Monday, July 20, 2020

Portland is the New Crimea: Trump's Little Green Men

by Michael C. Dorf

The Trump/Barr administration has been deploying federal law enforcement officers in Portland without approval of local or Oregon state authorities, without clearly identifying who they are, and without a clear law enforcement mandate. In each of these respects, the deployment may well be illegal, as Prof. Steve Vladeck explained on Friday. Further, Portland Mayor Ted Wheeler believes--with good reason--that the federal presence is causing rather than quelling violence. Here I will focus on the striking similarity between what Trump and Barr are now doing in Portland and the Russian invasion of Crimea (and then eastern Ukraine).

Readers will recall that in 2014, after a popular uprising ousted the Russian-backed government of Ukraine, Russian troops, acting in clear violation of international law, invaded Crimea. Russia responded to the widespread denunciation of its action by denying the obvious. The troops on the ground in Crimea were obviously Russian, but because their uniforms bore no insignia (itself a war crime), high-ranking Russian government officials claimed that they were simply local forces. No one believed this lie, and the unidentified Russian troops came to be known as "little green men." Perhaps in recognition of the fact that the West wanted Russian oil and (understandably) to avoid a nuclear war more than it cared about Ukrainian sovereignty, Vladimir Putin eventually admitted that he had ordered the little green men--Russian military and intelligence units--into Crimea.

The Trump/Barr deployment in Portland bears four striking similarities to the Russian invasion of Crimea. First, in Portland, as in Ukraine, the forces are not identified. Second, the local authorities do not welcome them. Third, in both instances, civil unrest is the pretext for the incursion. And fourth, the very presence of the unwanted invaders generates civil unrest that is then invoked to justify the unwarranted invasion in the first place.

It should be shocking that the best analogy for the actions by the federal government in a major American city is the action of an authoritarian regime that has been waging a multi-year campaign to undermine democracies the world over. It is easy to become numb to the incompetence and outrages of the Trump administration or to be distracted by his constant lying, boasting, and racism. This is not a moment for numbness, however. All of Trump's outrages should occasion some sort of response, but this episode should occasion a red alert.

To be sure, Trump's invasion of Portland is not in all material respects identical to Putin's invasion of Crimea. Neither Oregon nor Portland is a sovereign, and so the frame of international law does not apply here. Although the international humanitarian law of war requires that armies (and their equivalent) wear uniforms with distinctive insignia, domestic law does not. Undercover cops and sting operations are part of the standard law enforcement toolkit.

Yet this distinction does not go very far. For one thing, in our constitutional system, states retain some elements of sovereignty, protected in no small part by the limits on federal power. As Prof Vladeck explains, the federal agents operating in Portland do not appear to be simply enforcing some federal law, and without an invitation from Portland and/or Oregon, federal actors have no authority to enforce state law. It is thus fair to refer to the federal action as broadly similar to an invasion.

Meanwhile, although the insignia requirement does not apply domestically, neither is what the federal authorities are doing in Portland anything like a conventional domestic law enforcement undercover mission. They are not embedding in a criminal organization or posing as criminals to carry out a sting operation. They are brazenly making a claim to authority that comes simply from their use and threatened use of force. Both the NY Times and the Washington Post--along with numerous other news organizations backed by video and interviews--report that federal officers without insignia have been pulling protesters off the streets into unmarked vans. Here is an excerpt from the WaPo story describing the experience of 29-year-old Mark Pettibone with Trump's own little green men:
Pettibone said he was scared when men in green military fatigues and generic “police” patches jumped out of an unmarked minivan. [W]hen several men in fatigues approached him, his first instinct was to run. He did not know whether the men were police or far-right extremists, who frequently don military-like outfits and harass left-leaning protesters in Portland.  . . . He was detained and searched. One man asked him if he had any weapons; he did not. They drove him to the federal courthouse and placed him in a holding cell, he said. Two officers eventually returned to read his Miranda rights and ask if he would waive those rights to answer a few questions; he did not. Almost as suddenly as they had grabbed him off the street, the men let him go. The federal officers who snatched him off the street as he was walking home from a peaceful protest did not tell him why he had been detained or provide him any record of an arrest, he told The Post. As far as he knows, he has not been charged with any crimes. And, Pettibone said, he did not know who detained him.
If your goal is to prevent peaceful protest from turning violent or to deter unlawful actions, you will want your peace officers to identify themselves clearly so that law-abiding citizens, including peaceful protesters, abide the law. Seen from that perspective, the federal tactics look counterproductive. But if your goal is--in Trump's words--to "dominate" people by terrorizing them, then there is a certain logic here. It is the logic of a regime whose legitimacy comes from its use and threatened use of force, rather than a legitimate government that has force at its disposal as a last resort.

Trump's many associations with Russians, his welcoming (and simultaneous denial) of Russian interference in U.S. elections, his recently discovered failure to respond to Russian bounties on U.S. soldiers, and much much more have led many people to wonder what Putin has on Trump. The answer might well be quite a lot. But in some ways this line of inquiry is misguided.

What do Duterte, the Saudi royal family, Orban, or Bolsanaro have on Trump? No doubt Trump would be happy to exploit business opportunities in Manilla, Riyadh, Budapest, and Rio (if he knew anything about running a successful business), but pointing to such external motivation is unnecessary to explain Trump's admiration for political figures who silence, imprison, and/or murder their rivals and critics. Trump admires these people because of how they "dominate" their people. For him, the evil is a feature, not a bug.

* * *

In Surviving Autocracy, the incomparable Masha Gessen writes that "[m]ost Americans in the age of Trump are not, like the subjects of a totalitarian regime, subjected to state terror." That's perhaps still true of most Americans but not a fair number who live in Portland. And Trump's eagerness to follow Putin's authoritarian playbook when it comes to the use of force should raise questions about how else Trump might choose to emulate Putin.

Shortly after Putin's little green men invaded Crimea, he orchestrated a sham referendum in which--surprise surprise--97 percent of voters gratefully chose to have Russia annex Crimea, in clear violation of international law. Is there any doubt that, if he could, Trump would not hesitate to engineer a sham election to return himself to office? If not, then the only real questions are: (1) Who will stop this execrable clown of a would-be tyrant? and (2) How?


Patrick S. O'Donnell said...

And how do we account for this?:
July 16, 2020 at 2012 UTC
Location: Portland, Oregon near BATTLE GROUND VORTAC (BTG)
Beginning Date and Time: July 16, 2020 at 2100 UTC
Ending Date and Time: August 16, 2020 at 2100 UTC
Reason for NOTAM: Temporary flight restrictions for Special Security Reasons
Type: Security
Replaced NOTAM(s): N/A
Jump To: Affected Areas
Operating Restrictions and Requirements
Other Information

Is this to make certain no media helicopters can film what is occurring? What other reason could there be for this restriction of air flight over the area?

Fred Raymond said...

Exactly. Of everything in the news at present, this frightens me the most and gives me the greatest feeling of foreboding.

Frank Willa said...

Just saw some of T's comments in WH at end of meeting with GOP...beyond frightening.
T said...among other things...these are not Americans...will not allow this..then listed at least a half dozen large cities that he may intervene...and said this is 'worse than Afghanistan'.
Professor you and Professor Buchanan have been sounding the alarm for some time. Is this the beginning of declaring martial election...will not leave office? The 'centrist's it will be ok...the norms and institutions will hold seems 'head in the sand' at best, at worst a deliberate denial.
To also refer to the WaPo, an Opinion by Ms. Marcus about Portland 3 days ago illustrates the reluctance of many to 'see the little green men', and my comments to her.

"Just what will it take?

'I have not been among the alarmists who warn of incipient authoritarianism ...'Perhaps that was over-optimistic'.

'Perhaps'... How about just plain wrong? You should have been Alarmed. Be Alarmed Now!
what will it take?... until people are loaded onto boxcars to be taken to a camp....and sent into a room to take a get your attention?"

Your 4 part analysis is spot on, sadly. Perhaps I am over the top in my reaction to the video that I just saw; perhaps not. Professor Dorf if I have 'gone too far' in borrow your phrase...sputtering rage..feel free to delete my comments today.
Thank you.

Supplysider said...

Conner O'Shea video is Priceless.

Bad Wolf said...

So what can the locals do to disrupt the Federales? For example, could the local police or state police detain the Feds? Could they pull them over for a Terry stop and detain them for a while, run the drug dogs around their vehicle? Cuff them "for their own safety" while this is going on? Stand by and arrest them when they assault citizens? Arrest them for using tear gas? IANAL but I am sure there are other ways of messing with them that could be implemented.

It is particularly vexing to me that the local and state elected Democrats have been sitting on their thumbs during this event. I cant imagine being in a position of authority over the police and just sitting around going "Meh what are ya gonna do..."

Fred Raymond said...

I think the process that we are witnessing is not reversible.

Michael C. Dorf said...

Here's an AP story that links back to this blog post:

I'm quoted based on my conversation with the reporter:

“The idea that there’s a threat to a federal courthouse and the federal authorities are going to swoop in and do whatever they want to do without any cooperation and coordination with state and local authorities is extraordinary outside the context of a civil war,” said Michael Dorf, a professor of constitutional law at Cornell University.

“It is a standard move of authoritarians to use the pretext of quelling violence to bring in force, thereby prompting a violent response and then bootstrapping the initial use of force in the first place,” Dorf said.

Fred Raymond said...

This should be the only topic on all news outlets everywhere.