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Analysis

The President’s Private Army

President Trump’s deployment of militarized homeland security agents to Portland violates the fundamental principle behind the Posse Comitatus Act.

July 25, 2020

This piece origin­ally appeared at Just Secur­ity

It does­n’t take a legal expert to know that what’s happen­ing in Port­land, Oregon is an abuse of power. When uniden­ti­fied federal forces dressed as soldiers pull people off the streets into unmarked vans, some­thing is gravely wrong. What’s less appar­ent is that this abuse is part of an ongo­ing effort by the admin­is­tra­tion to get around “posse comit­atus”: the prin­ciple that the pres­id­ent cannot use the milit­ary as a domestic police force. The implic­a­tions for the rule of law — and poten­tially for the 2020 elec­tion — are stag­ger­ing.

The Depart­ment of Home­land Secur­ity person­nel deployed in Port­land are federal law enforce­ment agents, not members of the armed forces. But the evid­ence is mount­ing that they are not there to enforce the law. Instead, they are acting as a para­mil­it­ary wing to assist the pres­id­ent in his long­stand­ing goal to (in his words) “take over” U.S. cities run by Demo­crats.

This goal dates back to the begin­ning of Trump’s pres­id­ency. Five days after his inaug­ur­a­tion, he tweeted: “If Chicago does­n’t fix the horrible ‘carnage’ going on, 228 shoot­ings in 2017 with 42 killings (up 24% from 216), I will send in the Feds!” (Three and a half years later, he’s about to get closer to carry­ing out his threat: He announced on Wednes­day that he will send 200 federal agents to the city, plus 35 addi­tional agents to Albuquerque.) He has issued similar threats peri­od­ic­ally through­out his time in office.

But it was the protests that erup­ted across the coun­try in response to the brutal police killing of George Floyd that finally gave the pres­id­ent his chance. At the pres­id­ent’s direc­tion, the governors of 11 states (10 of them Repub­lic­ans) sent their National Guard units into Wash­ing­ton, DC, where largely peace­ful protests had been marred by isol­ated incid­ents of viol­ence and loot­ing. The deploy­ment was over the objec­tions of the city’s mayor, Muriel Bowser.

Congress passed the Posse Comit­atus Act to prevent exactly this type of action. The 1878 law bars federal troops from parti­cip­at­ing in domestic law enforce­ment activ­it­ies absent an express author­iz­a­tion by Congress. But the Act applies to the National Guard only when its units are feder­al­ized. Even though Guard troops were clearly acting at the direc­tion of the pres­id­ent and secret­ary of defense, the pres­id­ent did not offi­cially feder­al­ize them, leav­ing them free to conduct law enforce­ment activ­it­ies.

That gambit served the pres­id­ent’s purposes in DC. But pulling the same trick in a state might be more diffi­cult. Although the admin­is­tra­tion’s legal theory would permit it, the optics of send­ing one state’s National Guard forces into another state would likely be more disturb­ing than send­ing them to the nation’s capital. Moreover, governors might be more reluct­ant to cooper­ate if another state’s sover­eignty were at stake.

So the admin­is­tra­tion is trying out a new end-run around the Posse Comit­atus Act. The Depart­ment of Home­land Secur­ity has sent dozens of agents to Port­land to “restore order,” against the will of Portland’s mayor and the governor of Oregon. The offi­cial justi­fic­a­tion for the deploy­ment is to protect federal prop­erty, which federal law enforce­ment agen­cies may do with or without local author­it­ies’ consent. But in less scrip­ted moments, the pres­id­ent has blown this cover, repeatedly declar­ing that he’s send­ing the feds to do the job of local Demo­cratic offi­cials because those offi­cials are doing it so badly. “You’re supposed to wait for them to call, but they don’t call,” he complained.

In any case, it’s fairly obvi­ous that DHS agents aren’t in Port­land simply to protect federal prop­erty or person­nel. They’ve been recor­ded driv­ing in areas far from any federal build­ing and appre­hend­ing people who are not visibly engaged in any crime, let alone a federal one. In these cases, no charges are brought, no laws “enforced.” After hold­ing the person for a short but terri­fy­ing period of time, the agents release them, leav­ing no record of the event. What they leave instead is a message of intim­id­a­tion.

This isn’t the beha­vior of a law enforce­ment agency, state or federal. It’s the beha­vior of a lawless para­mil­it­ary force — and it’s no acci­dent that Pres­id­ent Trump chose DHS for the job. The depart­ment was conceived and struc­tured as a quasi-milit­ary agency in the wake of 9/11. This origin story is reflec­ted in its mission (which includes anti-terror­ism, border secur­ity, and cyber­se­cur­ity), the milit­ary-style weapons and gear it acquires directly from the defense industry, and even its inclu­sion of one branch of the armed forces (the Coast Guard).

The milit­ary mind­set is partic­u­larly strong in Customs and Border Protec­tion. In 2014, the former head of internal affairs at CBP warned that the agency considered itself a “para­mil­it­ary border secur­ity force” that oper­ates outside “consti­tu­tional restraints regard­ing use of force.” CBP has repeatedly demon­strated that its loyalty to Pres­id­ent Trump outweighs fidel­ity to the rule of law. Not coin­cid­ent­ally, the federal agents in Port­land were drawn primar­ily from CBP.

As a legal matter, Trump’s misuse of federal law enforce­ment in Port­land does­n’t viol­ate the Posse Comit­atus Act, because the agents are not members of the armed forces. But with DHS acting as a para­mil­it­ary force, the deploy­ment nonethe­less viol­ates the funda­mental prin­ciple behind the law. And it high­lights the reason that prin­ciple exists in the first place: so that the pres­id­ent will not have a personal army at his disposal to “take over” local govern­ments or to suppress domestic dissent.

Congress and the courts must step in. Other­wise, having found his army, Trump is sure to use it again in coming months. Bully­ing Demo­cratic mayors and governors plays well with his base, whose support was begin­ning to waver due to Trump’s disastrous mishand­ling of Covid-19. More chilling, he could deploy his para­mil­it­ary forces in Demo­cratic strong­holds on Elec­tion Day as a means of suppress­ing voter turnout.

Pres­id­ent Trump has already used federal forces to under­mine local sover­eignty and the rights of protest­ers. This prac­tice must be stopped, lest he use these same tactics to under­mine our demo­cracy come Novem­ber.