speaks of is that of the Federal Protective Service, a little-known arm of DHS charged with protecting federal buildings. Though the officers and agents in question are operating under the authority of the FPS, the Trump administration is now planning to use that authority to deploy federal personnel to cities throughout the country against the wishes of (Democratic) governors and (Democratic, often Black) mayors under the guise of “restoring order” and creating a culture war wedge that will please his mostly white base.

Paul Rosenzweig, who served as DHS’s Deputy Assistant Secretary for Policy during the George W Bush administration, said the prospect of a president using DHS personnel to police American streets was one that opponents of the agency’s creation raised during debate over the 2002 Homeland Security Act. Rosenzweig recalled that he and other proponents of the bill dismissed such worries at the time.

“There were many who thought that DHS should not be created precisely because they were worried that it would be essentially an internal police force, and there were many like me, who said: ‘Oh, that's absurd. Come on. You know we need a coordinated unity of effort against terrorism, and this is a good way to do it,’” Rosenzweig recalled. “But there’s a lot of justice to that now.”

He added that proponents of the bill, which combined agencies from across the government into one sprawling entity charged with preventing terrorist attacks, ”never imagined” that the US would have as aberrant a chief executive as Donald Trump, or a Senate that is as “supine and subservient” as the GOP-led upper chamber is today.

But one of the nine Senate Democrats who voted against creating DHS, former Wisconsin Senator Russ Feingold, said the possibility of a lawless administration abusing the broad powers granted to DHS was the reason he cast the lone vote against the 2001 USA PATRIOT Act. That legislation expanded the executive branch’s law enforcement and surveillance powers.

“When you see in Portland, people that were trained to handle drug smugglers being used to go after Americans protesting racism, it reminds me very much of the stuffing into the PATRIOT Act, provisions that were really not used for terrorism at all, but were being used for drug cases,” said Feingold, who is now president of the American Constitution Society.

Feingold said both the Trump administration’s actions in Portland and President Trump’s threats to send federal agents to patrol cities with Democratic mayors are part of a “truly dystopian picture” that is worse than anything that was imagined during the George W Bush administration. These actions, he added, are more appropriate for “a completely lawless country without any protection of the rule of law” than the United States of America.

“This is right out there in the open and is a direct affront to American democracy. People should be able to express their political views consistent with the First Amendment and not be afraid of reprisal from the federal government,” he said. “What I was warning about in 2001 was what would happen if we elected somebody who really didn't have any respect for our system of government, and that's where we are today. He [Trump] and his administration are doubling down on the most frightening series of threats that any of us have ever seen in our democracy.”

While Feingold was adamant that what is happening today was clearly foreseeable, those who’ve served in DHS and its constituent agencies say the department’s descent into enabling Trump’s authoritarian impulses has only been made possible by the lack of strong leadership and a strong “rule of law” culture within the department.

Juliette Kayyem — who served as an Assistant Secretary of Homeland Security from 2009 to 2010 and was on the Homeland Security Council during Jeh Johnson’s time leading DHS — said Trump has turned to DHS because Defense Department leadership indicated that they wouldn’t follow orders to use National Guard troops against protesters as was done in Washington, DC last month.

“DHS is the weak link,” she explained. “The White House experienced considerable pushback from the Pentagon after Lafayette Square, but you won’t get that at DHS because its leadership is totally beholden to Trump.”

Yet the idea that DHS has “leadership” at all is one that strains credulity. For over a year now, the department charged with such diverse tasks as protecting the nation’s currency from counterfeiting (Secret Service), maintaining navigation aids on the country’s navigable waterways (Coast Guard), and leading the response to natural disasters such as hurricanes (FEMA) has lacked a Senate-confirmed secretary.

Moreover, nearly every single Senate-confirmed leadership position atop the 360,000-person strong department is either filled by someone serving in an “acting” capacity or by a “senior official performing the duties of” a position they are not legally permitted to hold in an acting capacity.

Rosenzweig, now a senior fellow at the R Street Institute, said the lack of permanent leadership has made it far more likely that those nominally in charge will either tacitly or explicitly give assent to abuses.

“This kind of misuse and abuse is particularly plausible in an agency like DHS, which is weakened by its lack of history, its lack of settled processes, and by the fact that that Trump has systematically denuded it of anybody with any authority to push back at him,” Rosenzweig said. “Trump has systematically [emasculated] anybody who gave him the least little bit of pushback, you know, even people who were totally on his side in terms of results they wanted to achieve.”

He also posited that the situation in Portland is “a particular product of the fact that Trump and [White House Senior Policy Adviser] Stephen Miller have converted DHS into this subservient entity that has no leadership that refuses to do their bidding”.

But Jenn Budd, a former senior US Border Patrol agent who is now an immigrant rights activist, says the use of the Border Patrol for interior law enforcement purpose is something that has long been desired by those who serve on the so-called “green line”. This, despite the fact that Border Patrol agents — unlike police — operate in areas in which the usual constitutional protections that Americans enjoy do not apply and receive very little training on how to deal with crowds in a lawful way.

“The majority of training that BORTAC does, and even the majority of training the agents do, is more military-style training, so they're going to deal with crowds of people … like you would see soldiers dealing with crowds in Iraq or in Afghanistan,” she said.

Budd also pointed to the example of a protester who told Oregon Public Broadcasting that he was seized off the street, taken to a federal building, and searched without a warrant as evidence underscoring the agents’ lack of familiarity with the Constitution.

“That's typical Border Patrol, because down here, they don't have to have a warrant to do anything,” she explained.

And despite their lack of familiarity with Americans’ basic constitutional rights, she said Border Patrol agents are eager to embrace their newfound freedom to inflict themselves on American protesters because doing so as a “national police force” has long been their goal. Because most Border Patrol agents hold what is known as “1801 authority” — which only grants the power to make arrests and enforce federal law but not conduct investigations — rather than the “1811” authority held by Special Agents at other agencies, Budd said the USBP has long had both an agency-wide inferiority complex and designs on a larger role in the nation’s law enforcement apparatus.

“The Border Patrol has always had this elective low self-esteem, that they're not considered to be like, ‘real cops,’ and they're just always pissin’ and moanin’ about how they feel that they should be able to go around and grab anybody up off the streets and do whatever they want,” she said. “And that's what you're seeing out there.”

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