Activists Sue Denver Over Civil Liberties Violations

Since the successful street demonstrations against the World Trade Organization (WTO) in Seattle in 1999, police and federal agencies have relied on aggressive and unconstitutional tactics to disperse, disrupt, and dissuade popular protest.  Last week, the ACLU of Colorado, and attorneys from the NLG People's Law Project, filed suit on behalf of bystanders, activists, and legal observers to hold Denver accountable for an arbitrary roundup during the 2008 DNC. 

In downtown Denver on August 25, 2008 police clearly tried to derail planned demonstrations by arresting activists before they could parade near politicians' corporate-sponsored soiree's and cocktail parties.  The problem is that the U.S. Constitution doesn't permit law enforcement to simply roundup people willy nilly based upon fears of the ruckus that they might commit.  In addition, the Fourth Amendment requires something called "individualized suspicion" based upon specific articulable facts before state agents can detain people, let alone arrest them.  On August 25, the Denver police arrested on-lookers and passersby, as well as alleged protesters. Cecil Bethea, age 80, was arrested while he was trying to catch a bus on the block which had been cordoned off by police.  Police never issued an order for people to disperse.  None of these individuals was found guilty of breaking the law, though police did manage to disrupt and quell dissent that evening.

In recent times, when the government declares a National Security Special Event, tremendous resources are mobilized to silence the voice of opposition.  Protest pens or cages are used to keep citizen activists from reaching their intended audience.  Repressive tactics and special rules used to make it harder to speak out have been well documented by several enlightening texts, such as:

• Policing Dissent by Luis A. Ferndandez (2008)
• Punishing Protest by Heidi Boghosian (2007)
• Give Me Liberty by Naomi Wolf (2008)

The Denver police ring on 15th Street encircled infiltrators as well as onlookers.  Law enforcement officers in plainclothes tried to provoke a confrontation with uniformed officers to create a diversion and facilitate their removal from the circle.  The true identity of those officers was not discovered until court proceedings.  This litigation will, no doubt, shed more light on the high levels of coordination and surveillance (from the local intelligence fusion center) that informed the government's actions on August 25.  

On the streets of Denver last summer, police were on high alert for anything that protesters could use as a weapon, or as a means of self defense.  Police in Minneapolis-St.Paul seized a U-haul truck full of traffic barricades because some protestors planned to use them as shields in a sit-down.  Today, my thoughts go to the right-leaning protestors who have shown up at public events adorned with sidearms or assault rifles.  And I wonder, would that have been allowed in the streets of Denver or St. Paul?  Would social justice activists be allowed to parade with firearms when the G-20 comes to Pittsburgh in September?  For moral and practical reasons, environmentalists and economic justice activists are not going to sport sidearms as they block traffic or drop banners.  

While the Right is busy flaunting their Second Amendment rights, it seems the Left is still fighting for their First.

Napolitano Embraces Her Inner Cheney

Last week, Janet Napolitano reaffirmed America's unfocused approach to domestic intelligence and counterterrorism in her July 29, 2009 speech to the Council on Foreign Relations.  The Secretary of Homeland Security embraced the word "terror," a word missing from her February address to Congress, as the Right was quick to point out.

Is this a sign of the Right's tightening grip on the Obama administration in national security? Napolitano called for "new thinking" and a broader societal response to the threat posed by terrorism, but she merely echoed old Bush policies that increase the chances for misguided investigations that waste resources and chill free expression.  Her vision of mobilizing a massive bureaucracy against a vast multitude of supposed threats, including "radicals" and immigrants is chilling.

Americans continue to be targeted in terror attacks. Just two weeks ago, American hotels were the target of bombings in Jakarta that killed eight people and injured six Americans. Six Americans were among the 164 people killed in the attacks in Mumbai in November of 2008. Three Americans were among the 54 killed in the attack on the Marriott Hotel in Islamabad in September of 2008.

Are foreign attacks now part of the Homeland Security mandate? Caroline Fredrickson of the ACLU once quoted Frederick the Great's warning that "those who seek to defend everything defend nothing." Rather than identify a concise intelligence need to be served, Napolitano painted an exceptionally broad picture of homeland security:

What are the implications for this network world for the Department of Homeland Security? It means that we must continue to take an all-hazards approach to preparedness, meaning we prepare for natural disasters as well as terrorist attacks. We need to comprehend and anticipate an expanding range of threats.

The threat of a nuclear or radiological device is of grave concern, and reducing that threat is a key administration priority. But we must be equally prepared for biological or chemical threats, which are capacities al Qaeda has sought for years.

We've seen greater use of IEDs and suicide bombers in terrorist attacks around the world. And given our responsibilities for enforcing our immigration laws and protecting our ports of entry, we are also keenly aware that illegal immigration is not only a matter of sovereignty but could pose a national security threat as well. The reality that potential terrorists could use a variety of ways to enter the country illegally -- fake documents, visa overstays and even border tunnels -- make this so.

Napolitano acknowledged an "increased presence" of homegrown extremism and called for increased cooperation on local, state and federal levels to thwart any potential attacks. IEDs, cyber attacks, the swine flu, drug cartel violence, tsunamis and hurricanes.  There is nothing that Homeland Security will not try to protect you from.

Now, President Obama has been very forceful about seeing the threat of terrorism in all of its complexity and in bringing all of our resources, not just the federal government, to bear against violent extremism.

Asked whether homegrown terror risks have become a bigger threat than those overseas, Napolitano demurred. "I don't know that you can rank them one or two," she said. "Both exist; they both must be dealt with. They are both things that we are concerned about and they're both things that we want Americans to be prepared about."

The federal government has built an enormous bureaucracy -- DHS itself employees 225,000 people in 22 separate agencies -- to carry out this broad mission.(1) DHS is using "fusion centers," information-sharing, and agency integration to leverage "force multipliers" to tap into the 718,000 state and local police officers employed in America.

As Arizona governor, I took a lead role in creating our state's first law enforcement fusion center. Now, in a typical fusion center, an FBI agent might be sitting next to a state highway patrol officer; who might be sitting next to an Immigration and Customs Enforcement, or ICE, agent; who might be next to an agent from the DEA or from the tribal police. They don't merely share space. They share databases and techniques. They share ideas and experiences. They break down barriers and build networks.

This ensures that local law enforcement has better information necessary to protect our people, our neighborhoods, our infrastructure. Fusion centers are and will be a critical part of our nation's homeland security capabilities. I intend to make them a top priority for this department to support them, build them, improve them and work with them.

We've now moved three dozen intelligence analysts out to the field. In other words, as we build the fusion centers, we need to move analytic capacity from the Beltway to the country. So let's -- how this is used. And I'll take it out of the terrorism context for just a moment. That if a law enforcement agency reports an increase in drug seizures of a particular type, that is a data point. That's a piece of intelligence. But a whole range of agencies working together in a particular fusion center can analyze that trend to understand what it means, how it will affect particular neighborhoods, and whether it foretells something even larger on the horizon.

In addition to the 70 current fusion center sites, the department will be collaborating with the Department of Justice and the FBI in more than 100 joint terrorism task forces across the country as well. So you see how we're creating the network -- individuals, private sector, now among fusion centers and the law enforcement community.

The quality of information being fed into fusion centers is itself suspect, and Napolitano's words give little comfort to civil liberties watchdogs. Napolitano said,

Now DHS monitors and shares information about potential homegrown threats as well. These can be individuals, radicals -- radicalized by events abroad, or lone-wolf attacks.

This statement is a call for open hunting on political dissent.  Remarkably, the Associated Press did not report it in stories about the speech.  It is also curious how neither Fox News nor the Tea Party crowd jumped on Napolitano for making this statement, considering the uproar surrounding the Spring 2009 Homeland Security reports about rightwing extremism. Presumably, "radicals" are not deserving of the same free speech protections.

Chip Berlet of Political Research Associates explain how the focus on "radicals" threatens civil liberties:

The First Amendment protects the free flow of ideas -- even those that we find reprehensible. The proper role for law enforcement is to pursue crime, not police the boundaries of "radical" dissent. There is a clear government role for officials and politician who are not directly involved in criminal investigations to decry dualism, scapegoating, demonisation and conspiracism -- the tools of fear. And those of us who promot human rights and civil society also must play a role; and we need to use precise language that exposes the dynamics of societal oppression. We should not ask law enforcement agencies to step into this sphere of civil society unless there is evidence of criminal intent or action.(2)

Mike German, a former FBI special agent, reacted to Napolitano's comments in the Washington Independent, noting: "It’s too easy to pollute the information bloodstream of the fusion centers. That’s what we’ve seen out of the fusion centers: erroneous, misleading information," said German. "There’s a lack of accountability" at the centers that enables poor intelligence to "pollute the entire system that local, state and federal law enforcement is relying on. If that system becomes polluted it’s no longer effective," and the chances for civil liberties abuses are "greatly expanded."

Napolitano also endorsed citizen reporting of ill-defined "suspicious" non-criminal behavior. She said Americans can always be on the lookout for unusual occurrences, like "someone taking photographs of a piece of critical infrastructure" or an unattended package left on a platform, and to report them to authorities. "Those are the kinds of very simple things that can be done," she said. "Now we're not asking people to spy on their neighbors or do any of that sort of thing. There's a balance to be struck, but it's a careful balance and it's one that in the end, I think will make us safer." Later on Fox News, Napolitano explained that photographing critical infrastructure (windmills, power lines, power plants, ports, bridges) could be suspicious. Statements like this have led to police harassment of Arab-Americans on vacation, professional photographers, and activists, but no terrorists.

After the speech, Mallika Dutt of human rights group Breakthrough asked Napolitano:

We've got a broken immigration system, yet DHS has expanded 287(g). Secure Communities is doing anything but making people secure. Racial profiling continues to be a very big problem in this country. And in your remarks around protecting against terrorism, we didn't hear very much about protections against racial profiling or the restoration of due process and fairness into systems that actually protect individual citizens, permanent residents and other people who live in the United States.

Napolitano did not address the 287(g) program, due process, or racial profiling, but did take the opportunity to defend "Secure Communities," saying:

Secure communities, what that is, is a way to have the immigration database right in prisons and the like and to train correction officers on how to use them properly, so that as people finish their sentences, the deportation process, the removal process, can be done smoothly.

I started this, when I was the governor of Arizona, out of the Arizona prison system. And it's a very effective way, as a force multiplier, to really make sure that those types of immigrants that have already broken our criminal laws, and these are criminal laws in addition to immigration laws, go into the removal process. You may disagree with that as an enforcement strategy. I think it's the right way to target, a strong enforcement strategy.

During his inaugural speech, Obama rejected the "false choice" between safety and liberty.  His executive appointees appear reluctant to reinforce the latter.

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1. At a time when mass transit agencies across the country are facing cuts in service due to strained budgets, $78 million in Homeland Security money will add 240 more transit police offices to this mix in 2009.


2. Chip Berlet, "Violence and Public Policy," submitted for publication to the journal Criminology & Public Policy (2009).