Probe with bayonets. If you encounter mush, proceed; if you encounter steel, withdraw. — Richard M. Nixon attributed to Vladimir Lenin.
I have been tracking the social media reporting of Federal law enforcement officers in sterile uniforms – no badges, crests, insignia, or name tags other than a strip stating “Police” – operating in Portland since the earliest tweets about it. It took almost a week before local news in Portland started covering it. Which largely seems to have occurred because Oregon’s governor and Portland’s mayor responded publicly and negatively to the Federal law enforcement actions. This local coverage finally pushed it into the national outlets this morning.
I have been worried about something like this happening for over a month now since the beginning of the protests in response to the murders of George Floyd and Breonna Taylor. That teams of Federal law enforcement, with the majority coming from the Bureau of Prisons Disturbance Response Units (they’re trained to go in one on top of each other into cells or areas of Federal prisons and use maximum force to achieve compliance) and C&BP’s equivalents of Rapid Response Units would be deployed to all the major urban areas, especially those with majority or plurality minority populations (African American, Latinx, or a combination of the two). Specifically, that they will be used in an increasingly visible manner over the next 100 days or so culminating in widespread visible use of them during early voting periods and on election day in or near voting precincts, as well as near mail in ballot drop boxes at municipal facilities. A program of voter suppression under color of law. While the mayors and governors of these states who are Democrats will push back, and the Democratic governors won’t allow their National Guard to be pulled into these operations, the states that have Republican governors aligned with the President like Florida, Georgia, Texas, Ohio, etc, even if the cities being targeted have Democratic leadership (Miami, Tampa, Orlando, Atlanta, Austin, Houston, Cincinnati, etc), will play ball with the President, the Attorney General, and the Acting Secretary of Homeland Security.
The goal of such operations would be to increase the fear and stress levels in big cities with significant minority populations that overwhelmingly vote Democratic to depress turnout. Voter suppression under color of law. I expect that whatever executive order (EO) the President issues next week will be declaring some sort of national emergency regarding the degradation of law and order in US cities that authorizes the Attorney General and the Acting Secretary of Homeland Security to utilize Federal law enforcement to respond. For those not following it, as it did not get a lot of coverage, the President telegraphed the signing of such an executive order on Wednesday regarding restoring order while flanked by the Attorney General.
Flanked by AG Barr, Pres says he's planning announcement next week on Federal action to quell violence in cities, citing Seattle, Minneapolis, Chicago. He says some cities "are like war zones," and makes it partisan, saying they're run by "liberal, left-wing Democrats." pic.twitter.com/MEPVVrk1Dq
— Mark Knoller (@markknoller) July 15, 2020
And, of course, the beauty of issuing a national emergency declaration is it gives the President broad and sweeping powers to do a lot of things that aren’t directly referenced in the declaration. The Atlantic published the definitive rundown of what the President is allowed to do under a declaration of national emergency back in January 2019.
A second major concern has to be the Customs & Border Protection goons. C&BP asserts that they have jurisdiction to operate anywhere within 100 miles of the border, which includes all of the Atlantic, Gulf, and Pacific coastlines, as well as a 100 mile radius of all international ports of entry into the US, which is every airport that receives international arrivals or the direct shipment of international goods into the US. This puts around 2/3rd to 3/4s of the US citizenry, based on where they live, under C&BP jurisdiction. The ACLU has the details about what Customs and Border Protection asserts is its jurisdiction. And, of course, the Acting DHS Secretary, when asked about the operations in Portland, stated that DHS had jurisdiction everywhere to protect Federal facilities. Which is also most of the metropolitan/urban US.
Trying to formulate a response to the ongoing Federal law enforcement operations in Portland, as well as the potential for them to be undertaken elsewhere in the US, is made more complicated because some of the most extreme right, neo-fascist, racist groups in the US have already been trying to do this.
Some alleged KKK members were arrested in #Richmond for impersonating police officers. These men had fake badges, police vests and they had zip ties that were allegedly going to be used to kidnap unsuspecting Black people.
Could this be why so many Blk ppl are found hanging? pic.twitter.com/OLIDjTmRbI
— Tariq Nasheed 🇺🇸 (@tariqnasheed) June 30, 2020
Fortunately local law enforcement in Richmond arrested the alleged Klansmen who were impersonating law enforcement officers before anyone was hurt or killed. But it raises a real problem vis a vis what we are seeing with the Federal law enforcement operations in Portland: are you being scarfed up by real law enforcement in sterile uniforms or by the Klan or the Proud Boys or the III% militia or Ammon Bundy’s crew who are trying to overthrow the Republican governor of Idaho or any of a dozen other white supremacist, neo-NAZI, neo-fascist, militia, and/or patriot cosplay groups impersonating law enforcement in sterile uniforms?
Now that the Republican National Committee is out from under the Federal court imposed requirement not to use paid election monitors, I have long predicted that they would hire off duty law enforcement to work as election monitors while in uniform. While this is what got them in trouble to begin with in the 1980s and resulted in the Federal court order that was finally lifted last year, the RNC knows it works and paired with an escalating use of Federal law enforcement within urban areas between now and the election in November would go along way to suppressing the vote under the color of law.
My final concern, and it is a major one, is the Department of Justice’s Office of Legal Counsel (OLC). OLC’s job is to provide the executive branch with interpretations of the US Constitution and Federal law, delineating what is constitutional and lawful in regard to executive branch actions and activities. OLC’s guidance, however, is largely secret. Until or unless the DOJ or the White House or a specific executive branch department, agency, bureau, or office needs to make public OLC’s guidance to justify an action taken or not taken, no one outside of the OLC and select others in the executive branch even know that OLC has provided guidance on a specific matter, issue, or action. The OLC functions as producer of secret law for the executive branch. Attorney General Barr’s first senior appointed position at the Department of Justice was as the Assistant Attorney General at the Office of Legal Counsel. If you don’t think that AG Barr hasn’t had the OLC churning out opinions over the past two years or so in support of both AG Barr’s ultimate political objectives, as well as in support of the President, then I have a bridge to sell you! I guarantee that whatever DHS, C&BP, the Bureau of Prisons, the US Marshals rapid response personnel, and other Federal law enforcement are doing in these operations, or may do if they are expanded, has already been justified by OLC guidance. Before anyone asks whether this is really something to be concerned about, I’ve already asked a very senior subject matter expert on this whose response was: “that is a very good question, I don’t know, but I know who to ask.” When he got back to me with the responses of the people he asked, the response was: “they don’t know either.” That is not reassuring.
While people are right to be concerned about this being done in Portland in regard to that it is being done in Portland, the real concern needs to be whether this is a trial run for other cities in the run up to election day. The President is desperate. If it wasn’t clear to him before last week’s Supreme Court ruling that allows the Manhattan DA, and ultimately other state and local prosecutors, to get materials about him from third parties for investigations into whether he has committed state and local crimes that he is in serious jeopardy, it is now. And that will harden the realization that he is either reelected and remains in office or he will be prosecuted. He is basically in the same position that Bibi Netanyahu is in: reelection or prosecution and most likely prison. And given the criminality by those around him, both those taken by those around him to protect him and to enrich and empower themselves, senior and intermediate members of his administration all have the same concerns. The only way they stay out of criminal jeopardy is if the President is reelected and they stay in his good graces. That’s a lot of motivation to do anything and everything, even use the tactics that Putin, Erdogan, Xi, and Bibi use (both less lethal on domestic Israeli Jewish opposition and more lethal on the Palestinians and Israeli Arabs) both day to day and, especially, in the run up to elections.
I’m glad that there are several well connected protect democracy groups trying to ensure the integrity of the election and its results. And that Marc Elias, the go to election attorney for Democrats, is spooled up and running. I’m glad they’re building a large team of lawyers for election day. I’m glad they know it is going to be a fight. However, I’m not particularly enthused that they can’t seem to grasp that this fight isn’t going to happen just in courtrooms and through the filing of motions or be resolved on the ground by thousands of lawyers at the polls as part of get out the vote programs. Those lawyers aren’t going to do anyone any good when a BOP knuckle dragger in a sterile uniform decides to scarf them up on election day, drive them around in an unmarked, rented van for twelve hours, then stand them up against a wall face in and bark questions at them for another six hours, and ultimately release them after eighteen or twenty-four hours with no paperwork.
We are now in the world of the irregular, the asymmetric, and the unconventional. And the people who have stepped up to lead the response understand the world as conventional. As someone who has held senior supervisory civilian appointments as a senior civilian advisor I’m a huge fan of process for how the US government is supposed to work. But my work for the US government as a mobilized civilian and as a contractor, both the conceptual and operational work, is within the world of the irregular, asymmetric, and the unconventional. And that is the world that we are now in. The President, Attorney General Barr, Senator McConnell, the Acting DHS Secretary, the DNI, and a whole host of other senior and intermediate level appointees, as well as the President’s surrogates within the Republican Party, and his enablers within the conservative movement have no interest in the conventional world of American politics based on norms, rules, traditions, institutions, systems, and processes except for how they can use and manipulate them to achieve their specific objectives.
Since the President came down his escalator and announced his campaign in June 2015, he and those working for him both in his campaigns and now in his administration, as well as those like Senator McConnell, have been engaged in an irregular, asymmetric, and unconventional political war against the United States and the American people. The Democratic Party; elected Democrats; party officials at the national and state level; the US news media, especially political reporters, editors, and bookers; and far too many Americans have tried to treat this as just business as usual, though just at the outer bound of what is politically and legally usual. What we call normalization.
Unfortunately, the US political system, beginning with the Constitution, is not built to respond to, handle, and/or deal with an irregular, asymmetric, and unconventional insider threat that recognizes no authority other than that of their own power and sees every law, rule, norm, and tradition solely as a means to obtain power, maintain power, expand power, or direct power to reward allies and punish opponents. The President’s actions; those of his two primary protectors Attorney General Barr and Senator McConnell; those of his other protectors like new DNI Ratcliffe, former Acting DNI Grennell, the Republican caucuses in the Senate and the House, the Republican governors aligned with the President, and his surrogates and supporters in the conservative movement and the conservative news, digital, and social media ecosystem are all part of this irregular, asymmetric, and unconventional political warfare being waged on America and Americans. An unconventional political warfare campaign that has dovetailed nicely with the one being waged against the United States, its allies, and its partners by Putin since at least 2014*. Their ultimate goals are within their grasp. AG Barr’s is establishing the presidency as an elected monarchy. Senator McConnell’s is permanently establishing a Federalist Society majority on the Federal courts, as well as establishing permanent minoritarian control of the Federal government through the Electoral College and a senatorial election map that after 2024 will be weighted more and more towards ensuring a Republican majority in the Senate. The President’s objective, of course, is being reelected.
Whether it is the Biden campaign, the various protect democracy groups, outside PACs and SuperPACs, the Democratic Party – they all need to be screaming about what is happening and what could happen. They need to be all over the political reporters, their editors, the bookers for the broadcast and cable shows about this. The wider the coverage it gets, the more light that is focused on it, the more pushback that can be generated and sustained, the less likely that what every bit of my professional expertise is screaming at me is going to happen and what is keeping me up at night will actually occur. Chuck Todd needs to so paranoid over this that they can observe him vibrating away in terror from the Crab Nebula! The way that Federal law enforcement and the National Guard has been used in DC to respond to the protests over George Floyd’s death to what we’re currently observing in Portland have all been not just responses in and of themselves, they have also been probing actions. The President, AG Barr, the Acting DHS Secretary, the Acting C&BP Director are using these operations to gauge the responses. If and when they don’t get push back, or sufficient push back, they’ll accelerate what they’re doing. The only way to prevent it is to make sure it is getting wide spread coverage to generate sufficient push back to make them stop.
I just want to stipulate that I hope that I am wrong, that I want to be wrong. And I will be very, very, very happy if all of you can come along in November and then, again, in January, and tell me “told you so!”
* My article on the changed nature of the character and characteristics of 21st century warfare is forthcoming from The Cipher Brief.