Suspicious Activity Reporting Invites Racial Profiling, Erodes Civil Liberties, and Undermines Security

Platform for Prejudice Cover

By Thomas R. Cincotta:

“The intelligence lapses that failed to prevent the September 11 terrorist attacks prompted an overhaul of U.S. domestic and foreign intelligence systems, including the creation of an expansive new domestic security infrastructure. A key part of this new infrastructure is the Suspicious Activity Reporting initiative, a framework that guides, orchestrates, and connects the federal government’s nationwide “Information Sharing Environment.” In this initiative, we see the seeds for a possible repeat of past intelligence abuses, particularly with the weakening of civil liberties safeguards and mobilization of police as intelligence officers.

The Suspicious Activity Reporting Initiative (SAR Initiative) is a useful focus for understanding how the new domestic security infrastructure works because it feeds and links together components of the system, reaching into the populace and forming an intelligence pipeline between the “fusion centers” charged with managing the program and various other agencies. We have found that these new fusion centers – ostensibly designed to counter terrorism – seem to devote most resources and attention to solving common crimes rather than protecting national security. If it is the case that Fusion Centers perform a primarily policing function, rather than counter-terrorism, the public should weigh whether their excessive secrecy and surveillance powers are justified on that basis.

In an attempt to peer inside these secretive agencies and contribute to public knowledge about the extensive domestic security infrastructure, Political Research Associates launched an investigation into how the SAR Initiative works. Our questions included SAR’s role in the larger domestic security apparatus, the rules under which it functions, and how its practices affect those individuals and communities most singled out for suspicion of terrorism. This report includes data from our investigations in Boston, Los Angeles, and Miami, as well as a comprehensive analysis of federal and local policies and reports. Based on our Los Angeles investigation, the report contains a thorough case study of the Los Angeles Joint Regional Intelligence Center.

The report is broken up into four sections, which contextualize and explain the SAR Initiative, as well as elucidate the potential hazards of the program:

In Section 1 of this report, we describe the shape and identify key components of the domestic security infrastructure. Although many levels of government are involved in Suspicious Activity Reporting (such as the National Security Agency, Coast Guard, Department of Defense, Department of Energy, and private sector advisory councils), this report focuses on fusion centers and state and local police departments.

In Section 2, we explain the origins of the national Suspicious Activities Reporting (SAR) Initiative and analyze faulty assumptions upon which it is based. We call attention to an aggressive new form of policing called “Intelligence-Led Policing” whose pre-emptive approach violates core American values.

In Section 3, we explore how the SAR Initiative becomes a platform for several types of prejudice. We document the pattern of racial, ethnic, and religious profiling evident in this approach to intelligence gathering. We also explore political biases that manifest themselves in Suspicious Activities Reporting criteria and intelligence analysis. Further, we examine how the SAR Initiative lowers the threshold for government data collection in ways that fuel both profiling and political policing, and violate long-standing civil liberties protections. Lastly, in Section 4, we use a case study of the fusion center based in Norwalk, California, the Joint Regional Intelligence Center, to identify how domestic intelligence collection and sharing jeopardizes civil liberties. Los Angeles’ Fusion Center spearheaded the national SAR Initiative, uses extremely broad criteria for so-called “suspicious” activity, and vigorously encourages the public to report suspicious activities through its controversial iWatch program.

However, as with any investigation of intelligence agencies, the excessive secrecy of the system posed many challenges. Several agencies and departments failed to make their policies available online and to respond to our formal requests for interviews or documents.

I and my colleagues at Political Research Associates believe the United States faces two real and serious threats from terrorists: the first from terrorist acts themselves, which have the demonstrated capacity to cause mass casualties, severe economic damage, and social dislocation; and the second from the possibility that disproportionate and inappropriate responses will do more damage to the fabric of society than that inflicted directly by terrorists themselves. This report strongly suggests that gathering data on lawful activity through Suspicious Activity Reporting amounts to this second kind of harm: the self-inflicted wound. Simply put, the SAR program does more damage to our communities than it does to address real and continuing threats of terrorism.”

Read the full report “Platform for Prejudice” here.

Muslim Community Resistance

Organizing & Advocacy in a Time of Struggle

Zienib Noori, 20, of Albany, NY listens to a speaker at the “Today, I Am A Muslim, Too” rally in New York City
(Photo by JessicaRinaldi/Reuters)

Since 9/11, the New York Police Department’s Pre-Ramadan Conference and Breakfast has become one of the largest gatherings of Muslim leadership in New York City. Last July, I sat among a sea of suits and uniforms, colorful headscarves, turbans, and maroon fezzes. Surrounded by American flags and silk banners with a star-spangled rainbow design, NYPD Commissioner Ray Kelly’s boxer stance commanded attention as he engaged a crowd of 150 Muslim police officers and roughly 250 Muslim community members.

Within the crowd, some Muslims were murmuring. These men and women were concerned about reports that police trainers had been showing The Third Jihad, a film made by Wayne Kopping and produced by Raphael Shore and the Clarion Fund,1 creators of the notorious propaganda film Obsession: Radical Islam’s War Against the West.

The Third Jihad opens with a disclaimer that “this is not a film about Islam. It is about the threat of radical Islam.” However, the film’s narrator, Dr. Zahdi Jasser, says that he has found a document that reveals “the true agenda of much of the Muslim leadership here in America” [italics PRA’s]. In a series of interviews primarily consisting of neoconservative analysts, and featuring inflammatory footage of human rights abuses, violent political rallies, and images celebrating the enrollment of children in suicide missions, the film asserts that radical Muslims have a strategy to “infiltrate and dominate” America and transform it into an Islamic theocracy. Among other claims, the film cites a survey that “one in four young American Muslims condones suicide bombing” and implies that moderate American Muslim organizations, particularly the Council on American-Islamic Relations (CAIR), act deceptively to disguise their true radical agendas.

A local group, Muslim American Civil Liberties Coalition (MACLC),2 had formed over three years earlier to challenge faulty NYPD threat analysis, biased law enforcement training, and community surveillance. The coalition is comprised of leading New York City-based Muslim legal and community advocacy groups, and, is advised by the Brennan Center for Justice. When rumors of NYPD screenings of The Third Jihad began to circulate, MACLC sent a series of letters to the Commissioner requesting a meeting.

There was no response.

The morning of the breakfast, Imam Talib Abdul Rashid, a respected elder and newly chosen Amir of the Majlis Ash Shura, took the floor.  As head of the imams’ leadership council, the most established Muslim leadership group in New York, he shared his concerns about the showing of the problematic film. He offered to help form a committee to vet materials about Islam for use in future training sessions.

CAIR’s series of trainings and pocket guides called “Know Your Rights” provide Muslim students, employees, and airline passengers with a valuable overview of their rights. The guides can be used to identify and respond to hate crimes.

Following the imam’s remarks, Kelly said that The Third Jihad had been shown only one time, and only as “background visuals.” Notably, though he was to deny his direct cooperation for many months, Kelly himself had been interviewed for, and appeared in, The Third Jihad speaking about threats associated with young Black men who were “recruited” and converted to Islam while in prison, and about the terrorist threat associated with suitcase-sized nuclear weapons, or “dirty” bombs. Kelly minimized the significance of community concerns, adding that his department was exploring convening dialogue or advisory groups with Muslims but “did not know whom to include and whom to exclude.”

Kelly’s statements raised some eyebrows. Community complaints had led MACLC members to believe the film had been shown more than once. Beyond this, MACLC members knew that the NYPD had recently begun to convene a completely separate group of Muslims to meet with, a group MACLC members supposed would be comprised of more pliable community representatives.

MUslim Community Responses

The American-Muslim community is highly diverse and decentralized; many of the national leadership groups (the alphabet soup of CAIR, ISNA, MPAC, ICNA, MANA)3 coordinate on a regular, but quite loose basis. Emerging American Muslim civil society organizations also include independent groups reflecting a range of sects, religious styles, and opinions.

On a local level, Muslim, civic, and interfaith organizations have for many years responded to bias-motivated crimes and to attacks on the ability of Muslims to worship or freely associate. They are also increasingly successful in publicizing government attacks on Muslim civil rights through profiling, surveillance, detention and deportation, and biased training by public safety officers.

Coalitions (and temporarily activated social networks) play an important part in Muslim community activism.  Muslim representatives from struggling new organizations may at first experience themselves as the “affirmative action member” in such groups, but over time most beleaguered Muslims gain safe and supportive spaces within these collectively organized civic efforts.

In March 2011, a major rally called “I am a Muslim, Too” was held in New York City’s Times Square to coincide with now-infamous House Homeland Security Committee hearings convened by Rep. Peter King (R-NY). The rally was supported by The Foundation for Ethnic Understanding,4 best known for its annual “twinning project” that now brings together more than 240 synagogues and mosques in 22 countries on four continents. This is one of a number of active coalitions working towards greater coexistence. Another, the New York Neighbors for American Values, a coalition of 150 civic groups, worked throughout 2011 to promote religious freedom and tolerance5 via research6 and through civic engagement activities such as 9/11 commemorations.  It also has been raising questions about NYPD surveillance and Islamophobic training programs.

In Washington, D.C., a new interfaith campaign, “Shoulder to Shoulder Standing with American Muslims: Upholding American Values,” housed at Islamic Society of North America,7has organized an interfaith 9/11 commemoration. It issued a “Joint Statement Against Extremism of All Kinds In Support of American Values” signed by 26 national religious leaders and later released a statement opposing the widespread NYPD surveillance of Muslim students, religious leaders and communities.

The Council on American-Islamic Relations (CAIR) has been able to create an important national network for Muslim communities with more than 30 local chapters, frequent email alerts, and national and local advocacy campaigns. CAIR’s series of trainings and pocket guides called “Know Your Rights” provide Muslim students, employees, and airline passengers with a valuable overview of their rights. The guides can be used to identify and respond to hate crimes.

When it surfaced that Virginia agents at the FBI’s training center at Quantico were being shown a chart contending that the more “devout” a Muslim, the more likely that person is to be “violent,” Muslim activists responded immediately.

In recent years, CAIR has embarked on a series of high profile lawsuits and Freedom of Information Act (FOIA) requests pertaining to illegal anti-Muslim discrimination, harassment, and surveillance.  Their efforts have prompted some politicians  and interest groups8 to demonize CAIR as “the legal wing of Jihad in America.”9 In June 2011, in association with the University of California Berkeley’s Center for Race and Gender, CAIR released its report, “Same Hate, New Target: Islamophobia and Its Impact in the United States 2009-2010.” The report provides detailed descriptions of Islamophobia effects, ranging from hate crimes and vandalism to political marginalization of affected communities.10 CAIR national legislative director Corey Saylor, one of the report’s co-authors, says he remains seriously concerned about the pace of government response to these challenges.

CAIR and other national and local groups have worked to empower targeted groups to identify and report suspicious activity, develop legal contacts, and establish security in mosques and public settings. In some regions, impacted groups have begun to confront the purveyors of Islamophobic training directly, with some success.

Community Groups Win In Local Skirmishes

One of the Muslim community’s first successes in organizing against anti-Islam counterterrorism trainings dates back to Washington State in 2008. That May, a training program run by private company Security Solutions International (SSI), called “The Threat of Islamic Jihadists to the World” took place at the Washington State Criminal Justice Training Commission campus in Burien, Washington. It was billed as providing insight into the formative phases of Islam, but conflated the religion’s different branches with radical Islam and a discussion about how to respond to terrorist acts.

In response to community outcry and Muslim protests, the Port of  dissociated itself from further cooperation with SSI. Port Police Chief Colleen Wilson met with local CAIR representatives and offered to have them come in to do additional training.

Two years later in 2010, however, alert Muslims noticed that SSI had scheduled a webinar that included presentations by the Seattle Police Department and Washington State Patrol. Responding to concerns expressed by CAIR Washington State, both law enforcement agencies announced that they would withdraw from the event. “We commend the Seattle Police Department and the Washington State Patrol for listening to community concerns about a group that promotes anti-Muslim stereotypes and conspiracy theories,” said CAIR-WA Executive Director Arsalan Bukhari.11

 

SSI had been in the news not long before. In Political Research Associates’ report ,Manufacturing the Muslim Menace, Security Solutions International, LLC (SSI)12 and two other private firms, International Counter-Terrorism Officers Association (ICTOA) and The Centre for Counterintelligence and Security Studies (CI Centre) were shown to have speakers and materials that promoted a range of harmful anti-Muslim teachings. Many of these trainings disseminated inaccurate and conspiratorial myths that could put the rights of millions of American Muslims at risk from the very public servants who have sworn to protect them. Sparked in part by the report, Muslim and community groups convinced Paul MacMillan, Chief of Police of the Massachusetts Bay Transportation Authority (MBTA) to cancel an inflammatory SSI seminar covering topics such as “Women in Islam and Female Suicide Bombers,” and “The Legal Wing of Jihad in America.”13

 

Sustaining Activism on a National Scale

Sustained organizing efforts are key to the Muslim community pushing back against the scores of campaigns demonizing Islam and institutionalizing Islamophobia since September 11, 2001. It is not difficult to recognize Islamophobia’s political usefulness:14 it perpetrates an exaggerated fear, hatred, and hostility toward Islam resulting in bias, discrimination, marginalization and the exclusion of Muslims from America’s social, political, and civic life.

Writer Reza Aslan has recently observed,

Simply put, Islam in the United States has become otherized. It has become a receptacle into which can be tossed all the angst and apprehension people feel about the faltering economy, about    the new and unfamiliar political order, about the shifting cultural, racial, and religious landscapes that have fundamentally altered the world. Across Europe and North America, whatever is fearful, whatever is foreign, whatever is alien and unsafe is being tagged with the label ‘Islam.15

 

When Manufacturing was released, the community group Muslim Public Affairs Council (MPAC) knew how to use this research.  The report’s publications coincided with the U.S. House of Representatives’ Homeland Security Committee hearing on American Muslim Radicalization.  Even before that first hearing in March, 2011, Congressman Allen West (R-FL) claimed that he possessed the names of 6,000 Muslim Americans who secretly supported the Muslim Brotherhood in a supposed plot to take over the USA and install Sharia law.

MPAC knew what to expect from the anti-Islam hearings.16 Using data from the report, MPAC and other partners were able to convince Senators Lieberman and Collins to challenge the Department of Homeland Security (DHS) and Department of Justice to investigate and halt any such support. The Senators later threatened Congressional action, setting off a flurry of activity within DHS.

When it surfaced that Virginia agents at the FBI’s training center at Quantico were being shown a chart contending that the more “devout” a Muslim, the more likely that person is to be “violent,”17 Muslim activists responded immediately. The national civil liberties organization Muslim Advocates called for the U.S. Department of Justice Inspector General to investigate “the FBI’s use of grossly inaccurate and bigoted trainers and training materials for its counterterrorism agents and other law enforcement.” They raised further concerns about the agency’s new Domestic Intelligence Operations Guide (DIOG)’s expansive ethnic mapping guidelines in a comprehensive report18 published in October 2011. Following the exposé and outcry, the FBI went into damage control mode. The FBI was ordered to scrub its training materials of offensive and inaccurate anti-Muslim content and sources.

Click on this picture for a sidebar on law enforcement training and the institutionalization of Islamophobia.
Photo of Ray Kelly, NewYork City Police Department (NYPD) Commissioner
(Photo by BrendanMcDermid /Reuters)

Back in Washington state, a coalition of 19 Seattle-area community groups held a news conference at CAIR’s Seattle offices demanding an independent civil-rights investigation of FBI training methods. Ghada Ellithy, an engineer who sits on the board of the state’s largest mosque, described an item she received during an FBI Seattle Citizens’ Academy session the previous April. The handout was written by a local FBI counterterrorism agent named Gerry Sames19 and linked Islam to Nazism in a two-page discussion of Nazi and Arab alliances during WWII. It went on to discuss whether the current Arab-Israeli conflict is in fact a continuation of Nazi antisemitism.

Academic experts agreed the materials were distortions, inflammatory and offensive. After receiving no response to a formal complaint, the coalition decided to make the issue public.20 Eventually, a Seattle FBI spokeswoman confirmed that an agency review of the incident was underway at the local and national level. Jennifer Gist, civil-rights coordinator for CAIR’s Washington chapter, complimented the FBI for undertaking this review but emphasized the need for an independent monitor to ensure agents are not being trained to profile Muslims or demonize any group of people.

Nationally, the FBI stepped up its community outreach with a late December 2011 conference call with Muslim civil rights groups to apologize for offensive Islamophobic training materials,21 and to promise a “comprehensive review.” The Department of Homeland Security, which provides most funding for state and local training, has also recently issued a set of “Best Practices” recommendations for countering violent extremism training.22

 

Paranoia and Practical Success

As Faiza Patel of the Brennan Center noted,

At the same time as federal and local law enforcement agencies have expanded their monitoring of American Muslim communities, they have emphasized the need to build relationships with these communities…Such efforts have been criticized as uncoordinated and ineffective. It is rarely recognized, however, that even the best-coordinated outreach efforts are unlikely to succeed when paired with an approach to radicalization that emphasizes intelligence-gathering about religious behaviors and practices.23

 

In the past year, Islamophobes have found safe haven in Tea Party circles, actively advising presidential candidates, with Walid Phares advising Mitt Romney,24 and Frank Gaffney advising Michele Bachmann.25 Others have introduced bills against Sharia Law in numerous state legislatures, from Alaska to Pennsylvania, based on a legislative template created by David Yerusalami. Presidential candidate Newt Gingrich has joined a long list of politicians seeking to gain votes by running against the public stereotype of Islamic law.27 Among Christian evangelicals, some have taken the position that Islam is the false religion of the anti-Christ and therefore to be wholeheartedly opposed.28

 

Direct publicity can be very effective in countering Islamophobia. The creation of accurate film and video representation of Islam and Muslims has shown promise in countering misconceptions and hate among members of the general public. Offsetting the poisonous imagery of Obsession, The Third Jihad, and other such propaganda, interactive film projects like Change the Story,Islam Project (Muhammad: Legacy of a Prophet and Muslims), New Muslim Cool and Hawo’s Dinner Party29 have been packaged along with curricula and teaching tools.

Taking a more critical approach to media literacy, the Muslim Public Affairs Council (MPAC)’s “Truth Over Fear: Countering Islamophobia” campaign is a workshop and training program designed to empower local communities to counter Islamophobia “in a proactive manner.” MPAC’s hands-on training sessions are linked to the “Hate Hurts” campaign, with training modules directly critiquing Obsession, and rebutting its Islamophobic content.

While the Muslim community turns to public safety officers for protection, they may also be kept under watch. In October 2011 AP reported that the police were keeping watch on Imam Shamsi Ali and Sheikh Reda Shata, two community leaders who had been particularly close and open with the authorities. Moreover, a follow-up story in February, 201230 divulged the existence of undercover officers known as “mosque crawlers” who provided weekly reports on a wide range of mosques and imams regardless of their politics, and also conducted surveillance on Muslim student clubs throughout the Northeast.

A Muslim leader who positions himself as an insider risks a loss of legitimacy with the community, and in some cases may be suspected of being a confidential government informant.

Mistrust between the community and authorities has been an issue since the days of “COINTELPRO” yet the current situation has eroded trust and lines of communication even further. A Muslim leader who positions himself as an insider risks a loss of legitimacy with the community, and in some cases may be suspected of being a confidential government informant. This is especially problematic as such players often try to depict themselves as the “most moderate” of Muslims. Paradoxically, it is these self- proclaimed leaders –like Zuhdi Jasser– who find it easiest to obtain funding and support.

Stories of successful dialogue are emerging, however. In Oklahoma, police have been meeting with Muslim residents monthly since 9/11. Early dialogue meetings initially attracted very few participants, but the anti-Sharia bills spurred the community into action and into coalitions with other members of the public. “We defeated two separate legislative attempts to ban Sharia in Oklahoma …” says Oklahoma CAIR Director Muneer Awad. “We have partnered with the Chamber of Commerce, the Jewish community, and the interfaith community to defeat these bills.” He also noted that “our opponents have partnered with the same group of people heavily involved in the anti-Muslim training, especially ACT for America which helped fund the campaign to pass the first anti-Sharia amendment in Oklahoma.”

In places like Tennessee where anti-Sharia bills are also pending, new allies including the NAACP, ACLU, the immigration reform group PIRCC, and even the Scientologists, have come forward to get provisions of the bill watered down.

In Los Angeles, which in 2007 backed down from a law enforcement plan to map local mosques,31 LA County Sheriff Leroy Baca has developed a positive reputation among local Muslims and was invited to Washington D.C. to counter the assertions of Congressman Peter King. Nonetheless, Sheriff Baca has had to defend himself for his support of immigrants, engagement with Muslims, and he even has been accused of endangering Israel by this behavior.32

 

Sustaining ongoing relationships with the authorities is a double-edged sword. At an acrimonious  2011 event in Washington state, a Police Department detective observed, “The community is tired of seeing their images represented” in presentations about terrorism. FBI assurances that they do not profile were also unpopular: “When you say you don’t profile — and our reality is you do — you negate everything else you say,” said Jeff Siddiqui, a Pakistani-American member of American Muslims of Puget Sound.

In August 2011, an eye-opening report from the Center for American Progress, Fear Inc.,33 detailed how more than $40 million has flowed from seven foundations over the past ten years to fund projects promoting a politically paranoid and highly inaccurate view of Islam and Muslims. In large part due to such generous financial support, Right-Wing conspiracy theories on a wide range of anti-Muslim topics have become accepted wisdom, influencing political and media discourse. The need for accurate information about Islam and for clearer communication between Muslim community members and law enforcement officials has never been greater—yet community surveillance policies and an overall increase in government secrecy have made this extremely difficult.34

 

To gather evidence, 15 regional CAIR offices submitted 87 Freedom of Information Act public records requests35 to the government in November 2011, which sought information about possible Islamophobic training of local, state, and national law enforcement personnel. This was not the first time CAIR and other Muslim and interfaith organizations have asked for such information. In May, 2011 Judge Cormac J.Carney determined that the FBI and the Department of Justice had lied in response to a 2006 FOIA request for documents pertaining to the Council on American-Islamic Relations (CAIR), Islamic Shura Council of Southern California, CAIR’s California chapter, and other organizations. When the government appealed on the grounds of national security claims, Judge Carney rejected the appeal, writing that FOIA exemptions for national security and intelligence gathering “do not grant the Government a license to lie to the Court.”36

 

Back to Breakfast

On  January 26, 2012, revelations emerging through Brennan Center FOIA requests and in the New York Times37 demonstrated that, contrary to its many public assurances,38 including the one made by Commissioner Kelly at the Pre-Ramadan Breakfast, the NYPD had cooperated with the making of The Third Jihad and promoted it much more extensively than previously admitted.  The truth was consistent with NYPD’s anti-Muslim history. Widely published reports demonstrate extensive NYPD mapping and surveillance of Muslim individuals and institutions.

More than $40 million has flowed from seven foundations over the past ten years to fund projects promoting a politically paranoid and highly inaccurate view of Islam and Muslims.

Responding quickly, the Majlis Ash Shura Islamic Leadership Council of New York joined MACLC at a press conference39 demanding the resignation of NYPD Commissioner Kelly and his spokesman Paul J. Browne, and the creation of permanent and independent oversight controls, such as an Inspector General responsible for the NYPD. Though not all community leaders asked for the Commissioner’s ouster, City Council members and interfaith leaders demanded action40 from the Mayor; and civic leaders from such advocacy groups as 100 Black Men in Law Enforcement and the Center for Constitutional Rights joined Muslim community leaders in denouncing official lies and demanding accountability. This event was followed up by several more press conferences and rallies. After a year witnessing the Arab Spring and Occupy Wall Street movements, many local Muslims felt a surge of confidence and energy.

However, as plans were made for an ongoing campaign against NYPD profiling, the challenges of maintaining a consistent activist strategy within a diverse and decentralized Muslim community immediately became evident. Some activists insisted on demanding resignations, while other religious and community leaders—including City Council allies — felt the focus should be on policy change. Attempts were made to reach out to anti-Stop and Frisk activists and impacted communities of color. One Muslim group crafted a competing (and softer) set of demands, asking for an investigation but not a permanent oversight mechanism, which Muslim leaders friendlier with the Bloomberg administration quickly signed. A month before, when Muslim leaders boycotted an annual interfaith breakfast with Mayor Bloomberg41 in response to the reports of NYPD Muslim demographic mapping, others told reporters that they supported the mayor and the NYPD policy 100 percent. One such local leader (Imam Qayoom of Queens) even called the boycotters “extremists”.  To respond to  problematic NYPD policies, different groups of Muslim activists competed in their offers to help with training oversight and in their advice to the New York State Attorney General.

When Robert Jackson, the only Muslim Council member in New York City, was quoted in news reports42 saying that he had no problem with The Third Jihad, other Muslim advocates were aghast and were able to ensure that the Councilman quickly issued a strong statement of clarification.

Nonetheless, supporters of The Third Jihad seem to move in lockstep. In early February 2012, New Yorkers opened the morning news43 to find former DHS Director Tom Ridge and Former CIA Director Woolsey staunchly defending the film with strong statements of support for NYPD surveillance policies, attacking the notion of NYPD oversight and also once again attacking CAIR. At press time, Peter King’s latest hearing on “Islamic Terrorism” had invited testimony from Mitchell Silber, the controversial Director of NYPD Intelligence Analysis.44 With an election year barely underway, it seems clear the controversy is not yet over—and the struggle continues.

P. Adem Carroll is founder and former Executive Director of Muslim Consultative Network, which works to promote inclusion, dialogue and community strengthening in New York City.  

 

Endnotes

1 Funded by over $17 million from Donors Capital, DVDs of Obsession were distributed to more than 28 million voters in swing states during 2008 in an apparent attempt to mobilize support for the Republican presidential nominee, John McCain. http://www.publiceye.org/magazine/v23n4/book_reviews.html

2 http://maclc1.wordpress.com/

3 Council on American-Islamic Relations, Islamic Society of North America, Muslim Public Affairs Council, Islamic Circle of North America Muslim Alliance in North America

4 www.ffeu.org

5 http://nyneighbors.org/

6 http://www.commoncause.org/atf/cf/{FB3C17E2-CDD1-4DF6-92BE-BD4429893665}/PARK 51 AND BEYOND-FINAL REPORT.PDF

7 http://www.isna.net/articles/News/Shoulder-to-Shoulder-Campaign-Joint-Statement-Against-Extremism-of-All-Kinds.aspx

http://www.homelandsecurityssi.com/ssi/content/view/330/201/

http://www.homelandsecurityssi.com/ssi/content/view/323/201/

10 http://www.cair.com/Portals/0/pdf/islamophobiareport2009-2010.pdf

11 http://www.prnewswire.com/newsreleases/cairwash-state-agencies-drop-webinar-over-anti-islam-bias-92990484.html

12 http://www.homelandsecurityssi.com/radical-islam-training

13 http://libertybeat.blogspot.com/2010/03/recipefor-profiling-boston-transit.html

14 http://www.pfaw.org/rww-in-focus/the-right-wing-playbook-anti-muslim-extremism

15 http://www.loonwatch.com/2011/11/exclusive-loonwatch-interview-with-reza-aslan

16 http://www.thenation.com/blog/162387/muslim-students-challenge-allen-west’s-anti-islamic-speaker-capitol-hill

17 http://www.wired.com/dangerroom/2011/09/fbi- muslims-radical/

18 http://www.muslimadvocates.org/Losing_Liberty_The_State_of_Freedom_10_Years_After_the_PATRIOT_Act.pdf

19 http://seattletimes.nwsource.com/html/localnews/2016396669_cair04m.html

20 http://cairseattle.org/files/Letter%20to%20the%20DOJ%20to%20investigate%20FBI%20trainings.pdf

21 http://ikhwanophobia.com/2012/01/fbi-library-and-online-training-resources-stocked-with-islamophobic-material/

22 http://www.dhs.gov/xlibrary/assets/cve-training-guidance.pdf

23 http://www.brennancenter.org/content/resource/rethinking_radicalization/p.26

24 http://www.aljazeerah.info/Opinion%20Editorials/2012/January/9%20o/Mit%20Romney’s%20ME%20Adviser,%20Walid%20Phares,%20Israeli%20Stooge,%20Islamophobe,%20Implicated%20in%20Sabra-Shatila%20Massacre%20By%20Brooke%20Anderson.htm

25 http://thinkprogress.org/security/2011/07/29/283215/gaffney-bachmann-foreign-policy/

26 http://motherjones.com/politics/2011/02/david-yerushalmi-sharia-ban-tennessee

27 http://www.theatlantic.com/politics/archive/2012/01/singling-out-islam-newt-gingrichs- panderingattacks/252300/

28 http://mediamatters.org/research/200706120009

http://www.jewsonfirst.org/07c/keller.html

29 www.changethestory.nethttp://www.islamproject.org/community/

community.htmhttp://www.activevoice.net/newmuslimcool.htmlhttp://www.shelbyvillemultimedia.org/;

http://www.obsessionforhate.com/index.phphttp://www.mpac.org/programs/truth-over-fear/obsession-a-case-study.phphttp://www.obsessionforhate.com/therebuttal.php

30 http://www.google.com/hostednews/ap/article/ALeqM5hCe7GFq5cXy_sK1F064mOMwFXQwdocId=abc9fc7750a9483388231a4e7bcc13f7

31 http://articles.latimes.com/2007/nov/10/local/me-lapd10

32 http://atlasshrugs2000.typepad.com/atlas_shrugs/2011/02/in-an-expected-move-from-a-longtime-dhimmi-democrat-sheriff-lee-baca-is-attacking-representative-peter-king-for-his-national.html

33 http://www.americanprogress.org/issues/2011/08/pdf/islamophobia.pdf

34 http://www.washingtonpost.com/opinions/is-the-united-states-still-the-land-of-the-free/2012/01/04/gIQAvcD1wP_story.html

35 http://www.prnewswire.com/news-releases/cair-files-multi-state-records-requests-on-anti-muslim-law-enforcement-trainings-133886103.html

36 http://intelfiles.egoplex.com/2011-04-27-CAIR-FOIA-Ruling.pdf

37 http://www.nytimes.com/2012/01/24/nyregion/in-police-training-a-dark-film-on-us-muslims.html_r=2&pagewanted=2&hp

38 http://www.huffingtonpost.com/len-levitt/kelly-on-muslim-spying-wh_b_1105539.html

39 http://maclc1.files.wordpress.com/2011/08/maclc.pdf

40 http://www.guardian.co.uk/world/2012/jan/26/nypd-commissioner-kelly-anti-muslim-film?fb=optOut

41 http://newyork.cbslocal.com/2011/12/30/muslims-boycotting-bloombergs-interfaith-breakfast/

42 http://www.politicker.com/2012/01/26/lone-muslim-councilmember-defends-nypds-screening-of-the-third-jihad/

43 http://articles.nydailynews.com/2012-02-05/news/31028263_1_cair-radicalization-nypd-commissioner-raymond-kelly

44 http://homeland.house.gov/press-release/king-announces-hearing-iranhezbollah-threat-us-homeland

Law Enforcement Training and the Institutionalization of Islamophobia

According to Slate,1 Department of Homeland Security has doled out more than $300 million since 9/11 to at least eight prestigious U.S. universities to support “centers of excellence” including the National Consortium for the Study of Terrorism and Responses to Terrorism (START), the Center for Risk and Economic Analysis of Terrorism Events (CREATE), and the National Center for the Study of Preparedness and Catastrophic Event Response (PACER). Since 9/11, more than 200 colleges have created homeland-security degree and certificate programs. According to Slate, another 144 have added emergency management2 programs “with a terrorism bent” focused on narrow topics like “the psyche of terrorists.”

Among such centers, the Center for Homeland Defense and Security,3 funded by DHS and FEMA, offers a free, ready-made curriculum to more than 130 universities. The Naval Post Graduate School’s curriculum4 has also been especially popular. Slate notes a number of “disaffected Bush Administration officials” involved in this influential sector. The last time such a substantive academic shift took place on college campuses was the creation of African-American and women’s studies departments in the 1960s and ’70s.5

The NYPD’s acknowledged 2011 “one-off” training does not seem to have been an anomaly. A Naval Criminal Investigative Service (NCIS) surveillance detection course at the U.S. Naval Observatory in Washington, D.C., allegedly included the viewing of a propagandistic anti-Islam film that features notorious Islamophobes such as Daniel Pipes,Nonie Darwish, and Walid Shoebat, and promoted the theme “that “Islam is synonymous with Nazism.”6

Law enforcement is an enormous market. According to PRA’s Thomas Cincotta, “the domestic security apparatus is estimated to employ 854,000 individuals. Another 800,000 or more police, sheriff or tribal law enforcement and emergency personnel are being mobilized to respond to terrorism threats both real and perceived” across the nation.  He documents in chilling detail how some trainers troll this space to spread hateful distortions about Islam, operating with no professional standards and little accountability.7

Cincotta reports how in 2009 the Department of Homeland Security (DHS) worked without tracking how counterrorism training grants were being used and had no way to even measure if attendance at such meetings or conferences was “mission-critical.”8 Similarly, in a Washington Monthly article,9 Meg Stallcup and Jonathan Craze documented the bewildering bureaucratic tangle that hinders oversight.

With accountability so compromised, the politicization of intelligence-related training has continued unchecked– possibly also degrading standards at more established intelligence related institutes from Monterrey to West Point.10

Nonetheless, Muslim community efforts are largely reactive and under-resourced, often dependent on volunteer-led campaigns. Muslim donors and foundations continue to be scared away from donating to certain Muslim charities and social service organizations.11 Over 246 Muslim organizations and individuals were slapped with the stigmatizing and confusing designation “Unindicted Co-Conspirator” following the Holyland Foundation trials, a move that has been criticized by civil liberties groups.12 There is a profound impact on struggling organizations when donors are advised by risk management consultants to stay away from any potential controversy. 

Endnotes

1 http://www.slate.com/articles/news_and_politics/teachings/2008/03/terror_u.html

2 http://www.training.fema.gov/emiweb/edu/collegelist/

3 http://www.chds.us/

4 http://www.chds.us/?masters/curriculum

5 http://www.slate.com/articles/news_and_politics/teachings/2008/03/terror_u.html

6 http://www.prnewswire.com/news-releases/cair-seeks-probe-of-anti-islam-bias-in-military-training-88935352.html
http://www.islamophobiatoday.com/2011/06/01/pat-robertson-fighting-muslims-is-just-like-fighting-nazis/

7 http://www.publiceye.org/liberty/training/Muslim_Menace_Complete.pdf

8 http://www.publiceye.org/liberty/training/Muslim_Menace_Complete.pdf p. 14

9 http://www.washingtonmonthly.com/features/2011/1103.stalcup-craze.html

10 http://www.wired.com/dangerroom/2011/07/fbi-islam-101-guide/

11 http://www.charityandsecurity.org/Resource/ACLU_Report_Muslim_Donors

12 http://www.charityandsecurity.org/news/Appeals_Court_Holds_Closed_Door_Proceedings_Challenge_NAIT_Listing_Unindicted_Co-conspirator
http://www.aclu.org/nationalsecurity/designating-non-profits-terrorist-organizations-without-due-process-undermines-sec

Intelligence Fusion Centers: A De-Centralized National Intelligence Agency

President GeorgeW. Bush signs the Homeland Security Appropriations Act of 2004 in October 2003, launching fusion center financing. (Paul J. Richards/AFP/Getty Images)

President GeorgeW. Bush signs the Homeland Security Appropriations Act of 2004 in October 2003, launching fusion center financing. (Paul J. Richards/AFP/Getty Images)

In a 2007 article for the FBI Law Enforcement Bulletin, Colonel Bart Johnson explained how state-level intelligence “fusion centers” collect data from a range of sources and connect “seemingly unrelated” incidents that could be precursors of terrorist activity. At the time, Colonel Johnson led the New York State (NYS) Intelligence Center in Albany, where officers from a range of federal, state and local police agencies as well as civilian analysts function as a “nerve center” for all calls into a statewide terrorism tip line. He explains how in July 2004, his fusion center received an anonymous call warning of a college senior leading the campus Muslim Student Association, who, the caller claimed, had expressed hatred for America and was only in the country to teach Islam.

While researching the case, a state trooper found a link between this student and a report of a traffic stop involving two Middle Eastern men, who claimed to be Israeli musicians looking for a nearby synagogue where they were to perform for a wedding. A license plate check of their vehicle linked the registrant to the same address as the university student.1 The intelligence analysts then forwarded this information to the FBI Joint Terrorism Task Force to investigate further.

We don’t know what happened next because Colonel Johnson ends his story there. But even with these sparse details, his story raises concerns about racial and ethnic profiling, violations of free speech, and the intrusive power of fusion centers. These concerns loom even larger now that former Colonel Bart Johnson oversees the entire nationwide network of 72 fusion centers as Principal Deputy Under Secretary for Intelligence and Analysis of the U.S. Department of Homeland Security (DHS).

Despite a chorus of official assurances that fusion centers focus solely on illegal acts, this incident shows how police forces can blur the distinctions between activists and terrorists, and between immigrants and violent extremists.2 Here, the NYS intelligence center not only prompted a State Police investigation into a university student, whose politically oriented speech and religious identity triggered suspicion, but also initiated an investigation by the FBI Joint Terrorism Task Force based on national origin, a traffic stop, and tenuous links to the original “suspect.” Even worse, it is likely that all these details reside somewhere in a government database, easily retrievable using names and other key words.

The New York and 71 other statewide intelligence bureaus scattered across the country vastly extend the breadth and penetration of government surveillance of our society. Now six years old, the structure of this network is becoming clearer despite the woefully inadequate public exposure of its activities. This network constitutes a nascent de facto national intelligence agency, whose decentralized structure diminishes transparency and accountability. Without effective oversight, a narrowly defined mission, and new legal structures, the capacity of fusion centers to undermine fundamental freedoms could grow unchecked.

A Locally Owned and Operated Intelligence Machine

The Department of Homeland Security’s network of fusion centers operate under the auspices of state police or even large local police forces, thus sidestepping the guidelines enacted under the Privacy Act of 1974 that limit information sharing by federal agencies. Yet fusion centers have a national command center feel, with mosaics of television monitors, and desks for all the police agents assigned to work together and enjoy face time — the county sheriff, local police officers, the FBI, National Guard (restricted by law to drug-related missions), state police, Department of Homeland Security, and the civilian intelligence analysts. The FBI field office may rent space to fusion centers, and even helps run the Los Angeles fusion center, but it rarely plays a visibly lead role. Still, all the analysts are tied into federal information-sharing networks.

Since Homeland Security launched the program in 2003, these centers have evolved largely independently of one another. At first glance, smaller, more diffuse centers might seem to pose a smaller threat to civil liberties than a KGB-like national force. In truth, however, this decentralized network may be more dangerous, because it obscures lines of authority, subverts Congressional oversight and privacy guidelines, and turns numerous state and local police into intelligence agents.

Around the world, the War on Terror has served as an “indispensable Trojan Horse [enabling] intensified surveillance for all sorts of purposes.”3 As early as 1978, the Public Eye reported on an effort to bring the U.S. intelligence bureaucracy under one Director of National Intelligence that unsurprisingly failed amidst fresh memories of COINTELPRO – the FBI’s spying and dirty tricks program targeting activists— and Richard Nixon’s enemies list. By the 2001 attacks, memories of the domestic spying controversies of the 1970s had dimmed and calls for a national intelligence agency reemerged. Congressional sponsors of legislation that created the Department of Homeland Security wanted a fully functional intelligence organization within DHS, but the Bush administration preferred to realign organizations already under the authority of the FBI director, director of Central Intelligence, and the new director of national intelligence. As a result, Congress did not initially give DHS itself the capacity to produce raw intelligence.4,5 But today fusion centers give DHS the capacity to produce, not just receive, intelligence.

Fusion centers constitute a new piece in a vastly more powerful police apparatus. They give the executive branch an incredible physical reach into state and local communities.

Nurtured by more than $327 million in direct grant funding from 2004 through 2008, fusion centers won an additional $250 million in President Barack Obama’s stimulus plan to be spent by 2010 on upgrading, modifying, or constructing sites. DHS currently has 41 officers deployed at fusion centers and hopes to have an officer at every fusion center in the country by the end of 2010. By the end of 2008, governors, mayors, and police chiefs had established 72 operational centers within the United States and its territories, covering 49 states, District of Columbia, and Guam. Additionally, fusion centers in Idaho, Puerto Rico, and the U.S. Virgin Islands are in the final stages of development.

What is a Fusion Center?

Fusion centers gather, mine, and “fuse” data to help police fight crime and FBI agents stop terrorism. Data streams in from multiple sources, including intelligence groups, the federal government, other states, private databases, and open sources. Moreover, analysts scrutinize daily crime and 911 reports for patterns. Tips may come in to fusion center tip lines from citizens or police officers. Fusion centers also respond to requests for analysis from law enforcement agencies in the field, primarily investigators seeking to spot trends in areas like drug crime, gang activity, or theft.

If the fusion center generates or receives information determined to have a “potential nexus” to terrorism, the center sends it upstream to the “information sharing environment” for other agencies to review.  Local police and FBI Joint Terrorism Task Forces, not the fusion centers, are responsible for field investigations; although some, such as the Massachusetts Commonwealth Fusion Center, possess an investigative capacity.6

Fusion centers also aim to transform the culture of the intelligence community by forcing agents from diverse agencies to work with each other. The civilian analysts come from a variety of backgrounds, consisting primarily of retired law enforcement personnel, former military intelligence specialists, and veteran analysts from previous information sharing networks, such as the multi-jurisdictional High-Intensity Drug Trafficking Task Force.7

While the leadership and composition of fusion centers vary state-by-state, all retain specialists in visually mapping data to discern patterns.8 The degree of private involvement in fusion centers is not known, but companies like Boeing have attended fusion center briefings and even sought high-level clearance.9 InfraGard, a partnership between the FBI and private sector, has a permanent desk at the Los Angeles Joint Regional Intelligence Center. The Illinois Infrastructure Security Alliance (ISA) seeks to link more than 70 companies to the Statewide Terrorism and Intelligence Center via the Homeland Security Information Network, a national database with information from fusion centers.10 Fusion centers also have formal information-sharing agreements with other states, nearby cities and towns, and federal agencies.

Most fusion centers are managed by the state police. In Massachusetts, the State Police commands the state fusion center, while the Boston Police Department operates its own center fewer than forty miles away, the Boston Regional Intelligence Center. In Florida, the state Department of Law Enforcement runs the fusion center, while the Miami Dade Police Department maintains an active intelligence unit in southern Florida. In jurisdictions where the state police perform largely traffic functions, a state homeland security bureau may operate the fusion center. In Los Angeles, the Joint Regional Intelligence Center is jointly led by the LA County Sheriff, LAPD, and FBI.

Some states house their centers with the FBI’s Joint Terrorism Task Force; others rent space from the FBI field office itself.  The physical integration of these agencies – for example, Maryland State Police is headquartered in the same building as DHS – makes it more likely that information gathered in the course of political spying will be shared with other agencies and private partners.

Information Collection Force

Fusion centers facilitate the collection of massive amounts of information. DHS – itself comprised of 225,000 people in 22 separate agencies – uses fusion centers, information sharing, and agency integration as a “force multiplier” to tap into the potential of 718,000 state and local police in over 15,000 departments, plus local emergency responders, who could collect more data than 12,000 FBI agents. “There is never enough information when it comes to terrorism,” says Major Steven G. O’Donnell, deputy superintendent of the Rhode Island State Police.11 Unfortunately, the intelligence could be worthless and often is.

Fusion centers ostensibly complement the FBI’s Joint Terrorism Task Forces, which bring together local law enforcement with federal law enforcement components like Immigration and Customs Enforcement, Customs and Border Patrol, the Secret Service, and Transportation Security Administration. These two parallel systems for interagency coordination – one under DHS, the other under the Department of Justice – raise questions about redundancy and waste.  At the same time, though, the information from fusion centers gives DHS leverage and access to other federal intelligence.

It is a universe marked by redundancy. Information currently flows from fusion centers into a national “information sharing environment” such as the Homeland Security Information Network (HSIN), Protected Critical Infrastructure Information (PCII) Program, and Homeland Secure Data Network (HSDN – for classified data), which all sit alongside the Department of Justice’s Regional Information Sharing System (RISS), the FBI’s Regional Data Exchange and eGuardian, the Naval Investigative Services’ Law Enforcement Information Exchange (LInX) and the Law Enforcement Intelligence Unit’s (LEIU) LEO network (LEIU is a private organization of public law enforcement officials, including chiefs of police).

Fusion Centers Fall Short

Fusion centers appear to be falling short on their original aim of detecting and preventing terrorist plots by analyzing data for patterns suggesting terrorism. In theory, fusion center analysts take information from local-level criminal activity and analyze it to determine whether any connection exists between seemingly typical low-level crime and terrorist activity.

The Virginia Fusion Center identified “subversive thought” as a marker for violent terrorism.

Caroline Fredrickson, legislative director of the ACLU, notes that fusion centers are a direct institutional outgrowth of intelligence-led policing, targeting potential crime before it happens.12 This means a shift from investigating crimes that already occurred. John Pistole, Deputy Director of the FBI, invoked two oft-cited events that provide ideological justification for tracking crimes and individuals not usually associated with terrorist activity:

For instance, fusion centers are keeping tabs on criminal activity—everything from tax evasion to cigarette smuggling to robbery. On the surface, these may seem like relatively low-level crimes that only have a local impact.

But several years ago, we uncovered a cigarette-smuggling ring operating out of North Carolina. Members of the cell were transporting the cigarettes across state borders to sell them at a profit—and were using the profits to support Hezbollah in Lebanon.

And in August 2005, police in Torrance, California, arrested two men in a gas station robbery. When they searched the men’s apartment, they found documents listing the addresses of U.S. military recruiting stations and synagogues. They called the Joint Terrorism Task Force, and together we uncovered a terrorist cell, disrupted a terrorist plot, and possibly saved many lives.

We never know when something that seems typical may be connected to something treacherous.13

In each of those instances, however, traditional police work, not fusion centers, established the links between unlawful acts and terrorism (see box on Torrance). In practice, fusion centers are using their data systems to find missing persons or solve traditional crime; they are reacting to events more than preventing crime. Their analysts respond to incoming requests, suspicious activity reports, and/or finished information/intelligence products, and rely on existing understanding of problem areas to pull out data and patterns.14

Further, the logic of this network approach means that those who commit any infraction, as well as their innocent associates and family members, may be scrutinized for possible links to terrorists. According to a National Research Council study funded by DHS, “automated identification of terrorists through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts” because it inevitably conflicts with efforts to protect individual privacy.15 Continued funding for fusion centers as an antiterrorism tool should be premised on an empirical assessment of whether data analysis at the local level truly prevents terrorism. If this approach can only identify unsophisticated criminals and terrorists, an outcome that police seem to be accomplishing without fusion center support, fusion center practices and resources are not worth the risks to privacy and civil liberties.

Mission Creep

Although originally justified as an antiterrorism initiative to improve information sharing and collection at the local level, fusion centers rapidly drifted toward an “all-crimes, all-hazards” policy that is “flexible enough for use in all emergencies,” not just those specifically linked to terrorism. Mission creep is significant because 1) it undercuts the political justification for the network as a critical counterterrorism tool, and 2) it opens the door for surveillance and repression of protected free speech activity in order to “counter radicalization” or otherwise prevent “disorder” or nonviolent civil disobedience.

The vast majority of fusion centers now track major or organized crimes such as narcotics, violence and gangs, sexual offenses, or crimes that may be used to support terrorism efforts, or not. Rather than each department or squad having its own databases, fusion centers allow access to multiple databases and sources of intelligence; the drug squad in one community can share information with the anti-gang task force in another, picking up on patterns that may suggest an emerging threat as gangs set up to move into a new market or distribute new contraband. In addition, fusion centers assist with manhunts that cross jurisdictions, as when a baby was stolen in Tennessee and a serial killer went on a shooting spree in North Carolina.16

The leaders of some fusion centers have admitted that they switched to an “all-hazards” approach so they could apply for a broader range of grants, and because there was far too little terrorism-related information to analyze.17 They were agencies in need of a mission. According to documents provided to the Massachusetts ACLU, in 2006 the Massachusetts fusion center analyzed copper theft for four outside partners, studied school violence at five schools, investigated calls for fire department service, conducted three studies for the gang working group, while also compiling reports on port security, transportation security, gang assessments, and prisoner radicalization. Counter-terrorism is not their exclusive, let alone primary, priority.

The lack of a narrowly defined mission poses unnecessary risks to civil liberties. One fusion center study postulated that “there is, more often than not, insufficient purely ‘terrorist’ activity to support a multi-jurisdictional, multi-governmental level fusion center that exclusively processes terrorist activity.”18 Consequently, there is a risk that analysts’ skills could atrophy as would their interest, from a lack of relevant work.19

In the absence of purely terrorist activity, DHS’s emphasis on “ensuring that our communities are not places where violent extremism can take root” may invite fusion centers to identify local threats based on political rhetoric that is critical of government policies.  Evidence suggests this is already happening.  In February 2009, North Central Texas Fusion System issued a “Prevention Awareness Bulletin” calling on law enforcement to report the activities of Muslim civil rights organizations and antiwar protest groups. In March 2009, the Missouri State Highway Patrol was forced to halt the distribution of a report prepared by the Missouri Information Analysis Center that linked extremists in the modern militia movement to supporters of third-party presidential candidates such as Congressman Ron Paul of Texas and former Congressman Bob Barr of Iowa. The report also said that some militia members subscribe to anti-abortion beliefs or oppose illegal immigration – suggestions that created a public uproar among law-abiding groups concerned that they were being lumped in with violent, dangerous people.20

Most government data mining today occurs in a legal vacuum outside the scope of the Fourth Amendment barring unreasonable searches.

Furthermore, the Virginia Fusion Center’s 2009 Threat Assessment identified “subversive thought” as a marker for violent terrorism and thus targeted “university-based student groups as a radicalization node for almost every type of extremist group.”21 In words reminiscent of “communist front” theory dating to the Cold War, Virginia Fusion Center analysts warned of the Muslim Brotherhood’s alleged strategy of boring from within by infiltrating different Islamic organizations and obtaining leadership roles. DHS also monitored the D.C. Anti-War Network and shared information with the Maryland State Police – most likely through the fusion center – during a year-long infiltration of Baltimore area peace and social justice organizations in 2007-2008.22

Recording Our Legal Activities – LAPD’s Special Order #11

In early 2009, casino security officers contacted the Southern Nevada Counter-Terrorism Center after witnessing three men taking photos of the casino’s ceiling on a quick visit to the building. Analysts reviewed the casino’s surveillance videos and issued a law enforcement bulletin asking other casinos to report any similar activity. Three months later, officials had nothing more to report.23

Fusion centers encourage corporate partners and local police alike to report activities such as people taking photographs. These “suspicious activity reports” (SARs) become data, waiting to be activated by an analyst working in the fusion center system. The growing popularity of SARs are tied to a new criminal intelligence theory, supported at the highest levels of the U.S. domestic intelligence enterprise, that collecting outwardly innocuous behaviors enhances security. The Los Angeles Police Department’s “suspicious activities” program is a national model that the Office of the Director of National Intelligence (ODNI) set out to replicate and standardize at fusion centers around the country in 2008.24 LAPD had ordered its officers to report behaviors that include innocuous, clearly subjective activities clearly protected by the First Amendement’s assurances of free speech, such as:

  • taking measurements
  • using binoculars
  • taking pictures or video footage “with no apparent esthetic value”
  • abandoning a vehicle
  • drawing diagrams
  • taking notes
  • espousing extremist views

Drawing on this strategy, in January 2008, the Director of National Intelligence urged state and local law enforcement to “report non-criminal suspicious activities,” which were defined as “observed incidents or behaviors that may be indicative of intelligence gathering or pre-operational planning related to terrorism, criminal, or other illicit intention.” The standards left the meaning of “other illicit intention” and “terrorism” to people’s imaginations.25

In August 2008, the U.S. departments of Justice and Homeland Security, along with the Major City Chiefs Association, issued a report recommending the expansion of the LAPD suspicious activity program to other U.S. cities. Currently, Los Angeles, Boston, and Miami are among the sites experimenting with this standardized reporting process. As one official observes, “In many instances the threshold for reporting is low, which makes it extremely difficult to evaluate some of this information.”26 The reduced threshold for reporting also leads to too much collection. In the words of Bruce Fein, once a staffer to former Republican Congressman Bob Barr of Iowa,

Since anything might be a clue as to a possible psychological inclination to commit terrorism, everything is fair game for intelligence collection.  But when everything is relevant, nothing is relevant.  Finding something useful in the mass of undifferentiated intelligence reports and analysis is thus akin to looking for a needle in a haystack.  That may explain why there is no credible evidence that fusion centers have frustrated a single terrorist plot – their primary raison d’être.27

Data-Mining and Private Databases

Fusion centers reflect the tendency of surveillance systems to grow both in depth – with reams of information on any one person – and in breadth by broadening the variety of sources of personal data that they draw on. With unprecedented access to criminal, intelligence, and private sector databases, fusion centers give local authorities an exceptional capacity to monitor behavior and select individuals or communities for intervention. Accordingly, fusion centers responded with vigor to the FBI and Department of Homeland Security’s 2006 guidelines urging them to “obtain access to an array of databases and systems.” Although the guidelines listed only public information assets, such as motor vehicle databases, state fusion centers now contract with private data brokers to access private information like unpublished cell phone numbers, consumer credit profiles, insurance claims, car rentals, and real estate sales. In 2009, DHS announced a new arrangement with the U.S. Department of Defense that allowed select fusion center personnel to access terrorism-related information from the Department of Defense’s classified network.

The logic of surveillance systems is to grow.

The rise of cyberspace, mobile telephones, and a nearly universal reliance on credit and debit cards has, as James Rule put it, “created cornucopias of actionable personal data to tempt the surveillance appetites of institutions.”28 For instance, in Massachusetts, the Commonwealth Fusion Center website boasts access to Accurint, Lexis-Nexis, LocatePlus, and Autotrack, a product of Atlanta’s Choicepoint, the giant private data aggregator that moved aggressively into the domestic intelligence market after 9/11.29 Autotrack permits subscribers to browse through more than 17 billion current and historical records on individuals and businesses with as little as a name or social security number as a starting point. In Maryland, authorities similarly rely on a data broker called Entersect, which maintains 12 billion records on about 98 percent of Americans. Systems like fusion centers feed on steady diets of supposedly “actionable” personal information– all accessed without a warrant.

Privacy Pitfalls

State governments established fusion centers with federal dollars in the absence of any legal framework, and their data mining occurs in a legal vacuum outside the scope of the Fourth Amendment, which bars unreasonable searches.30 Although data mining can have real consequences for individuals tracked, there are no legal guarantees for the accuracy or appropriateness of the data or the searches, no redress for people injured by being falsely identified as posing a threat, and no judicial or legislative oversight. Some fusion centers purge data searches after one or five years, but no one is responsible for doing so. Fusion center records are also beyond the reach of the Privacy Act of 1974, which regulates and gives individuals access to the files of federal agencies.

The main federal regulation governing criminal intelligence databases is 28 CFR Part 23.  Congress enacted Part 23 in a series of reforms initiated during the 1970s to curb widespread abuses of police investigations for political purposes.  It is designed to ensure that police intelligence operations focus on illegal behavior by requiring that criminal intelligence systems “collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.”

Fusion centers receiving federal funds are required to abide by Part 23, but the federal government actively promotes the violation of the regulation by encouraging fusion centers to collect noncriminal intelligence and to draw on public and private sector data. Not only is the government failing to enforce or intensely monitor compliance with Part 23, but this regulation may not go far enough to protect privacy and free expression in the current environment.

Part 23 may not apply to data-mining and access functions of the fusion center since it regulates collection rather than the processing of information held by other parties. For example, New Mexico’s All Source Intelligence Center has access to 240 state, regional, and federal agencies in their databases, including agricultural and parks agencies. Establishing what kinds of information fusion centers are processing can be difficult, according to Peter Simonson, executive director of the New Mexico ACLU chapter, because they do not store the records nor even collect them, but simply mine them through digital gateways. Records are accessed, not retained as they would be in specific case or investigative files.31 Therefore, fusion centers may technically comply with Part 23, but still actively assault the right of individuals to be free from government surveillance and its concomitant social pressures to conform.

The lack of a narrowly defined mission poses unnecessary risks to civil liberties.

In their 2005 book, Protecting Liberty in an Age of Terror, Juliette Kayyem and Philip Heymann argue that we need new protections for individuals against what appears to be the unrestricted authority of the government to collect and mine information. They recommend a system where courts must give authorization before agencies can collect and access data on individuals, Congress sets standards for the various types of authorization, and the legislative branch oversees the whole process. To date, no such protections exist.32 Perhaps there is “hope” in the fact that Kayyem now serves as Assistant Secretary of Intergovernmental Programs at DHS.

Resist Mass Surveillance

The logic of surveillance systems is to grow.  Because there is no “natural limit” to the incorporation of personal information in systems of mass surveillance, our only defense is collective action to impose limits on the post-9/11 intelligence apparatus.33

Russell Porter of the Iowa Fusion Intelligence Center keeps a copy of the Bill of Rights posted near the front door of the center’s office, and he insists that fusion centers are only interested in investigating criminal activity. That should provide little comfort.  The good intentions of some government officials will not protect the public from abuse that will inevitably occur given lax oversight, ill-defined missions, and inadequate legal protections. Executive-branch repression of dissent using personal data stretches back as far as the Palmer Raids after World War I. More recently, President Ronald Reagan used tax audits to pressure critics of his Central American policies and George W. Bush enacted his secret warrantless wiretap program. Based on the historical record, American intelligence agencies have not earned the trust of Congress, the courts, or the people when it comes to domestic surveillance.

An engaged Congress which takes its oversight role seriously must enact a new series of legal protections on the scale of those of the 1970s. (See box on Constitution Project proposals.) Just as Americans’ fought for reform in the 1970s, it will take investigations by Congress, state legislatures, attorneys generals, journalists, and citizens to expose the current practices of fusion centers and build the political pressure necessary for change. Lawyers representing protestors and defendants in terrorism cases can also play a key role in discovering how these institutions are monitoring their clients. Lastly, just as DHS engages academia in promoting troublesome theories of intelligence-led policing and violent radicalization, civil libertarians must respond in kind. In a free society, civil liberties must be the cornerstone of antiterrorism policy, not an afterthought, as it has been in the development of fusion centers.

Sidebars

Torrance:  A Genesis Fable for Fusion

Bipartisan Call for Oversight

Endnotes

1 Bart C. Johnson, “A Look at Fusion Centers Working Together to Protect America,” FBI Law Enforcement Bulletin, December 2007, pp. 28, 30.

2 See, e.g., Bart Johnson, Testimony before the House Committee on Homeland Security (June 24, 2009), stating, “As a former law enforcement professional who well understands the critical importance of the rule of law in making our people and places truly safe, I pledge to you that strict adherence to privacy, civil rights and civil liberties laws and regulations will be the starting, mid and end points of [Intelligence and Analysis’] homeland security intelligence work under my watch.

3 James B. Rule, Privacy in Peril(New York: Oxford University Press, 2007), p. 14.

4 Bruce Berkowitz,“Homeland Security Intelligence:  Rationale, Requirements, and Current Status,” inAnalyzing Intelligence, ed. Roger George and James Bruce, (Washington, DC: Georgetown University, Center for Peace and Security Studies, 2008), pp. 281-293.

5 See EPIC’s website for a timeline of the development of fusion centers.

6 Massachusetts Commonwealth Fusion Center, “Guidelines for Investigations Involving First Amendment Activity,” No. CFC-04, March 5, 2008.

7 Joseph Straw, “Smashing Intelligence Stovepipes,” Security Management, March 2008.

8See, e.g., Neil MacFarquhar, “Protest Greets Police Plan to Map Muslim Angelenos,”CommonDreams.org, November 9, 2007.

9 Joseph Straw, “Smashing Intelligence Stovepipes,” Security Management, March 2008.

10 Joseph Straw, “Fusion Centers should work with ISACs,” Security Management, November 2007.

11 Robert O’Harrow, “Centers Tap into Databases: State Groups Were Informed After 9/11,” Washington Post, April 2, 2008.

12 Fredrickson.

13 John S. Pistole, “Remarks” at National Fusion Center conference, March 7, 2007.The Torrance gas station robberies were connected to a terrorist plot only after a search of a suspect’s home revealed jihadist literature and indicia of planning; the Norwalk-based fusion center did not predict such a connection based upon the string of robberies.

14 John Rollins, Congressional Research Service, “CRS Report for Congress:  Fusion Centers: Issues and Options for Congress,” updated January 18, 2009, p. 25. (PDF)

15 Fredrickson, p. 7, quoting, “Protecting Individual Privacy In The Struggle Against Terrorists: A Framework For Program Assessments,” Committee On Technical And Privacy Dimensions Of Information For Terrorism Prevention And Other National Goals (2008).

16 Jeanie Powell, “Tennessee Authorities Determine Stolen Baby Wasn’t For Sale,” WAFF48 News, October 5, 2009; Craig Peters, “Manhunt for killer intensifies after the fifth victim dies,” GoUpstate.com, July 5, 2009.

17 Todd Masse, Siobhan O’Neil and John Rollins, “CRS Report for Congress:  Fusion Centers:  Issues and Options for Congress,”Congressional Research Service, July 6, 2007, 22, n.45, cited in Caroline Fredrickson, “Statement Before the Subcommittee on Terrorism and Homeland Security, Senate Committee on the Judiciary,” April 21, 2009. (PDF)

18 Milton Nenneman, “An Examination of State and Local Fusion Centers and Data Collection Methods,” Thesis, Naval Postgraduate School, March 2008, pp. 2-3.

19 Nenneman.

20 ACLU, “Fusion center encourages improper investigations of lobbying groups and anti-war activists,”CommonDreams.org, February 25, 2009.

21 See Stephen Webster, “Fusion center declares nation’s oldest universities possible threat,” The Raw Story, April 6, 2009.

22Matthew Rothschild, “ACLU Highlights Risk of Fusion Centers,” The Progressive, July 30, 2008.

23 Jeff German, “Fusion center’s attention on prevention,” Las Vegas Sun, May 22, 2009.  The Las Vegas center opened with the help of a $4.6 million federal grant and costs an estimated $1 million a year to operate.

24 LAPD Order #40 compels LAPD officers to report “suspicious behaviors” in addition to their other duties in order to create a stream of “intelligence” about a host of everyday activities that will be fed to the LA-based Joint Regional Intelligence Center (JRIC).

25 Under pressure from civil libertarians ODNI revised its directive in April 2009 to require that non-criminal activities have a “potential nexus to terrorism.”  It is not clear how “Version 1.5” of this directive has been implemented or if officers have been retrained in light of the change.

26 Brian Jackson, ed., The Challenge of Domestic Intelligence in a Free Society, (New York: RAND Corp., 2009), p. 31 (internal citation omitted). (PDF)

27 Bruce Fein, Statement before the Subcommittee on Intelligence Sharing & Terrorism Risk Assessment Committee on Homeland Security, April 1, 2009.

28 Rule, p. 37.

29 See Robert O’Harrow, No Place to Hide (New York: Free Press, 2006).

30 O’Harrow.

31 Hilary Hylton, “Fusion Centers: Giving Cops the Right Information?” Time, March 9, 2009.

32 Philip B. Heymann and Juliette N. Kayyem, ed. Protecting Liberty in an Age of Terror (Cambridge, MA:, MIT Press, 2005).

33 ACLU, “What’s Wrong With Fusion Centers,” December 5, 2007.

From Movements to Mosques, Informants Endanger Democracy

In February, California mosques discovered the FBI had hired a con man to infiltrate their communities.

In February, California mosques discovered the FBI had hired a con man to infiltrate their communities.

In February, 2009, members of the Islamic Center of Irvine learned that the Federal Bureau of Investigation (FBI) had hired Craig Monteilh, a 46-year-old fitness instructor and convicted con man, to infiltrate their mosque and keep it under surveillance. Members had wondered about Monteilh for a while. Back in 2007, the local chapter of the Council on American-Islamic Relations (CAIR), alarmed by his talk of jihad and plans for a terrorist attack, reported him to Irvine police and secured a three-year restraining order against him.

The news that Monteilh not only infiltrated the Irvine mosque but mosques across Orange, Riverside and Los Angeles counties came out during a bail hearing for Ahmadullah Niazi.1 Niazi, an Afghan native and U.S. citizen, was up on charges that he had lied about ties to terrorist groups on immigration applications, because he did not disclose that his brother-in-law was Osama bin Laden’s bodyguard, and that he traveled to Pakistan in 2005 where he allegedly met with a terrorist.

Posing as a new convert, Monteilh arrived at the Irvine Islamic Center in 2006 wearing robes and a long beard, using the name Farouk Aziz. Monteilh had a long rap sheet and had served 16 months in state prison on two grand-theft charges. But he found new friends in government in his new role. FBI Special Agent Thomas J. Ropel III testified that Monteilh recorded Niazi on multiple occasions, talking about blowing up buildings, sending money to the mujahedeen, and acquiring weapons, although the government has not charged Niazi with terrorism. Niazi is said to have refused to become an FBI informant after he complained to the agency about Monteilh.2

We don’t yet know if Monteilh’s talk of jihad egged Niazi on. Was he an agent provocateur, like the two well-paid FBI informants in the 2006 Sears Tower terror plot,  supposedly concocted by men from Miami’s deeply impoverished and predominantly black Liberty City neighborhood? After two hung juries, in May a third jury finally convicted five out of the six defendants for planning to blow up the Chicago landmark. The New York Times quoted a law professor as saying, “It goes to show that if you try it enough times, you’ll eventually find a jury that will convict on very little evidence.” Previous juries viewed the FBI informant posing as a member of al Qaeda as the driving force behind the plot. Despite paying informants over $130,000, the FBI produced no evidence of explosives, weapons or blueprints, only a videotape of defendants pledging an “oath” to al Qaeda, recorded in a warehouse wired by the FBI. The defendants are petitioning for a new trial.

Since the government’s use of secret informants is increasingly visible, in mosques and in an array of activist networks, so too are questions about whether the spies instigated events and infringed on people’s constitutionally protected rights to free speech, association, and privacy.

In a dozen or so cases exposed within the last few years, informants facilitated bomb-making, provided logistical support, cajoled others with provocative language, and goaded people to break the law. Not every informant can be blamed for provoking illegal activity, and entrapment is a difficult thing to prove. Targets of surveillance do often plan or commit crimes: witness the five men sentenced to life terms in April 2009 for their role in plotting an armed assault on Fort Dix in New Jersey. Yet, even in that case, informants played key roles in planning those crimes.

By and large, evidence shows informants do not merely observe and collect data. They make things happen. Their mere presence creates distrust and conflict, making them an efficient tool of repression that in recent years has affected broad, predominantly Muslim communities in the United States, as well as left-wing activists. Informants can cause confusion and dissatisfaction among members of groups and communities they infiltrate, discrediting leaders, and fostering factionalism as people wonder if any of their colleagues are spies. Their handlers’ structure of incentives – raises, promotions, transfers, financial rewards, waived jail time – creates a system where informants consciously or subconsciously create and then destroy terrorist threats that would not otherwise exist. These pressures can push them from passive observer to aggressive actor, with serious consequences for constitutionally protected free speech. Another unplanned result: government loses legitimacy and support in the eyes of targeted communities, if they feel they have been manipulated.

Today’s informants carry the same disruptive potential as their counterparts in the FBI’s 1960s-era counterintelligence program (COINTELPRO), which aimed “to expose, disrupt, and otherwise neutralize the New Left organizations, their leadership and adherents.”3 Today’s agents are shrugging off constraints placed on them in 1976, after the program’s illegal break-ins, assassinations, and dirty tricks against civil rights, antiwar and other activists were exposed. Following high-profile investigations, Congress limited the Bureau to investigating activists they believed were about to be, or were actually engaged in, criminal activity.4

But in the post-9/11 environment, intelligence gathering is driven by a theory of preventive policing: in order to anticipate the next terror attack, authorities need to track legal activities – much like the “pre-crime” units depicted in the film Minority Report. Pre-emptive policing dovetails with a police-promoted belief that “radicalization” is a key cause of violent extremism.5

This emphasis on prevention and radicalization blurs the distinction between thought and action by specifying ideological orientation as grounds for suspicion. It justifies investigating anyone or any group identified as fostering “subversive” ideas. It focuses not on crime, but on the possibility that a crime might be committed at some future date. This entire approach conflicts with the democratic notion – enshrined in the Constitution and numerous Supreme Court decisions – that government may not inquire into or restrict thought and speech.

Attorney General Eric Holder has not stated whether he will revisit lax Bush-era guidelines (see box). Despite the availability of alternative, less constitutionally “iffy” investigative techniques, the use of informants appears to remain a favorite tactic – not only of the FBI, but, as we know from 2008’s political conventions, local police as well.

Agents Provocateurs at the RNC

Few civil liberties advocates were surprised when they learned police had deployed informants before and during the 2008 Republican National Convention in St. Paul, Minnesota. Both the FBI and the Ramsey County Sheriff’s Department dispatched informants to spy on protest organizations. Their efforts eventually led to the arrest of eight activists prior to the convention on charges of conspiring to commit illegal acts. While the county prosecutor dropped terrorism charges against them in early April, the RNC 8 still face felony conspiracy charges that they promoted riot and property destruction in an effort to “shut the city down.” The trial is expected to begin in September 2009.6 But activists and civil libertarians have already learned about tactics that cause grave concern about the protection of free speech rights.

The spies filed about a thousand pages of reports for an investigation that cost $300,000 to the county alone.7 The sheriff’s three undercover operatives are notable for their diversity: a female narcotics officer in her 50s, a 20-something female jail guard, and a headstrong muscular guy looking to be pushing 30.

Marilyn Hedstrom, the narcotics officer, introduced herself to anarchists as “Norma Jean Johnson” in August, 2007, telling activists she had issues with Bush and the Iraq war.8 She cooked meals, ran errands, worked the security detail, and represented the organization at gatherings. Her reports show no talk of property damage or even protests at meetings she attended, but much discussion of internal strains, gripes, and names of activists.

Informant Rachel Nieting, a guard in the county jail, accompanied Hedstrom posing as her niece, but did not fit in. Complete with a fake Facebook page under the alias “Amanda,” Nieting did not gain the same level of acceptance from the anarchists as Hedstrom had, and dropped out. Hedstrom covered for “Amanda,” explaining that she found a new boyfriend.

In their various roles, undercover agents can seriously distort the life of a social movement, as sociologist Gary Marx has argued.9 Hedstrom and Nieting’s participation made the organization seem larger and more inclusive. Nieting wrote that she and Hedstrom were the only two women to join Karen Redleaf at a women’s caucus. Redleaf, a committee member, talked about how disconnected she felt and said was only coming to Sunday meetings because “Norma Jean” was there.10

The third informant, Chris Dugger, had tattoos and resembled a biker. He portrayed himself as participating in a radical movement for the first time. Still, he was accused by another member of being a cop. Denying the charge that he was an informer, Dugger became visibly emotional, wiping his eyes, blowing his nose, and telling the group how bad he felt. He must have been convincing, since two of the anarchists later told him “a cop would have just walked away and never returned and wouldn’t cry.”

By August, 2008, Dugger reportedly urged one anarchist to suspect another of being an informer. This highly disruptive practice, known as “snitch-jacketing,” was a common tactic of COINTELPRO operatives. Snitch-jacketing not only stirs distrust, but can also provoke violence. For his efforts, Dugger’s handlers won him a job in the county jail.

The FBI’s informant, Andrew Darst, infiltrated the “action faction” having been first seen in anarchist circles three years before. He became active in committee meetings of the RNC Welcoming Committee and reported on events held by other, nonanarchist organizations. Not only did he record meetings, his apartment in Minneapolis was wired for audio and video recording.11 In March, 2009, Darst pled guilty to two counts of misdemeanor assault and one count of property damage after breaking into a house by ripping the door off its hinges, confronting his wife, and striking two men present.

But this Minnesota-based spy was not the only person the FBI deployed to track people planning to protest the RNC. The example of Brandon Darby, a magnetic, discontented Texas activist, reveals how easily the fuzzy line between informer and instigator can be crossed.

The Darby Case

For eighteen months before the 2008 RNC, the FBI paid more than $11,000 to Darby, a gun-toting, outspoken Texas radical, to spy on fellow activists in Austin and then St. Paul. Darby was a charismatic leader with a reputation for defying authority who infiltrated the Austin Affinity Group for the FBI after becoming disgruntled with anarchist tactics. Government infiltration by a respected leader, handled by an FBI agent untrained in handling informants, presented the perfect setting for an agent provocateur to thrive.

Darby’s deep involvement illustrates the pressures inherent in the informant’s role. Informants must choose between being passive observers who yield sparse information and wield little influence, or more active participants who produce better information, but also affect what happens more directly – raising the risk of possible complicity and entrapment.

On the eve of the convention, two activists under Darby’s surveillance, 22-year old David McKay and 23-year-old Bradley Crowder, concocted eight Molotov cocktails and stored them in a basement. Crowder pled guilty in the fall of 2008, but McKay’s case went to trial. The jury split evenly on the issue of whether Darby, the elder turncoat, had entrapped him. McKay eventually pled guilty before his second trial began, saying he would have made the Molotov cocktails even without Darby’s encouragement. But the question remains: Were the two men egged on by the charismatic Darby?

Darby was a self-identified revolutionary who slept with a gun under his pillow, according to friends. In the aftermath of Hurricane Katrina, he took an AK-47 and a handgun to New Orleans to help rescue an old friend in a neighborhood inundated by muddy water and White militias. He was a leader of the Common Ground relief effort in New Orleans and a member of the Austin activist community for more than ten years. Friends in New Orleans say he openly supported the use of firebombing as a tactic.

The government loses support among targeted communities if they feel they have been manipulated by the use of secret informants.

Given the need for informants to observe rather than lead, it is curious that the FBI found someone like Darby suitable for the task. Guidelines require the Bureau to evaluate the potential informer’s motivation, dangerousness, and the extent to which the FBI can ensure that the information gathered is related to criminal matters. The guidelines do not address the potential for provocation per se, but FBI Agent Timothy Sellers said he cautioned Darby not to take a leading role.12

Sellers charged Darby with spying on a range of Austin-area activists, particularly the Austin Affinity Group.13 Darby gathered information on a number of people engaged in lawful activism, including some who had no plans to attend the Republican Convention. He described meetings with his affinity group and people in Austin, Minneapolis, and St. Paul for the FBI. At times he wore recording devices, including a transmitter embedded in his belt. Four months before the RNC, he went to Minnesota and provided detailed narratives to authorities on meetings with activists from New York, San Francisco, Montana, and elsewhere.14

“The wider net cast by Darby in his information gathering shows that he was part of an FBI campaign to suppress political dissent and activism,” said Will Potter, a journalist with the alternative press. “By gathering information on law-abiding activists and then defending his actions as stopping violence, Darby contributes to the public perception that political dissent is criminal, which has a chilling effect on free speech.”15

Sociologist Gary T. Marx’s study of agents provocateurs and informants suggests that the nature of informing may lead the informer beyond his or her assigned task, particularly when the motivation is personal or ideological. In his study, Marx identifies the potential motives of informants, including patriotism, coercion, financial reward, disaffection with activists, double agents who want to assist the movement, converts who lose their zeal, and provocateurs who find success in the role by exceeding their mandate.16

After returning from a trip to Venezuela, Darby said, he began to see major problems with “violent elements” of the movement and actions being planned by the RNC Welcoming Committee. Explaining his motivation to work for the FBI, he said he merely wanted to protect the Republicans’ right to participate in the political process.

Ideological motives may produce poor information, says Marx. Disgruntled informants tend to exaggerate or even lie: “There is no limit to which people will go to get even for a real or imagined wrong.”17 Darby shared his employers’ assumptions that anarchists were determined to use violence. “Such agents may thus feel free to encourage activists to take violent action or to report false information. They may feel that the group poses such a severe threat that any means (even lying to superiors) are necessary to destroy it,” warns Marx.18

The FBI did not require Darby to shed his revolutionary fervor. Militant language and a reckless temperament remained part of his public persona. According to Lisa Fithian, who worked with Darby for a number of years, “Brandon was always provoking discord and aggression, in the antiwar movement in Austin in 2003, in protests in Houston against Halliburton, and in disaster relief at Common Ground in New Orleans.”19 At his first meeting with McKay and Crowder, he said, “I’m going to shut this f..ker down” and “any group I go with will be successful.” Darby lambasted the two for looking like a bunch of “tofu-eaters” who needed to “start eating meat and bulk up” so they could fight.20 In fact, he trained them in martial arts.

Disgruntled informants tend to exaggerate or even lie, producing poor information.

There was no reason for Darby to tone down his rhetoric as an informant, although such language could inspire illegal action by younger colleagues. The informant’s secret status frees him or her from the constraints with which more prudent activists contend. Just as Monteilh championed violent jihad, Darby could express militancy without fear of reprisal. As Frank Donner observed, “the infiltrator’s secret knowledge that he alone in the group is immune from accountability for his acts dissolves all restraints on his zeal.”21

One of Darby’s big moments came after the FBI seized shields that the affinity group made to use in blocking streets during the Republican Convention. Darby told McKay, “We’re not going to take this lying down. You’ve got to do something about it.” The next night, McKay and Crowder bought materials for Molotov cocktails. Darby claims that he urged restraint. When McKay considered hurling the Molotov cocktails at police cars parked at a station, Darby texted him, “It’s your call. I support you making whatever choice you are comfortable with. Be proud of yourself for your work and take a chill.” When McKay suggested that there were too many police around, Darby texted, “it’s all good, sometimes it’s best to fight another day … – it’s ok, I’ll support you.”

Although Darby wore a wire to transmit his conversation with McKay about the Molotov cocktails, FBI agents took notes but made no recording. This raised suspicion among jurors that Darby had crossed the line from surveillance to provocation.

Informers and Muslim Americans

Informers generate suspicion deep into the communities under surveillance. “What these guys have done is create an environment where every person begins to suspect the other and with the infighting and inward suspicion, the community becomes its own victim,” said Shakeel Syed, executive director of the Islamic Shura Council in southern California.

Across the country in New Jersey, two FBI informers helped lead the five Duka brothers down a similar path, ending with their sentencing on April 28, 2009 for conspiracy to commit terrorism.22 Authorities opened the Fort Dix file in 2006 after a Circuit City clerk showed police a video the brothers asked him to convert to DVD. On the video, camouflaged, bearded men shot semi-automatic weapons at a shooting range in the Poconos, where the defendants played paintball, skied, rode horses, and played videogames with their male buddies. On tape, the men shouted “Allahu Akbar,” meaning “God is Great.” Thinking the weapons were automatic, the clerk phoned police. In the eyes of the FBI, these were gun fanatics taping a training video or training for jihad. Had they not been Albanian Americans, the shooters’ bravado might not have raised suspicion. But in the post-9/11 world, the video offered cause for investigation.23

Rather than interview the brothers, or merely monitor them – investigative options that seem old hat in the informer age – the FBI dispatched two untrained civilians to ingratiate themselves with the men in the video. The first informer, Mahmoud Omar, was a convicted felon who entered the United States illegally in 1992 and faced fraud charges. The FBI told him they would clear his debts and help him obtain legal residence, and paid him $238,000 for his undercover work. The second informant, Besnik Bakalli, received $13,000 from the FBI, immigration assistance, and pardon for an old shooting charge from Albania.

Informant Omar was the apparent leader of any plot against Fort Dix. He organized “reconnaissance missions” in which he drove Mohamed Shnewer around potential targets while he railed against the United States. Omar stoked Shnewer’s fire, although he claimed during the trial that he was just trying to fit in. But Shnewer took the bait. On August 1, Shnewer told Omar, “If you want to do anything here, there is Fort Dix and I don’t want to exaggerate, and I assure you that you can hit an American base very easily…When you go to a military base, you need mortars and RPGs.” Omar offered to turn such fantasies to reality, promising to introduce his comrades to an arms dealer and giving them a list of weapons he could procure.

The recordings stretched out over a month, during which Omar badgered defendant Serdar Tatar to get him a map of Fort Dix. Tatar eventually did – but not before he called Philadelphia police to report being pressured for the map and voiced concern that it could be terror related.24

Informants can promote militancy without fear of reprisal from the government.

Without the FBI’s agents provocateurs, there might never have been a plot or weapons. Transcripts record some defendants explicitly rejecting violence. In a conversation recorded in April, 2007, Dritan Duka rebuffed Bakalli’s appeals for violent action. “We are good the way we are,” he tells him. “We are not going to kill anyone. Even if we kill anyone, you can’t run away. They will catch you right away.” But this did not deter the informers. At some points, the defendants seemed too scared to do anything. When they were supposedly shopping for weapons, one defendant worried that “as Muslims, if we get caught, we all get sent away to f…ing Guantanamo Bay for ten years with no court date.”25 Nevertheless, several defendants were caught on tape talking callously about killing as many soldiers as they could in a fantastic assault on the Fort. FBI arrested the six after the Duka brothers bought seven high-powered rifles in a deal set up by Omar.

“Many in the Muslim community will see this as a case of entrapment,” said Jim Sues, executive director of the New Jersey chapter of the Council on American-Islamic Relations (CAIR), who attended the trial. “From what I saw, there was a significant role played by the government informant.”26 Dr. Ian Lustick, political science professor at the University of Pennsylvania, notes that, Ever since 9/11, national, state and local authorities have tried with enormous resources to find, prosecute, and punish Muslim terrorists inside the United States. The result has been an increasingly embarrassing string of trumped-up charges that trigger much War on Terror warrior chest-pounding, and screaming, terrifying headlines for weeks following the arrests and indictments. Then, months or even years later, when evidence is put before juries and the public, we find that the real “perpetrators” were the paid government informants, seeking profit by inciting and enabling cheap talk and any acts they can produce by gullible, emotional and foolish suckers.27

The Impact on Mosques or Movements

Whether in a mosque or a movement organization, informants achieve the same results: demoralization, helplessness, cynicism, and immobilizing paranoia. After Brandon Darby admitted spying on his friends, Lisa Fithian told Democracy Now, “We feel traumatized. We feel as if somebody that we thought actually had good intentions and cared for this community has been a lie.” Conventional invasions of privacy are alienating and even dehumanizing. But government surveillance goes further, tampering with the very group dynamics through which political change is brought about.28

According to a recent study by sociologists Amory Starr and Luis Fernandez, government surveillance causes activists and citizens to fear participation in completely legal events and to be reluctant to donate to organizations, sign petitions, and receive newsletters. Civic participation is cut back. Allies such as churches will abandon groups under surveillance. Perceiving an increase in government repression, some activists quit entirely. Those who remain active find an organizing culture that was once open is replaced with a “security culture,” complete with reduced discussion, less note-taking (since it makes people look suspicious), and more secretive planning. A broad perception is created that activists’ political work is marginal, criminal, or suspicious.29

Inevitably, surveillance and even the fear of surveillance on the part of those not actually monitored produce a pervasive self-censorship. One activist described the effect: “I had to learn not to welcome people and not give out information . . . I’m interested in community building, and then you’re taught to be suspicious and not welcome people; it’s antithetical to your theory of change.”30

When a person’s politics come under hostile investigation by a secret police unit in a country like the United States that boasts of its freedom, it is traumatic, to say the least. The undercover character of the investigation, the assumed guilt of the person, the denial of an opportunity to answer any charges and confront the accuser, can all be shattering. People are made even more vulnerable by the secrecy of the probe and the knowledge that government may maintain a file on them for the rest of their lives.31 The hallmarks of a security culture are exclusion, wariness, withholding information, and avoiding diversity. As Starr and Fernandez report: “It’s hard to build when you’re suspicious.”32

The same is true for Muslim communities – it is harder to organize if you are wary about others. Through the reckless use of informants, the government has actively cultivated distrust in both activist and targeted populations.  “It gives you a little bit of apprehension about who you trust,” said Omar Turbi of the Islamic Center of Irvine. “Makes you think twice about what you say; what if people misunderstand you?” Hussam Ayloush, Executive Director of CAIR in Anaheim, added, “Some average Muslims interested only in praying are avoiding mosques for fear of somehow being monitored or profiled. Everybody is afraid, and it is leading to an infringement on the free practice of our religion.”33

Today many of the abuses of COINTELPRO are no longer illegal.

Not only is freedom of religion being chilled, but the government’s use of informants is alienating Muslim Americans. As recently as this spring, allegations of widespread infiltration of mosques led several Muslim and Arab civil rights and community organizations to call for ending ties with law enforcement.34 David Cole notes that “when law enforcement and intelligence officials treat a wide cross-section of the Arab and Muslim community as suspect largely by virtue of their ethnicity or religion, Arabs and Muslims will be less likely to cooperate with authorities and provided needed information.”35 CAIR, the largest Muslim group in the country, had played an important role as liaison between the agency and Muslim communities.

Do Informants Make People Violent?

A team of behavioral scientists paid by the U.S. Department of Homeland Security is studying what turns radicals into violent extremists. But what about the influence of highly motivated informants? Paid informants are highly intrusive, aggressive, and potentially provocative. The ability of informants to neutralize democratic change and disrupt communities should raise concerns about whether pre-emptive policing is worth its social and political costs. As civil rights lawyer Frank Donner said, sizing up the surveillance through the 1970s, “under the warrant of protecting the democratic process from disruption and violence, the intelligence state is seriously jeopardizing it.”36

When Maryland activists learned that a state trooper infiltrated dozens of social justice groups over a fourteen-month period, they banded together with the ACLU and Defending Dissent Foundation to urge passage of a state oversight bill.37 Social justice groups, including animal rights and environmental activists, must strengthen ties with Muslim, Arab, Middle Eastern, South Asian, and immigrant groups facing infiltration to demand constraints on how and when informants may be used to spy on Americans. Demands should include the use of less intrusive means of surveillance when a crime is suspected; independent oversight to ensure better supervision and training related to the use of informants for legitimate law enforcement purposes; and a ban on compiling dossiers on individuals and groups based solely upon their political, social or religious activities and beliefs. At a minimum, progressives must insist on re-establishing the protections instituted after the disastrous COINTELPRO programs, requiring suspicion of criminal activity as a threshold for government spying.

These are all in the best interests of the government, not just its citizens. In the long run, the government risks losing crucial support and legitimacy when its investigative tactics even appear to cross the line into provocation and unlawful investigation of protected First Amendment activities.

Candidate Obama explicitly invited Americans to mobilize as a counterweight to the “undue influence of the lobbyists” who “stand in our way.”38 “I’m asking you to believe,” he said, “not just in my ability to bring about real change in Washington; I’m asking you to believe in yours.” For that energy and enthusiasm to coalesce into an organized political force, the Obama administration must rein in domestic intelligence practices that disrupt communities and discourage activism.

Changes in Justice Department Guidelines Needed

Today many of the abuses of COINTELPRO are no longer illegal. Break-ins, wiretaps, and mail covers have been supplanted by national security letters and “sneak and peak” searches, authorized under the USA Patriot Act enacted after 9/11. The danger of these intrusions to privacy and free speech is magnified by the expansion of the domestic security apparatus. The fruits of surveillance can flow rapidly through 70 state intelligence fusion centers, channeling information across jurisdictions from local police to national security agencies.

The election of Barack Obama does not portend a sea change in domestic intelligence policy. There are no signs that his administration is rolling back definitions of terrorism stretched to encompass acts of nonviolent civil disobedience.39 FBI Director Mueller, who serves a ten-year term, worked with former Attorney General Mukasey to issue new Guidelines for Domestic Operations in 2008 that:

  • Authorize agents to attend meetings of a religious or political nature without any suspicion of criminal or terrorist activity;
  • Decrease internal supervision and coordination at various stages of investigation;
    Expand the scope and duration of preliminary inquiries that turn up nothing;
  • Permit agents to misrepresent themselves and conduct “pretext interviews” to elicit information; and
  • Encourage the use of more intrusive techniques with no sense of prioritization.40

Who is Anna?

“Anna” was an FBI informant for two years, who came to activists’ attention at a Fort Lauderdale protest of the Organization of American States (OAS) meeting in June, 2005. Ray Del Papa watched her, dressed as a medic with a red cross on her shirt and bag, directing young people to sit down in the street directly in front of a line of police in riot gear, using provocative language even though organizers had decided against sit-ins.41 They had not counted on an informer in their midst. Anna went on to sleep with a young anarchist who was eventually given a prison sentence of 19 years and seven months for conspiring to sabotage a U.S. Forest Service genetics tree lab and nearby fish hatchery in Rancho Cordova, California. Juror statements that they felt unfairly hemmed in by the judge’s instructions on whether the anarchist, Eric McDavid, was “predisposed” to commit the crime before meeting the informant; that now forms some of the basis of his appeal.42

Endnotes

1 Salvador Hernandez, “Tustin Man Suspected of Terrorist Ties Pleads Not Guilty,” Orange County Register, March 2, 2009.

2 Gillian Flaccus, Calif. case highlights use of mosque informants,” Associated Press, March 1, 2009; Matt Coker, “A look at Craig Monteilh,” OC Weekly, March 4, 2009 ; Teresa Watanabe and Paloma Esquivel, “L.A. area Muslims say FBI Surveillance has a chilling effect,” Los Angeles Times, March 1, 2009.

3 Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant: the Agent Provocateur and the Informant,” American Journal of Sociology 80 (Sept. 1974) pp. 415-421, p. 434.

4 Gregory F. Treverton, Reorganizing U.S. Domestic Intelligence: Assessing the Options, (New York: RAND Corporation, 2008), p. 7.

5 This year’s National Fusion Center Conference featured a closed session on the radicalization phenomenon and “understanding the process that leads a person to support and/or pursue violence.” U.S. Dept. of Homeland Security, 2009 National Fusion Center Conference, March 10-12, 2009.

6 Randy Furst, “Terrorism charges against RNC 8 are dropped,” Minneapolis Star Tribune, April 10, 2009.

7 According to the Minneapolis Star Tribune, the reports documented internal strains, gripes and names of activists, but no talk of property damage.

8 Randy Furst, “Anarchist looked like someone’s mom,” Minneapolis Star Tribune, December 1, 2008.

9 Marx, p. 403.

10 Marx, p. 428. “Specious activists may help perpetuate a protest group by offering the kinds of resources and moral support that are often in short supply among those who take highly unpopular positions and engage in illegal actions. Because of their need to be accepted, agents often work very hard, are often very successfully at gaining new recruits for the movement, and even at starting new branches of a movement.”

11 Revolution, “Political Persecution of the RNC 8: Part 2 Informants and Undercover Agents,” March 11, 2009; Randy Furst, “RNC Informant Found Guilty in Minnestrista Assault,” Minneapolis Star Tribune, March 23, 2009.

12 FBI Confidential Informant Guidelines, § II.A.1. A September 2005 Special Report of the Office of the Inspector General (OIG) found one or more Guidelines deficiencies in 87 percent of the confidential informant files it examined. OIG also noted failure by executive managers to hold first-line supervisors accountable for compliance deficiencies and exercise effective oversight of agents operating informants. See also Dan Eggen, “FBI agents often break informant rules,” Washington Post, September 15, 2005, p. A15.

13 Diana Welch, “The Informant: Revolutionary to Rat,” Austin Chronicle, January 23, 2009, p. 7.

14 Colin Moynihan, “Activist unmasks himself as federal informant in G.O.P. Convention Case,” New York Times, January 5, 2009.

15 Austin Informant Working Group, “Austin RNC Informant Brandon Darby is Provocateur Not Hero.”

16 Marx, p. 421.

17 M. McMann, “The Police and the Confidential Informant,” M.A. thesis, University of Indiana (1954) in Marx, supra, p. 416, n.17.

18 Marx, p. 420.

19 Austin Informant Working Group, “Austin RNC Informant Brandon Darby is Provocateur Not Hero,”. “Prominent Austin activist admits he infiltrated,” radio interview.

20 Austin People’s Legal Collective unofficial verbatim notes of McKay’s trial.

21 Frank Donner, The Age of Surveillance (1971) as quoted in Marx, p. 434.

22 The jury acquitted them of attempted murder.

23 Amanda Ripley, “The Fort Dix Conspiracy,” Time, December 6, 2007.

24 Geoff Mulvihill, “Informants’ action key in Fort Dix terror case,” Newsday.com, May 10, 2007.

25 Stephen Lendman, “The Troubling Case of the Fort Dix Five,” Counterpunch, December 31, 2008.

26 Nick Juliano, “Entrapment? Five convicted in Ft. Dix plot,” Raw Story, December 22, 2008

27 Dr. Ian Lustick, Statement on the Fort Dix Terror Plot case, December 22, 2008.

28 Frank Donner, The Age of Surveillance: The aims and methods of America’s political intelligence system(New York: Vintage, 1981) p. 7.

29 Amory Starr, Luis Fernandez, Randall Amster, “The impact of surveillance on the exercise of political rights: an interdisciplinary analysis 1998-2006,” Qualitative Sociology 31, (July 2008), pp. 251-270

30 Starr, et.al.

31 Donner, p. 6.

32 Starr and Fernandez, p. 15.

33 Teresa Watanabe and Paloma Esquivel, “L.A. area Muslims say FBI surveillance has a chilling effect,” Los Angeles Times, March 1, 2009.

34 Samantha Henry, “Some Muslims Rethink Close Ties with Law Enforcement,” Associated Press, May 4, 2009.

35 David Cole, Enemy Aliens (New York: New Press: 2003), p. 183.

36 Donner, p. xv.

37 Lisa Rein and Josh White, “More Groups Than Thought Monitored in Police Spying: New Documents Reveal Maryland Program’s Reach,” Washington Post, January 4, 2009, p. A01.

38 Barack Obama, victory speech after primary, South Carolina, January 26, 2008.

39 Nancy Chang, Silencing Political Dissent, Seven Stories Press, 2002, pp. 112-113. See e.g., Dane E. Johnson, “Cages, Clinics, and Consequences: The Chilling Problems of Controlling Special-Interest Extremism,” Oregon Law Review 86 (2007), pp. 249-294.

40 James X. Dempsey, “Anti-Terrorism Investigations and the Fourth Amendment After September 11: Where and When Can the Government Go to Prevent Terrorist Attacks?” Statement before the House Committee on the Judiciary, May 20, 2003.

41 Jennifer Van Bergen, “FBI confidential informant also said to be provocateur,” The Raw Story, June 8, 2006. Anna was also the subject of an Elle magazine investigation in its “Green Issue.” Andrea Todd, “The Believers,” Elle, May 2008, pp. 266-325.

42 Dennis Walsh, “Student’s path to FBI informant,” Sacramento Bee, September 13, 2007, B5.

First Amendment Blues: Police Tactics Suppress Free Speech

Co-authored by Abby Scher

 

Abby Scher is a sociologist and former editorial director of PRA. She also served as PRA’s interim research director.

Public Eye winter 2007 V4

Police block the streets of New York during the 2004 Republican National Convention. Their aggressive tactics silenced protesters. (Spencer Platt/Getty Images)

Three of the cops had jumped out of the white nondescript van and attacked me. They were all wearing ski masks and dressed as anarchist black bloc protesters. I threw up my hands and offered no resistance. They punched me and I fell to the ground and attempted to protect myself. They kept punching me, kicking me, and then they dragged me into the back of the van. They took me to a small windowless room in the police station where they proceeded to interrogate me about my political affiliations, schooling, and friends. They never took off their ski masks.

–Miles Swanson, Legal Observer at the Free Trade Agreement of the Americas meeting in Miami, November 2003

Miles Swanson was a legal observer monitoring whether police stuck to the law in their treatment of protestors at the November 2003 Free Trade Agreement of the Americas meeting in Miami. That was the meeting where busloads of steelworkers were stopped before they could join the demonstrations, while others protesting peacefully on the streets were shot with rubber bullets.

Swanson is active in the National Lawyers Guild, a progressive bar association whose members often serve as legal observers at protests. Even before the demonstration, police featured him in a PowerPoint identifying key people coming to Miami for the protests. Then he became victim of a “snatch squad,” a new police tactic where officers drag protestors off, having singled them out based on their perceived political ideology. Does a protestor dress in black like an anarchist? Is she a ringleader? Better watch out.

Police tamper with evidence in order to justify roundups of peaceful protestors.

It is unconstitutional to target someone for arrest based on their political views, but snatch squads are only one of many new government tactics that are chilling Americans’ free speech rights. These tactics are not authorized by laws passed by Congress or a state legislatures, but are devised and adopted informally through expanding networks of police agencies. Because the tactics emerge in relatively informal ways, the overall impact on activities protected by the Constitution’s First Amendment – particularly free speech and the right of assembly – evades public scrutiny. Yet as police violence and harassment grow, these actions become normalized, sending a message that the very act of protest is unlawful. The police’s aggression heated up as war brewed and burst open, driving a politics of fear, suggesting that activists are violent, activists are terrorists, and strong measures are needed to curb the threat from within. It mutes opposition by raising the stakes of speaking out.

We now know more about these tactics and their spread thanks to lawsuits around the country challenging federal, state and local police targeting of activists. Because some of their worst – and most revealing – offenses took place around the party conventions of 2004 and 2000, progressive lawyers are drawing lessons from the past to prepare for defending constitutional free speech rights in another election year. Even now the U.S. Secret Service and other agencies are preparing for the Democratic Convention, August 25-28 in Denver and the Republican Convention, September 1-4 in St. Paul. Whether or not the lawsuits – or the softening of the hysteria that accompanied Bush’s drive to war – will dampen the police response, those of us defending free speech understand their playbook and will come prepared.

Pre-emptive Policing

These new tactics serve to chill speech even before concerned citizens have spoken. Mass arrests round people up even as they are assembling. Police deny permits for demonstrations based on who is doing the demonstrating and what they want to say. Squads force demonstrators into constricted “free speech” zones, using pop-up police lines to trap protesters before conducting mass illicit arrests and detentions for those caught on the wrong side of the line. They routinely use supposedly nonlethal weapons like rubber or wooden bullets, pepper spray, and Tasers on people gathering peacefully. Less visibly but no less chilling, police used fire code violations as a way to close down activists’ organizing centers, as in Philadelphia before the 2000 Republican convention.1

At the federal level, civil libertarians pay a lot of attention to the way the Bush Administration has enlarged the scope of spying on citizens behind closed doors, with or without the approval of Congress. With the aid of the Federal Bureau of Investigation, organized regionally through Joint Terrorism Task Forces, the same is happening at the local and state levels. New York City, with its own homeland security director, is a lead innovator. To avoid public scrutiny, the city’s police department finds unconventional channels to enact rules that subtly constrict free speech. In 2006, the NYPD proposed requiring permits for a host of mundane activities such as riding bicycles and gathering with friends on sidewalks – prompted by an increased suspicion of bicycle activists who ride monthly in “Critical Mass” events to promote biking and safer city streets. After a judge ruled the proposed parade permit law was beyond the bounds of the constitution and a burden on free expression, the NYPD proposed even more impractical regulations which were eventually enacted. By making protest a threatening or difficult experience – as with free speech zones and pop-up police lines – police are discouraging people from turning out to peaceably assemble and present their views.

The New York Times and others raised an outcry when the city denied demonstrators a permit to gather on the Great Lawn of Central Park during the 2004 Republican Convention. A lawsuit failed to win the permit in time for the convention – clearly legal delays are yet another mode of repressing free speech. More commonly, government agencies raise permit fees or require that the groups sponsoring the gathering take out astronomical levels of insurance. The Pentagon demanded thousands of dollars in fees from those organizing a March 2007 antiwar protest, only to back down in the face of a threatened lawsuit.

There is another, insidious, form of pre-emptive policing: intimidating or preventing concerned citizens from joining a demonstration. Sounding a media drumbeat about all the trouble activists are planning is one way the authorities try to discourage people from coming out. Visiting and intimidating people is another. The FBI used both tactics before the 2004 Republican convention when agents dropped in on activists around the country who the FBI claimed would have information on potential violence. As the New York Times reported at the time:

FBI officials are urging agents to canvass their communities for information about planned disruptions of the convention and other coming political events, and they say they have developed a list of people who they think may have information about possible violence. They say the inquiries, which began last month before the Democratic convention in Boston, are focused solely on possible crimes, not on dissent.2

The article went on to quote Sarah Bardwell of Denver, a 21-year-old intern of American Friends Service Committee who was visited: “The message I took from it was that they were trying to intimidate us into not going to any protests, to let us know that,’hey, we’re watching you.’” The FBI interviewed dozens, and three St. Louis, Missouri men represented by the local American Civil Liberties Union (ACLU) said they were trailed by agents. An FBI spokeman explained, “We vetted down a list and went out and knocked on doors and had a laundry list of questions to ask about possible criminal behavior. No one was dragged from their homes and put under bright lights.” An April 2006 report by the FBI’s Office of the Inspector General dismissed the idea that the agency had done anything improper or encroached on people’s First Amendment rights.

Sometimes the pre-emptive policing tactics are a bit more immediate, as with the steelworkers trying to get to Miami. During the February 2003 anti-war demonstration on the east side of Manhattan, police detained people in unheated vehicles who were heading for the event, preventing them from attending, as a lawsuit by the New York Civil Liberties Union (NYCLU) demonstrated. Police set up a patchwork of crowded pens, then slowed people’s ability to enter them by searching bags, creating logjams in a demonstration that attracted at least 750,000; some frustrated people turned back and never made it to the rally.

One of the most frightening examples of pre-emptive policing involves the gathering of evidence from people merely because of their political opinions. Local police have stopped by activists’ homes requesting DNA for their files, and the NYPD detained hundreds of peaceful protestors for mass fingerprinting during the 2004 RNC. The NYPD only destroyed the fingerprints – which can legally be taken only from people charged with a violation and whose identity is in question – after the NYCLU sued.3

In Washington, D.C., a secret FBI intelligence unit and local police detained a group of protesters in town in April 2002 to demonstrate against the invasion of Iraq. Officers took them to a downtown parking garage where they were questioned on videotape about their political and religious beliefs as well as about protests they had attended and whom they spend time with.4 Police records reveal that the protesters were targeted because they were all wearing black clothing and were thus believed by police to be anarchists. In response to efforts by the activists’ lawyers at the DC-based Partnership for Civil Justice, the police expunged their arrest records. Still unresolved is their lawsuit charging that local and federal law enforcement violated the U.S. Constitution by singling out people for arrest based on their perceived political ideology, targeting people the government perceived by their clothing to be anarchists.

Although officers cannot legally collect purely political information unless they suspect criminal activity, this case shows agents doing exactly that.

The targeting of anti-war demonstrators goes well beyond this incident, as activists themselves have long known. Within the past two years, Freedom of Information Act suits and whistleblowers have documented spying on the pacifist Thomas Merton Center in Pittsburgh, on Oakland’s Direct Action to stop the war, on anti-war groups on the Santa Cruz and Berkeley campuses and scores more, plus the existence of a secret Pentagon database tracking 186 antiwar protests and hundreds of groups in 20 states.5

PATRIOT ACT’S THREAT TO FREE SPEECH

The USA PATRIOT Act continues to pose a threat to free speech. Section 215 allows government agents to secure records and determine which library books someone has checked out, and which books someone has purchased from a bookstore. Even someone’s browsing on a library computer is open to scrutiny.

Prosecutors failed to convict a computer science graduate student under Section 805 for providing “material support” to terrorists in his role as webmaster. In 2004, a jury declined to convict him. Yet the material support statute remains as a threat to free association and free speech.

The PATRIOT Act loosened restrictions on the use of National Security Letters to gather information in intelligence investigations. The FBI bypasses the courts and uses the letters to get customer records from telephone companies, internet providers, banks and other institutions. The Department of Justice’s Office of Inspector General found widespread abuse in the FBI’s use of the letters. Plus the FBI retains all the information it collects, whether the person is tied to terrorism or not.
15

Police Tamper with Evidence

One of the most disturbing under-the-radar techniques used to impede free speech is police tampering with evidence in order to justify roundups of peaceful protestors. Once again, the NYPD is the leader in this area. During the 2004 Republican National Convention, police doctored video evidence to justify the unlawful arrests of peaceful bystanders and protesters, giving those altered tapes to defense attorneys and the courts, and engaging in perjury and evidence tampering. Alexander Dunlop was one person exonerated after it came out that the police had given his lawyer a video of his arrest during the RNC which had been edited to justify their claim that he had resisted.6 An unedited version clearly showed Dunlop asking a police officer for directions and that he was not involved with a nearby demonstration.

Targeting Animal Rights Activists

At the highest level, the Justice Department chills free speech by applying the emotion-laden designation of “terrorist” to activists. This opens the door to local police intimidation, the levying of higher charges and penalties, and can influence the outcome of trials. By marking environmental and animal rights activists as “domestic terrorist” threats, the Justice Department emboldens local “intelligence” units, like the one in DeKalb County, Georgia, which was caught taking pictures of vegan demonstrators leafleting a Honey-Baked ham store in 2002.16 The agents arrested two of the vegans, and demanded they turn over their notes on which they’d written the license plate of an undercover officer’s car. The intelligence unit was funded by the feds to the tune of $12 million.

Alabama’s Department of Homeland Security only removed a web site listing environmental and animal rights groups as potential terrorists in May 2007 after bloggers discovered it (The site also listed regional gay rights and anti-abortion groups).

Congress did its part in criminalizing political speech with the sweeping language of the Animal Enterprise Terrorism Act (AETA), passed in November 2006. This law makes it a crime to cause any business classified as an “animal enterprise” (e.g., factory farms, fur farms, vivisection labs, rodeos and circuses) to suffer a loss in profits – even if the company’s financial decline is caused by peaceful protests.

The damage is already visible in an animal rights case against seven New Jersey members of the group Stop Huntingdon Animal Cruelty. Jurors found them guilty of criminal conspiracy under a 1992 law for listing the animal testing labs of Huntingdon Life Science on their website as a possible target for protestors. This spring, the defendants received sentences ranging from three to six years, but their convictions reverberate far beyond their families and friends into the courts and other political groups by criminalizing their use of the Internet.

The prosecution presented no proof that anyone had actually attacked or even protested outside the labs as a result of reading the website. The government premised its prosecution on two narrow exceptions to the First Amendment: (1) the defendants used Internet websites to incite others to participate in a campaign to close Huntingdon Life Sciences, and, (2) the words on the websites and the language of the campaign constituted a true threat.

The website did not post targeted threats against specific individuals, as did the website in the so-called Nuremberg Files Case decided in 1992, Planned Parenthood v. American Coalition of Life Activists, which posted personal information about abortion providers, and the names of doctors who were murdered had lines through them, crossing them off.

The extent to which such evidence tampering is occurring in police departments around the country is difficult to know. Had it not been for the volunteer-based group, I-Witness Video, the doctoring would likely not have been discovered. Over 200 I-Witness volunteers documented arrests and police activity at the protests, making sure that their video evidence would be usable, if needed, in later court proceedings. Working in alliance with legal observers from the National Lawyers Guild who monitored most of the RNC demonstrations, their videos helped vindicate several people who were falsely arrested on disorderly conduct charges, and were used in the defense of approximately 400 of the 1,806 people arrested during the Convention. Eileen Clancy was the I-Witness Video volunteer who discovered the tampering on Dunlop’s tape:

It really hadn’t occurred to us that they [the police] were making these kinds of edits. It was really shocking. I mean, when we had to put these two tapes on monitors next to each other and run them at the same time, and we sat there and you saw the – when we saw the cut, I think – I mean, I was astonished that this happened. This is – I mean, it’s just absolutely outrageous. They took out the parts that basically prove he’s innocent. So, I mean, it was – it’s quite extraordinary this happened.7

In addition to physical evidence proving video tampering, other examples of police perjury are now out in the open, thanks to litigation. At a February 2006 Critical Mass ride, NYPD assistant chief Bruce Smolka pulled graduate student and Guild Legal Observer Adrienne Wheeler off her bicycle, pinning her to the ground and causing several injuries. He did not identify himself as a police officer, nor did he ask her to stop her bicycle before hauling her to the ground. Police issued a traffic ticket to Wheeler, based on police testimony that she was riding the wrong way on a one-way street.

As was proven later in court, the officer who gave a sworn statement saying she personally say her riding the wrong way, had lied. In September 2006, a traffic court judge dismissed charges against Wheeler after NYPD Officer Alfred Ortiz admitted he gave false statements under oath. The National Lawyers Guild New York City Chapter provided videotapes of the incident to the Civilian Complaint Review Board (CCRB) in March showing clearly that Smolka did not identify himself as an officer nor issue any warning beforehand.

Infiltration and Provacateurs

Beyond police perjury, police infiltration and provocation continues to be a difficult-to-monitor constraint on free speech. Infiltration and provocation change the tone of protest by initiating violence falsely attributed to protesters. Using provocateurs, police can actually change the speech that political groups are trying to communicate.

Jim Dwyer of the New York Times drew on Clancy’s forensic video analysis to reveal police sparking confrontations by arresting police officers who were disguised as activists, both at the RNC and at Critical Mass bicycle events.8 Bystanders objected to the false arrests, and the police thus succeeded in creating a conflict and an unruly situation. As history has shown, during the McCarthy period and other moments in U.S. history, knowing that political activities could be under scrutiny can intimidate people and stop them from stepping forward with their political opinions. Yet infiltration has become widespread, at least in New York City and California, where the ACLU of Northern California catalogued numerous examples in a July 2006 report.9 In California, Camille Russell, a Fresno schoolteacher, discovered Peace Fresno was infiltrated while reading an obituary of a sheriff’s deputy killed in a motorcycle accident who was a member of the group under another name.10 Campus anti-war activists at Fresno State, a United Food and Commercial Workers at a labor rally protesting Safeway supermarkets in Contra Costa, and other activists have also stumbled over plainclothes or undercover officers at events.

In March 2007, Jim Dwyer of the New York Times broke the story of the secret surveillance going on, as New York City police detectives traveled the world to spy on and infiltrate groups that might attend RNC protests.11 Recently released records show they were even interested in the FTAA protest where Miles Swanson was arrested.

Since 2003, New York police officers posed as activists and attended meetings of political, artistic, and church groups, made friends and exchanged email messages, and, during the RNC confrontations, reported daily with the NYPD Intelligence Division. They also spied on a city councilman, Sean Combs, Jay-Z, Alicia Keys, and other stars connected with the Hip Hop Voters Summit. The pages of intelligence reports – with many sections blacked out and unreadable – were only released this spring, leaving you wondering how they saw a threat in the comedy troupe Billionaires for Bush, or Brooklyn Parents for Peace.

To avoid public scrutiny, New York’s police department finds unconventional channels to enact rules that subtly constrict free speech.

The new chairman of the House Homeland Security Committee, Bennie Thompson, met with the NYPD in May 2007 to express his concern that police spying had violated civil liberties and gone into states and countries outside of its jurisdiction.12 The New York Police Commissioner continues to say the RNC was his department’s finest hour, and continues to ignore a federal court order to release its intelligence records from that period in response to an NYCLU lawsuit.13

Weakening Old Limits on Surveillance

I went to the 2000 DNC prepared for trouble. I saw then-LAPD Chief Bernard Parks brandishing his new toys – an arsenal of “less-lethal” weapons – cavalierly pledging there would be no replay of the Seattle WTO in his city. That’s why, along with pens, paper, and other tools of legal observing, I had a hockey helmet in my backpack. Not that it did much good. It didn’t protect me from the pepper spray in my face or the club across my back. And it certainly didn’t help when I got shot. The rubber bullet hit me on the thigh as I tried to run away, knocking me off my feet and leaving me helpless.

As I watched the LAPD beat peaceful demonstrators at the Immigrant Rights march on May Day [seven years later] I wasn’t surprised. Disregard for the demonstrators’ rights seems to be ingrained in the LAPD, no matter how much settlements, consent decrees or court judgments cost them. They’ll do it again.

–Dave Saldana, Asst. Prof. of Journalism at Iowa State University, attorney, and NLG member.

The NYPD widened its spying on political groups and people in 2003 despite a court ruling restricting its power to do so. It burst the bounds of limits placed on it by the courts following the exposure in the 1970s of decades of spying abuses, not just by cities but by the FBI’s COINTELPRO (counterintelligence program). Police departments across the country faced consent decrees – agreements to modify unconstitutional surveillance and other policies – that were diluted or dropped before but especially after 9/11 under Democratic and Republican administrations. Police returned to the bad old days, once again instilling a fear in people’s minds that their antiwar or other political activities are being watched.

Soon after September 11th, the NYPD asked U.S. District Court Judge Charles Haight to lift the guidelines for investigating religious, political or other “associational” activity set out in 1986 in the wake of the lawsuitHandschu v. Special Services Division.14 The settlement prohibited, among other things, creating files on groups or individuals based solely on their political, religious, sexual, or economic preference. It required police to submit a request for spying to a three-person panel and to show that the group or person had “criminal intent.” Haight agreed that the new threat of terrorism justified changing the consent decree – dropping the need to go to the panel or demonstrate criminal content – and he instructed the police instead to adopt guidelines modeled on new ones created by Bush’s Justice Department to govern the FBI’s political investigations. What that means legally has been in dispute in the courts since early 2004. Nonetheless, the police took the modified decree as an open door for widespread infiltration and surveillance of political groups.

Another longstanding consent decree – Chicago’s Alliance to End Repression Consent Decree, or the Red Squad federal consent decree – was modified in January 2001 after Chief Judge Richard A. Posner for the Seventh Circuit U.S. Court of Appeals wrote that it essentially left the police helpless to protect the public. Signed in 1981, the original agreement prohibited police from spying on or disrupting a political group unless it is engaging in criminal activity. Now police can spy on demonstrators as long as the intelligence gathering is documented and audited to monitor compliance with the court order. The police admit that they videotape demonstrations with the express purpose of identifying individual protesters for later action.

Denver, the location of the upcoming Democratic convention, has its own sordid history to tell. Its police were spying on the local Amnesty International chapter, American Friends Service Committee, and Chicano activists for years until it came out late in 2002 when someone leaked a printout of some of the records. Following an ACLU lawsuit, the Denver police agreed to purge their files and stop spying. Yet officials worked hard to save funding for Colorado’s “fusion center,” where Denver police, along with federal and state agents, sift through local and national intelligence and other information to find signs of terrorist threats. Even as local police go tocourt to remove themselves from judicial constraints over their spying, the feds poured millions of dollars to set up such intelligence centers outside of these courts’ jurisdiction from coast to coast.

Subpoenas as Intimidation

In the past eight years, we have seen authorities intimidating activists by issuing them subpoenas to appear before a grand jury. Environmental and animal rights activists but also anti-war activists have found themselves hauled before these chambers. The FBI has actually admitted that it uses both email monitoring and subpoenas to gather information on activists.

THE FIRST AMENDMENT OF THE BILL OF RIGHTS

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here is only one example that hit close to home to one of the authors, who is executive director of the National Lawyers Guild. In October 2003, the NLG received word from a member in Des Moines, Iowa that local authorities had told her that her e-mail was likely being monitored. On February 3, 2004 that same member, Sally Frank, a law professor and an advisor to the Guild chapter at Drake University, called to say that the authorities had issued subpoenas for four antiwar protesters in Des Moines to appear before a grand jury. Federal prosecutors also subpoenaed Drake University for records of its National Lawyers Guild chapter, including names of officers, information relating to an antiwar training in November 2003 entitled “Stop the Occupation! Bring the Iowa Guard Home,” and reports dating back two years. The government also issued a gag order on employees of the University. These actions puzzled the locals, mobilized the Guild, and quickly attracted national attention, because they seemed to target individuals based on their political activity. After the U.S. Attorney’s Office took the unusual step of issuing a statement confirming its investigation, the Guild won its motion to quash the subpoena on First Amendment grounds.

Preparing for 2008

Long drawn out lawsuits to defend civil liberties may be victorious, eventually, but rarely soon enough to allow the people to have their say, when they want to say it. So lawyers are working with activists to prepare ahead of time for possible police responses to the next party conventions.

In St. Paul and Denver, Guild and ACLU lawyers are already negotiating with public officials to prevent demonstrators from being channeled into cramped, fenced off “free speech zones” distant from events. As one lawyer reported, “In a free society, a security zone that corrals all dissenting voices and treats us all like criminals cannot substitute for true law enforcement…responding to specific articulable facts that amount to reasonable suspicion that a crime is being committed.” From previous experience, the lawyers have learned to go to court as soon as a so-called free speech zone is proposed.

“In the past, federal judges have expressed concern over the legality of restrictive protest zones but claimed it was too late for them to do anything about it. We have to seek relief sooner,” says NLG member Thomas Cincotta of the law firm Kurtz & Peckham. “But how do you ask a court to enjoin a protest zone that hasn’t even been put in place? We must make the case that these restrictive plans are in place now, despite the government’s refusal to disclose them to us.”

In both cities, the permitting process is being manipulated by authorities. The Twin Cities NLG is prepared for any quick rules change; for instance St. Paul may refuse to even consider demonstration permits until six months before the event, and civil liberties lawyers are prepared to sue. Denver embarked on a review of its permitting policy, and then suspended an application deadline for a permit, saying it had not yet finished its review.

Denver is following New York in its refusal to issue summons to protestors who break the law committing civil disobedience, rather than arrest them. The City Attorney recently enacted a policy of no “cite and release” for protestors, which allows them to be detained and indeed punishes them for exercising their free speech rights. The city already used it at an October Columbus Day protest, where police arrested 83 people and held them overnight although they posted cash bond. And to transmit the idea that these demonstrators were dangerous, police, like those in Miami, New York, and indeed at a November anti-war protest in Seattle, appeared armed in full riot gear. In Seattle, the police brought tanks.

Stonewalling by officialdom has already begun, despite regular meetings. In Denver, says Cincotta, “My frustration… stems from the lack of true dialog concerning security preparations for the DNC. Information-sharing has been a one-way street.” As we’ve seen in New York at the RNC, an incommunicative police force violates laws in their mistreatment of demonstrators, secure that any redress will come long after the event. For citizen’s free expression, the damage will be done.

None of these threats to free speech and the First Amendment could take root without the President of the United States setting the standard. The decision by George W. Bush to authorize warrantless spying on Americans stands as the supreme example of government disregard for the First and Fourth Amendments.

 


Endnotes

1 Abby Scher, “The Crackdown on Dissent,” The Nation (Feb. 5, 2001). http://www.thenation.com/doc/20010205/scher

2 Eric Lichtblau, “FBI Goes Knocking for Political Troublemakers,” New York Times, August 16, 2004.

3 Associated Press, NYPD to Destory GOP Protest Fingerprints,” October 21, 2004. http://www.commondreams.org/headlines04/1021-24.htm

4 Carol D. Leonnig, “PCJ Reveals FBI Intel Gatherine in Protestor Arrests,” Washington Post, April 3, 2007.

5 Copies of documents obtained under FOIA can be found in “No Real Threat: The Pentagon’s Secret Database on Peaceful Protest,” ACLU (January 2007); Mark Schlesinger, “The State of Surveillance: Government Monitoring of Political Activity in Northern and Central California,” ACLU of Northern California (July 2006). MSNBC broke the database story in 2005: Lisa Myers, et.al., “Is the Pentagon Spying on Americans,” MSNBC, December 14, 2005. http://www.msnbc.msn.com/id/10454316/

6 “Some Turn to Videotape to Challenge Police,” abc news, http://abcnews.go.com/Nightline/print? id=833389. Links to this and other stories of those exonerated can be found on the I-Witness Video site, http://iwitnessvideo.info/news/index.html.

7 Radio interview with Eileen Clancy, “NY Law Enforcement Caught Doctoring Video of RNC Arrests,” Democracy Now, April 14, 2005, http://www.democracynow.org/article.plsid=05/04/14/1349256&mode=thread&tid=25

8 Jim Dwyer, “Police Infiltrate Protests, Videotapes Show,” New York Times, December 22, 2005. http://www.nytimes.com/2005/12/22/nyregion/22police.html

9 See Schlesinger.

10 Schlesinger, p. 12.

11 Jim Dwyer, “City Spied Broadly Before GOP Convention,” New York Times, March 25, 2007.

12 Ernie Naspretto and Alison Gendar, “Dem Big to NYPD: Butt Out,” NY Daily News, May 13, 2007.

13 “Federal Court Orders NYPD To Release Intelligence Documents About RNC Surveillance Operation,” New York Civil Liberties Union, August 6, 2007. http://nyclu.org/node/1275

14 Chip Berlet and Abby Scher, “Political Profiling: Police Spy on Peaceful Activists,” Amnesty International magazine, Spring 2003. http://www.amnestyusa.org/amnestynow/profiling.html

15 “History Repeated: The Dangers of Domestic Spying by Federal Law Enforcement,” American Civil Liberties Union, May 29, 2007, p. 16.

16 David E. Kaplan, Monica M. Ekman, Angie C. Marek, “Spies Among Us: Despite a troubled history, police across the nation are keeping tabs on ordinary Americans,” US News & World Report, (May 8, 2006), v. 140, no. 17: 40.

When Adversaries Become Allies

The Fight Against the Patriot Act and the Surveillance State

Terry Shepard, a member of the Boise (ID) Patriots, dresses up as Ben Franklin to bring attention to threatened liberties.

T. Allen (Terry) Hoover, a gun rights advocate and former deputy sheriff, once had a pink submachine gun made as a gift for his wife. He is a lifetime member of the National Rifle Association. And in Idaho, he was a member of a right/left coalition called the Boise Patriots, which won local and state resolutions demanding that Congress drop the provisions from the USA Patriot Act that are turning America into a dangerous surveillance state.

“The way to cook a frog is to put him in cold water and turn up the heat slowly,” he said after the US Senate renewed a barely-revised Patriot Act in early March. “The original Patriot Act was cold water. Now the heat is turned up, we’re cooked.” Read More