Written by Hasmik Geghamyan, Board Secretary and Interim Demonstrations Coordinator, NLG-SFBA
The National Lawyers Guild – San Francisco Bay Area Chapter urges the immediate removal of federal agents from cities, and condemns the unconstitutional attacks by the federal law enforcement agencies towards protesters demonstrating in Portland, Oregon and elsewhere. We are concerned that the pattern of unidentified agents can pave the way for far-right groups to masquerade themselves as federal agents and go after protesters and activists. We urge all elected officials of Bay Area cities to reject Trump’s move to deploy federal law enforcement officers to their cities. Any presence of federal officers is further incitement of violence on our communities, including the Black and Brown communities that are already overpoliced by state and local law enforcement agencies.
After the horrendous recorded murder of #GeorgeFloyd in Minneapolis by the hands of Minneapolis Police Department, #BlackLivesMatter protests were reignited all over the US and internationally condemning police brutality and demanding an end to systemic racism. In response to these protests, Trump attempted to mobilize the military against the protesters and invoke the Insurrection Act. Trump’s Administration quickly realized that the military was not willing to be deployed against the protesters, and invoking the Insurrection Act further diminished his polling numbers and disclosed some of the fault lines within his Administration.
We know that the U.S. Customs and Border Patrol (CBP)’s Air and Marine Operations frequently uses drones to conduct border surveillance, and the Minneapolis incident appeared to be one of the rare times that they had done so in response to domestic protests. Let’s remember that CBP also deployed drones over protests at Standing Rock between 2016 and 2017. We also know that CBP has been snatching and disappearing immigrants from the neighborhoods, places of worship, shelter and workplace. Many believe that the Department of Homeland Security (DHS) has undergone a “mission creep” phenomenon since its inception in November of 2002, where its mission and authorities have expanded over time—a process carried out cumulatively over the Bush, Obama, and Trump administrations. These agents are acting outside of their intended roles and will continue to do so unless there is a major reduction of their roles or the entire Department of Homeland Security is disbanded.
On June 26, 2020, Trump signed an Executive Order called “Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Activity.” In this order, Trump directed the DHS to “provide, as appropriate and consistent with applicable law, personnel to assist with the protection of Federal monuments, memorials, statutes, or property.” Trump called for the DHS agents to be deployed in places where “statues were under attack” outside of the White House and beyond.
With this Executive Order, Trump seems to have expanded DHS’s mission, challenging local and state authorities’ control. It’s important to note that CBP questionably asserts the power to stop anyone regardless of status, enter into private property, check proof of citizenship, and routinely execute searches without warrants as required by the Fourth Amendment. While other federal agencies are required to wear identifiers when conducting arrests, that is not the case with the DHS. For example, Oregon statute requires state certification that federal officers have received proper training before effectuating arrests under state law before such arrests can happen. Oregon (just like many states) authorizes federal officers to enforce state law. Under Oregon Revised Statutes § 133.245, a federal officer may arrest any person “[f]or any crime committed in the federal officer’s presence if the federal officer has probable cause to believe the person committed the crime.” However, the statute also provides that “[t]he federal officer shall inform the person to be arrested of the federal officer’s authority and reason for the arrest,” and that “[a] federal officer making an arrest under this section without unnecessary delay shall take the arrested person before a magistrate or deliver the arrested person to a peace officer.”
In response to the illegal arrests made by federal agents in military fatigues, New York Representative Alexandria Ocasio-Cortez and Washington, D.C., Delegate Eleanor Holmes Norton will be introducing legislation this week that would require federal law enforcement officials to display the name of their agency, the agent’s last name, and identification number. The bill would also require the Department of Justice’s inspector general to conduct routine audits to ensure compliance with the legislation and audit report to be reported to Congress.
The July 1st internal memo obtained by The Nation instructs federal officers not to disclose the reasons for the arrest, citing “operational security.” The July 1st memo is titled as “Public Affairs Guidance: CPB Support to Protect Federal Facilities and Property” which details a coordinated program of domestic counterinsurgency, in response to Trump’s June 26, 2020 EO on “Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence.” To implement the order, DHS also determined that it is “in the public interest and fiscally sound for the Federal Protective Service (FPS) to partner with other law enforcement agencies to execute the direction of the President.” DHS has begun to coordinate with the Department of Justice (DOJ) and Department of the Interior (DOI) to establish information/intelligence sharing and resource coordination.
We know from this memo and confirmed by The Nation that CBP agents were responsible for the arrest, pointing to authorities under the Protecting American Communities Tasks Force (PACT) which has been tasked to provide an ongoing assessment of “potential civil undress” and property destruction and to address “internal resource allocation and potential surge activity.”
It looks like the memo was intended only for the 4th of July weekend but now it has been used for protests beyond 4th of July.
On Thursday, July 16th, both Trump and Stephen Miller announced that they will be deploying armed officers from the Department of Homeland Security (DHS) on the streets of cities that have seen large-scale protests—specifically, cities governed by Democrats. These announcements continue even today where Trump threatened that he will be deploying the military to places like Chicago and Oakland under the guise that the local authorities are unable to make protesters comply with the law. The Trump Administration is attempting to set a new precedent for militarizing the suppression of protest and brutalizing protesters by testing the scope of PACT under the jurisdiction of DHS.
Federal law enforcement officers have been using unmarked vehicles to drive around downtown Portland and detain protesters since at least July 14, 2020. Personal accounts and multiple videos posted online show the officers driving up or walking to people, detaining individuals with no explanation of why they are being arrested, snatching them off the streets and driving off. Many of these arrests involve officers from a Border PAtrol Tactical Unit (BORTAC) – CBP’s equivalent of a SWAT team — as well as the US Marshals Special Operations Group.
In a DHS fear mongering memo dated on July 16, 2020 from DHS Secretary Chad Wolf on the deployment of federal officers to Portland, Secretary Wolf refers to protesters as “violent anarchists” nearly 72 times while sets up its own version of timeline of events from May 29th to July 15, 2020. There was no mention that the majority of the violence protesters have witnessed over the past 50 days has come from the hands of the police. For example, on July 11, federal agents in Portland shot a 26-year-old Donavan LaBella in the head with an impact munition, requiring hospitalization and reconstruction surgery.
This also comes within the context of the Portland Police and DHS working with fascist and far-right organizers at least since 2018 to coordinate their demonstrations and facilitate their violence against anti-racist and anti-fascist counter-protesters as well as the general public. We are concerned that if this repression is not strongly opposed, challenged and resisted, the DHS and other federal agencies will intervene all around the country on a regular basis, without need or justification — attacking and permanently injuring protesters, snatching activists in unmarked cars, and suppressing protest by lethal force if necessary. NLG Oregon has been providing ongoing legal demonstrations support to the protesters on the ground in Portland. The ATtorney ACLU of Oregon filed a lawsuit against DHS and U.S. Marshal Service seeking to “block federal law enforcement from dispersing, arresting, threatening to arrest, or using physical force against journalists or legal observers.” NLG-SF Bay Area plans to file an amicus brief in support of the lawsuit to
On June 20, 2020, the Guardian was informed by the former deputy assistant attorney general John Yoo that he has been talking to White House officials about his view that the challenge of Obama’s EO relating to DACA can allow Trump to do the same thing with his own executive orders to achieve his own policy goals, which means broader interpretation of presidential powers as a means to suppress basic constitutional rights. Let’s remember that the notorious August 2002 legal memo penned by Yoo was used to justify waterboarding and other forms of torture on terrorism supects at CIA “black sites” around the world. Yoo suggested that Trump could declare a “national right to carry firearms openly” which is in conflict with many states, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.
NLG-SF Bay Area Chapter will continue to closely monitor the presence and unconstitutional attacks of federal agents at these solidarity protests. The pattern of unidentified agents can pave the way for far-right groups to masquerade as them to go after protesters and activists. We urge all elected officials of Bay Area cities to reject Trump’s move to deploy federal law enforcement officers to their cities. Any presence of federal officers is further incitement of violence on our communities, including the Black and Brown communities that are already overpoliced by state and local law enforcement agencies. We urge the immediate removal of federal agents from our cities.