The “Ratchet Effect” in Real Time
2020-07-24 · Guest: Pat Eddington (Research Fellow at the Cato Institute) · 52:30
Federal police power and the Portland experiment
Bob Zadek and Pat Eddington discuss the deployment of federal agents in Portland as a test case for expanded federal police power. They explore the historical erosion of local criminal law, the mission creep of the Department of Homeland Security, and the controversial “100-mile border zone” that grants federal agents broad search and seizure powers over a majority of the U.S. population.
Topics: Federalism, Police Power, Homeland Security, Fourth Amendment, Portland Protests, CBP, FBI History, 100-mile border zone
Speakers:
- Bob Zadek - Host
- Pat Eddington - Research Fellow in Homeland Security at the Cato Institute
The Portland Experiment [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Yes, on all of radio. Thank you so much for listening this Sunday morning. We are this morning and always the show of ideas, never once the show of attitude.
This morning we get to explore some core, core political issues. The question that will come up frequently during this morning’s show is: what type of government do you prefer? Putting aside where you appear on the left-right spectrum, would you prefer to have no states, one federal government, eliminate the states entirely and all rule comes from Washington, keep intact the rest of our form of government? Or would you prefer to have our system of federalism as given to us by the founders, where a lot of the political decisions about your life are made at the more local level of states and counties as opposed to Washington?
A second related question, irrespective of how you answer the first question, is: would you feel more comfortable having a system of government, unlike the one given to us by the founders, with a federal police force and all criminal law dictated by Washington? That is to say, all the rules governing everyday life of citizens—alcohol, drugs, etc.—is dictated by Washington, or should it be dictated based upon the mores of your communities? That is our topic this morning, and you had better decide, or else that decision will be made for you.
The case in point, believe it or not, is what is going on in Portland. What I’d like to call the “Portland Experiment.” Yes, there is an experiment going on in Portland, but not an experiment that would make you particularly happy. It is an experiment, it is a test by Washington of how far Washington can push the envelope and extend federal police power into localities, cities, and counties. This is an important issue. It will directly affect how much freedom you get to exercise as an American and what control you have over limits on that freedom.
I’ve asked Pat Eddington to join us this morning. Pat is an expert on this entire subject matter. Pat is a research fellow in Homeland Security at Cato, our favorite and most important think tank in America. Pat has spent 10 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, and where are we about—and I say “about” in terms of days—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.
DHS and Mission Creep [02:27]
Bob Zadek: So Pat, you have written extensively and studied even more extensively, if that’s possible, on the mission creep of Homeland Security. I say Homeland Security describing all of the alphabet soup of agencies that are engaged and exercising one form or another of police power under the guise, under the protective umbrella, under the political cover 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, somewhat insidious, for me quite scary. Tell us about the experiment that right now is being undertaken by the federal government in Portland and soon coming to a city near you.
Pat Eddington: Well, 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 utilizing that very provocative headline was to highlight the fact that this radical deployment of Border Patrol, Immigration and Customs Enforcement personnel, and the like into an American city uninvited—I think it’s really important for us to emphasize that fact. In the case of Portland, neither the mayor nor the governor of the state asked for federal intervention here with respect to protests that had been taking place.
Instead, what we have seen here, in essence, is an effort on the part of acting DHS Secretary Chad Wolf, in coordination with Attorney General William Barr over at the Justice Department, to essentially set a precedent whereby the federal government, in the absence of any kind of emergency declaration on the part of the state government or a direct request for federal law enforcement assistance, 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.
I think it’s really instructive that very, very recently, Jo Ann Hardesty, who is a city commissioner in Portland, said at a recent news conference—and I want to give the exact quote here, this is her being quoted by the New York Times—quote, “What is making more people come to the street every night now is the brutalization that’s happening to regular community members at the hands of Portland police and these federal agents,” end quote.
If you take a look at the chronology of events in Portland, by the end of May, certainly by mid-June, an awful lot of the protests had actually begun to peter out a little bit. You were beginning to get a level of responsiveness from city officials. The existing Portland police chief stepped down because of controversial policies there, including what appears to be an unjustified shooting of a Portland resident, and so on. So the situation was actually on a glide path, I think, towards stabilization, if not some level of resolution.
Then we had the Attorney General—first we had the President on June 26th issue this executive order for the so-called protection of monuments. It was within just a few days after that 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—and these were questions that Senator Harris posed on June the 6th, June the 6th—one of the things that she had asked about, essentially, was the extent to which DHS and related personnel, particularly Customs and Border Protection, were going to be deployed around the country.
The total number of CBP personnel apparently that are involved in these operations, not simply in Portland but either actively on the ground in other cities now or preparing to go: 2,174 personnel from Customs and Border Protection. The total number of CBP assets—and we’re talking about aircraft and vehicles here—apparently include 38 helicopters, 8 fixed-wing aircraft, 4 drones, 4 unmanned aerial systems (UAS is the shorthand for drones), one BearCat which is a specific kind of front-loader type vehicle, 50 marked vehicles, and then 52 unmarked vehicles, as well as 2 ATVs and 3 vessels.
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 CBP’s total authorized strength. So it’s a massive use of CBP agents in that regard. They’re looking to deploy these folks, according to the responses that they gave to Senator Harris—and again, I have to emphasize, this was on June the 6th these questions were asked, I don’t think that she got the answers until a little bit after that—but they’re looking to deploy these agents in Chicago, in Ohio, in the Clinton area, in Spokane in Washington, in Tucson, elsewhere in Michigan, in Texas. So this is a country-wide massive effort on the part of DHS and specifically CBP. There’s simply no precedent for it.
Historical Context of Federal Policing [10:44]
Bob Zadek: Now, the observation—I’m sorry, just wanted to interrupt if I may for a second because you said some very important words, Pat, I know you know them. You said “there is no precedent for it.” It’s helpful if we put this issue of using, in effect, federal police—now, they’re not police, they’re Customs and Border Patrol with a, we believed, specific mission: protect the border. Now, nobody, no federal official law enforcement is going to Portland to protect the border.
We have a very important history of federal criminal law. Typically, and 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 and localities because criminal law is a function of local mores. Putting aside the broad constraints of the Constitution, putting those very broad principles aside, criminal law is significantly always been the province of the states.
Now Pat, I’m going to take an aside and I’m going to—we didn’t prepare for this, Pat, I’m doing this with a smile on my face—but looking at the history of federal criminal law, can you name the three original federal crimes? There are only three found in the Constitution.
Pat Eddington: Well, I think there—I have to confess, I’m not an attorney myself, but what I will say is that treason, bribery, and high crimes and misdemeanors are, of course, the three specific things that are mentioned with respect to the impeachment provision located in the Constitution.
Bob Zadek: Treason, specifically treason, counterfeiting, and you’ll never guess the third one: piracy. Okay, so we had federal criminal law with three crimes. Not a lot of action in those three crimes these days. Okay, then in 1807, Congress passed the—early during the early term of our country—the Insurrection Act, which allowed and invited federal force to go into a locality to quell an insurrection as defined in the statute. Insurrection—pretty—we’re not talking about a protest because of the killing of a civilian by the police. Insurrection—a big deal.
Then we race ahead to 1878 and we have the Posse Comitatus Act, which is post-Civil War, of course, and the federal government enacted legislation which prohibited federal police, using the military to enforce criminal law. We felt strongly in 1878: no, criminal law is local. Posse Comitatus Act.
Then we race forward to 2002, a statute that Patrick will refer to, I dare say, during our discussion this morning in the aftermath of 9/11. So 2002, the Homeland Security Act, which again snuck in a provision that I think Patrick will refer to, which allowed the President to, on a finding of a declaration, send in federal troops—not police, we don’t have a police force—federal troops to protect federal buildings and monuments. And that’s in 2002. That, my friends, is kind of a rough context for the intersection between the feds enforcing federal criminal law and the use of the military. And throughout the show, bear in mind those—that very rough outline. So we have been in 240 years pretty stingy in inviting the feds to create a federal police force either in behavior or in fact. I’m sorry, Patrick, I just wanted to give our friends out there a context for this morning’s conversation.
Pat Eddington: No, I think that having some of that additional historical context is useful. Permit me, if you will, to provide a little bit more. I think that the basic idea that the founders generally wanted states and localities to handle criminal law and criminal matters, that 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, essentially, in which it is asking essentially federal agents to get involved in investigating specific crimes.
Now, I think it’s important to bear in mind that the very first kind of semi-large-scale federal police force was, in fact, the Secret Service. It was in the wake, of course, of the assassination of President Lincoln. Then as the decades went on, the Secret Service was heavily involved, of course, primarily at least initially in dealing with counterfeiting. But certainly, they also, through congressional enactment, took on the issue of protecting the person of the President.
What you look at, if you take a look at the first 10 years of the 20th century, is you see a fundamental shift begin to take place here whereby under President Theodore Roosevelt, the Secret Service is used extensively, 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 the Navy to investigate a young naval officer. This was done at the request of the parents of the wife of the naval officer. They believed that the husband of their daughter was engaged in an extramarital affair and they wanted the Secretary of the Navy to essentially investigate whether that was the case. Back in those days, you know, that kind of thing would have represented a pretty big career 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 Treasury Secretary for the—or asked the Secret Service to essentially conduct this investigation. Not shockingly, it did not stay secret. When this came out in the late fall and early winter of 1907 and into early 1908, it resulted in a massive hue and cry coming out of Congress and in the press. 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.
So President Roosevelt’s response to that was to go to his Attorney General, Charles Bonaparte, and say to him, “I want you to create an entire corps of agents to go out and do investigations on these other issues that I’m concerned about.” And so that is when the Federal Bureau of Investigation came into existence. It came into existence on July 26, 1908. So we are actually having your program today on the birthday, the official birthday of the Federal Bureau of Investigation.
They wound up, over time, of course, expanding what the FBI could essentially do. Then when you get into World War I, it is when President Woodrow Wilson then, you know, gets the Congress to pass things like the Espionage Act, the Trading with the Enemy Act, the Food Control Act, and things of this nature that then lead to this massive use both of the FBI and the Secret Service to investigate Americans on the basis of those particular statutes.
So that’s where we kind of get this issue essentially of the creation of a de facto federal police force. That’s really what the FBI became, but it was more than that. It was primarily, and remains to this day, primarily a domestic intelligence service. That’s what tends to get the FBI in an enormous amount of trouble all the time, is that they wind up spying on people and going after people for political reasons rather than actually chasing down people, let’s say, for espionage or things of that nature. So it really does—this whole issue of the creation of a federal investigative law enforcement capability, national in scope, national in power, if you will, really does date just before the turn of the 20th century, but it gets on steroids essentially once the FBI comes into existence and then begins to expand.
The Political Incentive for Federal Crimes [21:02]
Bob Zadek: Now, one political observation, if I may, is that there’s a clear cause and effect in the massive growth of federal criminal law, something which was totally foreign to the founders. And that is the fact that if you are an elected official, a member of the legislature in the House or the Senate, you will never, ever lose votes by criminalizing, 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 inappropriate, you will gain votes. So therefore, 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 insofar as criminal law is concerned.
The Portland Experiment Today [22:27]
Bob Zadek: Okay, Patrick. So now we have Portland today. The Portland—and the word is apt—experiment. So tell us about—we have read a bit about acts that somewhat are similar to rendition of seizing citizens off the street. So now we have an agency—one or more agencies—which are tasked with the responsibility of protecting the border. They are sent to Portland for a mission having nothing whatever to do with protecting the border or immigration or anything remotely like that.
So tell us about: what is the legislative basis? 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, and what is the basis for your conclusion? And am I correct in expressing the fear that, as I said in the opening, soon to become coming to a city near you?
Pat Eddington: So I think it’s important to realize that when the President issued his so-called monument protection executive order on June 26th, there was already on the books a specific section of the US Code, in this case 40 U.S. Code 1315: Law enforcement authority of Secretary of Homeland Security for the protection of public property. This is a direct outgrowth, of course, of the creation of the Department of Homeland Security through the Homeland Security Act of 2002.
The scope of this statute in terms of what it gives the Secretary the ability to do here is really quite sweeping. When engaged—and I’m going to quote directly from section two of the statute here—“While engaged in the performance of official duties, an officer or agent designated under this subsection may: (A) enforce federal laws and regulations for the protection of persons and property; (B) carry firearms; (C) subsection 2(C): make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent, or for any felony cognizable under the laws of the United States if the officer or agent has reasonable ground, reasonable ground, to believe that the person to be arrested has committed or is committing a felony.”
And then it goes on to talk about their ability to serve warrants and subpoenas, conduct investigations, and then finally subsection (F): “carry out such other activities for the promotion of homeland security as the Secretary may prescribe.” Now that last section, that section (F), is literally a giant, giant grant of authority, unspecified, no time limitation, etc., etc., which gives them an amazing latitude to go and do these things.
Now, I would make the point that the incident that occurred in Portland on July 15th, when a protester by the name of Mark Pettibone was seized off of the streets by what appears to have been Customs and Border Protection personnel, stuffed into an unmarked van and then taken down to the federal courthouse and questioned for some time without counsel present—there is absolutely no basis for that kind of what I’ll simply refer to as a catch-and-release kind of approach to law enforcement. There’s nothing constitutional about it. It represented a clear violation of Mr. Pettibone’s First and Fourth Amendment rights at a minimum.
He was wise enough, when he was illegally detained, to refuse to answer their questions, and I think that probably helped to facilitate his getting out of there as soon as he did, in addition to the publicity surrounding his de facto kidnapping by federal agents. So these are tactics, essentially, that I have argued, and I argued in that July 21st blog post, that are being test-bedded essentially here on the people of Portland in order to develop what we would call in either military or law enforcement terms a Standard Operating Procedure (SOP) for how CBP and other DHS agents who might be detailed to this kind of activity will then subsequently comport themselves in these other cities, whether they’ve been invited into these other cities or not.
And there’s no question that Governor Kate Brown of Oregon, she has really badly mishandled this entire crisis. And I say that with all due sympathy to the fact that she is a state governor and clearly does not have the same kind of overall power or resources that are necessarily available at the federal level. But the reality is that the Tuesday before this influx of DHS agents into Portland, she got a call—and she said this on Chris Hayes’s program on MSNBC—that she got a call from acting Secretary Chad Wolf, DHS Secretary Chad Wolf, telling her that he was about to do this, that he was about to deploy these agents.
Now, it was in 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.” And 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 have 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 have helped to contribute to the paralysis essentially of DHS operations.
I also believe that since the airports within the state of Oregon are not run by the federal government, they are essentially creations of the states and localities, that she would have been within her authority under emergency legislative authority in Oregon to order those airports to refuse landing rights to federal aircraft. I believe she would have been within her power to do that. She did not do any of those things.
And you know, I’ve had some folks say to me, “Well, you know, this is unprecedented, she didn’t see this coming.” And my attitude is: if you get a heads-up call from the Secretary of Homeland Security to tell you as a governor that you’re about to get federal troops or federal agents that you didn’t want, you need to be able to think on your feet. You need to be able to react to these situations. And above all, you need to have a sense of history. This is not the first time that we’ve seen federal officers, you know, be utilized in an inappropriate fashion. It’s not the first time that we’ve seen federal personnel, whether they are law enforcement or for that matter federalized National Guard, be employed against protesters in ways that were clearly unconstitutional and ridiculously violent. So the history was there, and I just have to say that it’s very unfortunate that she did not have the presence of mind to really confront Secretary Wolf at the time. And unfortunately, the people of Portland are now paying the price for that, and that’s very, very sad.
The 100-Mile Border Zone [30:12]
Bob Zadek: Patrick, I’d like our friends listening to the show and to the podcast to have yet another—we have discussed earlier in the show the context of the growth, 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 100-mile border.
Just to introduce the subject so Pat you can explain it to our friends: listeners to the show, generally a well-informed group, probably are wondering by what authority can the Customs and Border Patrol, who are charged with the responsibility of protecting the border, by what authority can they do anything other than at the border? Customs and Border Patrol. So one would think the Border Patrol polices the border, and they are not a general—as close as one can come to a federal police force.
But through some ill-advised Supreme Court decision and the aggressively seeking to expand that by the federal government in general, Customs and Border Patrol in particular, they have in a very stealth way almost become a federal police force with authority to perform acts that no policeman is allowed to do, and they can perform that not at the border, but anywhere in the country. So please explain to us briefly the growth of authority through the Supreme Court case which you will help us understand, and through CBP expansion of that authority, how they get to be as close as one can come (A) to a federal police force and (B) a federal police force with more authority than any other police force has, particularly with respect to the First and Fourth Amendment.
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. I’m going to come back to that in a little bit more detail in a second, but we actually have to go back in time just a little bit further than that, and that is to the early 1950s when the Border Patrol issued a regulation that never went through the rulemaking process. This is just an arbitrary ruling, arbitrary rule that they issued, stating that they had the ability to essentially stop folks within 25 miles of the US border in order to conduct searches related to immigration inspection.
Over the ensuing decades, they asserted that authority to be extended to up to 100 miles inside the United States. Now, to give you a sense of what that means: if you took essentially a little bit of string on a map and you used the scale and you got it out to 100 miles and you went around the entire border of the United States, both the southern border, the northern border, as well as the coasts—three coasts, I guess I should say, the Gulf of Mexico as well, don’t want to forget that. 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 or action, CBP asserts the authority to set up checkpoints and search your vehicle, my vehicle, etc., within 100 miles of the US border. Now, in 1976, there was a challenge to that authority, and that is where we go back to the case of U.S. v. Martinez-Fuerte, in which some individuals who were stopped within this zone ultimately sued on the basis of a Fourth Amendment violation.
What the court said, in essence, was: yes, that was a seizure essentially within the meaning of the Fourth Amendment, but because essentially of the overriding necessity of policing the border and preventing illegal immigration, brief stops for questioning—that’s the exact phrase from the decision—brief stops for questioning were permitted within this 100-mile zone, and that anything further, if they wanted to conduct a full-on search essentially, would then require some kind of probable cause in order to divert the motorist over into what’s known as secondary inspection.
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 and the like, has turned these particular checkpoints, of which there are way over 100 along the southwest in the southwest region of the United States between Texas, New Mexico, Arizona, and California—they’ve turned these things into generalized crime control checkpoints.
When the Government Accountability Office, which is the watchdog of Congress, the bean counters if you will, the ones who try to keep track of how much money federal agencies and departments of mine and yours are wasting, they found that within 20 miles of the border, over 40% of the stops that were being made by CBP personnel involved, number one, American citizens, and number two, American citizens with a dime bag or less of marijuana on their person.
So they have not been catching a lot of illegals at these checkpoints. That’s not shocking because there are lots of ways essentially to get across the border in those areas. What they are doing is snagging an awful lot of innocent Americans who happen to think that marijuana is just fine to use as a recreational substance. And this idea that these checkpoints would not be abused, that they would not be violated, that local residents would just get waved through—that’s what the majority basically said in the Martinez-Fuerte opinion, that locals would just get waved through. That’s not what’s happened at all.
In the town of Arivaca, Arizona, there has been a multi-year confrontation now between local residents and the Border Patrol in that town because of the two checkpoints that CBP operates in that area that routinely stop and harass local residents. In the state of Arizona, we have the case of a University of Arizona engineer by the name of Terry Bressi. He works as part of their planetary and observatory projects there, looking at objects in space. He lives in Tucson, but he has to drive out to the Kitt Peak Observatory in western Arizona in order to do his job, help conduct observations, and so on.
On that State Route 86, since at least 2002, has been a CBP checkpoint at which Mr. Bressi has been stopped at this point, I’m sure, well over 500 times. They know exactly who Mr. Bressi is. In fact, the CBP union tried to get him fired from his job at the University of Arizona because of his complaints about their misconduct. And he has sued, of course, CBP as well as some of the local police departments that have cooperated with CBP for the violation of his rights. And he actually got a several hundred thousand dollar settlement several years ago, which should have taught them the lesson that what they were doing to him was completely unconstitutional and illegal. It didn’t. The harassment continues.
And I should say that Mr. Bressi is a white guy like me, he’s a Caucasian like me, and they’re still messing with him. And so you can really get a sense of what they’re doing to Latinos and other people of color at these checkpoints. So it’s this kind of authority that I also worry that CBP will essentially try to use. I’m looking for the potential for this mission creep that you’ve talked about, Bob, in other cities where they begin to try to stop people that are not on or near federal property, utilizing this authority. And it would not surprise me in the slightest if we see that kind of thing take place.
The Ratchet Effect and Future of Federal Power [39:43]
Bob Zadek: Now, one comment: the stops that CBP is doing 100 miles from the border, those stops would be violative of the First and 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, 365 looking for ways to expand federal power, in this case in direct contravention to those important protections given to us by the Bill of Rights.
Now Patrick, we’ve talked about this mission creep—and that’s almost too modest a term—this seizing of federal police power. Now, you look back, if you start from the arc of our country’s existence about 240 years ago, is this relatively recent? When did it start? And are we right now, Patrick—I’m asking for a pure opinion, but your opinion counts for a lot—are we in the arc of this growth of federal power, are we at just the beginning, are we at the middle, or are we at the end? And do you expect there to be some blowback as citizens try to seize control over the police power? And 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. So where are we in the arc of this growth of federal power, and how did it start?
Pat Eddington: Well, I think 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 in the McKinley administration, actually. Records at the National Archives that I have reviewed indicate that the Secret Service was investigating anarchists in Paterson, New Jersey as early as 1893. These were clearly politically predicated investigations, they were not investigations of crime.
Where will it stop? Will we simply have the loss of the state police power? Is that the end game? Or do you detect—can you give us any guess at all, or is it just incapable of being projected into the future? Well, I think what we’re seeing now in Portland and what we’re seeing with these other plans to go into these other cities is a watershed. You know, this is one of those inflection moments potentially here where if this is not rolled back, we could see a real radical, and I mean radical degradation of individual rights in this country in a way that we simply haven’t seen, certainly since the Vietnam era at a minimum.
What makes all this very dangerous, really, is the creation of DHS itself. You know, the FBI of course engaged in an enormous number of illegal acts over the course of its career, political surveillance heavily so, still taking place today. But what makes this even more ominous from my perspective is that, as my Cato colleague Alex Nowrasteh has demonstrated very thoroughly, Customs and Border Protection has higher termination rates for disciplinary problems 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%. That works—if you look at Secret Service by comparison, it’s about one-half of 1%. So it’s radical, you know, the number of terminations that take place in CBP because of disciplinary issues, including violence.
And so I think where we are right now is if we don’t see Congress take appropriate action to shut this capability off, to shut it down, then 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. And I’ll just say this, because I know that we’re going to have to wrap up here before too awfully long, but this coming week on the House floor will be an omnibus piece of legislation, appropriations bill, that will include the defense appropriations bill, the Commerce-Justice-Science bill, which is what funds DOJ and the FBI, but also the Homeland Security appropriations act.
And 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—basically demand that the Homeland Security appropriations bill be taken out of that package entirely and set aside for the time being. Because here’s the thing: 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, the ability to actually modify that bill and try to attach real restrictions on CBP and on DHS agents, we’re going to lose that opportunity.
And it’s my view, it’s my strongly held view, that the correct thing for folks to do in the House is to not fund the Department of Homeland Security at all for the rest of the year. I think this is the way that you begin to rein this in. The House of Representatives has 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 take the move of at least taking that DHS appropriations bill out of the equation for the time being. There needs to be some legislative hostage-taking here—that’s the phrase that we use inside of DC—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.
Federal Property and Local Control [46:53]
Bob Zadek: Patrick, what do you say to those of our listeners who are conservative, we’ll say, and respect the sanctity of private property, even—even, if I can use that phrase—governmental, federal governmental private property? What should we—the federal government—be doing when local government appears to be—we’ll use Portland specifically—appears to be disinclined to protect federal property? They are uninterested in doing so and to devote resources. Should the federal government, under the principles of federalism, simply shrug their shoulders and wish things were different and act with no more power than a private citizen and just say, “Okay, I’m not going to put any more private property in Portland because it’s not protected,” or something such as that? How passive, in your view, in your view of federalism, should the federal government be in protecting or not protecting its own property, such as federal courthouses?
Pat Eddington: Well, I don’t think there’s any question that, number one, DHS already had the ability to protect the buildings, and specifically the Federal Protective Service was already there. And there’s been no evidence to date presented to indicate that there was ever actually any kind of truly serious threat to the courthouse, to its operations, all the rest of that. And in fact, as Commissioner Hardesty of Portland pointed out to the New York Times, things were already de-escalating substantially in Portland by the middle of June because the police chief had been replaced and a number of the grievances of folks who had been affected by violence in Portland were being successfully addressed.
So I think the entire premise essentially that the President has used here has always been a false one. He’s painted a false narrative, they’ve painted a false picture of what’s actually been going on here. And I think it’s pretty easy, I think, for most law enforcement to figure out who the actual hooligans and those who are simply interested in committing acts of violence for the sake of violence, for the thrill of it, etc.—it’s pretty easy to identify those people.
But when we see mothers out there, you know, wearing yellow shirts, marching, calling for racial justice within our criminal justice system, that’s clearly not a threat to a federal courthouse. It’s not a threat to federal property. So I think again, the premise that the President, the Attorney General, and the DHS Secretary have offered have all for the most part been false narratives, and they just don’t simply fit. When it’s appropriate to protect property is when you have, let’s say, a radical anarchist trying to use Molotov cocktails or other incendiary devices to burn a building down. Take that person into custody. If there are a dozen of them doing it, take a dozen of them into custody, if that’s what they’re doing. But if folks are out there just with signs, just shouting, just using megaphones, things of that nature, that’s clearly First Amendment protected activity, and that’s what we need to make sure that people are allowed to do.
Bob Zadek: And the issue is states should be given the freedom to do it badly, to exercise their police power badly. It’s the citizens’ problem to get rid of those elected officials, but it’s not Washington’s job to be the protector of local problems. It’s not, unless you have a different view of federalism, which is how I introduced this topic to begin with. So if you favor no states, just a federal government, then you might look at this issue differently. But bear in mind that by having states having all 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. And thanks to Cato for giving you a place and giving you a forum and the tools to do your journalistic job. If my listeners have interest in the topic, we’ve discussed it many times. I have shows in the can about Posse Comitatus, please listen to my “Cops and Robbers” show and “The Rise of the Warrior Cop,” all relevant to this topic. Patrick, thanks again for your time this morning, and thanks to my friends out there for sharing an hour with us this morning. So long for now.
Pat Eddington: Thank you, Bob.