Trump's Law-Breaking Law Enforcement Commission Has Plenty Of Dystopian Ideas

from the if-only-the-public-didn't-have-so-damn-many-rights dept

Trump has made no secret of the fact he adores law enforcement. One of the first edicts he issued from his office told America in no uncertain terms that cops were to be respected, if not worshipped, for deigning to stand between millions of US peons and the forces of evil.

The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

The Trump Administration has yet to end the "dangerous anti-police atmosphere." But, it's not for a lack of bootlicking. Unfortunately, cops have spent the intervening years increasing the distance between them and the people they serve by violating rights and killing unarmed people.

The professed respect for law and order doesn't extend to the Administration itself, which has violated the law on multiple occasions. This all dovetailed together when the Presidential Commission on Law Enforcement was found to be in violation of the law by a federal judge.

Composed solely of law enforcement representatives, the Commission ran afoul of the Federal Advisory Committee Act. It did not provide adequate transparency or public access options. And it did not include a range of stakeholders to better serve the stated goal of improving police-community relations, which also violated the law. This egregious violation was called out by the judge handling the lawsuit against the government.

The Commission’s function is to improve policing, including relations between law enforcement and the communities they protect. Yet the Commission does not include a single member who represents elements of those communities, rather than law enforcement. Thus, even employing a deferential review, the Court concludes that the Commission’s membership is not “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.

It gets worse. As Phillip Goff points out in his op-ed for the New York Times, the Commission was apparently assembled to help the President get his police state dystopia on.

The recommendations would... make the avenues to accountability for law enforcement so narrow that even the most egregious cases of police violence would have a harder time finding their way to just resolutions. Officers accused of wrongdoing would be granted access to body camera footage before speaking to internal investigators, allowing them to shape legally valid explanations for otherwise incriminating actions.

The Commission also offered its full support for qualified immunity, the rigged game that almost always lets badly behaving officers escape being held accountable for their actions. It also targeted so-called "progressive" prosecutors with plans to limit their ability to decline low level charges or eliminate cash bail.

In addition, more domestic surveillance is on tap. As local governments around the nation tangle with the tricky subject of facial recognition and its impact on residents, the federal commission was saying we just need more of it faster.

The commission recommends providing America’s roughly 18,000 law enforcement agencies, from small town departments to the New York Police Department, with more money for facial recognition technologies.

More facial recognition. Less security for Americans.

The commission also recommends that police departments be granted back door access to encrypted cellphones.

If we gain nothing else from this, at least we can see law enforcement's desires laid bare. Here's what cops want. And with no one on the Commission to push back on these bad ideas, this is what the President may get if he remains in office. Fortunately, a lot of this lies beyond the expansive powers granted to the Leader of the Free World and it's unlikely many of these ideas will find the Congressional support needed to bring this dystopia to life fully. But this is how authoritarian governments begin: with a one-sided Commission that carefully considers both sides of the same side.

Filed Under: donald trump, dystopia, faca, facial recognition, law and order, police, qualified immunity

Federal Court Says Trump's Law Enforcement Commission Violates Federal Law

from the ignorance-of-the-law-still-working-out-great-for-law-enforcement dept

The "rule of law" Administration is at it again. Ignoring the rule of law by ignoring applicable laws, the Administration decided to cozy up with law enforcement agencies while pretending to be serving the public. (h/t ProPublica)

Formed by executive order, the Presidential Commission on Law Enforcement and the Administration of Justice was formed by the DOJ. The Commission promised to tackle several important issues, including the handling of mental illnesses, substance abuse, and homelessness. It would supposedly seek input from education, employment, and mental health services to tackle these problems.

More problematically, the Commission thought it needed to address this perceived "problem:"

What is the cause of diminished respect for law enforcement and the laws they enforce, and how does it affect both police and public safety?

The answer would have been immediately apparent if the Commission had asked anyone else but law enforcement agencies to participate. But it didn't. And now a federal court has found that the Administration violated federal law by forming a one-sided commission unlikely to fairly address any of the issues in front of it. Here's how the court describes the President's new Commission en route to finding it broke the law. From the opinion [PDF]:

The Attorney General stressed the need to hear from “[a] diversity of backgrounds and perspectives” such as “community organizations, civic leadership, civil rights and victim’s rights organizations, criminal defense attorneys, academia, social service organizations, and other entities that regularly interact with American law enforcement.” Despite these stated goals, however, the Commission’s membership consists entirely of current and former law enforcement officials. No Commissioner has a criminal defense, civil rights, or community organization background. And Commission proceedings have been far from transparent. Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today.

This one-sided panel does not comply with federal law. Nor does its closed-door meetings, which ignore transparency mandates. Here are the requirements of the law that governs the Administration's law enforcement commission:

Passed in 1972, FACA [Federal Advisory Committee Act] requires, among other things, that covered federal advisory committees be “fairly balanced” in the viewpoints represented, that meetings be open and publicly noticed, that a charter be prepared and filed, and that a designated federal officer be appointed to ensure compliance with FACA.

But that's not what happened. After saying some nice things about "diverse viewpoints," Attorney General Bill Barr stocked the commission with 18 former or current law enforcement officials. Barr then unilaterally decided this commission didn't need to comply with federal law.

Further, the memorandum noted, “[t]he Commission serves exclusively to advise the Attorney General and the President” and “is not intended to be subject to either the Federal Advisory Committee Act or Administrative Procedure Act.”

Another brief nod towards transparency was made by the Commission -- a nod that was made even briefer by the Commission shortly after it pretended to care about the public's opinion.

In February 2020, the Commission posted a notice on its website offering interested members of the public the opportunity to submit comments through May 31, 2020 regarding any aspect of the Commission’s work. But at some point between March 13 and March 28, the Commission shortened the comment window by two months, requiring all submissions by March 31, 2020, without posting notice in the Federal Register.

After a lengthy discussion of the government's arguments about whether or not this lawsuit can even be entertained by the court, much less FACA's applicability to its law enforcement commission, the court arrives at this conclusion:

There is no genuine dispute that the government has violated FACA’s transparency and public access requirements by holding closed hearings without timely notice in the Federal Register. And there is likewise no genuine dispute that the Commission has violated FACA’s oversight provisions by failing to file a charter for the Commission, 5 U.S.C. app. 2 § 9(c), and that Attorney General Barr has violated FACA by failing to assign a designated federal officer to the Commission to ensure compliance with FACA…

And the court says there's no dispute the composition of the Commission isn't "fairly balanced." This leads to the court's most damning assessment of the President's law enforcement committee.

The Commission’s function is to improve policing, including relations between law enforcement and the communities they protect. Yet the Commission does not include a single member who represents elements of those communities, rather than law enforcement. Thus, even employing a deferential review, the Court concludes that the Commission’s membership is not “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.

The court says nearly everything about the Commission must change. It must change its composition, supply sufficient advance notice for public comment, and otherwise comply with FACA. Until it can comply, it can't hold any more meetings. We'll see how serious the Administration is about improving the relationship between cops and communities. If the Commission decides to abide by the law and continue its work, maybe the Administration still cares about these issues. If it decides it would rather dump the Commission than comply with the law, we'll see how hollow its "rule of law" statements really are.

Filed Under: balance, commission on law enforcement, doj, executive order, faca, law and order, law enforcement, legal issues, rule of law, william barr