The rule of law matters most in times of crisis.
Today, America is in crisis along multiple fronts and instead, we may be sliding into unauthorized and unaccountable federal policing and domestic security activity.
This is the story of what has happened.
On May 25, George Floyd was killed by police officers in Minneapolis. In the weeks that followed there were public protests across the nation, as well some concurrent acts of violence.
During the period, federal law enforcement personnel were deployed robustly—purportedly to protect federal property and restore public safety—in the nation’s capital and elsewhere. Over 15 different federal government agencies or components, including multiple agencies across the Department of Justice and the Department of Homeland Security (DHS) were reported as taking part in the federal law enforcement response in the District of Columbia in May.
This past week, DHS personnel, including officers of the Customs and Border Patrol (CBP), were deployed by the Acting Secretary of Homeland Security to conduct domestic law enforcement activities in Portland.
But policing protest activity, in particular, requires a special sensitivity to and protection of constitutional rights. And the reports out of Portland indicate that DHS has provided an uncontrolled and over-militarized response.
Moreover, these assignments of federal officers to control domestic unrest may be part of a broader slide toward a federal domestic security expansion that has neither been announced, nor vetted either by the citizenry, the Congress, or the courts.
The unfolding situation in Portland as it relates to DHS, in particular, has been brewing for some time due to a combination of inherent insufficiencies within DHS’s internal controls and inappropriate political pressure.
First, let’s look at the politicization. During the campaign of 2016, candidate Trump ingratiated himself to the Border Patrol union, previewing a potential politicization of that workforce. In a spring 2019 visit with border agents at Calexico, California, Trump indicated a willingness to use his pardon authority if CBP refused to allow migrants U.S. entry pursuant to existing asylum laws.
Meanwhile, the president has marginalized the FBI while pivoting to DHS to carry out his “law and order” agenda. Trump has fired, removed or pressured to resign nearly every Senate-confirmed leadership official in DHS, leaving the department with inadequate leadership relative to the size, budget, and broad scope of responsibilities. Last year, Garrett Graff and I warned that DHS’s trouble stemming from internal public corruption, inadequate training and lack of transparency makes it more susceptible to inappropriate political pressure.
In May, as a result of a year’s worth of research and consultation with former DHS senior officials, former legislative staff and outside experts, I put forth a report arguing that DHS requires immediate congressional attention to improve its internal oversight and accountability mechanisms. In particular, the report called attention to the need for modernized and department-wide guidelines for conducting law enforcement activity, as well as updating the department’s mission, which has become wildly out of sync with its day to day activities.
In short: The extent to which DHS is becoming almost a rogue arm of federal law enforcement should not surprise anyone who has followed the department for the last four years.
But the expanding federal domestic security presence may not be limited to DHS.
In connection with the May protests in the District of Columbia an associate deputy attorney general approved a request from the acting administrator of the Drug Enforcement Administration (DEA) for the temporary authority to “enforce any federal crime committed as a result of protests over the death of George Floyd.”
This memo, first reported and published by Buzzfeed, could be subject to ongoing reauthorization. The policy authorizes DEA to enforce other criminal laws outside of its usual remit of drug enforcement by supplementing law enforcement efforts of other organizations for the purposes of public safety. This expansion alone, under the circumstances, would be unobjectionable. But the memo went further. It also authorizes DEA to “conduct covert surveillance” and “share intelligence” as part of its supplemental activities.
Those provisions open the door to DEA agents conducting physical surveillance without identifying themselves, using technical surveillance techniques over crowds of individuals without suspicion of wrongdoing, and otherwise collecting intelligence—covertly—on individuals purposefully exercising their First Amendment rights.
And this sort of clandestine activity clearly crosses the line into domestic security activities.
Most law enforcement activities do not require covert activity. And when undercover activities are needed, they are performed according to strict rules and procedures and approvals. These approvals are given on a case by case basis.
In the normal course of events, law enforcement activity is conducted openly: agents identify themselves when they conduct interviews, execute searches, or make arrests.
Why should law enforcement need to use covert means to protect public safety in the context of public protests?
Indeed, it is hard to imagine a scenario where covert surveillance would be necessary in such a context. The United States of America is not Colombia and the people protesting the death of George Floyd are not sicarios who track down government agents for retribution.
The DEA memo is also missing an important qualifier: That surveillance or investigative activity would not be permitted solely on the basis of First Amendment activity.
That simple proviso is the key between allowing police or federal authorities to use investigative techniques inside the United States for legitimate reasons versus allowing the creation of an unfettered domestic security apparatus. It’s the key to requiring that there be some other reason—such as an indication of criminal activity or foreign intelligence threat—to apply the weighty powers of the federal government against an individual in contradiction of his or her constitutional rights.
Existing attorney general-approved guidelines include this very proviso, prohibiting conducting investigations solely for the purpose of monitoring First Amendment activity. Congress added a similar requirement to the Foreign Intelligence Surveillance Act, ensuring that surveillance and searches conducted for foreign intelligence purposes could not be based solely on First Amendment activity.
If we were going to take the most generous possible interpretation here, we might suggest the following:
Given Attorney General Bill Barr’s public statements regarding purported violent Antifa activity concurrent with legitimate protest activity—and the president’s public statements about domestic terrorism—that DOJ is increasing its domestic terrorism investigative activity against that or other networks of affiliated individuals who are causing real damage and committing acts of violence.
But even if you took that extremely friendly view, doing so would not require a special order to the DEA. Such activity would appropriately be conducted under the attorney general’s standing guidelines governing FBI domestic operations and would take place in accordance with internal FBI policies and procedures.
It is important to understand that these changes are new. America has never had a purely domestic security service.
After September 11 there was a robust debate in this country over whether or not one should be created. The 9/11 Commission specifically rejected the notion that creating a domestic intelligence agency was a good idea.
Why? The reason here is vitally important: The Report argued that the creation of such an organization could lead to “abuses of civil liberties [that] could create a backlash that would impair the collection of needed intelligence” to combat actual national security threats.
Read that again: Standing up a domestic security service would lead to “abuses of civil liberties [that] could create a backlash that would impair the collection of needed intelligence” to combat actual national security threats.
Instead, Congress provided additional resources to the FBI, and Robert Mueller directed an organizational transformation to strengthen the Bureau’s national security division, especially its counterterrorism activities. The FBI went from prioritizing mobsters to prioritizing terrorists.
The post-9/11 government structure provided for:
- A U.S. intelligence community focused on combatting foreign threats to national security
- An FBI tasked with domestic counterterrorism and counterintelligence activities, and with investigating domestic terrorism
- And a newly created DHS, which was intended to coordinate physical security and a wide array of border, immigration, and transportation security activities. DHS has also been tasked with addressing threats that have developed more substantially since its creation, such as cybersecurity, and presently, election security.
The United States should not feel compelled to stick with the post-9/11 structure without sufficient attention to modernizing the government’s ability to address a changing threat environment. But the changing threat environment does not call for a federalized police force or internal security service.
Yet among the agencies that have been deployed to conduct physical security and law enforcement over the past two months are various components of DHS. Perhaps an unintended consequence, DHS is now the organization with the largest number of federal law enforcement officers of any government department.
It should be obvious, but in case it needs saying out loud:
The reason to not have a domestic security service is rooted in aversion to creating anything that might have the potential to morph into a Stasi-like organization.
Because a domestic security service is incongruous with the exercise of constitutional rights.
But it’s not enough just to avoid the active creation of a dedicated domestic security service. We must also guard against the unintentional authorization of federal domestic security activities due to neglect, or bureaucratic chaos, or the political ambitions of appointees trying to curry favor with a proto-authoritarian president.