Under the guise of protecting federal property, U.S. Customs and Border Protection and Immigration and Customs Enforcement were among the federal agencies deployed in Operation Diligent Valor in Portland until the end of the month, per President Donald Trump’s executive order to secure a federal courthouse that had been vandalized by graffiti and otherwise damaged by protesters.
The use of ICE and CBP, of which the Border Patrol is a part, to guard federal buildings and conduct crowd control is a clear misuse of their authorities and outside their mission to secure the border. Yet, even though the federal government should never have deployed these agents in this way, there are reports that the Trump administration might be gearing up to (mis)use them again in other American cities, apparently having learned nothing from what happened in Portland.
The use of CBP, ICE and Border Patrol agents for domestic policing is particularly dangerous because of the ways immigration and customs officers can skirt the Constitution.
I was once a Border Patrol agent myself, and I urge my former colleagues to refuse to comply with these problematic orders rather than be complicit in the threat to the rule of law that they pose. We took an oath to do a different job entirely, and if the president can’t be counted on to use these agencies appropriately, agents themselves must do it for him.
Several types of federal law enforcement were dispatched to Portland, but the use of CBP, ICE and Border Patrol agents for domestic policing is particularly dangerous because of the ways immigration and customs officers can skirt the Constitution.
CBP, ICE and Border Patrol bring a unique type of enforcement that is more militarized and less observant of constitutional rights because they have extraordinary powers, distinct from other federal law enforcement agencies, since their duties center around people crossing our borders.
These powers are limited to use within 100 miles of any land or water border, which doesn’t seem too bad until you consider that two-thirds of Americans live within this zone. Portland, Chicago, San Francisco, Detroit and New York City all fall within this area.
Essentially, the law gives CBP, ICE and Border Patrol the authority to stop and question anyone so long as they have a “reasonable suspicion” for doing so. They interrogate and spend hours running record checks on people without needing a warrant. Unlike the police, they can also enter private property within 25 miles of the border without a warrant (except for homes), and at interior checkpoints can stop you in your vehicle with no suspicion in search of undocumented people, narcotics and goods that may have crossed the border without inspection.
As an agent, I routinely stopped people walking on the streets or driving their cars to ask what their immigration status was and interrogated them with only reasonable suspicion because my station had a checkpoint that was within 100 miles of the border. Unlike the suspects the police go after, these individuals’ Fourth Amendment rights protecting against unreasonable searches and seizures were severely limited.
These conventions don't position CBP and ICE agents to be respectful of peoples’ rights when detailed to urban assignments. While CBP Acting Commissioner Mark Morgan claimed that all the CBP agents sent to Portland had riot control training, other Department of Homeland Security employees stated that they did not. And however they were prepared, it clearly wasn’t adequate. Night after night, federal agents left the courthouse, the property they were ostensibly there to protect, and went out into the streets to beat and tear gas protesters.
In unmarked vehicles, agents also allegedly rolled up on people walking home whom they suspected of engaging in this vandalism, put them in their vehicles and drove away. Once in custody, they reportedly refused to say what crimes they were charging detainees with, even as they searched through their personal belongings. All of this was apparently done without warrants or probable cause. (CPB later put out a statement offering few details but denying that agents were snatching up protesters without providing identification.).
These agents take an oath to protect and defend the Constitution, and they are systematically breaking that oath every single day they spend in Portland or other American cities not performing their immigration and border enforcement duties. The Border Patrol and CBP’s Fourth Amendment loophole must be rescinded by Congress, and agents must no longer be allowed to enforce laws for which they have no training or legal authority. If called on in the future to engage in these actions, they must refuse.
Nothing trumps the Constitution — not Border Patrol, CBP or even President Donald J. Trump himself.