DHS Is Engaging In Domestic Surveillance To Protect The Homeland Against Threats To Statues

from the i'm-sorry-i-don't-make-the-rules dept

The DHS doesn't mind engaging in domestic surveillance. After all, it's the Department of Homeland Security, so its purview is the homeland and everyone in it. The problem is the American public has rights and that is always something to consider, however briefly, when doing things like flying drones over American cities or, more questionably, placing people engaged in First Amendment expression under surveillance.

The DHS is now directly engaged in policing free speech. Demonstrations triggered by a Minnesota police officer's killing of an unarmed Black man are occurring on a daily basis. In some cities, the protests have never stopped. Federal agents -- including (inexplicably) a task force from the DEA -- have stepped in to investigate suspected federal crimes. However noble and correct the goal, the physical manifestation of this effort has been unidentified federal officers -- clad head-to-toe in war gear -- dragging people off the street and into unmarked vehicles.

Those who've experienced this say they were questioned aggressively by officers who refused to identify themselves and released with zero paperwork documenting their seemingly unconstitutional detainment or what criminal acts they were suspected of committing.

The DHS is prepared to take its Gestapo act nationwide with the blessing of the president. Any city with a crime problem, or a protest problem… or a "liberal" mayor can expect a swarm of DHS components to step in and start intimidating the protesting populace.

As is the case with any mission involving surveillance, you need to be prepared for the creep. No, this creep belongs to the mission supported by your average DHS foot soldier -- one dressed like he's in Fallujah and believes he has seen the enemy. And it is you. (By "you," I mean your average American standing within rental-car-driving distance of any federal property.)

The DHS is expanding its mission. This fortuitous move accompanies the extension of its leash by President Trump, who seems to feel people expressing their displeasure with law enforcement violence and racism should be intimidated into silence. Lawfare -- generally known as the home of pro-surveillance commentators -- has obtained a document showing the DHS is expanding its enforcement and surveillance efforts to cover other federal property: namely, the statues and monuments protesters have been vandalizing or destroying.

A document provided to Lawfare on July 19 from the Department of Homeland Security’s (DHS) Office of Intelligence & Analysis (I&A) describes personnel as “collecting and reporting on various activities in the context of elevated threats targeting monuments, memorials, and statues”—and it gives legal guidance concerning the “expanded intelligence activities necessary to mitigate the significant threat to homeland security” posed by such activities.

The document, titled “Job Aid: DHS Office of Intelligence & Analysis (I&A) Activities in Furtherance of Protecting American Monuments, Memorials, Statues, and Combatting Recent Criminal Violence,” is not classified. Its three pages each bear the heading “UNCLASSIFIED//FOR OFFICIAL USE ONLY.” But it clearly indicates that at least parts of the intelligence community are being tasked with monitoring and collecting information on some protest activities.

Try not to live or work too close to national monuments, Americans. You are the newest threat to the homeland's security. Participation trophies erected to victims of the War of Northern Aggression are sacrosanct if they're owned and operated by the US of A.

One DHS official says this is fine. (Likely more of them feel the same way, but this is the one Lawfare got on the record.) Ken Cuccinelli says statues and such are "federal facilities," and therefore as important to the nation's security as actual government buildings or government databases. And it's not just the federal stuff. The South may rise again yet.

It appears to also include planned vandalism of Confederate (and other historical) monuments and statues, whether federally owned or not.

Thank god this country is coming to the defense of long-dead white men. That's what's important in the wake of white officers killing unarmed Black men.

The memo leverages federal law as a truncheon against anyone who might harbor ill will against federal property which, it must be repeatedly noted, includes monuments erected to racists who engaged in treason. Say what you will about the current president, but at least he hasn't engaged in treason in an openly racist fashion. Yet.

So, in order to ensure the existence of certain people and their progeny, the DHS will be ramping up its domestic surveillance in hopes of catching those violently or non-violently opposed to icons representing America's racist history. Here's what the DHS is permitted to do in response to Trump's executive order demanding the protection of icons who presided over a secession that didn't even last as long as Heinz colored ketchup.

I&A personnel are required to use the least intrusive collection techniques feasible and sufficient when collecting [US person information] or when collecting intelligence or information within the United States. ... I&A personnel are permitted to engage in physical surveillance, the use of mail covers, and the use of monitoring devices only to the extent permitted by and consistent with [rules limiting their use to counterintelligence investigations]. I&A personnel are not permitted to engage in electronic surveillance or unconsented physical searches. Use of these techniques within the United States will be coordinated with the Federal Bureau of Investigation….

Oh, good. Whoever wrote this must be unfamiliar with most of the terms used in the memo they wrote. I'm not sure where they got their info, but it was likely surreptitious and removed from court oversight. You cannot combine "least intrusive method" and "coordinated with the FBI" and still expect "least intrusive" to remain "least intrusive." As for the mail cover part, does the DHS really feel the "liberal anarchists" routinely blamed by the administration are communicating via snail mail? "Hey, we're going to tear down a racist monument later this week. As soon as I can find what's left of my 'forever' stamps, I'll send you the details."

As for the ban on "unconsented physical searches," it would appear dragging people into unmarked vans for searches and questioning -- as observed in Portland, Oregon -- would violate the DHS's internal rules.

The DHS is supposed to focus on threats, according to this memo. But the threats include those against non-living sculptures and government buildings. Nothing forbids the DHS from going "open source" and surveilling even more protected speech: social media posts by American citizens. Whatever's published publicly can be observed without troubling any Constitutional amendments. But should the DHS do this, especially when the only thing "threatened" is some statues of questionable societal value?

The memo does at least tell DHS personnel they can't engage in surveillance of protected speech. But the rest of it gives them all the excuses they need to ignore this Constitutional guidance. Free speech apparently isn't free if it includes disparagement of national monuments that agents and officers can construe as potentially threatening.

While we may agree there is value in protecting certain federal property from attacks or vandalism, the inclusion of non-entities whose replacement value is up for discussion twists this into an easily-abusable avenue for increased domestic surveillance. As Lawfare points out, it's kind of absurd to extend efforts to prevent harm to government functions to include literally symbolic entities.

We will leave for another day the almost philosophical question of what level of damage might reasonably be said to impede the purpose or function of a statue. Suffice it to say that DHS analysts are now authorized to collect intelligence on threats to inflict such damage—though apparently not damage that falls short of impeding a statue’s “purpose or function,” whatever that may be.

The memo cautions against unjustified surveillance but surrounds it with vague directives like this one, where actions not overtly worshipful of a federally-erected monument could be perceived as an impediment to its "purpose or function." Most monuments are erected in hopes of respectful adoration. Standing in the way of intended adoration may be enough to welcome the unblinking gaze of the DHS's many eyes.

This isn't how America is supposed to work. Political speech deserves the utmost in First Amendment protections. There's a long list of federal crimes federal agencies could be concerning themselves with. But the DHS and the administration have decided idolatry is a proud tradition that must be upheld. The president loves his symbols. And the DHS's activities -- observed with horror by American citizens engaged in peaceful protests -- are Trump's jingoistic words made flesh.

Filed Under: 1st amendment, dhs, domestic surveillance, donald trump, executive order, statues, surveillance

Justices Finally Notice Naked Statues In The Supreme Court While Arguing Why Nudity Should Be Censored

from the oops dept

We've been covering the various court fights over the right of the FCC to fine TV networks over indecency -- including "fleeting" expletives and nudity. The Supreme Court heard the latest case last week (we got behind on coverage due to CES), and it certainly sounds like the Supreme Court Justices are perfectly happy with censoring the public airwaves. Reading the quotes from the transcript, it's really quite ridiculous. The Justices seem to spend a lot more time prudishly discussing what they think is appropriate, rather than the actual legal issues. Take, for example, Justice Antonin Scalia -- the supposed constructionalist who goes by the word of the Constitution:

"Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter...These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."

I'm curious where in the First Amendment it says that Congress shall make no law... except wherein it involves requiring a modicum of decency. But the best part of the hearing came when, after the Justices got worked up about the idea of nudity on TV, one of the lawyers, Seth Waxman wondered about all the nudity right in the Supreme Court itself:

He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.

"Right now, the commission has pending before it... complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks," he told the Supreme Court.

Waxman then pointed around the room. "There's a bare buttock there and there's a bare buttock here."

As the crowd snickered, Scalia admitted that he hadn't noticed it before now.

Elsewhere, Justices seemed to think that, without the threat of indecency fines, the networks would be full of swearing and nudity. Of course, that's ridiculous. The networks would respond to what people actually wanted, and plenty of cable networks (not subject to such FCC rules) do not have nudity and swearing, because they know it's not appropriate for their audience. We'll see how the court eventually rules, but the questioning certainly did not bode well.

Filed Under: fcc, fleeting expletives, fleeting nudity, free speech, indecency, statues, supreme court