Aug 4, 2020
Senate Hearing Transcript August 4: Protecting Free Speech Amid Protests
Lawmakers and civil rights experts testified about free speech and protesting before the Senate on August 4. Senator Ted Cruz said: “This shouldn’t be complicated. Peaceful protests must be protected, riots must be stopped”. Read the transcript of the hearing here.
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Senator Cruz: (00:00)
… rights, rights that protect the countless ways in which people can peaceably express their social and political views. Democracy wouldn’t work. The right of the people peaceably to assemble and to demand changes, to petition their government for grievances, is in the very best tradition of America. No history of the United States, no recounting of the unending struggle to live up to our founding promises would be complete without recognition of the peaceful movements that have pushed this nation forward. From the abolitionists to the suffragettes, to the countless brave heroic souls who marched in support of the civil rights movement, peaceable assemblies have moved mountains in this country and they still can.
Senator Cruz: (01:02)
When America saw the horrifying video of a police officer killing George Floyd, a brutal killing that evoked, for many, the nation’s long history of racial discrimination and injustice, Americans rightly and peaceably assembled to demand justice, justice for every American regardless of skin color. But what began as legitimate protests against a vile act of abuse, sadly were soon hijacked by opportunists and violent radicals. By early June, rioters had injured more than 700 law enforcement officers across the country and had murdered David Dorn, a retired officer who served St. Louis with honor for many years.
Senator Cruz: (02:06)
They also damaged or destroyed countless buildings and businesses. In Minneapolis alone, rioters burned affordable housing and damaged over 400 businesses, many of them owned by African Americans, at a cost of well over $500 million in damages. In Philadelphia, police cars were set ablaze. In Seattle, rioters who damaged hundreds of buildings were granted and allowed to set up a so-called autonomous zone by local officials, who all too predictably resulted in more crime, including four shootings that cost two young people their lives.
Senator Cruz: (02:57)
The fact is the people who took the streets because their hearts cried out for justice have become overshadowed by rioters and looters and those who cynically exploited the protest for their own evil ends. And those rioters aren’t concerned about racial justice. Indeed, they’re willing to make a mockery of the peaceful protest to advance their violent objectives. Their actions are profoundly racist, the rioters, as they destroy minority communities, minority businesses, and minority lives across this country.
Senator Cruz: (03:41)
This shouldn’t be complicated. Peaceful protests must be protected, riots must be stopped. No one has a right to assault another person, to firebomb a building, to throw a Molotov cocktail into a police car. That’s not exercising a constitutional right, that is terrorizing your fellow citizens. More and more, we’re seeing signs that a significant portion of this violence of this rioting is not random. It’s not spontaneous.
Senator Cruz: (04:15)
Rather, it is coordinated and inspired by leftists anarchist groups, groups like Antifa, that will, without shame, exploit a national tragedy to attack American buildings, American homes, and American lives. This is happening in my home state, in Austin and Dallas, and it’s happening across the country, whether in Minneapolis, Nevada City, Pittsburgh, or Toledo to name a few. Tragically, nowhere more so than in Portland, Oregon.
Senator Cruz: (04:51)
In Portland, Antifa and other radicals have thrown metal pipes at DHS officers and used commercial grade lasers to try to blind them, perhaps permanently. They launched mortar style attacks with commercial grade fireworks. They firebombed a federal courthouse. This is not peaceful protest. This violence speaks for itself.
Senator Cruz: (05:24)
But for good measure, in graffiti on the county courthouse, they wrote, “Until the police and ICE are abolished, we will burn this city down piece by piece.” They are telling us what their demands are to shut down and abolish the police. This violence should be universally condemned. All 100 senators opt to come together and say, “Don’t murder your fellow citizens. Don’t attack police officers. Protect each other’s rights.”
Senator Cruz: (06:14)
Instead of seeing leaders united, we’re seeing too many local officials, mayors, and governors, who’ve made a cynical decision that it’s in their partisan interest to turn a blind eye to this violence, to turn a blind eye to the law enforcement officers being attacked on a nightly basis. And even worse than that, to demonize the police officers, to throw out terms like stormtroopers and Gestapo, to describe federal law enforcement officers doing their jobs.
Senator Cruz: (06:59)
It’s for that reason that I’ve introduced legislation called the RECLAIM Act. The RECLAIM Act provides that if you, as an American, if you are injured, if your property is damaged, if your home is burned to the ground, if your business is looted and destroyed during a riot, as a result of a decision of political leaders to deny you police protection, that you have a federal cause of action to sue the municipality or the city that has denied you police protection and has willfully looked the other way while your life was endangered while your home or business was burned to the ground. Denying fair protection of law enforcement is a civil rights violation for any American who is denied.
Senator Cruz: (07:53)
Just days after George Floyd was killed, Representative John Lewis, who’s passing the nation just mourned, he said, “Rioting, looting, and burning is not the way. Organize, demonstrate. Sit in, stand up, vote.” Representative Lewis is exactly right. We all have a right to free speech and we should protect that right vigorously, but we should also be united in condemning political violence and condemning domestic terrorism. And to understand just what is happening on the ground, what the heroic men and women of law enforcement are facing right now, it’s helpful to see directly what’s occurring, and there’s a video that should display this now.
Senator Cruz: (08:56)
And please, show me where it says that protests are supposed to be polite and peaceful.
Martin Luther King, Jr.: (09:13)
With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood, to stand up for freedom together. So, let freedom ring.
Lester Holt: (09:32)
A passionate movement for justice is finding itself swept under the feet of rampaging and destructive mobs-
Nancy Pelosi: (09:39)
People will do what they do.
Jerrold Nadler: (09:46)
The myth that’s being spread only in Washington, DC-
Speaker 1: (09:50)
77 year old David Dorn was shot to death as a pawn shop he Was protecting was being looted.
Speaker 2: (09:56)
Federal Protective Service Officer Dave Underwood was killed. Authorities say it was a targeted attack on law enforcement.
Speaker 3: (10:03)
This is ridiculous. These people are tearing up my livelihood.
Senator Cruz: (10:26)
Senator Hirono: (10:30)
Thank you, Mr. Chairman. Nobody is condoning violence against anyone by anyone. This hearing is titled, “The right of the people peaceably to assemble, protecting speech by stopping anarchist violence.” But the hearing we should be having is one called the right of the people peaceably to assemble without being beaten up by unidentifiable federal agents. That would address an actual problem lawful protestors are facing and the rest of us are seeing in this country. The murder of George Floyd has led to protests across the country, and indeed, around the world. In response, the federal government has used violence and excessive force to break up these protests. We saw this in two well known examples, in Lafayette Square in DC and in Portland, Oregon.
Senator Hirono: (11:24)
On June 1st, people were peacefully protesting around Lafayette Square by the White House, calling for an end to racial injustice and police brutality. Suddenly, federal agents under the direction of Attorney General Barr used chemical gas, batons, rubber bullets, riot shields, and flash bang grenades to forcibly disperse the protesters and clear the area. Clearly, this was so President Trump could get a photo op in front of St. John’s Church. There was no anarchist violence in Lafayette Square. In fact, the only ones using force were federal law enforcement agents.
Senator Hirono: (12:07)
Portland is another clear example where a federal agents used excessive and indiscriminate force to break up people gathered to peacefully protest. On July 4th, unidentified federal agents arrived in Portland outfitted as if for war, wearing camouflage and heavy gear. And to justify this unnecessary deployment of federal officers, President Trump and his administration have repeatedly portrayed Portland protesters as violent anarchists and members of Antifa. But in the past four weeks, what we have actually seen are federal agents beating up on nonviolent protesters, tear gassing them and shooting them with rubber bullets and other so-called less lethal munitions.
Senator Hirono: (12:55)
We saw federal agents shoot a 26 year old nonviolent protester in the face with one of these less lethal munitions. And as you can see in the photo here, Donovan Labella suffered skull fractures. He was in ICU. He required surgery. We saw federal officers beat a 53 year old Navy veteran who approached them to ask why they were not honoring their oaths to the constitution. And when Christopher Davis refused to react, when federal agents beat him and broke his bones, they pepper sprayed him in the face. We saw federal officers, tear gas moms, dads, and veterans who stood as a wall to protect peaceful young protesters. We also saw unidentified federal forces grab peaceful protesters off the street and force them into unmarked vans. One protestor described having his hat pulled over his face so he could not see. I am not alone in my deep concern over the federal agents’ use of force and violence against protestors in Portland. The attorney general of Oregon has sued the federal government to stop federal agents from using the kind of, “secret police tactics,” where they take people off the street and force them into unmarked vans. State and local officials in Oregon have demanded that federal forces leave Portland because they have brought violence, not peace. And the inspectors general of the Department of Homeland Security and Department of Justice have decided that the federal officers’ use of force against protesters in Portland were concerning enough to open an investigation. The Justice department’s inspector general has also concluded that the federal officers’ use of force against peaceful protestors near Lafayette Square was concerning enough to include in this investigation. Despite these facts, we are having a hearing on protecting peaceful protesters from anarchist violence, but what we’ve seen in Portland are peaceful protesters in need of protection from federal officers. Let’s be clear once again, no one is condoning any violence by law enforcement or by the protestors. But by focusing only on anarchist violence, this subcommittee is furthering President Trump’s efforts to distract us from the underlying issues that millions, millions of protesters have been calling on us to address, the systemic racial injustice in our country.
Senator Hirono: (15:37)
President Trump is deliberately trying to undermine the massive protests for racial justice by dismissing them as anarchists and Antifa. To perpetuate this narrative, President Trump has ignored factual evidence showing that White supremacists have hijacked peaceful protests to incite violence and stoke racial conflict, such as in Minneapolis. He has ignored studies showing that White supremacists have killed at least 329 victims in the past 26 years while antifascists have killed no one in politically motivated attacks. And he has ignored what some have called the largest movement in American history, the millions of people who have marched peacefully in the streets following the murder of George Floyd, demanding change.
Senator Hirono: (16:28)
If this subcommittee wants to protect Americans’ right to peacefully assemble, we should be focused on preventing federal officers from beating up protesters, tear gassing them, and shooting them in the face. That’s the hearing we should be having today. Mr. Chairman, at this time, I would like to show a video that highlights the excessive use of force by federal agents in Portland. Thank you.
Speaker 4: (17:03)
Hundreds of videos reviewed by the Times show that, although protestors were antagonistic, officers often responded with disproportionate force.
Speaker 5: (17:14)
And this guy-
Speaker 4: (17:15)
They blanketed streets with tear gas …
Speaker 6: (17:16)
Speaker 4: (17:21)
They struck protesters with batons and use flashbangs, pepper balls, and other less lethal munitions to clear the streets. Their actions often appeared to escalate rather than deescalate matters, and in some instances they attacked when there was no apparent threat. On July 11th, protest or Jonathan Labella was at the federal courthouse when an officer appears to have fired at his head in retaliation for tossing a spent tear gas canister. Labella’s mother told local media he suffered skull fractures and needed surgery. Later that night, when field medics sought officer’s help for wounded protestor, they were aggressively cleared away.
Speaker 4: (18:19)
On July 18th, a Navy veteran was batoned and pepper sprayed in another unprovoked attack. His right hand was broken and he needs surgery. Sometimes members of the press were hit.
Speaker 7: (18:31)
He got shot in the back, obviously, and he’s wearing press.
Speaker 4: (18:36)
This photographer, Matthew Lewis Roland, told the Times that a volley of 10 projectiles were fired into his back. In the middle of all this, protestors were detained in ways that alarm civil rights advocates and former Homeland Security officials.
Speaker 8: (18:54)
Can your people identify themselves as law enforcement?
Speaker 4: (18:56)
On July 15th, several federal officers were filmed driving in unmarked vehicles in the blocks around the courthouse.
Speaker 8: (19:03)
How are we supposed to know who you are?. How we supposed to know you’re not kidnapping, as in you’re civilians kidnapping us?
Speaker 4: (19:11)
One protester was detained at this location nearby.
Speaker 8: (19:16)
What are you doing?
Speaker 4: (19:16)
Federal officers wouldn’t identify themselves-
Speaker 8: (19:18)
Use your words.
Speaker 4: (19:20)
… but patches on the right and left sides of their uniforms match those used by members of [FORTAC 00:00:19:25], the tactical unit from Customs and Border Protection. They drove the protestor away in an unmarked car. DHS says federal officers have made 43 arrests since July 4th.
Senator Cruz: (19:46)
Thank you, Senator Hirono. I will note at the end of that video that is narrated, it says, “Describes law enforcement officers as unidentified,” while the video shows them with the words police in bright yellow, all caps across their chest, so that is a curious way to describe a law enforcement officer as unidentified.
Senator Cruz: (20:08)
I would also note that the ranking member said nobody is condoning the violence and rioting, and yet nowhere in the opening remarks was even one word condemning it, condemning the assaults, condemning the 277 injuries that federal law enforcement officers have suffered at the hands of those rioters. Not a word. Not a word was said about the murder of federal law enforcement officer Patrick Underwood. Not a word was said about the murder of retired St. Louis police officer, David Dorn, both of whom are African American and both of whom were murdered. And we’re told we don’t condone this, we simply won’t say a negative word about this terrorism. The senators from Oregon have both asked to come before this committee, and given what’s transpiring in Portland, that seems appropriate courtesy to extend them, so we will now recognize both senators from Oregon, Senator Wyden and Senator Merkley, both of whom have asked to address the subcommittee.
Senator Wyden: (21:23)
Thank you, Mr. Chairman. Can you hear me, Mr. Chairman?
Senator Cruz: (21:27)
Yes. Yes we can.
Senator Wyden: (21:29)
Mr. Chairman time is short, so I will get right to the question of protecting free speech. First, as a Senator from Oregon and a Portlander, I want to begin by asking this afternoon who Americans believe is the real threat to our constitutional rights? Is it the Oregonians who gathered in my hometown, in overwhelmingly peaceful protests for racial justice, since the murder of George Floyd? Or is it the heavily armed secret police who snatched Portlanders off the streets into unmarked vans and interrogated them without justification or charges?
Senator Wyden: (22:18)
Is it the wall of moms, the courageous women like my friend, Sharon Myron, an emergency room physician and a county commissioner, who put themselves in harm’s way to protect their neighbors? Or is it the unidentifiable, federal paramilitary forces who, without provocation, baton and tear gas those moms and their fellow protestors? Is it the peacefully gathered Portlanders who raised their hands in the air and sang the words, “Hands up, please don’t shoot,” to the tune of a lullaby? Or is it a duplicitous president who called Oregonians, “professional anarchists, professional agitators, people who hate our country,” and called my hometown, “a beehive of terrorists”?
Senator Wyden: (23:17)
This argument, that Americans exercising their right to peaceful protests are anarchists, terrorists, and agitators is bad faith nonsense. Violent conflict in Portland was down before Donald Trump got involved. Portlanders are standing up for justice. I’ve seen Black Lives Matter activists in Portland and other cities trying mightily to prevent acts of vandalism. Because, as they point out eloquently, it certainly distracts from their calls for justice and equality.
Senator Wyden: (23:54)
Mr. Chairman, the Associated Press did an analysis of 200 Portland arrests, and they found that most who charge for nonviolent acts did not fit the depiction of an anarchistic. They did their analysis, Mr. Chairman, on the basis of public records, court documents. I would ask unanimous consent that we could put the Associated Press analysis into the record.
Senator Cruz: (24:18)
Senator Wyden: (24:20)
So, Mr. Chairman, why make these baseless, conspiratorial accusations and send in secret police? Donald Trump sent in the secret police to create images of chaos for political gain, to air in campaign ads and provide a basis for bad faith discussions. Fortunately, in the days since federal forces backed off, the chaos has largely stopped in Portland. But the president is still getting the scenes of violence or the ads that he wanted, and he threatens further escalation in Portland and elsewhere.
Senator Wyden: (24:57)
Now, this nonsense about leftist anarchy also papers over the murders and vandalism committed by far right domestic terrorist. Those murders have been on the rise. Far right criminals had been caught committing acts of vandalism at the scenes of Black Lives Matter protests. This baseless talk about leftist anarchy also are racists, the work done by all those who stood up in peaceful protest to declare that Black Lives Matter. In the wake of the murder of George Floyd, millions and millions of Americans, all ages, all ethnicities, all backgrounds, participated in protest calling for an end to inequality and violence against black Americans. All of this talk about leftist anarchy is just a big deflection from the nationwide call for justice.
Senator Wyden: (25:51)
So, I can just say, in closing, Mr. Chairman, that Portlanders did not feel protected by Donald Trump’s secret police forces. I agree there is a serious danger to American’s constitutional rights at this unique moment in history, and it’s caused, to a great extent, by the president and his enablers who are calling peaceful protesters anarchists and terrorists, and sending paramilitary forces into America cities. And Mr. Chairman, I think perhaps Senator Merkley is ready now as well.
Senator Cruz: (26:28)
Thank you, Senator Wyden. Senator Merkley.
Senator Merkley: (26:31)
Chairman Cruz and Ranking Member Hirono, thank you for convening this hearing on the critical need to protect peaceful assembly in America. We’ve heard conflicting stories about Portland. The scenes taken early on after George Floyd was murdered, protesters in a very angry state, and there was some substantial destruction. But weeks later, that had disappeared down to a small number of late night folks, and that’s when this conversation starts and makes the transition to what the federal forces have done.
Senator Merkley: (27:07)
Here’s what the scene looked like in Portland when the federal troops were arriving. Thousands of people peacefully protesting … Can we move that into the picture? Holding flowers, dancing, chanting, arguing that we need to have a reform in America so that there is equal public safety for all, equal justice for all. A wall of moms would form to protect peaceful protesters from the federal forces behind them.
Senator Merkley: (27:39)
Then, at about 11:00 PM, the federal forces would storm out of the federal building and attack the peaceful demonstration. These forces wearing camouflage were armed with military grade tear gas, flash bang grenades, impact munitions, pepper spray, batons, and they use them all. Picture this, three officers attack a 53 year old Navy veteran, Chris David. Two hit him with batons while a third pepper sprays his face while he stands with his hands at his side. He just wanted to talk to Trump’s officers about why they were arresting protestors without probable cause.
Senator Merkley: (28:10)
Or picture this, a young man named Donovan Labella stands facing the troops holding a radio over his head, and the officer standing across the street shoots him in the center of his forehead, sending him to the hospital in critical condition with a fractured skull. Picture this, thousands of ordinary Portlanders from every corner of this city, every walk of life, are assaulted. A disturbing number of them end up in the hospital with serious injuries from the federal troops and thousands are dealing with the aftereffects of military grade tear gas.
Senator Merkley: (28:43)
After attacking the crowd, Trump’s forces swept through the streets, grabbed protesters, threw them into unmarked vans with no specific charge or probable cause. The forces have no agency marking. If they do, it’s hidden. They have no unique identifier, so there’s no way to hold anyone accountable for outrageous acts against peaceful protestors. These features, officers with no identity attacking protesters, sweeping some into unmarked vans, are the features of secret police tactics from around the world. I never thought an American president would bring such tactics to the streets of America. But Trump has, so we should pass a no secret police in America act to end it, if we want to protect peaceful assembly in the United States of America.
Senator Merkley: (29:28)
These tactics, Mr. Chairman, were not about arresting anarchists. Chris David, Donovan Labella, thousands of peaceful protesters were not anarchists. They are citizens who love their constitution and believe that in our, we, the people republic have a responsibility to call for justice. And call, they have. Day after day, week after week. These Americans inspire me and they should inspire you.
Senator Merkley: (29:52)
Have there been incidents of violence and destruction by a few? Yes, and I don’t condone vandalism and I condemn anyone threatening harm to anyone else. But Trump’s forces did not arrest violent few, they attacked the peaceful many. There is a world of difference in that. I encourage you to listen to firsthand witnesses, the violent tactics of Trump’s forces. I read a lot of them on the floor, but here’s another one. Ellen Urbani, a former peace Corps volunteer observes, “So I’m standing there the whole time and I’m really just trying to pay attention. I’m thinking I haven’t heard anything. They haven’t told us we have to clear the street. They haven’t declared it a riot. There was … No, there was nothing. Then we were gassed. No one gave any warnings. After the gas, came pepper bullets.”
Senator Merkley: (30:36)
Then, she says, “And you could hear the ratatatatat, and, honestly, my first thought was, what happened to my helmet? I thought I had a helmet on. It just hurts so badly, even through the helmet, to get shot in the head.” And then came the rubber bullets. “They shot and broke my left foot, but I stayed up. I mean, the pain was awful. My toes, they split the bone in my big toe.” And then came more tear gas. And she says, “And the girl on my left, the tear gas canister was shot directly into her head.”
Senator Merkley: (31:04)
All of us here sworn to defend the constitution should condemn these secret police, paramilitary-style attacks on citizens. It’s not acceptable anywhere in the world. It’s an unbelievable offense against civil rights here on the streets of our democratic republic. President Trump first tried this strategy out in DC, deployed unmarked forces in some locations while attacking peaceful protesters across from the White House. Next, he brought the strategy to Portland. Then he bragged about plans to use the same tactics against cities with democratic mayors, Baltimore, Philadelphia, New York City, Detroit, Chicago, and Oakland.
Senator Merkley: (31:40)
Simultaneously, he launched a presidential campaign ad campaign about being a strong law and order president. President Trump is confused. Using secret police tactics against peaceful Black Lives Matter protesters doesn’t make him a defender of law and order. It makes him a violent suppressor. After national coverage of these tactics, President Trump retreated, withdrawing his federal agents from Portland.
Senator Merkley: (32:03)
… tactics. President Trump retreated, withdrawing his federal agents from Portland. The protests since have been peaceful celebrations, focused on the message of the BLM movement. I went and saw it myself this past weekend. I spoke at a rally hosted by the local chapter of the NAACP. I walked around and talk with folks who have been there day after day, week after week. These men and women want our nation to reckon with the systemic racism that remains at the heart of so many of our institutions and which has shaped life in this country for more than four centuries. Closing with this quote, the great Supreme court Justice Thurgood Marshall once said, “I wish I could say that racism and prejudice were only distant memories. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent because America can do better.” Colleagues, America can do better. America must do better.
Senator Cruz: (33:19)
Okay, we’ll now call forward our first panel. Our first panel consists of two government witnesses. The first is Ms. Erin Nealy Cox from my home state of Texas, and the second is Mr. Ken Cuccinelli from Department of Homeland Security. Ms. Cox currently serves as the U.S. attorney for the northern district of Texas and as the co-head or the Department of Justice’s task force on violent anti-government extremists. Immediately prior to her appointment as U.S. attorney, Ms. Cox was a senior advisor at McKinsey & Company in the cybersecurity and risk practice. Before that, she spent nearly a decade as an assistant U.S. attorney in the office she now leads, and served as the chief of staff and senior counsel in the office of legal policy in the U.S. Department of Justice. Ms. Cox began her legal career with clerkships for Judge Henry A. Politz of the U.S. Court of Appeals for the fifth circuit and for Judge H. Barefoot Sanders of the U.S. District Court for the Northern District of Texas. She earned her JD from the Dedman School of Law at the Southern Methodist University and her bachelor’s of business administration from the University of Texas at Austin.
Senator Cruz: (34:33)
Our second witness is Mr. Ken Cuccinelli, who is the senior official performing the duties of the deputy secretary of the Department of Homeland Security. In that role, he oversees many of the department’s functions that are vital to its mission of safeguarding the American people and our homeland. Before assuming his current position, Mr. Cuccinelli served in the Virginia state Senate from 2002 to 2010, and from 2010 to 2014, he served as the attorney general of Virginia. Before serving the public in these positions, Mr. Cuccinelli worked in private legal practice. Mr. Cuccinelli earned a JD and an MA in international commerce and policy from George Mason University and a bachelor of science from the University of Virginia. I would ask each of the witnesses to please stand and raise your right hand. Do you swear or affirm that the testimony you are about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you God?
Senator Cruz: (35:38)
You may be seated, and Ms. Cox, we’ll start with you.
Erin Nealy Cox: (35:43)
Good afternoon. Chairman Cruz, ranking member Hirono and members of the sub-committee. I’m Erin Nealy Cox, United States attorney for the northern district of Texas and chair of the attorney general’s advisory committee. Thank you for inviting me here today to discuss the Justice Department’s effort to counter violent, anti-government extremism. For me, it’s a topic that hits close to home. A little over a year ago in June, a gunman clad in military gear and carrying an AR-15 style rifle opened fire on the federal courthouse in Dallas, which houses not only the federal judiciary, but also my office, the U.S. attorney office, and many other offices. The sudden violence ripped through the morning, just as we were arriving for work that day. Several of my prosecutors and others were caught in the midst of the attack. They resorted to hiding behind cars in the parking lot, and one was pushed into a doorway by an FPS officer, just as the bullets whizzed passed them both. Our office will be forever grateful to the FPS officers who engaged the shooter, ending the attack before innocent lives were lost.
Erin Nealy Cox: (36:49)
To this day, we remain rattled by the gunman’s anti-government motives. He chose his location for a reason. A courthouse is one of the essential nodes within the body politic. It’s where laws are upheld, where justice is met out. To target a courthouse and those who work there is to target the core of our lawful society. And Dallas is no stranger to assault on the rule of law. Three years prior, just blocks from the federal courthouse, a gunman targeting law enforcement ambushed police during a Black Lives Matter protest, five officers were killed. Eleven others were injured, including nine officers. This was the deadliest single incident for law enforcement in the United States since 9/11.
Erin Nealy Cox: (37:37)
That day in July 2016 is certainly something etched in our memory, just as the bullet holes still etched in the federal courthouse’s facade from the shooter last year remind us daily. Anti-government fanaticism did not emerge with the 2020 protest, but as our citizens have organized lawful demonstrations across the country following the tragic events in Minneapolis, anarchists continue to exploit this lawful first amendment activity as a shield for their violent behavior. Somehow the notion of committing violence in the name of an antigovernment dogma, be it Antifa, Boogaloo, or any of the other espoused ideologies has been gaining traction at an alarming rate. Unlike the lawful protesters who demonstrations they undermine, these antigovernment extremists aim to tear down the rule of law in America, not improve it. In fact, resorting to violence, they are drowning out the voices of the protesters that this country wants to hear.
Erin Nealy Cox: (38:37)
We’ve recently seen anti-government violence making headlines all across the nation. Just a few examples in Seattle, during an anarchist occupation of the Capitol Hill area, an individual allegedly set fire to a police precinct. Thankfully, protesters rushed in to help extinguish the blaze. In Portland, a would-be anarchist outside the federal courthouse allegedly attacked a deputy U.S. marshal with a large hammer, landing blows on the officer’s neck and shouting expletives as other deputies had to pull him off. On the courthouse barricade were scribbled the letters ACAB, an acronym for all cops are bastards. In Oakland, a violent extremist allegedly use a peaceful protest as a cover to murder an FPS officer stationed at the federal courthouse, firing directly at the officer and his partner before taking off.
Erin Nealy Cox: (39:26)
In response to this type of violence, Attorney General Barr directed U.S. Attorney Craig Carpenito for the district of New Jersey and me to lead a taskforce to combat violent anti-government extremism. Working in close collaboration with the FBI, the task force aims to investigate and prosecute extremists of all persuasions. We will follow where the evidence leads us, investigating any person or group who plans to commit or commits violence in the name of anarchist ideology. Our goal is to focus on cases where violent extremists commit federal crimes and seek ways to disrupt and prevent these criminal acts before they harm Americans. Of course, let me be clear with this final point. Adhering to repugnant ideology is not a crime, nor is expressing those beliefs. The right to freedom of speech is enshrined in our first amendment, but committing violence or inciting violence in order to further that dogma is a criminal act, and is one that we should all take very seriously. Extremist violence endangers our community. It endangers our law enforcement, but as importantly, it also interferes with citizen’s right to speak freely and assemble peacefully. I look forward to taking your questions.
Senator Cruz: (40:45)
Thank you, Ms. Cox. Mr. Cuccinelli.
Ken Cuccinelli: (40:49)
Chairman Cruz, ranking member Hirono, and distinguished members of the committee, thank you for the opportunity to testify today the Department of Homeland Security’s role in protecting against the continued assaults by criminals and violent extremists in the city of Portland, and more specifically the federal courthouse and the federal law enforcement officers there. For more than two months now, federal property and federal law enforcement officers in Portland have been under assault. In July, it occurred every single night until the end of the month. Violent extremists in Portland have perverted the peaceful protests in the aftermath of George Floyd’s tragic death.
Ken Cuccinelli: (41:26)
As we begin, it’s important to be crystal clear about this. Rioters are not protesters and protesters are not rioters. To confuse the two does a grave disservice to the critical place for peaceful protest in our country. Let me be clear. The department fully supports the rights of peaceful protesters. We will never abandon our mission to safeguard those precious and hard-fought freedoms, but DHS did not have to expand its presence in Portland because of peaceful protestors. And that’s why I’m sitting before you today. For more than 60 days, the situation in Portland has devolved into nothing more than continuous nightly riots and life-threatening violence, targeting federal law enforcement and the institutions they diligently defend under the mandate given to them by Congress. These rioters have assaulted federal property, federal officers, local law enforcement personnel, and facilities with hammers, lasers, baseball bats, fireworks, Molotov cocktails, chemicals, and other weapons.
Ken Cuccinelli: (42:37)
Mr. Chairman, as you well know, Congress in 40 U.S.C. 1315 directs the secretary to use DHS law enforcement personnel in order to protect federal property and persons on that property. The Federal Protective Service protects over 9,000 facilities every day pursuant to that law, and it’s a role that FPS has performed at the Hatfield Courthouse since it opened in 1997 and around the country since the beginning of FPS in 1971. 40 U.S.C. 1315 is further pursuant to article one, section eight, clauses one, nine, and 18 of the constitution. Contrary to what some may think, you should be pleased to know that we do not have the option, nor do we ever intend to abandon the mission that Congress assigned to us.
Ken Cuccinelli: (43:31)
Some people who are more interested in telling a story than in truth have made up a number of lies related to federal officers in Portland. Here’s some facts for the record and for anyone who still cares about truth. All DHS law enforcement personnel in Portland are trained in the conduct of appropriate tactics and procedures to conduct our missions while protecting civil liberties and promoting public safety and the safety of our officers. DHS law enforcement officers who interact with crowds are all identifiable by their law enforcement agency and individually. The use of unmarked vehicles by law enforcement is common to avoid potential attacks by criminals on a nightly basis. Violent extremists across the country have intentionally attacked marked police vehicles and attempted to set them on fire, including with officers in them.
Ken Cuccinelli: (44:29)
In closing, Mr. Chairman, let me affirm to the committee and the American people, the DHS will not back away from our responsibilities to protect federal property, the people using those properties, and our brave law enforcement officers. We remain disappointed that select federal state and local leaders prefer to demonize law enforcement while kowtowing to violent criminals who set fire to our cities, destroy local businesses, and target law enforcement officers for harm or even death. I’d remind this committee that it was a DHS law enforcement officer who was first killed in the violence following George Floyd’s tragic death. PSO Patrick Underwood was gunned down while protecting a federal building and a peaceful protest in Oakland, California. PSO Underwood was African-American. His white partner also suffered three bullet wounds, but survived.
Ken Cuccinelli: (45:27)
As I sit here, I am unaware of a single one of the politicians who have demonized law enforcement around the country expressing regret at the death of PSO Underwood. That difference speaks volumes. DHS knows the difference between peaceful protesting and violence and terrorism. This country cannot survive allowing mob rule to replace the rule of law. Those hurling Molotov cocktails and explosives in Portland are not just attacking a federal courthouse. They’re attacking the very foundation that makes the enjoyment of our natural rights possible; the rule of law itself. With that, I’m happy to take questions, Mr. Chairman.
Senator Cruz: (46:10)
Thank you to both of you for your testimony, and let me say to both of you, thank you also for your service working to keep Americans safe. Ms. Cox, let me start with you. How many active cases does the Department of Justice or the FBI have, either cases or investigations into violence, rioting, or terrorism that has derived from these riots we’ve seen?
Erin Nealy Cox: (46:33)
Well, I can speak directly to the FBI, chairman. They have since May 28th, over 300 investigations, domestic terrorist investigations. That does not include any potential civil rights investigations or violent crime associated with the riots, but 300 domestic terrorist investigations that have been opened since May 28th.
Senator Cruz: (46:55)
Mr. Cuccinelli. Speaker Pelosi and another senior house Democrat have referred to federal law enforcement officers working for the Department of Homeland Security as stormtroopers and Gestapo. Are there any stormtroopers or Gestapo working for DHS right now?
Ken Cuccinelli: (47:21)
No., Mr. Chairman, there are not, and it’s an extremely negative and hyperbolic libel by those individuals on people who are doing their duty as professionally as they can, not just in Portland, but around the country, protecting, including those of us in this building. It’s very sad to see. I’m a former attorney general. I know there are a number of them on this committee. We’ve all worked with law enforcement in an intimate basis, and to see that kind of characterization of people who every day get up … the only people in America who get up, go to work, and we ask them to put a gun on and stand between us and evil every day. And these folks do it. They do it dutifully and they do it professionally, and that includes in Portland, Mr. Chairman.
Senator Cruz: (48:13)
What does it do to officer morale when elected Democrats are calling them Nazis?
Ken Cuccinelli: (48:20)
You know, there’s just something out of bounds about the Nazi allusions. I don’t know why these folks get away with it, but you know, when they’re facing an unusual threat … In FPS’ 49 years since 1971, they have dealt with approximately 900 protests a year on average recently, and yet in all of those years and all of those cities, they have never dealt with a situation like Portland. I will say that they keep one another’s morale up, but many of them are just aghast at the notion that people who are using every form of weapon … This is a water bottle, frozen, and they’re getting thrown at our officers. The simplest thing in the world. And pipes, fireworks, chemicals, Molotov cocktails. And yet you continually hear people who know that what they’re saying is not true about these officers, repeat it. Even in the introductory video, these are unidentified and conveniently enough, the narrator identified the location on those officer’s uniforms, where you can see who they work for, which agency, even within the Department of Homeland Security. And that’s true for all of the officers who’ve been interacting with all these crowds. So they’re a little bit … They understand that it’s politics, but a lot of them just think it’s gone way, way too far, particularly given how they go out every day and do their duty.
Senator Cruz: (49:48)
All three democratic senators who’ve spoken at this hearing so far, Senator Hirono, Senator Wyden and Senator Merkley, they all use the identical phrase, secret police. Mr. Cuccinelli, do you deploy secret police? Does DHS send secret police out into the world and is that what’s happening in Portland?
Ken Cuccinelli: (50:09)
We have no troops. We have no secret police. And I would note, you know, Senator Merkley, I like the flower picture, but he said that since the arrangement was made, he didn’t characterize it this way, with Governor Brown, to finally bring in state law enforcement to do what Portland wouldn’t do, and that’s police many of the streets of Portland, that things have been rosy. Well, last night, the local police declared a riot. Last night. Not the federal, but the local police.
Senator Cruz: (50:39)
Sorry, Mr. Cuccinelli, I’m looking at that poster behind you, and I see in bright yellow in all caps, the word police, and we’re pretty far away. In COVID times, we’re pretty spread out. How exactly is someone with giant all caps police across their chest, how are they secret police? What am I missing?
Ken Cuccinelli: (50:56)
Nothing secret about it. And for those who have questions why we use police, it’s because it’s the internationally recognized identification of law enforcement.
Senator Cruz: (51:05)
By the way, they’re also focusing on unmarked cars. Now to the best of my knowledge, every law enforcement agency of any size or scope uses unmarked vehicles. Is there any reason why law enforcement might want to use unmarked vehicles in an active riot?
Ken Cuccinelli: (51:21)
Well, in other active riots around the country, we’ve seen those marked vehicles targeted, as I said, with officers in them. We have attempted murder-
Senator Cruz: (51:30)
And fire bomb. Literally lit on fire.
Ken Cuccinelli: (51:31)
Fire bomb, yes. Quite intentionally. That’s exactly right.
Senator Cruz: (51:36)
Senator Merkley also said that that president Trump withdrew the federal law enforcement officers and that afterwards, the protests have been peaceful. Now, as I understand it, both of those statements are objectively false. Is it true that the president has withdrawn federal officers from Portland? Number one. And number two, is it true that the protests have been peaceful since then?
Ken Cuccinelli: (52:02)
No. As I noted even last night, the local police declared a riot. So last Monday, discussions finally began after multiple requests on our part with Governor Brown to have the state police come in and engage and do the two things that we have been asking them to do for two months. And that is engage in cooperative policing, which is always our goal, and frankly it exists virtually everywhere else in the country but Portland, and to clear the parks across the street that have performed as a staging ground for those conducting violent assaults. [crosstalk 00:52:42]
Senator Cruz: (52:41)
Last question, Mr. Cuccinelli. In the last six months, how many officer injuries have occurred in Portland?
Ken Cuccinelli: (52:55)
The latest count is 277 injuries.
Senator Cruz: (52:59)
Ken Cuccinelli: (53:02)
Senator Cruz: (53:03)
To approximately 140 officers.
Ken Cuccinelli: (53:06)
So that is not indicative of a peaceful protest, is it?
Senator Cruz: (53:10)
No, it is not. That’s why I said rioters aren’t protestors and protestors aren’t rioters. There’s a difference.
Ken Cuccinelli: (53:15)
Thank you, sir. Senator Hirono.
Senator Hirono: (53:21)
Thank you, Mr. Chairman. Ms. Nealy Cox, you mentioned in your testimony several times, numerous references to anti-government extremists, and you then went on to mention extremists of all persuasions. That would include white supremacists and other right-wing extremists, such as the Boogaloo boys?
Erin Nealy Cox: (53:46)
It would definitely include the Boogaloo boys. The task force that I’m helping to lead, Senator, is aimed squarely at anti-government violence, anti-authority violence. So yes, it could be racially motivated like you indicate with white supremacy, or it could not.
Senator Hirono: (54:02)
Yes, I noted in my opening that there’ve been zero killings by antifascists in the past 26 years. But in contrast during that time, at least 329 victims were killed by white supremacists and other right-wing extremists. So in your task force, how much of the task force’s resources and time is spent looking at or investigating white supremacists and other right-wing organizations?
Erin Nealy Cox: (54:28)
Well, as I said, Senator, any group regardless of their name or their radical ideology, if they’re violent and they’re anti-government, we’re going to be looking at them. If it’s just a white supremacist that’s engaging in gang activity or drug activity, like the types of gangs that we prosecute in the northern district of Texas, that would not fall under the purview of our taskforce.
Senator Hirono: (54:51)
What was that? What would not fall within the purview of your task force?
Erin Nealy Cox: (54:55)
If it’s white supremacy groups that are not engaging in anti-government violence, such as the kinds that I [crosstalk 00:55:01]-
Senator Hirono: (55:01)
Well, that’s the thing, you see. Excuse me, but they may not be engaging in anti government violence, but they’re engaging in all kinds of other violence, such as running over people. Does that not concern you?
Erin Nealy Cox: (55:14)
I have no objection to your characterization as white supremacy groups engaging in violence. We prosecuted those in my district. The only point that I’m making, Senator, is we’re limiting the purview of the task force to violent anti-government groups, whether they are motivated by race or whether they are just anti-authority, anti law enforcement.
Senator Hirono: (55:33)
I think that that is a real concern because one can consider anti-government extremists to be protesters. For example, I would say during the Vietnam War, the thousands and thousands, if not millions of protestors, were deemed anti-government protesters. So I think that’s a dangerous way to think about it. Mr. Cuccinelli, you seem to … Well, you didn’t seem to. You described that what your organization did in Portland was following standard law enforcement procedures. So I take it that you would not be concerned when the DHS IG looks at the appropriateness of what happened to Christopher Davis, who was beaten by a baton and having pepper spray sprayed into his face while he was standing there. Nr would you be terribly concerned at what happened to Donavan LaBella, who was shot in the head and had to have surgery. I would think that the IG would look into those kinds of force by people at DHS. You would not be concerned because this is all standard law enforcement practice?
Ken Cuccinelli: (56:47)
We’re certainly concerned with anyone at any of these events. Both of the two that you identified are being addressed by the DOJ inspector general. Those do not involve DHS officers.
Senator Hirono: (57:01)
So you would have concern of the OJ officers who are doing those kinds of things, pretty much unprovoked-
Senator Hirono: (57:06)
… violence against peaceful protestors. You would have a concern. That’s good to know. Last week, the ACO you submitted court declarations for multiple journalists. Oh, this is for you, Mr. Cuccinelli, who swore under oath that federal agents in Portland specifically attacked them, even though they were unmistakably marked as press. One journalist described federal agents shooting him in the chest and aiming a tear gas canister at his head while he filmed the agents using force against a dancing protester. Another press videographer explained he had covered conflict zones around the world, including ISIS in Northern Syria, and never had weapons aimed or discharged at him as he did by federal agents in Portland. Have you clearly instructed DHS that they must not target or use force against journalists who are engaged in press activities?
Ken Cuccinelli: (57:58)
Yes. And not only that, in Portland specifically, that was a subject of further discussion with just those officers there. All our officers get training that addresses that subject, but in Portland, it was addressed in musters as well.
Senator Hirono: (58:15)
So is something going to happen as a result of your investigation of the targeting of journalists by your people?
Ken Cuccinelli: (58:21)
Senator, I wouldn’t be ready to say that we’ve targeted any journalists here. That is not our intention or goal, but we do investigate every single use of force, so I can tell you that every single one of them will be reviewed.
Senator Hirono: (58:34)
So, would you tell this committee what the results of that review are?
Ken Cuccinelli: (58:39)
Once we have them, yes.
Senator Hirono: (58:41)
When do you think you’ll complete that review?
Ken Cuccinelli: (58:43)
Well, there are many of them going on related to Portland, so I’m not prepared to give a timeframe, because we’re working on all of them at the same time.
Senator Hirono: (58:54)
I realize that the IG is investigating what happened, the use of force and various other tactics. And so, I am hopeful that that investigation will uncover all of the various instances that you also are investigating. Thank you, Mr. Chairman.
Senator Cruz: (59:13)
And Mr. Cuccinelli, it is commonplace at law enforcement that if there is a significant use of force, that that use of force is reviewed afterwards, is it not?
Ken Cuccinelli: (59:20)
Yeah, that is automatic within the Department of Homeland Security. That is a built-in oversight element of our procedures. [crosstalk 00:59:27]-
Senator Cruz: (59:27)
And of course there are no such constraints on rioters or terrorist or murderers.
Ken Cuccinelli: (59:32)
Of course not.
Senator Cruz: (59:35)
I would also note briefly on the exchange on the press, it is my understanding that some of the rioters are now identifying themselves as press. And I just want to be clear that if someone has an identification of press and they engage in violent conduct, they physically assault an officer, they’re not magically immune from the criminal laws if they engage in a violent assault. Is that right?
Ken Cuccinelli: (59:58)
That is correct. And in Portland, there was an incident with local law enforcement between local law enforcement and press that led to a federal court order that was later extended circumstantially without a similar type of incident in our view to all law enforcement, meaning federal law enforcement as well. And we’ve respected that order. But upon the implementation of that order, just as you described, Mr. Chairman, suddenly people started sprouting wearing all black block and press.
Senator Cruz: (01:00:31)
All black block, you mean the uniform of these rioters, essentially.
Ken Cuccinelli: (01:00:35)
Yes. Yes, that makes it hard to distinguish one from the other, which is the purpose of wearing the black block, and also to make for quick changes so they can change their appearance as well. And so more of them are now doing that with the addition of press across their front or back. And many of them … You can watch a readily available Seattle video for instance, where they will literally stand in the middle of a gap between police and rioters and right in the middle of the line of the rioters. So they’re actively performing a shield function. Now, I’m not saying the majority of them do this, but once the court singled them out, there’s no question that a number of the violent participants in these activities started to try to take advantage of it.
Senator Cruz: (01:01:24)
Senator Hirono: (01:01:25)
Excuse me, Mr. Chairman, before we get to the next panel, if I could introduce a letter for the record?
Senator Cruz: (01:01:32)
What letter, sure?
Senator Hirono: (01:01:33)
So this is from the Oregon attorney general Ellen Rosenblum, who submitted a statement for this hearing. And in her statement, she explained that in Portland, the federal agents’ quote use of force becomes even more chilling when taken in the context of the apparent federal mission here based on public comments by federal authorities, beginning with the president himself. It almost seems as if the excessive force was the real point of this exercise. Then she explained that the language federal authorities used includes the expression dominate the actions of federal officers on the ground here showed they took that message to heart. Moreover, I saw no evidence they were doing anything to single out the so-called violent anarchists their leaders repeatedly invoked. I do ask unanimous consent to enter her statement into the record of this hearing.
Senator Cruz: (01:02:16)
The letter will be entered into the record without objection.
Senator Hirono: (01:02:19)
Thank you, Mr. Chairman.
Senator Cruz: (01:02:19)
Senator Graham: (01:02:20)
Thank you. Just to put this in context for myself, to those who accused the United States of being a totalitarian state, I don’t buy it because I don’t remember many hearings like this in Germany, where you call the Gestapo and ask, “Hey, who you beating up and why?” I don’t remember any open press about what’s going on, talking about the press. These things have been extensively covered. I want to live in an America where the cops are held accountable. Do both of you agree with that?
Ken Cuccinelli: (01:02:55)
Erin Nealy Cox: (01:02:56)
Senator Graham: (01:02:56)
If you wear a gun and badge, you have a lot of power, and your actions need to be judged and monitored. Is that correct?
Ken Cuccinelli: (01:03:04)
Erin Nealy Cox: (01:03:04)
Senator Graham: (01:03:05)
You both agree with that? You also want to live in a country where people wearing a badge and gun feel like you got their back, right?
Erin Nealy Cox: (01:03:13)
Ken Cuccinelli: (01:03:13)
Senator Graham: (01:03:14)
Okay. How many people have been prosecuted for the violence against DHS or DOJ officers? Are there any prosecutions in the making for the 200 and something injuries?
Ken Cuccinelli: (01:03:27)
There are. I don’t know the exact number of cases. I can tell you arrests.
Erin Nealy Cox: (01:03:31)
Yeah, so currently out of the district of Oregon, Senator, we have 97 arrests.
Senator Graham: (01:03:40)
Well, I’m going to be watching really hard whether or not the people who attack our officers are prosecuted, and I will join my democratic colleagues to make sure that the IG looks really hard in any excessive use of force. I think most Americans are probably where I’m at. If a cop is going overboard, we want to know about it and take corrective action. But I think most Americans want to make sure that somebody-
Senator Graham: (01:04:03)
… corrective action, but I think most Americans want to make sure that somebody who throws a brick or a frozen bottle of water or anything else at a police officer, that they have their day in court too. So, I want to put you both on notice that we’re going to hold you accountable for prosecuting those who hurt our cops. Now, if we had done nothing, what would have happened to the courthouse, Mr. Cuccinelli, in Portland?
Ken Cuccinelli: (01:04:28)
That courthouse wouldn’t be there in any function [crosstalk 01:04:30].
Senator Graham: (01:04:30)
So, I challenge anybody on the other side to say different. If we hadn’t intervened, [inaudible 01:04:36] burned the goddamn thing down. Were you in Seattle? Were either one of you in Seattle when they took over part of the town? Did we send anybody in there to help?
Ken Cuccinelli: (01:04:51)
We were not requested and there was no federal [crosstalk 01:04:54].
Senator Graham: (01:04:53)
Well, they worked it out in Seattle after they took over part of the town. Being upset with what happened to Mr. Floyd is absolutely all American, trying to occupy part of a city and turn it into this socialist enclave, not. So, we got a lot going on in this country and I don’t want to blend them in. I don’t know what’s happening in Chicago, but this is not about Mr. Floyd. Young kids are getting killed just outside their house, somebody needs to do something about it. So, my point is this, this committee, and I appreciate this, Senator Cruz, is going to look at all of it. And all of it means, what’s going on in Chicago and should the federal government help? How many kids have to die every weekend before enough is enough? As to the state police in Portland, I’m glad you’re there, I hope it works out. But if you can’t take care of it, we will. That’s not being totalitarian, that’s applying the law that exists in the United States today. It is a federal responsibility to protect federal property, you agree to that, Mr. Cuccinelli?
Ken Cuccinelli: (01:06:06)
Senator Graham: (01:06:08)
Ms. Cox, there are people out there who would kill you because of your race, do you agree with that? White supremacist groups are alive and well within the United States.
Erin Nealy Cox: (01:06:18)
Yes, I would agree with that.
Senator Graham: (01:06:19)
Do you believe they’re on the rise?
Erin Nealy Cox: (01:06:22)
I believe that they’ve existed for some time and as [crosstalk 01:06:24].
Senator Graham: (01:06:25)
Well, I tell you, Mr. Wray… Director Wray said they’re on the rise, and I believe that too. And I want you to bust their ass wherever you find them. We’re not going to live in an America like this. So, if you’re a white supremacist, I hope you get a knock on your door soon if you’re engaging in violence, and I hope you go to jail. So, from my point of view, I don’t want any American, Black, White, anything in between, having to be afraid to live in their own country, not being able to let their kids go outside and play at night, and can’t go downtown to one of the major cities. So, to both of you, thank you for your service. Pass on to those under your charge, that we appreciate them, that at least I don’t consider them Gestapo, but let them know if they get out of line, they’ll be dealt with, that’s what the rule is all about. Thank you for having this hearing.
Senator Cruz: (01:07:19)
Thank you, Mr. Chairman. Senator Durbin.
Senator Durbin: (01:07:28)
Thank you, Mr. Chairman. Neither violence nor vandalism are acceptable in the exercise of one’s constitutional rights. Both peaceful demonstrators and law enforcement officers in the lawful exercise of their legal authority, are entitled to do so without threat or harm, that’s what I believe. For the record, I express my condolences for any law officer who loses his life or is seriously injured in the line of duty. And I regret any peaceful demonstrator who has been injured, traumatized, or killed as well, in the lawful exercise of their constitutional rights. Patrick Underwood, I regret his passing and his death.
Ken Cuccinelli: (01:08:07)
Senator Durbin: (01:08:08)
The chairman started this meeting by saying, “We’re talking about the leftist.” Patrick Underwood was not killed by a leftist, he was killed by a member of an organization known as boogaloo, a right-wing extremist organization. At least a gentleman… I shouldn’t call him a gentleman, a person named Carrillo has been charged with that crime at this time. It ain’t just leftist, they’re extremists who are engaged in many places. Tomorrow is the anniversary, Mr. Chairman, the one year anniversary of the mass shooting at the Walmart in El Paso, Texas. A 21 year old white supremacist, and I won’t repeat his name, with anti-immigrant views killed 23 people and injured 23 others. It is the worst racial extremism in American history against Hispanic Americans. An unclassified May, 2017, FBI, DHS, Joint Intelligence Bulletin, found that, ‘white supremacist extremism poses a persistent threat of lethal violence. White supremacists were responsible for more homicides from 2000 to 2016 than any other domestic extremist group, right or left white supremacists’.
Senator Durbin: (01:09:26)
FBI Director Wray told me last year in the hearing, that the majority of domestic terrorism arrests involved white supremacists. And yet, the Trump administration has made the inexplicable, and I consider irresponsible, decision to stop tracking white supremacist incidences as separate category of domestic terrorism. Since May, 2019, I’ve sent three letters to the attorney general and FBI director, asking why DOJ and the FBI are doing this at a time when we should be combating the growth of white supremacist violence that targets religious minorities and communities of color. Today’s hearing only reinforces my concern that the FBI and DOJ are not taking adequate measures to combat white supremacist violence, and are minimizing the growing domestic terrorism threat.
Senator Durbin: (01:10:14)
Instead of focusing on the real and significant violent threat of domestic terrorism motivated by white supremacy and far-right-wing extremism, terrorists who have killed Americans, the Trump administration has repeatedly tried to vilify protestors and conflate social justice movements with antigovernment extremism. Ms. Cox, you’re very explicit, in fact, you say it twice within a matter of four sentences. In your statement, you say, our proactive focus on violent extremist is not on membership, in particular, groups or adherence to particular ideologies or belief, but on criminal activity and violence, you see that twice. Do you agree that violent white supremacists currently pose our most significant domestic terrorism threat?
Erin Nealy Cox: (01:10:59)
I would definitely agree with Senator, that we have a number of investigations that involve white supremacist group. In fact, before the civil unrest, the majority of the domestic terrorist investigations were white supremacy involved.
Senator Durbin: (01:11:13)
And as part of the Department of Justice, can you explain why your department has stopped tracking white supremacist incidents as a separate category of domestic terrorism?
Erin Nealy Cox: (01:11:23)
I do not know anything about that, senator.
Senator Durbin: (01:11:25)
Well, I hope you’ll look into it.
Erin Nealy Cox: (01:11:27)
Senator Durbin: (01:11:27)
The Department of Homeland Security has recognized that particular threat by violent domestic extremists who target racial and religious minorities. In a September, 2019, Strategic Framework report on violence, while President Trump was the president, it said, white supremacist violent extremism, one type of racially and ethnically motivated violent extremism, is one of the most potent forces driving domestic terrorism. Mr. Cuccinelli, do you agree that white supremacist violent extremism is ‘one of the most potent forces driving domestic terrorism’?
Ken Cuccinelli: (01:12:02)
I do, and that’s why the Department of Homeland Security has upped its effort in that area, it is not correct to say we have ignored it.
Senator Durbin: (01:12:10)
Well, we’ve seen what you’ve done in Portland, what have you done about white supremacists?
Ken Cuccinelli: (01:12:13)
Well, you cite one element of an increasing track of analysis and communication with local partners, which is, DHS has the primary responsibility for and communicating the information to state and local authorities that we get sometimes from others, and we’ve increased that effort, not reduced that effort.
Senator Durbin: (01:12:36)
Mr. Cuccinelli, good. That is what we expect in the ordinary and customary relationship between the federal government and state and local law enforcement, it is not what happened in Portland. May I be allowed to ask one last question? Mr. Cox, can you confirm that any… Pardon me, Ms. Cox, can you confirm that any DHS personnel assigned to support Operation Legend will be under the operational control of the Department of Justice and report directly to DOJ officials?
Erin Nealy Cox: (01:13:03)
Senator, my understanding of Operation Legend is that there are DOJ law enforcement that are being sent to help reduce violent crime in certain cities, Chicago is one of them. And that if we’re working with DHS, they won’t… They’ll be collaborating with us, they’ll be our partner in that effort.
Senator Durbin: (01:13:18)
There is a genuine concern because of statements made by this president about some wide ranging immigration enforcement as part of this, are you aware of any plans to use these DHS officials that have been assigned to Operation Legend for immigration enforcement?
Erin Nealy Cox: (01:13:35)
I am not, Senator. In fact, I am aware that that entire operation and initiative is meant to reduce violent crime in cities across the US.
Senator Durbin: (01:13:43)
Exactly. And started in Kansas City for that very reason, did it not?
Erin Nealy Cox: (01:13:46)
Senator Durbin: (01:13:47)
Thank you, Mr. Chairman.
Senator Cruz: (01:13:50)
Thank you, Senator Durbin. And I appreciate-
Ken Cuccinelli: (01:13:53)
Senator, would you like me to address the immigration officials involved in Operation Legend?
Senator Durbin: (01:13:57)
If the Chairman will allow.
Senator Cruz: (01:13:58)
Sure, go ahead and respond to that, Mr. Cuccinelli.
Ken Cuccinelli: (01:14:00)
So, HSI agents, Homeland Security Investigators, who have extraordinary international gang experience are among the cooperating agents in Operation Legend, including in Chicago, where they have participated in making a number of arrests, and that’s true in other cities as well. But that’s the engagement, it is not to perform immigration functions except in so far as they’ve gathered experience because as you know, Senator, gangs like MS-13, Latin Kings and so forth, span our national borders, which brings HSI expertise into the picture. That is their role in Operation Legend, and we’re very pleased to be working alongside our DOJ partners to try to help make your cities safer.
Senator Durbin: (01:14:44)
Senator Cruz: (01:14:48)
Thank you, Senator Durbin. Senator Durbin referenced El Paso and the horrific mass murder there. I was in El Paso in the aftermath of that. That virulent racist targeted Hispanic Americans, I am an Hispanic American, I consoled the families of victims who were murdered by that bigoted racist. And I will say one of the odd things… Our Democratic colleagues repeatedly refer to what they call, right-wing extremist, and they cite the boogaloo boys or they cite white supremacists, or they haven’t cited but they could certainly cite, the clan. What I will say unequivocally is what Senator Graham said, those guys are evil, bigoted, violent monsters, they should be prosecuted and thrown in jail. I unequivocally condemn anyone who engages on violence, whether on the right or left.
Senator Cruz: (01:15:44)
And sadly what’s missing, is too many in the Democratic Party refuse to condemn Antifa. They refuse to condemn… Senator Hirono said no one has been killed from that side of the aisle. I’ll tell you, I was also in Dallas in 2016 when five police officers were murdered by a radical and Black Lives Matter protest. And this shouldn’t be a political game, don’t kill people, don’t set police cars on fire. Mr. Cuccinelli, those who are engaged in rioting in Portland right now, the 277 officer injuries that have occurred, who’s doing it?
Ken Cuccinelli: (01:16:34)
Well, as I said, rioters are not protesters, protesters are not rioters, it is the violent among them who often hide behind the peaceful and use them for a form of protection while using slingshots, using lasers. We’ve had more eye injuries… And I brought one with me, this is commercially available laser, that you see, and you’re seeing them used now in Portland to a degree that we have never seen before. Now, if I hold my hand in front of that laser, it’s hot by that point in time, this is just a pointer you buy off Amazon. And we’re seeing more different kinds of weapons. We’re seeing some of the old fashioned, a rock, oldest weapon known to man, along with new items like this that we’ve never seen used in such an organized fashion against our officers, their eyes, as I said, we’ve had more eye injuries than I can ever remember in another incident. Of all of our injuries, eyes is number one.
Senator Cruz: (01:17:37)
How many is that?
Ken Cuccinelli: (01:17:38)
113 out of 277. That… Hearing is next, and then needless to say, what we euphemistically call, contact with an object, which is [crosstalk 01:17:50].
Senator Cruz: (01:17:50)
And I will say for our Democratic members, earlier today, Mr. Cuccinelli actually showed me that commercial grade laser, and I thought like a lot of people, it’s a laser pointer that you might see at home. What’s interesting is that, what Mr. Cuccinelli just did, shining it at your hand, if you do that, which I did, within a second, you’ll yank your hand back because it burns. And as I understand it, they’re using… It’s not a little pointer, it’s a serious weapon that they’re using potentially to cause permanent blindness in law enforcement officers, is that right?
Ken Cuccinelli: (01:18:20)
That’s the attempt, and the closer you get the tougher it is. I’ve asked for this. This is a shield, it’s hard to see, it’s a rough shield. What I want to draw your attention to is the hole in the shield. So, a tactic that quickly developed among the violent participants in these activities, was to cut those holes in the shields and instead of standing the back of a crowd and aiming at the eyes of officers, they will also now bring the shield up close and bring it right up into you. And so, the intensity of the strike to the eyes of the officers is much more significant. For those of you who were engineers like me, it’s a square function, so if you’re twice as far away, it’s a quarter of the energy, and the opposite is true. And these are the kinds of tools they’re using combined with just regular item you buy on Amazon, to do permanent damage that we haven’t seen on this kind of scale ever before. As I said, 49 years for the Federal Protective Service, they have never seen anything like Portland.
Senator Cruz: (01:19:24)
Senator Lee: (01:19:26)
Thank you, Mr. Chairman. Mr. Cuccinelli, what happens when you take a laser and you point it into the eyes of a human being?
Ken Cuccinelli: (01:19:32)
So, the body has a, about 0.2 second, look away reaction. And one of the challenges, there are several, but one of the challenges is, if you’re not looking at the person assaulting you with the laser, you can’t figure out who’s performing the assault. So, they’re… You think of it practically, you’re trying to shield your eye and still do your job. We’ve had a number of officers who had a day’s long blindness, so far they’ve all kind of come back, if you will. But, you also get what’s called flash blindness, think of it as the old Kodak cameras where you’d get that blue spot and you can’t quite see your entire field of vision for a period of time.
Senator Lee: (01:20:18)
I assume that, for that moment, in addition to any long-term damage or short term damage that it might do, for the time being it also makes more dangerous for the officer, as the officer recoils, as the officer steps away from the harm.
Ken Cuccinelli: (01:20:30)
Absolutely. And… The way people sometimes work together in the crowd, that is a clearly planned exercise.
Senator Lee: (01:20:35)
And to be clear, a device like this one, which can be bought anywhere by anyone, doesn’t run out of its supply. At least not in a single protest, they can shine that all night long if they want to, right?
Ken Cuccinelli: (01:20:45)
All night long.
Senator Lee: (01:20:47)
And it can still do its harm, is one of the things that I find so intriguing about all of this, is how it is, even in 2020, as crazy as this year is, it seems doubly crazy to me that we’re using terms like this, we’re conflating terms, peaceful protest and anarchist violence, as if they were the same thing. Enforcing law is against one group of people but not another, or so we we’re told we should do, based on whether or not we agree with their ideological viewpoint. Now, tell me about this picture right here.
Ken Cuccinelli: (01:21:16)
So what you’ve got here is… The most common laser that we’ve seen is the green. And the things you learn doing these jobs, your eye, the human eye, sees the green part of the spectrum more brightly than say red, something like 10 times brighter. And so… And also, all of this is happening at night. And this is sort of the Portland formula, there’s peaceful protesting till 10 or 11 o’clock, and then they go away and maybe some of them come back, but the group that comes back is a much bigger, but also they come back for violence. [crosstalk 01:21:56].
Senator Lee: (01:21:57)
So, when my mom told me nothing good happens after midnight, she wasn’t messing around?
Ken Cuccinelli: (01:21:59)
Your mother was right, especially about Portland. You also see gasoline in the upper right corner of this picture. We’ve had accelerants poured into the courthouse while commercial grade mortar style fireworks were being shot into the doors in attempt to light it, also while, the side doors, the exits of the building, were being blocked, were being barricaded closed. So, that was going on as well.
Ken Cuccinelli: (01:22:27)
In the last picture you see here, it’s a little dark to see, they’re holding a fire hose that they’ve hooked up to the courthouse, now these are our CBP officers, because the rioters not the peaceful protesters, would continuously set fires. They’d throw a ton of trash over a fence, light it on fire, and they would also throw what amounted to homemade hand grenades. There is a video of this picture, this is a snap out of that video, where you see two of those explosives coming in. Fortunately, they both explode early so they don’t get so close that they impact these officers. But you can see rather obviously, the potential for harm with many of these devices. And this gun here was pulled off of one of the arrested protestors.
Senator Lee: (01:23:14)
Well, widely available equipment like this is being used in a somewhat novel way here. I assume this is the kind of thing you don’t ordinarily expect to arise spontaneously.
Ken Cuccinelli: (01:23:27)
Senator Lee: (01:23:27)
In other words, people have given this some thought.
Ken Cuccinelli: (01:23:30)
They’ve given it a great deal of thought. And frankly, there’s been evolution of the negative tactics over the course of time. If you look back out of Minneapolis, go back to where George Floyd was killed by that police officer, and then the fight that ensued in the streets of Minneapolis beyond just protesting, many of those violent participants got together and wrote up their lessons learned, sort of an after action report for criminals. And they’ve published this, and you see the same thing going on in other parts of the country, we can send you that rather long and extensive. And if you weren’t evil, you’d read the quality of the material and you’d say that this is a high quality analysis, and that’s on the other side. So, that’s what we’re facing and it’s evolving all the time.
Senator Lee: (01:24:29)
Does the federal government have what some would call, general police powers?
Ken Cuccinelli: (01:24:33)
No, absolutely not.
Senator Lee: (01:24:35)
How does this differ from general police powers? I’ve been critical in many instances from federal law enforcement agencies stepping in and engaging in local police function, tell me why I shouldn’t have that concern here?
Ken Cuccinelli: (01:24:46)
So, all of the DHS officers are cross designated as Federal Protective Service officers. They’re all operating under the Federal Protective Service authority to protect the courthouse. The marshals have the inside of the courthouse and protected dutifully, FPS protects the outside. There’s also, two doors down, if you will, another federal building, and in between is the biggest local target for violence, the Multnomah Justice Center. So, there’s three buildings, courthouse, local justice center, federal building, and across the street from all three, are parks, which have performed the function of staging areas for rioters, for criminals. And the power that’s being exercised by the federal authorities are to protect the federal facilities, that is it. Even when we go off those properties, which the statute from Congress says we can do, it is for the purpose of performing that function. So, if someone assaults a law enforcement officer at the courthouse, we can go arrest that person anywhere in pursuit of that particular authority. But that doesn’t mean we can police the streets of Portland and handout tickets for speeding or doing other things and… That’s for Portland and the state police to do.
Senator Lee: (01:26:10)
So… But for these apparently orchestrated violent repeated attacks on federal courthouses and other federal personnel and facilities, would you have ever sent federal personnel into that zone?
Ken Cuccinelli: (01:26:24)
Well, of course the FPS officers are always there, but I assume you mean, added more.
Senator Lee: (01:26:28)
Ken Cuccinelli: (01:26:29)
Through June, FPS continued to add their own officers as the violence escalated. And if you look in May and June, we have a graphic compilation I can send to each of you, that shows the number of days of attacks on federal facilities. And in May and June, that total was 12 for both months, total. In July, as of July 29th, it was 29. So, every single day. The escalation of the targeting of federal facilities led the commander on the scene of the Federal Protective Service to request a supplemental Department of Homeland Security officers, because they didn’t have enough in the region and given their other duties any longer, after they had already added their own, that’s why. Pure circumstances on the ground, at the request of the local commander who has always been the regional commander there. And that region is a lively one with Portland and Seattle in the same region, they have some experience here, this has happened not to this degree, but assaults on federal facilities happened two years ago, and the Mayor of Portland publicly disclaimed police protection for that facility. And so, we have [crosstalk 01:27:44].
Senator Cruz: (01:27:45)
Thank you, Mr. Cuccinelli. I’ll ask that that document be submitted to the committee, and without objection, it will be entered into the record.
Ken Cuccinelli: (01:27:53)
Senator Cruz: (01:27:53)
Senator Whitehouse. : (01:27:57)
Thank you, chairman. Mr. Cuccinelli, you indicated that there is no sort of after action report for criminals who engage in violence. I think actually there is, and it’s what Ms. Cox does. And I wish both of you well in bringing to justice people who have done harm to law enforcement officers. With respect to lasers, I actually I’m the person who wrote and passed a law to protect pilots from the dangers of laser attacks from the ground which had begun to pop up as a strange thing to want to do, but there it is. I think you both agree that we do hold our law enforcement personnel to a far higher standard than we expect the general public to adhere to, is that correct?
Ken Cuccinelli: (01:28:59)
Certainly as a professional matter, yes.
Erin Nealy Cox: (01:29:01)
Yes, it is.
Senator Whitehouse. : (01:29:02)
And very often law enforcement personnel are engaging with people during what they would probably look back on and see as one of the worst times of their lives, when they are upset, when they are emotional, when they’re perhaps intoxicated. And so, the conduct that law enforcement officers customarily must face is often inappropriate conduct, is it not?
Ken Cuccinelli: (01:29:29)
Erin Nealy Cox: (01:29:29)
Senator Whitehouse. : (01:29:30)
And being prepared and trained to deal with that is part of what a good law enforcement officer does, is that also correct?
Erin Nealy Cox: (01:29:40)
Ken Cuccinelli: (01:29:41)
Senator Whitehouse. : (01:29:41)
Okay. So, walk me through… In the light, Mr. Cuccinelli, of your testimony that there are protestors and there are rioters, there is peaceful protesting and there is violence and terrorism, and that the federal officers you supervise here were trained, to use your words, trained in the conduct of appropriate tactics and procedures. You and I have both seen the footage, I assume you’ve seen it a good deal more than I have given your professional responsibilities, of a tall individual wearing a gray Navy, or maybe Naval Academy sweatshirt, who is in the clip that I’ve seen standing relatively immobile, his hands are down by his sides, he’s not in any state of an aggressive or combative stance, and he is one.
Senator Whitehouse. : (01:30:37)
And around him are perhaps half a dozen maybe more off the screen officers in essentially combat gear. And one of them engages in a strike with his baton. And if my recollection of the film is correct, a second strike and then a third, and the individual who’s being struck does not react and yet the strikes keep coming. Walk me through why that standing individual was a rioter engaged in violence and terrorism, and why that conduct by that officer was appropriate.
Ken Cuccinelli: (01:31:23)
I’m not prepared to characterize Chris David that way, that is obviously under investigation, but I would not characterize [crosstalk 00:27:32].
Senator Whitehouse. : (01:31:32)
What’s under investigation?
Ken Cuccinelli: (01:31:34)
The… That interaction, that use of force. I mean, that’s a subject of an IG investigation.
Senator Whitehouse. : (01:31:41)
An IG investigation?
Ken Cuccinelli: (01:31:43)
Senator Whitehouse. : (01:31:44)
But not any other investigation?
Ken Cuccinelli: (01:31:47)
Well, I have to defer, this is a US Marshal. So we…I don’t have… I have not interviewed those folks [crosstalk 01:31:54].
Senator Whitehouse. : (01:31:54)
I can’t actually tell very well who is who from the films, because they’re all wearing similar garb and it’s often very hard to find out without being very close who they report to or what the uniform is, so forgive me if I don’t know the difference. But, Ms. Cox, could you explain how that is conduct? I mean, you’ll concede that his, Mr. David’s, conduct in that clip at least was not that of a rioter and was not violent terrorist conduct.
Erin Nealy Cox: (01:32:26)
Senator, I know that that incident in particular is under investigation by the IG as well as an internal investigation with the US Marshal Service.
Senator Whitehouse. : (01:32:35)
Erin Nealy Cox: (01:32:36)
And I don’t have any more facts about what was happening before or during that, those facts will be developed in the investigation, and I don’t want my comments to affect that at all.
Senator Whitehouse. : (01:32:46)
Yeah. It’s… It looks very much like a person who is standing very still and being as harmless as he can be, and who is alone surrounded by officers, whose garb is a sweatshirt compared to tactical gear, who has no weapon compared to pepper spray, mace, whatever they have, as well as the batons, and who takes a pretty damned hard beating, all things considered. And I think it’s episodes like that, that cause legitimate concern, particularly in light of the all-important standard that we know, as people who’ve spent time in law enforcement, members of law enforcement have to adhere to. Thank you.
Senator Cruz: (01:33:36)
Thank you, Senator Whitehouse. And I recognize y’all are constrained in terms of commenting on an active investigation, but I’ll ask a simple hypothetical. If the only facts… Whereas Senator Whitehouse suggested, if an individual were standing on a sweatshirt, engaged in no violence, standing there doing nothing, and any federal officer walked up and hit him three times with a baton for no reason whatsoever, if that’s what occurred, you would be quite comfortable saying that is an abuse of power to beat someone with a baton for no reason.
Ken Cuccinelli: (01:34:08)
Senator Cruz: (01:34:10)
And to be clear, that’s very different from, if before the clip in question, the individual engaged in an act of violence… I mean, the context in these investigations always matter.
Ken Cuccinelli: (01:34:21)
Senator Cruz: (01:34:22)
But, if the only facts are as Senator Whitehouse said, that someone was standing there and beaten for no reason, you’d be comfortable saying, that is not… Federal law enforcement officers are not allowed to beat people for no reasons.
Ken Cuccinelli: (01:34:35)
We train them exactly the opposite.
Erin Nealy Cox: (01:34:37)
And I would agree, federal law enforcement officers are not allowed to beat people.
Senator Cruz: (01:34:42)
But that’s why you have investigations because you don’t know if those are the only facts or if there is other conduct perhaps not captured on a snippet on the internet.
Ken Cuccinelli: (01:34:51)
Mr. Chairman, if I may. Look, I know, as I said earlier, a good half this committee or so, have been former attorneys general, have served in one relationship or another with law enforcement, and so I understand there to be a great deal of respect for law enforcement. I nor I assume anyone on this committee, expects them to be perfect while at the same time holding them to the kind of higher standard that Senator Whitehouse just referenced, that is all true all at the same time. And we have to continue to enforce the law while correcting whatever mistakes do arise without stopping the enforcement of the law. Stopping the enforcement of the law here would end us up without a courthouse in Portland.
Senator Cruz: (01:35:35)
Senator Blackburn, by video.
Senator Blackburn: (01:35:39)
Thank you, Mr. Chairman. And thank you all for being here and for giving us the opportunity to have this hearing. I really appreciate it. And I know that our constituents, I hear from Tennessee and every single day, about how very concerned they are. So, let me just kind of follow on with where we are right now.
Senator Blackburn: (01:36:03)
So, let me just follow on with where we are right now. Mr. Cuccinelli, let’s talk about this. While your teams are out there stopping rioters, then how do they make that turn and protect for peaceful protestors? Because they have to do each at the same time. So, how do they work? How do they handle this? How do they try to segment the crowd so that people who are peaceful are protected and rioters who are there for the purpose of violence and injury and harm and destruction, so that they are properly dealt with?
Ken Cuccinelli: (01:36:46)
So Senator, that balance is so critical to their work. I appreciate the question. It goes also to Senator Whitehouse’s question or two of them actually that professional law enforcement officers encounter people in tense situations. They’re the ones we look to, to deescalate. All of our officers are trained in deescalation techniques. I would also note for you just by way of one anecdote in the middle of these … in riots. So, I believe it was marshals had detained an individual who had assaulted a law enforcement officer and that person immediately had a seizure and was in immediate medical need. Nearby present were the CBP BORSTAR, BORTAC is their SWAT team.
Ken Cuccinelli: (01:37:38)
BORSTAR is their medical team. Immediately moved in and the BORTAC team cleared the crowd. They had to actually dynamically move the crowd away to be able to help the person who had just been assaulting their colleagues moments before and they obviously did that in partnership with the marshals and went through a series of attempts to treat this individual. Had 180 heart rate, respiration was way up and finally identified a drug to be administered to stop the seizure and save that person’s life within seconds of that same person having been attacking their fellow law enforcement officers.
Ken Cuccinelli: (01:38:23)
So yes, what Senator Whitehouse referred to happened and that investigation will go through and it should, but understand you don’t see reported all of the protective steps that your professional law enforcement officers take every day, not just as you’d suggested, Senator Blackburn to protect peaceful protesters, which they are absolutely seeking to do, but to actually care for the very people who are harming them. That ability, that nimbleness, that flexibility and strength is really a hallmark by and large of 99% plus of our officers. While we have to fix the mistakes as they arise, we cannot sacrifice the rule of law to do that. We do, do it in tandem with the protection of first amendment rights. That’s a huge part of why the larger number of officers is needed so that you can maintain peace, not simply arrest people, so those protests can continue.
Senator Blackburn: (01:39:42)
Yeah, I think that’s a very important point to make that they are protecting people who are coming peaceably to express their opinion and assemble. At the same time, they are having to deal with these rioters who were there to destroy property, to harm people. I think that speaks to the training and the professionalism that when they put that uniform on, they don’t know if it is going to be all peaceful protest or if they’re going to be the disruptors and the destroyers that show up that they’re going to have to deal with.
Senator Blackburn: (01:40:24)
So, we thank these men and women for their commitment. Ms. Cox, I wanted to ask you the DOJ task force that is looking at these extremist groups. I want to drill down specifically to these that are on the streets carrying out the destruction. We keep hearing that these attacks are very organized. They come with the lasers and the bats and the pallets of bricks. Then they carry out their destruction. The work that you all are doing, are you figuring out who is organizing this, who is in charge, who is funding it, who is putting money behind these disruptive parts?
Erin Nealy Cox: (01:41:13)
Yes, Senator. That is part of the task force and we will be looking into that. I mean, it’s obvious to anyone that looks at it, there’s some level of organization. We’ve seen also some coordination, some radio communication on the ground and some jamming of law enforcement communication. I will tell you though, that one thing that makes it incredibly hard is that we’re finding evidence that some of these rioters are using encrypted apps. I know Senator Blackburn has offered some legislation to deal with end to end encryption when law enforcement has probable cause and goes to a neutral magistrate to get access to those communications. That’s very important in child exploitation cases and drug cases and it’s going to be very important here. So, I would mention that these cases are challenging already, but we have several people that are looking into it.
Senator Blackburn: (01:42:06)
Thank you so much. Mr. Chairman, thank you for the hearing and you’ll back.
Senator Cruz: (01:42:11)
Thank you, Senator Blackburn. Senator Coons.
Senator Coons: (01:42:15)
Thank you, Chairman Cruz, Ranking member Hirono. Thank you to our witnesses. I’m sorry that I will likely miss the second panel given how long this has gone, but I joined many of my colleagues in expressing concerns about the intersection between important widespread national protests against the brutal killing of George Floyd, expressing concern about racial injustice and the ways in which the injection of federal law enforcement into Portland may have exacerbated rather than reduced incidents of violence. So, let me just be clear about something that seems to have been repeatedly covered but is worth covering again. There is no one here condoning or encouraging or supporting violence by either protesters or law enforcement, if unlawful and unnecessary.
Senator Coons: (01:43:09)
I hope that Ranking Member Hirono’s comments to that effect were heard loud and clear. I think my colleague, the Senator from Illinois, Senator Durbin expressed clearly, and I’ll join him in that, that we need to hold accountable perpetrators of violence, those who have caused any injury or harm to law enforcement. Our law enforcement officers have a difficult and demanding job. You’re right Mr. Cuccinelli, virtually all of us have worked with or alongside law enforcement, but we also have to have policing resources deployed in a transparent, professional and appropriate way.
Senator Coons: (01:43:49)
There’s a lot of concerns expressed pointedly by both US senators from the state of Oregon at the outset of this hearing about the conduct of federal law enforcement in Portland and the relationship and connection with state and local elected officials. So, let me just briefly ask a few questions about that if I can. Mr. Cuccinelli, an internal DHS memo reportedly warned that CVP agents and others deployed to Portland were not specifically trained for responding to mass demonstrations, something that requires specific training and that internal memo called for additional training for deployments. Have all deployed federal agents received appropriate training on responding to demonstrations?
Ken Cuccinelli: (01:44:36)
Yes, there are differences between how FPS is trained versus [inaudible 01:44:42] both HSI and ERO and SEVP, but they have all had-
Senator Cruz: (01:44:48)
For clarity, can you detail what those acronyms are for?
Senator Coons: (01:44:52)
That’s a lot of acronyms. Thank you, Mr. Chair.
Ken Cuccinelli: (01:44:53)
Sorry. I’ve settled into DHS very thoroughly. So, ICE course you know, and they have the removal officer side of the house, and then they have the Homeland Security Investigation side of the house. They each have their own SWAT teams, ERO handles prisons. I mean, we have prisons there. So, they train … they’ll have similar training to Bureau of Prisons.
Senator Coons: (01:45:18)
Can I suggest that a mass demonstration of peaceful protesters is different from a riot in a prison?
Ken Cuccinelli: (01:45:27)
Yes, absolutely. The training they get, however, is how to contend with on a dynamic basis crowd dynamics in a violent environment, how to move the crowd for a short duration. Whereas FPS has training about defending with, again, dealing with a crowd, a facility, which is what they’re used to doing.
Senator Coons: (01:45:50)
Can you just tell me roughly, Mr. Cucinelli, how many hours of crowd control training these different federal forces receive before being deployed into Portland?
Ken Cuccinelli: (01:46:00)
So, that I don’t know Senator off the top of my head, but I’m happy to get you that and including by department.
Senator Coons: (01:46:07)
Let me move on. Thank you. The Pentagon raised concerns about DHS’s use of military camouflage in Portland saying “We want a system where people can tell the difference between law enforcement and the armed forces”. What purpose did it serve for DHS to use military camouflage in a crowd control setting?
Ken Cuccinelli: (01:46:28)
So Senator, that wasn’t chosen because there was a crowds controlled setting, that was CBP officers whose normal duty stations are along the border and they came with what they had. Now, we have moved as quickly as we could to procure for them what you think of as the solid green CBP uniform much like you see the solid blue for FPS.
Senator Coons: (01:46:53)
Is that partly to help with providing some visual indication that this is law enforcement, not militia?
Ken Cuccinelli: (01:47:01)
That is already done. They have police on front and back. The universal declaration of law enforcement and the specific agencies are identified on each of their shoulders, along with an individual identifier, but not their name because they’ve been being doxed as I’m sure you [crosstalk 01:47:18]
Senator Coons: (01:47:18)
So, is every officer identified such that they can be tied to a specific federal law enforcement agency?
Ken Cuccinelli: (01:47:26)
Not only law enforcement agency, but that that particular individual can be identified by what amounts to a badge number on their person that is displayed for the public to see.
Senator Coons: (01:47:36)
One of the things that was highlighted by both senators was reports of agents using aggressive tactics to respond to protesters in Portland. I think my colleague from Rhode Island was focusing on a specific such incident. There was one where a filmmaker was shot in the face with pepper balls, a woman was shot in the head with a paint bullet, maced at point blank range. Some protesters report they were retreating or given a warning. Should federal officers aim impact munitions at the head or use mace or pepper spray or rubber bullets when it’s clear protesters are attempting to comply with their orders?
Ken Cuccinelli: (01:48:21)
Well, you’ve listed a wide array of devices [crosstalk 01:48:26]
Senator Coons: (01:48:25)
When protesters are attempting to comply with police orders, should they nonetheless be the subject of tear gas or [crosstalk 01:48:32]?
Ken Cuccinelli: (01:48:32)
The entire group that is being contended with is in compliance, then I would agree with you. One of the challenges that we face is when one, two, more people are not compliant, where you have differences in close proximity to one another, but something like a mace for instance or pepper spray is a very short range tool and is for those sorts of circumstances.
Senator Coons: (01:49:03)
Could you make the rules of engagement that DHS is using or will continue to use available to the committee? You’ve both mentioned, there is an ongoing inspector general investigation into the tactics that were used in Portland. Will you commit to sitting for an interview and producing relevant documents if the inspector general’s office requested of you?
Ken Cuccinelli: (01:49:26)
Yes. We frankly look forward to cooperating with that investigation. We want that cleared up and concluded as quickly as I’m sure you do, Senator.
Senator Coons: (01:49:33)
Thank you. Thank you, Mr. Chairman.
Senator Cruz: (01:49:35)
Thank you, Senator Coons. Senator Blumenthal.
Senator Graham: (01:49:40)
Thanks, Mr. Chairman. Thank you both for being here today and for your service. Mr. Cuccinelli, I’d like to ask you a few questions about the Office of Intelligence and Analysis specifically. I’m sure you’re aware that last month it was reported that the Office of Intelligence and Analysis compiled and distributed intelligence reports about two American journalists who published documents about DHS operations in Portland. There also been reports as you’re aware that OIA collected information from the electronic communications of protestors in Portland. Would you agree with me that these kinds of activities are inappropriate, maybe illegal under the first and fourth amendment?
Ken Cuccinelli: (01:50:33)
We certainly do not collect on journalists. The publication of journalists raw material with their identifiers was quickly addressed by the Acting Secretary Wolf. So, that was [crosstalk 01:50:50]
Senator Graham: (01:50:50)
He removed Brian Murphy from his position and started an investigation. So, I just want to make clear, you would agree that these kinds of activities are inappropriate?
Ken Cuccinelli: (01:51:00)
It’s the second part of your question that I’m not so readily agreeable to, Senator. We do look at open source material to see what people themselves declare they intend to do. So to the extent, the second part of your question would cover that, then I might disagree with you. However, as it relates to journalists, I most certainly do as does the secretary as he’s stated very emphatically last week.
Senator Graham: (01:51:25)
Well, let me ask you about a report that appeared in Politico on Sunday, that earlier this year, you signed off on a change in DHS procedures that in effect limited the role of the Office of Civil Rights and Civil Liberties, which in effect reviewed any distribution of material by the OIA before it occurred. You evidently eliminated that review procedure, so that it’s no longer required. Is that correct?
Ken Cuccinelli: (01:51:59)
No, that’s not a correct characterization. I did sign a memo addressing the interaction between CRCL and I&A, but it is not with respect to all their products. There are two types of products, raw intelligence, which is the sort of thing you were referring to in your earlier question and what we would call finished intelligence products where a variety of different sources are gathered, analysis is done. Think of it like a formal report.
Ken Cuccinelli: (01:52:25)
Those CRCL does review. What my memo did was change the … when there is a difference of opinion between the CRCL person and the I&A undersecretary about whether a particular final product is appropriate to continue forward and be published to the intelligence community, prior to my memo, that would have been appealed to me, the deputy secretary. I took myself out of that loop and left the undersecretary for intelligence and analysis as the final decision maker on those instances. I will tell you in the four months in my office before signing that memo, I never had one come up to me.
Senator Graham: (01:53:10)
What was the purpose of removing or changing the procedure?
Ken Cuccinelli: (01:53:14)
The purpose was to contain it all within the I&A undersecretariat. The belief at that time is that as ordinarily senate confirmed position, and at that time, Dave Glawe was there, Senate confirmed. He was there for three years. He only recently left, and so that he would have to weigh those considerations in making that decision.
Senator Graham: (01:53:43)
Well, the House Intelligence Committee evidently has begun an investigation into a number of these issues, specifically the collection and surveillance issues that we’ve discussed. Will you commit to cooperating with that investigation?
Ken Cuccinelli: (01:53:59)
Yes, absolutely, Senator.
Senator Graham: (01:54:01)
Thank you. I want to ask a question about, if I may, it’s a little bit off topic, USCIS funding.
Ken Cuccinelli: (01:54:09)
Senator Graham: (01:54:11)
Thank you for answering these questions. I understand furloughs have been announced, but for this fiscal year, USCIS has a surplus. Is there a reason why these furloughs have to go ahead as of the end of August? I just want to state how strongly and passionately I feel about the great work that the men and women of the USCIS do. I hope you agree, in enabling people to become citizens lawfully. I go to these ceremonies all the time. I urge my colleagues to do so as well. If you’re ever feeling down or depressed about America, go to a naturalization ceremony. So if there’s a surplus, can you commit that these employees will be kept on the job?
Ken Cuccinelli: (01:55:05)
So Senator, we don’t have what I would call a surplus. There’s money in the bank, but it’s running out. Because USCIS is 97% fee funded, it has to have as a matter of business planning about three months worth of operating capital at the start of the fiscal year to be carried over to be able to essentially survive and pay everyone to the end of the calendar year, the end of the first quarter of the fiscal year. We are not on a path to be able to do that, which is why USCIS has come to you all and asked for a borrowing authority or to cover that gap that’s resulted because of the COVID drop in fees.
Senator Graham: (01:55:54)
Thank you for answering my questions. I have more. My time has expired. I’ve talked to Deputy Director Edlow about this issue. I’d like to get some of the answers he promised me in writing, and I’ll repeat them to you. I’m going to be sending out a letter later in the week. So, thank you.
Ken Cuccinelli: (01:56:09)
Yes. I couldn’t urge your colleagues more about the naturalization ceremonies. They never ceased to stir your patriotic soul. It’s just an amazing experience to go through especially those of us born here blessed to be Americans our whole lives. It’s a reminder of what we shouldn’t take for granted. The fact that we’re even talking here today about a subject like this as Senator Graham referred to historically. So, thank you.
Senator Graham: (01:56:39)
Senator Cruz: (01:56:40)
Thank you, Senator Blumenthal. Let me thank both of our witnesses, Ms. Cox, Mr. Cucinelli for your testimony. I think this has been helpful and productive. With that, we’ll excuse the first panel and call forth the second panel and move into the second panel of the hearing.
Senator Blackburn: (01:56:55)
Speaker 9: (01:56:55)
Thank you, Mr. Chair.
[inaudible 01:57:38] (silence)
Senator Cruz: (01:58:55)
I’m told the witnesses are on their way, so we’ll proceed as soon as they get here. (silence) All right. The hearing will reconvene now that our witnesses have arrived. We have five witnesses on the second panel, three in person and two testifying remotely. The first witness is Mr. Andy Ngo, who is an independent journalist and photographer who has provided Americans a window into the protests that have racked Portland and Seattle and the Pacific Northwest more broadly in the past several years. Mr. Ngo is the editor at large at The Post Millennial and his written work has been published in the Wall Street Journal, the New York Post, RealClearPolitics and Fox News. Millions online have viewed his videos covering antifa and related protest. Mr. Ngo is a graduate of the University of California at Los Angeles and Portland State University.
Senator Cruz: (02:04:12)
The second witness is Mr. Kyle Shideler. Mr. Shideler is the director and senior analyst for Homeland Security in counterterrorism at the Center for Security Policy. In that role, he researches and analyzes domestic threats with an emphasis on doctrines that fuel terrorism. Mr. Shideler’s writing has appeared in the Federalist, The Hill, foxnews.com and the Claremont Review of Books. He is a graduate of Boston University and was a Lincoln fellow at the Claremont Institute.
Senator Cruz: (02:04:44)
Our next witness is Professor Jonathan Turley. Professor Turley is an attorney, a columnist, and currently the Shapiro Chair for Public Interest Law at the George Washington University Law School. Professor Turley is nationally recognized for a scholarship in a diverse range of legal areas and has published dozens of academic articles in the nation’s leading law journals. As a practicing attorney, Professor Turley has litigated several high profile disputes throughout his legal career. He earned his JD from the Northwestern Pritzker School of Law and his BA from the University of Chicago.
Senator Cruz: (02:05:20)
Our next witness is Mr. Michael German. Mr. German is a fellow with the Brennan Center for Justice’s Liberty and national security program. A former special agent with the Federal Bureau of Investigation, his work focuses on law enforcement and intelligence oversight and reform. Prior joining the Brennan Center, Mr. German served as the policy counsel for National Security and Privacy for the American Civil Liberty Union’s Washington Legislative Office.
Senator Cruz: (02:05:53)
Our final witness is Ms. Nkenge Harmon Johnson. Ms. Harmon Johnson currently works as the president and CEO of the Urban League of Portland. Immediately prior to her current position, Ms. Harmon Johnson served in the office of the governor of Oregon and the office of the United States trade representatives. Ms. Harmon Johnson is also a former staff member for US Representative Sheila Jackson Lee from the great state of Texas and for US Senator Debbie Stabenow.
Senator Cruz: (02:06:23)
I would ask each of the witnesses here in person to please stand and be sworn in. Raise your right hand, please. Do you swear or affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?
Senator Cruz: (02:06:43)
Now, the rules provide that each of the long distance witnesses must be separately sworn in. So Ms. Harmon Johnson, do you swear or affirm that the testimony you’re about to give before this committee will be the truth, the whole truth and nothing but the truth, so help you God?
Nkenge Harmon Johnson: (02:06:59)
Senator Cruz, I do.
Senator Cruz: (02:07:01)
Mr. German, do you swear or affirm that the testimony you’re about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?
Michael German: (02:07:09)
Senator Cruz, I do.
Senator Cruz: (02:07:11)
Very good. We will start with the prepared testimony. Mr. Ngo, you’re recognized.
Andrew Ngo: (02:07:20)
[inaudible 02:07:20] and members of the committee.
Senator Cruz: (02:07:24)
Please make sure you’ve turned your microphone on, which is the switch right in the center of that microphone on the base.
Andrew Ngo: (02:07:32)
Thank you Chairman Cruz, Ranking member Hirono and members of the committee. Antifa is not a myth. I have been reporting on its activities since 2016. Its threats to my family and me have proved all too real. As any good journalist knows, the most important stories are often those not being told. This story is not being told. The American public knows little about this violent insurrectionary group-
Andrew Ngo: (02:08:03)
… public knows little about this violent insurrectionary group and its radical ideology. I made Antifa my beat and that makes me a target. Its followers regard my reporting as a threat to their mission so they use violence and intimidation to try to frighten me into silence. First, they tried to discredit me, falsely branding me as a white supremacist. I happen to be gay and the son of Vietnamese refugees, so that was surprising. Next, they threatened to kill me and hurt my family. They almost succeeded last year when they surrounded me in the middle of downtown Portland. I was beaten so badly that I was hospitalized for a subarachnoid hemorrhage. I still suffer from the effects of that injury. To this day, no one has been arrested. I’m apprehensive about speaking to Congress today given that I’m a target, but I’m more afraid of the consequences of remaining silent.
Andrew Ngo: (02:09:04)
Unless we take action, what is happening in Portland today will soon be happening in cities across the country. What we’ve witnessed for more than two months in Portland are almost daily violent protests and riots led by Antifa. Even when they aren’t starting fires, using explosives, and trying to maim officers, they leave threatening messages such as decapitated pig heads outside the courthouse. Even after federal agencies agreed to pull back the visible presence starting July 30th, Antifa militants have attacked the Portland police building in a residential neighborhood on multiple occasions. Unfortunately, too many in the media have chosen to ignore or downplay this extremism masquerading as racial justice.
Andrew Ngo: (02:09:57)
In Portland, the violence has been organized and led by the local chapter of the Youth Liberation Front, a shadowy Antifa organization with secret membership. The Youth Liberation Front has cells across the US organized on social media sites like Twitter. They openly advocate for violent uprisings in Portland and elsewhere. To give one example, on July 25th, they called for national calls to action. Their followers obliged. We witnessed weekend street violence in Seattle, Oakland, Austin, Atlanta, Richmond, among other cities. There were multiple shootings, dozens of officer injuries, and even a homicide.
Andrew Ngo: (02:10:39)
I have worked undercover for months in Portland and other cities. And I’ve seen with my own eyes how hundreds of so-called protesters work together to carry out acts of organized criminality against government and civilians. Both violent and nonviolent participants play a role. For example, Antifa, by their own admission, depend on mass numbers of peaceful protesters to act as human shields. Those privy to the organizational workings are divided into units. One to monitor police movement, one for street medics, one for vandals and arsonists, and so on. They coordinate on encrypted chat applications like Signal because they are extremely difficult for law enforcement to monitor.
Andrew Ngo: (02:11:22)
Antifa has mastered the art to making its violence appear innocuous. For example, projectiles that look like water balloons can be filled with chemicals, small slingshots can be used to project rocks, glass, and ball-bearings into police lines. Umbrella tips can be fastened with discrete pocket knives, powerful handheld lasers can cause serious damage to the eyes. Antifa and its allies have made rioting an art form in Portland. They have access to rich stream of cash flowing from platforms like GoFundMe, Venmo and Cash app. Any conspirator arrested in Portland is instantly bailed out and ready for the next night of violent protests.
Andrew Ngo: (02:12:03)
I come to you today with a message for senators of both parties. Antifa’s goal is not only to abolish the criminal justice system, it is to bring down the republic itself. “Burn it down,” they say. But don’t take my word for it. Go read their literature, listen to their chants, and look at their graffiti messages. Portland is a canary in the coal mine for America. Look to my city to see what happens when a group like Antifa is left unchecked. Thank you.
Senator Cruz: (02:12:29)
Thank you, Mr. Ngo. Professor Turley.
Professor Jonathan Turley: (02:12:33)
Thank you, Chairman Cruz, ranking member Hirano. It’s an honor to appear before you today to discuss the growing threat of free speech in the United States from an array of extremist groups. The protests in the aftermath of the killing of George Floyd have served to focus attention on the transcendent issue of racial discrimination. I think we all agree we can not let this moment pass for a national dialogue on racial justice. That dialogue, however, is increasingly turning into a diatribe on our campuses, on our streets, even in our media. We’re losing the opportunity to reach consensus because of rising violence and intolerance for opposing views. If we are to come together as a nation, we have to be able to speak to one another freely and without fear. I welcome this hearing because I fear that we are at a crossroads in this country on free speech. We’re witnessing unprecedented erosion of this defining right in our democracy. The protests around this country involve a wide array of groups on the political spectrum from both the far right and the far left. I discussed that in my written testimony. However, Antifa is arguably the most successful anti-speech movement of this generation, using physical threats and intimidation to silence those with dissenting views. It is all part of achieving what Antifa calls no platforming, or denying people with opposing views the ability to be heard. Recently, the alleged Antifa ringleader, who led efforts to topple statues in Washington, DC, proclaimed the movement is winning. He’s right. They are winning. They’re winning because universities are now effectively blocking conservative and opposing speakers. They’re winning because the media and politicians downplay such violence. They’re winning because local authorities are ordering police to stand down or prosecutors to drop charges. And they’re winning because free speech is being treated as a destabilizing or threatening factor in our schools and society.
Professor Jonathan Turley: (02:14:53)
In my written testimony, I explore ways for Congress to reinforce free speech through a mix of measures from federal enforcement to federal funding. It is by no means an easy task because government enforcement itself can chill free speech. However, threats against free speech have now reached a critical mass in our schools and on our streets. We can either act or we can remain passive pedestrians to what inevitably comes next. House Judiciary Chairman Jerry Nadler recently said that accounts of Antifa violence in places like Portland are a myth. Antifa is no myth. The decentralized organization and fluid communications used by Antifa groups give superficial support to such denials. Antifa trains members to remain anonymous. It’s all here in the Antifa handbook, which explains the strategy of anonymity by mass to allow the offensive side of block tactics to flourish. Antifa was expressly founded as a movement at war with free speech, defining the right itself as a tool of oppression. That is also clearly stated in this handbook.
Professor Jonathan Turley: (02:16:08)
The signature of the group is a self righteous, rage fueled violence that parallels fascistic groups that they claim to oppose, telling leading Antifa handbook begins with the quote, “Fascism is not to be debated, it is to be destroyed.” And fascism is a term that morphs into a wide variety of targets deemed unacceptable by Antifa, from capitalism to patriarchy to police. Antifa bears strong resemblance to groups that emerged in earlier periods of attacks on free speech like the Red Scare. Simply replacing anti-communism with anti-fascism does not materially change the same anti-free speech purpose of these movements.
Professor Jonathan Turley: (02:16:52)
The greatest threat to free speech in this country remains the original threat, silence. Silence kills free speech. It is the silence of professors who watch as their colleagues are threatened, harassed, or fired for voicing dissenting views. It’s the silence of students who watch their fellow students as they are attacked for voicing their own beliefs. It is the silence of reporters who watch as their colleagues are fired or forced to retire for writing opposing views. Most importantly, it is the silence of politicians who refuse to protect the exercise of free speech.
Professor Jonathan Turley: (02:17:28)
Let me end by saying that during the Red Scare, Attorney General Charles Gregory said this about dissenters, “May God have mercy on them for they need not to expect none from an outraged people in an avenging government.” The avenging elements in our society are now found in groups like Antifa. And a growing number of writers, academics, and others who are embracing orthodoxy over diversity of thought. Antifa and related groups thrive through intimidation and they prevail through inaction. All that is required for free speech to die in America is for America to be silent. Thank you very much for allowing me to speak today.
Senator Cruz: (02:18:10)
Thank you. Our next witness will be via video, Mr. German.
Mr. German: (02:18:15)
Chairman Cruz, Ranking Member Hirano, members of the subcommittee, thank you for inviting me to testify. We’re all concerned about protest violence, but framing the issue as a problem with anarchist violence only spreads misinformation. It puts law enforcement officers and the communities they serve at greater risk. It also distracts from the police accountability and anti-discrimination issues that millions of Black Lives Matter protesters continue to come into the streets to support. Protests are disruptive by nature as their purpose is to draw attention to overlooked issues. The late representative John Lewis called this getting into good trouble, recognizing that civil disobedience, refusing to comply with unjust laws or police orders, is an honorable and often necessary method to drive positive social change. For officials responsible for defending law and order, however, such disruption presents a challenge.
Mr. German: (02:19:11)
The first amendment rights of speech, assembly, belief, petition, and the press are essential to a vibrant democracy. But because law enforcement officers are defenders of establishment powers, they have a natural tendency to view protest against government policies, and particularly against police practices, as security threats. They often mistake civil disobedience for anarchy and bring indiscriminant levels of force to restore their idea of order. Studies of civil disturbances in the 1960s and ’70s showed that aggressive law enforcement tactics were often a determinating factor in instigating, escalating, and spreading violence. When law enforcement officials become confrontational at protests, it starts a cycle of escalating violence.
Mr. German: (02:19:58)
So if the goal is to make the protest less violent, scapegoating ill defined into morphous enemies, whether we call them outside agitators, Antifa, violent anarchists isn’t the solution. Policymakers should instead embrace objective research regarding protest policing tactics and reject the escalating violence model that many law enforcement agencies are currently employing. Over 800 incidents of police violence against protestors captured on video since the police killing of George Floyd show police using tear gas, pepper spray, batons, and less lethal munitions indiscriminately, often targeting nonviolent protesters as well as journalists, legal observers, bystanders, and elected officials. More than 60 have suffered serious head injuries from law enforcement’s improper use of so-called less lethal munitions, including fractured skulls, brain damage, and loss of vision. The vast majority of the millions of people that have participated in the Black Lives Matter protests have not engaged in acts posing a threat of death or serious bodily injury.
Mr. German: (02:21:05)
People of varying ideologies have attended these protests, including those supporting Black Lives Matter and those opposing it. Armed white supremacists and far right militants have made dozens of appearances, some claiming to support law enforcement and others to defend protesters from police. There are also people with no political agenda, mostly peaceful, but some not, who come to the protest. A relatively small number have engaged in serious violence and it is important that law enforcement identify these assailants and address their crimes. But attributing violent acts to a particular group or movement without evidence is dangerous as it misleads law enforcement about actual threats and spreads unwarranted fear.
Mr. German: (02:21:49)
Disinformation about Antifa spread by white supremacist trolls has diverted law enforcement resources and encouraged armed vigilante groups to patrol streets in search of phantom enemies. Media analyses of protest arrests do not support the allegation that antifascists or violent anarchists are playing a significant role in the protest violence. The Trump administration has amplified this misinformation, however, blaming Antifa and threatening to designate it as a domestic terrorist organization. Antifa is not an organization, however, and there are no reported US homicides resulting from anti-fascist actions for at least the last 25 years. So it would not be an appropriate target for such a designation.
Mr. German: (02:22:32)
Misinformation in law enforcement intelligence doesn’t just divert investigative resources, it potentially blinds them to real threats. Two police officers have been killed and several injured by far right Boogaloo adherents trying to trigger a civil war. Three protestors have been killed in vehicle attacks. Law enforcement should focus on protecting against these deadly threats, not civil disobedience. The good news is that we already have an effective blueprint for reducing violence at protests. Policies requiring police to abandon the escalating force model and use force only when necessary to stop people from engaging in activities that imminently threaten serious bodily harm have worked in the past to reduce violence at protests. Thanks again for inviting me and I look forward to your questions.
Senator Cruz: (02:23:23)
Thank you. Then the next witness, again remotely, will be Ms. Harmon Johnson.
Erin Nealy Cox: (02:23:32)
Good afternoon, Chairman Cruz, ranking member Hirono, and members of the subcommittee. Can you hear me well enough?
Senator Cruz: (02:23:38)
Yes, thank you.
Erin Nealy Cox: (02:23:40)
Thank you, Senator. I appreciate you for inviting me to testify today. I was also a former staffer for Senate Majority Leader, Harry Reid. I am Nkenge Harmon Johnson, an Oregonian, an American, and a lawyer. My mother, father, and their parents were born in this country, as were my great grandparents and going back generations. My family were kidnapped Africans, an enslaved people forced to work for no compensation. Later my family members were steel workers, post office letter carriers, law enforcement officers, military veterans, homemakers, and artists. Regardless of our economic or social status, we all share something in common beyond our family ties. None of us has yet to enjoy the full rights due to American citizens under the United States Constitution.
Erin Nealy Cox: (02:24:26)
In our fight for civil rights, we have alternatingly been ignored and targeted by local and federal agencies. So this is nothing new. Nevertheless, we persevered in spite of it all because we are indeed Americans. Now we take to the streets to declare that our lives matter and we’ve been met by dangerous federal forces sent from Washington, DC to silence the movement for Black lives. It is difficult to see this government response so inappropriately with such violent and expensive force at a time when those resources should be spent to build justice in our community and staunch the deadly growing COVID-19 pandemic. In recent years in Portland, month after month, white supremacists marched in our city. They even bussed in thugs and would be Nazis to harass Portlanders. Some were promoted by one of today’s witnesses for the majority. Black and brown Oregonians shared tips and we warned one another to avoid downtown because those ridiculous, but demonstrably deadly white supremacists were at it again in our community.
Erin Nealy Cox: (02:25:27)
In spite of Portland’s disgust, our local police actually assisted them. Even though at times, they were armed with guns and weapons as they rallied near the federal building in downtown Portland. Local police regularly chatted with them via text message. So is it any surprise, Senators, that the same police would declare Black protestors and their supporters as rioters? They are not on the side of Black Portlanders and they do not stand for the justice that we seek. Also note federal officials did not lift a finger to deter or quiet earlier white supremacists crowds. Federal officials, other than Oregon’s own congressional delegation, did not state concern about dangerous men rallying near the federal building that we’ve heard so much about today. Even after one of those white supremacists attacked a Black woman and two Black girls and murdered two white men and attempted to murder a third, who stopped him from harming those girls. I do not recall this body holding hearings to listen to the hurt and harm that those regressives caused. But here we are today.
Erin Nealy Cox: (02:26:31)
What’s different? Now, the federal government is involved because the current administration has taken a side, the side of the status quo and continued disenfranchisement of African-Americans. Contrast those events with the past two months in Portland. Following the police’s murdering George Floyd, Breonna Taylor, Kendra James, and Jason Washington, people in my community dared to stand up for Black lives. We gathered together to insist that the time is now for America to be as good as its promised to us all. That black lives matter must be a bold and unexpected statement for some officials in the beltway. Either that, or they enjoy the opportunity to create political theater for its own purpose. That is why they sent who we now know are federal police to Oregon.
Erin Nealy Cox: (02:27:13)
So after weeks of demonstrations that had nothing to do with the federal building or the federal government really, but were focused on local issues in our community, the feds inserted themselves. The porters of the movement for Black lives were met with batons, burning hot munitions, hard rubber bullets, and chemical gasses that federal employees fired into the nightly crowds, as you’ve heard from other speakers. Worse, however, federal officials who took oath to defend this country, its citizens, and the Constitution demonstrated to Oregon and to the world they were, when there’s a political or social movement they do not approve, some politicians may deploy border patrol and other feds to shut it down. It is fascist behavior the likes of which this country has fought against in foreign wars. I’m an antiracist and I am an antifascist. All Americans should be. Fortunately, those misguided federal officials and their police also showed us something else. When confronted by organized resolute protesters who greeted their violence with bubbles, slide shows, barbecue cookouts, and unity, the federal forces floundered. Federal police went too far for days, perhaps thinking that they could drive the people of Oregon back into our homes out of fear. Instead, the opposite occurred. Thousands more Oregonians gathered in Portland to speak, to demand, to holler, and to sing that Black lives matter. Do you know about Portlander Mack, a local organizer? He was using his mobile phone when suddenly he was hit in the forehead with a paint projectile and concussed. Mack was standing 50 yards away from the federal building when he was shot. Fortunately, he was wearing a bicycle helmet.
Erin Nealy Cox: (02:28:42)
I’ll briefly tell you about Kristen before I close. She was sought by federal police. She said she heard a boom and then felt the munition smash into her forehead. Kristen stated, “I was inspired to use not only my voice, but also my body to defend the first amendment right to protest and send a clear message that Black lives are worth fighting for.” She said that when she was hit, no announcement whatsoever came from the feds. They were completely silent as far as she could tell. It is time for all of us to get into good trouble, necessary trouble. The honorable John Lewis called upon us to do so and I am answering the call as are many thousands of Oregonians and people across this country until justice claims its victory and our nation’s Constitution is made real to all of us in this country. I look forward to answering your questions.
Senator Cruz: (02:29:30)
Thank you. Mr. Shideler, your testimony now.
Kyle Shideler: (02:29:35)
It’s a great honor to testify today before the Senate judiciary committee subcommittee on the Constitution. The federal government has a fundamental responsibility to protect the civil rights of all of its citizens. And paramount among these rights are freedom of speech and assembly. I hope my testimony today will correct some fundamental misunderstandings regarding the nature of the movement known as Antifa, which seeks to deprive Americans of these rights. Antifa is an anarcho-communist movement whose goal is to use physical violence and intimidation to terrorize American citizens, to disengage them from the political process. While they do this under the cover of anti-fascism, the reality is that Antifa defines the entire American political system, regardless of party affiliation, as fascism. Antifa developed out of the communist urban guerilla and terrorist movements of the late 1960s and early 1970s such as The Weather Underground and Germany’s Red Army Faction. As a result, it possesses operational experience developed over more than half a century of radical left-wing organizing and political violence.
Kyle Shideler: (02:30:36)
Law enforcement has largely failed to understand the nature of this threat. Seeking a rigidly hierarchical organization, some analysts have even concluded against all evidence that Antifa does not exist in any meaningful sense. The reality is that Antifa demonstrates an elaborate but nonhierarchical structure. The most basic structure of Antifa is the affinity group, which is described by the pro-Antifa website CrimethInc as the essential building block of anarchist organization. It’s a small cell of individuals who are known to one another who agree to come together to participate in direct actions. Those include sabotage, vandalism, and premeditated assault. Affinity groups then come together to form clusters. And a large cluster may organize actions using what are called spokes counsels. Antifa chapters form at the city level and join regional networks such as Torch Antifa, the largest Antifa network in the United States, as well as national and international networks.
Kyle Shideler: (02:31:34)
Antifa websites describe in detail how to organize affinity groups and chapters, how to vet potential members, prevent infiltration, and securely communicate. Such websites play a key role in spreading propaganda, distributing new tactics, techniques, and procedures, and raising calls to action. One example, the Antifa website It’s Going Down distributes a forming an Antifa group manual. Particularly noteworthy, the manual describes Antifa chapters as incurring obligations to support regional and national Antifa networks who then in turn make greater resources available to chapters. This support extends internationally with many American Antifa groups linked to the International Antifa Defense Fund, which has provided financial support to Antifa in 22 different countries. While overall dollar amounts are low, the International Antifa Defense Fund does represent clear evidence of organizational activity across national borders. Antifa relies heavily on support organizations such as the Democratic Socialists of America, the International Workers of the World, Refuse Fascism, and the National Lawyers Guild, and in coordination with other protest organizations. It is not uncommon for Antifa to require outside groups to sign what are essentially memorandums of understanding to ensure that allies agree not to interfere with criminal activity in exchange for protection.
Kyle Shideler: (02:32:56)
In terms of financing, remember that terrorism is a low cost form of warfare. The entire 9/11 plot costs less than half a million dollars. And even by Al-Qaeda standards, Antifa’s low intensity violence is extremely cost efficient. They use a variety of methods to fundraise, including crowdfunding technology. The International Antifa Defense Fund has so far raised more than $53,000 via the crowdfunding website Fundraiser. While some of these crowdfunding companies are officially content neutral, others are explicitly ideological and only facilitate Antifa and similar projects. Antifa chapters also raise funds through event admission fees, cash donations, and by selling merchandise at anarchist book fairs. And many of their needs are provided free of charge by their allied organizations. These provide armed and unarmed training for Antifa members at no or low cost. And support organizations cover most major expenses such as transportation, bail, and lawyers’ fees.
Kyle Shideler: (02:33:51)
Other organizations such as riseup.net provide chapters with free access to secure servers, communications tools, and computer applications. Far from being nonexistent, Antifa possesses as elaborate a structure as any criminal conspiracy or terror group. Claiming that Antifa is too disorganized to understand should not be an acceptable excuse for law enforcement, federal, state, or local, to tolerate Antifa’s private street war to overthrow the Constitution. Like their predecessors in The Weather Underground and Red Army Faction, Antifa will continue to escalate its behavior unless it is checked. There will be more attacks, and rioting techniques will continue to grow in capability and in sophistication, their cadres will grow, and there will be more autonomous zones for increased periods of time. And more Americans of all political persuasions will be terrorized. Thank you.
Senator Cruz: (02:34:41)
Thank you to each of the witnesses for your testimony. Mr. Ngo, let me start with you. Is Antifa violent? And what specific acts of violence have you personally witnessed?
Andrew Ngo: (02:34:55)
Yes, they’re violent. And I’ll start with what I witnessed was what happened to me on the 29th of June, 2019. That was a ostensibly anti-racist protest that was organized in downtown Portland. It involved Rose City Antifa, which is an organization. It involved the local chapter of the Democratic Socialists of America. And I came there with my GoPro and my iPhone to record. And I was beaten by a mob, people who used brass knuckles that were hidden under gloves punching me repeatedly in the front, the top, and the back of my head. And then when I thought they were done, that was just the half of it. Next came all those milkshakes and other unknown liquids that were hurled at my face. And I know milkshakes can sound kind of cute as a protest, but really, when they’re thrown at force in your face, it’s a viscous liquid, you can’t see where to go. So that was one of my first experiences with the violence directly. Since then, I’ve seen numerous times.
Senator Cruz: (02:36:07)
And is it right that you received significant injuries from that?
Andrew Ngo: (02:36:12)
Yes, a brain bleed from that.
Senator Cruz: (02:36:16)
Please continue, I’m sorry.
Andrew Ngo: (02:36:17)
Oh. And I wasn’t the only victim that day, there were seven other people who were hospitalized. There was only one conviction related to another person who was assaulted, beaten on the head with a brick and a baton and other weapons. So Portland is the epicenter. It’s been going on since 2016, really, in response to the surprise election win of Trump. And what I see happening there is the local politicians have been sort of nurturing and allowing this extremism to go on. And that’s why it’s in the predicament that it’s in now where there’s over two months of violent protests.
Andrew Ngo: (02:36:56)
And I see all these headlines talking about how things are peaceful now because the federal authorities are less visible. That’s inaccurate, that’s a falsehood. Yesterday and the day before, you know where the attacks happened? Instead of the federal court downtown, Antifa black block militant stuff tried a new tactic, they attacked the southeast precinct in southeast Portland. So this problem is not going away, it’s continuing. And hopefully my testimony here to Congress shows that I don’t come with partisan message. If you read their literature, they’re very clear in calling for the abolishment of the US.
Senator Cruz: (02:37:39)
Professor Turley, you testified that Antifa is profoundly anti-speech and violence. Can you elaborate on that please?
Professor Jonathan Turley: (02:37:48)
Yes. If you go through the Antifa handbook and look at their literature, it’s quite express. As stated in the handbook, they reject the premise of what they call a classical liberal view of free speech. Specifically, they object to statements like I may disagree with what you have to say, but I would give my life to defend it. They reject that. They believe that free speech itself is a tool of oppression. And that has been the message on campuses. What I thought was disturbing about these statements that Antifa is a myth is that many of us on campus have been dealing with Antifa for years and Antifa is winning. I mean, there is a tremendous movement, an anti-free speech movement in the United States.
Professor Jonathan Turley: (02:38:41)
My testimony doesn’t really go to these protests. I think that both the far right and far left are doing bad things in these protests. Antifa members have been arrested in these protests. Antifa groups like Rose City Antifa have been leading some of these efforts. But my greater concern, and the one that I would hope that members would look at, is this anti-free speech movement that Antifa is part of. I’ve been teaching for 30 years. I have never seen the level of fear and intimidation on campuses that we see today. Faculty are afraid to speak out about issues. We can’t have a dialogue about the important issues occurring today because there’s a fear that you might be accused of being reactionary or racist. We’ve had the law professor’s been physically attacked, have required police protection. That’s the environment that we’re developing. And for people that think that Antifa and groups like it can be allies, they don’t know Antifa. And those of us who have been teaching on campuses can tell you about these groups. And the alarm that I have is because I’m watching my profession, the teaching profession, die with-
Professor Jonathan Turley: (02:40:03)
My profession, the teaching profession, die with free speech. Administrators are not protecting academic freedom, why should they protect free speech? We’re seeing many of these speakers are being prevented from speaking on campus under various theories. And the message is clear to faculty, it’s clear to students, there’s a new orthodoxy that you should not confront and you certainly shouldn’t disagree with. And I go through those details in my testimony.
Senator Cruz: (02:40:28)
So Professor Turley, I very much agree with you that we ought to be united in condemning violence from whatever ideological origin it comes from, whether right wing, left wing, or no wing at all, if you’re committing violence against fellow Americans, that ought to be condemned, you ought to be arrested, you ought to be prosecuted, you ought to go to jail.
Senator Cruz: (02:40:48)
I do think it is striking that in the entire course of this hearing, seven Democratic senators spoke in this hearing, not a single Democratic senator condemned Antifa. Not a one of them condemned Antifa’s violence and terrorism. Do you think it is harmful… The sitting attorney general of Minnesota, a Democrat, posed with the book you just held up in your testimony, the Antifa Handbook, gleefully modeling it. Do you think it is helpful for elected democrats to be holding out a violent anti-speech organization like Antifa and acting essentially as apologist for it? Is that good for our democracy?
Professor Jonathan Turley: (02:41:35)
I criticized Mr. Ellison for that tweet. There are some Democratic politicians that have not only failed to denounce Antifa, but have actually, in that case, seemed to give it a shout out. In that case, Mr. Ellison said that they would put the fear in the heart of Donald Trump. But what he doesn’t see is that Antifa is putting the fear in the hearts of many people, other than Donald Trump. If you go to campuses today, you will find more advocates for limiting speech than protecting it. They’re winning. And when you see pictures like Mr. Ellison’s picture with Antifa, it’s very disturbing because Antifa’s not coming after him. They’re not even coming after Democrats. They’re coming after Republicans, conservatives, and those of us in the free speech community. They’re coming after us. But don’t think we’ll be the last ones. That’s not how this works.
Senator Cruz: (02:42:29)
Thank you Professor Turley. Senator Hirono.
Senator Hirono: (02:42:36)
I don’t see how anyone can sit here with a straight face and say that Democrats as though denouncing violent extremists of every stripe is somehow the purview of Republican’s only. I don’t see how anybody can sit here and accuse a group of that because I would say Mr. Chairman, that we all should be denouncing extremists of every stripe. And in my view, particularly from what I heard today, that there is more harm being done by white supremacists against, and not necessarily against government, but against people who represent minority groups.
Senator Hirono: (02:43:15)
And Mr. Chairman, you obviously can invite whoever you want to this hearing but I would like to record my concern regarding the presence of the Center for Security Policy at this hearing. The Center for Security Policy, CSP, is an organization that has been spreading anti-Muslim conspiracy theories. For example, CSP’s founder, Frank Gaffrey, who has repeatedly demonized Muslims has falsely claimed, “There is mounting evidence that the president”, he’s talking about President Obama, “Not only identifies with Muslims, but actually may still be one himself.” He has spread a conspiracy theory that Muslim brotherhood has infiltrated the American political sphere, which got him actually banned in 2011 from the annual Conservative Political Action Conference. And the CSP has been criticized by Republicans and Democrats alike and organizations that monitor extremist groups, including the Anti-Defamation League has criticized CSP. And the Southern Poverty Law Center has designated CSP as a hate group. So I would like to register my concern that they are represented here.
Senator Hirono: (02:44:30)
I have a question for Mr. German. The Oregon governor, Kate Brown, their Attorney General Ellen Rosenblum, and other local officials have demanded that federal agents leave Portland arguing that they have escalated violence in the city. Oregon Governor Kate Brown has stated, “The federal officers here in the city brought violence and they brought strife to our community.” Mr. German, you’ve talked about how aggressive riot control tactics against protesters incite greater violence in response. Would you say the tactics federal agents have used in Portland are ones that de-escalate protests or provoke violence?
Mr. German: (02:45:16)
Thank you for the question. Yeah. Yes. It’s obvious that those sorts of aggressive tactics increase protest violence. And this is something that has been studied for decades. So it’s well known that even arriving in riot control clothing can instigate action within a crowd. So it’s very important to look at the research and develop our tactics for reducing police violence based on objective research and not adopt tactics that were discredited decades ago.
Senator Hirono: (02:45:54)
I don’t know if you heard Mr. Cuccinelli testify that all of the agents, or the people from DHS for example, get adequate training regarding crowd control and de-escalating the situation. Is that what you saw going on in Portland?
Mr. German: (02:46:15)
That’s not what I saw. And to be clear, I’m not in Portland, but there are ubiquitous videos out there.
Senator Hirono: (02:46:22)
Mr. German: (02:46:23)
And I follow a lot of local reporters. And what we saw are these escalating by force tactics that was the model that was used in the 1960’s, that was discredited after a number of presidential commissions looked at this issue and tried to find ways to reduce protest violence.
Senator Hirono: (02:46:43)
And I think that what was distressing for those of us who saw many of those videos is the indiscriminate use of tear gas or other methods. They were not singling out those protestors or those people who were rioting. And that means that there was kind of a blanket indiscriminate use of these kinds of tactics, which is why the IG of both the DHS and the Department of Justice are investigating what happened, not only at Lafayette Square, but also in Portland.
Senator Hirono: (02:47:12)
Mr. German, you’ve also previously talked about how white supremacists and far right militant groups exploit protests to stoke racial and political conflict and to incite violence. In your testimony today, you pointed to evidence that white supremacists had infiltrated the recent protests to cause violence that would be blamed on Black Lives Matter, or for that matter Antifa. Despite this evidence, the Trump administration has continued to focus its blame on Antifa and anarchists. Can you put in context the Trump administration’s messaging strategy of blaming Antifa and anarchists and ignoring violence by white supremacists?
Mr. German: (02:47:51)
I think it’s very dangerous to politicize law enforcement. Law enforcement has a very important job to protect the communities that they serve, and they need to be protected when they’re engaged in that work. Unfortunately, when we politicize intelligence, which is what we’ve seen here, where many intelligence reports that have been released through Blue Leaks indicate a sensationalized vision of what Antifa is and the threat that it poses that has distracted law enforcement from more serious threats that result in deadly violence.
Senator Hirono: (02:48:28)
Thank you. I’m sorry, my time is up. Thank you.
Senator Cruz: (02:48:33)
Thank you. Mr. Shideler, Senator Hirono attacked the organization where you work. If you care to respond you may have an opportunity to do so.
Kyle Shideler: (02:48:39)
I would. Thank you. The Center for Security Policy is a national security think tank that has been in operation since 1988. We do a wide variety of work on national security topics, including nuclear deterrence, missile defense, biodefense, geopolitical challenges including Russia and China. And that’s in addition to work on terrorism, terrorist ideologies, and Homeland Security.
Kyle Shideler: (02:49:04)
We are particularly proud of our work in trying to understand the ideologies behind jihadist terrorism. We’re proud of the work that we have done with American Muslims, including those who are senior fellows at our organization who seek to oppose jihadist elements in their communities. So we reject this claim from organizations that are engaging in behavior which is essentially the same that Antifa engages in, which is to say that anyone that offers an analysis that disagrees with them must ipso facto, be a member of an unacceptable organization or a hate group, or what have you. It’s divisive and it ruins the ability to engage in analysis that is useful to the country.
Senator Cruz: (02:49:52)
Thank you, Mr. Shideler. Senator Whitehouse.
Senator Whitehouse. : (02:49:55)
Thank you. Special Agent German.
Mr. German: (02:50:03)
Former special agent, sir.
Senator Whitehouse. : (02:50:04)
Former Special Agent German. I wanted to ask you to the extent that you can, briefly go over your work with regard to white supremacists and militia organizations while you were with the FBI. Just background. How much time you spent, [crosstalk 02:50:27] what sort of a role you had, the things that are public that you can disclose.
Mr. German: (02:50:31)
Thanks for the question. I joined the FBI as a special agent in 1988. And in 1992, I was assigned in Los Angeles where there were civil disturbances resulting from the police beating of Rodney King and the FBI had intelligence that white supremacist groups were engaging in illegal firearms transactions and trafficking in other weapons in order to take advantage of those protests. So the FBI asked me to go undercover in white supremacist groups that were trafficking in illegal arms.
Mr. German: (02:51:03)
We ended up solving a number of bombings and arresting people before their more violent conspiracies could be achieved. In 1996, I went undercover again in a far right anti-government militia groups in the Pacific Northwest, engaging in the same kind of trafficking in illegal weapons and conspiring to engage in acts of violence and again, achieved successful results through prosecutions.
Senator Whitehouse. : (02:51:32)
Adding those two assignments together how many months did you spend undercover within those organizations?
Mr. German: (02:51:42)
The first case was about 14 months. The second case was about seven or eight months.
Senator Whitehouse. : (02:51:48)
During which time you effectively joined the groups as somebody who they thought was a fellow-
Mr. German: (02:52:02)
Yes, I presented myself-
Senator Whitehouse. : (02:52:02)
… in order to get law enforcement information.
Mr. German: (02:52:04)
I’m sorry. Yes, I presented myself as somebody who is willing to be recruited into their organizations and they brought me in and allowed me to engage in their criminal conspiracies. And that was my first introduction to anti-fascist actions. And I think that’s what we have to understand is this term is much broader in many ways than what we’ve discussed here. That anti-fascism is an important part of what the US government has been involved in as well.
Senator Whitehouse. : (02:52:38)
These assignments were at some risk to your personal safety?
Mr. German: (02:52:43)
Yes. These groups were heavily armed and very cognizant of the fact that law enforcement was interested in their criminal activities.
Senator Whitehouse. : (02:52:56)
From what you know, is it still a law enforcement concern and should it be a law enforcement concern to have these white supremacists and militia groups running around and engaged in violent acts and conspiracies?
Mr. German: (02:53:18)
I know that there are FBI special agents and other law enforcement agents who are focused on these groups and do the best they can. Unfortunately, as a matter of policy far right violence is deprioritized by the FBI and the Justice Department. Only more recently at the beginning of this year, FBI Director Chris Ray, finally said they were raising the prioritization of white supremacist groups, but we still see law enforcement engaging with these groups in ways that are dangerous. And from a former law enforcement officer’s perspective, my concern is for their own safety. There is a long history of these groups targeting people in law enforcement and unfortunately that’s what we saw in Oakland and Santa Cruz County where a member of a far right Boogaloo group, members, engaged in deadly violence against police officers.
Senator Whitehouse. : (02:54:14)
In the cases in which you were engaged, what were the primary motives and methods of these criminal groups?
Mr. German: (02:54:24)
The primary motives were to harm people who they thought were their enemies and whether those were people of color or political enemies, and their methods were to accumulate a mass weaponry that they could use to try to trigger a broader war, either a race war, a civil war, that they would, they believed, come out on top of.
Senator Whitehouse. : (02:54:53)
With a certain amount of collateral criminal activity, just to get money to pay the bills?
Mr. German: (02:55:00)
Absolutely. These groups engage in all… Any kind of clandestine criminal organization has to engage in other criminalities. So the criminality that these groups… That we should be looking at these groups based on their criminality rather than ideology.
Senator Whitehouse. : (02:55:16)
My time is up. Thank you for your service, sir.
Mr. German: (02:55:19)
Senator Cruz: (02:55:21)
Well, Mr. German, let me thank you also for your work going undercover with those white supremacist groups. I emphatically agree that white supremacists are ignorant bigoted morons, and those who were violent should be criminally prosecuted and locked up for as long as humanly possible. And I will also note that I’m Cuban American and white supremacists hate me too. But at the same time, it’s fairly striking that elected Democrats want to ignore the violence of Antifa. They want to ignore the violence on the left, and they just scream white supremacists, white supremacists, rather than condemn violence from wherever it is coming.
Senator Cruz: (02:56:05)
The 277 injuries of federal law enforcement officers in Portland are coming from the left and not a single Democrat on this committee acknowledges that. David Dorn, African American police officer was murdered. Retired police officer in St. Louis, who is black, was murdered. Not a single one of the seven Democratic senators who spoke at this hearing mentioned David Dorn’s name. Patrick Underwood, another officer. Senator Durbin was the one Democrat who mentioned Patrick Underwood’s name. Another black officer murdered. We see Democrats who repeat the slogan, Black Lives Matter, but apparently those black lives are not worth discussing, the black lives of police officers murdered by terrorists. I would notice well, when it comes to black lives matter, as a proposition the statement black lives matter is unquestionably true. It is a truism. It is indisputable period, full stop. Black lives matter and matter enormously. Every human being is a precious gift from God. That being said, and quite rightly the overwhelming majority of Americans agree with the proposition black lives matter. It should be a hundred percent of Americans agree with the proposition black lives matter. That is different I would note, than the specific organization that has taken up the name Black Lives Matter. And I think it is important to draw a distinction between the statement black lives matter, that is indisputably right, and the organization that denominated Black Lives Matter.
Senator Cruz: (02:57:58)
That organization was founded in 2013. It was founded by three self-described radical Marxists. The three founders of it were Alicia Garza, Opal Tometi and Patrisse Khan-Cullors. And some of the facts behind this organization Black Lives Matter important for people to know. Cullor’s said she and Garza… This is her words, are, “Trained Marxists.” And she said, ” I read, I study, adding Mao, Marx and Lenin to my knowledge of books.” Mao, Marx, and Lenin, or Mao and Lenin rather, murdered millions, were among the worst tyrants humanity has ever known.
Senator Cruz: (02:58:46)
The Back Lives Matter group, their founders, have explicitly praised Marxist Angela Davis. Now who is Angela Davis? They said, she’s a mentor. Angela Davis was the Communist Party vice presidential nominee in 1980 and 1984. She’s explicitly a Communist. She was affiliated with the Black Panther Party. Cullors, one of the three founders of the Black Lives Matter organization said, “Angela Davis is a mentor of mine.”
Senator Cruz: (02:59:17)
Not only that, the founders have praised domestic terrorist, Assata Shakur. Now, who is that? Assata Shakur is a convicted cop killer. Murdered a police officer. She is right now today on the FBI’s most wanted list and is likely a fugitive in Cuba. And by the way, it isn’t just a passing praise. Ms. Cullors wrote a memoir, When They Call You a Terrorist: A Black Lives Matter Memoir, that included a foreword written by Communist Angela Davis. And by the way, it’s not me calling her a Communist. She was the vice presidential nominee of the Communist Party. She is explicitly a Communist. And an opening epigraph from Shakur, the cop killer on the FBI’s most wanted list.
Senator Cruz: (03:00:03)
Not only that, in terms of funding, the organization BLM is financially sponsored by the Thousand Currents, an organization vice chair by Susan Rosenberg. Who’s Rosenberg? A member of the leftist violent terrorist organization, the May 19th Communist Organization involved in multiple politically motivated bombings.
Senator Cruz: (03:00:28)
Now, what does the organization Black Lives Matter support? Well you go to the website, they tell you, they’re not hiding it. Their top priority is defunding the police across the United States of America. It’s not defending equal justice for everyone. That, everyone supports. It is abolishing and defunding police departments in every community in this country.
Senator Cruz: (03:00:47)
Not only that, the group BLM has a long record of anti-Semitism and anti- Israel attacks, including arguing that Israel is a “Apartheid state that is committing genocide.” And by the way, the BLM founders who revere Angela Davis, Angela Davis’s record, profoundly anti-Semitic and anti-Israel. Indeed, she was asked, would she be willing to speak up on behalf of Jewish prisoners of conscience in the Soviet Union? She was a big apologist for the Soviet Union and she responded, when she visited Moscow, so she’s meeting with the Soviet leaders in Moscow, and her response was instead of speaking up for the Jewish prisoners of conscience she would urge that they be kept in prison because “they are all Zionist, fascist, and opponents of socialism.”
Senator Cruz: (03:01:49)
What else does BLM the organization support? On its website it is called for a “boycott of white capitalism.” In 2017, they called on people not to spend any money with white corporations. And not only that, the BLM website says that one of their objective is dismantling the “patriarchal practices and disrupting the Western prescribed nuclear family.” That’s what they say their objectives are. Now the reason that matters is right now corporate America is desperate to demonstrate their virtue as we see great racial dissension.
Senator Cruz: (03:02:32)
So Black Lives Matter, BLM the group, raises money on ActBlue, the fundraising mechanism for virtually every elected Democrat in Congress. Among the donors to BLM the organization, according to public reports, include the company Ubisoft, which has given between $50,000 and $100,000. DoorDash, which has given reportedly $500,000. Amazon, which has given an unidentified portion of $10 million. Gatorade, which has given an unidentified portion of $500,000. Nabisco, which has given an unidentified portion of $500,000. Deckers, which has given an unidentified portion of $500,000. Microsoft, which has given $250,000. Dropbox, which has given $500,000 and Fitbit, which the amount given is not identified.
Senator Cruz: (03:03:24)
I would note Microsoft, the largest individual shareholder is Bill Gates. It’s more than ironic that Microsoft is funding an organization calling for boycotting all white corporations. Bill Gates is white. Microsoft is literally funding an organization calling for Microsoft to be defunded. Jeff Bezos, the largest owner of Amazon, who likewise is funding this radical Marxist group. Jeff Bezos is white too. And he’s funding an organization that is calling for the boycotting of Amazon.
Senator Cruz: (03:03:58)
This is dangerous and it’s worth understanding that when corporate America floods millions of dollars into explicitly Marxist terrorist organizations that glorify cop killers, that glorify violence, that the violence and terrorism that flows from that should not be surprising.
Senator Cruz: (03:04:23)
Without objection, I’m going to enter into the record an article from the Washington Examiner dated July 23rd, 2020, the title of which is Who is Black Lives Matter? And I would encourage anyone who wants to understand who this organization is to read this article. On the proposition as a value proposition, do black labs matter? Absolutely, yes. And our nation was founded on the proposition that all men are created equal regardless of race or skin color, but the organization that has seized that name is very different and if they succeeded with their stated number one objective of defunding and abolishing every police department, many, many more black lives would be lost because more African Americans would be murdered without the police officers that bravely risked their lives to defend those communities. Senator Hirono.
Senator Hirono: (03:05:25)
Sometimes I don’t think you listen. So how many times have I had to say that we all should be denouncing violent extremists of every stripe.
Senator Cruz: (03:05:38)
Does that include Antifa?
Senator Hirono: (03:05:39)
By the way… I have the time. By the way, the Republicans are constantly using, I have to say, you brought it up yourself, the deaths of these black police officers, Patrick Underwood, and David Dorn, for making political points. And the fact that it was right wing extremists who killed officer Underwood, that seems to be lost in this argument. And then now there are all these attacks about Black Lives Matter and what they’re saying. I mean, how many of us even think that defunding police departments is, it should be taken literally? I mean, I certainly don’t.
Senator Hirono: (03:06:20)
So, we have this pesky thing called freedom of speech, and I’d say that the people who support Black Lives Matter, and if they’re calling for various boycotts and all that, that’s called freedom of speech. And that’s what this hearing title is, Protecting Speech. So all I can say is look, we should all join hands in denouncing and whatever words you want to use about violent extremism of all stripes. And I think we can all agree on that. So to constantly accuse Democrats of not caring about that is really, I can only say that you aren’t listening.
Senator Hirono: (03:07:05)
So I hope this is the end of this hearing Mr. Chairman, and that we don’t have to listen to any more of your rhetorical speeches. Thank you very much. I’m leaving.
Senator Cruz: (03:07:15)
Well I appreciate the as always kind and uplifting words of Senator Hirono and I would also note that throughout her remarks, she still did not say a negative word about Antifa, nor has any Democrat here. They instead engage in a political game where they depend… You’re welcome to say something negative about Antifa right now.
Senator Cruz: (03:07:44)
Okay. She declined to speak. So, that is the position of the Democratic Party. I would note also that of the seven Democratic senators who spoke not a one of them apologized for or denounced multiple Democrats calling law enforcement officers Nazis, Stormtroopers and Gestapo to be fair, I have not heard the word Nazi, but Stormtrooper was Nancy Pelosi and Gestapo was another Democratic leader. That is less than helpful.
Senator Cruz: (03:08:12)
I thank each of the witnesses for your testimony. I thank you for defending free speech. And I thank you for speaking out against violence and against terrorism. The record in this hearing will be held open for one week. Senators may follow up with the witnesses of either this panel or the previous panel with written questions. If you receive written questions, you are asked to submit the answers to those questions by the close of business one week from today. And with that, this hearing is adjourned.