Imagine men with weapons, in strange and intimidating costumes, with faces fully masked (in bizarre masks no less) so as to make further identification impossible, riding the highways, using violence and otherwise threatening law-abiding citizens in the service of a pro-white racialized political agenda. Sound familiar? But I am not talking about federal law enforcement in Portland, Oregon, but instead describing the Ku Klux Klan and other pro-White violent organizations after the Civil War.
Some context is in order.
In 1869, as part of Reconstruction, the Fifteenth Amendment was ratified to provide voting rights to the freed slaves. In response, the Ku Klux Klan, in alliance with the Democrats (yes, sorry about that), terrorized the Black populations of communities in the South, to drive down Black voting, to advance a base political agenda: the destruction of the Republican Reconstruction governments that had recognized Black rights, the disenfranchisement of Blacks, and reimposition of White power.
And, in response to the Klan, in 1870, Congress passed the first of the “Enforcement Acts,” sometimes called the “Ku Klux Klan Acts,” to enforce (primarily) the Fifteenth Amendment. This Act took direct aim at the Ku Klux Klan making it a crime to conspire to violate civil rights. The pertinent provision provides: “If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured— They shall be fined under this title or imprisoned not more than ten years, or both; and … if such acts include kidnapping or an attempt to kidnap, … they shall be fined under this title or imprisoned [up to life imprisonment] or may be sentenced to death.” This criminal conspiracy statute is still on the books (and still enforced).
There are three points here. First, not only is the historical comparison disturbing, but what we see in Portland is in some respects far more frightening than the Klan terror of the 1860s; for it has long been understood that the role of the Federal Government is to protect the citizens from armed and faceless costumed marauders, not perpetrate this sort of domestic terror. And the political (racial) parallels are nearly too numerous to mention — the intimidating and violent acts are in service of the racist policies and political goals of maintaining and/or restoring White power, perceived to be under attack by rising Black political power. And of course, the purported justification — that these disguised troops are actually “protecting” public order — is the same sort of propagandistic nonsense espoused a century ago. (This is the way the Klan was portrayed in Birth of a Nation.) To be sure this conduct is as repulsive now as it was 150 years ago, and the current Administration knows exactly what it is doing.
Second, nothing in the statute provides legal authority (or legal immunity) for Attorney General Bill Barr, or Acting DHS Administrator Chad Wolf, or DHS Official Ken Cucinelli, or any DHS or DOJ Official, to agree among themselves to concoct a plan (that is, a conspiracy) to dispatch DHS Agents to “go in disguise” to cities in this country to “prevent or hinder free exercise of Constitutional Rights.” They should face a day of reckoning for this lawless conduct. The Administrations in this country have a historical reluctance to prosecute the officials of prior Administrations. (Whether this is generally good or bad is debatable — we are uncomfortable with Trump trying to “lock Hillary up,” for example. And, for better or worse, the Obama Administration did not prosecute Bush Administration officials for torture committed in the War on Terror.) However, the sort of Government-sanctioned violence is different: it is directed against United States citizens, and it is precisely the sort of oppressive violence, with all the badges and characteristics, that we have long recognized as particularly dangerous to the functioning of our democracy and thus made criminal, going back 150 years.
The third simply has to do with the relatively muted level of outrage, as this atrocity fights for attention among all the other chaotic, corrupt, and incompetent acts of this Administration. Though there are occasional loud voices condemning this conduct, the discussions in the media have frequently turned on technical legal discussions as to the legal right of the DHS to enter cities without being asked, or the scope of their authority, and so forth. These are the issues that were debated in Federal Court in Oregon. Framing the issue this way misses the point. It did not seem it could get worse than this Federal Government, under the leadership of President Trump and his henchmen, defending Confederate monuments and the Confederate flag, and suppressing Black votes. But it has. History is turned upside down when this Government has become the Ku Klux Klan.