Cuccinelli: Totally Legal and Totally Cool How CBP and ICE Now Control Your City

NEW YORK, NY - JULY 2: Acting Director of the U.S. Citizenship and Immigration Services (USCIS) Ken Cuccinelli attends a naturalization ceremony inside the National September 11 Memorial Museum on July 2, 2019 in New... NEW YORK, NY - JULY 2: Acting Director of the U.S. Citizenship and Immigration Services (USCIS) Ken Cuccinelli attends a naturalization ceremony inside the National September 11 Memorial Museum on July 2, 2019 in New York City. 52 new U.S. citizens attended the Tuesday morning ceremony. USCIS is marking the Independence Day holiday by welcoming over 7,000 new citizens in 170 naturalization ceremonies across the country from July 1 through July 5. (Photo by Drew Angerer/Getty Images) MORE LESS
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July 18, 2020 1:28 p.m.

Last night I noted that Acting Deputy Secretary of Homeland Security Ken Cuccinelli told NPR that not only were they not pulling back on their actions in Portland but that they planned to take them nationwide. The brief NPR interview is important because along with other reporting that came out over the course of Friday it helps understand just what the White House is doing and the purported legal rationale under which they are doing it.

As we’ve discussed, even as protests have subsided in much of the United States, they’ve continued in Portland, with an especial focus on Mark O. Hatfield Federal Courthouse in the city. There has been a faction of protestors who’ve set off fireworks, painted graffiti and thrown bottles at police in nightly standoffs. This federal building is key.

The Federal Protective Service is the federal police agency with jurisdiction over federal buildings and other federal facilities and property around the country. There’s nothing particularly controversial or surprising about this. When you go to a federal court house and see police you probably know that they’re not from the local police department. They’re federal officers. The FPS has been housed within the Department of Homeland Security since the Department was created in 2002.

Unconfirmed political appointees at DHS (which include the Secretary, the Deputy Secretary and the Commissioner of Customs and Border Protection) say that the FPS in Portland and other cities has been overwhelmed by ‘violent agitators’ so they’ve sent in CBP, ICE and other federal police agencies housed within DHS to support FPS’s mission and, critically, under FPS’s jurisdiction. In other words, in their view, it’s really not ICE of CBP. These are just other federal officers supporting FPS since it’s overwhelmed. The jurisdiction of FPS is being used as a hook or loophole to give CBP and ICE police powers over citizens in American citizens for purported crimes entirely unrelated to immigration enforcement.

In his NPR interview, Cuccinelli is clear on this. “The federal courthouse there is protected by Federal Protective Services, who are being supported by both CBP and ICE officers … because of the violence there and the graffiti.” Later he’s even more explicit on the purported chain of command and who is calling the shots:

The Federal Protective Service, is responsible for protecting thousands around the country. That is an agency within the Department of Homeland Security. And the CBP agents that you saw backing them up are doing just that. They are there cross designated to support FPS, not the other way around. We’re helping them do their job because of the demand for more manpower in light of the violence.

On its face one would think and we’re right to think, how on earth is the federal border police – which is what CBP is – driving around the streets of Portland masked and in rental cars smash and grabbing people who look like they might be protestors?

Cuccinelli explains it pretty clearly. FPS has jurisdiction over federal buildings. Any vandalism committed against a federal building or even protests which they think might lead to vandalism or violence is under FPS jurisdiction. They’ve interpreted the whole city of Portland as under siege by violent anarchists. So using the nexus of the federal building, they whole city is now under Federal Protective Service jurisdiction. But since FPS is a relatively small agency they have CBP, ICE, TSA et al. there just ‘supporting’ the mission.

That’s how this all comes together.

CBP and ICE are among the most aggressively politicized branches of federal law enforcement and heavily supportive of the President’s policies. They are also accustomed to and indeed trained to deal with people with few civil or political rights and little ability to invoke the few rights they have. The specific officers deployed in support of FPS aren’t even regular CBP and ICE officers. They’re the immigration equivalent of SWAT teams. The acting head of CBP openly says they won’t wear name tags or numbers because this would allegedly put them and their families at risk from Antifa. In other words, they’re explicitly invoking the Antifa hysteria one sees on Fox News and right wing media to justify what are commonly understood as secret police tactics.

They are the perfect vehicle for what the White House and these acting appointees at DHS want to do which is to seeks out confrontations which are consistent with President Trump’s campaign agenda. In their current form they really do amount to a federal political police force acting at the direction of the political appointees at the Department of Homeland Security, none of whom are even confirmed by the Senate to be acting in their current positions.

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