[EL] "critical Infrastructure" and national police

[Kirsten Nussbaumer]

Dear colleagues:

Some of the news and commentary on the DHS forces in Portland (Federal Protective Services, CBP, federal marshals, or who knows) has been indirectly linking the action to the November election (e.g.. speculating that this is part of the President's electoral strategy).  But I have not come across anything about whether there might be any prospect of a more direct connection to the election and election administration.  

Here, I am not immediately fearing the most dystopian scenarios for November.  (Perhaps, the reaction of courts, national security elites or the public to the policing in Portland is going to discourage more innovations in national policing.)  For now, I am more interested in whether the *legal* authority presently claimed by the DHS for Portland might be loose enough to cover direct national policing of elections as easily as it does the current rationale of protection of monuments, federal properties, etc.

Of course, DHS personnel acting have been taking election protection as a core mission  in good faith since President Obama and DHS Secretary Jeh Johnson designated elections as "critical infrastructure".  (For present purposes, I set aside constitutional and other legal objections to the designation.)  There's no doubt many DHS folks have been doing vital election-security work, and that national elite acceptance of “ elections-as-critical-infrastructure” now straddles two administrations (of different parties).

However, a DHS-led national police force on an election-protection mission in the election-administration field (e.g., a polling place, vote-counting site, post office) at the discretion of only executive officials (at the present, perhaps ones who are only in "acting capacity", not Senate-confirmed) would surely be a wild escalation of national executive power in elections, no?  I hope someone (on or off list) can tell me what I am missingion to even consider this quest.  I will be happy to have egg on my face with this one!

If elections as "critical infrastructure" and the current DHS's legal authority claims might be taken as warrant for intervention in elections as easily as what is happening in Portland, then what would be the self-limiting principles?  Could DHS run with the asserted legal authority of its latest memo* and treat any claim of election fraud or a pandemic emergency as a factual predicate for a policing intervention?  Would DHS (as in Portland) feel entitled to act regardless of state or local permissions?  (Or what if a state government official of one party disagreed with the relevant state or local government officials of the other party on whether to grant permission or declare an election attack in need of a DHS remedy?)  If DHS policing of the election were to be premised only on decisions of DHS or the president, what would they consider a valid factual predicate?  Could it be the always ongoing cyberattacks (not easily verified by the public)?  The currently ongoing pandemic?   

Under the "critical infrastructure” statutory language, would DHS feel entitled to keep its plans and reasoning a secret in advance or even classify it for the long-run?

Again, I am not in late July willing to imagine that this will be a realistic factual scenario for November.  (I don’t perceive the Portland action as popular or electorally helpful.)  But it seems important to me to understand the legal parameters regardless of the factual odds because legal authorities that are *claimed*  (even if not acted upon) might matter some elections down the road, if not this round.

If there is a discussion on these things that I have missed, please forgive me (and ideally direct me to them).  It is hard to keep up with the information overload!

merci,
Kirsten

*Speaking of the DHS memo, I am benefiting from and riffing off Steve Vladeck and Benjamin Wittes at Lawfare [writing on non-election matters]:

  "The new memo, which is undated, is styled as specific implementation guidance with respect to the protests for more general rules <https://www.dhs.gov/sites/default/files/publications/office-of-intelligence-and-analysis-intelligence-oversight-program-and-guidelines.pdf> regarding DHS intelligence activity. These rules authorize I&A intelligence activities on what are termed “departmental missions” where they assist in combatting domestic terrorism threats; threats to critical infrastructure and key resources; significant threats to the economic security, public health or public safety; major disasters and other catastrophic acts; or “any other threat of such severity and magnitude that effective response would be beyond the capabilities of any affected State and local governments, such that Federal assistance would be necessary.”
 The rules also contain this catch-all sentence: “In addition, the intelligence activities of I&A personnel further a departmental mission where they support the Secretary, the Deputy Secretary, the DHS Chief of Staff, or their respective staff, Component Heads, or any other departmental officials, offices, or elements in the execution of their lawful missions.” In other words, if the president directs DHS and the rest of the government to protect monuments, then intelligence activity in support of monument protection is arguably furthering the departmental mission"
[emphasis added]







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