from the can't-secure-a-homeland-without-breaking-a-few-amendments dept
Is there anything the DHS can’t turn into a debacle while pretending to secure the homeland? It would appear it’s impossible for America’s least essential security agency to move forward without stepping in something.
As protests in Portland neared the 60-day mark, the DHS was tasked with protecting federal property like courthouses and… um… statues. ICE, CBP, Federal Protective Services, and US Marshals all arrived in Portland ready to go to war with people exercising their First Amendment rights. You only have one chance to make a first impression, and the unidentified officers from unknown agencies throwing protesters into unmarked vehicles was one hell of a first impression.
The federal agencies went to war, firing tear gas and projectiles at protesters, rioters, journalists, and legal observers. It made no difference to the DHS which was which. But it did make a difference to a federal judge, who issued a temporary restraining order forbidding federal officers from attacking, gassing, assaulting, or arresting journalists and observers who were just trying to do their jobs.
The federal officers immediately violated the restraining order. Or, more accurately, they never stopped doing the stuff that earned them the restraining order in the first place. Apparently, the DHS feels it hasn’t violated First Amendment rights hard enough. The latest black eye for the DHS is more targeting of journalists, this time with surveillance.
The Department of Homeland Security has compiled “intelligence reports” about the work of American journalists covering protests in Portland, Ore., in what current and former officials called an alarming use of a government system meant to share information about suspected terrorists and violent actors.
Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists — a reporter for the New York Times and the editor in chief of the blog Lawfare — and noting they had published leaked, unclassified documents about DHS operations in Portland. The intelligence reports, obtained by The Washington Post, include written descriptions and images of the tweets and the number of times they had been liked or retweeted by others.
Ironically, one of the leaks involved discussions of other leaks. An internal memo leaked to Benjamin Wittes, who runs the Lawfare blog, complains about earlier leaks.
Internal memo from DHS I&A complaining about leaks to @lawfareblog and @shaneharris (neither by name) and insisting intel activity in Portland is all legal and appropriate. Withholding name of author for privacy reasons. pic.twitter.com/8s1d6QNM3e
— Benjamin Wittes (@benjaminwittes) July 25, 2020
Here’s an excerpt from the leaked memo about leaked memos.
[T]he ongoing leaks related to our work in Portland remain of great to concern as it distracts from our mission and creates opportunities for others to exploit this information for their own benefit. This is wrong and we must make every effort to protect our information and prevent our work from being manipulated in any way.
Not sure what this official thinks journalists are “exploiting” and “manipulating.” One of the leaked documents published by Lawfare gave DHS components permission to engage in domestic surveillance on behalf of statues and monuments. There doesn’t appear to be any spin here.
It appears the DHS will stop doing this thing it supposedly only just started doing just this one time, allegedly without the knowledge of the guy acting like he’s running the place. An angry statement was issued after the [acting] boss was just right now informed about these things.
“Upon learning about the practice, Acting Secretary Wolf directed the DHS Intelligence & Analysis Directorate to immediately discontinue collecting information involving members of the press,” a department spokesman said in a statement. “In no way does the Acting Secretary condone this practice and he has immediately ordered an inquiry into the matter. The Acting Secretary is committed to ensuring that all DHS personnel uphold the principles of professionalism, impartiality and respect for civil rights and civil liberties, particularly as it relates to the exercise of First Amendment rights.”
But see the ongoing violations of the restraining order that was supposed to force federal officers to “uphold the principles of professionalism” and “respect civil rights and liberties.” See also the DHS’s arguments in court, where it claimed protecting the government’s stuff was more important than protecting citizens’ rights.
The Federal Defendants intend to keep dispersing journalists and legal observers. See ECF 67 at 20 (arguing that allowing journalists and legal observers to remain “is not a practicable option”). The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct. The Federal Defendants argue that such conduct is necessary to protect federal property.
This is why I’m not falling for Acting Director Chad Wolf’s “I’m shocked, SHOCKED to discover there is disrespect for civil liberties in my agency” shtick. That and all the other times the federal government — including agencies under the DHS’s roof — have engaged in domestic surveillance targeting journalists. And it wasn’t just open source intel gathered from publicly available sites. It was also journalists’ communications.
A senior Department of Homeland Security official told a Senate committee earlier this month that the department had not collected, exploited or analyzed information from the electronic devices or accounts of protesters in Portland, Ore.
But an internal DHS document obtained by The Washington Post shows the department did have access to protesters’ electronic messages and that their conversations were written up in an “intelligence report” that was disseminated to federal law enforcement agencies, including the FBI, as well as state and local governments.
This all looks very bad. But under this administration, harming journalists and/or curtailing their rights is probably fine. The President thinks most of them are “fake news” purveyors. Trump also believes most protesters are anarchists and “antifa.” The DHS is under considerable pressure to make the Commander-in-Chief’s conspiratorial dreams come true.
Officials who are familiar with the reports, and who spoke on the condition of anonymity to candidly discuss them, said they are consistent with the department’s aggressive tactics in Portland, and in particular the work of the Intelligence and Analysis Office, which they worried is exceeding the boundaries of its authority in an effort to crack down on “antifa” protesters to please President Trump.
All of this is troubling. If it’s leak investigations, the DHS needs to keep that in-house and stop violating the Constitution. If the agency is fishing for (nonexistent) evidence of anarchists embedded in local newspapers, it’s even more problematic.
The DHS was asked to rein in protests in Portland — something the President blames on the city and state’s “liberal” leadership. The DHS has failed to do anything but make itself — and everyone involved with its response — look worse. And every new move it makes only causes more reputational damage. The DHS needs to leave Portland before it hurts itself again.