Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  The Denver Police Department and other Colorado agencies spent considerable resources closely watching peace activists even before 2001, as revealed by multiple documents obtained from internal police files, each labeled “Intelligence Bureau Information Summary.”27 One report lists the license plate numbers of cars near a demonstration on March 27, 1999, at Peterson Air Force Base in Colorado Springs, with owners’ names (blacked out) and addresses. “This was a peaceful demonstration, lasting approximately one hour,” the officer typed at the bottom, with a sentence revealing that a tail had been put on a representative of the Colorado Coalition for the Prevention of Nuclear War and the director of the American Friends Service Committee (AFSC), a Quaker organization of devout pacifists: “Four vehicles left 901 W. 14th Ave., and car pooled to the demonstration.”

  Another file lists license numbers of cars in the parking lot at a conference called “Space, Nukes, and International Law” conducted February 6, 1999, by the AFSC and Citizens for Peace in Space. The name of each registered owner was deleted before the report was made public, but the home address, tag number, or make and year of each vehicle remained.

  A police intelligence report dated April 12, 1999, names the officers of the Pikes Peak Justice & Peace Commission, the editorial board of its newsletter, and about a dozen “additional persons who have been identified that are associated with PPJPC or Citizens for Peace in Space.” Their addresses are included.

  Most comically, Officer Larry Valencia, “wearing a transmitter,” was sent undercover to a 2000 meeting at the AFSC office, where a small group discussed forming an umbrella organization to plan demonstrations and mobilize protesters to go to Washington. “It was announced that there would be a meeting for developing a mission statement on the following Wednesday May 11th at Alfalfa’s,” the officer reported. “A thin female wearing glasses and having a fair complexion stated that the police and F.B.I. were also invited and she stated that they were probably in attendance now. I decided to quit writing notes so as not to look obvious.”28

  The head of intelligence for the Denver police rebuffed my efforts to get an explanation of why, in an age of dangerous, violent crime, he would assign officers to cruise parking lots writing down peaceniks’ license numbers.

  Not only local police but the FBI and military intelligence have monitored protest groups since 9/11, as they did during the Vietnam War. Back then, the CIA illegally provided the FBI with over 1,000 domestic intelligence reports a month, and the army gathered intelligence on more than 100,000 opponents of the war, including Martin Luther King Jr., who was under military surveillance when he was assassinated in Memphis in 1968.29

  The FBI’s infiltration and disruption of antiwar and civil rights groups, under the rubric COINTELPRO, supposedly ended after the embarrassing disclosures by congressional investigations in the 1970s. For a quarter century, Justice Department guidelines barred the FBI from monitoring any organization because of its First Amendment activity. The CIA was prevented administratively from sharing intelligence with the FBI, and the FBI was precluded from surveillance of political or religious organizations. Agents could not even attend public meetings without specific justification for a criminal investigation.

  After September 11, those restrictions were erased by Attorney General John Ashcroft. Local FBI field offices no longer needed high-level approval to send agents undercover to lectures, forums, religious services, and organizational meetings, where they posed as activists. And Congress passed the Patriot Act, which permitted intelligence to be shared with criminal investigators.

  However, evidence that the FBI never quite stopped monitoring is contained in one document, unearthed from before the 9/11 attacks, describing protest groups in extreme terms. A memo dated May 23, 2001, by the Los Angeles field office reports from “a reliable source” on a demonstration at Vandenberg Air Force Base by the “Catholic Workers Group,” which promotes civil disobedience to impede missile launches. It “also advocates a communist distribution of resources,” says the FBI file. Members of a second organization the memo calls “Rukus” (presumably the Ruckus Society, which trains in demonstration techniques) “advocate property damage, advocate anarchy [and] an end to capitalism in America.”30

  The reports suggest that intelligence officers, whether civilian or military, drift easily from watching out for violence to watching out for protest in general. This confusion about the mission was illustrated by TALON, a Defense Department database designed for intelligence reports on terrorist threats to military installations in the United States. Launched in 2003, it quickly became a repository of information on nonthreatening groups that merely picketed bases and recruitment offices.31

  Not all demonstrations were peaceful, to be sure. Some involved vandalism, but they could hardly be called terrorism. A truly violent attack occurred when a recruiting office in Times Square was bombed at 3:45 a.m. on March 6, 2008, evidently timed to destroy property, not lives (nobody was hurt). Significantly, it had nothing to do with the sort of public demonstrations being monitored by military intelligence.

  A window into the military’s surveillance came from Pentagon documents, first reported by NBC and then pried out of the Defense Department by an ACLU lawsuit under the Freedom of Information Act. With a whiff of hysteria, the intelligence files portray antiwar activities as highly dangerous.32

  One memo, labeled “Suspicious Activities/Incidents,” is designed “to alert commanders and staff to potential terrorist activity.” The “potential terrorist activity” includes a rally in Akron, Ohio, under the slogan “Stop the War NOW!” It is announced in an e-mail received by a federal agent from the AFSC, the pacifist Quaker organization. The army intelligence report reveals that the group “will have a March and Reading of Names of War Dead” and that the march “goes past a local military recruiting station and the FBI office.”

  Another report begins: “This update is submitted to clarify why the Students for Peace and Justice represent a potential threat to DOD personnel.” Notice the word “threat.” Army intelligence knows what threats are. Threats are bullets. Threats are rockets, grenades, roadside bombs, all the bad stuff that happens in Iraq and Afghanistan. Here they’re talking about that other front in the war on terrorism, the University of California at Santa Cruz.

  “Students and community allies shut down the annual career fair, where recruiters from the Army, Navy, and Marines had set up tables. The activists demanded that recruiters leave immediately and turn their tabling spots over to student counter-recruitment activists. Also”—and here we learn the nature of the terrorist threat—“two of the recruiter’s vehicles were vandalized while parked on the campus.… Students for Peace and Justice conducted an impromptu march to the Army recruitment offices in Dobie Mall.… The protesters blocked the entrance to the recruitment office with two coffins, one draped with an American flag and the other covered with an Iraqi flag, taped posters on the window of the office and chanted, ‘No more war and occupation. You don’t have to die for an education.’ Recruitment officers who were on duty during the protest had no comment and told protesters who tried to enter the recruiting office to leave unless they want to enlist.” At least one recruiter had a sense of humor.

  The military report lumps together all political protest, sinister and otherwise, by including it under the ominous heading “This information is being provided only to alert commanders and staff to potential terrorist activity or apprise them of other force protection issues.” And these reports on upcoming peace protests get wider distribution than might be expected; copies are listed as going to the Joint Terrorism Task Force, made up of local police and federal authorities.

  The official files offer insight into the intelligence world’s capacity to conflate violent and nonviolent lawbreaking, and to misunderstand the worthy tradition of civil disobedience. “There is an intense debate among the protest groups concerning whether to be nonviolent or to conduct civil disobedience,” as if the two we
re contradictory, says one military report on planned protests at recruiting stations in New York City. “While a group may publicly call for nonviolent protests, individually many of the individual members actually favor civil disobedience and vandalism.” So “nonviolent” seems to mean obeying all laws, and civil disobedience is “violent,” with no recognition that most acts of civil disobedience, like the sit-ins and marches of the civil rights movement, are deliberately nonviolent—refusing to be herded into a “free speech zone,” for example, blocking an entrance, or crossing a police line.

  The intelligence officer here misses a key principle of political protest: that there are many ways to break laws without using violence, a point made by an e-mail from the organizers, quoted in the very same memo. They advocate “Gandhian nonviolence” and firmly instruct demonstrators: “We will not use physical violence or verbal abuse toward any person,” and, “We will not carry weapons.” This seems clear enough, but it gets reported under the title “Potential Terrorist Activity,” suggesting how reliable U.S. military intelligence might have been in selecting “terrorists” for imprisonment overseas. Intelligence performs best by understanding the country being watched—this country in this case, with its traditions of Thoreau’s civil disobedience, King’s pacifist methods, and the passive resistance of the peace groups under surveillance. They are all respectable components of American history and culture that go unnoticed in these Pentagon documents.

  Monitoring the antiwar movement has missed the real dangers. The Maryland State Police watched pacifists more closely than they did an eighty-eight-year-old Annapolis resident whom they knew well for his menacing, anti-Semitic, racist rants. He took a .22 rifle into the Holocaust Museum’s entrance in 2009 and shot a black security guard dead. Nor did the military’s fascination with peace groups translate into security when a Muslim convert, recently returned from Yemen, opened fire in an Arkansas recruiting center, killing one soldier and wounding another. He had not been involved in any organized activity. Neither had Major Nidal Malik Hasan before he fired on soldiers at Fort Hood, Texas, killing thirteen and wounding dozens of others. A psychiatrist, he had questioned whether Muslims should be killing Muslims in Iraq and Afghanistan, and he had queried a radical Yemeni cleric about Islam in e-mails that were intercepted by intelligence and referred to the FBI and a Defense Department investigator, yet dismissed as nonthreatening.33

  “Peaceful civil disobedience is still illegal activity,” observed Captain Jeffrey Herold. True enough, and he gave an example from 1995, when Justice for Janitors, a union campaign protesting low wages and cuts in the D.C. education budget, blocked Roosevelt Bridge across the Potomac with a yellow school bus during morning rush hour, a demonstration that right-wingers dubbed “traffic terrorism.”34 “Are we supposed to just let that go and not be able to handle that just because it’s nonviolent?” Herold asked. “I’d say no. There’s nothing in the Constitution—you come outside the Constitution when you’re involved in illegal activity.”

  Of course, but most police departments aren’t good at calibrating their responses to the difference between breaking the law by passive resistance and by assault—the difference between refusing to disperse, for example, and hurling stones. Departments will be criticized more for failing to preserve order than for failing to protect free speech, so they tend to expect violence and prepare for it. Like an armed force jockeying for military advantage, the police operate in a thick fog of misunderstanding and false assumptions about groups they see as adversaries. This may be the most damaging aspect of extensive surveillance: the state of mind that it creates in law enforcement.

  Studies of police behavior indicate that unverified intelligence and training sessions that anticipate violence can feed anxiety, leading to preemptive curbs on free expression. Facing protests against the World Bank and International Monetary Fund in 2000 and 2002, the D.C. police “inflated crowd estimates and exaggerated dangers,” reported Mary Cheh, a law professor later elected to the city council. “The police made plans for infiltrating, disrupting, and preempting the protestors,” she wrote after conducting an investigation. “For example, on Saturday, April 15, 2000, the day before the largest scheduled demonstration, the MPD [Metropolitan Police Department] and City fire officials entered the anti-globalization groups’ headquarters, or ‘convergence center,’ on the pretext of a fire inspection. Fire officials issued multiple fire code violation notices and closed down the center, thus seriously disrupting the plans of the demonstrators and displacing many out-of-town protesters who were staying at the building. Officials confiscated property of the demonstrators and sealed the building, only letting individuals return two days later—after the demonstrations had ended.”35

  Officers were shown films of massively violent European demonstrations beforehand, she reported. “There were not even examples in North America of that degree of violence,” she said, and the films obliterated the officers’ capacity “to have any nuance or proportionate response, or to separate what might be dangerous from what was not dangerous,” she observed. “It got them into a mindset of looking at all these demonstrators as the opposing army, and giving them a hair-trigger mentality.”

  As a result, the police herded peaceful, orderly demonstrators and bystanders into Pershing Park on Pennsylvania Avenue, closed them in, and arrested nearly four hundred, without having issued any order to disperse. Protesters were held for at least twenty-four hours, some with one wrist handcuffed to the opposite ankle so they couldn’t straighten up (resembling a torture used in Rwanda), and the police chief gloated that they would be missing the demonstrations. The arrests were so baseless that no one was prosecuted.

  Advanced technology has given both organizers and authorities new tools. In August 2011, transit officials foiled a demonstration in San Francisco’s subway system by pulling the plug on cell-phone service, denying organizers the means of texting and Twitter to orchestrate a protest over a fatal police shooting. The Bay Area Rapid Transit officials took a leaf out of Egypt’s book, where the dying authoritarian regime had shut down the Internet in a futile effort to impede the pro-democracy movement. The San Francisco action was denounced by the ACLU as a violation of the First Amendment.

  In Miami, an investigating commission found that constitutional rights were underplayed in training before a meeting of the Free Trade Area of the Americas in November 2003. As police prepared to confront violence, emotions were whipped up by scare tactics. “Three days were devoted to the sophisticated devices employed by protesters in recent demonstrations held elsewhere,” the panel reported. “One hour was devoted to legal issues restating the basic principle that protesters and demonstrators have the protection of the First Amendment to freely express their opinions and the right to peaceful assembly.”36

  Press coverage contributed to the hype. In the days before the Miami demonstrations, local television put police officers on edge by repeatedly broadcasting videos of violence during the 1999 Seattle protests against the World Trade Organization. Clashes were then rewarded with extensive play on the evening news, part of a universal pattern: since placid demonstrations rarely get the media coverage they deserve, some protesters look for confrontation, and cops often give it to them. Officers in riot gear practically sealed off downtown Miami, fired beanbags and rubber bullets into nonviolent crowds, hit some people in the back as they were retreating, and rounded up large numbers in mass arrests. More than two hundred were kept in oversized cages without toilet facilities.

  SPIES IN NEW YORK

  The demonstrators’ “sophisticated devices” mentioned in the Miami investigation are featured prominently in New York City intelligence estimates done before the 2004 Republican National Convention, as if police and protesters were in something of an arms race, with each group ratcheting up its tools and techniques to counter the other’s tactics. The most dangerous methods are used by a small minority of demonstrators, yet they occupy a prominent place in New York Police Depa
rtment (NYPD) documents. Any officer reading the intelligence reports, which lack proportion and perspective, would naturally brace himself for a battle when he goes to a protest march.

  That is what happened before the convention, a story told by 603 pages of intelligence files, called “end user reports,” gathered by the NYPD and released under a judge’s order in a lawsuit. Taken together, they help explain why the NYPD cracked down on demonstrators so vigorously and preemptively. (A lawsuit by some of those arrested failed to win release of a further 1,800 pages of “field reports” by undercover police agents who infiltrated various protest groups.)37

  Some of the most aggressive surveillance of dissident groups is done by the NYPD, and the spying has a long history. In one of the less admirable episodes, a police division infiltrated the Black Panthers and accused twenty-one members of plotting to blow up department stores; it turned out that the plan had been the idea of the police agents themselves. After years of litigation in a suit brought against the unit, a federal judge in 1985 approved a consent decree that barred monitoring and infiltration without “specific information” of a group’s link with criminal activity.

  Arguing after September 11, 2001, that the decree tied its hands, the NYPD got a judge to relax the restrictions to coincide with FBI rules, which are weaker, and to eliminate a requirement that surveillance be documented with a paper trail that could expose any abuse.38 Freed by the loosened guidelines, the New York police geared up for a rash of demonstrations when the Republicans came to town in the summer of 2004.

  Some of the intelligence documents make exciting reading, especially descriptions of demonstrators’ devices and tactics.39 Undercover cops who are discovered pretending to be protesters are sometimes marked with ultraviolet paint, their locations transmitted via cell phone or Webcam, the reports say. Jammers are used against police radios. Gas balloons filled with metal shavings are sent toward power lines. When police barricades impede marches, demonstrators have torn them down with crowbars, grappling hooks, and sledgehammers, tools often hidden in huge puppets (“Trojan Horses”) to avoid detection until the last minute.