Masked law enforcement enters a danger zone beyond US democracy
Donald Trump is deploying armed and masked National Guard troops and U.S. Immigration and Customs Enforcement agents to the blue states of Oregon and Illinois on the premise that violence and chaos there pose a “danger of rebellion.”
The state’s governors, joined by the mayors of Portland and Chicago, have sued to enjoin the “invasion” and Trump has threatened to jail the governor of Illinois and the mayor of Chicago for their impudence. A Trump-appointed Oregon federal judge rejected his claims that he needed military support to protect federal property, making the trenchant statement that, “This is a nation of constitutional law, not martial law.”
The matter is on appeal, and at oral argument the appellate panel appeared to side with Trump. If allowed to proceed, ICE agents will continue to wear masks as they detain and contain crowds protesting their presence. The use of masked agents is extreme, to say the least. The New York City Bar Association recently condemned it as “an effort to evade accountability, and to decrease transparency in response to increasing allegations of government overreach.”
Masked agents are unprecedented in American law enforcement. The images of people snatched off the street by masked armed men in plain clothes smack of the repressive tactics of authoritarian banana republic regimes.
In Argentina in the 1970s under the rule of the military junta headed by the infamous Jorge Rafael Videla, masked agents sprang from unmarked cars and removed putative enemies of the state to places of torture and execution.
Videla justified his crimes with a chilling statement: “The repression is directed against a minority we do not consider Argentine,” he said. “A terrorist is not only someone who plants bombs, but a person whose ideas are contrary to our Western Christian civilization.” Eventually, Videla died in prison.
The history of masks dates to prehistoric times, where they served diverse cultural purposes. Masks were used in dramatic performance in ancient Greece, to protect against plague in the Middle Ages and for entertainment purposes throughout history. Fictional masked figures include such superheroes as Batman, Zorro or the Lone Ranger. Also, there are villains like Hannibal Lecter or Darth Vader who wore masks to create a scary presence.
Face it, masks are intended to be intimidating, even on Halloween. But the practice of mask wearing by federal agents making arrests or controlling crowds is a novelty, particularly when their actions are the subject of civil liberties court challenges.
Regulations governing the conduct of immigration officers require that, during arrests, they “identify himself or herself as an immigration officer who is authorized to make the arrest.”
With Trump proclaiming that the ICE raids are a “training ground” for military deployment to blue cities, the use of masked agents is especially chilling. “Who is that masked man?,” the iconic quote as the Lone Ranger left the scene after helping someone has no parallel in the anonymous raid of the ICE agent.
Who knows if they are really ICE agents? Without proper identification, they could be imposters or the QAnon or some of the Proud Boys among the 1,500 insurrectionists whom Trump pardoned over their participation in the Jan. 6, 2021 insurrection.
In addition, the orbit of the danger includes those lawfully protesting ICE actions. A masked ICE agent shockingly pepper-sprayed Pastor David Black of the First Presbyterian Church of Chicago during protests in Broadview, Illinois.
Trump’s actions have already resulted in the unlawful detention of visa holders, permanent residents and United States citizens. This includes defiance of court orders requiring their return from other countries, alongside the problematic practice of detaining individuals as a reprisal for the exercise of their First Amendment rights.
The federal government has failed to issue an official policy governing the use of masks by ICE agents or provide a clear justification for concealing officers’ identities. Protecting an officer’s identity may be warranted in some circumstances, and the government certainly has a responsibility to take officer safety into account when crafting policy.
Most of these masked officers, however, are not under serious threat. Instead, they are meeting arrest quotas with children in schools, workers at their posts, supplicants in churches or defendants in courthouses appearing for lawful immigration proceedings who present no reasonable threat to the ICE agents.
The right to challenge government overreach in its responsibility to enforce the law is basic to our system of government. Masking hinders courts’ evaluation of ICE’s nationwide detention campaign.
The public employs the masked ICE agents and empowers them. When they are in action, the public is entitled to know who they are.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.