Internal Control and the Federal Police

Scenes from Portland are frightening. This weekend I began to wonder just who these federal agents were because the feds were never meant to ever have a police force. The prohibition of a federal police was fundamental to the founding fathers (and mothers) view of the new version of federalism created by the US Constitution. We all are learning more as the media uncovers more. The “fourth estate” may be redeeming itself, imho, as journalists begin to unearth who these agents are in order to help us grapple with the legal legitimacy of the federal interference. Also, recent federal court decisions concerning the police and federal agents in Oregon create a one step back, two steps forward scenario. If the federal government has the legal right to enlist federal agents, then court decisions and new laws are permitted to check that power.         

 

THE COURTS

While a federal judge recently refused to grant the State of Oregon a restraining order against the deployment of federal agents in Portland, the ACLU has been successful obtaining a restraining order against the use of force by police and federal agents against the press and legal observers. In all the situations cited by the ACLU, the press and legal observers were 30-40 feet away from protestors, wearing press badges as well as vests clearly identifying them as NOT protestors. The order stops federal agents from dispersing, arresting, threatening to arrest, or targeting force against journalists or legal observers at the Portland protests for 14 days. A restraining order stops temporarily an activity, until a full hearing or review of the matter is possible. Seattle erupted in sympathetic protests this weekend and a federal in Seattle judge ruled that a recent ordinance approved by the Seattle City Council that bars police from using tear gas, pepper spray and other crowd control devices COULD go into effect on Sunday hopefully reducing harm to any and everyone. Black Lives Matter organizers in Chicago, joined journalists and civil rights attorneys to file a preemptive suit in federal court against the Trump Administration to prevent federal agents from being utilized Portland-style in Chi-town.   

 

FEDERAL POLICE?

The  Secretary of Homeland Security justifies the use of federal agents in Portland under 40 U.S. Code § 1315, which is most commonly used to enlist help for the Federal Protective Service, to protect federal property. The Department of Justice also has power under federal criminal law to protect government property.  U.S. Marshals, Federal Protective Service, U.S. Customs and Border Protection and Homeland Security Investigations (ICE) have alternated officers through Portland. The U.S. Marshals Service appears to be the lead agency. Department of Justice Office of Inspector General is reviewing federal agent activity in Portland. The administrative agencies that house these agents are under the direction of the President or an appointed leader. Some of these agencies are under the direction of interim presidential appointees because they never completed the congressional review of those appointments which is the norm. Perhaps that plays a part in the ease with which the federal agents appeared at protests. Perhaps a more qualified appointee would have refused the request to use federal agents. Some have argued that the agents are poorly trained because they were never meant to police civilians or civil unrest. What if all of this is perfectly legal?

 

THE Constitution

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.” (James Madison, Federalist Paper #45)

If the above was TL;DR,  et me break it down. The Federalist Papers are newspaper articles written by James Madison, John Jay, and Alexander Hamilton, published in New York newspapers during the debates over the drafting of the Constitution. The helps us understand what the framers were debating and how THEY understood the powers they incorporated into the Constitution. The above says, federal power is greatest during time of war. Otherwise, federal power is limited and small and must defer to the states. For the state’s main concern should be the lives and property of the people and “internal order.” It does seem that while the letter of the law may allow the presence of federal agents the spirit of the law does not. And perhaps the letter of the law also does not. A court will need to declare that or a new law must be passed to ameliorate the situation.      

 

Author Michael Lewis, in his 2018 book The Fifth Risk: Undoing Democracy, describes the danger to America of poor appointments to important agencies. The current administration has not appointed competent leaders for critical agencies. Agency directors who are incompetent (lack of experience) create all types of insecurity over legitimacy. Poor leadership decisions have caused great harm in the past – Waco.

The civil unrest of today is extraordinary. We were legally unprepared. It is time to catch up.   

Civil Rights Report Card for Facebook

Laura Murphy was the first African American and first women to head the Washington D.C. Office of the American Civil Liberties Union (ACLU). Laura recently worked with lawyers from the Washington Civil Rights law firm Relman Colfax to conduct a civil rights audit of Facebook. The audit was not just limited to racial justice but also included possible instances of discrimination in education, employment, as well as protected classes including sex, sexual orientation, gender identity, disability, national origin, religion, and age.

The audit was called for by civil rights organizations, advocates, and a few members of Congress. Facebook agreed to it and chose the auditors themselves.  Facebook was being taken to account for perceived failures during the 2016 Presidential elections and other failures to balance the safeguarding of free speech with hate, discrimination, and inequality.

The auditors began by interviewing over 100 civil rights organizations and members of Congress. The first preliminary audit report was release in 2018 with a second update in 2019. The focus of the audit was the Facebook app and no other Facebook products.

The audit found that civil rights organizations were most concerned about the failure of Facebook concerning race-based hate, voter suppression, advertising targeting and practices, and civil rights implications of privacy practices. Even with some noted positive changes at Facebook currently, the report found Facebook’s dealings regarding civil rights reactive and piecemeal. The report found it ironic that Facebook had no qualms about stopping anti-vaccination proponents and misinformation surrounding COVID-19 but was reluctant to take on board firm rules limiting misinformation regarding voting and voter suppression.

                Facebook Community Standards are what guides its decisions regarding posts. Here is the May 2020 Community Standards Enforcement Report.  The report only covers activity until March. Instagram was included in this report noting a concerning rise in Hateful Speech, Adult Nudity, Violence and Cyberbullying. Drug-related content surged during the months from January to March 2020. Despite improving tools and technology, Facebook estimates there are over 130 million fake profiles active on the platform. Also increasing is the number of governments seeking public data, which is concerning.

The ACLU audit’s primary concern is that Facebook do better during November’s 2020 Presidential election. The #StopHateforProfit and #HitPauseonHate campaigns’ ask advertisers to pause their ads on Facebook until it changes how the platform meets certain standards – establish a civil rights infrastructure, regular independent audits of identity-based hate and misinformation, find  remove groups focused on white supremacy, climate denialism, and antisemitism, to name only a few. 970 groups, advocates, and corporations such as The North Face, Verizon and Microsoft have joined the boycott. Facebook has met with the campaign organizers but no specific answers regarding the recommendations were clearly articulated.

Mark Zuckerberg owns a special class of shares that grant him 57% of the voting rights at board of directors meetings of the company = powerful. Moreover, hate speech is protected by the First Amendment. Neither, Zuckerberg’s power (and ignorance) nor hate speech’s protections can be viewed in isolation from our society and our own responsibilities. Assuredly, Facebook can do better and so can the rest of us.

At the end of the day more civil discourse and dialogue at all levels of each of our communities would go a long way toward improving things. My community is the California Community College system with its own struggle with Free Speech. I hope civil discourse is healthy enough to face #CancelCulture. There is a place for the social and societal pressure to act better that we are seeing  yielding positive change. However, we still need to be capable of standing in the same space with someone who does not believe the same things as us but we listen, learn, and rebut them if they are wrong.