Fighting the secret police

A worthy struggle against unworthy adversaries

I wrote previously about requiring local visibility of federal agents, but the intensifying craziness of the federal government prompts me to revisit the topic. Not long ago, it would have been unthinkable to have masked armed goons grabbing people off the streets and disappearing them into unrecorded and unreachable forms of detention. Now, the unidentifiable secret police have put in enough different appearances in the real world for there to be a considerable body of bystander video shared on social media. While those incidents are not exactly routine (yet), neither are they easily dismissed as some kind of bizarre outlier phenomenon.

Sometimes I joke that it’s a win-win when I predict some terrible possibility. One kind of “win” is that I am eventually proven right… but, of course, it’s bad that the terrible thing has happened as I predicted. The other kind of win is when I’m eventually proven wrong – when, at least, the terrible thing hasn’t happened. This balance is on my mind as I consider rogue federal law enforcement.

Although the news of secret police activity is largely gloomy, there are small countervailing positives:

1. States are taking up the question of enforcing local laws to compel federal agents to be unmasked and/or identifiable;

2. People are becoming acquainted with the playbook of calling the police for a possible kidnapping when these masked goons try to take people; and

3. The (preposterously immunized) president of the United States has confirmed my analysis of the limits of his immunity.

Each of these seems worth examining a little more closely.

Local laws

State legislators appear to agree with my previous claim that they have the right and the ability to control the behavior of federal agents in their states. In California, the state legislature is considering CA SB 627 “No Secret Police Act,” and a similar law is in the New York state legislature as S8462, the so-called “MELT Act.” Likewise, I’m happy to say that my home state of Massachusetts is considering MA HD.4886 “An Act Ensuring Law Enforcement Identification and Public Trust”. Of course, none of these laws has passed yet, and perhaps none will. But, crucially, these states are rejecting the premise that secret police are acceptable, or the idea that they must passively comply with whatever federal agencies choose to do in their states.

It may be a long road to having clear laws passed, and then litigating the issues of federal supremacy vs. the rights reserved to the states. But in the same way that “possession is 9/10 of the law,” we might well say that a state deciding it has sovereignty is 9/10 of the law, creating crucial “facts on the ground.” After all, each state is inherently better equipped for local policing and law enforcement than is the federal government; the one quasi-state for which this isn’t obviously true is D.C., which is part of why it has effectively been militarized by the current regime, and seems likely to fall under literal martial law before too many more months pass. Meanwhile, we are starting to see the local counterpart to federal executive orders: Chicago’s mayor has issued an executive order rejecting militarization, directing non-cooperation with federal agencies, and prohibiting federal agents from concealing their identity in the city.

Further support for the local control issue is found in a coalition of 20 state attorneys general urging Congress to change laws to prohibit masking by police, as well as a common-sense complaint by national legislators about assaults and other criminality by masked imposters. Identifiable police are crucial for due process and the rule of law, because identity and accountability helps counter any tendency toward impunity.

(Along similar lines, even before the current spate of rogue federal behavior, I was somewhat concerned about seeing Massachusetts police license plates with very low contrast between letters and background. They’re nearly impossible to read at any distance, and seem difficult to justify except as a kind of slippery slope toward anonymity. Curiously, I haven’t yet been able to find any documentation about the associated rationale, or even confirming their existence. Did I see an abandoned prototype? Has there been a concerted effort to keep this information off the internet? It’s easy to get paranoid once there are actual cases of people being snatched off the street in this metro area for what they wrote!)

Calling the (real) police

Along with the constitutional theory that police powers are reserved to the states, there is the pragmatic response of calling the (local) police when someone is being kidnapped by (alleged) federal agents. The point isn’t necessarily that the police will be able to stop the kidnapping. Indeed, they may not even arrive before the perpetrators are gone. But filing a crime report is a form of accountability and evidence gathering. Whether the subsequent actions are criminal or civil, there is some official contemporaneous record of the incident with state and local authorities.

In addition, local collective action is often possible, even if the police are unresponsive. DC has been a recent source of multiple examples: one of the most impressive is a DC neighborhood chasing ICE away. Another is a video of people simply following and mocking ICE agents. And although I am generally in favor of gun control, there is a certain rough justice to the recent incident in which a Houston homeowner shot and killed two masked “police” who were trying to enter his house. Notwithstanding the utter failure of second-amendment types to rise up against a would-be tyrant, we can see that the proliferation of guns in the country may at least give pause to anyone trying to cosplay as a federal agent.

Immunity for me, not for thee

I previously observed that the (outrageous) immunity conferred on the president by the Supreme Court was a personal immunity, not an organizational immunity. The president can’t personally be prosecuted for performing his official duties, but we all know that in the modern world there’s not a lot that one person can do entirely on their own. As soon as other people are involved, they are vulnerable for prosecution if they commit crimes, because the president can’t delegate immunity.

Of course, that was just my personal assessment – the issue hasn’t been litigated, and I am not a lawyer, so there was certainly room for skepticism that I had worked it through correctly. But then, entertainingly, Donald Trump himself basically confirmed my theory, even though it undercuts what he might rationally want to be true.

As is often the case with the wannabe dictator, this was a situation in which his perceived short-term gain outweighed a more thoughtful long-term analysis. As part of a rant about how he was persecuted, Trump threatened Obama-era employees, making clear that he could put them in jail for the “crimes” he imagines they committed. It may or may not be the case that he could corrupt the courts sufficiently to accomplish such a plan, but that’s not the interesting point for my purposes. Instead, it’s clear that even in the Dear Leader’s fevered mind, immunity only protects the president… not his henchmen.

Accordingly, it’s potentially useful to quote Donald Trump to overenthusiastic ICE agents, pointing out that they will not have immunity from future prosecution, even if he does. Those agents may imagine that he will pardon them, but that in turn leads to some tricky considerations:

1. They had better be sure they get pardoned while he is still alive and still in office, since either dying or leaving office absolutely ends the possibility of pardons from him, and

2. They had better be sure they are really going to get pardoned, because Donald Trump is famously capricious depending on whether he thinks he likes you or not, which in turn famously depends on whoever last spoke with him. Although he expects total loyalty, he demonstrates little or none himself.

Why is rule of law a partisan issue?

Remarkably, the topic of secret policing is an area that divides us by political affiliation. One might hope that all sides could agree on the merits of the rule of law, avoiding secret police and arbitrary detentions at the whim of a tyrant. Unfortunately, that doesn’t seem to be the case right now.

Republicans appear to think that it’s fine to suspend due process and to have a secret police force and/or paramilitary, as long as it’s being directed by “their guy.” Their calculation appears to be that these forces will only be used on “other people” – ideological and political enemies, or people of no consequence. This is a remarkably short-sighted and historically-ignorant perspective, but is unfortunately consistent with the pattern seen in other countries taken over by dictators. Various enablers convince themselves that the tyrant can be “managed” and that they are “really” in charge, up to the point where they find themselves being led away for prison or execution.

Principles

However, it’s pointless to wish that we were in a better place than where we are. Instead, we must consider the question of what to do about a rogue federal government.

The first principle, with due credit to Timothy Snyder, is “Do not obey in advance.” Resist the efforts of the tyrant, organize against the tyrant. This mental shift from default compliance to default resistance is sometimes hard for me, as a person who has done well by following the rules. And yet in some ways it’s not hard, since I see myself as continuing to follow the real rules, while the federal government tears up the longstanding rule book.

A second principle is about raising costs. One relevant observation is that when you want to discourage a burglar, you don’t need perfect locks; you just need something that’s good enough to convince them that there are easier pickings elsewhere. A similar reasoning applies to bullies: it’s smart to inflict more damage on them than they expect, or otherwise find ways to divert them. After all, there are 50 states; while it may be unfortunate if some other state becomes a victim of federal bullying, better that it’s someone else’s problem.

Defenders of liberal democracy all too often think only in terms of making some particular current problem go away, and not enough about how to strike back in a way that makes future problems less likely. As with security, and as with bullies, part of the pragmatics involves the idea of making oneself a less attractive target.

The error is probably rooted in thinking that the attacker is a one-issue reasonable actor. If the attacker simply had a legitimate complaint that could be addressed, and then everyone would move on, then the classic liberal-democrat playbook would be sensible and advisable.

Instead, the attacker (whether we think in terms of a burglar, a schoolyard bully, or a would-be tyrant) has an endless appetite for their misbehavior. All three types probably have some kind of unresolved mental disorder that prompts their negative interactions with others. The goal of an encounter with them needs to be neither a simple resolution of the present dispute, nor an effort to help them be better people in the future. Instead, the goal is to convince them to pick on someone else in the future – to change their evaluation criteria when they are selecting a victim, and decide that we (this person, this group, this institution) are not as easy a target as they had thought.

One possibility is to counterpunch, inflicting harm or damage on them. Another possibility is to bog them down in some unsatisfying and slow-moving way that denies them their desire for victory or dominance. These two basic strategies both have variants that involve enlisting or activating allies, either to inflict harm on the bully or to slow everything down.

In a similar vein, many organizations have adopted a policy of not negotiating with terrorists. The understandable concern is that any concession rewards terror, and effectively guarantees further terror in the future.

Countering trial balloons

Although it’s less about secret police and more about countering moves toward martial law, it’s worth noting the importance of countering propaganda about “crime waves” or “chaos” in cities. Increasingly, we see the erratic president free-associate some nonsense about cities or states that are controlled by his political rivals, and then try to convince the country that his nonsense justifies dictatorial behaviors. This is an ongoing effort to normalize the abnormal, and even deranged nonsense can sometimes succeed via repetition if not countered.

It’s important for public officials to publicly declare the correct and acceptable behavior for both federal agents and members of the public, and to then enforce the laws accordingly. There is a J.B. Pritzker speech that is a smart example of this approach. He clearly states the absence of genuine outreach or coordination between federal entities and the relevant city or state authorities; the lack of any actual emergency; the pretextual nature of the proposed federal intervention; and a clear statement of solidarity among all the relevant state and local authorities that a federal military intervention is not desired, desirable, or legal under the current circumstances. Crucially, this involves direct, pithy, sound bites like “Do not come to Chicago.” There is no ambiguity remaining, no weasel words for the federal forces to exploit. The premises have been debunked, the pretexts exposed, state and local authorities firmly reinforced in their role, and the federal agencies told in no uncertain terms to stay away. I suspect similar declarations and actions will be forthcoming in other blue states before too long.