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Police Spy on Peaceful Activists
Under cover of the "war on terrorism," police are collecting information on activists. In Denver, intelligence files link Amnesty members to "criminal extremism."
By Chip Berlet and Abby Scher
Abby Scher is a sociologist and journalist who works at the Independent Press Association in New York. She recently wrote about the crackdown on dissent in The Nation.
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From the Denver Police file on Amnesty International member Stephen Nash. |
Most members of Amnesty International don't consider themselves part of a criminal extremist network. But that's how a Denver Police Department's intelligence database tracked AIUSA members Stephen and Vicki Nash and Mark and Barbara Lee Cohen. The couples fear that Denver police and other agencies that share the files will paint peaceful activists as potential terrorists and "criminalize protest activity," says Stephen Nash.
Mark Cohen was surprised by the "criminal extremist" label. "None of us have ever been arrested, much less convicted of a crime, for our political activities," he says.
The Denver case has raised red flags for civil liberties and human rights advocates who have been fighting the Bush administration's rollback of civil liberties. They say that national and local law enforcement agencies across the country have been hacking away at hard-won protections of the right to peaceful protest. The American Civil Liberties Union of Colorado agrees and has filed a lawsuit charging the police with violating the First Amendment rights of activists. Three Chicano activists, whose files reflect surveillance as far back as 1967, have filed a separate federal lawsuit against the police, claiming their civil rights have been violated.
Amnesty International is also concerned. "Civil liberties are definitely a human rights issue — they are inseparable," says Curt Goering, senior deputy executive director of AIUSA. "Governments are entitled, even obligated, to take steps to protect the security of their citizens. That's true here in the U.S. and in other countries — governments face this dilemma all the time. But they need to proceed in ways that are absolutely consistent with international standards of basic human rights and civil liberties."
Although legislation and court rulings under Bush's "war on terror" have sharply eroded privacy protections, police spying on activists is not new. Back in 1954, the Denver Police Department's criminal intelligence bureau began a file system that has grown to some 100,000 records. A few years ago, Denver installed Orion, a spiffy new computerized information retrieval system with entries ranging from convicted criminals to local political activists including the Nashes and Cohens. During the past few years, they had helped form End the Politics of Cruelty (EPOC), a local group that protests police misconduct, and staged protests with the American Friends Service Committee (AFSC). Orion listed AFSC and EPOC members as "criminal extremists." Amnesty International members were filed under "civil disobedience," but because of cross-referencing, when police looked up AI members, the software system associated them with a "criminal extremist" network.
Why were AFSC and EPOC members identified as "criminal extremists?" "They have been linked to activities that involved extremist activity, criminal activities," detective David Pontarelli said in a deposition cited by the New York Times.
In other depositions, police blamed a secretary for inaccurately picking categories from Orion's drop-down lists. The secretary, when asked, was unable to define the term "criminal extremist."
But whether it was a case of garbage in, garbage out — or witch hunt in, constitutional protections out, a chagrined Denver Mayor Wellington Webb appointed a three-judge panel to investigate. After reviewing files, it recommended deleting information on 208 groups and 3,277 individuals for lack of evidence of criminal activity.
The existence of the files came to light when Denver police shared them with a neighboring city and copies surfaced, but the Amnesty International activists had long suspected that police were monitoring them. "My main activity for several years was calling for more police accountability," says Mark Cohen, and at every public event we saw police conducting surveillance on us." And not even accurately; their Orion files were filled with errors. Police had falsely listed Stephen Nash and Barbara Levy Cohen (but oddly, not their spouses) as having a direct relationship with an alleged weapons-wielding drug-dealing "outlaw biker" gang. Barbara confesses, "I do ride a bike, but it has pedals."
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From the Denver Police file on Amnesty International member Stephen Nash. |
The basic civil liberties issue, however, goes beyond accuracy to the question of "whether or not there should be a criminal intelligence file for people who are not breaking the law," says Mark Cohen.
While the Cohens and Nashes were able to retrieve and check their Orion files, police denied having information on some protesters who later found references to themselves in material released to others. Doug Vaughan, a reporter and long-time activist, filed a separate open-records request. "Police, who denied they had anything on me, coughed up 172 pages suggesting — falsely — that I was associated with 'known supporters of terrorists.'" Police admitted they had "discovered" more file drawers of materials on Vaughan and others pre-dating Orion.
Some spy files may never be found. In a 1998 memo, written as police were implementing Orion, an intelligence supervisor told subordinates to "shred, toss, or take home" other files, lest the department be sued. Probes of police abuse in Chicago, Los Angeles, and Portland, Ore., sparked similar information purges.
Denver is only one of many cities in which police spying on peaceful activists has intensified. In the wake of 9/11, local police and city councils, the Department of Justice, and Congress have been operating at a feverish pace to roll back reforms and oversight instituted to address past abuses.
This February civil liberties advocates took a particularly hard hit when a federal judge gave the New York Police Department the go-ahead to revise surveillance restrictions that were in effect for 17 years. The court imposed them in 1985 to resolve a 14-year-old lawsuit by Black Panthers and other activists. Between 1904 and 1985, the NYPD maintained thousands of files and at times deployed undercover agents provocateurs to disrupt organizing. In the Black Panthers case, it was a police spy who nurtured the idea of bombing New York police stations and department stores. Under the 1985 reforms, the NYPD had to submit spying requests to the "Handschu Authority" (the three-person panel named after the lead plaintiff in the Panthers case) and show that the target of its investigation had criminal intent.
On Feb. 10, the NYPD's efforts to overturn the Handschu guidelines bore fruit when U.S. District Court Judge Charles Haight told the city that it no longer needs to show criminal intent or to ask the Handschu Authority to authorize spying requests. Furthermore, police may now use the less restrictive FBI protocols governing surveillance of activists.
According to lawyer Martin R. Stolar, who represented activists trying to maintain Handschu, the effect is that now "there's no teeth — there's no threat of legal action. Handschu had somebody put their name on a piece of paper," said Stolar, "which made a difference when you are talking about political surveillance," because someone was then at least nominally accountable. Now the NYPD will have unrestrained access to the mailing lists of organizations and the authority to place spies in mosques and other investigative "targets" without leaving the paper trail required by Handschu. And citizens will have only the police department's word that it is operating within constitutional limits.
The man who spearheaded the NYPD's efforts to overturn Handschu comes by his aversion to oversight naturally. David Cohen, Mayor Michael Bloomberg's new deputy commissioner for Intelligence, worked for 35 years in intelligence and was the CIA's director of operations from 1995 to 1997. In the city's court filings, he wrote, "The counterproductive restrictions imposed on the NYPD by the Handschu Guidelines in this changed world hamper our efforts every day."
Many cities are similarly invoking the specter of terrorism to knock down hard-won restrictions on police surveillance of law-abiding activists. In Chicago a 1981 legal agreement similar to Handschu prohibited police from wholesale collection of information on non-criminal dissidents. In January 2001, after police complained that they could not adequately investigate terrorism and hate crimes, a Federal Court of Appeals overturned that agreement.
While the history of domestic spying goes back centuries, surveillance in the post-9/11 era is chillingly comprehensive. The rollback of reforms like Handschu — along with computerized databases and an escalation in information sharing on private citizens between local police and state and federal authorities — is bad enough. But it is accompanied by an overall weakening of balance of powers and of oversight mechanisms.
The USA Patriot Act and post-9/11 executive orders, for instance, allow government officials to bar the release of detainees and to overturn the bail set by immigration judges. The legislation also authorizes the FBI to conduct wiretaps that it need never disclose and to initiate secret searches without having to show probable cause. The FBI can even force librarians to report which books a patron reads and to ban the library from telling partrons about the feds' demand.
Other government proposals seek to enhance massive information-gathering efforts. "Patriot Act II," a Justice Department proposal leaked to the press in early February, calls for even more surveillance to fight global terrorism. This plan would encourage file sharing and would specifically strike down all remaining city or state protections against surveillance abuse. And the proposed Total Information Awareness program would create giant coordinated databases of personal information through which authorities could rummage. Some legislators are trying to curtail funding for this ominously named act.
The Bush administration maintains these measures are necessary for national security. "We will shield Americans from violations of their civil liberties . . . while we work across the government to stop terrorists from killing more innocent Americans," Justice Department spokesperson Mark Corallo told the Washington Post.
But critics fear that unless local spying is regulated and federal guidelines tightened, proliferating databases — shared by police, FBI, INS, and other agencies — will become conduits for junk information. There would be no way for people to know what dangerous stew of suspicion, half-truths and lies various agencies at different levels of government had assembled and disseminated.
As the Denver Post editorialized, this type of information-sharing poses the potential "for great mischief, possibly destroying the reputations of innocent people who have committed no crime." The mere fact that some law enforcement officer "doesn't like people who hold unpopular views is insufficient grounds to label them 'terrorists,' even in post-9/11 America."
Meanwhile, as part of the post-9/11 "war on terrorism," the U.S. government held hundreds of Arab and Muslim immigrants without criminal charges. The main precedent for this kind of roundup is President Franklin D. Roosevelt's decision to intern more than 100,000 Japanese Americans during World War II. A key committee that would exercise direct oversight on profile-based incarcerations and government spying is the Judiciary Subcommittee on Crime, Terrorism and Homeland Security. In a February radio interview, its chair, Rep. Howard Coble (R-NC), said he approved of Roosevelt's decision, explaining that the Japanese were interned for their own protection. "We were at war," he said. "We were under attack by a sovereign nation. We were not a multicultural society."
The horrific attacks of Sept. 11, 2001, demonstrated that terrorism is a real and urgent problem. But government surveillance and detention programs may erode civil liberties without stopping criminal violence. Spying on lawful political activity probably won't even find potential terrorists, says civil liberties lawyer Jethro Eisenstein. "Everything we know about how al Qaeda operates is it's below the radar."
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