"Personal Liberty Laws" for the MAGA Era

Earlier today, in response to the violent detention of California Senator Alex Padilla for the sin of asking an intemperate question of DHS Secretary Kristi Noem, someone quipped that "We have entered the 'caning of Charles Sumner' stage of historical parallels."

I've been thinking of antebellum precedents myself recently, albeit in response to a different issue: the new propensity of ICE and other federal police agencies to refuse to clearly identify themselves before purporting to make immigration-related arrests, and the corresponding rise in "ICE impersonator" events where criminals and scammers impersonate the agency to victimize vulnerable communities. What we are seeing, again and again, are police actions that to an immediate observer look indistinguishable from a kidnapping, abduction, or carjacking. On the one hand, this indistinguishability heightens Americans' vulnerability to violent crime; on the other hand, the adoption of these thuggish tactics by the police is itself rightly seen as an attempt to leverage terror against the population. Responsible states and cities should not cooperate in this project, and indeed they should take whatever steps they can to resist it.

In the antebellum era, many northern states passed "Personal Liberty Laws" to blunt the effect of a different exercise of state-sponsored abductions: the Fugitive Slave Act. My proposal is for a new "Personal Liberty Law", that takes the form of directing how state and local police should respond* if they witness what appears to be a kidnapping, abduction, or the like. In essence, the policy should be as follows: 

• Where the police witness what appears to be an abduction, they should assume it is an unlawful abduction and respond accordingly (including with use of appropriate force) unless they have actual knowledge that the detention is occurring under lawful authority (i.e., is an actual police operation).
• "Actual knowledge" can include advance knowledge (in cases of coordination), or conspicuous display of law enforcement identification (such as a badge, or the use of marked police vehicles).
• "Actual knowledge" does not include mere verbal or written declarations (including clothing labels) that the putative kidnapper is a member of any particular police agency, as such declarations are too easily fabricated.

Absent such "actual knowledge", the police should act as they would if someone conducted a street abduction before their eyes, up until the point they are satisfactorily given "actual knowledge" (which again, requires more than simply the raw assertion "we're with ICE"). If that means physically interceding to protect the individual at risk of abduction, so be it.

Now, I can already hear the MAGA howls: "this would put ICE agents at risk!" Whether or not that complaint moves you or not, I would humbly submit in reply that what's actually putting ICE agents at risk is that their behavior is indistinguishable from that of violent criminals, and that the proper remedy to ameliorate that risk is for ICE to avail itself of the many unique police resources -- such as badges, marked vehicles, and warrants -- that would serve to separate themselves from violent criminals. If they insist on forgoing such resources, then they take on the risk that other law enforcement officers will assume they are exactly who they appear to be. Responsible states and cities are under no obligation to leave their residents vulnerable to being targeted for kidnappings and abductions simply because Stephen Miller wants to impersonate his favorite street gangs.

* I'm bracketing the important, if not potentially fatal, issue of whether state and local police would ever follow this guidance even if it were issued. To be honest, I don't know how practically effective the original "Personal Liberty Laws" were when enacted, but the symbolism was important.

Back in the USA

If you're wondering why I've been silent around these parts over the past week, it's for a generally happy reason: I was in England, attending a conference at Oxford on "Religion, Speech, and Vulnerability." The whole family attended -- me, Jill, and Nathaniel, and my parents met us as well -- and so we stretched the trip into a family vacation spending time in both London and Oxford.

The trip was amazing -- first and foremost because Nathaniel was an absolute rockstar who had no trouble with the nine-hour flight and is apparently immune to jet lag (unlike his parents). Highlights of the trip include going to Tate Modern, doing a gallery walk in Mayfair, and seeing Operation Mincemeat in the West End. It really is the sort of trip that will be a lifelong memory.

But now that I'm back, I do want to temper that happiness with a bit of a dark cloud.

Before I left, I found myself thinking -- seriously -- about information security. Do I bring my normal cellphone? Do I bring my laptop? If so, do I delete any sensitive files, or refrain from posting controversial content while I'm away?

These thoughts, of course, were triggered by the high-profile stories of the USCBP's new MAGA marching orders, which have captured U.S. citizens in their draconian talons. Even among citizens, I certainly knew I wasn't the most likely target, but there were certainly elements of my profile (anti-Trump, academic, Jewish but averse to Trump's putative anti-antisemitism initiatives) that at least mildly elevated my risk factors.

Ultimately, I didn't do much differently -- packed my laptop in my checked bags, turned off my phone on arrival, and mostly refrained from social media posting while I was gone. And, unsurprisingly, my reentry into the U.S. was entirely unremarkable and smooth aside from an annoying long line -- no odd questions (to say nothing of detention).

But even still, I think I can fairly say that it is a bad thing I'm even thinking along those lines -- that my own government might snatch me away for no other reason than my political opinions and drop me off to fester in a lawless pit. And I can honestly say that this is a thought I've never had before in any prior administration, including Trump I (to say nothing of Biden, Obama, or Bush). Of course, there are those who have had these worries with far more grounded basis for far longer than I have; I'm not trying to minimize that. My point is only that we should identify the spread of these sentiments as a klaxon warning sign that the democratic freedoms we take for granted are fading. And even if you don't think of yourself as among the "usual" targets, your mundanity will not save you.

Even in fascist states, for the most part most people aren't being snatched off the street most of the time. When typifies the oppressive regime is not the experience of being snatched, but the constant ambient worry that it's a possibility. That worry is not one I have experienced until now -- indeed, not experiencing it is something I had taken for granted until now -- and it's not a good or healthy sign of the vitality of our democracy that I'm feeling it now.