Benjamin G. Davis, a professor of law at University of Toledo College of Law in Toledo, Ohio discusses his alarm at the escalating use of force by the U.S. Government against it's citizens...
Here we go again.
Some men looking all virile in camo and wearing masks or in black outfits it seems are grabbing people off the street and hauling them into vans. In Portland and in Columbus, Ohio. And these camo men are apparently on their way to Chicago.
Everyone is tight-lipped about who these people are but there seem to be unofficial leaks that these persons are Border Patrol Tactical Units.
I do not know who these people are. What I do know, as an ordinary citizen watching this debacle, is that these are people exhibiting thuggish behavior.
They are firing tear gas IN A PANDEMIC at peaceful protestors, I saw that instead of engaging with an elderly citizen who was not posing a threat they just started beating on him, and they grab people and shove them in unmarked vans brandishing serious weaponry.
If they are not part of the forces of order, then it would seem to me that the Mayor or Governor in that particular state could have the police arrest these people for disturbing the peace, assault with a deadly weapon, and conspiracy and haul them into state court to be arraigned.
If they are part of the forces of order but not part of the state forces of order, then – guess what? – the Mayor or Governor in that particular state could have the police arrest these people for disturbing the peace, assault with a deadly weapon, and conspiracy and haul them into state court to be arraigned.
These mystery people would then have to reveal to a judge the basis for their being federal officers in order to invoke the federal officer removal act to have the case removed to the federal court in the district. And that would also be a first step toward knowing who exactly these people are.
Now, I have seen a picture of the Acting Head of the Department of Homeland Security seeming to exhort “his troops” in someplace somewhere and the people he is exhorting sure seem to have that clothing on that I have seen in the videos of these mystery men grabbing people off the streets. They were not wearing the black outfits that I saw in the videos, so I am not sure just who the folks in the black outfits in the streets of Portland are. Maybe our government could enlighten us.
I understand that within 100 miles of a border, the border patrol folks have some latitude. Heck, I was driving in Arizona one time and came to a stop at a checkpoint. But, at that checkpoint they were not deploying teargas IN A PANDEMIC and at least while I was there, they were not beating people with truncheons.
Now I understand the Attorney General of Oregon and the ACLU have filed suit against someone with respect to this. That is fine. But, I really think the obvious thing to do is for the police to arrest these people when they come into a town. Then, they can prove to a judge the legality of their acts.
And I think they might have a little difficulty proving that legality.
I noted this post at justsecurity.org which has a long quote of Attorney General Barr about sending federal troops into St. Croix at one time in 1989 when he was head of the Office of Legal Counsel:
Barr: We started quickly looking at the legal books. What authority do we have to go in there and start enforcing the law in St. Croix? We looked at some statutes, and we finally decided that without Presidential authority we could send down law enforcement people to defend the federal function. That is, we said, “People are interfering with the operation of our courts” and so on. I said, “We can send people down to defend the federal function, keep our courts open, and if they see any crime being committed in front of them, then, as law enforcement officers, they can make the arrest.” Our object was just to get federal law enforcement down there and play it by ear. Technically, we couldn’t send them down to—
Question: Did you consider interference with the mail as a basis?
Barr: Yes, we had a whole list of things like that, interference with the mail, interference with the courts. But basically we were claiming that there was breakdown, civil unrest that was interfering with the federal function. We found these old cases that said the federal government could go in there. This was without declaring martial law.
So, no doubt there was a very compliant Office of Legal Counsel opinion that remains secret which explained why all this was fine.
Does this sound familiar?
I fully expect that there is currently an Office of Legal Counsel Opinion that remains non-public that has some brilliant legal analysis by some ambitious person at the Department of Justice bucking for a promotion or a federal judgeship from the sitting President that explains in detail why all this is ok.
The way this would work is that someone at say the Department of Homeland Security would send over a set of really dire facts (rampant lawlessness, horrendous, etc etc) and ask the Office of Legal Counsel to write a legal opinion about what they can do. In fact, there might be back and forth between DHS and OLC or someone above about the “fine-tuning” of the factual predicate for the legal analysis.
And, then like a rabbit from a hat, the OLC opinion will emerge which gives a blank check or close to a blank check for that set of facts.
Does this sound familiar?
Now given that the federal officers in this space would have their maybe Border Patrol training only and not really much crowd control training, they would in the prescient words of Attorney General Bar above “play it by ear.”
We saw the first version of this approach in the Lafayette Park Presidential Photo-op debacle a few weeks ago. And, of course, what happened is what always happens when there is no clear training and no clear rules of engagement for these kinds of forces.
What happens is force drift. Meaning that increasing levels of force are seen to be reasonable and there is an almost unstoppable drifting toward the use of more and more force. Absent clear rules of engagement and absent strong leadership providing discipline – both of which are seriously lacking today – force drift is inevitable.
And, so when someone finally is killed in these interactions (maybe a black man also named George Floyd anyone?), there will be a case and the issue will be whether that federal person was operating in a reasonable manner within the scope of his authority. And given the vague guidelines, the courts will be loathe to hold the officer accountable as “he could not have known” and of course” he feared for his life” and he will walk.
Later like the lawyer at OLC we can expect that he will get some promotion or sinecure. Or he might be helped in some Congressional campaign he launches. All as a reward for his services rendered.
Does all this look familiar?
It should because it is the same scenario of the torture after 9/11. In fact, John Yoo is back!
Now it is possible that some low-level lawyer at DHS was tasked as an urgent matter to prepare an analysis of how this kind of intervention was to be done. And that person did it – maybe overnight as it had to be the Secretary’s desk at 9 am the next morning. Then that legal analysis which will be found out to be seriously flawed will float through the interagency as no one dares murmur a critical thought about it because, you know, these are please-the-boss ambitious types who can read the tea leaves. You know, the true believers. But not in the Constitution.
This would be like when a low-level JAG at Gitmo was put under pressure to quickly write the first legal analysis on the interrogation techniques. And when that analysis seemed to allow rough stuff that would not be labeled torture and went through the chain of review, no one along the way at Southern Command raised or should I say dared raise a murmur of concern about the bullshit analysis. It took the TJAG’s to ask for a full legal review by the Legal Advisor to the Joint Chiefs of Staff. But, on instructions of the General Counsel the Chairman of the Joint Chiefs of Staff nixed that review.
And, then of course, when they were revealed we were able to see the ultimate bullshit torture memos that the OLC had done.
It is all the same. And one of the reasons that people need to be prosecuted. So that they know that they can go to jail for doing these horrible things. Even if they have a President who would pardon them. Not for state law crimes. Not for state law crimes.
Under a court order, the police are limited with respect to getting in the way of journalists and legal observers in terms of control of the demonstrations in Portland. This means the order is not an impediment to the police arresting these camo dudes if the police have probable cause. I can not see why the police would not find probable cause against unidentified no dudes shooting tear gas, beating people, and kidnapping people in unmarked vans in Portland. So, police, do your job of protecting and serving the people. The dual sovereignty concept of our federalism that Madison touted as a double protection of the rights of the people needs to be put into effect here. If the Governor calls out the national guard the problem is that the President might nationalize the local national guard. Since the President may be at the heart of this repression, the state police should be the primary force to check and possibly mate this thuggery.
Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.
Suggested citation: Benjamin G. Davis, Force Drift: Thuggery in Portland with Toxic Mission Creep using Mystery Men, JURIST – Academic Commentary, July 23, 2020, https://www.jurist.org/commentary/2020/07/benjamin-davis-force-drift/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.
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