This archive report was first published on 18 July 2020.
Published on July 18, 2020, the deployment of federal agents to Portland, Ore., has shown the broad legal authority an agency created to protect the United States from national security threats has to crack down on American citizens.
After President Trump signed an executive order directing federal agencies to send personnel to protect monuments, statues, and federal property during continuing protests against racism and police brutality, the Department of Homeland Security formed 'rapid deployment teams.'
These teams are made up of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard, and Immigration and Customs Enforcement who back up the Federal Protective Service, which is already responsible for protecting federal property.
However, videos showing federal agents using tear gas on protesters and complaints that federal agents lacking insignia are pulling people from the streets have raised questions over the legal authority that homeland security officials have to crack down on citizens.
Customs and Border Protection cited 40 U.S. Code 1315, which under the Homeland Security Act of 2002 gives the department's secretary the power to deputize other federal agents to assist the Federal Protective Service in protecting federal property.
Garrett Graff, a historian who studies the Department of Homeland Security's history and development, said, 'An interpretation of that authority so broadly seems to undermine all the other careful checks and balances on D.H.S.'s power because the officers' power is effectively limitless and all encompassing.'
The department has justified the tactics of the federal agents in Portland by pointing to dozens of episodes, including the defacement of federal property with graffiti, the damaging of buildings with fireworks, and the throwing of rocks and bottles at officers.
Detaining demonstrators away from federal properties has also raised questions. Former officials at the Department of Homeland Security said it would normally only dispatch agents to assist with local incidents if the state or municipal governments asked for help and deputized that responsibility.
However, the lack of any consent from local officials just means federal agents cannot rely on state and local laws to justify the arrests. Federal agents can still detain the demonstrators away from federal property if they can assert probable cause that a federal crime was violated, according to Peter Vincent, a former top lawyer with Immigration and Customs Enforcement.
But civil rights lawyers and demonstrators have questioned whether the department has used that authority to violate protesters' right to free speech.
