Exclusive: DHS secretary seeks military arrests in Los Angeles in leaked letter

San Francisco Chronicle​

20 hours ago

One day before the Trump administration deployed U.S. Marines to confront protesters in Los Angeles, U.S. Homeland Security Secretary Kristi Noem asked Defense Secretary Pete Hegseth to direct the military to detain or arrest 'lawbreakers,' a move one expert called 'a grave escalation.'
A letter sent Sunday from Noem to Hegseth, obtained by the Chronicle, requested that the Pentagon give 'Direction to DoD forces to either detain, just as they would at any federal facility guarded by military, lawbreakers under Title 18 until they can be arrested and processed by federal law enforcement, or arrest them.'
The military is generally barred under federal laws from taking part in domestic law enforcement. Noem's request may be a step toward the administration sidestepping those laws by invoking the Insurrection Act, two legal experts said in interviews.
Noem also asked Hegseth for 'drone surveillance support' as well as weapons and logistics assistance in Los Angeles. By Monday, the Defense Department had deployed 700 Marines to Los Angeles, where they were to join more than 2,000 federalized California National Guard troops in quelling raucous immigration protests.
The Pentagon and Homeland Security did not immediately return requests for comment Monday, as California sued over the deployment of troops to Los Angeles and as immigration protests spread to other cities including San Francisco.
In the letter, Noem referred to an 'emergent Request for Assistance (RFA) to aid in resolving the situation in Los Angeles,' and used strong language to describe what she said was the threat posed by people protesting a series of raids by U.S. Immigration and Customs Enforcement agents.
'We need … support to our law enforcement officers and agents across Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and Federal Protective Services (FPS),' Noem wrote, 'as they defend against invasive, violent, insurrectionist mobs that seek to protect invaders and military aged males belonging to identified foreign terrorist organizations, and who seek to prevent the deportation of criminal aliens.'
It's not clear what Noem meant by her reference to terrorist organizations. In the past, the Trump Administration has used the term terrorist organizations to refer to gangs.
'This is a grave escalation,' said William Banks, a Syracuse University law professor and leading expert on national security law and the domestic role of the military. 'It may presage the invocation of the Insurrection Act.'
Stephen Dycus, an expert in national security law and the Insurrection Act, called the requests in the memo extraordinary given that local authorities appeared to be in control of the protests. In the rare cases that such military force has been used in the past, the Vermont Law and Graduate School professor emeritus said, local law enforcement had either lost control or was refusing to act.
'Viewed all together, and more importantly in the current context, these requests can be seen as using the military, or at a minimum using that threat, to instill fear in the American people and discourage the kinds of protests that are going on in Los Angeles,' Dycus said. 'So this could be viewed as a preparation for invoking the Insurrection Act, or it could be viewed as part of a larger effort to frighten people who otherwise would exercise their first amendment guarantee of free speech and protest.'
The Insurrection Act of 1792 was last used during the 1992 riots following the Rodney King police beating and trial in Los Angeles, when California's then-governor, Pete Wilson, requested military aid from President George H.W. Bush.
Banks said the act should be used rarely and only in dire emergencies. 'Our society is founded on the idea that laws are enforced by civilians, first of all,' he said. 'And second, that problems going on in the states, other than the most grave situations, should be handled by the states.'
Kyndra Rotunda, professor of military and international law at Chapman University, said the military's role will ultimately be decided by more than just the executive branch.
'The Posse Comitatus Act prohibits the military from engaging in domestic law enforcement without authorization from Congress,' Rotunda said. 'In light of this provision, presumably Congress or the courts will eventually weigh in as this situation continues to develop.'
State Sen. Scott Wiener, D-San Francisco, called Noem's request an ominous step.
'This isn't what happens in a democracy, this is what happens in a dictatorship,' Wiener said. 'We have a time-honored tradition in the United States that the military does not enforce civilian law.'
Military use of drones for domestic purposes carries a number of restrictions, and is largely limited to training and disaster response. Under Defense Department policy, the military can use drones within its borders in support of a request from federal or state officials, but only with approval from the secretary. Federal agencies used military drones to monitor protests following George Floyd's murder and Black Lives Matter protests.
Noem asked Hegseth in her letter for 'logistical support and the transportation of munitions' from Fort Benning and Wyoming. The letter did not specify what weapons were needed nor why they were requested from those two locations.
State Sen. Tom Umberg, a retired Army colonel and Judge Advocate General officer, said he found the letter's requests alarming.
'It looks like a preparation for a military assault,' said Umberg, a Democrat from Santa Ana. 'This looks like a subterfuge to create some sort of rationale for some sort of invocation of the Insurrection Act.'
Umberg said he was also concerned that the letter did not explicitly say people should only be arrested or detained based on reasonable suspicion or probable cause. It would be false imprisonment to detain someone unless those conditions are met, which is a crime, he said.
'As a former federal prosecutor and former JAG officer, I find it to be outrageous that two cabinet secretaries are basically attempting to provoke a situation where both law enforcement as well as other individuals could be hurt,' Umberg said.
Noem also asked for graduates 'of an advanced intermediate level school, like the Marines' School of Advanced Warfighting, to aid in developing SOPs (standard operating procedures) and TTPs (tactics, techniques and procedures) going forward for when DHS and DoD have to setup a joint operation center and work in conjunction with each other in these situations.'
'At the President's direction,' Noem wrote, 'DHS is seeking to put an end to the migrant invasion and these lawless riots.'
Noem wrote that she would send a formal request 'in the coming days.'