Tag Archives: protest

Who Are Those Guys?

Customs and Border Protection has finally claimed the anonymous federal law enforcement agents who have been abducting people off the streets in Portland. But it still won’t say who they are or exactly what they’re doing.


Often, when the Trump administration is described in totalitarian terms, it’s hyperbole, or at least debatable.

So, for example, describing ICE as a “Gestapo” is hyperbole. They violate civil rights and are out of control in a lot of ways, but comparisons to the Gestapo are overblown. Similarly, there has been debate (yes and no) about whether the detention facilities that hold legal asylum seekers and unauthorized border-crossers qualify as “concentration camps”. (My opinion: Yes, as long as we remember that concentration camps are not always death camps. Concentration camps isolate unpopular and dehumanized groups in harsh conditions outside of public view; death camps target them for extermination. Dachau was a concentration camp when it opened in 1933, but it didn’t become a death camp until much later.)

However, the federal law enforcement agents who have been roaming around Portland this last week are literally “secret police” — no hyperbole, no exaggeration. Their uniforms say POLICE, but do not identify what federal agency they are from or who the individual officers are. They cover their faces, drive unmarked vehicles, and grab people off the street without identifying themselves, their unit, the reason for the arrest, or where they are taking their victims. If right-wing militia groups start putting POLICE patches on their camo uniforms and kidnapping protest leaders, no one will know the difference; neither their appearance nor their behavior will give them away.

So that’s where we are: We’ve crossed one more bridge on the road to fascism, and it’s arguable that we’ve already arrived. Let’s think about how we got here.

Lafayette Square. On June 1, after the peaceful protests of George Floyd’s murder had also spawned looting and property damage in cities across the nation, President Trump called for law enforcement to “dominate the streets“. He urged governors to call in the National Guard, and made the following threat:

“If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Trump said, referring to himself as “your president of law and order and an ally of all peaceful protesters.”

He said he was already dispatching “thousands and thousands of heavily armed soldiers, military personnel and law enforcement officers” to Washington to stop the violence that has been a feature of the protests here.

While he was speaking, federal law enforcement agents of various stripes attacked peaceful protesters near the White House, pushing them out of Lafayette Square so that Trump could have his infamous hold-up-the-Bible photo op at historic St. John’s Episcopal Church.

Meanwhile, active-duty troops were being deployed to the DC area. Unnamed sources claimed Trump wanted to deploy 10,000 troops. Fortunately, generals and Pentagon civilians all the way up to Defense Secretary Esper pushed back, arguing that suppressing domestic dissent is not the military’s role. (I’m guessing the 10,000-troop story was leaked by a military person who wanted the plan stopped.) In the end, active-duty troops were never used against protesters and were withdrawn, but not before the incident “badly strained relations between Mr. Trump and the military”.

From Trump’s point of view, though, the week had one bright spot. The regular military might be reluctant to take the field against American protesters, but he did identify a force he could use: a motley assortment of armed federal law enforcement agents temporarily commanded by Attorney General Bill Barr.

Few sights from the nation’s protests in recent days have seemed more dystopian than the appearance of rows of heavily-armed riot police around Washington in drab military-style uniforms with no insignia, identifying emblems or name badges. Many of the apparently federal agents have refused to identify which agency they work for.

In the words of Butch Cassidy: “Who are those guys?”

It turns out that the federal government has something like 132,000 law enforcement officers spread out over dozens of agencies in multiple departments. Yahoo News called the roll:

The show of force outside the White House is a task force operation that includes U.S. Secret Service, National Guard, Customs and Border Protection, and U.S. Park Police, … Federal Protective Service, … elite SWAT teams from the Border Patrol and sniper-trained units from ICE have also descended upon Washington. TSA’s air marshals arrived too, and three of the agency’s “VIPR teams,” which have previously faced criticism for not coordinating well with local law enforcement. Eight Coast Guard investigators were deputized by the Department of Justice upon arrival in Washington, though it remains unclear how they are being deployed.

Which raises an obvious question: What kind of rules apply to people from one agency deputized by another? The rules of their home agency? Their temporary commander’s? None? There are all kinds of restrictions, both legal and institutional, on what the President can or can’t do with the military inside our borders. But these guys, apparently, not so much. Through the years, whenever Congress increased the budgets of the Bureau of Prisons or ATF or one of the dozens of other armed law enforcement agencies, who realized they were helping build a 132,000-man Praetorian Guard?

As democracy-threatening as this seemed in June, though, comforting speculation held that DC’s special relationship with the federal government made it unique. (That even became an argument for DC statehood.) Surely these little green men could never be deployed in a state over the objection of its governor.

After all, this is America.

The Portland protests. The George Floyd protests have had remarkable longevity, challenging the conventional wisdom that the Powers That Be can always wait these things out. But nothing lasts forever, and by July 1, even Seattle’s famous CHOP autonomous zone had been reclaimed by local authorities.

In Portland, however, the spirit of resistance is still very much alive. Friday marked the 50th day of protest. OregonLive describes the situation like this:

Portland has experienced weeks of daily protests since the death of George Floyd at the hands of Minnesota police. The largest of them, involving thousands of people chanting and marching for racial justice and police non-violence, have been peaceful.

But almost like clockwork, tensions flare late at night between law enforcement officers stationed at the Justice Center and courthouse and a crowd of 20- and 30-something demonstrators, a small number of whom toss projectiles at police, shine lasers in their eyes or otherwise poke and prod officers to engage.

… Although the Justice Center and federal courthouse are covered with angry graffiti decrying police, evidence of other demonstrations in the city are scarce.

But you get a different sense from local journalist Robert Evans, who has been covering the nightly clashes, which he describes as “as close up to the line as you can get to actual war without live rounds”.

The craziest night so far was July 4, where kids stockpiled thousands of dollars in illegal fireworks. They were in the center of downtown where the bulk of the protests happened around the Justice Center.

It started as drunken party, more or less. At random, cops began shooting into the crowd. Protesters coalesced around the idea of firing commercial-grade fireworks into the Justice Center and Federal Courthouse. You had law enforcement firing rubber bullets, foam bullets, pepper balls and tear gas as crowds circled in around the courthouse firing rockets into the side of the building. That went on for a shocking length of time — there was this running three-hour street battle. I couldn’t tell whose explosions were whose.

Trumpist media and administration spokespeople have been desperate for something to talk about other than Trump’s failure to control the coronavirus pandemic, and so they have seized on “mob rule” as a theme, with Portland as a prime example of a city “under siege”. But OregonLive pushes back against that narrative: “A tour of the town shows otherwise.”

The images that populate national media feeds, however, come almost exclusively from a tiny point of the city: a 12-block area surrounding the Justice Center and federal courthouse. And they occur exclusively during late-night hours in which only a couple hundred or fewer protesters and scores of police officers are out in the city’s coronavirus-hollowed downtown.

Daily life in Portland is greatly restricted by the virus, but is barely affected by the demonstrations. Evans agrees:

One of the things I think people get wrong about this place, though, is that they see the protests and the right-wing coverage and the city is depicted as convulsed and collapsing. It’s just not true. You go three blocks from the center of downtown and life goes on as normal. Where I live, you could go every day and see no real signs of the protests.

Having totally given up on doing anything to combat the virus, though, Trump had to be seen doing something about something. And so he intervened in Portland.

DHS’ little green men. If you get your view of the world through Fox News, you understand that the biggest current threat to the United States and the American way of life is not the virus that has killed nearly 140,000 of us with no end in sight. No, it is the wanton destruction of our historical statues and monuments. Any time I have channel-scanned through the Fox News evening line-up in the last month, that’s what they’ve been talking about.

To combat this scourge, on June 26 President Trump heroically signed the “Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence“. If you read past the polemics all the way to the end, you’ll find this authorization:

Upon the request of the Secretary of the Interior, the Secretary of Homeland Security, or the Administrator of General Services, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security shall provide, as appropriate and consistent with applicable law, personnel to assist with the protection of Federal monuments, memorials, statues, or property.

He’s talking about the 132,000 federal law enforcement agents, the Little Green Men. And unlike in a riot or a natural disaster where a governor might ask for the help of the National Guard, here one part of the federal government asks another part to send the Little Green Men. The Secretary of Homeland Security, you might notice, is authorized to ask himself for assistance.

As it happens, we don’t have a Secretary of Homeland Security, and haven’t since Trump forced Kirstjen Nielsen to resign in April, 2019 because she “pushed back on his demands to break the law“. Since then we’ve had acting DHS secretaries, because Trump says “I like acting. It gives me more flexibility.” (In fact, Josh Marshall observes that every DHS official who figures in this story is acting: “acting secretary, acting deputy secretary and acting head of CBP. Not one of these men has been confirmed by the Senate to act in this role.” Having avoided confirmation hearings where senators might demand promises or commitments, all three get their authority from and owe their allegiance to no one but Trump.)

So Acting DHS Secretary Chad Wolf responded to Trump’s executive order by creating the Protecting American Communities Task Force (PACT) “a special task force to coordinate Departmental law enforcement agency assets in protecting our nation’s historic monuments, memorials, statues, and federal facilities”. The PACT announcement quotes Wolf: “We won’t stand idly by while violent anarchists and rioters seek not only to vandalize and destroy the symbols of our nation, but to disrupt law and order and sow chaos in our communities.” (“Violent anarchist” is a phrase you’ll hear again. It is to the Trump administration what “terrorist” was to the Bush administration: a term stripped of all its original meanings until it is simply an insult, i.e., “someone we don’t like”.)

Notice the subtle shift: We’re not talking about statues of Andrew Jackson any more, as Trump was when he signed the executive order. We’re talking about “federal facilities” like the Mark Hatfield Courthouse in Portland, the courthouse mentioned above. PACT’s mission also extends beyond “protecting” those facilities to the much more nebulous goal of maintaining “law and order” and fighting “chaos in our communities”. But the Hatfield Courthouse is more than just a center of “chaos”, it is also the scene of a heinous crime: graffiti.

Maybe the Trump administration will stand idly by while American coronavirus deaths once again approach a thousand a day, and maybe it will do nothing when Putin puts bounties on the lives of our soldiers in Afghanistan, but graffiti on a federal courthouse is an affront up with which it will not put.

Send in the Little Green Men.

The federal invasion of Portland. Sometime after the Fourth of July — no one seems to know exactly when, because there wasn’t an announcement — unidentified federal law enforcement agents from no particular agency began battling protesters alongside the Portland police. And they did not just support the local officials, they significantly escalated the violence. Here’s Robert Evans again:

Since the feds got involved with police it’s gotten really brutal. I’d argue we’ve seen more police brutality in the last 50 days from Portland Police Department than anywhere else in the country. It’s brutal but it’s also predictable. There are rhythms to the way police work. It’s become an orchestrated dance with both sides.

There are warnings and kicking people out of the demonstration area. But the feds have deliberately defied the rhythms. Last Saturday [July 11], the crowd was 100 or so. It was very chill — nothing going on beyond the now-normal occupation of the Justice Center. And feds came out grabbing people seemingly at random and beating people with sticks. There was the kid who got shot in the head and his skull was fractured. The federal law enforcement violence is unpredictable violence.

The “kid shot in the head” was Donovan LaBella, and we have the shooting on video. The Oregonian summarized in a tweet:

Video shows nothing suggesting that La Bella, 26, who was standing across the street from the federal courthouse holding a speaker over his head, was a threat to anyone.

What appears to be a tear gas canister bounces in front of him. He kicks at it, bends down to toss it underhanded into the street, and lifts up his speaker again. Then he goes down, apparently struck by a sponge grenade or some other “less lethal” projectile that is never supposed to be aimed at someone’s head. (LaBella’s sister says he’s making a “remarkable recovery“, but the photo of his stitched-up forehead looks pretty gruesome.)

Who shot LaBella? Hard to say. Some unmarked federal agent in camo with a mask on, from some unnamed federal law enforcement agency.

How actions like this protect federal facilities is hard to figure. And then the abductions started.

Unmarked vans. NPR reports:

Federal law enforcement officers have been using unmarked vehicles to drive around downtown Portland and detain protesters since at least Tuesday. Personal accounts and multiple videos posted online show the officers driving up to people, detaining individuals with no explanation about why they are being arrested, and driving off.

To the people being kidnapped arrested, it’s not obvious that their abductors the officers are police at all.

“I see guys in camo,” O’Shea said. “Four or five of them pop out, open the door and it was just like, ‘Oh s**t. I don’t know who you are or what you want with us.'”

See any identifying marks?

And again the question: Who are these guys? As this widely shared video shows, two agents in camo with no label other than POLICE grab somebody off an empty street and throw him into a van. They are repeatedly asked who they are and what they’re doing, but they do not respond.

For hours no one knew who the masked kidnappers were working for. But eventually, Customs and Border Protection took responsibility for that particular “arrest”. (In an interview, though, Acting Deputy Secretary Ken Cuccinelli identified Federal Protective Services as the lead agency; CBP is assisting them.) Their statement is a series of lies wildly inconsistent with the video, or with numerous accounts of similar abductions.

CBP agents had information indicating the person in the video was suspected of assaults against federal agents or destruction of federal property.  Once CBP agents approached the suspect, a large and violent mob moved towards their location.  For everyone’s safety, CBP agents quickly moved the suspect to a safer location for further questioning.  The CBP agents identified themselves and were wearing CBP insignia during the encounter. The names of the agents were not displayed due to recent doxing incidents against law enforcement personnel who serve and protect our country.

In fact, the street is virtually empty. The officers do not identify themselves, and if you can spot any insignia other than POLICE on their uniforms, you’re sharper than I am. I’m also struck by the “suspected of assaults against federal agents OR destruction of federal property”. The “or” suggests that this is a generic explanation rather than the specific reason for this particular arrest. Whoever wrote the statement probably has no more idea why the suspect was arrested than we do.

Robert Evans reports:

I’ve seen them rolling around in the vans and tackling people. My partner has watched them do a few snatch and grabs. The difference is they’re not cops. They go after people like soldiers, where the goal is to be unpredictable.

Acting Secretary Wolf’s justification of the entire operation, which didn’t appear until Thursday, is ridiculous. The phrase “violent anarchists” appears 72 times, along with a list of their “violent” crimes, which mostly consist of tagging the Hatfield Courthouse with graffiti. One “violent anarchist” was caught with a loaded weapon, but there is no report of the weapon being brandished or fired. (Compare to the AR-15 toting conservative protesters at the Michigan State House in May, whom Trump supported by tweeting “LIBERATE MICHIGAN”.)

OregonLive responded:

It’s telling that in Wolf’s extensive listing of incidents over the past several weeks, he neglects to mention the most violent act of these protests – a deputy U.S. marshal’s shooting of Donavan La Bella in the face with an impact munition. … That Wolf would fail to even acknowledge such a severe injury exposes how suspect his definition of “violence” is.

(OL appears to just be guessing who the shooter works for; I don’t believe the Marshals have claimed responsibility.) To repeat: “violent anarchist” has no meaning. It’s just an insult; it tags someone as an enemy.

Remember federalism? One hallmark of the Trump Era is that any principles conservatives used to claim — free trade, standing by allies, fiscal responsibility, the importance of character — have been exposed as hollow. One such relic of the age of principled conservatism is federalism: the doctrine that states share sovereignty with the federal government, and are not just subjects of federal rule.

Under federalism, policing is a state responsibility. In this case, it’s important to bear in mind that no local official asked for the federal government’s help in dealing with the protests. Acting Secretary Wolf did not even make a courtesy call to tell Oregon Governor Kate Brown or Portland Mayor Ted Wheeler what he was planning to do. This whole episode began not with an offer of help, but with Trump’s threat: “If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.

That’s how this all came about: Trump and/or Wolf came to the conclusion that Portland was not treating protesters harshly enough, so Wolf asked himself to intervene.

Now that they have had a chance to see what DHS is doing, local officials at all levels have asked the federal agents to leave. Governor Brown tweeted:

This political theater from President Trump has nothing to do with public safety. The President is failing to lead this nation. Now he is deploying federal officers to patrol the streets of Portland in a blatant abuse of power by the federal government. I told Acting Secretary Wolf that the federal government should remove all federal officers from our streets. His response showed me he is on a mission to provoke confrontation for political purposes. He is putting both Oregonians and local law enforcement officers in harm’s way.

And Mayor Wheeler acknowledged the government’s right to protect its buildings, but called for it to pull its agents off the streets:

I have no problem with the federal government and federal officers inside their facilities protecting their facilities. That’s what they do. That’s what they always do. What I have a problem with is them leaving the facilities and going out onto the streets of this community and then escalating an already tense situation like they did the other night.

Subsequently he made a stronger plea:

Their presence is neither wanted nor is it helpful and we’re asking them to leave. In fact, we’re demanding that they leave.

To which Acting Deputy Secretary Cuccinelli responded:

We don’t have any plans to do that. When the violence recedes, then that is when we would look at that. This isn’t intended to be a permanent arrangement, but it will last as long as the violence demands additional support to contend with.

Also:

Oregon Attorney General Ellen Rosenblum filed a federal lawsuit against Homeland Security and its subagencies Friday alleging the federal government had violated Oregonians’ civil rights by seizing and detaining them without probable cause during protests against police brutality in the past week.

Oregon’s senior Senator Ron Wyden:

The Trump administration’s claim that DHS police are needed to enforce the president’s executive order to protect statues is laughable. Terrorizing peaceful protesters and arresting people for graffiti and other nonviolent offenses has nothing to do with securing federal property. My colleagues and I in the Oregon delegation have demanded that these occupying troops leave Portland, demanded answers from the administration and called for an independent investigation. And this week, my fellow senator from Oregon, Jeff Merkley, and I will introduce a measure to require Trump to remove these unwanted forces from our city.

Senator Merkley made his own comment:

Authoritarian governments, not democratic republics, send unmarked authorities after protesters. These Trump/Barr tactics designed to eliminate any accountability are absolutely unacceptable in America, and must end.

As Governor Brown’s tweet indicates, Acting Secretary Wolf has refused to withdraw his Little Green Men. Acting Deputy Secretary Cuccinelli also refused to pull the LGM back to the federal facilities whose protection is the pretext for their presence.

And I fully expect that as long as people continue to be violent and to destroy property that we will attempt to identify those folks. We will pick them up in front of the courthouse. If we spot them elsewhere, we will pick them up elsewhere. And if we have a question about somebody’s identity – like the first example I noted to you – after questioning determine it isn’t someone of interest, then they get released. And that’s standard law enforcement procedure, and it’s going to continue as long as the violence continues.

Results 1. Sometimes when you break the rules, the results will give you an after-the-fact justification: The problem is solved now, so who’s going to complain? But that’s not the case in Portland. Instead, DHS’ authoritarian overreach has drawn increased local attention to the protests and raised local sympathy for the protesters.

While President Trump on Sunday described the unrest in Portland as a national threat involving “anarchists and agitators,” the protests have featured a wide array of demonstrators, many now galvanized by federal officers exemplifying the militarized enforcement that protesters have long denounced. Gatherings over the weekend grew to upward of 1,000 people — the largest crowds in weeks.

Saturday, mothers (some wearing bicycle helmets in case federal agents would decide to club them) formed a human chain between police and demonstrators and chanted: “Feds stay clear. Moms are here.” Sunday night, a similar group of mothers was in fact dispersed with clubs and gas. In the wee hours of Saturday morning, one woman had a creative response to the threat of police violence.

In one extraordinary moment, a woman, completely naked except for a face mask and a hat, strode through the protests and squared up to federal agents and did a series of ballet and yoga moves. The striking moment was captured on social media and the unidentified woman has been dubbed “Naked Athena.”

Police apparently didn’t know what to do next. OregonLive reported:

About 10 minutes after she arrived, the officers left. The woman left soon after without any additional fanfare. “She was incredibly vulnerable,” [Oregonian/OregonLive photographer Dave] Killen said. “It would have been incredibly painful to be shot with any of those munitions with no clothes on.”

One good place to get a play-by-play of the weekend demonstrations is the Twitter feed of journalist Donovan Farley.

On the whole, it’s hard to argue with Governor Brown’s assessment:

It’s simply like adding gasoline to a fire. What’s needed is de-escalation and dialogue. That’s how we solve problems here in the state of Oregon.

Results 2. How you judge results depends on what your goal is. If the goal is to end the nightly conflicts between police and protesters, and to restore “law and order”, then the federal intervention has been an abject failure.

But when has Trump ever tried to end conflict? Trump thrives on conflict. Arguably, it’s in his political interest to make things worse. The violent federal escalation and abuse of civil rights may annoy Oregonians, but Trump was never going to carry Oregon in November anyway. The more interesting question to him is: How is this playing in swing states? Governor Brown has it right:

Trump is looking for a confrontation in Oregon in the hopes of winning political points in Ohio or Iowa.

If Fox News can spin this as the President taking strong action to preserve law and order in a city where Democratic officials are unwilling to get tough with the violent anarchists, that’s all he wants. Even better if his “toughness” takes headlines away from his Covid-19 failure. And the more violence, the more headlines.

In short, he’s doing on the ground what he often does on Twitter: provoking a conflict with somebody his base doesn’t like in order to change the narrative from a story where he’s failing. Violent anarchists and feckless Democratic officials are playing the role usually reserved for black athletes like Colin Kaepernick or LeBron James, or charismatic women of color like AOC or Ilhan Omar.

Judged by that standard, Trump may think his intervention in Portland is going quite well.

Where it goes from here. PACT was not created to be a one-off, so Portland can be thought of as a test, a “dress rehearsal” (as Esquire’s Charles Pierce puts it) for a show that might be taken on the road all over the country. The groundwork is being laid to intervene in Chicago, whose black lesbian mayor has already been tagged a “derelict” by press secretary Kayleigh McEnany. A famously liberal city like San Francisco would also make a good target for Trumpist media. A Reichstag fire won’t be necessary; a few lines of graffiti on some federal building will suffice.

Three things are being tested in Portland:

  • Will the PACT agents do whatever they’re told, heedless of the rights of American citizens?
  • Will Trump get away with this legally, or will federal courts put his secret police under injunction? Will Congress intervene in some way?
  • Will Trump pay a political price, either in the media or by losing the support of the congressional Republicans who kept him in office in spite of the crimes he was impeached for?

The first test is clearly a success: Federal agents are acting like secret police in a classic banana republic, and there have been no signs of defections. No leaks, no scandalous stories attributed to anonymous sources.

Remarkably, Portland is a second-layer headline in both the New York Times and Washington Post this morning. You’ll find a Portland story if you scroll down, but they’re not calling your attention to it. I’ve also looked for a biting editorial cartoon on the subject and haven’t found one yet. So at the moment Trump is not paying a price in the mainstream media.

Elected Republicans are also ignoring the story, in spite of the traditional conservative principles being violated. (A satire article published after the first appearance of the Little Green Men in DC is being recirculated: “NRA Accidentally Forgets to Rise Up Against Tyrannical Government“.) It remains to be seen whether Democrats in Congress will insert some anti-LGM language into some must-pass appropriations bill, and whether Mitch McConnell will allow it.

Our best hope at the moment is the courts, where I don’t know what to expect. Neither do the folks at the LawFare blog, which is where I’m hoping to find insight before long. LF’s Steve Vladeck closes that article by wondering which would be worse: that the PACT agents are abusing their authority, or that all this is actually legal somehow?

The ultimate threat. As Trump continues to sink in the polls, more and more pundits raise the question: How will he try to cheat in the election? (The question “Will he try to cheat?” has already been answered. That’s what he was impeached for.) Various voter suppression schemes are brewing, and some are already working. Many of us are hard at work imagining scenarios where some combination of Covid-19 and voting by mail create new vote-stealing or vote-suppressing opportunities.

The true nightmare scenario is if he loses the election but refuses to leave office. Or perhaps he constructs some elaborate conspiracy theory in which the outcome of the election is doubtful, and decides to hang on until the doubt can be resolved to his satisfaction, which it never will be. Obviously, he can’t succeed in that plan entirely on his own, and different scenarios require different accomplices: Republicans in Congress, the Supreme Court, and so on.

If any of those play out (and I’m far from convinced they would) we could find ourselves in a true third-world-country situation, where the last line of defense is that the People refuse to accept a stolen election and take to the streets. In a typical third-world situation, the next question is: What does the Army do? An election-stealing President can often survive if the Army is willing to sweep into the major cities and put down protests.

One reason I have not worried too much about these scenarios is that I don’t think our Army would do that. The traditions of non-interference in the political process go all the way back to George Washington, and are very strong.

But Portland raises an additional question: What do the Little Green Men do? Could Trump really call his Praetorian Guard into the streets against the American people?

That too is being tested in Portland.

What to Make of Antifa?

Until this week, I held the standard establishment view of the anti-fascist group Antifa and the “black blocs” they resemble: They’re anarchist or leftist mirror-images of the right-wing thugs they fight. I have heard personal friends say things similar to what Hullabaloo’s Tom Sullivan wrote Saturday:

The local Indivisible chapter organized a peace vigil downtown here last Sunday in solidarity with Charlottesville. It was one of many such vigils around the country. Not a Nazi symbol in sight. Yet the local antifa group that attended seemed bent on taking over what was intended to be a peaceful rally. There was a shouting match with police the organizers had requested. Later, the group split off and marched through downtown chanting slogans. To the usual “Whose streets? Our streets!” they added “Cops and the Klan go hand in hand.” and “What do we want? DEAD NAZIS. When do we want ’em? NOW!

The mirror-image-thug frame was present when CNN talked to a police spokesman from Portland, Oregon:

It is new, and this, like, this rumble mentality of, “I’m going to bring my friends, you’re going bring your friends, and we’re going to fight it out in the park” — it’s not something we’ve seen here. It’s not good for the city. People are just frustrated by it. It’s affecting their livability. It’s affecting their business. It’s affecting their commute.

The same piece quotes Cal State academic Brian Levin making a common liberal criticism:

It’s killing the cause — it’s not hurting it, it’s killing it, and it will kill it. We’re ceding the moral high ground and ceding the spotlight to where it should be, which is shining the spotlight on the vile. … No, it’s not OK to punch a Nazi. If white nationalists are sophisticated at anything, it’s the ability to try to grasp some kind of moral high ground when they have no other opportunity, and that’s provided when they appear to be violently victimized. That’s the only moral thread that they can hang their hats on. And we’re stupid if we give them that opportunity.

Trump took advantage of that opportunity in his controversial post-Charlottesville press conference on Tuesday:

What about the ‘alt-left’ that came charging at, as you say, the ‘alt-right’? Let me ask you this: What about the fact they came charging — that they came charging with clubs in their hands, swinging clubs? Do they have any problem? I think they do.

It’s Trump, of course, so you have to take “fact” with a grain of salt. But it sounds bad.

You get a different picture, though, from a number of eye-witness accounts of Charlottesville. Like this Democracy Now! interview:

CORNEL WEST: You had a number of the courageous students, of all colors, at the University of Virginia who were protesting against the neofascists themselves. The neofascists had their own ammunition. And this is very important to keep in mind, because the police, for the most part, pulled back. The next day, for example, those 20 of us who were standing, many of them clergy, we would have been crushed like cockroaches if it were not for the anarchists and the anti-fascists who approached, over 300, 350 anti-fascists. We just had 20. And we’re singing “This Little light of Mine,” you know what I mean? So that the—

AMY GOODMAN: “Antifa” meaning anti-fascist.

CORNEL WEST: The anti-fascists, and then, crucial, the anarchists, because they saved our lives, actually. We would have been completely crushed, and I’ll never forget that.

In the heat of the moment I doubt West counted precisely, so I’ll remain skeptical of his numbers. But Slate‘s Dahlia Lithwick collected several accounts of what I take to be the same event. Rebecca Menning told her:

No police officers in sight (that I could see from where I stood), and we were prepared to be beaten to a bloody pulp to show that while the state permitted white nationalists to rally in hate, in the many names of God, we did not. But we didn’t have to because the anarchists and anti-fascists got to them before they could get to us. I’ve never felt more grateful and more ashamed at the same time. The antifa were like angels to me in that moment.

Brandy Daniels described Antifa as respectful and helpful:

Some of the anarchists and anti-fascist folks came up to us and asked why we let [the white supremacists] through and asked what they could do to help. Rev. Osagyefo Sekou talked with them for a bit, explaining what we were doing and our stance and asking them to not provoke the Nazis. They agreed quickly and stood right in front of us, offering their help and protection.

And Rev. Seth Wispelwey added:

I am a pastor in Charlottesville, and antifa saved my life twice on Saturday. Indeed, they saved many lives from psychological and physical violence—I believe the body count could have been much worse, as hard as that is to believe. Thankfully, we had robust community defense standing up to white supremacist violence this past weekend.

I wasn’t there, and have never seen Antifa with my own eyes. But here’s how it looks to me: Antifa is based on an anarchist worldview, in which state institutions like the police are not to be trusted. When that assumption is false — when, say, organizers and police have made a plan for an orderly, peaceful demonstration and that plan is flowing smoothly — then having Antifa show up can be a real nuisance.

But when that assumption is true, and the police are not going to protect you from right-wing violence, then it’s good to have some “robust community defense” around.

So if you’re disturbed by the rise of Antifa — whether you’re a conservative worried about leftist violence, a local government trying to maintain order, or a liberal group hoping to protest peacefully — the long-term way to shrink their numbers is clear: Don’t create the conditions that make them right.

When state institutions work well, and work for the benefit of the vast majority, then anarchists look like nut jobs. But when they don’t work, when the people have to start organizing their own defenses outside the system, and when the only path of protest liberals offer is nonviolent martyrdom, then anarchists who come prepared to face violence start to make a lot of sense.

The Ban: Ten Days of Drama

It’s hard to believe how much drama has played out in the last ten days. Even the Advise and Consent style political novels I loved in high school didn’t move this fast.

It all started a week ago Friday, when President Trump signed Executive Order 13769 (a.k.a “the Muslim ban” and “it’s not a Muslim ban“) which Wikipedia summarizes like this:

The order limited refugee arrivals to 50,000 and suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries while prioritizing refugee claims from persecuted minority religions. The order also indefinitely suspended the entry of Syrian refugees. Further, the order suspended the entry of alien nationals from seven Muslim-majority countries — Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen — for 90 days, after which an updated list will be made. The order allows exceptions to these suspensions on a case-by-case basis. The Department of Homeland Security later exempted U.S. lawful permanent residents (green card holders).

The immediate result was chaos. The order had been reviewed by the Justice Department’s Office of Legal Counsel for “form and legality”, but beyond that was pretty much unvetted, parts of it apparently leaping straight into the world from Steve Bannon’s brain like a malformed Athena from a not-very-godlike Zeus-wannabee. Congressional leaders were not consulted. (Though Trump apparently was helped by Republican congressional staffers who were obliged by a non-disclosure agreement not to tell their bosses; so far history does not record what the out-in-the-cold Republican congressmen think of that.) The border-control officials who were supposed to implement the ban in America’s airports were not briefed in advance. (NYT: “customs and border control officials got instructions at 3 a.m. Saturday and some arrived at their posts later that morning still not knowing how to carry out the president’s orders.”)

People already in the air, including permanent legal residents (i.e. green-card holders) who were returning to their jobs or students with valid visas coming back to their universities, were sent back or detained in airports. City University of New York claims it has 100 students from the affected countries. Two Iraqis who had helped the American military and feared for their lives if they had to return to Iraq were detained at JFK airport.

The public response was immediate. On Saturday, crowds of protesters spontaneously formed at JFK and other airports. By 9 p.m., a federal judge had issued an order preventing the administration from sending the detainees back where they came from. Sunday, the administration backed off of the restrictions on green-card holders.

Internal dissent. On Monday, acting Attorney General Sally Yates (an Obama appointee held over until Trump can get his own AG approved) ordered the Justice Department not to defend Trump’s order in court.

I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Also on Monday, an internal State Department dissent-channel memo — reportedly with over 1000 signatures — leaked to the press. It called the Trump order “counter-productive” and said

Looking beyond its effectiveness, this ban stands in opposition to the core American and constitutional values that we, as federal employees, took an oath to uphold.

Rejecting the whole concept of internal dissent from experienced professionals, Press Secretary Sean Spicer called the signers “career bureaucrats” and responded that “they should either get with the program or they can go”. Yates was fired Monday night in typical Trump fashion; the White House statement descended from policy disagreement into personal insult: Yates had “betrayed the Justice Department” and was “weak on borders and very weak on illegal immigration”. (One of Trump’s most disturbing traits is his apparent belief that it’s not enough simply to overcome opposition; the people who oppose him must be shamed and punished. This authoritarian impulse alone should have disqualified him from the presidency.)

Also Monday night, Samantha Bee weighed in.

Defiance. Throughout the week, court orders piled up from judges around the country, and multiple reports indicated that the Trump administration was at best slow-rolling its compliance and at worst simply defying the orders. Friday Politico reported:

Hours after a federal judge ordered customs officers to provide lawyers to travelers detained at Dulles airport last Saturday, senior Trump administration officials instructed the guards to give the travelers phone numbers of legal services organizations, ignoring a mass of lawyers who had gathered at the airport. Most of the legal services offices were closed for the weekend, effectively preventing travelers with green cards from obtaining legal advice.

The move was part of what lawyers contend was a series of foot-dragging actions by the administration that appeared to violate court orders against the Trump’s controversial travel ban. … The [Customs and Border Protection] officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command.

For example, a federal judge in Boston ordered the administration to admit travelers with valid visas. The travelers did not get into the country, though, because the administration claimed it had the power to revoke those visas. Slate‘s Jeremy Stahl interviewed an immigration lawyer, who concluded:

When you have an executive that is acting the way that Donald Trump is acting and not controlling what his officers are doing in noncomplying, that’s a constitutional—that’s leading to a constitutional crisis.

Yonatan Zunger put a dark spin on it:

[T]he administration is testing the extent to which the DHS (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.

Yesterday was the trial balloon for a coup d’état against the United States. It gave them useful information.

Writing on the Lawfare blog, Ben Wittes put a dark spin on the whole enterprise: He thinks the ban’s whole purpose is to appeal to the anti-Muslim bigots in Trump’s base, and has nothing to do with keeping Americans safe.

Put simply, I don’t believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

Where it stands. Friday, a federal court ruling came down from Judge James Robart in Seattle, applying nationally and stated in as sweeping terms as possible, clearly intending to allow no wiggle room. Saturday, the Trump administration said it would comply, pending appeal.

Meanwhile, a State Department spokesperson tells NPR that officials with the department are also adhering to the decision. The department has provisionally revoked somewhere between 60,000 and 100,000 individuals’ visas, according to different accounts; under Saturday’s announcement, the State Department says that move has been reversed — and that “individuals with visas that were not physically cancelled may now travel if the visa is otherwise valid.”

Trump again personalized the conflict, tweeting:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

(Lots of people pointed out that Robart’s claim to be a judge is at least as good, if not better, than Trump’s claim to be a president.) Late Saturday night, the 9th Circuit Court of Appeals denied the Justice Department’s motion to reverse the suspension of Trump’s executive order. The order will remain suspended until the court can make a ruling on the merits of the case. That could happen as early as today, or not.

Over the weekend, congressional Republicans gave strong indications that they don’t want this conflict to escalate to a constitutional crisis. Sunday, Mitch McConnell, who (like Paul Ryan) has been stepping very carefully to avoid the President’s sensitive toes, told CNN’s Jake Tapper:

The courts are going to decide whether the executive order the President issued is valid or not, and we all follow court orders.

The unstated implication is: “You’d better follow them too.”

What will the courts decide? Deborah Pearlstein posted a good summary of the arguments both ways on Jack Balkin’s legal blog Balkinization. And the answer is: It’s a close call.

On the one hand, the Constitution gives the President a lot of power to manage our dealings with other countries, and Congress has supplemented that power in various ways over the years. So the administration has a lot of possible arguments it might make to defend its actions.

On the other hand, courts often look beyond simple questions of authority to rule on intent: If your clear intent is to achieve an unconstitutional result, then a court might block your actions even if they fall within the letter of your legal powers. A good example of this came last summer, when a federal appeals court struck down North Carolina’s voter-suppression law. Everything in the law — changing the dates and hours of early voting, requiring IDs, etc. — was within the legislature’s power. But the fact that legislators researched how and when black North Carolinians vote, and then systematically restricted their favorite options, pushed the law beyond the pale.

Here, there is a clear record of intent to create a religious test for entering the United States, which would be unconstitutional. Trump promised a Muslim ban during his campaign. Advisors like Rudy Giuliani have spoken in public about coaching Trump on how to “do it legally” by focusing on the threat of terrorism from particular countries rather than on religion. The order’s provisions to prioritize religious minorities for exceptions to the ban seems intended to make sure Christians aren’t caught in a ban intended for Muslims. (If the administration is serious about offering refuge to persecuted religious minorities, that provision should apply to a lot of Muslims as well: Shia in Sunni-majority countries, Sunni in Shia-majority countries, and Sufis and other smaller Muslim sects everywhere. Will it? Or is it just a Christian loophole?)

Will that be enough to convince an appeals court, and to split the 4-4 Supreme Court so that it doesn’t overrule? Maybe. But even if it does, that ruling is likely to illuminate a path that would allow some future objectionable executive order to pass legal muster.

Then what? Pearlstein says it’s not enough to count on the courts: Protesters need to focus their attention on Congress as well:

There is, however, one foolproof way to ensure the President’s order in its current form does not stand. And it lies with the body that gave the President the authority to issue it in the first place. A growing, bipartisan group of congressional representatives have expressed concern about the order’s scope and effect. And while Senator McConnell has proposed the matter be left to the courts to decide, it is not wise – and should not be easy – for Congress to avoid responsibility here. At a minimum, it would be a serious strategic mistake for the many groups sprung up post-election to push back against the new administration not to focus some of their energies on demanding Congress act.

So far, McConnell, Ryan, and other congressional Republicans have had it both ways: They can tut-tut about executive overreach and incompetent implementation, while remaining uncommitted about the order’s overall intent. As much as possible, the public needs to pin them down. If a Muslim ban (or something like it) is a good thing, then Congress should authorize it. If not, it should establish specific boundaries on the President’s power.