Federal Policing Needs Reform Too

Deep ranks of enforcers with expansive powers and wide-ranging responsibilities will always pose a risk to the public, no matter which level of government employs them.

The killing by Minneapolis police officers of George Floyd, and rage over similar deaths elsewhere, is fueling protests against brutal police tactics and the disproportionate use of such tactics against racial minorities. But most of that anger is targeted at traditional cop shops, potentially letting other law-enforcement agencies escape overdue scrutiny. The ominous appearance this month of federal law enforcement agents at Washington, D.C. demonstrations was a timely reminder that governments in this country employ a lot of enforcers, and we should be concerned about all of them.

"Few sights from the nation's protests in recent days have seemed more dystopian than the appearance of rows of heavily-armed riot police around Washington in drab military-style uniforms with no insignia, identifying emblems or name badges," Politico noted on June 5. The federal cops were apparently drawn from multiple agencies including the Bureau of Prisons, but they all work in one capacity or another for the federal government as part of its growing army of enforcers.

"To put it another way," Politico added, "Every year since the 2001 terrorist attacks, the federal government has added to its policing ranks a force larger than the entire Bureau of Alcohol, Tobacco, Firearms and Explosives."

Those ranks are pretty deep. "As of the end of fiscal-year 2016, federal agencies in the United States and U.S. territories employed about 132,000 full-time law enforcement officers," according to a 2019 tally by the Office of Justice Programs. That number does not include any classified or military personnel, only officers openly employed by civilian agencies including the ATF, the Bureau of Prisons, Customs and Border Protection, the Drug Enforcement Administration, the National Park Service, and even the Smithsonian Institution.

Politico's description of the federal government hiring an ATF-worth of new enforcers every year isn't encouraging, given that the agency is a hot, steaming mess when it comes to abuses. Eight years ago, after the ATF was caught running guns to Mexican criminal gangs, the Justice Department's Office of the Inspector General concluded that "failures within ATF, which included a long term strategy in Operation Fast and Furious that was fully supported by the U.S. Attorney's Office, were systemic and not due to the acts of only a few individuals."

A year later, in 2013, the Milwaukee Journal-Sentinel reported on "a botched ATF sting in Milwaukee—that included agents hiring a brain-damaged man to promote an undercover storefront and then arresting him for his work." The newspaper added that "ATF agents befriended mentally disabled people to drum up business and later arrested them in at least four cities in addition to Milwaukee."

Reporters found examples of ATF agents damaging private property, commissioning gun thefts, luring teenagers into criminal activity, instructing people on how to modify firearms in ways that made them illegal and then arresting them for following the instructions, and more. The Journal-Sentinel ultimately produced an investigative series of articles on ATF fiascos.

Such fiascos led to calls for abolishing the ATF, or else combining it with another agency. "ATF, both its personnel and its mission responsibilities, should be merged into the FBI," concluded a 2015 report from the liberal Center for American Progress.

But the FBI has its own problems. This is, after all, the agency that taught its agents that "under certain circumstances, the FBI has the ability to bend or suspend the law and impinge on the freedoms of others." The memo containing that advice came to light in 2012. Five years later, nothing had changed when The Intercept published "a trove of long-sought confidential FBI documents" that "shines a bright light on the vast powers of this law enforcement agency, particularly when it comes to its ability to monitor dissent and carry out a domestic war on terror."

Of course, the FBI has a long history of domestic spying, going back long before the Senate's Church Committee complained in 1976 that the bureau "has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups."

Surveillance remains as big a concern as ever, with drones, facial recognition, spy planes, and low-tech tools used by law enforcement to monitor recent protests. But the "war on drugs" that encouraged up-armored and aggressive police departments also deserves attention—and at the heart of that prohibitionist effort is the Drug Enforcement Administration (DEA).

The DEA "has existed for more than 40 years, but little attention has been given to the role the agency has played in fueling mass incarceration, racial disparities and other drug war problems," the Drug Policy Alliance noted in 2015.

Those racial disparities exist not just in the agency's treatment of suspects—none of 179 defendants arrested in sketchy, reverse-sting, entrapment-style cases in the Southern District of New York were white, the The Washington Post reported last year—but also of its own personnel.  Dozens of retired DEA agents complained last week about the agency's discriminatory treatment of African-Americans.

To the litany of concerns about federal law enforcement, we could add details about Border Patrol, the Bureau of Prisons, Immigration and Customs Enforcement, and more. The feds employ a lot of enforcers, and those enforcers are trouble.

They're even more trouble when they shield cooperating local police from state and city efforts at reform. That's because "local cops assigned to joint task forces are not bound by department rules, such as wearing body cameras, which the feds have prohibited. The FBI and U.S. Marshals allow the use of deadly force if a person poses an 'imminent danger,' using a definition that is less strict than many police departments,'" according to The Marshall Project, which covers criminal justice issues.

To its credit, the Justice in Policing Act of 2020, pending in Congress now as a response to national concern regarding police abuses, seeks to rein-in the use of force by federal law enforcement officers as well as state and local police. It would limit justifications for deadly force and for "less lethal" force.

But many of the bill's provisions are open to interpretation by cops, prosecutors, and officials who are invested in law enforcement as it is. It also vastly expands federal involvement in policing, including a flood of funding that subsidizes the very system that protesters want to restrain. And the bill does nothing about the federal government's army of cops, or the well-documented dangers they pose.

Deep ranks of enforcers with expansive powers and wide-ranging responsibilities will always pose a risk to the public's safety and liberty, no matter which level of government employs them.