This month, President Trump deployed law-enforcement agents from the Department of Homeland Security to Portland, Oregon, ostensibly to protect federal property from protests that began after the killing of George Floyd. But these D.H.S. agents, who wear military-style camouflage, have not identified themselves as law enforcement and have arrested and detained protesters without probable cause, inflaming protests in Portland and other cities, with many Americans furious that the Administration has sent federal law-enforcement officers to fulfill policing functions that are not part of Washingtons governing mandate. On Tuesday, in a tense hearing before the House Judiciary Committee, Attorney General William Barr defended the deployments, arguing that violent rioters and anarchists have hijacked legitimate protests to wreak senseless havoc and destruction. The following day, Oregons governor announced that an agreement had been reached with D.H.S. to withdraw the deployed personnel from Portland; the department responded by saying the agreement was conditional on the safety of federal property within the city.

To talk about the significance of the deployments, and what legal remedies may be available, I spoke by phone on Tuesday with Mary McCord, who served as an Assistant U.S. Attorney for the District of Columbia for almost two decades, and was the acting Assistant Attorney General for National Security, from 2016 to 2017. She is now the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. During our conversation, which has been edited for length and clarity, we discussed who has standing to legally challenge the deployments, the dangers for everyone involved when law-enforcement officials are unwilling to identify themselves, and whether Congress needs to change its approach to legislating to circumscribe future Presidents.

If you were talking to someone who had no idea what was going on in Portland and, to a lesser extent, other American cities, how would you describe it to them?

I think what were seeing in Portland is a very heavy-handed use of legal authorities that were provided to D.H.S. and to the Federal Protective Service but never intended to be used for these purposes. The 2002 [Homeland Security] Act gave a lot of law-enforcement authority to D.H.S. and gave authority to the Secretary of Homeland Security to pull in other agents of D.H.S. as needed to supplement the Federal Protective Service in defense of federal property. I dont think anyone at the time would have foreseen that the Secretary would use that authority to bring Customs and Border Protection officers and such a large swath of officers to essentially engage in local crowd control, protest control, riot control. It was never meant to infringe upon the states sovereign right to exercise the police power within their jurisdiction.

If this Administration is using authorization that no one had envisioned them using, does that imply that the authorization exists, and there is not really any legal remedy, if they are only protecting federal buildings? And, in Portland and elsewhere, it seems like theyve gone beyond that. Is there any legal remedy in the second case?

One thing that is important to remember is there are always going to be legal remedies available for constitutional violations, even if law enforcement is deployed consistent with legal authorities. Some of the lawsuits youre seeing, which seem to be very well founded to me, are alleging First Amendment violations, Fourth Amendment violations, Fifth Amendment violations, because of the way that D.H.S. is carrying out its law-enforcement responsibilities, potentially in retaliation for protected First Amendment activity, or making arrests without probable cause and depriving people of their liberty without due process. Those are constitutional violations that theres certainly legal recourse for.

There are other, more creative theories that are being litigated right now, too, including theories about this type of encroachment on states police power, in violation of the Tenth Amendment, which reserves the police power for the states. There are some theories now, and at least one lawsuit, alleging that the D.H.S. acting Secretary is not properly holding that office, and that therefore any policies or orders that he gives should be unlawful. There are arguments being made, but, strictly speaking, if theyre acting within the confines of what the statute allows them to do, then that would be hard to challenge, because Congress has given them that authority. I think the question becomes, Is that what theyre doing?

The statute thats most frequently cited is Section 1315, and that statute does allow, as I mentioned before, the protection of federal property. That doesnt mean you have to be on the federal property at the time youre asserting law-enforcement ability or law-enforcement function. Lets just assume someone firebombed a federal building, causing serious damage. D.H.S. could pursue somebody they witnessed commit that crime and make an arrest off of federal property. But I think it gets more difficult for a layperson to determine if theyre acting within their authority when you see them far away from federal property. Certainly, we have seen them abducting people off the streets and taking them in for questioning, which appears to be a Fourth Amendment violation and probably other constitutional violations, but also doesnt seem to be tethered to anything that mightve happened at the federal property.

Does that mean theres no legal recourse? No, I dont think it means that. Its just that there will be overlaps of federal authority and state authority where it gets murky about whether they have gone beyond their authority.

If people in D.H.S. are being ordered to do things that have nothing to do with the protection of federal buildings, even if they were authorized explicitly by the President, is there any recourse for that, if theyre not violating peoples constitutional rights? If the statute is being violated, how is that litigated? Is it just up to the people in the bureaucracy to say, No, I wont carry out these orders?

I think certainly thats one option. Whistle-blowers within D.H.S. could say, Were being ordered to do things that seem to us to be beyond the powers that are authorized by Section 1315. They could certainly go through the agencys whistle-blower system in order to report that. And then you could have litigation saying that the agency is acting beyond its statutory authority, so its acting outside accordance of law. It can also be alleged right now. In fact, it is alleged in a case that was filed this week, on behalf of Dont Shoot Portland and Wall of Moms and some other individual plaintiffs. They are making specific allegations of D.H.S. acting beyond its statutory authority. Those are things that can be litigated.

By whom?

Any litigation requires the plaintiff to have standing, which just means an ArticleIII injury that is concrete and particular, not general. Certainly individuals who personally have been harmedthose whove been shot with tear gas or non-lethal bullets or subject to being arrested without probable causehave a basis to sue, not only for constitutional violations but potentially for the agency acting beyond its authority. At least, for injunctive relief. Sometimes organizations, in the case Ive mentioned, are suing, saying their mission and resources are being diverted because of this. Were not able to do the work that we are organized to do. Each plaintiff would have to have standing, and a court would decide if the plaintiffs had standing.

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The Constitutional Case Against Trumps Use of the Department of Homeland Security - The New Yorker

Janine Jackson interviewed legal scholar Marjorie Cohn about secret police in Portland for the July 24, 2020, episode of CounterSpin. This is a lightly edited transcript.

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(Image: Matcha Chai via Sparrow Project, 7/15/20)

Janine Jackson: As we record this show on July 23, demonstrations in Portland, Oregon show no signs of slowing. Protesters demanding an end to racist policing, in the wake ofand even beforeGeorge Floyds murder had been met with what local activists describe as typical aggression from Portlands police department: The indiscriminate firing of tear gas and other munitions into peaceful crowds. Flash-bang grenades. Beatings with batons.

But then came the footage: A man, dressed in black, stands apparently alone on a darkened sidewalk, when two heavily armed men in camouflage walk up on him, hustle him off into an unmarked van and drive off, refusing to identify themselves to observers.

Weve since learned this is part of an orchestrated effort by the Trump administration to deploy federal law enforcement agents to deal, SWAT-style, with what they call violent anarchists. Whats more, they plan to replay those nightmarish scenes from Portland wherever they see fit. As Acting Homeland Security Chief Chad Wolf says, I dont need invitations. Wolf also subsequently described federal agents as arresting demonstrators proactively.

Alarm seems appropriate. Here to help us think about what were seeing is author and legal scholar Marjorie Cohn. Shes professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She joins us now by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.

Marjorie Cohn: Thanks for having me, Janine.

JJ: These street pick-ups, when you first see it, you think its a movie. As I understand it, the line is that these federal agents see someonenot necessarily anyone theyve seen commit a crimethey say they want to talk to that person, have a consensual conversation with them. And then they, the agents, fear for their own safety, so they decide they want to have that conversation elsewhere, like the courthouse, and then, Oh, youre free to go. This wasnt even an arrest at all. Is that legal, or constitutional?

Minority Report, 2002

MC: No, its not. In order to have a legal arrest, you need probable cause to believe that the person committed a crime. And these snatches, by unidentified federal officials in unmarked vehicles, snatching peaceful protesters off the streets, transporting them to unknown locations without informing them of why theyre being arrested, and later releasing them with no record of their arrest, violates the law.

And this proactive arrest that the Department of Homeland Security is intending to carry out, violates the Fourth Amendment, which requires that, as I said, an arrest be supported by probable cause. This reminds me of the movie Minority Report, where theyre trying to predict whos going to commit a crime. There is nothing in the law that allows proactive arrest.

There have been lawsuits filed, and they basically allege violations of the First Amendment, freedom of speech and press; the Fourth Amendment, prohibition on unreasonable searches and seizures; the Fifth Amendment, right to due process; and the Tenth Amendment, which says that powers not delegated to the feds are reserved to the states. And this is what is being litigated now.

JJ: One attorney, Juan Chavez with the Oregon Justice Resource Center, said, Its like stop and frisk meets Guantnamo Bay.

Well, federal law enforcement are permitted to go into states to protect federal property like courthouses and to prosecute federal crimes. But policing protests, just at the letter of the law, goes beyond that function.

MC: Yes, it certainly does. And, in fact, a lawsuit that was filed two days ago, on behalf of the First Unitarian Church of Portland, a public benefit corporation and two Oregon state representatives, alleges violation of the Tenth Amendment, and says that these abductions occurred outside the jurisdiction of federal law enforcement; those abducted were not attacking federal property or personnel, and they werent on federal property at the time that they were abducted. The ostensible, or the stated, reason for these federal goons to go into Portland, and other cities as well, which is happening as we speak, is to protect federal monuments and statues. Trump issued an executive order on June the 26th, saying that his federal forces were going to protect these monuments.

And theres no monuments around where they were. Mark Pettibonewhos one of the plaintiffs in the lawsuit filed by the Oregon Department of Justice against Homeland Security and the US Marshalshe was accosted, he was one of these people who was snatched off the street and then released without any citation. He was taken in this unmarked van to a federal courthouse, the Mark O. Hatfield US Courthouse.

And actually, neither the mayor of Portland nor the governor of Oregon invited or welcomed these federal troops, and last night, its my understanding, that the Portland mayor was tear-gassed when he was standing near this courthouse, doing nothing; he was standing there, and it was his first time hed ever been tear-gassed.

So theyre just going way beyond any legal authority that they might have. And mayors in other cities as wellwho are on Trumps hit list, I guess you would sayare also saying, We dont want federal troops in our cities. Now, these mayors often welcome federal assistance when theyre working cooperatively in drug enforcement or other kinds of criminal enforcement, but this goes way beyond that.

And its calculated by Trump to boost his sagging poll numbers. Hes taking a page out of Richard Nixons law and order playbook, because hes so botched the response to the coronavirus, in fact responsible for thousands of deaths, when hes been in denial about it, and actually stood in the way of really responding in an effective way. So now he is trying to shift the conversation, shift the discourse to anarchists, violent anarchists, left-wingers, Joe Biden would be behind this. And hes going to come in on his white horse with his federal troops and take care of it and restore law and order, but, in effect, hes breaking the law. His troops are breaking the law and creating chaos.

Its interesting, Janine, because why didnt he send in the military? I think theres a reason why he sent in the Department of Homeland Security, Customs and Border Protection troops: Theyre loyal. Theyre also not trained for this kind of thing, either, even if they were legally allowed to be in these cities.

But the Uniform Code of Military Justice provides that service members must obey lawful orders, but they have a duty to disobey unlawful orders. And these people, these troops, the secret military force that Trump has been sending into these cities, or sent into Portlandand Chicagos next on the list, and Albuquerquethese could be reasonably construed as unlawful orders, orders to carry out unlawful actions. And I think its not altogether unlikely that hes worried that military people would resist those orders and refuse to carry them out.

And maybe thats why he has cobbled together this secret paramilitary militia: It has been the Customs and Border Protection, US Marshals, Federal Protective Service, and now theyre going to add the FBI, the ATFAlcohol, Tobacco and Firearmsthe Drug Enforcement Agency, to this list of federal agencies.

JJ: I can see the worry about maybe not using the military because, as you have written about, there was military official pushback after his photo op thing, where he used military officials to clear out the space in front of the church, and there was some indication that, You know, were not going to necessarily have your back.

Now I did though want to say: So were bringing in this cobbled together force that includes Customs and Border Patrol, maybe some of them now deputized into this kind of vague Federal Protective Service. And these people, as you mentioned, arent trained to do crowd control, much less trained to do the kind of de-escalation that would be necessary to protect a protest that is against police.

But what those folks do have a history of, what they do have training in, is rolling up on people and taking them away in vans, when those peoples crime is being undocumented. And thats something that people are reminding, that not only should we be careful about saying these tactics arent American, since the US has done and is doing them in other places. But we also shouldnt say that this has never happened here before, because thats not really true either.

MC: Well, it hasnt happened in this kind of a setting, in this way.

JJ: Right.

MC: But youre right, the Customs and Border Protection agencies are notoriously Im not saying every single one of thembut notoriously racist, anti-immigrant, nativist and very brutal and violent. When they are supposedly enforcing the immigration laws, they kill people and deny them of their rights.

And youre right. They are absolutely not trained in crowd control, which is not in their purview anyway. They have no right to be in the middle of Portland, doing crowd control, where their stated authority is to protect federal monuments. Theyve gone way beyond the purview. And they are actually saying that theyre enforcing the law, where its really the purview of the state authorities to be enforcing state law, and, unfortunately, I think were going to see this expand and escalate throughout the country, as Trump gets more and more desperate to elevate his falling poll numbers.

JJ: Right. And speaking of context, there is something, I agree, especially eerie and frightening about this bundling people into vans footage, and its true that we had seen it in the past sometimes with undocumented immigrants, including people forming bands around them to protect them from being hustled off. But the thing is, we dont want that to be while its especially horrible, we dont want that to be because weve become numb to images of demonstrators being shot with munitions, being beaten with batons, being tear-gassed. And you wrote earlier this monthI saw it on Truthoutabout [how] were not just seeing videos of extremely rare, nearly unique instances; there really is a widespread problem of police abuse of protesters going on.

MC: Yes, there is. And I think its going to get worse. You know, when you think of the image of people being snatched off the streets, peaceful protesters doing nothing illegal being snatched off the streets by people that arent wearing uniforms, and placed into vans: This reminds me of the dictatorships in Latin America, that were supported by the United States, who disappeared people, it was called disappearing people. And they would do it in broad daylight: snatch them, just like this, and put them in a van, and many of them were never heard of since; many of them were killed. This is kidnapping. And they did it in broad daylight, to send a message to other people that, If you dont do what we want you to do, this will happen to you as well.

In the Oregon Department of Justices lawsuit against Homeland Security and the US Marshals, they wrote:

Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is a victim of a crime.

And kidnapping by militia and other malfeasants dressed in paramilitary gear would trigger the lawful right of self-defense.

So what theyre doing is setting up a situation where people think theyre going to be kidnapped and would fight back. And if theyre armed, they could use weapons, and this could lead to killing, it could lead to a horrible situation. This is kidnapping, pure and simple; no probable cause for these arrests.

JJ: It seems like almost a side note, but lets talk for a minute about the concealed identities. You know, its not like these folks were undercover; they didnt blend. So why conceal your identity, except to evade accountability?

MC: Absolutely. And, you know, this opens the door to right-wing vigilantes putting on military fatigues, camouflage outfits, and doing the same thing that these federal agents are doing. And I dont know what Trump would say about that; he has a double standard, of course, when right-wingers do it, then, you know, thats fine, but hes painting Black people as terrorists, hes painting white people as antifa, the white allies in the Movement for Black Lives, painting them with a broad brush, pulling out accusations that these are left-wing Democratic anarchists, violent anarchists, and if Joe Biden is elected, this is what were going to get.

There is a certain critical massand I dont know if its 30% or 40% or whatof people who support Trump no matter what, and its music to their ears, and thats who hes playing to, thats his base, thats who he is relying on to put him in the White House again.

And quite frankly, Janine, what Im concerned about is that this is all a dry run for an election that goes against Trump. He declares martial law, and he uses his federal goons to maintain power. Now, if he tries to use the military, I really suspect that a large number of service members would disobey those orders.

But when he was asked on Fox News by Chris Wallace, whether he would accept the results of the election, he said, I have to see. I have to see? Can you imagine? It depends; if I dont like the result, I may not accept the results of the election. And that, combined with a massive program of voter suppression, is very, very frightening.

JJ: Just finally, Philadelphias District Attorney Larry Krasner says: Try it. Anybody, federal agent or not, committing crimes in my district will be arrested. Rashida Tlaib says, Theyll have to arrest me first if they try to bring this to Minneapolis. So we have some legislation; theres legislation about agents have to identify themselves and their agency. Weve got lawsuits from the ACLU and other folks.

But it seems really clear that people are the power that is driving things right now. So I just want to ask you to talk about what we need to do to actually vouchsafe the right to protest in this country, and where does that power lie? Clearly, we cant only rely on the legal system to protect these rights.

Marjorie Cohn: There are lawsuits being filed in support of the real power, and that is the power of the people.

MC: Its the power of the people, and people are in the streetshundreds of thousands of people in the streets in US cities, and in cities around the worldin support of the Movement for Black Lives, and against police brutality.

And, yes, we cant rely on the legal system, but its a tool that we have to use. And Im very proud to say that my organization, the National Lawyers Guild, is front and center in the middle of legal defense for the protesters, the legal observers who wear those green caps, marked National Lawyers Guild. Theyre not protesters; theyre there to witness what the police are doing. And they have been the target of police brutality and violence.

And, in fact, there is an ACLU lawsuit to enjoin, its asking for an injunction against these federal agents targeting legal observers, and targeting journalists as well, because the last thing in the world that the Trump administration and his goons want are witnesses, are media that are witnessing whats happening, and so theyre going after journalists; theyre going after legal observers.

But there are lawsuits being filed in support of the real power, and that is the power of the people. And weve seen that in the streets for the last 50-some days, since the public lynching of George Floyd, and I think that what Trump is doing is going to exacerbate, or elevate, those protests. Were going to see much more protesting, now that he is committing these illegal atrocities with his private paramilitary force.

JJ: Weve been speaking with Marjorie Cohn, you can find her recent work on Truthout.org along with other outlets, as well as her own site, Marjorie Cohn com. Thank you very much, Marjorie Cohn, for joining us this week on CounterSpin.

MC: Thanks so much, Janine.

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'Trump's Troops Are Breaking the Law and Creating Chaos' - FAIR