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Analysis of Legal and Security situation under Trump
I have written an analysis of the security and legal situation for NVDA activists resisting the Trump regime for the NV preparers in Santa Cruz as of now. It comes out of a tense discussion at my affinity group meeting over the question, "Just how fucked up are things now?" My analysis, horrible...but could be worse. We are planning massive NVDA to protect our neighborhoods in Santa Cruz against ICE, FBI, whoever is coming, and this is for that organizing. So it does have a California, indeed Santa Cruz, spin on things. love & rage, crystal
Note: This is a working analysis, written for nonviolence preparers and activists in Santa Cruz, California.
Syndicate for Initiative Working Paper #1
Love & Rage affinity group
On the Legal/Justice Situation, 4/1/17
As we move deeper into the Trump Age we have to balance our concerns and fears with historical and empirical evidence. As nonviolence preparers there is a fine line to walk between on the one hand, empowering people vs. misleading them and, on the other hand, preparing them for the worst vs. scaring the shit out of them.
This analysis starts with a review of current practices of the U.S. government against mass protest movements, looking especially at Obama era policies (for not all are actually Obama’s, much of the security state is instantiated in local police, prosecutors and judges) and how the Trump Administration will probably build off them. But, on balance, since the majority of law enforcement operations are local, the situation in California will stay roughly the same (which is probably worse than many people think it is) for most arrests, except that the mass refusal of full cooperation for ICE general deportations might actually shift some confrontations, at least in terms of numbers, in our favor.
Then, in comparison, there is a short look at how the Bush’s, Reagan, and Nixon eras dealt with mass protest, to show that the level of official violence and illegality was much worse under all these administrations than in the Obama-Trump period we are in now. So far.
The next section is some grounded speculation about what a Trump Administration, with their Republican majority and a divided Supreme Court, might try and do in response to the next serious or major attack on the U.S.
Finally, I end with a personal note on what we might be risking, and why I think we have the courage to do what is necessary to preserve our freedoms, and those of our neighbors, and even push forward toward the better world we know is necessary.
Current Practices of the Government
The sad surprise, looking at what Trump’s Administration and other police agencies are doing, is that the groundwork for much of it was laid in the last eight years, which did not do enough to counter the horrible Patriot Act. Fortunately, some of its worst aspects died automatically, thanks to sunset provisions.
Today’s FBI, under leadership appointed by Obama, has a corporate culture very antagonistic on most levels to the U.S. Constitution. The only good thing that can be said about today’s FBI is that it no longer is controlled by a single authoritarian nut job and they don’t seem to be turning a blind eye to, or even organizing, the murder of activists as they did throughout the 1960s and early 70s. Otherwise, it is fucked up and, of course, will remain so in the foreseeable future, even if it seriously investigates Trumpian malfeasance or even treason. Its loyalty is to the National Security State, not any one politician, although the NY office is clearly a Trump/Giuliani bastion. It played a major role in undermining Clinton at the end of the campaign.
Entrapment operations have become a staple of anti-Muslim prosecutions. We can expect more such operations targeting idiots who could never organize a terrorist act even with the ample FBI help they are offered. But other kinds of “beyond entrapment” FBI operations will probably return, like the hundreds in the 1960s and 70s and even later. Including, perhaps, the 1990 car bombing in Oakland that maimed Earth First! activist Judi Bari. It was probably (but not certainly) an attempt by the FBI to frame Bari and other activists that went wrong.
The DIA, already a militarized, corrupt and ideological agency on a mission to eradicate not just drugs, but any cultures that don’t demonize drugs, will be more dangerous under Trump/Sessions, as the Federal re-criminalization of marijuana will inevitably be used against political activists at some point. If it succeeds it will be deployed often. But it will run into serious problems with judges, juries, and local police and politicians who don’t believe marijuana is just like heroin, let alone the public in many places who have voted to legalize it.
Under Obama, ICE had a very robust deportation program (stronger that George Bush Jr.’s) but his policies did protect Dreamers (who still might be safe under Trump), discouraged collateral arrests when going after violent felons in the country illegally (this policy, implemented under Janet Nepolitano, is clearly already dead, as we saw in Santa Cruz recently), and even set up a policy of avoiding “sensitive zones” and the areas around them, such as schools, medical centers, warming centers, churches (and religious ceremonies) and “public demonstration, such as a march, rally or parade”. (https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf) ICE on the ground, and Trump with his anti-Sanctuary rhetoric, are already pushing against this “soft” sanctuary policy, and we can expect it to disappear soon.
There is strong evidence that ICE is targeting Sanctuary cities:
ICE has a particularly racist security culture, and a disdain for legal authority that is even worse than the FBI and almost matches the DEA and CIA (both pretty much lawless entities at the point in our imperial history). While legal pushback has been strong (suits against recent ICE overreach from many jurisdictions and some NGO’s and victims) misbehavior by ICE will continue and almost certainly get worse. Crossing the U.S. border, going through immigration checkpoints almost anywhere, confronting ICE raids on neighborhoods, will all be more difficult and dangerous than ever before.
The Department of Justice under Obama has the worst record in history against whistleblowers. Trump’s DOJ will no doubt try and break it. Under Trump, the DOJ will not pursue campaigns against the most violent, greedy, and racist local police departments. This will impact California, where Bakersfield PD is running out-of-control and many other departments systematically pursue racist and illegal policies and practices. Conspiracy and other charges based on FBI and DEA cases could well be pursued against effective protest organizers and others, as was the case in the 1960s, 70s, and 80s. The militarization of local police through DOJ grants and equipment from the Department of Defense will certainly increase. And it was very bad under Obama, whose administration gave Santa Cruz its Bearcat armored car after all.
While Obama began to move against “asset forfeiture” (the government stealing people’s stuff and forcing the victims to prove they are innocent before they can get it back) by Federal authorities at the end of his 8 years in office, it was too little, too late. The old policies have already been restored. https://www.washingtonpost.com/news/wonk/wp/2016/03/28/the-feds-have-resumed-a-controversial-program-that-lets-cops-take-stuff-and-keep-it/
We can expect they will be used against protesters, and perhaps most dangerous of all, against people offering shelter to people hunted by ICE and others. Authorities can only seize property related to the crime charged at arrest, although no trial or conviction is necessary for them to keep it. Protesters’ vehicles and e-tech is at risk if it is part of the protest. But Sanctuary providers put their vehicles and houses at risk if they are used to shelter targets of ICE and others. It is a big risk.
Homeland Security, as an agency, played a major role (especially at FBI and Obama DOJ urgings) in coordinating police repression of Occupy. See this leaked document dump at The New York Times: https://www.nytimes.com/interactive/2014/05/23/us/23occupy-docs.html?_r=0) and this nice analysis from The Guardian:
The Trump/ICE war on Sanctuary states, cities, schools and churches will be coordinated through these centers. Since many local police will not cooperate with ICE, they will need the combined resources of Homeland Security to operate against resistance. In general, being arrested and prosecuted by the Federal government is worse for protesters than being charged by local jurisdictions. The Feds have better lawyers, they have bigger budgets, they can try conspiracy and other “fancy” charges better. In particular, we found at Vandenberg AFB protests that our mass solidarity actions when arrested were much less powerful against the Feds, than against the State of New Hampshire (Seabrook) and, in California, San Luis Obispo (Diablo) and Alameda (Livermore) Counties. And this has remained true in mass protests since then.
Since the 1990s, the Federal government (in DC) and local governments have lost a lot of lawsuits around arresting people in mass. Old policies (such as holding people in unsafe makeshift situations) and relatively new from the 1980s (faux “free speech zones” and “kettling” protesters in streets with no real notice and/or while they practice protected speech) have led in the last 30 years to a long string of legal defeats and payouts to victimized citizens. In response, local jurisdictions have pursued various newer policies, such as the massive use of “riot” charges against Trump Inauguration protesters. The DC charges, as opposed to the protest itself, are not a result of Trump’s election, but rather of ongoing attempts by local police authorities to find a way to ramp up charges against nonviolent protesters by linking all of them to any property destruction or actual violence and calling them “rioters”.
There are several pretty good articles on the DC inauguration protest indictments. Seems like most of the felony charges are prosecutor over-reach and will be dismissed or downgraded. It helps the prosecution that there was some actual planned property destruction…but only 4 people charged with that actually. The rest hit with riot charges in large part because the property destruction makes the demos “a riot.” But without specificity in the indictments they will probably be dropped. This is a good overview:
Below is an earlier article, before charges were dropped against the journalists arrested, that goes into the history of big payouts from earlier DC mass arrests that were found illegal. The riot charges are deeply problematic and one lawyer here, as several in the article above, predicts most won’t stick, if any even go to trial. The harshness of the arrests and these charges (a return to DC police policies at mass demos in 2000 and 2002) is credited in these articles not to Trump but to the new interim DC police chief.
The growth of private security agencies with incestuous links to the National Security State will continue. For the last decade at least, private security working for oil companies have pursued a policy of trying to get local jurisdictions to bring conspiracy and terrorist charges against environmental activists protesting fracking. (https://www.theguardian.com/environment/earth-insight/2014/jan/21/fracking-activism-protest-terrorist-oil-corporate-spies) Thank you Patriot Act and other such legislation. We can expect that the use of this approach to a wide range of protesters now, and the close cooperation between corporate and government security services will only increase under Trump. As with private prisons, whose stocks have shot up since Trump’s election for obvious reasons, there is serious money to be made in gutting the Constitution.
Trump supporters could well be the most direct threat to the lives of us protesters. There is a decentralized culturally-based right wing racist and nativist terrorist movement in the U.S. that perpetuates atrocities daily and kills dozens of Americans every year. A pro-Trump demonstration was scheduled for Berkeley March 4, clearly as a provocation since Trump supporters showed up armed with clubs and knives and protected by helmets and body armor. They were met by similarly equipped black bloc protesters and a riot, a real riot, broke out with a number of injuries and arrests. http://www.sfgate.com/bayarea/article/Scattered-fist-fights-break-out-at-pro-Trump-10977508.php
Similar confrontations are inevitable. Gun attacks on peaceful protesters are likely, as with the KKK attack on the Communist Workers’ Party “Death to the Klan” march in Greensboro, NC, back in 1979. Seven communists were killed, five seriously injured.
California will not be immune. Wonderful as this place is, it is not all unicorns farting rainbows. Many parts of the Big Valley and the High Sierra are very right wing. Even in Santa Cruz, over 20% of the population voted for Trump, and many pockets of the country (up Zayante Road, down around Freedom) have significant Aryan Nation, White Identity Christian, Hell’s Angel and other toxic communities very familiar with violence and with a strong racist/Trump ideology.
Under all administrations, and Obama’s as much as anyone, new technologies have been mobilized to defeat the goals of the US Constitution, especially the Bill of Rights. While electronic surveillance will spread and deepen, we can also expect the security services to use drones more. Obama showed us that the temptation of remote-controlled enforcement (even the execution of US citizens without due process) is just too powerful to resist. Trump’s administration is launching four times as many drone strikes as the very active Obama administration.
Improvements in facial recognition software are particularly concerning. Recently, the Memphis police department used facial recognition software to identify people at a perfectly legal protest against them, and then tried to intimidate identified protesters.
The FBI system is certainly one of the most sophisticated, but it is unclear how good it really is. There is at least a 15% failure rate overall, and it performs significantly worse than average on black people, but the FBI doesn’t really study its failures. As with the less than perfect fingerprinting, and the totally bogus “bite mark” science, the police prefer to imagine their technologies perfect.
This type of software use will certainly go national (assuming it isn’t already an integral part of the capabilities of the many Fusion Centers). After all, roughly half of all residents in the U.S. already have their faces in accessible files, according to the articles above from The Intercept and The Guardian. There are ways to defeat facial recognition software, lights, makeup, and especially bandanas and ski masks. These countermeasures obviously have their own issues. The good news is that research on recognizing the gait of filmed people is not going well, and so it might be up to a decade or more before it is deployable.
Bush’s, Reagan and Nixon Eras
I was going to write a whole personal statement disputing the claim that the situation today is the worst it has ever been in the US for democracy, liberty, protests and all things nice. Yes, things are already a bit worse than under Obama and will no doubt get much worse. But we are nowhere near a new Alien and Sedition Act (that had Jefferson plotting a second American Revolution), we don’t have slavery nor the ongoing direct genocide of Native Americans. Unions have some rights (won at the cost of hundreds murdered), African-Americans have the vote (won at the cost of a Civil War and thousands of Blacks murdered for the next 100 years). We won’t see habeas corpus and military courts imposed as Lincoln did. We won’t see the internment of a whole race (or religion) of people, including U.S. citizens. (I know, they might try it…but I don’t think it will happen. It shouldn’t, if we are strong enough).
It certainly won’t be as bad as the 1950s, with black lists (tens, maybe hundreds, of thousands lost their jobs), massive violence against African Americans and others… It won’t be as bad as the 1960s into the 1970s during which several hundred (at the least) activists were murdered by national guard, local police and the FBI (especially but not limited to COINTELPRO). And hundreds of thousands of activists went to jail for serious time on trumped up charges, drug charges, and just as many were beaten and left bloody on the ground, with no consequences for the authorities.
Why won’t it get as bad? Because the whole social alignment in the country has shifted, with clear majorities accepting equality and the right to control their bodies for women, same-sex marriage, legality for undocumented working people and their families, and so on. Yes, these policies are under attack, thanks to the corruption and ineptitude of the Democrats. And yes, a majority of people still harbor major illusions about the police and how they work, and won’t even admit to themselves that the US is hated as the World’s Empire. But it isn’t, and likely won’t be, as bad as the early 70s, when a nice white-boy long hair such as myself was often accosted on the street (and at work and in bars) by conservatives, violently attacked by police a dozen times, framed for a violent felony, and chased and almost run over by police cars in California, redneck pickup trucks in Appalachia, and Republican limos in Miami.
We can expect the protest and personal security situation will reach the levels it did under Reagan. It wasn’t good. I had friends murdered--in prison by guards, at a marijuana grow by crooked cops, in Nicaragua by CIA led Contras for building a school, and a cousin killed by sheriffs in the California mountains for talking back. But in mass protests in the streets the police shifted to subtler tactics and we took the offense around support for apartheid and nuclear power/weapons…leading up to Seattle. Not that they didn’t try mass beatings and brief kidnappings at the CDAS demos at Seabrook (where one woman was permanently blinded and dozens had broken bones) and other places. Not that during our Diablo organizing right here in Santa Cruz PG&E security didn’t monitor us and fuck with our phones and send us threats of violence. But the FBI was muzzled by Congressional actions and the CIA told to step back from US domestic operations and, legally, that is where we were when 911 happened.
911 gave the National Security State major powers, most of which it still has, but things never became as bad as they were 25 years earlier. Still, 911 shows the potential for a massive roll back of Constitutional liberties. The Patriot Act is by far the worst event in this area since 1975, easily. In particular, the Fusion Centers of the Homeland Security Agency are scary. If things go very badly, martial law will be administered through them.
Response to the Next Serious or Major Attack
As we have seen historically, attacks on the US are used to gain extra powers for the National Security State. This is true in foreign policy (Gulf of Tonkin) and domestically (911) and both (911). As Peter Maass of The Intercept puts it, For Donald Trump, A Terror Attack Will be an Opportunity, Not a Curse. (https://theintercept.com/2017/03/19/for-donald-trump-a-terror-attack-will-be-an-opportunity-not-a-curse/) The first Trump response to the inevitable “neo-ISIL (supporters of ISIL recruited indirectly through the Interweb or out of the general fundamentalist Islamist milieu) attack(s) we’ll see in the near future will be doubling down on current initiatives:
More restrictions on Muslim immigration. More emphasis on the Wall. More collection of electronic intelligence domestically. More involvement of NSA, DIA (military intelligence) and the CIA in monitoring domestic protesters, no doubt coordinated through the Fusion Centers.
Maybe, Trump will seek to go even further on his own, such as trying to suspend habeas corpus, deploying the military domestically, declaring that restrictions on CIA and DIA domestic operations are off, and so on. These actions legally necessitate Congressional approval but Trumpian overreach when given the chance (as we have seen with his two Immigration Bans) is predictable.
• Domestic Security Operations. The pattern of Imperial America has been when under stress to import the tools of imperial control to the heartland. The overreach of the 50s, 60s, and 70s led to the CIA, the military (especially the DIA which had a massive domestic operation), and the NSA (to a lesser extent) stepping back from domestic involvement. This was mainly because of Congressional investigations and legislation after Nixon’s fall.
If things go badly, we can expect to see the domestic security establishment apply the same sort of policies and practices here as they do in the combat zones of the Empire. Already, social networking software developed for tracking Taliban is used to search for Seattle anarchists, sock puppet programs used to confuse potential ISIL recruits are used against Occupy, and secret “FISA” intelligence courts (a Cold War leftover revitalized by the Patriot Act) can treat Americans as our Imperial bureaucracy treats Iraqis, Afghans, Syrians, Libyans—horribly. Already, the FISA courts put people under secret investigation and than, if they find out, they are ordered not to tell anyone they are being investigated!
Much of the blood work of the Empire has now been contracted out to private firms. In the U.S. they already work for corporations and as contractors for Homeland Security and the rest of the alphabet soup that threatens us. This can get pretty bad. Framing effective activists, targeted elimination, and other actions that were common up until the mid-1970s could return with a vengeance… and they might be harder to stop because they will often be privatized.
We would see a return of “red” squads aimed at Muslims and activists, more agent provocateurs, more violence from police in the streets (but countered with souveillance), more profiling by religion, looks, bumper stickers, database read outs. More surveillance in general. Not good.
* Suspend habeas corpus (if the government seizes your living body, they must show they have a legal right to do so in open court).
In 1863 Congress gave Lincoln the right to suspend habeas corpus, institute military tribunals, and declare martial law (direct military rule). In 1866, the Supreme Court found in ex parte Milligan that military courts could not be imposed while civilian courts still sat and set some other limitations on the power of Congress to give the Executive branch such sweeping powers. The bottom line now is that if Congress legislates it, the Executive Branch can suspend habeas corpus and impose martial law. Civilian courts would have to be shut down (or not exist, as they don’t on Guantanamo base) before military courts could be imposed.
• Internment Camps for Muslims, protesters, Democrats.
We see, historically, that Executive Order 9066 was implemented putting 110,000 Japanese Americans in concentration camps despite the fact that is clearly violated the Constitution around habeas corpus and the due process clauses protecting people from being deprived of life, liberty and property without due process. After this Executive Order was made, there were a few initial cases that supported the internment, but they have since been vacated because the U.S. Government lied to the Supreme Court. A long series of cases have repudiated the internments and reparations have even been paid. But nothing promises that a President, with support from a stupid and cowardly Congress, couldn’t try mass internment again.
But here we have to ask, will we allow it? Would even the Democratic Party go along with this? I think not.
* Torture probably won’t become official again, but Trump will use the powers Obama claimed, including killing Americans on his own (and his lawyers) say, so that is bad enough. Since torture actually doesn’t work, CIA and FBI agents and other professionals aren’t excited about its return.
I don’t think it is a philosophical debate if we disagree about the legal/justice/security situation. We can’t get swept up in how bad Trump is to the point of not thinking clearly about the risks. Our discussion should be historical and empirical. We should not make affinity group decisions, nor offer analysis in nonviolence preparations, based on fears instead of the actual situation. Yes, things are scary but a historical (of the U.S.) and comparative analysis (looking at other countries today) can help us understand how bad things actually are, how bad they might get, and that we have the strength to confront these challenges.
One of the things I study is how human psychology impacts political change. A key part of this is noticing how unevenly we evaluate personal risk. If 50 protesters are killed under the Trump administration, it will probably still be safer to protest seriously than to drive. The blood cost of driving is accepted in our culture, while other risks go wildly overestimated. More Americans died of car accidents during the Vietnam War than Americans died fighting in that war. Thanks to protest movements such as Mothers Against Drunk Driving cars actually kill significantly fewer people these days, but they still kill thousands. Since 911, toddlers with guns have killed more Americans than terrorists of whatever type, yet the nation recoils in massive horror at every attack by pro-ISIL actors, even if abroad.
Only a massive mobilization of activists (Black Lives Matter) has raised the constant police murders to public consciousness. Of course, right wing terror kills many more people than all other types, yet it continue to be downplayed by the mass media, who usually redefine it as some sort of personal failing of the perpetuators.
Trump will hurt and kill way more Americans with his attacks on the EPA, on worker safety, and on health care than his policies will hurt and kill those of us who take to the streets. He will kill many more Americans by inspiring terrorist attacks than will die protesting his policies. We have to hold these “invisible” deaths, this “hidden” violence clear in our minds in order to weigh what risks we are willing to take.
I have had the honor of working with Egyptian revolutionaries over the last decade or so. These are people like us, working people, feminist scholars, struggling lawyers, architectural students, soccer fans. They have faced, and still face, horrible violence from their own military, trained and funded by the United States. They did not choose this world, a world where their own sense of justice and their love for their communities have sent them deep into harm’s way. We did not chose it either, but this is the world we live in now. I believe we can rise to the challenge. It is a matter of what’s right, what is just, what is honorable. Scary as resistance is, acquiescence is no safer in the long run, and if we submit, not only are our freedom and health and lives at risk, our souls are as well, most of all.