Outlawing dissent

Spying on peace meetings, cracking down on protesters, keeping secret files on innocent people -- how Bush's war on terror has become a war on freedom.

Published February 11, 2004 8:53PM (EST)

The undercover cop introduced herself to the activists from the Colorado Coalition Against the War in Iraq as Chris Hoffman, but her real name was Chris Hurley. Last March, she arrived at a nonviolence training session in Denver, along with another undercover officer, Brad Wanchisen, whom she introduced as her boyfriend. The session, held at the Escuela Tlatelolco, a Denver private school, was organized to prepare activists for a sit-in at the Buckley Air National Guard Base the next day, March 15. Hurley said she wanted to participate. She said she was willing to get arrested for the cause of peace. In fact, she did get arrested. She was just never charged. The activists she protested with wouldn't find out why for months.

Chris Hurley was just one of many cops all over the country who went undercover to spy on antiwar protesters last year. Nonviolent antiwar groups in Fresno, Calif., Grand Rapids, Mich., and Albuquerque, N.M., have all been infiltrated or surveilled by undercover police officers. Shortly after the Buckley protest, the Boulder group was infiltrated a second time, by another pair of police posing as an activist couple.

Meanwhile, protesters arrested at antiwar demonstrations in New York last spring were extensively questioned about their political associations, and their answers were entered into databases. And last week, a federal prosecutor in Des Moines, Iowa, obtained a subpoena demanding that Drake University turn over records from an antiwar conference called "Stop the Occupation! Bring the Iowa Guard Home!" that the school's chapter of the National Lawyers Guild, a civil libertarian legal group, hosted on Nov. 15 of last year, the day before a protest at the Iowa National Guard headquarters. Among the information the government sought was the names of the leaders of the Drake University Chapter of the National Lawyers Guild, its records dating back to January of 2002, and the names of everyone who attended the "Stop the Occupation!" conference. Four antiwar activists also received subpoenas in the investigation.

On Tuesday, after a national outcry, the U.S. Attorney's Office canceled the subpoenas. Still, says Bruce Nestor, a former president of the National Lawyers Guild who is serving as the Drake chapter's attorney, "We're concerned that some type of investigation is ongoing."

In the early 1970s, after the exposure of COINTELPRO, a program of widespread FBI surveillance and sabotage of political dissidents, reforms were put in place to prevent the government from spying on political groups when there was no suspicion of criminal activity. But once again, protesters throughout America are being watched, often by police who are supposed to be investigating terrorism. Civil disobedience, seen during peaceful times as the honorable legacy of heroes like Gandhi and Martin Luther King Jr., is being treated as terrorism's cousin, and the government claims to be justified in infiltrating any meeting where it's even discussed. It's too early to tell if America is entering a repeat of the COINTELPRO era. But Jeffrey Fogel, legal director of the Center for Constitutional Law in Manhattan, says, "There are certainly enough warning signs out there that we may be."

As a new round of protests approaches -- including worldwide antiwar demonstrations on March 20 and massive anti-Bush actions during the Republican National Convention in August and September -- experts say the surveillance is likely to increase. "The government is taking an increasingly hostile stance toward protesters," says Michael Avery, president of the National Lawyers Guild and a professor of constitutional law at Suffolk University. In the run-up to the Republican Convention, he says, "I'm sure the government will be attempting to infiltrate political groups. They may send agent provocateurs into political groups. They're no doubt compiling reports on people. We have to stand up against that."

No one knows the extent of the political spying and profiling currently being carried out against critics of the Bush administration and American foreign policy -- which may be the most disturbing thing about the entire phenomenon. "Presumably if they're doing their jobs well, we'll never know," says Fogel. Activists have also been unsuccessful at finding out why they're being watched, and under whose authority.

What we do know, though, is that several of the police departments that have been accused of spying on protesters -- including the Aurora, Colo., Police Department, where Hurley works -- are part of Joint Terrorism Task Forces. These are programs in which local police are assigned to work full-time with FBI agents and other federal agents "to investigate and prevent acts of terrorism," as the FBI's Web site says. According to the FBI, such JTTFs have been around since 1980, but the total number has almost doubled since Sept. 11, 2001, to 66.

A Polk County deputy sheriff assigned to a Joint Terrorism Task Force served the subpoenas in Iowa. According to Nestor, the deputy sheriff even handed out business cards that identified him as part of the JTTF. On Monday, though, after what Nestor describes as a "tremendous public reaction" following news reports of the JTTF's involvement, the U.S. Attorney's Office in Des Moines issued a written statement denying that the investigation was being conducted by the task force.

The U.S. Attorney's Office confirms that the investigation is a collaboration between the FBI, the Polk County Sheriff's Department and the U.S. Attorney's Office -- all of whom, Nestor notes, serve on the JTTF. It focuses on a case of misdemeanor trespassing on government property that took place on Nov. 16, near the antiwar protest. According to Nestor, the case involves someone who "walked up to a closed gate" outside the National Guard's armory, "had a conversation with the guards and got charged with trespassing." The police and FBI are now investigating whether people at the antiwar conference entered into some kind of conspiracy to break the law -- in other words, whether they planned acts of civil disobedience.

"They appear to be taking the stance that if any individual, as part of or in relation to a protest, commits an act that might be a violation of federal law, that they can subpoena and investigate any records of any meeting that person may have gone to in the days or even months proceeding," says Nestor.

Avery suggests that such investigations will have a chilling effect on the planning for future protests. "The risk is that if there's some kind of demonstration or protest activity that involves trespassing, [the JTTF] is saying they can ask people what political meetings have you been to lately, who was there, what did you talk about," says Avery. "People are allowed to meet and talk and debate political issues without being spied on by the government." At least, they used to be.

Whether or not a Joint Terrorism Task Force was behind the Iowa investigation, JTTFs have already been implicated in political spying. In a three-ring binder from the Denver Police Department Intelligence Unit obtained by the Colorado ACLU, a section labeled "Colorado and Local Links: JTTF Active Case List" contained printouts made in April 2002 from the Web sites of the Colorado Campaign for Middle East Peace, American Friends Service Committee, Denver Justice and Peace Committee and the Rocky Mountain Independent Media Center. One of the printouts, a copy of which is available on the ACLU's Web site, is the American Friends Service Committee's calendar of upcoming antiwar events.

Last November, the New York Times revealed a leaked FBI memo asking local police to report protest activity to their local Joint Terrorism Task Force. The bulletin, sent to law enforcement agencies on Oct. 15, 2003, warned about antiwar protests planned for Oct. 25, saying, "While the FBI possesses no information indicating that violent or terrorist activities are being planned as part of these protests, the possibility exists that elements of the activist community may attempt to engage in violent, destructive, or dangerous acts."

The bulletin went on to list common protest methods including marches and sit-ins, as well as "aggressive tactics" used by "extremist elements," including vandalism, trespassing, physical harassment, formation of human chains and the use of weapons.

"Even the more peaceful techniques can create a climate of disorder, block access to a site, draw large numbers of police officers to a specific location in order to weaken security at other locations, obstruct traffic, and possibly intimidate people from attending the events being protested," it warned.

It ended by saying, "Law enforcement agencies should be alert to these possible indications of protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism Task Force."

The Colorado activists who attended nonviolence training with Chris Hurley remember her as shy and timid. She didn't arouse suspicion at either the training session, where people practiced staying calm even when confronted by aggressive police, or the next day, when she showed up at the demonstration.

On March 15, around 300 people protested near the Buckley base, but only 18 (not including Hurley) engaged in civil disobedience by sitting in the road and blocking the base's entrance. The action was no secret -- the Colorado Coalition Against the War had informed police of what it intended to do in advance. "We always have a police liaison when we have a civil disobedience," says participant Terry Leichner, a 54-year-old psychiatric social worker and veteran activist. "We always work with police so there's no violence."

The Aurora Police Department doesn't deny that the activists told them exactly what they planned to do. Indeed, they use that fact as a rationale for infiltrating the group. "Prior to the actual protest, this group came to the police department and told us they were going to conduct criminal acts in our city," says Kathleen Walsh, the Aurora Police Department's public information officer. "We have a responsibility to the citizens of Aurora to investigate." Walsh insists that the activists' willingness to tell the police their plans didn't mitigate the need to spy on the group. "Can you guarantee me that people don't lie to police?" she said. Walsh asked that further questions -- including those about Hurley's connection to counterterrorism investigations -- be submitted in writing. She has yet to answer them.

Having been warned in advance, the police arrived quickly to remove the Buckley demonstrators. They wore riot gear, but didn't need it -- the protesters, including Hurley, were arrested without incident, and the whole thing was over in an hour. All 19 arrestees were taken to a holding cell, where the activists say Hurley seemed nervous. Nancy Peters, a 56-year-old protest organizer, recalls trying to comfort her, but Hurley didn't say much. While the rest of the group exchanged stories, Leichner says, Hurley was "noncommittal." When they were released, she didn't attend a meeting the activists had to plan legal strategy, but according to Peters, she asked to be kept informed.

None of the activists found out that Hurley was an Aurora police officer until the discovery phase of their trials last spring.

By then, though, their lawyers had reason to be suspicious. A month after the Buckley protest, the Colorado Coalition was infiltrated again, by an undercover officer from the Arapahoe County Sheriff's Office, which is also part of a Joint Terrorism Task Force. This time, the group realized something was up.

On April 14, the activists planned to meet with Republican Sen. Wayne Allard, a supporter of the war, and ask him to present a "peace resolution" to Congress. Several of the activists planned to refuse to leave his office unless he acceded to their demands, which no one expected him to do.

Peters, who was arrested at Buckley, was one of the organizers of the Allard action and was going to be on hand to bail out activists taken to jail. Again, the Colorado Coalition held a nonviolence training session the day before for those planning to be arrested.

Peters remembers unloading her car outside the church where the training was held when she saw a couple walking by, looking like they were "killing time" before finally going inside. The man, a muscular guy who looked to be in his 30s, introduced himself as Chris Taylor and said the woman with him was his girlfriend. In fact, his name was Darren Christensen and he was an undercover officer, as was Liesl McArthur, the woman he was with. As the Rocky Mountain News reported in December, much of his usual undercover work involved "being solicited on line for deviant sex."

Unlike Hurley, Christensen immediately made the activists nervous. "A couple of people from the group came up and said, 'Who are they? Do you know them from any other events?'" says Peters. "He was pumping for information, asking questions about whether there was a group that was more radical and had a different focus, more like the black bloc or the anarchists."

At the time, though, it didn't occur to anyone that the police would be interested in spying on them. So they let Christensen participate, even after he made what Peters thought was an outlandish suggestion.

"It was in the evening when we were trying to figure out our general plan," she says. "We didn't know whether the police would be blocking the entrance to Allard's office." They were discussing whether the six people planning the sit-in should go in as a group, or one by one, in order to evade attention. "[Christensen] said, 'Look, why don't we just walk right through their line?' We were like, whoa, nobody wants to get their heads blown off," says Peters. "We are peaceful, nonviolent group. We're not trying to storm a building."

The next day, the group met beforehand to coordinate. Everyone who planned to get arrested gave Peters bond money, except for Christensen, who said his girlfriend would bail him out. The six entered Allard's office at 1 p.m., and by 5 p.m. they'd all been arrested.

"I raced over to the jail," says Peters. "There were several people there, including his 'girlfriend.' I was trying to find out who'd been booked and what their bail was, but none had been put into the system yet."

Peters was standing in the jailhouse lobby and talking on a pay phone when, out of the corner of her eye, she saw Christensen walking out the door. "He had a phony story about how his girlfriend got him out," she says. "I asked, 'Can I see your summons?' He didn't have one."

Peters passed her concerns on to her group's pro bono defense attorneys, who soon found that although six people had been arrested, only five had been charged. Then, while reviewing the Buckley case, they noticed that while 19 people had been arrested there, only 18 were charged. Eventually, by subpoenaing police records, the attorneys figured out that police had sent the undercover agents to infiltrate the group.

Once exposed, Hurley turned up in court to watch the protesters' trials.

"When she came to court, she just seemed so arrogant," says Ellen Stark, a 57-year-old preschool teacher who is part of the group arrested at Buckely. "She was not at all apologetic about her activities and the fact that she had lied to us. She just looked at us with disdain." None of the activists have been able to get any answers from officials about why they were being watched. "I couldn't interest anybody on the Aurora City council to even meet with me," says Stark. "Nobody would talk to me."

America has seen this kind of thing before. Between 1956 and 1971, the FBI under J. Edgar Hoover ran COINTELPRO, a program of surveillance and sabotage against political dissidents. COINTELPRO watched violent groups like the Ku Klux Klan and, later, the Weather Underground and the Black Panthers, but it also spied on and harassed thousands of innocent people, including Martin Luther King Jr.

COINTELPRO's abuses came to light in 1971, when a group of activists calling themselves the Citizens Commission to Investigate the FBI broke into an FBI office in Media, Penn., and stole several hundred pages of files.

In his recent history of COINTELPRO, "There's Something Happening Here: The New Left, the Klan and FBI Counterintelligence," David Cunningham writes, "These files provided the first public disclosure of a range of Bureau activities against targets such as the Black Panther Party, the Venceremos Brigade, the Philadelphia Labor Committee, Students for a Democratic Society, and college students with 'revolutionary' leanings."

Eventually, damaging revelations about COINTELPRO led the FBI to adopt reforms designed to prevent a repeat of Hoover's excesses. Attorney General Edward Levi laid out a set of standards for FBI domestic surveillance. "These so-called Levi Guidelines clearly laid out the criteria required for initiated investigations, establishing a standard of suspected criminal conduct, meaning activity (rather than merely ideas or writings, which had been adequate cause for targeting groups and individuals as subversive during the COINTELPRO era)," Cunningham writes. "The guidelines also stipulated as acceptable only particular investigative techniques, making it considerably more difficult to initiate intrusive forms of surveillance."

The Levi guidelines didn't end all political spying -- in the 1980s, the FBI targeted the Committee in Solidarity With the People of El Salvador, or CISPES. As the ACLU reports, "Strong evidence suggests that CISPES was targeted for investigation because of its ideological opposition to then-President Reagan's already controversial foreign policy in Latin America. The FBI persisted in an intensive six-month investigation of CISPES in which it often reported the group's activities to the Department of Justice in a prejudicial and biased manner." Yet most civil libertarians believe that even if the rules were occasionally broken, they still worked to protect First Amendment rights.

Contrary to the claims made by defenders of Bush administration policies, the Levi guidelines would not have impeded an investigation of al-Qaida. As Cunningham points out, cases "with suspected ties to 'foreign powers' were not subject to this criminal standard." Nevertheless, after Sept. 11, Attorney General John Ashcroft issued new rules gutting the Levi guidelines. Thanks to Ashcroft, FBI agents are now allowed to monitor public meetings even if they don't have any reason to suspect that there's any criminal activity being committed or planned.

"Now, that means if there is a rally of people who are criticizing the United States and its policies and saying that the United States will someday perhaps be destroyed because of that, the FBI agent can go and listen to what's being said," Ashcroft told CNN's Larry King in May of 2002. In other words, merely arguing that U.S. policies may result in the country's destruction justifies FBI snooping. This gives the FBI investigative license far beyond even that it enjoyed during the COINTELPRO period, let alone under the Levi Guidelines.

There's no way to know how often the FBI is actually monitoring protesters. The cases that have come to light so far have involved local police officers, not federal agents, and in most instances it's unclear whether they've been working in concert with the FBI. For example, last year in Fresno, the antiwar group Peace Fresno discovered they'd been infiltrated when an undercover cop who'd been attending their meetings was killed in a motorcycle accident. When his obituary was published, members of Peace Fresno realized that the man they knew as Aaron Stokes was really Aaron Kilner, a member of the Fresno County Sheriff's Department's anti-terrorism unit.

There is a Joint Terrorism Task Force in Fresno, but members of Peace Fresno and their lawyers have not yet been able to find out whether Kilner was spying on them for the FBI, and whether he gave the FBI any information about their activities.

Not that there's much information to give. "This is a group that passes petitions and goes to city council meetings," says Nicholas DeGraff, a Peace Fresno organizer. "When we have a demonstration, we call the police ahead of time." The group, he says, is made up of "retirees, grandparents, schoolteachers and community workers. Your model citizens just participating in democracy."

The group has around 200 people on its membership roster, says DeGraff, with an active core of about 25 people. In early 2003, Kilner paid a $12 membership fee and joined them. He told the group that he didn't work and lived off an inheritance. In the weeks before the war in Iraq, he came to meetings and participated in the weekly demonstrations Peace Fresno held at a local intersection.

He said little, DeGraff recalls, and never volunteered to do anything beyond passing out flyers. Most of the time, says DeGraff, he sat in a corner and took notes. Even after the war, he kept coming, showing up at meetings every few weeks. When the group went to Sacramento to protest at a WTO ministerial meeting in June, he went with them. He died in August.

Peace Fresno has since been assured by the Fresno Sheriff's Department that it is not under investigation and has never been under investigation. That may be true in some bureaucratic sense, but the fact remains that an anti-terrorism agent spent half a year surveilling them. "It's equating dissent with terrorism," says DeGraff. "It's saying if you dissent, you're a terrorist."

In fact, that's exactly what some law enforcement officers have said.

On April 2 of last year, the California Anti-Terrorism Information Center, which is under the auspices of the state Justice Department but whose regional task forces include FBI agents, issued a bulletin warning to police about potential violence at an antiwar protest scheduled for the Port of Oakland. An Oakland Tribune investigation found that the Anti-Terrorism Information Center had little substantive information regarding possible violence. "Intelligence records released under open-government laws reveal the thinking of CATIC and Oakland intelligence officials in the days leading up to the protest," said a June 1 story by Ian Hoffman, Sean Holstege and Josh Richman. The agencies, they wrote, "blended solid facts, innuendo and inaccurate information about anti-war protesters expected at the port."

The protest did in fact turn violent, but according to documentary evidence the violence was precipitated by the police, who fired on demonstrators with wooden bullets and beanbags. The Tribune reported that, according to videotapes and transcripts of radio transmissions of the event, there's no evidence of "protesters throwing objects at police or engaging in civil disobedience until 20 minutes after police opened fire."

So why was the warning issued in the first place? In an interview with the Tribune, Mike Van Winkle, spokesman for the California Anti-Terrorism Information Center, issued a remarkably broad definition of terrorism. "You can make an easy kind of link that, if you have a protest group protesting a war where the cause that's being fought against is international terrorism, you might have terrorism at that protest," he said. "You can almost argue that a protest against that is a terrorist act."

This egregious statement, in which a law enforcement representative takes it upon himself to judge the legitimacy of democratic protest, seems to confirm the worst fears of civil libertarians that Bush's "war against terror" is actually a war against dissent. Of course, whether Van Winkle actually believes that antiwar protesters are as dangerous to the citizens of California as al-Qaida is impossible to say. But it's not just rhetorical excess or fascistic impulses that lead officials to speak of demonstrators as terrorists. They may actually have a bureaucratic and financial incentive to do so.

"This is a good way for police officers to get terrorism points," says Timothy Edgar, legislative counsel for the ACLU . "They have to justify the dollars they're receiving from the federal government for homeland security. We've seen a massive inflation of terrorism statistics on the federal level. Every Arab who has a phony drivers license is now called a terrorist by the Justice Department, so they can say, 'We've arrested thousands of terrorists.'

"This is the perfect example of not learning the lessons of 9/11," he continues. "The FBI was not sufficiently focused on the possibility that a group like al-Qaida would commit a serious terrorist attack. One real failure since 9/11 is that, when they call everything a 'terrorist,' they're still not sufficiently focused on actual terrorists. There's an overbroad definition of domestic terrorism in the PATRIOT Act, and it's had a spillover effect into state and local governments who want to justify their antiterrorism funding and mission."

In a Nation article from May 2002, Robert Dreyfuss wrote of that spillover effect. The Justice Department, he reported, had offered billions of dollars in anti-terror subsidies to local governments, but first they had to show that there were "potential threat elements" in their area.

"Under the Justice Department program each state was asked to conduct a county-by-county assessment of potential terrorist threats in order to qualify for the federal largesse," Dreyfuss wrote. "In each city and county local police were required to identify up to fifteen groups or individuals called potential threat elements (PTEs). The Justice Department helpfully points out that the motivations of the PTEs could be 'political, religious, racial, environmental [or] special interest.' At a stroke, the Justice Department prompted 17,000 state and local police departments to begin monitoring radicals."

Thus even if the FBI isn't working directly with local police to spy on protesters, the messages coming from the Justice Department influence the agencies below, says Edgar. "The Ashcroft Justice Department has set a terrible example," he says. "They're sending the wrong message around the country to the state and local police. Local and state police will follow the FBI's example on a lot of things. On top of that, add big grants for homeland security and you've got a recipe for a lot more political spying."

This is the first of two parts. Read Part Two here.

By Michelle Goldberg

Michelle Goldberg is a frequent contributor to Salon and the author of "Kingdom Coming: The Rise of Christian Nationalism" (WW Norton).

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