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Lawmakers question DHS crackdown tactics in protest cities

But Trump’s use of federal agents in Portland and other cities may be perfectly legal, experts say

Federal security forces in riot gear block a street near the White House on June 3 amid protests against police brutality following the killing of George Floyd in Minneapolis.
Federal security forces in riot gear block a street near the White House on June 3 amid protests against police brutality following the killing of George Floyd in Minneapolis. (Bill Clark/CQ Roll Call file photo)

The military tactics utilized by Homeland Security officers to control protesters in Portland, Oregon, and other cities are being decried by congressional lawmakers and investigated by federal watchdogs.

But some legal experts who have long tracked how the department fulfills its immigration policies say the tactics shouldn’t come as a surprise. They also said some of the moves may be perfectly legal.

The most recent controversy over federally deployed tactical officers started after DHS responded to Portland protests over police brutality by sending agents from Customs and Border Protection, Border Patrol Tactical Unit, Federal Protective Service, and Immigration and Customs Enforcement. They joined agents on the ground from the Justice Department’s U.S. Marshals Service.

Videos soon surfaced of unidentified federal agents using clubs and firing rubber bullets and tear gas at protestors, many of whom were whisked away in unmarked vehicles. On Thursday, the inspectors general of the Justice and Homeland Security departments announced they would work together to launch investigations into how the government responded to the protests in Portland and those outside the White House last month.

The investigations stem from requests made by the leaders of a trio of House committees who have criticized recent “use of violent force” by federal authorities.

“Many of these federal agents are dressed as soldiers, driving unmarked vehicles and refusing to identify themselves or their agencies. They have occupied the streets of American cities against the express wishes of state and local officials,” Judiciary Chairman Jerrold Nadler, Homeland Security Chairman Bennie Thompson and Oversight and Reform Chairwoman Carolyn B. Maloney said in a statement Thursday.

“Nearly everywhere they have deployed, their presence has increased tensions and caused more confrontation between demonstrators and police. And they have done all of this on the flimsiest of legal pretext,” the statement continued.

But the federal government does have the authority to send its agents to investigate federal crimes and arrest offenders, even when it’s against the wishes of state and local officials, according to Harvard law professor Andrew Manuel Crespo.

“The Constitution is clear that whenever there are conflicts between state and federal authority, federal authority is ‘the supreme law of the land,’” Crespo said by email. “The real question, then, is not whether the state officials want the federal government there. It’s whether the federal agents are complying with federal law.”

The Trump administration announced earlier this week it would soon deploy agents to Chicago and Albuquerque as part of “Operation Legend,” a joint initiative between federal and local law enforcement agencies to combat violence and crime.

Rep. Debbie Lesko, a member of the Homeland Security Committee, defended the deployments, based on what is happening in Oregon.

“It was the right call on Portland because they were protecting a federal courthouse, and what’s going on there has been going on for, what, 55 nights now,” the Arizona Republican told CQ Roll Call on Friday. “It was obvious that the local law enforcement was not successful in protecting it. So they had to send in federal.”

But another Republican, Kentucky Sen. Rand Paul, has pushed back on Trump’s efforts.

“We cannot give up liberty for security. Local law enforcement can and should be handling these situations in our cities but there is no place for federal troops or unidentified federal agents rounding people up at will,” Rand said in a tweet Monday.

Some legal experts who have long tracked tactics employed by ICE say it’s no shock that DHS officials are using unmarked vehicles and going after protestors.

“What’s happening in Portland is just the latest example of how far federal immigration authorities will go to suppress social movements,” said Alina Das, a professor at New York University School of Law.

“Soon after President Trump took office, immigrant activists who dared to criticize federal immigration policies were abruptly arrested, jailed and deported,” she said. “Multiple leaders and members from prominent immigrant rights organizations were targeted.”

Representatives from DHS did not return repeated requests for comment on the role of its tactical officers, but Trump, in a news conference Wednesday, said, “Frankly, we have no choice but to get involved.”

“We must remember that the job of policing the neighborhood falls on the shoulders of local elected leadership. Never forget that. When they abdicate their duty, the results are catastrophic,” he added.

Congressional response

In addition to calls for investigations, lawmakers also are trying to use the power of the purse to rein in Homeland Security efforts.

Earlier this week, Oregon Democratic Sens. Jeff Merkley and Ron Wyden introduced an amendment to the annual defense policy bill that would limit crowd control powers of federal forces and require them to wear clearly marked identification. It would also require involved agencies to report on the numbers of personnel deployed and their purpose. The amendment, however, was rejected by Republicans.

But in the House, concerns over the use of DHS tactical forces may jeopardize chances of the Homeland Security spending bill from getting a floor debate before the August recess. The leaders of the Congressional Progressive Caucus on Wednesday asked House leadership to pull the bill from a massive spending package the chamber is expected to debate next week.

“Without the inclusion of additional necessary reforms, we believe that the Democratic Leadership should not attempt to pass Homeland Security funding by tying it to essential coronavirus research, education, and housing funding,” Reps. Pramila Jayapal and Mark Pocan, who co-chair the caucus, said in a statement.

Another legal issue raised by critics has been that none of the people calling the shots at DHS — including Chad Wolf, who heads the department — have ever been confirmed by the Senate. Since Trump took office, DHS has endured multiple leadership shake-ups that have left several positions vacant. In addition to Wolf, the people who head CBP, ICE and USCIS are all serving in “acting roles.”

“The fact that it has insufficient oversight and internal controls and accountability mechanisms within the department, relative to the huge law enforcement capacity that it has, makes it be more susceptible to inappropriate political influence,” said Carrie Cordero, a senior fellow and general counsel at the Center for a New American Security.

Ellyn Ferguson contributed to this report.

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