Levi Come Back, We Just Can't Live Without You*

Here is another item for President Obama's to do list:  reinstate curbs on the FBI's spying power.  Attorney General Edward Levi established guidelines limiting the Bureau to American targets "engaged in or believe to be about to engage in criminal activity."  Levi imposed this sensible limit in 1976 in the wake of a tsunami of abuses by Hoover's agency.  In 2008, Attorney General Muskasey revoked them.  The new guidelines overturn longstanding limits on FBI domestic security operations that brought it into line with our constitution.  Obama has said "we reject as false the choice between our safety and our ideals."  Obama can put that notion into practice by bringing back Levi's "reasonable suspicion" standard.

In September 2008, the Department of Justice rewrote the Attorney General Guidelines for FBI Investigations, overturning longstanding limits on investigations of legal political activity.  Under the new "Mukasey Guidelines," the FBI is now authorized to conduct invasive "assessments" without having a factual predicate to justify its actions.  

From the age of McCarthyism through 1971, the FBI conducted a wide-ranging campaign of monitoring and disrupting political groups.  At the peak of these programs, known as COINTELPROs, the FBI investigated all major protest movements, including civil rights activists, Vietnam war protestors, women's liberation advocates, and environmentalists.  Standard methods included bugging homes and offices, wiretapping, break-ins, informants, and provocateurs.  The FBI often spread misinformation, fomented internal dissension, harassed people, and provoked illegal activity.  These abuses were exposed by the Citizens Commission to Investigate the FBI, which raided an FBI office in Media, Pennsylvania in 1971 and provided documents to the mainstream press.  Soon afterward, the Senate's Church Committee further uncovered a slew of abuses by the FBI.  Not long after the Democrats had their own offices burglarized, Levi issued guidelines on domestic security investigations to head off legislative reforms.

The Levi guidelines required a suspicion of criminal conduct before a domestic security investigation could be opened.  There had to be facts reasonably indicating that two or more persons were engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws.  Preliminary investigations could be opened under a lower standard.

Today, these restraints have been abolished by executive fiat.  Now, the FBI does not need to suspect any person or group of criminal activity before initiating an "assessment."  A policy briefing by the Center for Democracy and Technology outlines how the Mukasey Guidelines expand the scope of threat assessments.  "Assessments" require only an "authorized purpose," meaning that the FBI must claim it is acting to protect against criminal or national security threats.   So long as the FBI says it is concerned about potential terrorism, it may investigate people or organizations they have no factual basis for suspecting of wrongdoing.  Further, the Guidelines explicitly authorize the surveillance and infiltration of peaceful advocacy groups in advance of demonstrations, thus threatening First Amendment activities.

Mukasey's Guidelines allow the FBI to utilize a number of intrusive techniques during assessments -- unlimited physical surveillance, searching commercial databases, tasking informants to attend meetings and surveillance, and engage in pretext interviews in which FBI agents misrepresent their identities in order to elicit information.

Nothing in the new Guidelines protect entirely innocent Americans from being thoroughly investigated by the FBI.  Anyone can have a dossier opened based on lawful activity.  Investigations or "assessments" have a chilling effect on the system of freedom of expression that lies at the core of America's constitutional framework.  This chilling effect, said Dempsey and Cole in Terrorism and the Constitution, "has a corroding effect on the political and social integration necessary to the maintenance of security in a democratic society."

In a free society, a police agency should not be authorized to spy and collect information on lawful political activity.  But that is what the new Guidelines endorse without reservation.  During the 1980s, the FBI violated the Levi guidelines in its investigation of CISPES and others challenging U.S. policy in Central America.  But at least the guidelines were there to operate as a deterrent and a principle.

For thirty years, the Levi guidelines were gradually watered down.  This final blow shows that the FBI is incapable of policing itself.  The Constitution Project's 2009 Transition recommendations provide a concise set of principles that should guide FBI investigations.  Although Attorney General Eric Holder has the discretion to re-write the FBI guidelines, that is clearly not sufficient given the FBI's history.  Passage of the Ending Racial Profiling Act (HR 4611 and S2481) would be a start.  Congress and the President should work toward a legislative charter for the FBI, limiting the FBI's investigative authorities by requiring a factual predicate sufficient to establish reasonable suspicion before intrusive investigative techniques may be authorized and prohibiting investigations based upon the exercise of First Amendment rights.

Song of the Day:

"They take away our freedom

  In the name of liberty

  Why don't they all just clear off

  Why can't they let us be."

- Still Little Fingers

  "Suspect Device"

______________________________

* to be sung to the tune of "Baby Come Back" by Hall & Oates

Homeland Security Helped Maryland Spy on Activists

We've know since the Summer of 2008 that the Maryland State Police spied on activists and their lawful political activities from 2005 to 2007.  Troopers entered citizens into a database in which they labeled 53 individuals as "terrorists."  Now we know that federal agencies assisted state police in spying.

Since the investigation into this outrageous misconduct began, law enforcement has insisted that other agencies were not involved.  The ACLU and community groups have long suspected otherwise.  After all, the state's Intelligence Fusion Center is located in the same building as the State Police.  Now, we know that at least one federal agencies was gathering and sharing intelligence with Maryland troopers.

The groups targeted by an undercover police detective included:  Coalition To End the Death Penalty, Veterans for Peace, Baltimore United for Peace and Justice, Baltimore Pledge of Resistance, Amnesty International, and People for the Ethical Treatment of Animals.  For the ACLU's report on this, go here.

The undercover trooper who spied on these groups has been promoted twice.  She has not been reprimanded.  Using a false name, she infiltrated organizations, took names, and made regular reports to superiors that were sent to at least seven federal, state, and local law enforcement agencies, including the NSA.  Logs of the surveillance do not contain any reports of illegal activity.

On February 17, 2009, it was revealed to the Washington Post that the U.S. Department of Homeland Security (DHS) joined in this wasteful witch hunt.  The DHS office in Atlanta forwarded two emails from an affiliate of the DC Anti-War Network (DAWN) to the Maryland State Police concerning upcoming demonstrations at a military recruiting center in Silver Spring, MD in June 2005.  The information received from DHS described only lawful First Amendment activity.

The presence of these DHS emails in the Maryland State Police file on DAWN indicates that federal agencies were part of Maryland's intelligence gathering.  It also shows that the Homeland Security is wasting taxpayer money monitoring lawful anti-war activism, rather than keeping the country safe from Al-Qaeda.  

If the First Amendment is not sacred to government officials, it begs County Joe's question, ". . . And it's one, two, three, what are we fighting for?"

Race-Based Roundup Revealed

Immigration advocates have long asserted that ICE raids at workplaces and in neighborhoods sweep people up based on race, rather than facts about individuals violating immigration laws. ICE's internal investigation of a Baltimore sweep now reveals that a supervisor instructed his team to arrest as many immigrants as possible, regardless of where or how, in order to meet a quota.

In the frigid morning of Jan. 23, 2007, Immigration and Customs Enforcement (ICE) officers seized 24 people during a sweep of a Baltimore 7-Eleven. We have now learned that their supervisor had ordered them to go out and round up as many aliens as they could. A summary of an ICE internal investigation of the incident says that this boss "related that he didn't really care where they had to go and whether the aliens were fugitives or not, he just wanted them to bring more bodies in."

Racial profiling of this nature is prohibited by law. ICE cannot legally detain someone without reasonable suspicion, based on articulable facts, that an individual has broken the law. A person's skin color or language are not sufficient facts.

These ICE officers were attached to a special unit assigned to targeting "fugitive aliens." The officers told an immigration judge that they had reason to detain based upon voluntary admissions by individuals that they were not present in the U.S. legally. However, footage from cameras showed that explanation held little water; few, if any, of the persons arrested spoke with officers before they were captured. Also, officers have provided a different account to the internal investigators.

The officers' supervisor, John D. Alderman, then acting field office director of ICE's Baltimore Office of Detention and Removal Operations, told his team that morning to "go out and get more aliens" because he was upset that a night of work had only netted a handful of arrests. The unit had been under pressure to make its annual quota of 1,000 arrests per team.

ICE's National Fugitive Operations Program, which has cost taxpayers $625 million since 2003, is meant to hunt suspected terrorists and dangerous criminals who have evaded a deportation order. But rather than identify and target fugitives, these teams have been apprehending tens of thousands of immigrants who have not evaded a deportation order or committed a crime. A Migration Policy Institute report also reveals a dramatic leap in arrests of immigrants who were neither fugitives nor criminals in 2006 and 2007 after officers were permitted to count non-fugitives toward their quota if such detainees were encountered in the course of an operation.

The arbitrary detention of anyone by government agents not only violates the Fourth Amendment, but is completely anathema to the nation's founding principles. This episode demonstrates how arrest quotas drive ICE to substitute arbitrary, mass arrests for detailed investigations that might lead to the apprehension of actual "fugitive aliens." Moreover, it shows how ICE has been transformed into a blunt instrument that terrorizes whole communities.

Song of the Day:

"In many a time, in many a land,

With many a gun in many a hand,

They came by the night, they came by the day,

Came with their guns to take us away . . .

With their knock on the door, knock on the door.

Here they come to take one more,

One more."

- Phil Ochs, "Knock on the Door"

About Author, Thomas Cincotta

Thomas Cincotta (project director) heads PRA's nationwide investigation of regional counterintelligence strategies. A criminal defense lawyer, he led the Denver chapter of the National Lawyers Guild [www.nlg.org] (NLG) in support of peace groups and others during the 2008 Democratic National Convention, and connected progressive lawyers with other community efforts around sentencing reform, immigrant rights, and police misconduct. He also represented migrant farm workers and served on the board of El Centro Humanitario [www.centrohumanitario.org], Denver’s first day laborer center. He currently serves on the NLG's national board and international committee. Before becoming a lawyer, Cincotta worked as a labor representative for UNITE HERE [www.unitehere.org] Local 217 in Providence, Rhode Island.