While issues of press freedom are widely debated in abstract terms, the Department of Homeland Security (DHS) recently instructed employees on how to arrest journalists and expose them to crowd suppressants like tear gas without being legally liable, according to a copy of the instructions provided to The Nation by a DHS source. It also delineates which legal protections are not extended to “normal protestors.”
The document, marked attorney-client work product law enforcement sensitive, instructs DHS officials on how to interpret a temporary restraining order issued last week by US District Judge Michael Simon in response to a lawsuit filed by the ACLU alleging that DHS officers had been attacking journalists in Portland. The same district court denied a separate lawsuit from the Oregon attorney general for a broader restraining order, which would have blocked federal agents from detaining any individual without a warrant or probable cause.
While the existing restraining order does mandate several restrictions, there were qualifications—which the DHS’s legal guidance appears keen to stress. For example, while the court order forbids the DHS from using crowd control devices like tear gas against journalists and legal observers—like members of the National Lawyers Guild or ACLU present to act as independent monitors—it provides an exemption for “incidental exposure.”
“If a journalist or legal observer is incidentally exposed to crowd-control devices after remaining in the area, you will not [be] held liable,” the DHS document states [emphasis in original]. “Incidentally means that the journalists or legal observers, while not the target of the crowd-control devices, still end up being exposed to the crowd-control devices because of where they are located.”
Federal forces’ use of crowd control munitions in Portland has stirred controversy, particularly after police shot a 26-year-old protester in the head with a “less-lethal” munition, fracturing his skull and seriously injuring him. A Federal Aviation Administration official told The Nation use of tear gas was so pervasive that clouds of it were getting picked up on their radar. Even Portland Mayor Ted Wheeler was gassed after talking to protesters.
Videos surfaced on Twitter appearing to show federal law enforcement picking up and removing less-lethal shell casings. This may have been to conceal the originating agency, according to one former senior DHS intelligence official The Nation spoke to.
“I guess they don’t want any nosy folks trying to see the lot numbers and stuff of the ammo, because ammo buys are public info,” the former intelligence officer said. “Someone smart could look up what agency bought that ammo.”
Oregon Governor Kate Brown announced yesterday, following discussions with Vice President Pence, that Customs and Border Protection as well as ICE officers will leave downtown Portland, starting today. However, shortly after Brown’s statement, DHS Secretary Chad Wolf made clear that the withdrawal would be gradual and conditioned on the security of federal properties in the area.
“We will maintain our current, augmented federal law enforcement personnel in Portland until we are assured that the Hatfield Federal Courthouse and other federal properties will no longer be attacked and that the seat of justice in Portland will remain secure,” Wolf tweeted. “DHS will not back down from our legal duty to protect federal law enforcement officers and federal properties in the face of violent criminal behavior.”
A Customs and Border Protection (CBP) source told The Nation yesterday that additional CBP personnel, including BORTAC—elite tactical units that have played a significant role in the Portland deployment—were en route to Portland and had not been turned back.
The DHS document also distinguishes journalists and legal observers from “normal protestors.” While the former cannot be arrested for failure to disperse, they can still be arrested for probable cause in the case of other crimes. Their equipment can also be seized, so long as a list of items seized is provided to them. Journalists and legal observers are prohibited from access to federal properties like the Hatfield Courthouse. It also states that anyone can be treated as a “normal protestor” unless they are clearly marked as a journalist or legal observer. Ironically, the DHS came under heavy criticism for its use of unmarked cars and unclear uniform markings.
“Again, if the person does not have at least one indicator that they are a journalist or legal observer, then you may treat them as a normal protestor while dispersing the crowd,” the document states. The document leaves open the targeted use of tear gas and other crowd control devices, as well as arrest for failure to disperse, for anyone its agents have identified as a “normal protestor.”