Congress is now probing the use of contract security personnel in law enforcement operations led by DOJ and DHS

Bill Conroy

Aug 13, 2020·18 min read

A rolling deployment of federal law enforcement forces underway in this country since June has been making headlines nationwide because of the “shock and awe” show of force it has unleashed on this nation’s streets. The federal officers, many clad in camouflage, riot gear and trained in special operations tactics, have been sent into American cities under orders from President Trump.

They are being directed by Attorney General William Barr in coordination with Chad Wolf, the acting head of the Department of Homeland Security (DHS). These law enforcement chiefs claim the show of federal policing power that has been assembled in recent months in major urban areas like Washington, D.C.; Portland, Oregon; Kansas City, Missouri — and more recently Seattle, Albuquerque and Chicago — is part of a coordinated effort to stem a rising tide of street violence being perpetrated by common criminals and radical leftist protesters.

Trump asserts that the cities themselves have been unable or unwilling to address the unrest and criminal conduct. Future plans call for expanding the federal intervention to at least a half dozen or more U.S. cities in the months leading up to the presidential election on Nov. 3.

The cities facing the onslaught of Trump’s federal muscle argue that the show of force is unnecessary, unwelcomed and even threatens to accelerate civil unrest. Trump’s critics also are concerned that this federal intervention is little more than a “law and order” political stunt designed to generate negative media images in Democrat-led communities in order to aid the president’s re-election prospects.

Still others working behind the scenes in challenging the Trump administration’s voter-suppression tactics worry that the law enforcers now being dispatched to U.S. cities to supposedly quell protests — including deployments planned for St. Louis, Memphis, Milwaukee, Detroit, Cleveland and Philadelphia — are, in fact, being staged at federal buildings as part of a pending election-day surprise.

That “surprise” could potentially involve the occupation of federal post offices and/or distribution centers, maybe even select polling locations, all under the pretext of protecting the nation’s election system — with the actual goal being to suppress the vote in black communities and Democratic-leaning cities in key swing states. Trump’s recent false assertions that mail-in voting is racked with fraud have only served to fuel these concerns.

“Congress and the courts must step in. Otherwise, having found his army, Trump is sure to use it again in coming months,” attorney Elizabeth Goitein wrote in a recent column. “Bullying Democratic mayors and governors plays well with his base, whose support was beginning to waver due to Trump’s disastrous mishandling of Covid-19.

“More chilling, he could deploy his paramilitary forces in Democratic strongholds on Election Day as a means of suppressing voter turnout,” warns Goitein, who is codirector of the Brennan Center for Justice’s Liberty & National Security Program.

In a recent interview with CNN, House Majority Whip James Clyborn, D-South Carolina, said he doesn’t believe Trump plans to leave office, even if that’s what American voters want to happen. “He doesn’t plan to have fair and unfettered elections,” Clyborn said. “I believe that he plans to install himself in some kind of emergency way to continue to hold onto office. And that is why the American people had better wake up.”

If that’s the real purpose of sending federal troops to U.S. cities, then the Trump Administration’s plans may contain a fatal flaw related to the use of private contractors in that effort. Yes, there is evidence pointing to the use of private contractors in the recent federal deployments to cities like Portland and Seattle.

Barr isn’t helping to calm the waters on the conspiracy-worry front, either. He recently told Fox News that liberals, translated Democrats, are “tearing down the system.” He also referred to Black Lives Matters, a civil rights movement focused on ending police abuses in African American communities, as “a revolutionary group that is interested in some form of socialism, communism,” adding that they are “essentially Bolsheviks.”

The concern over the Trump administration’s methods and motives in cracking down on even peaceful protestors in U.S. cities has not been lost on Democrats in Congress, who have weighed in as well and also are now starting to ask questions about the use of private contractors in the federal response.

“As when they were deployed in Washington, D.C. last month [June], the federal officers in Portland are unidentifiable and therefore remain unaccountable for any violations of citizens’ constitutional rights,” states a July 22 letter signed by 100 House members and directed to Barr and Wolf. “Portland is apparently not the last place citizens and public officials will encounter such deployments as suggested in a recently leaked Customs and Border Patrol [CBP] memorandum dated July 1, 2020, which states that ‘resources [have been] deployed in several states.’ … This is not legitimate law enforcement under our Constitution but a shocking slide into authoritarianism and police-state tactics.”

The letter goes on to demand that Barr and Wolf answer a series of questions, including whether private contractors are involved in the DOJ or DHS federal law enforcement deployments.

“Identify the agencies, departments, and units under DOJ or DHS authority that have been deployed to conduct law enforcement activity in response to protests in Portland,” the letter states. “Please also identify any private contractors or entities that have been so deployed.”

Achilles’ heel

DHS officials, to date, have failed to confirm or deny the presence of private contractors in the Portland DHS deployment, or elsewhere. Shining some sunlight on that issue is of vital importance to determining whether the law enforcement operation Trump, Barr and Wolf are thrusting on U.S. cities is above-board, or if it has an Achilles’ heel that could lead to its unraveling.

Barr, now facing calls for his impeachment from some quarters because of his alleged constitutional overreaches, is overseeing the federal intervention in the targeted U.S cities via what the Department of Justice (DOJ) has dubbed Operation Legend. That DOJ effort also is being supported by Wolf and DHS — which calls its deployment of federal force in Portland: Operation Diligent Valor.

DHS’ federal-building occupation under Diligent Valor first surfaced publicly in Portland in early July, although it appears a similar operation also was underway quietly during protests in Washington, D.C., that swelled this past June. The DHS federal hammer includes a SWAT-like unit from Customs and Border Patrol [CBP] known as the Border Patrol Tactical Unit, or BORTAC, and other DHS-agent support — including law enforcers from DHS’ Federal Protective Service (FPS), which is leading the DHS operations in Portland.

Elected leaders in the targeted U.S. cities have not invited Trump’s riot-gear-clad federal law enforcers into their communities. And Trump, Barr and Wolf — the latter a key player in implementing Trump’s aggressive anti-immigrant agenda — don’t seem to care what the leaders of these cities think or want.

We also know that FPS, a previously obscure DHS agency that is serving as the lynchpin for launching Trump’s national policing force, is made up primarily of private security contractors — 15,000 contractors, according a recent statement from a spokesman for that agency. FPS’ jurisdiction includes some 9,000 federal properties and other infrastructure nationwide — a charge that Trump recently sought to expand via executive order by adding federal statues and monuments to the mix.

We also know that those private contractors are authorized to carry weapons, such as guns and batons; patrol federal grounds; and detain people as necessary. In addition, contracting companies like Triple Canopy, a corporate descendent of controversial mercenary company Blackwater, are recruiting security personnel for FPS via online job ads that indicate prospective hires must “be able to wear protective body armor as part of the duty uniform.”

We also know via contracting records available at USASpending.gov that as of Aug. 7 of this year, FPS had contracts in place with dozens of private security firms that had a total value of more than $976 million — and that Triple Canopy alone, for example, as of the same period had active FPS contracts valued at $210 million. In a typical year, FPS spends a $1 billion or more on private security pacts.

We also know that an FPS manual for its private security guards, further echoed in FPS contract language, includes an entire chapter on “crowd control” and measures that can be employed by contract guards to contain and disperse protestors.

Constellis recently responded to a query about its subsidiary Triple Canopy and how it is reacting to recent protests in cities nationwide. Specifically, the company was asked if it has invested in additional crowd-control training for contract security personnel stationed at federal buildings — beyond what’s already called for per contracts and the FPS Security Guard Information Manual. The company’s response, however, addresses a question not asked:

“Constellis does not have any security programs that have been modified or stood up in response to the protests and unrest. … We do not have personnel in these roles.”

It’s worth noting that FPS contract guards are already onsite at federal buildings nationwide providing security services. In fact, one FPS contract security guard was shot and killed and another wounded on May 29 outside a federal courthouse they were helping to secure in Oakland only a few blocks from protests. The suspects later apprehended, including an active-duty Air Force staff sergeant, are linked to a right-wing extremist group called the “Boogaloo Boys.”

FPS exists to protect federal infrastructure and buildings, says Noah Kroloff, who served as chief of staff at the Department of Homeland Security (DHS) during the Obama administration. Its workforce is more than 90% contractors, he adds, with the balance being federal employees — including some 1,000 sworn federal law-enforcement agents.

“I am 100 percent certain that there are contractors that are protecting the federal buildings in these cities and states [where Trump is deploying federal law enforcers],” says Kroloff, now a principal and the co-founder of Washington, D.C.-based security-consulting firm GSIS. “And I think it’s safe to assume that if they are deployed at federal buildings, then they are serving in some capacity in crowd control — at a minimum around the perimeter of the buildings. They do certainly have the authority when a federal building is threatened to respond.”

Kroloff adds, however, that if those FPS contractors are deployed for crowd control along with sworn FPS federal agents in blended operations, it “would be impossible to distinguish,” one from the other.

Another unknown factor is whether additional private contractors have been surged into cities like Portland, Seattle and Albuquerque to supplement the force of sworn federal agents deployed by Trump-loyal leadership at DOJ and DHS.

In Albuquerque, for example, Barr and DOJ recently deployed at least 35 federal agents under Operation Legend to allegedly help combat violent street crime in the city. Albuquerque NPR-affiliate radio station KUNM-FM recently reported that its sources indicate the federal-force deployment in that city also includes a ramping-up of FPS agents “to defend U.S. assets [buildings],” similar to the federal troops still deployed in Portland.

The NPR report also said a spokesperson for the U.S. Attorney’s Office in Albuquerque indicated that whatever is going on at federal buildings in the city with respect to FPS law enforcers “is not part of [DOJ’s] Operation Legend.” NPR added that the spokesperson said “he could not confirm whether those [FPS] agents are here [in Albuquerque] now,” though he did not deny that they were present.

Again, FPS and related law enforcers under DHS are supporting Operation Legend, according to Wolf. But that doesn’t preclude a separate build-up, or staging, of federal law enforcers under DHS’ own efforts — a deployment DHS leadership may want to keep under wraps as much as possible.

Tosh Plumlee, a former CIA contract pilot who lives in New Mexico, on Aug. 4 snapped photos of camouflage-clad security personnel getting into a private car that was stopped near a Black Hawk helicopter located on a public tarmac at Las Cruses International Airport — a small airport, despite its name, that is located about 223 miles south of Albuquerque. [See Plumlee’s photos below.]

Only days earlier, on July 31, Plumlee visited the airport as well (without a camera handy). That’s about the time Operation Legend first made its presence known in Albuquerque, according to news reports. Plumlee reported seeing five Black Hawk helicopters that day as well as a coach-type bus loaded with 20 to 30 civilians. “I don’t think they were vacationers on a tour during a pandemic,” he said at that time.

Plumlee concedes he has no way of knowing whether the individuals he photographed at the Las Cruces airport, or the Black Hawks, some sporting medical crosses, were part of a DHS deployment of law enforcers to Albuquerque. However, that can’t be discounted. Plumlee claims he could find no flight plans on file for the Black Hawks he spotted.

A Seattle newspaper, The Stranger, published similar photographs last month taken at Seattle’s Boeing Field as Trump’s federal police were ramping up operations in the Pacific Northwest city. In that case, the individuals photographed with their baggage were standing on an airport tarmac under a long-range CBP surveillance aircraft used in anti-narcotics missions. CBP also operates a fleet of Black Hawks —including some “Medevac” (medical) Black Hawks recently purchased from the military — that are used in similar anit-narcotics missions.

Opaque by design

There is a major problem with employing FPS’ contract guards — who are supposed to be limited to patrolling and securing federal facilities and grounds — in long-running “civil disturbances” like those unfolding now in Portland and elsewhere around the country. FPS has a long history of failing to properly vet and adequately monitor and ensure that its private guards have proper training and certifications, including proper firearms training and records clear of felony convictions.

That lack of vetting and proper training can pose a great risk to the safety of protesters and the law enforcers they work with alike should a situation become heated — and it could compromise the thin legal strings tethering such an operation to the Constitution. That appears to be part of the problem that prompted the initial escalation of federal forces in Portland, where daily protests near a federal courthouse there have been ongoing for months in reaction to the killing of George Floyd in Minneapolis on May 25 at the hands of city police — one of whom knelt on Floyd’s jugular for nearly 10 minutes, causing his death.

As evidence of the severity of the violence unleashed by federal troops in Portland, the American Civil Liberties Union (ACLU) Foundation of Oregon recently was successful in securing a temporary restraining order from a federal judge that blocks DHS law enforcers from attacking and arresting journalists and legal observers who are covering the civil rights protests in that city.

“This case seeks to stop the Portland police, the U.S. Department of Homeland Security (DHS), and the U.S. Marshals Service from assaulting news reporters, photographers, legal observers and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd,” the ACLU litigation states. “The police’s efforts to intimidate the press and suppress reporting on the police’s own misconduct offends fundamental constitutional protections and strikes at the core of our democracy.”

The lawsuit offers some evidence that FPS security personnel at the courthouse in Portland were not prepared to handle the civil rights protests, leading to an escalation of tensions between protesters and federal law enforcers. In its response to the ACLU complaint, DHS indicates that it “deployed federal officers to Portland for the purposes of protecting federal buildings and property.”

In a declaration filed with the court by Allen Scott Jones, FPS’ deputy director of operations, we learn, however, that the surge of DHS camo-clad federal troops into Portland that became public early last month was undertaken to “assist the FPS in performing its mission to protect federal facilities.”

“At that time, FPS law enforcement officers worked closely with state and local law enforcement to protect federal facilities and maintain order within the city,” Jones says in the legal pleadings.

Jones, however, makes no mention of the fact that FPS security guards are private contractors with a history of being poorly vetted by FPS. DHS confirms in its pleadings in the litigation that there “are currently 114 federal law enforcement officers … protecting federal facilities in downtown Portland.”

A deposition filed in the ACLU case by Gabriel Russell, an FPS regional director who is overseeing the federal deployment in Portland as commander of the DHS Rapid Deployment Force for Operation Diligent Valor in the city, describes the federal troops deployed there as follows: “In response to [the] increase in damage to federal property and assaults on federal law enforcement officers … DHS deployed more officers to Portland for the purposes of protecting federal buildings and property. There are multiple law enforcement officers from the FPS, ICE [Immigration and Customs Enforcement], CBP, and the U.S. Marshals Service protecting federal facilities in downtown Portland.”

The opaqueness of the FPS-led operation appears to be by design, if we are to believe pleadings filed in the ACLU case by David L. Olson, the assistant director of FPS’ “Rapid Protection Force.”

“Nothing could be more salient than FPS’s ability to conceal the size of its force from the crowd…,” Olson says in his declaration filed in federal court in Oregon. “The inability for the crowd to determine the exact size of the participating police force and/or tactical team gives the team(s) a significant physiological advantage…. The ability for the crowd to ascertain our true numbers will result in catastrophic consequences for the FPS workforce.”

Reckoning ahead

In late July, Trump threatened to send as many as 50,000 to 75,000 federal law enforcers into U.S. cities going forward as part of his campaign of law and order following the protests erupting nationwide after the public killing of George Floyd at the hands of police. The Bureau of Justice Statistics reports that as of October 2019, there were some “132,000 full-time federal law enforcement officers employed by 83 federal agencies,” such as those housed under DOJ and DHS.

Trump’s promised federal deployment numbers do not appear to add up, however, absent the inclusion of a force multiplier, such as private contractors. Without the use of contractors, Trump’s plan would require re-assigning more than half of all federal law enforcers to non-primary missions, such as crowd control and street policing — leaving the nation vulnerable to unaddressed national security and other serious criminal threats that were the focus of these agents’ primary missions prior to being re-assigned.

When asked about the role of private contractors in DHS’ Operation Diligent Valor in Portland, FPS spokesperson James Goodwin provided the following scripted response:

“The Federal Protective Service employs nearly 15,000 Protective Security Officers at more than 9,000 facilities nationwide. Those Protective Security Officers do not possess any law enforcement authority and provide physical security and screening services in and around federal facilities. … FPS does not contract for law enforcement services and, when those specific actions are required, they must request the services of FPS’s sworn federal law enforcement officers. Protective Security Officers are dressed in a uniform that does not resemble those worn by law enforcement.”

Former DHS Chief of Staff Kroloff has already made clear that, in his opinion, it’s not possible for the average person to distinguish an FPS sworn federal agent from an FPS contractor, so there’s disagreement between DHS spokesperson Goodwin and Kroloff on that point. It’s also clear that FPS contract security personnel do have what many people would consider law enforcement powers, despite Goodwin’s convoluted claim to the contrary.

“PSOs [private security officers] are delegated authority by FPS to protect federal property, identify and screen employees and visitors, detain visitors creating a disturbance, and carry firearms under the terms of the contract,” states a 2012 report from the Federal Election Commission (FEC) Office of Inspector General that is focused on the use of FPS contractors at FEC facilities. “While PSOs have contractual authority to detain visitors and employees for alleged violations of law and regulation, they do not have the authority to arrest. If a PSO [an FPS security guard] detains an individual, the PSO must contact FPS immediately, or as soon as practicable, so that FPS may dispatch a sworn federal law enforcement officer.”

Based on the available evidence, FPS contractors also have participated in crowd-control and protection operations in the past — similar to those underway with DHS’ Diligent Valor.

“FPS was the primary law enforcement agency safeguarding federal facilities and people participating in the trial and sentencing of Dzhokhar Tsarnaev, the surviving perpetrator of the 2013 Boston Marathon bombing,” FPS’ 2015 annual report states. “… In total, 174 FPS federal employees and nine contractors worked together as a solid team coordinating with state, local and federal agencies for the duration of the trial.”

So, it appears Goodwin’s definition of “law enforcement authority,” for the purposes of FPS, simply means FPS contractors can’t make official arrests after detaining someone. That doesn’t preclude those contractors from being used as part of Operation Diligent Valor or future DHS law enforcement operations that are being staged in U.S. cities from or near federal buildings or other assets defined as federal infrastructure. In fact, FPS contractors are already onsite at federal properties nationwide providing security services.

As evidence of that, FPS spokesperson Robert Sperling previously responded to questions about the role FPS contract guards were playing during protests in June in Washington, D.C., by saying: “The Federal Protective Service protective security officers are manning their posts and do not have authority or jurisdiction beyond federal property.”

But why all the mystery surrounding whether FPS contractors are now in the mix in Trump’s “law and order” response to protests in U.S. cities? Well, the weak link of such an operation may well be the nature and source of the law enforcement authority that FPS contractors operate under while engaging protestors or any citizens.

For one, they are not federalized agents. Rather, available evidence shows their authority stems from state law and could potentially be challenged in state courts. That could create issues for any plan by Trump, Barr and Wolf’s DHS to incorporate those contractors into future federal law enforcement surges should their use of contractors in those operations become public knowledge.

An article in the trade publication Federal News Network (FNN) explored the scenario in which a FPS contract security guard encounters an active shooter in a federal building. The publication reports that FPS “tells its contract guards that if they encounter an active shooter, they should engage him or her, with deadly force if necessary.”

“But the agency agreed there’s a lack of clarity about those contractors’ legal authority,” the FNN report states, adding that because contractors are not federal law enforcers, “their police powers generally are governed by the state and local laws at the location of a given federal facility, and … that means they have no more legal authority than an average citizen.”

In the same 2013 FNN story, L. Eric Patterson, director of FPS, is quoted saying, “We are working aggressively with the vendors, one, to look at what authorities the states entitle [FPS private security guards] to relative to engagement. We’re also looking within the department at what legal authorities we could render to these folks from the federal sector.”

The fact that FPS contract security personnel are not federalized, but rather derive authority from state and local laws, is key. Reciprocity rules and standards in licensing and required certifications for private security personnel differ among the states — in addition to any additional training and certifications required by FPS.

“Working in the private security industry, there is a good chance that you will be registered, certified, or licensed,” states the website of SecurityGuard-License.org, a platform created to assist those seeking information on becoming private security guards. “…Some states have an individual credentialing process for armed security guards and an individual credentialing process for unarmed security guards while other states credential both.”

“It is important to recognize that licensure is not the same as regulation. Some states set standards for security guards but expect the employer to be responsible for their hire to meet those state standards.”

Consequently, a government operation that surges in contractors from multiple locations — or utilizes an existing contractor crew that hasn’t been properly vetted or trained — might be legally problematic. The opaqueness of DHS’ Diligent Valor and DOJ’s Operation Legend to date, coupled with a paucity of media focus, works to the Trump administration’s advantage, then, in preventing public scrutiny of the nature of the federal deployments. And that ongoing secrecy also helps to sow distrust and fuel the speculation over the real purpose of Trump’s law-and-order presidential campaign strategy.

Former DHS Chief of Staff Kroloff says that even if we put aside the issue of FPS contractor involvement, just redeploying large numbers of sworn DHS or DOJ federal agents to U.S. cities for an extended period outside of their primary missions — for purposes like crowd control or street-crime investigations typically handled by local police — creates potentially grave dangers for the nation.

“So, if you’re an agent investigating cybercrimes, or transnational crimes, or the shipment and movement of illicit goods, like weapons of mass destruction or other contraband, and you are pulled away from your primary mission for crowd control, then it’s just a matter of fact that you are making the country less safe,” Kroloff says.

Any mass redeployment of federal agents like Trump, Barr and Wolf are pursuing always involves an inherent tradeoff, Kroloff says. “You either have to hire up contractors and deploy contractors,” he explains, “or you have to diminish your capacity for the other missions that you’re statutorily obligated to execute on.”