As protests against police violence approach their second month in Portland, Oregon, a disturbing sight has become commonplace: unidentified federal agents – clad in camouflage, and operating out of unmarked vans – detaining protestors.
Steve Vladeck, a constitutional law scholar and professor at the University of Texas School of Law, recently posed several questions about the situation in Portland on the Lawfare blog. He answered some of them for Texas Standard’s Laura Rice.
Which agencies’ officers are being utilized for federal law enforcement purposes in Portland, and under which statutory authorities?
“There’s a statute from 2002, part of the Homeland Security Act, that was enacted after 9/11. That gives [the] acting secretary of Homeland Security power to use any other DHS officers basically to backstop Federal Protective Service.”
OK, but which federal laws are being enforced?
“There are a wide array of federal crimes out there. Those don’t all pertain to federal property. There are a bunch of federal drug crimes – mail fraud, wire fraud, you know, things of that ilk […] They are detaining and arresting people for violating federal statutes, the ones about vandalism and damage to federal property.”
What authority do these federal officers have to detain and arrest individuals?
“Federal law enforcement officers don’t generally have the authority to arrest for local and state crimes. That is to say, their job is to enforce federal law, not to enforce all law. And so restoring order in a protest that’s the job of the Portland and Oregon police, not the job of federal law enforcement.”
Is the Department of Homeland Security in charge? If so, why?
“What the government’s capitalizing upon is a real shift in authorities after 9/11, where the new Department of Homeland Security was given a whole bunch of law enforcement responsibilities that had historically been the purview of the Justice Department.”
How will we learn the answers to questions about the authority and legality of what federal officers are doing?
“There are two tracks. I think there is already litigation pending in Oregon – three different lawsuits about whether these arrests are legal, whether these deployments are legal. But I also think a lot of this is going to fall on Congress. We see more and more claims that we’re going to see deployments like this in other American cities.”
You can read more here on Homeland Security’s role in policing protestors from Vladeck and Lawfare editor in chief Benjamin Wittes.