Unnamed law enforcement banned under the new NDAA

In the wake of the widespread protests over the summer, which were sparked by George Floyd’s death at the hands of police, anonymous federal officers were deployed across the country, including in Washington, D.C., to quash civil disturbances.  

Attorney General William Barr explained, “In the federal system, we don’t wear badges with our name — I mean the agents don’t wear badges and their names and stuff like that, which many civilian police … agencies do.” 

Yet on Friday, in a rare move of bipartisanship, the Senate voted 81-13 to override that policy along with President Trump’s veto of the National Defense Authorization Act (NDAA). In a nod to individual liberty, the act contains a new requirement that, when responding to a “civil disturbance,” federal officers “shall visibly display” their name and the name of the federal entity that employs them. The legislation includes an important exception for agents working undercover.

Amidst what seems like an incessant wave of assaults on the U.S. Constitution, this is very good news.

Some states already have laws requiring law enforcement to display identifying insignias when performing their duties (such as California and Massachusetts, for example). But when nameless, heavily armed officers roamed the streets among Americans exercising their First Amendment rights this summer, there was no federal law on the books mandating that they display their names or employing agencies. Normally, crowd control is managed by state local and police. But under Barr, employees from a variety of federal agencies — including guards employed by the U.S. Bureau of Prisons and border patrol agents of the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) — were deputized by the Department of Justice (DOJ) as U.S. Marshals for this purpose.

In June, House Speaker Nancy Pelosi (D-Calif.) penned a letter to Trump expressing concern that “here in our nation’s capital, the thousands who have turned out peacefully have been confronted with the deployment of various security officers from multiple jurisdictions, including unidentified federal law enforcement personnel,” some of which “refused to provide identification and have been deployed without identifying insignias, badges and name plates.” 

As for the reasons why this obfuscation is so problematic, Pelosi was blunt, “The practice of officers operating with full anonymity undermines accountability, ignites government distrust and suspicion, and is counter to the principle of procedural justice and legitimacy during this precarious moment in our nation’s history.”

Worse, in an environment of increasing civil unrest and violence, armed anonymous federal officers virtually invite vigilante copycats to take the law into their own hands with potential impunity. In July, Rep. Chrissy Houlahan (D-Penn.), a House member and Air Force veteran and member of the House Armed Services Committee, introduced legislation aimed at halting the practice, stating that she’d seen footage of civilians dressed in “ambiguous clothing” and suggesting that such vague affiliation with the military or police “put everyone at risk.” She credited Rep. Paul Mitchell (R-Mich.) for helping craft the provision that will stop federal law enforcement from operating like the so-called masked “little green men” employed by Russia during the Ukrainian crisis of 2014.

The measure’s timing is noteworthy, as the D.C. National Guard was activated yesterday at Washington, D.C., Mayor Murial Bowser’s request in response to anticipated protests over Congress’s scheduled certification of President-elect Joe Biden’s win on Wednesday. Leaders of the far right-wing group the Proud Boys have signaled they will attend rallies “incognito” in support of Trump. On Saturday, Trump tweeted a 30-second video encouraging supporters to attend. Strikingly, 10 former secretaries of defense felt called to issue a letter on Sunday stating that “[e]fforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory.”  

That the measure passed with bipartisan support in this era of toxic polarization is nothing short of a Christmas miracle. Rep. Mac Thornberry (R-Texas) warned against adding stray provisions to the defense bill, which bears his namesake, noting that “everyone wants to hitch their wagon to us.” 

But no objections were raised to the provision that now bans nameless federal cops. Said Houlahan shortly before the House voted, “To the degree that we can self-correct our democracy, it’s good, it’s very hopeful.”

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Joshua Gehret, a law student at University of Baltimore School of Law and he contributed to this column. Follow her on Twitter @kimwehle.