Federal officers in Portland

On July 15, 2020, a video was posted on Twitter with the caption, “These federal officers (?) just rushed up and arrested someone for no reason.” On July 16, Oregon Public Broadcasting published an article titled, Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets. “Federal law enforcement officers have been using unmarked vehicles to drive around downtown Portland and detain protesters since at least July 14. Personal accounts and multiple videos posted online show the officers driving up to people, detaining individuals with no explanation of why they are being arrested, and driving off.” They added, “Federal officers have charged at least 13 people with crimes related to the protests so far, while others have been arrested and released.”

The Washington Post confirmed this narrative the following day, “Federal customs officials said Friday that their agents had detained a demonstrator in Portland, Ore., in a widely seen video circulating online that showed two men in apparent military garb taking a young man wearing all black into custody, defending the apprehension by describing the man as being suspected of attacking federal agents and property.” The U.S. Customs and Border Protection claimed “a large and violent mob moved towards their location. For everyone’s safety, CBP agents quickly moved the suspect to a safer location for further questioning.” Reportedly the officers involved in these types of activities were members of the Border Patrol Tactical Unit (BORTAC) and the US Marshals Special Operations Group.

On July 17, Homeland Security Acting Deputy Secretary Ken Cuccinelli confirmed that federal agents had used unmarked vehicles to detain people. He implied they were arresting people based on them being suspects in crimes. “We will pick them up in front of the courthouse. If we spot them elsewhere, we will pick them up elsewhere. And if we have a question about somebody’s identity… after questioning determine it isn’t someone of interest, then they get released.”

In an official statement, U.S. Customs and Border Protection said, “CBP agents had information indicating the person in the video was suspected of assaults against federal agents or destruction of federal property.  Once CBP agents approached the suspect, a large and violent mob moved towards their location.  For everyone’s safety, CBP agents quickly moved the suspect to a safer location for further questioning. The CBP agents identified themselves and were wearing CBP insignia during the encounter. The names of the agents were not displayed due to recent doxing incidents against law enforcement personnel who serve and protect our country.”

The protests in Portland up to this point had primarily been against local police, though there had been increasing interactions with Federal officers after July 4th. See Roberts Evans’ article at Bellingcat for an extended explanation of how the “Battle of Portland” has developed. Federal officers wearing fatigues and tactical gear made them look more paramilitary and harder to identify given their lack of name tags and less noticeable agency affiliation. While it’s understandable that the Trump administration would like to see civil unrest diminish and there have been multiple crimes committed under cover of night in Portland, the justification for sending this type of Federal security force into a US city is weak. It’s also concerning.

Homeland Security put out a statement on July 16 quoting Acting Homeland Security Secretary Chad Wolf, “The city of Portland has been under siege for 47 straight days by a violent mob while local political leaders refuse to restore order to protect their city. Each night, lawless anarchists destroy and desecrate property, including the federal courthouse, and attack the brave law enforcement officers protecting it. A federal courthouse is a symbol of justice – to attack it is to attack America. Instead of addressing violent criminals in their communities, local and state leaders are instead focusing on placing blame on law enforcement and requesting fewer officers in their community. This failed response has only emboldened the violent mob as it escalates violence day after day. This siege can end if state and local officials decide to take appropriate action instead of refusing to enforce the law. DHS will not abdicate its solemn duty to protect federal facilities and those within them. Again, I reiterate the Department’s offer to assist local and state leaders to bring an end to the violence perpetuated by anarchists.”

DHS then went on to list what the “Department of Homeland Security and its subcomponents of Immigration and Customs Enforcement, Customs and Border Protection, and Federal Protective Service” have dealt with between May 29 and July 15. Of the 88 incidents involving Federal property and Federal officers they mention, the first four nights in their report consisted of 13 incidents of graffiti and a broken window. The next five nights consisted of nightly damage of fences, a broken window, an attempt to remove a window barrier, and the tossing of animal seed at officers. DHS does not give any context as to how things escalated further over time nor do they list violence by Federal officers against protestors.

Secretary Wolf doesn’t mention how a Federal officer shot an impact munition at Donavan La Bella’s head without provocation on July 12. Robert Evans from Behind the Bastards said, “Since the feds got involved with police it’s gotten really brutal. I’d argue we’ve seen more police brutality in the last 50 days from Portland Police Department than anywhere else in the country. It’s brutal but it’s also predictable. There are rhythms to the way police work. It’s become an orchestrated dance with both sides.”

DHS invoked the term “violent anarchists” for 70 of the 88 incidents. DHS does not provide citations to explain how they know that violent anarchists caused all these incidents. That included a “group of over 200 violent anarchists” on July 1, “around 1,000 violent anarchists” on July 4, and “a hostile crowd of about 250 violent anarchists” on July 5. How does DHS know that all those people are anarchists, and not just that, but violent anarchists? We don’t know, nor does DHS provide a definition. Given how carelessly the Trump administration has thrown around words like “antifa” and “anarchist,” I’m skeptical of their claims here.

In May, President Trump declared via tweet that he would be designating antifa a terrorist organization, which is meaningless based on law and statute, as there is no such category. The day before that tweet, he said, “It’s ANTIFA and the Radical Left. Don’t lay the blame on others!” He claimed this despite ample evidence that some people are on the far right or are just opportunists. Being that antifa is a decentralized movement, it’s difficult to call it an organization, though there are networks. DHS using the term “violent anarchists” is problematic. Not all antifa are anarchists, nor all are all antifa or anarchists violent. It’s also concerning that Acting Deputy Secretary Cuccinelli evidently doesn’t know the Federal definition of terrorism. He called anyone trying to injure or kill police a terrorist. While a crime, that alone doesn’t make it terrorism.

Almost a quarter of the incidents in Portland are listed as graffiti created by violent anarchists. Are they calling graffiti an act of violence? In response to Speaker Nancy Pelosi saying, “Unidentified stormtroopers. Unmarked cars. Kidnapping protesters and causing severe injuries in response to graffiti. These are not the actions of a democratic republic,” Senator Ted Cruz said, “Cops are not stormtroopers. Arrests are not kidnappings. ANTIFA terrorists are not protestors.” Is he calling people terrorists for painting graffiti and breaking windows? Definitions matter.

In total, I coded the incidents in Portland listed by DHS as follows, with some incidents fitting into more than one category:

  • Vandalism (41)
    • Graffiti (21)
    • Broken windows (8)
    • Damaging temporary fence or barrier (7)
    • Damaging Federal property (5)
  • Attacking Federal officers via assaulting, throwing, lasers, etc. (26)
  • Throwing objects or launching fireworks against Federal property or officers (19)
  • Pointing lasers at Federal officers or vehicles (8)
  • Trespassing (7)
  • Doxing Federal officers (3)
  • Arson (2)
  • Firing a gun in the air (1)
  • Not enough information to categorize (8)

While there were clearly acts that violated the law, their own data doesn’t paint a picture of a siege by violent anarchists that requires this type of Federal response. Acting Secretary Wolf, as if to make that point, tweeted photos of graffiti (which he has since deleted) from his on-the-ground visit on July 16. In his tweet before, he said, “Our men and women in uniform are patriots. We will never surrender to violent extremists on my watch.” In his tweet after, he said, “These valiant men and women have defended our institutions of justice against violent anarchists for 48 straight days. We will prevail.” That language reminds me of the rhetoric from the fascist government in the movie, V for Vendetta.

Garett Graff wrote an article in June 2020 explaining the unmarked Federal officers on display in Washington, DC. “Few sights from the nation’s protests in recent days have seemed more dystopian than the appearance of rows of heavily-armed riot police around Washington in drab military-style uniforms with no insignia, identifying emblems or name badges.” In 2016, there were over 132,000 civilian law enforcement officers from about 80 different Federal agencies in DHS, which included the FBI, ATF, DEA, and CBP. 20,000 of those were from the Bureau of Prisons, “whose riot units make up a sizable chunk of the officers imported to D.C. and who represent the single largest component of federal officers in the Justice Department—are concerning to see on the streets in part because they’re largely untrained in civilian law enforcement.” In an interview with NRP on July 17, Homeland Security Deputy Secretary Ken Cuccinelli said in reference to Portland, “the federal courthouse there is protected by Federal Protective Services, who are being supported by both CBP and ICE officers and – because of the violence there and the graffiti.” It appears Federal Protective Services has about 1,400 personnel, with ICE having up to 20,000 and CBP up to 62,000.

The legal justification for this interagency group of Federal officers appears to come from existing legal authority, emergency authority because of COVID, and an Executive Order by President Trump. Jenn Budd, a former senior Border Patrol agent, told The Nation, “There are all sorts of interesting powers that CBP, ICE and Border Patrol have under Title 42 pandemic law, which has been triggered with Trump’s Covid-19 national emergency declaration. Even though he claims we should not be in pandemic lockdown, he refuses to lift the emergency declaration because this gives these agencies more authority. All of this is legal because of vague and broad authorities given to these agencies after 9/11.”

On June 26, President Trump issued the Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence. Section 5 of that order states, “Upon the request of the Secretary of the Interior, the Secretary of Homeland Security, or the Administrator of General Services, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security shall provide, as appropriate and consistent with applicable law, personnel to assist with the protection of Federal monuments, memorials, statues, or property.”

On July 1, a leaked CBP memo referred to the order’s directive which said DHS, “shall provide, as appropriate and consistent with applicable law, personnel to assist with the protection of Federal monuments, memorials, statues, or property.” DHS formed a group to assess the situation called the DHS Protecting American Communities Task Force (PACT). DHS also began to coordinate with the DOJ and DOI to share intelligence and coordinate resources. Another memo said the DEA has been given authority to conduct covert surveillance, engage in investigative activity, and intervene as Federal law enforcement officers.

A document provided to Lawfare titled Job Aid gave guidance on domestic intelligence collection of people involved in protests. Carrie Cordero said in her article at The Bulwark, “It is important to understand that these changes are new. America has never had a purely domestic security service.” She pointed out that the 9/11 Commission specifically rejected the creation of a domestic intelligence agency. They said it could lead to “abuses of civil liberties [that] could create a backlash that would impair the collection of needed intelligence.” Indeed, I was thinking today how that would be a likely outcome of DHS being used like this.

The Oregon Attorney General is suing the U.S. Department of Homeland Security, U.S. Marshals Service, U.S. Customs and Border Protection, and the Federal Protection Service and announced a state criminal investigation. The Governor of Oregon, Kate Brown, has told President Trump that she wants the Federal troops of their streets. She considers this “political theater” and an “abuse of power.” The Mayor of Portland, Ted Wheeler, demanded of President Trump, “Keep your troops in your own buildings, or have them leave our city.” The Oregon ACLU has added the U.S. Department of Homeland Security and the U.S. Marshals Service to its lawsuit that alleges police are targeting journalists and legal observers and called the recent Federal action “flat-out unconstitutional.” Acting Secretary Wolf, in response, has said, “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.” Alienating state and local governments while trying to quell unrest is a really bad strategy.

Lawfare wrote a good piece examining the legal aspects of the deployment. For one, CBP can operate within 100 miles of the border, so Portland is within their physical jurisdiction, though there are limits on what they can do there. Nevertheless, “there are a ton of statutory authorities that allow the federal government to use a wide array of federal law enforcement officers to enforce federal law (including destruction or vandalism of federal property). Those authorities don’t usually require officers to stay in their regulatory lanes (for instance, immigration officers can arrest for any federal offense committed in their presence).” Refer to the Lawfare article for more analysis.

Putting legalities aside, there’s also the question of whether these tactics will help with the unrest in these cities. I agree with Officer Patrick Skinner when he says that, “responding to protests about the militarization of local police with even more militarized federal law enforcement is intentionally counterproductive. There are actually more than the two options of doing nothing and doing it exceedingly wrong.” An increased Federal presence isn’t the problem. This type of deployment of Federal officers is the problem.

I was in the Patriot Movement when Ruby Ridge and Waco happened. I knew the guy who mediated Ruby Ridge to a peaceful conclusion. I met Linda Thompson, who created the video, Waco: The Big Lie. I remember the fear felt by the far right and how weird it was to suddenly see the recurring presence of the ATF. These events inspired the creation of the militia movement. These events also led to the Oklahoma City bombing and other acts of violent extremism. When there is Federal overreach of security personnel, it becomes easier to see officers as extensions of the President and US Attorney General. During Waco, that was President Clinton and AG Reno. Today it’s President Trump and AG Barr.

When the domestic security agencies are perceived to have overstepped their authority and mishandle situations, they can lose the public trust and create a backlash that is worse than the purported problem they are tasked with solving. For instance, the FBI changed its standard rules of engagement in use of force for Ruby Ridge. That decision is now seen as unconstitutional. That decision led directly to Vicki Weaver being shot and killed with a baby in her arms. That single act reverberated throughout the Patriot Movement and the far right at the time. The Federal government then tried to cover up and justify their mistakes, which further reinforced their narrative that Federal law enforcement was not to be trusted and was out to get them.

While there are people I respect within Federal law enforcement, I wholeheartedly disagree with the way DHS is handling Portland and believe their approach will escalate the unrest. By doing more domestic surveillance of US citizens, many of whom are exercising freedom of speech and freedom of assembly, less people will trust DHS and so getting data about violent extremists on the far right and far left will likely become harder. Unnamed officers in camouflage with tactical gear with unclear Federal affiliations roaming the streets will make DHS appear as an oppositional force that some have already labeled fascist. That is likely to lead to more violence rather than less. I discourage DHS from going down this path.

On July 20, President Trump said that he’d be sending more Federal law enforcement officers to New York, Chicago, Philadelphia, Detroit, Baltimore, Oakland, and other cities to deal with unrest and that, “In Portland they’ve done a fantastic job.”