American Civil Liberties Union National Security Project
The
American Civil Liberties Union (ACLU) was founded in 1920. Its National
Security Project "advocates for national security policies consistent
with the Constitution, the rule of law, and fundamental human rights,"
litigating cases relating to detention, torture, discrimination,
surveillance, censorship, and secrecy.
Across the country, people are protesting police
brutality and systemic racism. They are relentlessly demanding justice
for George Floyd, Breonna Taylor, and the countless other Black people
killed by police. In response, President Trump, supported by
belligerent enablers in Congress and his administration, has threatened
to deploy federal troops into states, and federal agencies are
investigating protestors for domestic terrorism. These presidential
threats and actions are authoritarian, irresponsible, dangerous, and
wrong.
Trump's threat to invoke the Insurrection
Act of 1807 was extraordinary -- over the last 50 years,
presidents have rarely used this extreme authority, and rightly so. In
this country, we have a strong norm against deploying the military on
domestic soil, recognizing the threat it poses to liberty and
individual civil rights. This norm is reflected in law -- Congress
passed the Posse Comitatus Act in 1878 to prohibit
the use of federal military forces "to execute the law" unless the
Constitution or Congress authorize it. That means the federal military
can't, for example, search, seize, arrest, apprehend, stop and frisk,
surveil, pursue, interrogate, or investigate civilians.
 But Congress also passed
exceptions to the Posse Comitatus Act, the most
expansive and potentially dangerous of which is the Insurrection
Act of 1807. In the Insurrection Act,
Congress gave presidents the authority to deploy active-duty federal
troops and National Guard members under federal control -- to suppress
insurrection, acts of massive or widespread violence that "make it
impracticable" to enforce federal law, or similar violence that
obstructs federal law or the course of justice. Historically,
presidents have invoked this authority to deploy troops at the request
of a state, but also sometimes over a state's objections -- for
example, to enforce civil rights protections and court-ordered
desegregation. That is the opposite of what Trump would do.
Much as Trump loves the rhetoric of "war" and sees
Black and Brown protest as a threat, the reality is that we are not at
war in this country. Nor is it impracticable for civilian authorities
to respond calmly and responsibly to unrest, especially when it is over
their own abuses. Protestors are demanding that law enforcement end
decades of unjust, unequal, and racist treatment of Black communities.
What Trump doesn't seem to understand when he
threatens to unleash "unlimited" military power domestically is that
there are limits. Even if he were to wrongly and unnecessarily invoke
the Insurrection Act,
federal troops would still be subject to all of the safeguards and
restrictions the Constitution imposes. Even so, the escalation would
carry obvious dangers of excessive government surveillance and use of
force, in violation of the Constitution. Civilian police, National
Guard forces in DC, and some National Guard forces in states are
already engaging in serious abuses and violence.
An even more militarized response to civilian
dissent would escalate the tension, fear, and pain we're seeing and
feeling across the country, especially in communities already
traumatized by police violence. It would worsen the over-policing of
Black lives -- the very reason why people around the country are
protesting.
Current and former military leaders are rightly
warning against calling out more troops, and reminding troops of the
fundamentals of the Constitution. Still, the fact that military leaders
are being hailed as calming influences is a stark marker of how broken
our politics, norms, and country are. It was not so long ago that
military leaders had to reaffirm the prohibition against torture when
it was systematically used against Brown and Black men abroad.
We have not come a long way, America. Perhaps
policymakers will finally wake up to the harms of decades of
rights-violating, war-based foreign policy -- and its connections to
militarized policing and racism at home. Every politician who is quick
to laud Dr. Martin Luther King Jr. needs to remember his radical call
to action against "the giant triplets of racism, extreme materialism,
and militarism." There is so much to fundamentally reform, and the
people in the streets are demonstrating their urgent will for change.
Yet much like during Dr. King's time, federal agencies are viewing
civil rights protests and protestors as domestic terrorists -- enemies
of the state.
Public attention has mostly focused on Trump
blaming Antifa for violence and asserting that he would designate it as
a domestic terrorist organization, even though he does not have that
legal authority. That the same day, the FBI's Washington Field Office
reported it "has no intelligence indicating Antifa
involvement/presence" in violence, and a later Department of Homeland
Security intelligence assessment reportedly found the violence that has
occurred is opportunistic.
Focusing on the threat against Antifa alone,
though, misses the broader harms and consequences. Attorney General
Barr this week enthusiastically announced that the Justice Department
is using its broad and abusive domestic terrorism investigative powers
in response to civil unrest.
Terrorism is an inherently political label, easily
abused and misused. Communities of color already know this from 20
years of experience being targeted for discriminatory surveillance and
investigation under the Patriot
Act's broad and vague definition of domestic terrorism.
Black communities have long been in federal law enforcement's
cross-hairs: in 2017, the FBI concocted the label "black identity
extremists," opening the door to bias-based profiling of Black people
and Black-led organizations who use their voices to demand racial
justice. The agency appears to have conducted similar investigations of
indigenous activists and protest. Civil rights leaders and groups have
long demanded reform of national security and criminal authorities that
discriminatorily suppress and punish Black and Brown people, and raise
significant equal protection, due process, and First Amendment
concerns. But Congress has stubbornly refused to act.
Now, Trump and Barr appear willing to bring the
massive weight of the federal government's expanded post-9/11
investigative powers and agencies down on new generations of racial
justice and civil rights activists crying out for the right of Black
people to live, and a more equal and just America.
These are some of the real threats we face right
now -- and reject.
This article was published in
Volume 50 Number 20 - June 6, 2020
Article Link:
American Civil Liberties Union National Security Project
Website: www.cpcml.ca
Email: editor@cpcml.ca
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