November 3, 2020; Oregonian
While all eyes and ears where focused on the election, a report was released Monday night by the Department of Homeland Security inspector general that painted a most unflattering picture of the federal agents sent to protect the downtown courthouse in Portland, Oregon this summer. According to the report, many agents may not have been properly designated for their law enforcement role, and also may not have received proper training to act in that capacity.
President Trump sent an odd collection of more than 114 officers from the US Marshals Service and US Customs and Border Protection (CBP) to add to Federal Protective Service (FPS) workers at the courthouse in early July after some demonstrators attempted to barricade the front doors of the courthouse, shattering them. In order for the document that assigned the officers to be proper, it needed to include their names. The FPS director acknowledged that his document “erroneously referenced rosters of employees to be designated” but no list of personnel was ever attached.
Of concern to the inspector general was that officers sent to Portland from CBP and US Immigration and Customs Enforcement (ICE) typically lack the law enforcement scope of authority. The director claimed the agency confirmed attendance of officers at the conclusion of their special training, according to the report. But without lists of names, the inspector general found this approach meant it was “impossible to identify which particular employees he designated” to protect federal property and the people inside.
Here you have the basic conundrum of this report. The inspector general deems it critical to have a list of names of those officers assigned to this task in order to check that they have the appropriate training for this work. FPS argued that there are no legal or policy requirements on how these federal officers are cross-designated to protect federal property. In their view, the officers met the basic requirements and received proper training. While the inspector general’s office agreed there is no one way for this to be done, he was concerned—and was especially wary there were no names to check. The process made it impossible for “anyone to discern, who, exactly, the FPS Director sought to designate,” the report says.
The federal agents that were sent to Portland this summer were not properly designated for the law enforcement role they were carrying out and may not have had the proper training to act in that capacity, according to the Department of Homeland Security. The inspector general found that FPS didn’t describe a process for these officers that conditioned their service on attending training or meeting any other requirement, but instead “unequivocally” designated unnamed officers. This was improper, the inspector general found, and the officers sent to Portland lacked authority.
Two recommendations from this report should come as no surprise. The inspector general recommends that the acting secretary of Homeland Security ensure that the FPS director or anyone else seeking to designate Homeland Security employees for the law enforcement role has the proper authority to do so. The second recommendation is that the FPS director designate each employee by name when authorizing a federal officer to protect federal property and the persons on it.
While all of this sounds like a rebuff to the Department of Homeland Security, it has little meaning if nothing is done. Multiple civil lawsuits have been filed against federal officers accusing them of exercising indiscriminate and excessive force against demonstrators this summer outside the Hatfield courthouse in Portland. Kelly Simon, interim legal director for the American Civil Liberties Union of Oregon, says, “We’ve filed four lawsuits against the Department of Homeland Security for its brutality and destruction during these protests, and are determined to hold officials accountable for their unconstitutional and unlawful conduct. Violent policing must end, and we will be in the streets and courts until it does.”
As for the inspector general and his report and recommendations, the matter will remain unresolved “until we receive documentation that the FPS Director or his designee” properly designates Homeland Security employees under the law enforcement authority code, by name, to protect federal property, the inspector general’s office wrote. Do not hold your breath that that will happen anytime soon.—Carole Levine