Welcome to the Era of "Kavanaugh Raids"

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Welcome to the era of what history will remember someday as the Kavanaugh Raids. Earlier this week, DHS surrounded and raided an entire apartment building in Chicago and then posted a Gotham-like sizzle reel of the highlights of that raid — armed masked stormtroopers, heavy weapons, helicopters, and search lights, all set to a Hans Zimmer-like soundtrack. Local media had a different take on it: “Armed federal agents in military fatigues busted down their doors overnight, pulling men, women and children from their apartments, some of them naked, residents and witnesses said. Agents approached or entered nearly every apartment in the five-story building, and U.S. citizens were among those detained for hours.”

It was a dark and almost certainly illegal escalation of the out-of-control agency’s war on the American people, a portrait of an authoritarian secret police that seems set to model itself on history’s worst fascist enforcers.

But let’s actually begin a hundred years ago — back when the right-wing stirred up a moral panic about subversive, criminal immigrants that led to large-scale raids by an attorney general abusing civil rights and civil liberties. (Sound familiar?)

Today, the one thing we remember about Woodrow Wilson’s attorney general A. Mitchell Palmer is that he was on the wrong side of history. Palmer oversaw a series of sweeping raids against suspected Communists during the country’s first Red Scare (there are two and they’re worth distinguishing between!) that ultimately led to the arrests and detention of perhaps as many as 10,000 people across nearly 40 US cities. The raids were led by a rising bureaucratic star named J. Edgar Hoover. Many arrests and seizures happened absent any warrants; many “radicals” were detained for simply being members of entirely legal organizations.

In his incredible history of that era, American Midnight, Adam Hoschchild writes, “Never was this raw underside of our nation’s life more revealingly on display than from 1917 to 1921… Major candidates for both the Republican and Democratic Party presidential nominations in 1920 campaigned on promises of mass deportations. And some people, including the vice president of the United States, suggested going further: Why limit deportation merely to immigrants? Why not permanently expel troublemakers of every sort? Also during this period, army machine-gun nests appeared in downtown Omaha and tanks on the streets of Cleveland, and armed troops patrolled many other American cities, from Butte, Montana, to Gary, Indiana. The military crafted a secret 57-page contingency plan to put the entire country under martial law. During those four years more than 450 people were imprisoned for a year or more by the federal government, and an estimated greater number by state governments, merely for what they wrote or said…. Presumably excluding slavery, the historian Alan Brinkley calls the Palmer Raids ‘arguably the greatest single violation civil liberties in American history.’”

Reading about the Palmer Raids today seems shocking — they surely were some of the darkest hours of American history — and yet today, ICE seems to be speed-running the years-long run-up to the Palmer Raids in just a matter of weeks and months. And, it appears, that the 2020s version of those same, indiscriminate, Constitution-violating raids will be known henceforth as Kavanaugh Raids, after the Supreme Court justice who helped make them possible.

Chicago media this week has been ablaze with horrifying stories from Monday’s ICE raid on a South Shore apartment building; DHS has bragged that the raid ended with 37 arrests, but the on-the-scene witness reporting describes a level of scale and brutality we’ve never seen in ICE’s raids so far. ICE blew in doors, handcuffed American citizens, rousted people from their beds in the middle of the night, and zip-tied children as they waited to figure out who was undocumented and who was a US citizen. Some US citizens evidently were handcuffed and detained for between three and five hours.

“They was terrified. The kids was crying. People was screaming. They looked very distraught. I was out there crying when I seen the little girl come around the corner, because they was bringing the kids down, too, had them zip tied to each other,” one resident recalled to local media. “That’s all I kept asking. What is the morality? Where’s the human? One of them literally laughed. He was standing right here. He said, ‘fuck them kids.’” Some residents of the building have reported their apartments were gratuitously trashed and property is missing.

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There are specific moments — and right now, to be honest they’re coming too frequently — where America crosses a once unthinkable bright line, moments that are worth noticing and calling out. This week’s Chicago raid was surely one of those.

There is no warrant any judge could give — or at least, in theory, that any reasonable judge would ever sign! — that gives federal authorities the right to break down the doors of every apartment in a building in search of undocumented immigrants. That is almost exactly the definition of the so-called “general warrants” or “writs of assistance” that the British used against US colonists that helped spur the Revolution — warrants then very specifically outlawed by the Fourth Amendment to the Constitution.

It's no surprise that ICE has been evasive about the legal basis for its Monday raid thus far: They surely don’t have one — and the fact that they feel this unhinged and can act so aggressively without possible consequence is astounding.

In part, though, the behavior by ICE is the natural and entirely foreseeable consequence of the crazy legal precedents set up by John Roberts and the Supreme Court earlier this fall in the case Noem v. Vasquez Perdomo, which explicitly allowed ICE to racially profile brown people on the streets of America.

That Supreme Court decision laid bare the growing divide on the court and the Republican majority that seems set on enabling an authoritarian and inhumane regime.

Justice Sonia Sotomayor laid out the stakes and the very obvious downstream impact of a ruling that explicitly allowed racial profiling by immigration authorities: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work in a low wage job,” she wrote. “The Constitution does not permit the creation of such a second-class citizenship status.” And yet in its ruling, John Roberts’ Court did just that — switching the national presumption of innocence such that any non-white person on America’s streets now is, in the eyes of the Supreme Court and federal officers, presumed guilty of being an illegal immigrant unless and until he or she can prove to the officers’ satisfaction otherwise. (It matters, too, by the way that from what we’ve seen so far, there’s no agreed-upon way to prove your citizenship to those federal officers: We’ve even seen ICE reject the so-called gold standard “Real IDs” as sufficient for proving citizenship, after a years-long campaign by the government to force states to upgrade to Real IDs precisely in order to prove citizenship.)

Brett Kavanaugh, though, beclowned himself with a concurring opinion that laid out how he imagined friendly consensual encounters with immigration officers went on America’s streets:

Kavanaugh’s writing was laughed at as soon as it came out — with good reason. There was plenty of evidence even by then that this type of stop didn’t reflect reality — that ICE officers and federal immigrant raids were brutally rounding up brown people and holding them, sometimes for days or weeks, before figuring out they were US citizens. Plenty of bystander videos showed that ICE was attacking first and asking questions later — maybe much later.

Court observer Jay Willis over at Balls and Strikes called Kavanaugh’s invented picture of policing “some of the stupidest shit I have ever encountered in the U.S.” (It’s particularly striking that Kavanaugh wrote it as a concurring opinion — that means he didn’t necessarily need to write it and instead went out of his way to write it down. Kavanaugh felt these were words particularly important to get down on paper.)

Since then, plenty more evidence has surfaced of how immigration officers are abusing the constitutional rights, civil rights, and civil liberties of US citizens who happen to not look like Brett Kavanaugh or walk around in places other than his fancy wealthy DC neighborhood. The New York Times this week cited this week at least 15 documented cases of US citizens being detained by ICE or immigration authorities. (If we know of 15 — how many more don’t we know about?) In one case, a Florida state trooper tried to tase a US citizen in a vehicle stop as the citizen shouted, “I’m from here!”

“You’ve got no rights here. You’re illegal, brother,” a trooper is heard saying on video, a phrase that is simultaneously factually incorrect and deeply chilling. 

The most dramatic case, though, came out in a lawsuit in recent days: A 79-year-old US citizen filed a lawsuit last week against DHS, alleging ICE officers broke his ribs — knocking him to the ground at least twice on camera — and detained him for more than 12 hours before releasing him. “This is the way ICE is operating in our community,” the man’s lawyer said. “They use physical force, they don’t speak to the people in order to ascertain who is there legally in order to do their job. Instead, they immediately resort to force.”

That rapid escalation to force in ICE enforcement actions is so common that military veterans are speaking out about how dangerous they think ICE is. “these are not trained professionals. As a military member, I can tell you the way they are handling weapons is reckless and dangerous,” on 14-year veteran said. “I’ve seen ICE agents with fingers on their trigger, using real M16s and M9s, pointing them at people. They’re just trigger happy, and there is no trigger discipline.” It does not seem an exaggeration to imagine that we are not that far on any given day away from a Kent State.

Online, people have taken to call ICE’s racial profiling by the historical name it rightly deserves: “Kavanaugh Stops.” Now, just weeks after getting permission from the Supreme Court to racially profile people on the streets and create exactly the type of “second-class citizens” that Justice Sotomayor warned about, ICE has escalated into what we should be calling “Kavanaugh raids.” (I, for one, am eager to see the first time “Kavanaugh stops” or “Kavanaugh raids” are cited in actual legal motions, opinions, and rulings because that is surely coming in the weeks and months ahead.)

Brett Kavanaugh and the ICE leadership would surely do well to read up on how the Palmer Raids are now viewed by history.

Today’s Kavanaugh Raids will surely be remembered just as infamously — and Kavanaugh’s name will be forever associated with this very dark chapter of history.

GMG

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