It’s no secret that President Donald Trump has decided to muster the full power of the federal government to threaten and persecute his perceived political enemies. Many of America’s crown jewel cities – like Chicago, Los Angeles, Portland, and Washington, D.C. – have been threatened with or endured the unjustifiable deployment of National Guard troops and federal agents, including masked Immigration and Customs Enforcement (ICE) officers. Current and former law enforcement officials who dared to cross the president, like former FBI Director James Comey and current New York State Attorney General Letitia James, are now being indicted based on trumped up charges that career federal prosecutors previously rejected as meritless. And the number of groups and communities -- such as immigrants, transgender persons, journalists, and human rights protestors --Trump has targeted because he either deems them insufficiently subservient to his administration or believes such attacks will further whip up his MAGA base seems to grow daily.
As an ACLU senior policy counsel whose work focuses on government surveillance, I have developed a great familiarity with how authoritarian-leaning governments use oppressive tools and tactics to persecute their opposition and instill fear amongst their populations. Accordingly, I was deeply troubled but not the least surprised when, on September 25, President Trump launched the latest salvo in the federal government’s efforts to target Trump’s political opponents, which came in the form of National Security Presidential Memorandum/NSPM-7. Under the guise of “countering domestic terrorism and organized political violence,” NSPM-7 directs the United States attorney general and the secretaries of state, the treasury, and homeland security to “request operational assistance from and coordinate with law enforcement partners,” to identify, target and investigate “institutional and individual funders, and officers and employees of organizations” who engage in vaguely defined and potentially First Amendment-protected speech and activity the Trump administration views unfavorably.
Make no mistake – when NSPM-7 orders federal law enforcement to “coordinate and supervise a comprehensive national strategy to investigate, prosecute, and disrupt entities and individuals” President Trump views as political opponents, he is focusing his sights on two groups in particular: non-profits and charitable foundations.
In response to this threat, more than 3,700 politically diverse non-profits and charities condemned the issuance of NSPM-7, correctly stating that “No president–Democrat or Republican–should have the power to punish nonprofit organizations simply because he disagrees with them. That is not about protecting Americans or defending the public interest. It is about using unchecked power to silence opposition and voices [Trump] disagrees with.”
The widespread condemnation of NSPM-7 is a good start, but an effective response requires more. Fortunately, Trump’s NSPM-7 strategy includes an Achilles’ heel that the ACLU has long noted exists in many of his efforts to target his opponents and vulnerable populations. Namely, to most effectively engage in these attacks, his administration needs the assistance of state and local governments. That weakness presents our nation’s governors and mayors with a critical opportunity to hinder the president's NSPM-7 efforts.
This needed cooperation goes well beyond receiving on-the-ground assistance from state and local personnel. From state and local law enforcement agencies, to departments of taxation and finance, to public school systems, to motor vehicle and other licensing agencies -- states and localities possess troves of highly-sensitive data that can be used to identify, target, and persecute non-profits, charities, those who work for and with these organizations, and those who benefit from their efforts.
As someone who used to work for a large municipal agency, I know full well that voluntary information sharing between agencies at all levels of government is commonplace and encouraged. This is the case for two reasons: First, when another government agency requests data from your agency, there is a sense your relationship will be impacted. If you voluntarily provide the information, your relationship gets stronger, but if you deny the request, it might suffer. Second, there is a mutual back-scratching element at play: if your agency provides the requested data now, when it asks for data later, it is more likely to have its prior cooperation reciprocated. In both cases, there is a strong institutional incentive to voluntarily provide the requested information.
In the current political climate, this common practice has become dangerous and, at least as it applies to cooperating with NSPM-7's federally-directed efforts to target nonprofits, charitable foundations, and their supporters and beneficiaries, needs to stop.
And our governors and mayors have the power to make that happen.
The ACLU has drafted model gubernatorial and mayoral executive orders that prohibit voluntary cooperation with efforts to effectuate NSPM-7's attacks on non-profits and charities, including the voluntary provision of data and other information. Under the model orders, even where a government employee is unsure of a request’s motive but reasonably suspects it might be in support of the Trump administration’s targeting of non-profits, charities, and their leaders and employees, the executive orders mandate that states and localities err on the side of caution and refuse to provide the data.
There is an exception to this rule, based on the independence and political neutrality of America’s courts: if and only if the federal agency obtains a valid judicial warrant or other court order will the requested information be turned over. The challenge for the federal agencies tasked with effectuating NSPM-7's mandate is that, to get a warrant or court order, they (or any other law enforcement agency acting on their behalf) must demonstrate to a judge that their request is based on probable cause and individualized suspicion or other more neutral standards, which politically-motivated fishing expeditions will struggle to meet.
Fighting against Trump’s authoritarian impulses is hard work, but undermining his effort to target the non-profit organizations and charitable foundations that deeply benefit our country and society is comparatively easy. All our nation’s governors and mayors need to do to address this urgent threat is to summon the courage to wield the greatest weapon in the arsenal of democracy: their pens.
Please call on your state’s governor and your local mayor to immediately issue an executive order protecting non-profits and charitable foundations from politically-motivated targeting by the federal government. The model executive orders are ready and awaiting their signatures.
Comments
Post a Comment