BORDC/DDF Memo To President Obama on Standing Rock

Frank Rosen, UE, USLAW etc
Frank Rosen: Union Organizer, Political Activist, Civil Libertarian
November 29, 2016
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President Barack Obama

Attorney General Loretta Lynch

Lieutenant General Todd T. Semonite


Sue Udry Executive Director

Bill of Rights Defense Committee/Defending Dissent Foundation

Chip Gibbons

Policy and Legislative Counsel

Bill of Rights Defense Committee/Defending Dissent Foundation

RE: Continued and escalating deprivations of Constitutional rights by law enforcement at Standing Rock, North Dakota, the urgent need for Justice Department action, the potential impact of an Army Corp of Engineers eviction order against protesters at Standing Rock, and the urgent need to rescind it.

The Bill of Rights Defense Committee/Defending Dissent Foundation is a national civil liberties organization dedicated to fulfilling the promise of the Bill of Rights for everyone. We are writing to you today out of urgent concern for the Water Protectors in Standing Rock, North Dakota, who have been repeatedly met with shocking uses of force by local police for trying to exercise their free expression rights. We are requesting that the Justice Department investigate state and local law enforcement’s deprivation of First Amendment rights and use of excessive force against Water Protectors and others gathered at Standing Rock to express their opposition to the Dakota Access Pipeline. The Standing Rock Sioux Tribe, in face of repeated deprivations of their civil liberties and rights by state local law enforcement, have already requested an intervention by the Justice Department. While this request was made on October 24, 2016, to date the Justice Department has not acted.

Additionally, we are deeply troubled by a recent eviction order given by the Army Corp of Engineers. The eviction order demands the Water Protectors leave the Oceti Sakowin encampment by December 5, 2016 and confine their protests to a designated “free speech zone.”  While the Army Corp of Engineers has stated that they will not forcibly remove anyone, given the continued use of excessive force by local law enforcement and the inhuman and degrading conditions of confinement arrested Water Protectors have been subjected to, we are fearful that this order will further embolden law enforcement in depriving individuals of their Constitutionally protected rights. We urgently call on you to rescind the Army Corp of Engineers eviction order.

The Need for Action by the Justice Department

A Justice Department investigation is necessary, as state and local officials show no sign of acting on their own to remedy this situation. On October 13, 2016 we sent a letter (attached) to North Dakota Governor Jack Dalrymple informing him of his obligations to defend the free expression rights of the Water Protectors and asking him to take steps to end law enforcement abuses against the Water Protectors. He has not only failed to take action, but the situation has continued to deteriorate.

On November 20, 2016, local police indiscriminately deployed a water cannon against a crowd of people in below freezing temperatures. In addition, local law enforcement also used tear gas and rubber bullets against those gathered at Standing Rock. Legal observers from the Water Protectors Legal Collective who were present reported individuals losing consciousness after being shot with rubber bullets, losing control of bodily functions, vomiting, and going into seizure as a result of the use of mace, and one elder going into cardiac arrest. Reports also indicate that local law enforcement not only attacked Water Protectors, but deliberately targeted medics and journalists. These deprivations of civil liberties and civil rights require an immediate response by the Justice Department.  

None of this conduct is new. Local law enforcement has been repeatedly criticized for excessive force against the Water Protectors. UN Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, has criticized (attached) the “excessive use of the State security apparatus to suppress protest against corporate activities that are alleged to violate human rights[…]” Additionally, Kiai found that activists have been subjected to conditions of confinement that “amounts to inhuman and degrading treatment.”

Earlier in October, local police issued an arrest warrant for journalist Amy Goodman. Goodman covered a protest during which private security forces attacked protesters with dogs. This footage was broadcast on Goodman’s own program, Democracy Now!, and rebroadcast on a number of national and international news programs. Police responded by charging Goodman with trespass, a charge that was later substituted due to lack of evidence with “rioting.” A judge dismissed this charge due to a lack of probable cause. The prosecutor claimed Goodman was not a journalist, because he viewed her broadcast as being “from the position of justifying the protest actions.” This is clear reference to both the content and the viewpoint of Goodman’s broadcast. The bringing of baseless criminal charges against a journalist is clear attempt attempting stifling freedom of the press.

Goodman is not the only reporter targeted by local authorities. According to the Bismarck Tribune, as of November 5, 2016 at least seven journalist had been arrested. The Bismarck Tribune also notes that numerous reporters have had equipment seized by the police, including cameras and memory cards.  

Law enforcement’s actions on November 20, 2016, while shocking, are not an abnormality. They are part of a larger pattern of behavior by the state of North Dakota, Morton County, and a host of state and county law enforcement agencies of using excessive force against the Water Protectors, attempting to abridge First Amendment rights of the the Water Protectors, and attempting to chill the First Amendment rights of journalists. Given the complicity of local officials in these deprivations of civil liberties, said officials cannot be expected to remedy the situation.

It is precisely for this type of situation in which local officials, acting under the color of law deprive individuals of federal rights, that the Justice Department is tasked to investigate and defend those rights. State and county officials in North Dakota have for three months continuously engaged in systematic deprivations of federal rights and show no sign of relenting. It is hard to imagine a more clear cut situation in which the Justice Department’s intervention is warranted.

The Justice Department has not only the authority to investigate the violations of federal rights taking place at Standing Rock, they have a moral obligation to act immediately to defend the rights of the Standing Rock Sioux, the Water Protectors, and all those gathered at Standing Rock to exercise their First Amendment rights.

We respectfully request that the Justice Department act immediately to fulfill this obligations.

The Need to Rescind the Eviction Order

On November 25, 2016 the Army Corp of Engineers ordered all Water Protectors to leave the area in question and move to a “designated free speech zone.”  Two days later, the Army Corp of Engineers issued a clarifying statement saying that they will not forcibly remove anyone. While we are glad to hear that no one will be forcibly removed the initial order still stands. This means that the door is still open for arrests or citations. It also emboldens local law enforcement to take actions against the protesters at Standing Rock. Given their track record of depriving Water Protectors of their Constitutional rights, this is deeply troubling.

Just three days after the Army Corp of Engineers issued its eviction order, North Dakota Governor Jack Dalrymple issued an “emergency evacuation” order. As part of this order, North Dakota officials have stated they will impose fines on those who bring food and other needed supplies to the protest encampment and that first responders are no longer “responsible for individuals there.” This “evacuation” order uses similar justifications as the Army Corp of Engineer–the harsh nature of North Dakota’s winter.  We are deeply troubled that local law enforcement will view the eviction order as giving them justification for their actions.

We respectfully request that the Army Corp of Engineers rescinds the eviction order.


Law enforcement in North Dakota have consistently used excessive and indiscriminate force against Water Protectors  at Standing Rock. In spite of repeated calls for them to cease depriving the Water Protectors of their rights, they have shown no sign of stopping and have instead continuously escalated the situation. Local authorities have shown a pattern of targeting journalists for exercising their freedom of press rights. In one instance, a prosecutor even cited the content and viewpoint of a journalist’s broadcast as justification for her criminal prosecution.  The Justice Department has jurisdiction over local authorities who, acting under the color of law, willfully deprive individuals of their rights and privileges guaranteed by the Constitution and US law. The Justice Department must act immediately and investigate these deprivations of rights by local law enforcement. Finally, the eviction order issued by the Army Corp of Engineers could exacerbate this situation and embolden the law enforcement agencies that are continuing to deprive individuals of their federal rights.