Russian Occupation of Crimea March 2014

“Armed men of uncertain allegiance,” the New York Times called them in a dispatch from Simferopol, on Feb. 28: “Their military uniforms bore no insignia and it was not clear who they were or who was commanding them.”

Screen Shot 2020-06-04 at 7.23.12 AMBut journalists on the scene didn’t take long to identify them as Russian soldiers. After all, elsewhere in Crimea armored personnel carriers with Russian insignia, as well as men wearing the uniform of the Russian Black Sea Fleet, had appeared. The Ukrainian air force base at Belbek had been surrounded by Russian soldiers.

Whatever one’s position on Russian president Vladimir Putin’s gambit in Crimea, one thing is clear: Using unmarked troops to conduct military operations is not, per se, illegal.

“Article 4 of the Third Geneva Convention says you have to wear symbols recognizable at a distance, but they do not need to indicate national origin,” Gary D. Solis, a law professor at Georgetown University who specializes in the laws of war, explained.

The point of the Geneva Conventions in this case is to enforce the principle of distinction between civilians and military combatants, so that civilians are not targeted. Article 48 of the Additional Protocol I to the Conventions states that “in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

In other words, if someone is obviously an armed soldier in a conflict, international law treats him or her as such. “There is not an obligation in international humanitarian law to wear” uniforms, wrote Toni Pfanner, editor in chief of the International Review of the Red Cross, in a 2004 paper entitled Military Uniforms and the Law of War. The troops in Simferopol may not have been obviously identifiable as Russian, but they were clearly armed personnel in military garb, and as such, they were not violating the obligation that they should not be confused with civilians.

[F]ormer U.S. national security adviser Zbigniew Brzezinski, wrote in the Washington Post that “Putin went in masked like a Mafia gangster.” The reason was that “in the event of serious Ukrainian resistance, he could disown the initiative and pull back,” wrote Brzezinski.

Donald Trump and William Barr occupy Washington, D.C. June 2020

The Week briefly summarizes, Federal police with no badges or name plates are patrolling Washington, D.C. Some are prison riot guards:

A veritable alphabet soup of federal law enforcement has been deployed in Washington, D.C., amid large peaceful protests against racial injustice and police brutality and adjacent acts of vandalism — FBI, DEA, DHS, ICE, CBP, TSA, plus the Secret Service, U.S. Marshals, U.S. Park Police, National Guard, Military Police, and active-duty troops. But “Washington residents have also been confronted with a number of other heavily armed law enforcement officers who share an unexpected characteristic: Neither their affiliation nor their personal identities are discernible,” The Washington Post reports.

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The Federal Bureau of Prisons confirmed to NBC on Wednesday evening that it has sent prison riot police to Washington at Attorney General William Barr’s request, and “they do not carry badges and are not wearing BOP-specific clothing as they are serving a broader mission.” Law enforcement veterans are leery.

“The idea that the federal government is putting law enforcement personnel on the line without appropriate designation of agency, name, etc. — that’s a direct contradiction of the oversight that they’ve been providing for many years to local police and demanding in all of their various monitorships and accreditation,” former New York City Police Commissioner William Bratton told the Post. “If those officers engage in any type of misbehavior during the time that they are there representing the federal government, how are you to identify them?”

Along with accountability concerns, not having identifiable uniforms might prompt dangerous confrontations between different branches of federal police or with protesters. “You can have this weird thing where you have these militia group guys just dressed up in their gear, which they like to do anyway, show up and just start pushing protesters around,” explained former FBI agent Clint Watts. “And if you’re a protester, you don’t know if you have to respond to this person.”

Philip Bump at the Washington Post adds today, A dangerous new factor in an uneasy moment: Unidentified law enforcement officers:

The Associated Press reported that active-duty members of the military who were moved into Washington to help keep order would be moved back out, [but] that decision was later reversed.

But it wasn’t only components of the Defense Department that had been brought to the nation’s capital to help with the “domination” that President Trump sought to display in the wake of the turmoil. Washington residents have also been confronted with a number of other heavily armed law enforcement officers who share an unexpected characteristic: Neither their affiliation nor their personal identities are discernible.

On Tuesday, Mother Jones reporter Dan Friedman encountered these individuals, who gave no more specific identification than that they were associated with the Justice Department.

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The New Republic’s Matt Ford had a similar encounter. When he asked the armed men if they were associated with the Bureau of Prisons based on an acronym on their uniforms, Ford was simply told, “Maybe.”

As it turns out, each of these encounters was apparently with elements of the Bureau of Prisons, called to the region by Attorney General William P. Barr this week. Friedman confirmed with BOP that the men he encountered were with the agency; Haake’s Twitter followers picked out BOP insignia on their clothing.

“The idea that the federal government is putting law enforcement personnel on the line without appropriate designation of agency, name, etc. — that’s a direct contradiction of the oversight that they’ve been providing for many years to local police and demanding in all of their various monitorships and accreditation,” former New York City police commissioner William Bratton said in a phone interview with The Washington Post on Wednesday.

The prospect of government agencies involved in policing the city seeking to obscure their identities, Bratton said, was “very concerning.”

The vagueness of their identity and their disinterest in identifying themselves introduce specific challenges and risks, as former Army officer and FBI special agent Clint Watts explained in a phone interview with The Post.

For one thing, Watts pointed out, a civilian might refuse to respond to an order from a law enforcement official who doesn’t identify themselves in that way.

“If I go out and I pull out a gun and I say, ‘Freeze,’ and they say why, I would have to say, ‘I’m an FBI agent’ or law enforcement officer or whatever,” he said, “because otherwise they would be totally in the right to defend themselves potentially.”

He imagined his own reaction if he was on the street in New York or Washington and an unidentified officer pushed him with a shield: His instinct would be to fight back.

The added danger, particularly given the influx of officials in the area, is that law enforcement officers wouldn’t recognize one another. Bratton noted that one reason for identifiers is that officers would be able to recognize one another. Riot helmets often have identifying numbers on their backs in part for that purpose.

Watts described an incident shortly after he began at the FBI when an undercover agent who’d drawn his weapon was killed by another bureau employee who confused him with the perpetrator. Introduce scores of officers without identification into a volatile scenario and it’s easy to see similar (if less deadly) mistakes being common.

Particularly given another component of the moment. It’s not uncommon for civilians to dress in paramilitary gear and show up at the protests, often doing so as self-appointed assistants to police and other law enforcement officials.

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“You can have this weird thing where you have these militia group guys just dressed up in their gear, which they like to do anyway, show up and just start pushing protesters around,” Watts said. “And if you’re a protester, you don’t know if you have to respond to this person.”

Granting unidentifiable law enforcement officials the ability to engage with and confront protesters functionally allows any unidentifiable individual to more easily pretend to be law enforcement. It introduces an opportunity for those looking to take advantage of the situation to target protesters or to cause disruptions.

[T]here’s an overarching question here: Why? Why are these officers unwilling to identify themselves or their organization? There’s clearly some power dynamic at play, as demonstrated in the snide “maybe” Ford was offered. But it also inhibits accountability.

“If those officers engage in any type of misbehavior during the time that they are there representing the federal government, how are you to identify them?” Bratton said. “What is the need for anonymity in controlling crowd demonstrations?”

Such anonymity echoes the way in which enforcers in autocratic regimes have worked to avoid accountability. If you believe that you were unlawfully detained or assaulted by a law enforcement official, you can try to hold them to account. (Of course, the extent to which you’ll be able to do so is another question, one at the heart of the current protests.) But how do you hold someone accountable when you don’t know who they are or even who they work for?

Ruth Ben-Ghiat, a professor of history at New York University and an expert on authoritarianism, noted the lack of accountability introduced by the government of Chilean dictator Augusto Pinochet for the actions of loyalist forces.

“The government passed laws that allowed the service records of military men and police who had been involved in torture and abuses to be destroyed so that their records were swept clean,” she said. “Many authoritarian leaders issue amnesty that free service people, clean up their records so that their abuses are never known.”

The point isn’t necessarily that the lack of identification offered by the men in Washington is intended to facilitate abuse. It’s that it hampers accountability, intentionally or not, which itself makes abuse more likely to go unchecked. Officers of the law are accountable to the public, something that’s harder to achieve if you don’t know who they are.

What the current situation demands is clarity. Given the tension between law enforcement and the protesters and given the existence of those looking to amplify that tension either as cover for illegal looting or to commit vandalism against the state, it seems more important now than it normally is that the enforcement arm of the government be identified by agency and individually.

“The idea of having no identification whatsoever as to the agency that you belong to,” Bratton said, “is highly unusual and, from my perspective, not professional at all.”

Haake updated his assessment of the scene at the White House on Wednesday afternoon, reporting that the unidentified officers had been replaced by members of the National Guard, in uniforms including the D.C. flag.

But that didn’t last long.

The Huffington Post adds, William Barr’s Vast, Nameless Army Is Being Brought To Bear On D.C. Protesters (excerpt):

[T]he police line just north of the White House on Wednesday afternoon featured a patchwork of colors and agents wearing generic outfits ― sometimes what appeared to be just T-shirts under their protective gear that gave no indication of even their department or military branch.

Attorney General William Barr is leading this aggressive response that has brought in an alphabet soup of law enforcement agencies to guard federal property and suppress unrest: FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug Enforcement Administration (DEA); the U.S. Marshals; and the federal Bureau of Prisons. Those Department of Justice forces join Homeland Security officers, the D.C. Metropolitan Police Department, the Capitol Police, the Federal Protective Service, the Secret Service and the District of Columbia National Guard.

Bringing in so many law enforcement agencies has the potential to create problems ― each has its own culture, practices and command structures. Allowing federal law enforcement to operate with anonymity all but eliminates accountability when force is inevitably used against demonstrators. Critics say it also breeds government distrust and is reminiscent of authoritarian regimes.

At least some of the officers on the police line by the White House appeared to be with the Bureau of Prisons, which dispatched Special Operations Response Teams that the BOP told HuffPost are “highly trained tactical units capable of responding to prison disturbances” and “specialize in crowd control scenarios” behind bars.

A senior Justice Department official credited Barr with the idea of bringing in federal prison corrections officers, calling it an example of Barr’s “outside the box” thinking. “He brought those people in,” the official said, because dealing with riots is “exactly what they do best.”

The senior Justice Department official confirmed that the prison bureau officers were stationed near the White House, though the BOP declined to verify whether the armed men photographed facing off with peaceful demonstrators Wednesday did, in fact, work for BOP.

“We cannot verify the individuals in the photos you referenced,” the Bureau of Prisons told HuffPost. “For safety and security reasons, we are not providing more specific information about law enforcement operations.”

A Huge Problem For Oversight

Michael Bromwich, the former inspector general of the Justice Department who oversaw internal investigations — and who has called for the impeachment of William Barr — said that allowing federal law enforcement officers to operate anonymously “creates a huge problem” for oversight.

“It completely undermines the ability to hold law enforcement personnel who engage in misconduct accountable,” said Bromwich.” You’ve got to know who they are, and certainly which agency they represent.”

Many of these Justice Department components, especially the BOP, have opaque internal affairs systems that don’t hold federal law enforcement officers accountable even in normal circumstances. But Bromwich said he has never seen a situation in which large numbers of law enforcement personnel haven’t been identifiable by name or even by agency. “I don’t know if there’s any historical precedent for that.”

* * *

Bromwich said it was “very problematic” to send components of the Justice Department with very specific responsibilities into an environment divorced from their typical duties. Members of the FBI hostage team, who have also been spotted on the streets of D.C., are “not used to dealing with mass protests,” Bromwich said.

“They’ve probably never had even an hour training about that,” Bromwich said. “It’s unfair to them and unfair to protesters to have them deployed to do this.”

Congress Doesn’t Know Either

House Democrats, led by Judiciary Committee Chairman Jerry Nadler (D-N.Y.), have formally requested information on the various agencies policing protesters in D.C. In a letter delivered Wednesday to Barr, Defense Secretary Mark Esper, Interior Secretary David Bernhardt and Acting Secretary of Homeland Security Chad Wolf, Nadler and other Democratic leaders asked which authority the administration used to establish this interagency force, and when.

Democratic leaders were not informed of the agencies deputized to patrol the protests. A House Democratic aide familiar with the committee’s work said it is in the process of figuring out what each agency has been deployed to do as the scene unfolds around them.

Members of Congress also asked for specifics on which agencies had officers on the ground Monday, when federal law enforcement advanced on peaceful protesters with pepper spray, smoke canisters and nonlethal projectiles as they cleared the way for President Donald Trump to hold a photo-op outside of St. John’s Church.

Sen. Elizabeth Warren (D-Mass.) also formally requested that the DOJ inspector general investigate Barr’s role in the Monday evening incident.

Rep. Don Beyer (D-Va.) and Del. Eleanor Holmes Norton (D-D.C.) are working on writing a bill to require federal law enforcement officers in uniform to clearly show their names and agencies when patrolling First Amendment protests. The law wouldn’t apply to undercover law enforcement officers or to military units like the National Guard, which has also been deployed to protests. Beyer said military personnel are typically easily identifiable because of their recognizable fatigues. Beyer and Holmes Norton proposed legislation requiring body cameras on federal law enforcement in 2019; last November, the DOJ started a pilot program allowing federally deputized officers to wear body cameras for the first time. The law enforcement officers at the protests were not seen wearing body cameras.

“When you can’t tell who people are, then there is no accountability at all,” Beyer said. “You can go out and bust any heads you want to because who is going to hold you accountable if you are anonymous — especially with the big face masks.”

Beyer, who has been watching videos of protests, said he could not distinguish federal personnel but that local law enforcement officers were also covering their badge numbers with black tape, a practice that was initially done to honor colleagues who died of the coronavirus. Police in D.C. are required in police guidelines to identify themselves when asked and keep their badge numbers present while on the job.

“You don’t know who they are, who they represent,” Beyer said. “Are they even allowed to carry weapons in Washington, D.C.?”

Beyer hopes they can bring the bill up for a vote in the next two months.

Sen. Chris Murphy (D-Conn.) also [said] Wednesday night that he planned to introduce legislation “to require uniformed federal officers performing any domestic security duties to clearly identify what military branch or agency they represent.”

“We cannot tolerate an American secret police,” the senator wrote.

Bromwich, the former Justice Department watchdog, said that the rhetoric from Trump and Barr could give federal law enforcement officials cover to use excessive force on demonstrators.

“The risk of using excessive force is that you’ll be accused of it and that it will be sustained and it will be punished,” he said. “That risk seems to have been removed.”

Attorney General William Barr must be impeached and removed from office.