Janine Jackson interviewed legal scholar Marjorie Cohn about secret police in Portland for the July 24, 2020, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: As we record this show on July 23, demonstrations in Portland, Oregon show no signs of slowing. Protesters demanding an end to racist policing, in the wake of—and even before—George Floyd’s murder had been met with what local activists describe as typical aggression from Portland’s police department: The indiscriminate firing of tear gas and other munitions into peaceful crowds. Flash-bang grenades. Beatings with batons.
But then came the footage: A man, dressed in black, stands apparently alone on a darkened sidewalk, when two heavily armed men in camouflage walk up on him, hustle him off into an unmarked van and drive off, refusing to identify themselves to observers.
We’ve since learned this is part of an orchestrated effort by the Trump administration to deploy federal law enforcement agents to deal, SWAT-style, with what they call “violent anarchists.” What’s more, they plan to replay those nightmarish scenes from Portland wherever they see fit. As Acting Homeland Security Chief Chad Wolf says, “I don’t need invitations.” Wolf also subsequently described federal agents as arresting demonstrators “proactively.”
Alarm seems appropriate. Here to help us think about what we’re seeing is author and legal scholar Marjorie Cohn. She’s professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She joins us now by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.
Marjorie Cohn: Thanks for having me, Janine.
JJ: These street pick-ups, when you first see it, you think it’s a movie. As I understand it, the line is that these federal agents see someone—not necessarily anyone they’ve seen commit a crime—they say they want to talk to that person, have a consensual conversation with them. And then they, the agents, fear for their own safety, so they decide they want to have that conversation elsewhere, like the courthouse, and then, “Oh, you’re free to go. This wasn’t even an arrest at all.” Is that legal, or constitutional?
MC: No, it’s not. In order to have a legal arrest, you need probable cause to believe that the person committed a crime. And these snatches, by unidentified federal officials in unmarked vehicles, snatching peaceful protesters off the streets, transporting them to unknown locations without informing them of why they’re being arrested, and later releasing them with no record of their arrest, violates the law.
And this “proactive” arrest that the Department of Homeland Security is intending to carry out, violates the Fourth Amendment, which requires that, as I said, an arrest be supported by probable cause. This reminds me of the movie Minority Report, where they’re trying to predict who’s going to commit a crime. There is nothing in the law that allows “proactive arrest.”
There have been lawsuits filed, and they basically allege violations of the First Amendment, freedom of speech and press; the Fourth Amendment, prohibition on unreasonable searches and seizures; the Fifth Amendment, right to due process; and the Tenth Amendment, which says that powers not delegated to the feds are reserved to the states. And this is what is being litigated now.
JJ: One attorney, Juan Chavez with the Oregon Justice Resource Center, said, “It’s like ‘stop and frisk’ meets Guantánamo Bay.”
Well, federal law enforcement are permitted to go into states to protect federal property like courthouses and to prosecute federal crimes. But policing protests, just at the letter of the law, goes beyond that function.
MC: Yes, it certainly does. And, in fact, a lawsuit that was filed two days ago, on behalf of the First Unitarian Church of Portland, a public benefit corporation and two Oregon state representatives, alleges violation of the Tenth Amendment, and says that these abductions occurred outside the jurisdiction of federal law enforcement; those abducted were not attacking federal property or personnel, and they weren’t on federal property at the time that they were abducted. The ostensible, or the stated, reason for these federal goons to go into Portland, and other cities as well, which is happening as we speak, is to protect federal monuments and statues. Trump issued an executive order on June the 26th, saying that his federal forces were going to protect these monuments.
And there’s no monuments around where they were. Mark Pettibone—who’s one of the plaintiffs in the lawsuit filed by the Oregon Department of Justice against Homeland Security and the US Marshals—he was accosted, he was one of these people who was snatched off the street and then released without any citation. He was taken in this unmarked van to a federal courthouse, the Mark O. Hatfield US Courthouse.
And actually, neither the mayor of Portland nor the governor of Oregon invited or welcomed these federal troops, and last night, it’s my understanding, that the Portland mayor was tear-gassed when he was standing near this courthouse, doing nothing; he was standing there, and it was his first time he’d ever been tear-gassed.
So they’re just going way beyond any legal authority that they might have. And mayors in other cities as well—who are on Trump’s hit list, I guess you would say—are also saying, “We don’t want federal troops in our cities.” Now, these mayors often welcome federal assistance when they’re working cooperatively in drug enforcement or other kinds of criminal enforcement, but this goes way beyond that.
And it’s calculated by Trump to boost his sagging poll numbers. He’s taking a page out of Richard Nixon’s “law and order” playbook, because he’s so botched the response to the coronavirus, in fact responsible for thousands of deaths, when he’s been in denial about it, and actually stood in the way of really responding in an effective way. So now he is trying to shift the conversation, shift the discourse to anarchists, violent anarchists, left-wingers, Joe Biden would be behind this. And he’s going to come in on his white horse with his federal troops and take care of it and restore “law and order,” but, in effect, he’s breaking the law. His troops are breaking the law and creating chaos.
It’s interesting, Janine, because why didn’t he send in the military? I think there’s a reason why he sent in the Department of Homeland Security, Customs and Border Protection troops: They’re loyal. They’re also not trained for this kind of thing, either, even if they were legally allowed to be in these cities.
But the Uniform Code of Military Justice provides that service members must obey lawful orders, but they have a duty to disobey unlawful orders. And these people, these troops, the secret military force that Trump has been sending into these cities, or sent into Portland–and Chicago’s next on the list, and Albuquerque–these could be reasonably construed as unlawful orders, orders to carry out unlawful actions. And I think it’s not altogether unlikely that he’s worried that military people would resist those orders and refuse to carry them out.
And maybe that’s why he has cobbled together this secret paramilitary militia: It has been the Customs and Border Protection, US Marshals, Federal Protective Service, and now they’re going to add the FBI, the ATF—Alcohol, Tobacco and Firearms–the Drug Enforcement Agency, to this list of federal agencies.
JJ: I can see the worry about maybe not using the military because, as you have written about, there was military official pushback after his photo op thing, where he used military officials to clear out the space in front of the church, and there was some indication that, “You know, we’re not going to necessarily have your back.”
Now I did though want to say: So we’re bringing in this cobbled together force that includes Customs and Border Patrol, maybe some of them now deputized into this kind of vague Federal Protective Service. And these people, as you mentioned, aren’t trained to do crowd control, much less trained to do the kind of de-escalation that would be necessary to protect a protest that is against police.
But what those folks do have a history of, what they do have training in, is rolling up on people and taking them away in vans, when those people’s crime is being undocumented. And that’s something that people are reminding, that not only should we be careful about saying these tactics aren’t “American,” since the US has done and is doing them in other places. But we also shouldn’t say that this has never happened here before, because that’s not really true either.
MC: Well, it hasn’t happened in this kind of a setting, in this way.
MC: But you’re right, the Customs and Border Protection agencies are notoriously— I’m not saying every single one of them—but notoriously racist, anti-immigrant, nativist and very brutal and violent. When they are supposedly enforcing the immigration laws, they kill people and deny them of their rights.
And you’re right. They are absolutely not trained in crowd control, which is not in their purview anyway. They have no right to be in the middle of Portland, doing crowd control, where their stated authority is to protect federal monuments. They’ve gone way beyond the purview. And they are actually saying that they’re enforcing the law, where it’s really the purview of the state authorities to be enforcing state law, and, unfortunately, I think we’re going to see this expand and escalate throughout the country, as Trump gets more and more desperate to elevate his falling poll numbers.
JJ: Right. And speaking of context, there is something, I agree, especially eerie and frightening about this bundling people into vans footage, and it’s true that we had seen it in the past sometimes with undocumented immigrants, including people forming bands around them to protect them from being hustled off. But the thing is, we don’t want that to be… while it’s especially horrible, we don’t want that to be because we’ve become numb to images of demonstrators being shot with munitions, being beaten with batons, being tear-gassed. And you wroteearlier this month—I saw it on Truthout—about [how] we’re not just seeing videos of extremely rare, nearly unique instances; there really is a widespread problem of police abuse of protesters going on.
MC: Yes, there is. And I think it’s going to get worse. You know, when you think of the image of people being snatched off the streets, peaceful protesters doing nothing illegal being snatched off the streets by people that aren’t wearing uniforms, and placed into vans: This reminds me of the dictatorships in Latin America, that were supported by the United States, who disappeared people, it was called disappearing people. And they would do it in broad daylight: snatch them, just like this, and put them in a van, and many of them were never heard of since; many of them were killed. This is kidnapping. And they did it in broad daylight, to send a message to other people that, “If you don’t do what we want you to do, this will happen to you as well.”
In the Oregon Department of Justice’s lawsuit against Homeland Security and the US Marshals, they wrote:
Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is a victim of a crime.
And kidnapping by militia and other malfeasants dressed in paramilitary gear would trigger the lawful right of self-defense.
So what they’re doing is setting up a situation where people think they’re going to be kidnapped and would fight back. And if they’re armed, they could use weapons, and this could lead to killing, it could lead to a horrible situation. This is kidnapping, pure and simple; no probable cause for these arrests.
JJ: It seems like almost a side note, but let’s talk for a minute about the concealed identities. You know, it’s not like these folks were undercover; they didn’t blend. So why conceal your identity, except to evade accountability?
MC: Absolutely. And, you know, this opens the door to right-wing vigilantes putting on military fatigues, camouflage outfits, and doing the same thing that these federal agents are doing. And I don’t know what Trump would say about that; he has a double standard, of course, when right-wingers do it, then, you know, that’s fine, but he’s painting Black people as terrorists, he’s painting white people as antifa, the white allies in the Movement for Black Lives, painting them with a broad brush, pulling out accusations that these are left-wing Democratic anarchists, violent anarchists, and if Joe Biden is elected, this is what we’re going to get.
There is a certain critical mass—and I don’t know if it’s 30% or 40% or what—of people who support Trump no matter what, and it’s music to their ears, and that’s who he’s playing to, that’s his base, that’s who he is relying on to put him in the White House again.
And quite frankly, Janine, what I’m concerned about is that this is all a dry run for an election that goes against Trump. He declares martial law, and he uses his federal goons to maintain power. Now, if he tries to use the military, I really suspect that a large number of service members would disobey those orders.
But when he was asked on Fox News by Chris Wallace, whether he would accept the results of the election, he said, “I have to see.” I have to see? Can you imagine? It depends; if I don’t like the result, I may not accept the results of the election. And that, combined with a massive program of voter suppression, is very, very frightening.
JJ: Just finally, Philadelphia’s District Attorney Larry Krasner says: Try it. Anybody, federal agent or not, committing crimes in my district will be arrested. Rashida Tlaib says, “They’ll have to arrest me first” if they try to bring this to Minneapolis. So we have some legislation; there’s legislation about agents have to identify themselves and their agency. We’ve got lawsuits from the ACLU and other folks.
But it seems really clear that people are the power that is driving things right now. So I just want to ask you to talk about what we need to do to actually vouchsafe the right to protest in this country, and where does that power lie? Clearly, we can’t only rely on the legal system to protect these rights.
MC: It’s the power of the people, and people are in the streets—hundreds of thousands of people in the streets in US cities, and in cities around the world—in support of the Movement for Black Lives, and against police brutality.
And, yes, we can’t rely on the legal system, but it’s a tool that we have to use. And I’m very proud to say that my organization, the National Lawyers Guild, is front and center in the middle of legal defense for the protesters, the legal observers who wear those green caps, marked “National Lawyers Guild.” They’re not protesters; they’re there to witness what the police are doing. And they have been the target of police brutality and violence.
And, in fact, there is an ACLU lawsuit to enjoin, it’s asking for an injunction against these federal agents targeting legal observers, and targeting journalists as well, because the last thing in the world that the Trump administration and his goons want are witnesses, are media that are witnessing what’s happening, and so they’re going after journalists; they’re going after legal observers.
But there are lawsuits being filed in support of the real power, and that is the power of the people. And we’ve seen that in the streets for the last 50-some days, since the public lynching of George Floyd, and I think that what Trump is doing is going to exacerbate, or elevate, those protests. We’re going to see much more protesting, now that he is committing these illegal atrocities with his private paramilitary force.
JJ: We’ve been speaking with Marjorie Cohn, you can find her recent work on Truthout.orgalong with other outlets, as well as her own site, Marjorie Cohn com. Thank you very much, Marjorie Cohn, for joining us this week on CounterSpin.
MC: Thanks so much, Janine.