The existence of the department’s authority to protect federal property is uncontroversial. The federal government has the power to defend federal buildings and facilities from civil unrest, and a variety of federal laws protect federal property from attack and vandalism and federal officials from interference with their discharge of the government’s business.
While this authority certainly extends to the power to investigate federal crimes and arrest those suspected of them, it is not some general authority to patrol the downtowns of major cities and pick up and detain protesters merely because a federal building may be in the neighborhood.
Likewise, federal law-enforcement officers should conceal their identities only under highly specific circumstances—none of which involves crowd control at a protest or policing a public area. Officers might reasonably go undercover in an effort to infiltrate a criminal organization, for example. Federal air marshals are generally unidentified so they can blend in with passengers on commercial flights—preventing would-be hijackers from knowing which flights are patrolled. But it should be quite unthinkable for armed officers exercising coercive arrest powers in the streets of an American city to not identify themselves by name and affiliation.
A similar situation to the one in Portland arose in Washington, D.C., last month, when the president deployed National Guard units and a smorgasbord of federal law-enforcement agencies, including officers from the Department of Homeland Security, during protests over the killing of George Floyd. The deployment of anonymized federal muscle in various locations in the district angered many people, and rightly so. These recent actions in Portland are more jarring still.
For better or worse, residents of D.C. are used to a significant federal law-enforcement presence in their daily lives—albeit one that’s quite open and overt. A significant area of the city is patrolled by the United States Capitol Police, for example; uniformed Secret Service officers protect embassies; the United States Park Police has jurisdiction over national parkland, which is abundant in the city. And one or more unmarked dark SUVs accompanying some official-looking car is a pretty normal affair. But even a certain baseline comfort with a heavy federal presence didn’t prepare D.C. for an invasion of little green men. How much more shocking it must be for people in Portland, who lack that general familiarity, to suddenly have unidentified officers snatching people off the street and hustling them into unmarked vehicles.
There are additional concerns. The tactical divisions of the Homeland Security Department from which the officers in Portland appear to hail—Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE)—are not typically deployed at protests, but charged with enforcing immigration law and guarding the U.S. border. And as an internal department memo obtained by The New York Times shows, the officers sent into Portland’s streets were not trained to handle crowds. “If this type of response is going to be the norm,” the memo cautions, “specialized training and standardized equipment should be deployed to responding agencies.”