Portland Mayor Ted Wheeler and other elected officials in Oregon have been telling Washington in no uncertain terms: “Take your troops out of Portland.”

Wheeler has referred to the unidentified federal individuals dressed in camouflage and driving unmarked vans as President Trump’s “personal army.” You’ve no doubt heard that there have already been casualties in this foray.

But it would be more appropriate to call them “Barr’s army.” Our quite-recent history includes Attorney General Barr’s giving the orders for the attack on nonviolent protesters outside of the White House to facilitate Trump’s photo op holding a Bible.

That episode, which generated anger and ridicule for the President, led General Mark Milley, chairman of the Joint Chiefs of Staff, to apologize and say he should not have been there.

Using federal forces against an unwilling state or municipality has apparently been a work-in-progress for Barr for decades, according to an article in justsecurity.org, an organization based at the Reiss Center on Law and Security,  New York University School of Law.

The article is titled “Portland’s Pretext: Barr’s Long History Manipulating Law to Put Federal Forces on US Streets.” (all emphases mine)

Since the President has already announced his plans to have counterparts to the forces now in Portland readied for “deployment” wherever and wherever the Attorney General and or the President chooses—specifically, Chicago, New York, and any other city run by Democrats that they deem “out of control,” it seems useful to look closely at Barr’s well-formed plan.

It can be traced back to the Virgin Islands, where there were civil disturbances following a large hurricane (Hugo) in 1989. Barr was then an assistant attorney general, leading the Justice Department’s Office of Legal Counsel.

According to the authors of the justsecurity piece, in a 2001 interview Barr “boasted that during this time he found a way to deploy federal forces based on a legal justification that appears to now being played out in Portland:

“Barr: We started quickly looking at the legal books. What authority do we have to go in there and start enforcing the law in St. Croix? We looked at some statutes, and we finally decided that without Presidential authority we could send down law enforcement people to defend the federal function.

“That is, we said, ‘People are interfering with the operation of our courts’ and so on. I said, ‘We can send people down to defend the federal function, keep our courts open, and if they see any crime being committed in front of them, then, as law enforcement officers, they can make the arrest.’ Our object was just to get federal law enforcement down there and play it by ear. Technically, we couldn’t send them down to—

“Question: Did you consider interference with the mail as a basis?

“Barr: Yes, we had a whole list of things like that, interference with the mail, interference with the courts. But basically we were claiming that there was breakdown, civil unrest that was interfering with the federal function. We found these old cases that said the federal government could go in there. This was without declaring martial law.”

So he claimed they used the purported—and false—need to defend the federal function of the courts to put down the looting and unrest in the Virgin Islands.

“Barr bragged in his 2001 interview that he had found a way to get the federal forces ‘down there and then play it by ear’ without having to declare martial law.”

The authors note that he said in the same interview that he could, similarly, deploy military forces abroad—without Congressional approval—by, in the authors’ words, “changing the facts on the ground.”

The implications of that view are rather harrowing, don’t you think?

But it gets worse.

In fact, as the authors describe in a subsequent article, Barr’s use of the Virgin Islands situation was based on historical revisionism: in 1989, the governor of the Virgin Islands had requested military help—entirely the opposite of the Portland situation.

That episode and California governor Pete Wilson’s request for federal assistance to control the rioting following the beating of Rodney King in 1992 are the only recent instances when the Insurrection Act was invoked—and both times were at the request of the governors involved.

And, the authors note, “the only modern precedents in which governors’ consent were overridden was under a section of the Insurrection Act purposefully established to implement the Fourteenth Amendment guarantee to equal protection.”  [Used during the Reconstruction and Civil Rights eras.]

So Barr’s slender legal reed—based on a false revision of the historical record—snaps in two. You can understand that invoking the Insurrection Act would not be deemed a wise political move so close to the election. Better to weasel around it.

In the Portland mess, the President signed an executive order that directed federal agencies to send personnel to protect monuments, statues, and federal property.

The Department of Homeland Security,  now headed by an Acting Security, a former lobbyist with no relevant credentials,  then formed “rapid deployment teams” that consist of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard, and Immigration and Customs Enforcement to support the Federal Protective Service, which is responsible for protecting public property.

Portland state and local officials, the US attorney, and the ACLU are filing lawsuits, and other mayors, such as Chicago’s Lori Lightfoot, have said they will fight these unwanted incursions with whatever means they have.

But Washington also claims that the Homeland Security Act of 2002 permits the Department’s Acting Secretary, Chad Wolf, to deputize others to help the Federal Protective Service.

Such newly minted, untrained agents of the law can be armed, make warrantless arrests, and conduct investigations “on and off the property in question,” notes The New York Times.

Garrett Graff, a historian who’s been studying the Department of Homeland Security (DHS), told the Times:

“An interpretation of that authority so broadly seems to undermine all the other careful checks and balances on DHS’s power because the officers’ power is effectively limitless and all encompassing.”

And does that give you chills?

We talk a lot about this administration’s breaking norms. Here’s another. Prior DHS officials, the Times reports, said the agency would “normally only dispatch agents to assist with local incidents if the state or municipal governments asked for help and deputized that responsibility.

“In Portland, local leaders have done the opposite.”

What happens now? As is often the case with the Trump administration’s moves—usually with Barr at the helm—the damage proceeds while the parties wrangle in court. Meanwhile, this lawless President, tanking in the polls, bored and helpless to seek remedies for the pandemic that is destroying lives, livelihoods, and our economy—is playing his “Law and Order” card to the hilt.

Show enough graffiti on government buildings, he seems to think, and people will be so disgusted or frightened that they’ll forget the enormous threats they’re facing every day due to his ineptitude. Sure, that should get the suburban women into the President’s camp.

Or will it? What about the Wall of Moms in Portland (pictured above) who are bravely covering their faces with shields and their heads with helmets and placing themselves, arms locked together, between the peaceful protesters and the armed federal officers?

Yes, there will be more violence; all the local and state officials are in agreement that things were de-escalating until these deputized makers of mayhem arrived on the scene.

Watch the video of a former Navy officer, his shirt emblazoned with the word “Navy,” mistakenly thinking he could engage them in conversation to find out what their goals were. They beat him and sprayed him and broke his arm.

But isn’t that the goal? Get people so angry that they begin to side with the disrupters? The crowds have grown substantially since this federal “action” began.

I have written before about Attorney General Barr and the damage he’s wrought. In the past, I’ve used rhyme and hyphenated his name, my little tricks to myself to cut him down to size.

But this time the horror defies rhyme. He can bend the law any way he chooses. He has unleashed fascistic forces onto American streets. I no longer think that word is excessive.

It is time to impeach, disbar, or otherwise end his reign of continual harm to our nation—employing his despicable misuse of the law for nefarious ends that move us further and further away from our democratic ideals.

Annie

Continue reading “Barr’s Army: The Slender Legal Reed for Overtaking American Cities” →