The “Ratchet Effect” in Real Time
The Trump administration says that gangs and violent anarchists are out of control, and that governors and mayors aren’t doing enough to stop them. Accordingly, they’re sending in the feds, and we are witnessing Robert Higgs’s “Ratchet Effect” in real time. Federal Government is using the latest crisis to justify new incursions on our librties.
Patrick Eddington, a research fellow in homeland security and civil liberties at the Cato Institute, says that the recent DHS action in Portland is an experiment on unwitting human test subjects. The preliminary results seem to have emboldened the administrative state to push forward with “Operation Legend” — an aggressive federal law enforcement action in cities across the country. President Trump says that an alphabet soup of agencies — led by the DOJ — has “no choice but to get involved.”
“The FBI, ATF, DEA, U.S. Marshals Service and Homeland Security will together be sending hundreds of skilled law enforcement officers to Chicago to help drive down violent crime,” said Trump on Wednesday, before Attorney General William Barr took to the podium to justify his deployment of anti-gang task forces engaged in everything from a ramped-up War on Drugs to counter-protests against Black Lives Matter and related groups.
Eddington positions this rhetoric squarely within the “American authoritarian tradition” — running through the Alien and Sedition Acts of 1798, Lincoln’s suspension of Habeas Corpus during the Civil War, Wilson’s Espionage Act, FDR’s Japanese internment, the HUAC… the list goes on.
Most disturbingly, we have seen the past two administrations suspend the Posse Comitatus Act — the 1878 Law preventing government from using soldiers to enforce ordinary law — in progressive increments. First, President Bush’s 2002 Homeland Security Act allowed the DHS to deploy federal agents to protect federal buildings. Next, Obama’s 2012 authorization of the National Defense Authorization Act redefined U.S. territory as a battlefield and legalized indefinite detainment of American citizens without access to a trial or attorney.
We now have DHS officials in military uniform taking American citizens into unmarked vans by without clear probable cause.
Leftist mayors and governors who now complain about the use of unconstitutional force against protestors in Portland were silent during the Obama years. Are the chickens coming home to roost?
Regardless, libertarians must be vigilant in standing against unconstitutional violations of due process and the separation of powers.
Transcript
The “Portland Experiment”
Bob Zadek: Welcome to The Bob Zadek Show. Thank you so much for listening this Sunday morning. We are the show of ideas, never once the show of attitude. This morning we get to explore some core political issues.
Putting aside whether you appear on the left or right spectrum, would you prefer to have no states and one federal government? Or, would you prefer to have our system of federalism as given to us by the founders, where a lot of our decisions are made at local and county levels as opposed to Washington?
Irrespective of how you answered that, would you feel more comfortable with a federal police force and criminal law dictated by Washington? The topic this morning is what I’d like to call the “Portland experiment.” Yes, there is an experiment going on, but not an experiment that would make you particularly happy. It is a test of how far Washington can push the envelope and extend federal police power into localities, cities, and counties. This will directly affect how much freedom you get to exercise as an American.
I’ve asked Pat Eddington to join us this morning. Pat is a research fellow at Cato. He has spent ten years plus on the Hill as a senior policy advisor for Representative Rush Holt, a Democrat from New Jersey, and he has researched extensively on the areas of homeland security.
Pat will help us understand the real experiment going on in Portland. What’s behind it? How did we get here? Where are we about to go with the Portland experiment? Pat, welcome to the show this morning.
Pat Eddington: It’s great to be with you, Bob. Thanks for having me on.
Bob Zadek: You have written extensively and studied even more extensively the mission creep of homeland security — I am describing all of the alphabet soup of agencies that are engaged in exercising one form or another of police power under the guise under the protective umbrella of protecting the homeland. Even the phrase is scary to me.
So let’s start with the core issue. I mentioned in my intro that the Federal government is experimenting with a very new approach to government in Portland, which is somewhat insidious. Tell us about the experiment that is being undertaken by the Federal government in Portland and soon, coming to a city near you.
Pat Eddington: I certainly agree with your characterization. I wrote a blog post on the Cato blog on July 21st entitled “The People of Portland: DHS’s Involuntary Human Test Subjects”. My point in that very provocative headline was to highlight the fact that this radical deployment of border patrol, immigration and customs enforcement personnel into an American city uninvited, is unprecedented. Neither the mayor nor the governor of the state asked for federal intervention here.
In essence, it is an effort on the part of acting DHS secretary Chad Wolf in coordination with the Attorney General William Barr with the Department of Justice to essentially set a precedent whereby the federal government, without emergency declaration on the part of the state governor, simply go and insert themselves into a particular situation in which lawful first amendment protected protest activity has been ongoing in Portland now for almost two months. Joanne Hardesty, who is a city commissioner in Portland, said at a recent news conference that what is making more people come to the street every night now is the brutalization that is happening to regular community members at the hands of Portland police and these federal agents.
If you take a look at the chronology of events in Portland, by the end of May and certainly by mid-June, an awful lot of the protests had actually begun to peter out. You were beginning to get a level of responsiveness from city officials. The existing Portland police chief stepped down because of controversial policies including what appears to be an unjustified shooting.So the situation was actually on a glide path towards stabilization, if not some level of resolution.
And then we had the President on June 26th issue his executive order called, “Protection Monument.” It was within just a few days after that we began to see this massive deployment of DHS personnel. I should indicate that they clearly had this in mind for quite some time because in response to questions from Senator Kamala Harris, after a particular Senate hearing, on June 5. DHS and related personnel and CBP were going to be deployed around the country.
The total number of CBP personnel involved in these operations, not just in Portland, but either actively on the ground or in other cities now or preparing to go is 2,174 personnel from CBP. And the total number of CBP assets, aircraft and vehicles here apparently include 38 helicopters, eight six-wing aircraft, four drones, one bear cat, 15 marked vehicles and 52 unmarked vehicles, as well as two ATVs and three vessels. And so this is just a glimpse essentially of the utilization of CBP personnel. Now I should point out that that 2,174 number represents about 10% of the CBP. So it’s a massive use of CBP agents. They are looking to deploy these folks in Chicago, Ohio, Clinton area, Spokane, Tucson, Michigan, and Texas. This is a countrywide effort by DHS.
Federal Criminal Law: A Historical Expansion
Bob Zadek: There is no precedent for it. No federal official is going to Portland to protect the border. We have a very important history of federal criminal law, typically. Since the founding, it was very clear that the founders had no concept and no thought of any federal crimes. Criminal law was always the province of states. Criminal law is a function of local mores. Putting aside the broad constraints of the constitution, criminal law has always been the province of the states. Looking at the history of federal criminal law, can you name the three original federal crimes in the Constitution?
Pat Eddington: I have to confess, I’m not an attorney myself, but I think treason, bribery, and high crimes and misdemeanors are some specific things mentioned with respect to the impeachment provision located in the country.
Bob Zadek: Specifically, treason, counterfeiting, and piracy. In 1807 Congress passed the Insurrection Act, which invited Federal forces to go into a locality to quell an insurrection as defined in the statute. Then we race ahead to 1878 and we have the Posse Comitatus Act. After the civil war the federal government enacted legislation which prohibited the federal using the military to enforce criminal law.
Then we raise forward to 2002. The Homeland Security Act, which snuck in a provision that allowed the President to send in federal troops to protect federal buildings and monuments. That is the intersection between the feds enforcing federal criminal law and the use of the military. We have been pretty stingy in inviting the feds to create a federal police force either in behavior or in fact.
Pat Eddington: Some of that additional historical context is useful. The basic idea that the founders generally wanted states and localities to handle criminal law and criminal matters was certainly true up until about the beginning of the 20th century. It really begins to become much more of an issue as Congress begins to pass more and more laws asking federal agents to get involved in investigating specific crimes. The first federal police force was in fact the Secret Service. In the wake of courses of the assassination of President Lincoln and then as the decades went on, Secret Service was heavily involved in dealing with counterfeiting.
But they also, through congressional enactment, took on the issue of protecting the person of the President. If you take a look at the first 10 years of the 20th century, you see a fundamental shift begin to take place whereby under president Theodore Roosevelt the Secret Service is used extensively for domestic surveillance against a number of president Roosevelt’s political opponents. Because a lot of these investigations were essentially predicated upon alleged congressional corruption and things of this nature. A lot of his congressional opponents were really reluctant to try to take him on to begin with. It wasn’t until the fall of 1907 when the Secret Service was utilized by the Department of Navy to investigate a young naval officer. And this was done at the request of the wife of the Naval officer.
They believed the husband was involved in an extramarital affair and they wanted the secretary of the Navy to investigate whether that was the case. Back in those days that would constitute a big problem for a naval officer and something that they could potentially be separated from the service for. So the secretary of the Navy asked the Secret Service to essentially conduct this investigation, and not shockingly, it did not stay secret. And when this came out in the late fall and early winter of 1907, it resulted in a massive human cry coming out of Congress and in the press and it led the Congress to legislate in early 1908 a specific prohibition on the use of the Secret Service for anything other than the protection of the person of the President and counterfeiting operations.
President Roosevelt’s response to that was to go to his Attorney General Charles Bonaparte and tell him to create an entire core of agents to go out and do investigations on these other issues that he was concerned about. That is when the Federal Bureau of Investigation came into existence on July 26th, 1908. The FBI’s role was expanded during WWI, when President Woodrow Wilson got the Congress to pass things like the Espionage Act, Trading with the Enemy Act, the Food Control Act — the FBI and the Secret Service were massively expanded to investigate Americans on the basis of those particular statutes.
So that’s where we get this issue of the creation of the de facto federal police force. That’s really what the FBI became. Today the FBI remains basically a domestic intelligence service. That’s what tends to get the FBI in an enormous amount of trouble all the time. They wind up spying on people and going after people for political reasons rather than finding people guilty of espionage or things of that nature. Once the FBI comes into the picture the federal police force really expands.
Bob Zadek: A political observation is that there is a cause and effect in the massive growth of federal criminal law, something which was totally foreign to the founders. If you are an elected official, a member of the legislature, you never lose votes by creating another federal crime. It is the low hanging fruit of politics. Every time you take the stump and you rail against some kind of misbehavior, and you sponsor legislation to punish the miscreants who are violating some standard that you believe is inappropriate, you will gain votes. It is an easy way to gain points with your constituency by inventing and then passing another federal criminal statute further eroding the traditional and important federal state relationship in so far as criminal law is concerned.
Exploring the Legislative Basis for Federal Involvement in Portland
Bob Zadek: So now we have Portland today. Now we have one or more agencies tasked with protecting the border that are sent to Portland for a mission, having nothing whatever to do with protecting the border or immigration or anything remotely like that. What is the legislative basis and how does the administration get its political cover to do this? How did it come about and what have you written about so passionately and with so much data to support it? What is the actual experiment going on in Portland? What is the basis for your conclusion?
Pat Eddington: It’s important to realize that when the President issued his Monument Protection executive order on June 26th, there was already a specific section of the 40 US code 1350 on the books — the law enforcement authority of the Secretary of Homeland Security for the protection of public property. This is a direct outgrowth of the creation of the department of Homeland security through Homeland security after 2002. The scope of the statute in terms of what it gives the secretary to do is quite sweeping.
While engaged in the performance of official duties and officer or agent designated under the subsection A enforce federal laws and regulations for the protection of persons and property can carry firearms, make arrest without a warrant for any offense against the United States committed in the presence of the officer or agent, or for any felony under the laws of the United States if the officer agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony. Then it goes on to talk about their ability to serve warrants and subpoenas, conduct investigations,, and then finally, subsection F, to carry out such other activities such as the Homeland Security and the secretary may prescribe. That is a giant unspecified grant of authority.
I would make the point that the incident that occurred in Portland on July 15th when a protester was seized off the streets by what appears to have been Customs and Border Protection personnel and stuffed into an unmarked van, and then taken down to the federal courthouse and questioned for some time without counsel present, has no basis in the Constitution.
He was wise enough to refuse to answer their question. That probably helped us facilitate his getting out. He was effectively kidnapped by federal agents. So these are tactics that I have argued are being tested on the people of Portland in order to develop what we would call in either military or law enforcement terms a “standard operating procedure,” or SOP for how CBP and other DHS agencies might comport themselves in other cities in the future.
There’s no question that governor Kate Brown of Oregon has really badly mishandled this entire crisis. I say that with all due sympathy to the fact that she is a state governor and, and clearly does not have the same kind of overall power and resources that are necessarily available at the federal level, but the reality is that the Tuesday before this influx of DHS agents came into Portland, she got a call from acting secretary Chad Wolf of DHS, telling her that he was about to do this. It was at that moment that she had the opportunity to say to him, “No, you’re not going to do that, and this is why you’re not going to do that.”
Then she would have explained to him how if they did that, she was then going to declare a State of Emergency. She was going to then instruct Oregon state law enforcement personnel to quarantine every DHS facility in the state of Oregon. She then would’ve had the authority to order Oregon public utilities to shut off water and electricity to every DHS facility in the state. And thus that would’ve helped to contribute to the paralysis, essentially, of the DHS operation. I also believe that airports are not run by the federal government. She would have been within her authority to order those airports to refuse landing rights. I believe she would have been within her power to do that.
She did not do any of those things. You need to be able to react to these situations. This is not the first time that we’ve seen federal officers be utilized in inappropriate fashion. It’s not the first time that we’ve seen federal personnel be employed against protestors in ways that were clearly unconstitutional. Unfortunately the people of Portland are now paying the cross for that.
The Role of the Supreme Court in Federal Criminal Law
Bob Zadek: We have discussed earlier in this show the context of the growth and the evolution of federal criminal law. There is another related, insidious growth of authority that you have also written about which I will describe by way of introduction as the fattest border in the world — the hundred mile border.
You probably are wondering by what authority the CBP, who are charged with the responsibility of protecting the border, can do anything other than at the border?
Well, through some ill-advised Supreme Court decisions and the aggressively seeking to expand that by the federal government, general CBP in particular have almost become a federal police force with authority to perform acts that no policemen are allowed to do, and they can perform that anywhere in the country. Please explain this growth to us.
Pat Eddington: The specific court case that you’re talking about is U.S. v. Martinez-Fuerte, which was decided in the summer of 1976. We actually have to go back in time just a little bit further than that to the early 1950s when the Border Patrol issued a regulation that never went through the rulemaking process. This is just an arbitrary rule stating that they had the ability to essentially stop folks within 25 miles of the US border to conduct searches related to immigration inspection.
Over the ensuing decades, they asserted that authority to be extended to up to a hundred miles inside the United States. To give you a sense of what that means, if you took, a little bit of string on a map and used the scale, and you got it out to a hundred miles and you went around the entire border of the United States, both the Southern border, the Northern border, as well as the coasts, what you would find is that in doing that you would encompass at least two thirds of the population of the United States.
So through the issuance of a rule that has never been subjected to public rulemaking, much less actual congressional oversight action, CBP, asserts the authority to set up checkpoints to search your vehicle.
There was a challenge to that authority and that is where we go back to the case of US v. Martinez-Fuerte, where individuals sued on the basis of the fourth amendment. The court said in essence that there was a seizure but there was an overriding necessity of policing the border and preventing illegal immigration, so brief stops for questioning were permitted within this hundred miles zone. Anything further would require some probable cause.
Now, it’s probably not going to come as a great surprise to any of our listeners that it has never worked out that way. CBP, we know on the basis of multiple reports, multiple journalistic investigations, has turned these particular checkpoints in the Southwest into generalized crime control checkpoints. When the Government Accountability Office, which is the watchdog of Congress — the bean counters, if you will — came in, they found that within 20 miles of the border over 40% of the stops that were being made by CBP personnel involved American citizens, and American citizens with a dime bag or less of marijuana on their person.
So, they have not caught a lot of illegals at these checkpoints. They are snagging an awful lot of
innocent Americans who happen to think that marijuana is just fine as a recreational substance. This idea that these checkpoints would not be abused is not what has happened at all. In Arizona there has been a multi-year confrontation between local residents and the border patrol because of the two check points that CBP operates in that area that routinely stop and harass local residents in the state.
We have the case of a university engineer in Arizona who lives in Tucson who has to drive to an observatory in Western Arizona in order to do his job. On that state route 86 since 200 there has been a CBP checkpoint at which this man has been stopped over 500 times. They know exactly who he is and they tried to get him fired from his job for reporting them. The local police departments had cooperated with CBP for the violation of his rights. He actually got a several hundred thousand dollar settlement several years ago. We should have taught them a lesson that what they were doing to him was completely unconstitutional and illegal, but it didn’t because the harassment continues. I also worry that CBP will essentially try to use this authority in Portland. There is this potential of mission creep in other cities where the CBP stops people who are not on or near federal property.
Bob Zadek: The stops that CBP is making a hundred miles from the border would be violative of the first and the fourth amendment of the Constitution if they were conducted by a police force. So we have something which is per se, a violation of the Constitution, but it is performed under the protective umbrella of an ill-advised Supreme Court decision that Pat has explained to us. That’s how it always starts. The nose gets under the tent and the federal government, which is spending its time 24–7 looking for ways to expand federal power in direct contravention to those important protections given to us by the Bill of Rights.
Future Projections and Predictions
Bob Zadek: We talked about this mission creep of federal police power.
If you’re starting from the arc of our country’s existence, about 240 years ago, is this relatively recent? When did it start? Are we at just the beginning? Are we at the middle, or are we at the end, and do expect there to be some blowback as citizens try to seize control over the police power? I should mention police power is probably the area where government and citizens have their most frequent interactions. We don’t interact much directly with the government, but we do with the police power. Witness Portland.
Pat Eddington: Early in the program, I tried to lay out where I believe essentially it started, which was of course with the Secret Service really getting involved in political surveillance. The Secret Service was investigating anarchists in Patterson, New Jersey as early as 1893.
Bob Zadek: Where will it stop? Where will it stop? Will we simply have the loss of the state police power? Is that the end game?
Pat Eddington: I think what we’re seeing now in Portland and what we’re seeing with these other plans to go to other different cities is a watershed. This is one of those inflection moments potentially here where if this is not rolled back, we could see a real radical degradation of individual rights in this country in a way that we simply haven’t seen since the Vietnam era at a minimum.
What makes all of this very dangerous really is the creation of DHS itself. The FBI engages in an enormous number of illegal acts and over the course of its career, and political surveillance heavily so. Customs and Border Protection has higher termination rates for this area than any other federal law enforcement agency. Based on the data that he’s looked at, their termination rates are in the neighborhood of 7%. If you look at the Secret Service by comparison, it’s about 0.5%. CBP has disciplinary issues.
If we don’t see Congress take appropriate action to shut this capability off, we could really be on one of the most dangerous glide paths from a civil liberties standpoint, certainly that I’ve seen in my lifetime.
This coming week on the House floor will be an omnibus piece of legislation that will include the defense appropriations bill and the Homeland Security Appropriations Act. What I sincerely hope we see is members of the democratic caucus, and I would certainly love to see as many GOP members do this as well, demand the Homeland Security Appropriation bill be taken out of that package entirely and set aside. If this appropriations bill goes through with the DHS part of it attached, and it makes it through the House and gets over to the Senate, [we lose] the ability to actually modify that bill and try to attach real restrictions on CBP and DHS agents. I think this is the way we begin to reign this in.
Representatives have the ability through the appropriations process, by not agreeing to a bill, to effectively defund an agency or department. Now, whether or not Nancy Pelosi has the integrity to do that is unfortunately a very open question, but I’m hoping that the Oregon political delegation will really lean on her like there’s no tomorrow and force her to at least take that DHS appropriation bill out of the equation for the time being. There needs to be some legislative hostage-taking here in order to gain the necessary leverage to try to get these agents out of all these cities that have not asked for them.
Bob Zadek: What do you say to our listeners who respect the sanctity of private property. What should the federal government be doing when local government appears to be disinclined to protect federal property? Should the federal government, under principles of federalism, simply shrug their shoulders and wish things were different? How passive should the federal government be to protecting its own property such as federal courthouses.
Pat Eddington: There is no question that DHS already had the ability to protect the buildings, and specifically the federal protective service which was already there. There has been no evidence to date presented to indicate there was ever actually any kind of truly serious threat to the courthouse. As commissioner Hardesty of Portland pointed out, things were already de-escalating in Portland by mid-June.
I certainly don’t condone the destruction of property. There’s a legitimate interest there. But I think what this President has done is paint a false narrative of what is going on. It is pretty easy to figure out who the actual hooligans are.
Bob Zadek: The issue is States should be given the freedom to exercise their police power badly. It’s the citizen’s problem to get rid of those elected officials, but it’s not Washington’s job to be the protector of local problems. By giving states the power, it gives us freedom to move from state to state and to vote with our feet. Patrick, thank you so much for giving us all of your wisdom and your passion this morning.
Links:
- The People of Portland: DHS’s Involuntary Human Test Subjects | Cato @ Liberty July 21, 2020
- Civil Liberties vs. Federal Cops in Portland | Cato Institute Daily Podcast with Caleb Bron
- The Border Patrol Was Responsible for an Arrest in Portland, Ken Klippenstein, the Nation
- A Cosmic Legal Collision: The Engineer vs. The Border Patrol — Just Security by P. Eddington, May 25, 2018
- COVID-19, Bill Barr and the American authoritarian tradition | TheHill by P. Eddington, 3/26/20
- [VIDEO] President Trump Delivers Remarks on Operation Legend: Combating Violent Crime in American Cities — YouTube
Related Shows:
- Does the Constitution Still Matter? Evan Bernick from the IJ
- Matthew Feeney on Best Practices for Police Body Cameras with Matthew Feeney, June 5, 2016
- Posse Comitatus — Repealed but Not Gone, Oct. 27, 2013
- Adam Bates on StingRay Surveillance, March 13, 2016
- Cops and Robbers- A New Variation of an Old Theme
- *The Rise of the Warrior Cop*: Encore Interview with Radley Balko
Originally published at http://www.bobzadek.com on July 23, 2020.
