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server05productnOORE8lAORE406 txt unknown Seg l 3OVSEP703 14 56 NATSU TAYLOR SAITOquot Whose Liberty Whose Security The USA PATRIOT Act in the Context of COINTELPRO and the Unlawful Repression of Political Dissent TABLE OF CONTENTS I Security or Silencing 1057 II Suppressing Movements for Social Change A Brief Overview 1063 A National Security and the Rule of Law 1063 B Early Suppression of Struggles for Justice 1064 III The Federal Bureau of Investigation Origins and Early Activities 1070 IV COINTELPRO Abhorrent in a Free Society 1078 A COINTELPRO Exposed 1080 B The Tactics Employed 1081 1 Surveillance and Infiltration 1081 2 Dissemination of False Information 1082 3 Creation of Intra and InterGroup Con ict 1083 4 Abuse of the Criminal Justice System 1084 5 Collaboration in Assaults and Assassinations 1086 C The Groups Targeted 1088 Professor of Law Georgia State University College of Law Special thanks to Keith Aoki and this symposium Steve Bender for organizing the LatCrit VII conference and making issue possible to Ward Churchill for making so much of this infor mation accessible and for un agging support again to Keith Aoki for always en couraging critical legal scholarship to Michael Franklin and the Oregon Law Review for excellent edi ting to Andrea Curcio for thoughtful comments and to the Georgia State University College of Law for its support of this research 1051 xx wwwwww xx w server05EroductnOORE8lAORE406 txt unknown Seg 2 3OVSEP703 14 56 1052 OREGON LAW REVIEW Vol 81 2002 1 Communist and Socialist Organizations 1089 2 The Civil Rights Movement 1090 3 The Ku Klux Klan and White Hate Groups 1091 4 The New Left and the Antiwar Movement 1093 5 Black Nationalist Organizations and the Black Panther Party 1094 6 The American Indian Movement 1096 D Assessing COINTELPRO Is It Over397 1098 V Antiterrorist Legislation and Governmental Policy 19751996 1104 VI The USA PATRIOT Act of 2001 1111 A The Flurry of PostSeptember 11 Activity 1111 B Enhanced Surveillance Powers 1115 C The Blurring of Criminal and Intelligence Investigations 1118 D The Criminalization of Protest 1119 E Further Restrictions on Immigrants 1121 F Enhanced Funding and InterAgency Communication 1123 G Are We More Secure 1124 VII Using Law to Subvert the Rule of Law 1128 PREFACE s we enter the third millennium of this particular era of Ahuman history the picture is not pretty Untold numbers of children die of malnutrition and preventable diseases every day1 millions of all ages are killed in ongoing wars most of them waged by states against the peoples whose lands they are occupy ingZ It is estimated that within this generation alone 250 Ian 1 According to a recent UN report We the Children Meeting the Promises of the World Summit for Children one of every twelve children will die before age five almost all from preventable causes See United Nations Press Release UN Finds One in Twelve Children Dies Before Age Five ICEF1853 PI1409 Apr 18 2002 available at w quotn quot FFl V dnr htm Of the ap proximately 6 billion people in the world 11 billion lack access to safe drinking water 12 million die from lack of water 24 billion lack basic sanitation and 12 billion live on less than US 1 per day BREAD FOR RLD HUNGER BASICS I RNAT ONAL FACTS ON HUNGER AND POVERTY at wwwbreadorghungerbas icsinternationalhtml last visited Feb 11 2003 2See Bernard Neitschmann The Fourih World Nations Versus States in REORV DERING THE WORLD GEOPOLiTICAL PERSPECTIVES ON THE WENTYFIRST CENV w ii iii xx w server05EroductnOORE814ORE406 txt unknown Seg 3 3OVSEP703 I4 56 Whose Liberty Whose Security 1053 guages and their attendant cultures knowledge and world views will disappear3 along with hundreds of plant and animal species4 Vast swaths of land have been rendered uninhabitable by the re lentless quest for progress 5 Every day the newspapers report impending environmental disasters the spread of AIDS slavery and child labor racial and religious repression and the disap pearance torture and murder of political dissidents around the world As the world s unrivaled military economic and political su perpower the United States plays a significant role direct and indirect in the perpetuation of much of this human misery Even so within the United States which has only 5 of the world s population but consumes 25 or 30 of its resources6 the top 1 of the population controls nearly 40 of the country s wealth7 TURY 22542 George J Demko amp William E Wood eds 1994 noting that less than 200 international states occupy suppress and exploit more than 5000 nations and peoples and that since World War II statenation con icts have produced the most numerous and longest wars as well as the greatest number of civilian casualties and refugees DANIEL NETI39LE amp SUZANNE ROMAINE VANISHING VOICES THE EXTINCTION OF THE WORLD S LANGUAGES 40 2000 4 See Joby Warrick Mass Extinction Underway Majority ofBiologists Say WASH POST Apr 21 1998 at A4 noting that at least one in eight plant species is threatened with extinction and that nearly all biologists polled attributed the losses to human activity see also THE TURNING POINT PROJECT EXTINCTION CRISIS available at wwwturnpointorgextinctionpdf last visited Feb 11 2003 noting that species are dying at 10000 times their natural extinction rate 5 See WARD CHURCHILL Geographies ofSacrifice The Radioactive Colonization of Native North America 39m STRUGGLE FOR THE LAND NATIVE NORTH AMERICAN RESISTANCE TO GENOCIDE ECOCIDE AND COLONIZATION 23991 2002 describing federal plans to turn Indian lands contaminated by uranium mining into National Sacrifice Areas see also ALTERNATIVE ENERGY INSTITUTE INC Effects of the Current and Future Population 0n in POPULATION at wwwaltenergyorg2 op ulationeffectseffectshtml last visited Mar 28 2003 noting that desertification is claiming 29 of the earth s total landmass 6 Arlie Russell Hochschild A Generation Without Public Passion THE ATLANTIC MONTHLY Feb 2001 citing a 30 consumption rate and noting also that the United States produces 25 of the world s pollution available at wwwtheatlantic comissues200102hochschildhtm See also US CENSUS BUREAU 2000 STATISTI CAL ABSTRACT OF THE UNITED STATES tbl 1390 Energy Consumption and Pro duction by Country 1990 and 1998 showing that in 1998 the United States accounted for approximately 25 of the world s total energy consumption with a per capita consumption rate nearly six times the world average available at www censusgoVprod2001pubSStatabsec30pdf NATURAL RESOURCES DEFENSE COUN CIL A RESPONSIBLE ENERGY POLICY FOR THE 21ST CENTURY available at www nrdcorgairenergyrepexecsumasp last visited Feb 11 2003 7 EDWARD N OLFF TOP HEAVY A STUDY OF THE INCREASING INEQUALITY OF WEALTH IN AMERICA 7 1995 also noting that disparities in both income and wealth have increased since the late 19705 see also William Lucy Time to Fighti server05EroductnOORE8lAORE406 txt unknown Seg 4 307SEP703 14 56 1054 OREGON LAW REVIEW Voli 812002 and those at the bottom face malnutrition infant mortality and unemployment rates equal to those of many third world coun tries8 Despite the best efforts of Hollywood the news media and most elected officials to convince us otherwise the reality is that we have the poorest public education and health care in the industrialized world9 and the second highest per capita incarcer ation rate anywhere10 Eighty percent of those charged with seri ous crimes are unable to afford a lawyer11 and African American parents know their sons have a oneinthree chance of ending up in prison12 Reservationbased American Indian par ents know their children face the country s highest infant mortal ity and teenage suicide rates 60 to 90 unemployment rates and statistically can expect to live only into their mid to late Again AFSCME PUBLICATIONS JanFeb 1997 noting that the top 10 controls nearly 70 of the wealth at I I I f m J quot 39 quot 7 1 pejf9702htmi 8 See infra text accompanying notes 9 and 13 9 On health care see System Overload Pondering the Ethics ofAmerica s Health Care System 3 ISSUES IN ETHICS Summer 1990 noting that the United States is unique among the industrialized democracies in retaining a free market health system at w m Equot J 39 39 quot html39 see also Kempe Ronald Hope SII Child Survival and Health Care Among LowIncome African American Families in the United States 2 HEALTH TRANSITION REVI 15162 1992 noting that a baby born in Cuba has a greater chance of survival than an African American baby born in Washington DC Thomas L Milne Testimony to the Insti tute of Health Committee on Assuring the Health of the Public in the 21st Century Feb 8 2001 wwwinacchoiorgadvocacydoc287icfm hereinafter Milne Testimony On literacy see Statistics on Adult Literacy ORANGE COUNTY REGISTER Sept 22 2002 available at 2002 WL 5460682 noting that according to the UN the United States is fortyninth in world literacy and fortyfour million adults are functionally illiterate see also Report State Spending on Prisons Grows at 6 Times Rate of Higher Ed UIS NEWSWIRE Aug 22 2002 available at 2002 WL 22070708 10 This means that the United States with 5 of the world s population accounts for 25 of its prisoners See Anger Grows at US Jail Population BBC NEWS Feb 15 2000 available at newsibbcicoiuk1hiworld ericans643363Istm 11 CAROLINE WOLF HARLOW UISI DEPT OF JUSTICE DEFENSE COUNSEL IN CRIMINAL CASES Nov 2000 NCJ 179023 available at wwwiojpiusdojigovbjspub pdfdcccipdf39 see also SOUTHERN CENTER FOR HUMAN RIGHTS PROMISES TO KEEP ACHIEVING FAIRNESS AND EQUAL JUSTICE FOR THE POOR IN CRIMINAL CASES Nov 2000 report on file with author 12 See Michael AI Fletcher Crisis of Black Males Gets HighProfile Look Rights Panel Probes Cr39mie Jobl ssness Other Ills WASH POST Apri 17 1999 at A2 noting that in some states one in two black men are under the supervision of the criminal justice system see generally DAVID COLE NO EQUAL JUSTICE RACE E IMINAL JUSTICE SYSTEM 1999 JEROME G M ER SEARCH AND DESTROY AFRICAN AMERICAN MALES IN THE CRIMINAL JUSTICE SYSTEM 1996 MARC MAUER amp TRACY HULING THE SENTENCING PROV CT YOUNG BLACK AMERICANS AND THE CRIMINAL JUSTICE SYSTEM FIVE YEARS LATER 1995 server05EroductnOORE8lAORE406 txt unknown Seq 5 307SEP703 14 56 Whose Liberty Whose Security 1055 forties13 Every night hundreds of homeless people sleep on the streets of every major American city14 All of this seems to be quite acceptable to those who have the most influence Information about all of these situations is widely available and in most cases we know what could be done to solve or ameliorate these problems15 What stands in the way of their resolution is not lack of awareness or resources but the priorities of those in power and those who keep them there16 For many who benefitior believe they benefitifrom the sta tus quo living in denial is apparently a viable option A mind boggling number of Americans seem to accept that if those peo ple would just act more like us they too would soon be en joying the good life Others find that we must struggle against such policies and practices sometimes because our very lives or the lives of our children depend on it sometimes simply to retain 13 See RENNARD STRICKLAND TONTO S REVENGE REFLECTIONS ON AMERICAN INDIAN CULTURE AND POLICY 47 1997 Ward Churchill Unraveling the Codes of Oppression 39m FANTAerS OF THE MASTER RACE LITERATURE CINEMA AND THE COLONIZATION OF AMERICAN INDIANS xivxix 2d ed City Lights Books 1998 1992 14 See Paul Shepard State of Cities Study Released ASSOCIATED PRESS June 19 1998 quoting Andrew Cuomo US Secretary of Housing and Urban Development saying that an estimated 600000 Americans still sleep on our streets every night 15 Advocacy groups and experts in each of these areas are consistently producing reports detailing workable solutions Thus for example ninety percent of the dis eases in developing countries result from a lack of clean water Roger Segelken Mass Starvation Disease Will Be the Inevitable Results of Population Growth CORV N39ELL NEWS Feb 9 1996 available at wwwnewscornelledureleasesFeb96aaaspi mentelhrshtml Deaths caused by malnutrition result not from an inadequate global supply of food but from its unequal distribution FOOD AND AGRICULTURE OR ZA N OF THE UNITED NATIONS MAPPING OF THE FOOD SUPPLY GAP 1998 available at httpwwwfaoorg last visited Apr 18 2003 It has been well established that money is most effectively spent on preventive health care but less than two percent of the American health care dollar is so di rected See Milne Testimony supra note 9 noting that half the annual deaths in the United States are preventable Similarly studies Show that money spent on educa tion cuts the fiscal as well as social costs of incarceration but education budgets continue to be cut and prison funding expanded See Use Our Resources Wisely COLUMBUS LEDGERENQUIRER Oct 5 2002 noting that between 1980 and 1995 the US education budget dropped from 27 billion to 16 billion while the prison budget grew from 8 billion to 20 billion available at 2002 WL 1835826 16 See for example the statement of then UN Ambassador soon to be Secretary of State Madeline Albright who responded to UN reports that USimposed sanc tions on Iraq had by 1996 already caused the deaths of 500000 Iraqi children by stating this is a very hard choice but we think the price is worth it 60 Min utes Punishing Saddam CBS television broadcast May 12 1996 See also undhati Roy The Algebra of Inf39mite Justice THE GUARDIAN Sept 29 2001 available at 2001 WL 28346627 quoting Albright server05productnOORE8lAORE406 txt unknown Seg 6 3OVSEP703 I4 56 1056 OREGON LAW REVIEW Vol 81 2002 our humanity Such struggles take many forms but all require the freedom to articulate the problems and potential solutions and the ability to organize socially and politically Fortunately such freedoms have not only been acknowledged historically but are clearly articulated in the US Constitution17 and are spelled out in more detail in universally recognized international law18 When the government that purports to represent us engages in genocide war crimes or other actions calculated to perpetuate the systematic oppression of large groups of people we not only have the right to challenge such actions but the legal re sponsibility to do so This was the primary message of the Nu remberg and Tokyo Tribunalsiwhen a government engages in basic violations of the most fundamental human rights it is the citizens obligation under international law to stop those viola tions The fact that the government s domestic law may deem such policies or practices legalior resistance to them illegali does not change this fundamental principle20 17 See US CONST amends I IV V VI VIII XIII XIV XV 18 The UN Charter the Universal Declaration of Human Rights UNGA Res 217 AIII at 71 UN Doc A810 1948 and numerous international conventions articulate the basic human right to life food shelter education medical care cul tural integrity freedom from discrimination and most importantly selfdetermina tion State protection of the right to struggle to achieve these ends is made mandatory by the International Covenant on Civil and Political Rights Annex to GA Res 2200 21st Sess Supp No 16 at 52 UN Doc A6316 1966 ratified by the United States in 1992 and other treaties which spell out the right to hold and express opinions and to participate in public affairs to freedom of association and assembly to freedom from arbitrary arrest or detention and to due process of law This law is found not only in such treaties but also in customary international law which is recognized as binding on the United States See eg Filartiga v Pe a Irala 630 F2d 876 2d Cir 1980 enforng the prohibition of torture found in cus tomary law Forti v SuarezMason 694 F Supp 707 ND Cal 1988 recognizing the causing of disappearance as a Violation of customary international law see gen erally LOUIS HENKIN THE AGE OF RIGHTS 1990 19 For examples of such policies see generally WILLIAM BLUM ROGUE STATE A GUIDE TO THE WORLD S ONLY SUPERPOWER 2002 NOAM CHOMSKY amp EDWARD S HERMAN THE POLITICAL ECONOMY OF HUMAN RIGHTS VOL I THE WASHING TON CONNECTION AND THIRD WORLD FASCISM 1979 WARD CHURCHILL A Ll39l r TLE MATTER OF GENOCIDE HOLOCAUST AND DENIAL IN THE AMERICAS 1492 TO THE PRESENT 1998 hereinafter CHURCHILL A LITTLE MATTER OF GENOCIDE DOUGLAS V PORPORA HOW HOLOCAUSTS HAPPEN THE UNITED STATES IN CEN TRAL AMERICA 1990 20 It is the fundamental duty of the citizen to resist and to restrain the Vio lence of the State Those who choose to disregard this responsibility can justly be accused of com licity in war crimes which is itself designated as a crime under international law in the Principles of the Charter of urember Noam Chomsky Preface to AGAINST THE CRIME OF SILENCE PROCEEDINGS OF server05productnOORE8lAORE406 txt unknown Seg 7 3OVSEP703 14 56 Whose Liberty Whose Security 1057 It is in this context that we must assess recent antiterrorism legislation such as the socalled USA PATRIOT Act21 We are told that such laws impose some restrictions on our liberties but are necessary for our security22 In this Essay I hope to demon strate that such legislation needs to be understood in the context of the United States long history of using both the law and law enforcement agencies to repress individuals and organizations who struggle for social justice Such repression has affected all who dissent politically in order to change the status quo and force the government to respect fundamental human rights23 The current policies of the US government threaten to silence all who dissent regardless of the issues or the tactics chosen The harm embodied in the current legislation and the broad powers it gives the executive branch is not merely the silencing of political opinion As such the question is not whether we will be allowed to put our opinions out into some abstract marketplace of ideas but whether we will allow the government of the United States in the name of our security to crush struggles for the most basic of human rights If we allow ourselves to be dis tracted into a debate about which liberties we are willing to sacri fice for the sake of more security we will sacrifice both the liberty and the security of those who take political positions or represent social movements not approved of by those in power I SECURIIY OR SILENCING In the twentyfirst century only nations that share a commit ment to protecting basic human rights and guaranteeing politi cal and economic freedom will be able to unleash the potential of their people and assure their future prosperity People ev erwheIe want to be able to speak freely choose who will gov THE INTERNATIONAL WAR CRlMES TRIBUNAL at xxiv John Duffett ed 1968 See generally STEPHEN R RATNER amp JASON S ABRAMS ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES 1N INTERNATIONAL LAW BEYOND THE NUREMBERG LEGACY 1997 MICHAEL R MARRUS THE NUREMBERG WAR CRIMES TRIAL 194546 A OCU39MENTARY HISTORY 1997 21 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 USA PATRIOT Act Pub L No 10756 115 Stat 272 2001 signed into law Oct 26 2001 22 See generally John W Whitehead amp Steven H Aden Forfeit39mg Enduring Freedom for Homeland Security A Constitutional Analysis of the USA Patriot Act and the Justice Department s AntiTerrorism Initiatives 51 AM U L REV 1081 2002 Roy supra note 16 23 See infra Parts IIIV server05productnOORE8lAORE406 txt unknown Seg 8 3OVSEP703 14 56 1058 OREGON LAW REVIEW Vol 81 2002 ern them and enjoy the benefits of their labor These values of freedom are right and true for every person in every societyiand the duty of protecting these values against their enemies is the common calling of freedomloving people across the globe and across the ages iGeorge W Bush September 17 200224 In March 2002 the American Civil Liberties Union ACLU Foundation of Colorado held a press conference in which it re vealed that the Denver Police Department was monitoring the peaceful protest activities of Denverarea residents and keeping files on the First Amendmentprotected expressive lawful activi ties of advocacy organizations25 In support of its allegations the ACLU released excerpts from computerized police files which catalogued the physical characteristics names addresses phone numbers vehicles and activities of persons involved in peaceful organizational activities and demonstrations as well as informa tion about their spouses and associates26 Groups such as End the Politics of Cruelty and the American Friends Service Committeeia Nobel Peace Prizewinning Quaker organizationiwere labeled Criminal Extremist with out any reference to criminal activity Individuals were named for having attended meetings or simply being a phone contact for others in the file Antonia Anthony was identified not as the Franciscan nun that she is but as an active protestor with the Chiapas Coalition which in turn was falsely described as a group dedicated to the overthrow of the Mexican govern ment 27 Subsequently the Denver police admitted to having over 3400 such spy files most of them compiled since 1999 but containing information dating back to 197228 Subsequent disclo 24 George WI Bush National Security Strategy of the United States Sept 17 2002 wwwiwhitehouseigovnscnssallihtmli 25 See Press Release American Civil Liberties Union Foundation of Colorado ACLU Calls for Denver Police to Stop Keeping Files on Peaceful Protesters Mari 11 2002 at httpwwwiaclucoiorgnewspressreleasereleasespyfilesihtm Sarah Huntley Cops Have Spy File Groups Say ROCKY MOUNTAIN NEWS Mari 12 2002 at 5A see also NANCY G SILENCING POLITICAL DISSENT HOW POST SEPI39EMBER 11 ANTITERRORISM MEASURES THREATEN OUR CIVIL LIBERTIES 120 21 2002 26 See attachments to Press Release American Civil Liberties Union Foundation of Colorado supra note 25 at htthwwwiaclucoiorgspyfilessamplefilesihtmi 27 Id In fact the Chiapas Coalition s purpose is to support the legitimate strug gles of indigenous peoples in Mexico 28 John C Ensslin Spy Files Too Broad Webb Says ROCKY MOUNTAIN NEWS Mar 14 2002 at 4AI See also Complaint filed in Ami Friends Servi Comm VI City server05EroductnOORE8lAORE406 txt unknown Seg 9 3OVSEP703 14 56 Whose Liberty Whose Security 1059 sures reveal that such information and misinformation has been disseminated to numerous other law enforcement agencies In the meantime on October 23 2001 the Uniting and Strengthening America by Providing Appropriate Tools Re quired to Intercept and Obstruct Terrorism USA PATRIOT Act30 was introduced in Congress Within three days the Act which contains 158 separate sections dramatically expanding the government s law enforcement and intelligence gathering pow ers was passed by both the House and the Senate and signed into law by President George W Bush31 Among other things the USA PATRIOT Act hereinafter the 2001 Act greatly expands the surveillance authority of federal agencies further limits the rights of immigrants blurs the line between criminal and intelligence investigations and creates a new and very broadly defined crime of domestic terrorism 32 Passed in the wake of the September 11 attacks on the World Trade Center and the Pentagon Attorney General John Ashcroft and other officials assure us that the 2001 Act embodies a neces sary trade off of some individual liberties for the collective secur ity of the nation33 In this construction the liberties being curtailed are generally thought of as the rights of speech associa tion and the press articulated in the First Amendment34 and the freedom from unreasonable search and seizure and the right to privacy protected by the Fourth Amendment35 Security in this context implies the protection of persons and property from physical assault but it is also extended to a broader notion of protecting the institutions which embody American democ racy In essence the administration is making a broader version of the argument Abraham Lincoln made when suspending the constitutionally guaranteed writ of habeas corpus Are all the amp County of Denver Mar 28 2002 available at wwwaclucoorgspyfilesDocu mentsClassActionComplaintp df 29 See eg files released on the American Indian Movement indicating that misinformation had been disseminated to at least a dozen other agencies copy on file with author 30 See supra note 21 31 This history of the bill can be found at httpthomaslocgovcgibinbdqueryz d107HR03162Lampsumm2amp last visited Feb 10 2003 32 See infra Part VI 33 See sources cited supra note 22 34 See US CONST amend I 35 See US CONST amend IV The inclusion of privacy rights was articulated in Katz v United States 389 US 347 1967 holding that the Fourth Amendment protects persons and their privacy interests not simply places and things server05productnOORE8lAORE406 txt unknown Seg 10 3OVSEP703 I4 56 1060 OREGON LAW REVIEW Vol 81 2002 laws but one to go unexecuted and the government itself to go to pieces lest that one be violated 6 While the 2001 Act has been vociferously criticized by many civil liberties advocates the basic framing of the question as one of balancing liberty against security interests has not been effec tively challenged Instead the debate has focused on where the line should be drawn legally and politically with most critics of the 2001 Act arguing that liberties are being unconstitutionally curtailed but not challenging the underlying premise that the goal is increased security This is a very dangerous and mislead ing construction Historically the liberties at issue have been systematically sacrificed not to ensure the security of the general public but to suppress political movements and sectors of the population which are viewed as threats to the status quo What has been sacrificed is not just people s ability to speak openly or be free from surveillance but in many cases their very lives and freedom It has been welldocumented by the Senate Select Committee on Intelligence as well as by hundreds of thousands of docu ments released under the Freedom of Information Act FOIA37 that the Federal Bureau of Investigation FBI the Central Intel ligence Agency CIA the National Security Administration NSA and dozens of other federal state and local agencies have engaged in illegal and unconstitutional actions against US citizen and noncitizen residents in an effort to silence political dissent The FBI s COINTELPRO operations 19561971 are perhaps the best known but these represent just one dimension of the ongoing political repression which has involved not just illegal surveillance and infiltration but tactics designed to dis rupt and destroy organizations ranging from the manufacture of conflict among individuals and groups to the deliberate fram ing of people for crimes they did not commit andiwhen all else failedithe outright murder of activists38 As the Denver spy 36 Abraham Lincoln Message to Congress July 4 1861 quoted in WILLIAM H REHNQUIST ALL THE LAWS BUT ONE CIVIL LrBERTrEs 1N WARTIME 1998 This action was subsequently held to be unconstitutional in Ex parte M illigan 71 US 2 1866 37 See Freedom of Information Act Pub L No 93579 88 Stat 1896 1974 codi fied as amended at 5 USC 552a 1994 For recent developments concerning the Freedom of Information Act FOIA see Wendy Goldberg Recent Decisions Free dom of Information Act 68 GEO WASH L REV 748 2000 38 See infra Part IVB server05productnOORE8lAORE406 txt unknown Seg ll 3OVSEP703 14 56 Whose Liberty Whose Security 1061 files indicate groups that engage in lawful political dissent are still being actively and illegally targeted by those entrusted with upholding the law and the Constitution When we look at the 2001 Act in the context of the federal government s actual use of its law enforcement and intelligence gathering powers we see that these expanded powers have long been soughtiand frequently used even when illegaliby the ex ecutive branch People engaged in political dissent that is sup posed to be protected by the First Amendment and communities of color generally have not been made more secure in any sense of the term but have been subjected to physical attacks on their persons and property by the very agencies that are now be ing given expanded powers under the 2001 Act As Robert Jus tin Goldstein says in his seminal work Political Repression in Modern America From 1870 to 1976 The holders of certain ideas in the United States have been systematically and gravely discriminated against and subjected extraordinary treatment governmental authorities such as physical assaults denials of freedom of speech and assem bly political deportations and firings dubious and discrimina tory arrests intense police surveillance and illegal burglaries wiretaps and interception of mail39 Goldstein goes on to point out that governments can carry out politically repressive activities following legal procedures or by utilizing means that are illegal under the country s laws40 It goes without saying that it is easier and more convenient for govern ments to use means that are at least facially lawful The 2001 Act is most accurately seen as the latest step in the US government s ongoing effort to legitimize unconstitutional practices by using the current war on terror perceived and promoted as a na tional security crisis to obtain their legislative sanction Legisla tion does not of course make such practices lawful in the deeper sense of the term Actions which contravene the Consti tution and fundamental principles of international human rights lawieven if sanctioned by the executive the legislature or the judiciaryiviolate the rule of law and undermine the legitimacy of the governing power41 39 ROBERT JUSTIN GOLDSTETN POLITICAL REPRESSION 1N MODERN AMERICA FROM 1870 TO 1976 at xxi rev ed University of Illinois Press 2001 introduction to 1978 edition 40 Id at xxx 41 To note only the most glaring example in modern history we have no trouble server05EroductnOORE8lAORE406 txt unknown Seg 12 3OVSEP703 14 56 1062 OREGON LAW REVIEW Vol 812002 The actual history of federal law enforcement and intelli gence agencies reveals a deeply disturbing pattern of the use of the armed might and financial resources of the state to destroy individuals and organizations deemed politically undesirable We must assess the 2001 Act in light of this historyithe concrete use of just such powers by the very agencies now being given broader prerogativeiand in light of the fundamental principles of constitutional and international law that give the government the right to act at all The question is not whether we are willing to have our shoes xrayed at the airport to prevent planes from being hijacked42 It is whether we are willing to give carte blanche to agencies which according to their own records have used every means at their disposal to silence us The United States use of the law to suppress political dis sent is a complex one that dates back to the beginning of the republic In this Essay I present only a brief sketch of a few aspects of that history that highlight the need to examine the 2001 Act in a much more critical framework than the choice of liberty vs security This is a history that involves the military as well as federal state and local law enforcement and intelli gence agencies but for the sake of simplicity I focus primarily on the FBI Part II presents a brief overview of the early history of the suppression of political dissent and movements for social change in this country Part III outlines the emergence of the FBI s role in this process and Part IV looks in more detail at its COINTELPRO COunter INTELligence PROgram operations Part V briefly outlines the antiterrorist legislation of the recent decades as the more immediate context for the specific provi sions of the 2001 USA PATRIOT Act which is discussed in Part VI Part VII concludes that if this is in fact to be a democracy it recognizing that the myriad of laws enacted by the German government in the 19305 and 19405 did not mean that its repressive measures comported with the rule of law See generally DAVID DYZENHAUS LEGALITY AND LEGiTIMACY CARL SCHMiTr HANS KELSEN AND HERMANN HELLER 1N WEiMAR 1997 Matthew Lippman Law Lawyers and Legality in the Third Reich The Perversian 0f Principle and Profes sionalism INT L amp COM LJ 199 1997 discussing the role of lawyers in the repressive legal regime of Nazi Germany Eli Nathans Legal Order as Motive and Mask Franz Schlegelberger and the Nazi Administration aflustice 18 LAW amp HIST REV 281 2000 using Schlegelberger state secretary of the Reich Ministry of Justice as a case study of why legal administrators participated in the Nazi regime 42 Such security measures need to be challenged on the ground that they do not enhance security and because they contribute to the mindless acceptance of the reg ulation of everyday life by the state Nonetheless they are not the primary problem with the enhanced powers being given to law enforcement agencies server05productnOORE8lAORE406 txt unknown Seg l3 3OVSEP703 14 56 Whose Liberty Whose Security 1063 is our responsibility to ensure that the law is used to protect not repress those who exercise their rights to political dissent em bodied in the Constitution and in international human rights law 11 SUPPRESSING MOVEMENTS FOR SOCIAL CHANGE A BRIEF OVERVIEW It is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make the world safe for democracy iEugene Debs43 A National Security and the Rule of Law A government s right to protect the national security ie to protect the state from both internal and external threats to its existence is generally accepted as a given However the right to take otherwise repressive measures exists only to the extent that the threat is real the state is exercising a legitimate sovereignty and the government acts in accordance with the rule of law In the international community states only exist as sover eign entities by virtue of mutual recognition Recognition as a sovereign state under international law requires legitimate con trol over the territory occupied by the state and the peoples who reside in that territory44 As the white minority regime in Rho desia discovered in 1965 simply controlling a geographic area and its population and proclaiming itself a state is not suffi cient45 One of the fundamental principles of international law is that a state s sovereignty does not extend to the unlawfully occu 43 Ramsey Clark Preface to Notes on War and Freedom in MICHAEL LlNFIELD FREEDOM UNDER FIRE UIS CIVIL LIBERTIES 1N TIMES OF WAR at xvii 1990 quoting Eugene Debs on his way to prison for opposing the United States partici ation in World War I 44 US Secretary of State James Baker in a 1991 address to the Conference on Security and Cooperation in Europe stated that criteria to be considered in the recognition of new states included support for democracy and the rule of law the safeguarding of human rights and respect for international law and obligations Tes timony of Ralph Johnson Deputy Assistant Secretary of State for European and Canadian Affairs Oct 17 1991 2 FOREIGN POL Y BULL 39 42 NovDec 1991 quoted in LOUIS HEN KTN ET AL INTERNATIONAL LAW CASES AND MATERIALS 250 3d ed 1993 45 See United Nations Security Council Resolution Concerning Southern Rhode sia Nov 20 1965 SC Res 217 SCOR Resolutions and Decisions at 8 which condemns the usurpation of power by a racist settler minority in southern Rhode server05productnOORE8lAORE406 txt unknown Seq l4 3OVSEP703 I4 56 1064 OREGON LAW REVIEW Vol 81 2002 pied territory of another state or nation and the latter state or nation has the right to struggle for selfdetermination46 States of course often continue to exist despite changes of government To be legitimate the government must comply with the rule of law as embodied in both international law and the state s domes tic legal structures The rule of law has both substantive and procedural dimen sions At a minimum it substantively requires a state s legal sys tem to incorporate the most fundamental principles of international law it procedurally requires that the law can be known by the people and is applied predictably and equitably Thus for the United States to legitimately act in the name of national security the country must be lawfully sovereign over the territory resources and peoples that it claims the US gov ernment must be complying with the rule of law both the inter national law that creates the sovereign state and the S Constitution that provides for the existence and legitimacy of its government and it must be responding to a real threat B Early Suppression of Struggles for Justice As we begin to analyze the American government s use of its law enforcement powers we must keep in mind the distinction between threats to a lawful state or government ie legitimate threats to the national security and threats to the status quo Al though the United States has proclaimed itself to be a freedom loving democracy since the beginning of the republic we have consistently seen national security invoked to suppress legiti mate movements for social and political change If the United States is asserting control of land resources or peoples over which it does not have legitimate jurisdiction as in the case of many American Indian nations and external colonies such as Pu erto Rico those who seek to challenge this control may not ap propriately be deemed threats to the national security Likewise Sia and regards the declaration of independence by it as having no legal validity reproduced in HEN KIN ET AL supra note 44 at 25758 46 See JAMES CRAWFORD THE CREATION OF STATES IN INTERNATIONAL LAW 105 1979 Where a particular territory is a selfdetermination unit as defined no gov ernment will be recognized which comes into existence and seeks to control the territory as a State in Violation of selfdetermination see also RESTATEMENT THIRD of the FOREIGN RELATIONS LAW OF THE UNITED STATES 201 Conunth l7 noting that a State does not cease to be a State because it iS occupied by a foreign power server05productnOORE8lAORE406 txt unknown Seg 15 3OVSEP703 14 56 Whose Liberty Whose Security 1065 if the United States government is denying basic human rights to people within its jurisdiction it cannot legitimately claim to be protecting the national interest when it represses protest against such policies Furthermore if people are exercising their lawful right to effect democratic change their actions are not appropri ately characterized as threats to the national security Nonetheless since the founding of the republic we have seen state power used to repress movements for social racial and eco nomic justice as well as movements for selfdetermination The Constitution protected the institution of slavery in numerous ways including a ban on the prohibition of the slave trade before 180847 the requirement that nonslaveholding states return fugi tive slaves48 and the increased proportional representation given to slaveholders by the threefifths clause49 In addition one of the reasons Congress was given the power of calling forth the Militia to suppress Insurrections was to enlist the power of the federal government in crushing slave rebellions50 Few Americans would now contest the right of the people both those who were enslaved and those who were not to speak out against slavery and to organize to change the government s policy of support for the institution Nevertheless many jurisdic tions considered it seditious to advocate the abolition of slavery and in certain periods the Postmaster General refused to allow abolitionist literature to be sent through the mail51 Despite the First Amendment s explicit protection of the right of the people to petition the Government for a redress of grievances 52 the House of Representative enacted a gag rule under which it al 47 US CONST art I 9 cl 1 This is one of the few provisions of the Constitu tion that cannot be amended See US CONST art V 43 US CONST art IV 2 cl 3 49 US CONST art I 2 cl 3 Contrary to popular understanding this did not mean that enslaved Africans were considered threefifths of a person As articu lated by the Supreme Court in Scott v Sandford 60 US 393 1856 they were not considered persons at all This clause simply meant that citizens of the slaveholding states had more congressional representation than those of nonslaveholding states 50 See Paul Finkelman A Covenant with Death Slavery and the US Constitution AMERICAN VISIONS MayJune 1986 at 2139 see generally Staughton Lynd Slavery and the Founding Fathers in BLACK HISTORY A REAPPRAISAL 11531 Melvin Drimmer ed 1968 51 See Michael Kent Curtis The Crisis Over The Impending Crisis Free Speech Slavery and the Fourteenth Amendment 39m SLAVERY AND THE LAW 161205 Paul Finkelman ed 1997 noting laws passed to suppress antislavery press and speech 52 US CONST amend l server05EroductnOORE8lAORE406 txt unknown Seg 16 3OVSEP703 I4 56 1066 OREGON LAW REVIEW Vol 81 2002 lowed no discussion of the slavery question53 With rationalizations remarkably similar to those being used by Israel today in defending Jewish settlements in Palestinian territories54 the United States consistently invoked the security of the nation and of Euroamerican settlers in particular to en gage in Indian wars a term which disguised the fact that the military was being used to crush the efforts of American Indian nations to enforce existing treaties and protect their national se curity55 The US government s own Indian Claims Commission established in 1946 to quiet title to lands expropriated from Indian nations reluctantly concluded in the 1970s that the United States still does not have good title to at least onethird of what it claims as its territory56 This acknowledgment should serve to make us much more critical of the government s at tempts to justify the Indian wars and its use of force to sup press contemporary struggles for the recognition of American Indian sovereignty It should also make us question attempts to automatically correlate the loss of American life with a threat to the national security If lives are lost as a result of illegitimate governmental activity it is the government s actions rather than the loss of life tragic though it may be which should be seen as threatening the nation s security A consistently emerging theme in the suppression of political dissent is that those who disagree with government policy are la beled unAmerican and whenever possible portrayed as agents of foreign powers The Federalists who enacted the 1798 Alien and Sedition Acts57 claimed the acts were necessary be 53 See Curtis supra note 51 at 16639 WINTHROP D JORDAN WHITE OVER BLACK AMERICAN ATTITUDES TOWARD THE NEGRO 15501812 at 32930 1968 54 For a history of such justifications and the Violations of international law em bodied in the occupation see generally AVI SHLAIM THE IRON WALL ISRAEL AND ARAB WORLD 2000 NOAM CHOMSKY FATEFUL TRIANGLE THE UNITED STATES ISRAEL amp THE PALESTINIANS 1999 55 Furthermore rather than being military engagements these wars most often consisted of the massacre of women children and old men See Ward Churchill Nits Make Lice The Extermination of North American Indians 16071996 in CHURCHILL A LITTLE MATTER OF GENOCIDE supra note 19 at 129288 56 See WARD CHURCHILL Charades Anyone The Indian Claims Corrmission in Context in PERVERSIONS OF JUSTICE INDIGENOUS PEOPLES AND ANGLOAMERI CAN LAW 2003 noting that in 1979 the Claims Commission itself acknowledged that the United States did not hold valid title to as much as onethird of the territory occupied by the lower 48 states 57 Alien Act ch 58 1 Stat 570 1798 amended at 41 Stat 1008 1920 current version at 8 USC 1424 2001 Sedition Act ch 74 1 Stat 596 1798 expired 1801 server05productnOORE8lAORE406 txt unknown Seq l7 3OVSEP703 14 56 Whose Liberty Whose Security 1067 cause of the increase in USFrench hostility They accused the Jeffersonians of being agents of France who were trying to bring the French Revolution s Reign of Terror to the United States58 As it turned out only Republicans were prosecuted under the Sedition Act and they were clearly prosecuted for po liticalinot securityireasons For example Congressman Mat thew Lyon received a four month prison sentence for describing President John Adams as swallowed up in a continual grasp for power in an unbounded thirst for ridiculous pomp foolish adula tion and selfish avarice 59 As noted below in attacking movements for social justice the government has often justified its actions on the ground that these were actually movements for anarchy or communism alien ideologies promoted by foreign powers60 Not surpris ingly the linking of political protest to sedition has been most common in attempts to suppress antiwar activists61 Some inter esting parallels to the impending war in Iraq which the Bush ad ministration insists the United States must pursue to protect its national interest can be seen in the United States efforts to con quer the Philippines In the late 1800s after the United States had consolidated its control over the lower 48 contiguous states there was a great deal of political debate over explicitly imperialist expansion par ticularly the acquisition of territories such as Hawai i Puerto Rico and the Philippines62 The conquest of the Philippines re 53 Richard 0 Curry Introduction to FREEDOM AT RISK SECRECY CENSORSHIP AND REPRESSION IN THE 1980s at 3 5 Richard 0 Curry ed 1988 hereinafter Curry 59 CHANG supra note 25 at 22 60 This was also true of the suppression of the labor movement in the late nine teenth and early twentieth centuries Union organizers were labeled communists and anarchists labor unrest was blamed on immigrants and informants and agents provocateur were frequently used to create incidents which gave government troops and the private Vigilante forces they collaborated with an excuse to crush peaceful demonstrations for better wages and working conditions See generally GOLDSTEIN supra note 39 at 3101 HOWARD ZINN A PEOPLE S HISTORY OF THE UNITED STATES 1492PRESENT 20689 Oynthia Merman amp Roslyn Zinn eds 1995 61 For a comprehensive survey of the repression of dissent during wartime from the 1790s to the 1980s see generally MICHAEL LlNFlELD FREEDOM UNDER FIRE US CIVIL LIBERTIES IN TIMES OF WAR 1990 62 See generally Christina Duffy Burnett amp Burke Marshall Between the Foreign e Domestic The Doctr39me of Territorial Incorporation Invented and Reinvented in FOREIGN IN A DOMESTIC SENSE PUERTO RICO AMERICAN EXPAN SION AND THE CONSTITUTION 4 Christina Duffy Burnett amp Burke Marshall eds 2001 see also ZINN supra note 60 at 29092 server05EroductnOORE8lAORE406 txt unknown Seg l8 307SEP703 14 56 1068 OREGON LAW REVIEW Vol 81 2002 ferred to in 1902 by President Roosevelt as the most glorious war in the nation s history63 involved a particularly brutal four year campaign during which US troops burned hundreds of villages to the ground killed perhaps one million Filipinos herded thousands into concentration camps and engaged in systematic raping looting and torture64 The Philadelphia Ledger reported Our men have been relentless have killed to exterminate men women children prisoners and captives active insurgents and suspected people from lads of ten and up an idea prevailing that the Filipino as such was little better than a dog Our soldiers have pumpe salt water into men to make them talk have taken prisoner people who held up their hands and peacefully surrendered and an hour later stood them on a bridge and shot them down one by one 65 According to the correspondent reporting such facts these tac tics were necessary and long overdue for the enemy was not a civilized people66 Filipinos were routinely referred to as savages and niggers 67 and the fighting as Indian warfare 68 It is interesting to note in the context of the current war on terrorism and the impending war in Iraq that US officials con sistently maintained that the war in the Philippines was being fought to bring freedom and civilization to the Filipinos69 Fili 63 STUART CREIGHTON MILLER BENEVOLENT ASSIMILATION THE AMERICAN CONQU39EST OF THE PHILIPPINES 18991903 at 250 1982 64 See THE PHILIPPINES READER A HISTORY OF COLONIALISM NEOCOLONIALV ISM DICTATORSHIP AND RESISTANCE 533 Daniel B Schirmer amp Stephen Ross kamm Shalom eds 1987 the estimate of one million Filipinos is discussed at 19 hereinafter THE PHILIPPINES READER see generally MILLER supra note 63 65 MILLER supra note 63 at 211 66 1d 67 THE PHILIPPINES READER supra note 64 at 10 68 This was no loose analogy for General Howlin Jake Smith who gave the orders to kill and burn kill and burn and when asked about the children replied everything sic over ten id at 17 was a veteran of the 1890 Wounded Knee massacre MILLER supra note 63 at 219 in which dozens of US soldiers were given the army s medal of honor for murdering approximately 300 Lakota men women and children in cold blood MARIO GONZALES amp ELIZABETH COOKLYNNE POLITV ICS OF HALLOWED GROUND WOUNDED KNEE AND THE STRUGGLE FOR INDIAN SOVEREIGNTY 107 1999 69 The Salt Lake City Tribune editorialized The struggle must continue til the misguided creatures there shall have their eyes bathed in enough blood to cause their Vision to be cleared and to understand that those whom they are now holding as enemies have no purpose toward them except to consecrate to liberty and to open for them a way to happiness MILLER supra note 63 at 74 quoting 18 LITERARY DIGEST 387 1899 As early as 1899 General Shafter predicted It may be necessary to kill half of the Filipinos in server05EroductnOORE8lAORE406 txt unknown Seg 19 3OVSEP703 14 56 Whose Liberty Whose Security 1069 pino resistance was portrayed as violating the rules of civilized warfare thereby preventing the Americans from comporting with the laws of war70 Just as US officials recently denounced Iraq s invitations to conduct factfinding missions as merely a stalling tactic71 Filipino peace proposals were dismissed as merely a trick to gain time 72 General Douglas MacArthur decreed that captured Filipino guerrillas would not be treated as soldiers but as criminals and murderers and summarily exe cuted73 much as the Bush administration has said that the un lawful combatants captured in Afghanistan and held at Guantanamo Naval Base need not be accorded prisoner of war status74 In a move which calls to mind provisions of the USA PA TRIOT Act75 General MacArthur had a lawyer on the Philip pine Commission draft Treason Laws under which treason was defined as joining any secret political organization or even as the advocacy of independence or separation of the islands from the United States by forcible or peaceful means 76 Press criti cal of the war in the Philippines was routinely censored77 and those who opposed the war were dismissed as liars and trai tors 78 As discussed in the following section those who pro tested the United States involvement in World War I were similarly considered treasonous or seditious and subjected to harsh repression As these few vignettes illustrate in the early history of the order that the remaining half of the population may be advanced to a higher plane of life than their present semibarbarous state affords THE PHILIPPINES READER supra note 64 at 11 70 MILLER supra note 63 at 77 71 See Anthony Shadid US Rebuffs Second Iraq Offer on Arms Inspection BOSV TON GLOBE Aug 6 2002 at A1 noting that the overture was quickly dismissed by US officials as a stalling tactic see also White House Dismisses Offers by Iraq to UN Congress for Weapons Inspection AGENCE FRANCEPRESSE Aug 5 2002 available at 2002 WL 23573867 72 MILLER supra note 63 at 77 73 Id at 163 74 Katharine Q Seelye A Nation Challenged Captives Detainees Are Not P 0W s Cheney and Rumsfelal Declare NY TIMES Jan 28 2002 at A6 see also Amnesty International USA AI Calls 0n the USA to End Legal Limbo of Guanta namo Prisoners Jan 15 2002 Alindex AMR510092002 available at httpweb amnes yor 75 See infra Part VI 76 MILLER supra note 63 at 166 77 Id at 8387 78 Id at 156 server05EroductnOORE8lAORE406 txt unknown Seg 20 3OVSEP703 14 56 1070 OREGON LAW REVIEW Vol 812002 United States social movements which challenged the status quo were labeled seditious The threat they were said to pose to the national security was used to justify denying First Amendment rights to freedoms of speech and press to peaceably assemble and to petition for redress of grievances The criminal justice sys tem was used to convict organizers engaged in constitutionally protected activity and to crush otherwise popular and effective movements for social change While done in the name of law enforcement such actions were in fact undermining the rule of aw As the United States entered the twentieth century it was against this general background that its use of federal law en forcement powers to suppress dissent was more effectively insti tutionalized within the Department of Justice and more particularly in what was to become the Federal Bureau of Investigation III THE FEDERAL BUREAU OF INVESTIGATION ORIGINS AND EARLY ACTIVITIES Your FBI is respected by the good citizens of America as much as it is feared hated and vilified by the scum of the un derworld Communists gooseStepping bundsmen their fellow travelers mouthpieces and Stooges 7J Edgar Hoover 194079 The Department of Justice DOJ was formed in 1870 and the following year Congress appropriated 50000 for the DOJ to en gage in the detection and prosecution of those guilty of violating Federal Law 80 In 1906 Attorney General Bonaparte estab lished the Bureau of Investigation within the Justice Depart ment81 despite the fact that initially congressional authorization was withheld because of the widely held view that 79 WARD CHURCHILL amp JIM VANDER WALL AGENTS OF REPRESSIONZ THE FBI s SECRET WARS AGAINST THE BLACK PANTHER PARTY AND THE AMERICAN INDIAN MOVEMENT 46 2d ed 2002 hereinafter CHURCHILL amp VANDER WALL AGENTS 80 Id at 17 citing United States Congress Appropriations t0 the Budget of the United States afAmerica 1872 Section VII 1871 at 31 Until Congress forbade the practice the DOJ employed the private Pinkerton Detective Agency long used by industrialists to crush labor movements to do its investigative work SANFORD J UNGER FBI 39 1976 GOLDSTEIN supra note 39 at 29 31 UNGER supra note 80 at 40 server05EroductnOORE8lAORE406 txt unknown Seg Zl 3OVSEP703 14 56 Whose Liberty Whose Security 1071 the establishment of such an agency would lead to a general sys tem of espionage and would be contradictory to the democratic principles of government 82 In 1910 the Bureau s functions were described to Congress as the enforcement of The national banking laws antitrust laws peonage laws the bucketshop law the laws relating to fraudulent bankruptcies the impersonation of government officials with intent to de fraud thefts and murders committe on government reserva tions offenses committed against government property and those committed by federal court officials and employees Chi nese smuggling customs frauds internal revenue frauds post office frauds violations of the neutrality lgSWS land frauds and immigration and naturalization cases However it soon took on much broader functions which demon strated that Congress initial reservations were wellfounded During World War I the Bureau received added funding and personnel to investigate sabotage and violations of the Neutrality Act and in 1917 the Justice Department tried to convince Presi dent Woodrow Wilson to allow military courts martial to try civil ians accused of interfering with the war effort This failed but Wilson did sign the Espionage Act84 which made it a crime to willfully utter print write or publish any disloyal profane scurrilous or abusive language about the United States85 It also criminalized any interference with the war effort and al lowed the post office to exclude from the mails any material ad vocating treason insurrection or resistance to any law of the US 86 The 1918 Sedition Act prohibited essentially all criticism of the war or the government87 While these laws did nothing appreciable to stop sedition they did effectively prevent those opposing the war from exercising their First Amendment rights Goldstein says Altogether over twentyone hundred persons were indicted under the Espionage and Sedition laws invariably for state ments of opposition to the war rather than for any overt acts and over one thousand persons were convicted Over one 82 Geoffrey R Stone The Reagan Administration the First Amendment and FBI Domestic Security Investigations in Curry supra note 58 at 27273 83 UNGER supra note 80 at 40 Congress immediately added the Mann Act designed to deter interstate prostitution Id 84 Espionage Act of 1917 ch 30 40 Stat 217 1918 see also UNGER supra note 80 at 4142 85 CHANG supra note 25 at 23 86 GOLDSTETN supra note 39 at 108 quoting Espionage Act of June 15 1917 87 Id See Sedition Act ch 75 40 Stat 553 1918 server05productnOORE8lAORE406 txt unknown Seq 22 3OVSEP703 I4 56 1072 OREGON LAW REVIEW Voli 812002 hundred persons were sentenced to jail terms of ten years or more I Not a single person was ever convicted for actual spy act1v1t1es This has become a consistent pattern in the enforcement of na tional security laws89 In June 1918 populistsocialist leader Eugene Debs was sen tenced to ten years in federal prison for violating the Espionage Act by making an antiwar speech in which he said You need to know that you are fit for something better than slavery and cannon fodder 90 Charles Schenck was also convicted for print ing and distributing pamphlets opposing the draft In 1919 a unanimous Supreme Court upheld his conviction stating that the government may restrict speech without violating the First Amendment when there is a clear and present danger that the speech could bring about the substantive evils at issue1 Anarchist leaders Emma Goldman and Alexander Berkman were also sentenced to ten years for violating the Espionage Act by publicly expressing opposition to the draft2 Goldman and Berkman were deported in 1919 under the newly amended immi gration laws These amendments made noncitizens who were members of organizations which advocated the unlawful destruc tion of property or the overthrow of the government by force or violence deportable The law did not require any individualized showing of action or even belief thus incorporating the principle of guilt by association93 in a manner recently replicated by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act94 88 GOLDSTETN supra note 39 at 11339 see also LNFELD supra note 61 at 3367 89 See infra Part IV 90 Debs v United States 249 US 211 214 1919 91 Schenck Vi United States 249 US 47 52 1919 As Nancy Chang points out this case is best known for Justice Holmes analogy to falsely shouting fire in a crowded theatre but the actions in question were better described by Howard Zinn as shouting not falsely but truly to people about to buy tickets and enter a thea ter that there was a fire raging inside CHANG supra note 25 at 2324 quoting HOWARD ZLNN A PEOPLE S HISTORY OF THE UNITED STATES 1492 TO PRESENT 366 1999 92 Goldman v United States 245 US 474 1918 see also Edward II Bloustein Criminal Attempts and the Clear and Present Danger Theory of the First Amend ment 74 CORNELL L REvi 1118 112527 1989 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 19 20 93 GOLDSTETN supra note 39 at 110 94 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Pub L No 104208 110 Stat 3009546 1996 see generally Kevin R Johnson The Antiter rorism Act the Immigration Reform Act and Ideological Regulation in the Immigra server05productnOORE8lAORE406 txt unknown Seg 23 3OVSEP703 14 56 Whose Liberty7 Whose Security 1073 During World War I there was a dramatic increase in federal intelligence gathering operations Military intelligence jumped from two officers in 1917 to 1300 officers and civilian employees y 919 There were similar increases in the intelligence divi sions of the Justice Department as well as the Post Office and the Treasury Department95 At the same time the Justice De partment s Bureau of Investigation entered into an agreement with the American Protective League APL a prominent vigi lante organization that soon numbered 350000 members which allowed these private citizens to assist the Bureau96 The APL quickly became a largely outof control quasigovernmental quasivigilante agency which established a massive spy network across the land making illegal arrests and detentions instigating attacks on activists and infiltrating burglarizing wiretapping and opening the mail of organizations they considered detrimental to United States interests97 During the early 1900s this combination of federal agents and APL members was instrumental in conducting large scale raids and vigilante actionsiincluding outright lynchingsiagainst members of the Industrial Workers of the World IWW or Wob blies across the country The raids acknowledged to have been carried out largely as a preventative matter to prevent possible violence 98 were followed by preindictment detentions of up to two years mass trials in which the defendants were sometimes not even identified by name and the imposition of lengthy prison sentences These tactics succeeded in crushing the nation s most powerful union movement of that era99 The Justice Department s involvement in quashing subver sive activities increased in the aftermath of World War I In 1919 there was a series of bombings around the country includ tian Laws Important Lessons for Citizens and Nancitizens 28 ST MARY S L 833 1997 95 GOLDSTETN supra note 39 at 110 96 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 1839 GOLDSTETN supra note 39 at 111 97 GOLDSTETN supra note 39 at 111 98 Id at 117 quoting a statement of the US attorney for Kansas to a Justice Department official 99 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 1939 GOLDSTETN supra note 39 at 11718 At the same time the Justice Department and APL vol unteers conducted slacker raids in which an estimated 400000 men were seized and detained for not carrying draft cards Id at 11112 Less than one in two hun dred of those arrested were actually draft resisters UNGER supra note 80 at 42 server05EroductnOORE8lAORE406 txt unknown Seg 24 3OVSEP703 14 56 1074 OREGON LAW REVIEW Vol 812002 ing one on the residence of Attorney General A Mitchell Palmer Those responsible were never identified but anarchist lea ets were found scattered around each site and Palmer re acted by declaring war on radicals and subversives100 Palmer created a General Intelligence Division GID within the Bureau of Investigation to spearhead this effort headed by Assistant At torney General Garvan and his twentyfour year old assistant J Edgar Hoover Within three and onehalf months the GID had compiled personal files on 60000 individuals a number which soon grew to 200000101 Palmer lobbied Congress for peacetime sedition legislation and when that failed he relied on the 1918 Alien Actiagain con ating troublemakers with foreigners ito conduct numerous raids on legal organizations such as the Communist and Commu nist Labor parties On January 2 1920 the Bureau conducted massive Red raids later known as the Palmer Raids in thirtythree cities arresting and holding 10000 people both citi zens and noncitizens as criminal anarchists 102 Using tactics similar to those we have seen with respect to the 1200plus post September 11 detainees103 hundreds were held for months in harsh and squalid conditions and denied contact with their fami lies friends and lawyers104 When the excesses came to light Attorney General Palmer declared that the Fourth Amendment did not apply to aliens and boldly stated I apologize for noth ing that the Department of Justice has done in this matter I glory in it 105 According to Sanford Unger one of the legacies of the Palmer Raids was that they demonstrated that the use of methods that stretched and went beyond the law were a great help and an efficient tool in undermining subversives 1 6 By 1924 Hoover was in charge of the Bureau which was soon renamed the Federal Bureau of Investigation107 He proclaimed 100 UNGER supra note 80 at 4339 CHURCHILL amp VAN39DER WALL AGENTS supra note 79 at 2022 101 UNGER supra note 80 at 43 102111 at 4344 103 See infra text accompanying note 308 104 CHURCHILL amp ANDER WALL AGENTS supra note 79 at 2223 One de tainee Andrea Salsedo after being held in isolation for two months in a New York Bureau office was found on the pavement below the building According to Bureau agents he had jumped fourteen floors to his death Id 105 UNGER supra note 80 at 44 106 Id at 45 107111 at 5455 server05EroductnOORE8lAORE406 txt unknown Seg 25 3OVSEP703 14 56 Whose Liberty Whose Security 1075 that the bureau must be divorced from politics and most inter estingly stated It is of course to be remembered that the ac tivities of Communists and other ultraradicals have not up to the present time constituted a violation of federal statutes and consequently the Department of Justice theoretically has no right to investigate such activities 108 However this was ex actly what Hoover proceeded to do with unprecedented vigor He gave priority to what became the Files and Communications Division which by 1975 had 65 million Active Investigation files an undisclosed but higher number of other files and a General Index containing about 58 million cards In 1930 Hoover obtained permission to collect fingerprints and by 1974 the Division of Identification and Information DII had on file the prints of about 159 million Americans and was adding 3000 sets each day109 One of the Bureau s early targets was the Universal Negro Im provement Association UNIA the largest and most vibrant or ganization of African Americans ever to exist in this country110 which Hoover succeeded in destroying through a campaign against Marcus Garvey which resulted in his frameup on false charges and ultimately his deportation as an undesirable alien 111 In the meantime as noted by Ward Churchill and Jim Vander Wall the D11 kept tabs and accumulated increasing amounts of sensitive information on all manner of socialists communists union organizers black activists anarchists and other ultraradicals as they painstakingly rebuilt their shattered movements 112 In 1936 Hoover obtained the President s explicit authorization to resume investigation of subversive activities in the country113 By 1938 the FBI had launched significant and tacitly illegal investigations of supposed subversion in numerous indus tries as well as various educational institutions organized la 1081d at 4849 09 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 2627 110 See generally El DAVID CRONON BLACK MOSES THE STORY OF MARCUS GARVEY AND THE UNIVERSAL NEGRO IMPROVEMENT ASSOCIATION 1969 111 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 27 quoting Flynt Taylor amp Margaret Van Houten Counterintelllgerlce A Documentary Look at America s Secret Police National Lawyers Guild Task Force on Counterintelligence and the Secret Police 3 1978 113 Id server05productnOORE8lAORE406 txt unknown Seg 26 3OVSEP703 I4 56 1076 OREGON LAW REVIEW Voli 812002 bor assorted youth groups black organizations governmental affairs and the armed forces More explicit illegality was involved in the methods of intelligencegathering themselves wiretapping bugging mail tamperingopening and break ingandentering were a few of the expedients routinely ap plied by agents whose investigative output was promptly summarize and transmitted upstairs to th White House114 By January 1940 Hoover revived the General Intelligence Divi sion announcing his intent to create an alphabetical and geo graphical general index which would allow the Bureau to locate anyone it wanted to investigate for national security purposes at any time115 Shortly thereafter Congress passed the Smith Act which made it a crime to knowingly or willfully advocate abet advise or teach the duty necessity desirability or propriety of overthrow ing or destroying any government in the United States by force or violence or by assassination of any officer of such govern ment 116 This law extended the prohibitions on speech found in previous sedition laws to peacetime illustrating the government s intent to restrict freedom of expression in the name of national security without limiting the scope or duration of the restrictions and without demonstrating that the speech was likely to result in any concrete action In Dennis v United States117 the Supreme Court upheld the convictions of eleven leaders of the Communist Party under the Smith Act using a test of whether the gravity of the evil dis counted by its improbability justifies such invasion of free speech as is necessary to avoid the danger Even though the Party had not used force or violence the Court justified the con victions on the ground that the Party or the conspiracy as the Court referred to it was highly organized and because its lead ers who could not be shown to be foreign agents were ideologi cally attuned to countries with whom the United States had touchandgo relations118 Again we see a similar stretching of 114111 at 29 citations omitted See also FRANK J DONNER THE AGE OF SUR VEILLANCE THE EMS AND METHODS OF AMERICA S POLITICAL INTELLIGENCE SYSTEM 3078 1981 115 UNGER supra note 80 at 103 116 Alien Registration Smith Act of 1940 ch 43954 Stat 670 1940 Smith Act is Title I of Alien Registration Act see CHURCHILL amp VAN39DER WALL AGENTS supra note 79 at 2939 LINFIELD supra note 61 at 7579 117 341 US 494 1951 1181d at 510 server05EroductnOORE8lAORE406 txt unknown Seg 27 3OVSEP703 14 56 Whose Liberty Whose Security 1077 the national security rationale being invoked in the if you re not with us you re against us rhetoric of the current war on terrorism119 During World War II the US government imprisoned all per sons of Japanese descent then living on the west coast over 70000 of whom were US citizens without any semblance of due process Despite the fact that there was no evidence of sabotage or espionage by Japanese Americans this was upheld by the Su preme Court as justified by military necessity a claim asserted by the military on the grounds that it had no way of distinguish ing the loyal from the disloyal l20 In 1947 as the United States moved from World War 11 into the Cold War President Truman issued Executive Order 9835 authorizing the Justice Department to seek out infiltration of disloyal persons within the US government again demonstrat ing that such measures were not to be limited to periods of actual warfare121 The Order required the DOJ to create a list of orga nizations which were totalitarian fascist communist or subver sive or seeking to alter the government of the United States by unconstitutional means 122 a measure similar to that author ized by the 1996 Antiterrorism and Effective Death Penalty Act123 and expanded by the 2001 Act124 By 1954 the Justice Department had created a list of hundreds of organizations and sympathetic association as well as membership was considered evidence of disloyalty125 The Internal Security Act of 1950 also known as the McCar ran Act required all members of Communistfront organiza 119 See Roy supra note 1639 Hugo Young A New K39md of War Means a New Kind ofDiscussion THE GUARDIAN Sept 27 2001 available at 2001 WL 28345801 Dar ryl Fears Deep Distrust of Government Still Simmers WASH POST Oct 292001 at A2 120 Korematsu v United States 323 US 214 1944 see generally Eugene V R05 tow The Japanese American CasesiA Disaster 54 YALE LJ 489 1945 Eric K Yaniamoto Korematsu RevisitediCorrecting the Injustice ofExtraordinary Govem ment Excess and Lax Judicial Review Timerr a Better Accommodation ofNational Security Concerns and Civil Liberties 26 SANTA CLARA L REV 1 1986 121 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 32 122 Id A ain we see parallels in recent legislation which authorizes the creation of lists of terrorist organizations See infra text accompanying notes 29192 354 123 See infra text accompanying notes 29192 124 See infra text accompanying notes 35459 125 Id This too is similar to the guilt by association provisions of AEDPA See infra text accompanying note 295 server05EroductnOORE8lAORE406 txt unknown Seg 28 3OVSEP703 I4 56 1078 OREGON LAW REVIEW Vol 812002 tions to register with the federal government and adopted a proposaliwhich was not rescinded until 19687that special de tention centers be established for incarcerating those so regis tered without trial any time the president chose to declare an internal security emergency 126 Between 1945 and 1957 the House UnAmerican Activities Committee HUAC subpoenaed thousands of Americans for hundreds of public hearings and re quired them to testify about their associations with the Commu nist Party and their knowledge of the political activities of their friends neighbors and coworkers Those who refused to testify were jailed for contempt127 Although Hoover personally dis liked Joseph McCarthy he worked closely with HUAC and the McCarthyites until 1954 During this period the FBI placed hundreds of informants within social and labor organizations and conducted security in vestigations of approximately 66 million Americans128 The stage was set for the next step the COINTELPRO operations IV COINTELPRO ABHORRENT IN A FREE SOCIETY 129 Many of the techniques used by the FBI in its COINTEL PRO operations would be intolerable in a democratic society even if all of the targets had been involved in violent activity but COINTELPRO went far beyond that The unexpressed 126 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 3339 ZINN supra note 60 at 42324 See generally Mari Matsuda McCarthyism The Intemment and the Contradictions ofPower 40 BC L REV 9 19 BC THIRD WORLD LJ 9 1998 joint issue foreword to Symposium The Long Shadow ofKorematsu Again we see parallels in the recent statement of Attorney General Ashcroft that such deten tion centers or concentration camps are currently being considered for the incarcera tion of US citizens See infra note 307 127 See generally CORLISS LAMONT FREEDOM IS As FREEDOM DOES 4th ed 1990 Frank Wilkinson Revisiting the McCarthy Era Looking at Wilkinson v United States in light of Wilkinson v Federal Bureau of Investigation 33 LOY LA L REV 681 2000 discussing his conviction for refusing to testify to HUAC in light of documents the FBI was forced to produce in his FOIA action Alan Bigel The First Amendment and National Security The Court Responds to Governmental Har assment of Alleged Communist Sympathizers 19 OHIO NU L REV 885 890 1993 128 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 36 129 SENATE SELECT COMM TO STUDY GOVERNMENT OPERATIONS WITH RESPECT To INTELLIGENCE ACTIVITIES FINAL REPORT INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS S REP NO 755 94th Cong 2d Sess bk III at 8 1976 hereinafter SENATE SELECT COMM FINAL REPORT server05EroductnOORE8lAORE406 txt unknown Seg 29 3OVSEP703 14 56 Whose Liberty Whose Security 1079 major premise of the programs was that a law enforcement agency has the duty to do whatever is necessary to combat perceived threats to the existing social and political order iFinal Report of the Senate Select Committee on Intelligence Activities130 Properly used the term counterintelligence refers to efforts to combat the intelligence or spying activities of foreign pow ers Officially the FBI s counterintelligence functions have al ways been administratively lodged in its Counterintelligence Division CID and were legally restricted to hostile foreign governments foreign organizations and individuals connected with them 31 Nonetheless since first receiving President Tru man s 1936 mandate to investigate subversive activities Hoover had initiated domestic counterintelligence programs within the Bureau Some were officially named COINTELPROS COunter INTELligence PROgrams and others were not but the term has come to refer to a broad range of FBI programs generally illegal intended to repress political dissent132 Al though these programs had almost nothing to do with countering foreign intelligence the use of the term illustrates the agency s proclivity to invoke the fear of external threats to the national security while quashing domestic movements which were prima rily engaged in lawfuliindeed constitutionally protectedi activities133 Even if one looks only at FBI actions between 1956 and 1971 the period of officially acknowledged COINTELPRO opera tions the scope of the operations and their sheer volume is over whelming This section will present a brief summary of how the program was exposed the kinds of tactics used and the move ments that were the primary targets giving a few illustrative ex amples While constituting a particularly intense period of governmental repression of political dissent the COINTELPRO era represents not an aberration but the logical outgrowth of the previous use of law enforcement agencies to suppress movements 130103 at 3 131 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 37 132101 at 3738 133 As the Senate report on COINTELPRO noted Counterintelligence pro gram is a misnomer for domestic covert action SENATE SELECT COMJVL FINAL REPORT supra note 129 at 4 server05productnOORE8lAORE406 txt unknown Seq 30 3OVSEP703 14 56 1080 OREGON LAW REVIEW Vol 812002 for social change a process that is still at work in the laws and policies being enacted in the name of countering terrorism A COINTELPRO Exposed In 1976 the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities known as the Church Committee because it was chaired by Senator Frank Church characterized the FBI s COINTELPRO operations as a secret war against those citizens it considers threats to the es tablished order 134 To quote the Committee s Final Report in these programs the Bureau went beyond the collection of intelligence to secret actions designed to disrupt and neutralize target groups and individuals The techniques were adopted wholesale from wartime counterintelligence and ranged from the trivial to the degrading and the dangerous 135 The Committee noted that from 1956 when the FBI officially labeled its anticommunist efforts as a COINTELPRO to 1971 when the program was officially terminated the FBI approved more than 2000 COINTELPRO actions as part of a sophisticated vigi lante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association on the theory that preventing the growth of dangerous groups and the propagation of dangerous ideas would protect the national security and deter violence 136 Despite a very constricted review which was abruptly termi nated in midstream137 the Church Committee hearings and its fourvolume Final Report provide more than enough evidence to show that the FBI the Central Intelligence Agency the National Security Agency the Defense Intelligence Agency Army Intelli gence and numerous other federal agencies engaged in thousands of illegal and unconstitutional operations spanning several decades with the explicit intention of destroying social and political movements they considered a threat to the status 134 Id at 77 135 Id at 339 see generally BRIAN GLICK WAR AT HOME COVERT ACTION AGAINST US ACTIVIS39TS AND WHAT WE CAN DO ABOUT IT 1989 NELSON BLACKSTOCK COINTELPRO THE FBI S SECRET WAR ON POLITICAL FREEDOM Cathy Perkus ed 1975 136 SENATE SELECT COMM FINAL REPORT supra note 129 at 3 The Report also notes that COINTELPRO began in part because of frustration with Supreme Court rulings limiting the Government s power to proceed overtly against dissident groups Id 137 See PETER MATTHIESSEN IN THE SPIRIT OF CRAZY HORSE 12526 1991 server05EroductnOORE8lAORE406 txt unknown Seg 31 307SEP703 14 56 Whose Liberty Whose Security 1081 1110138 There is much that we do not know about COINTELPRO and similar operations Nonetheless what we do know is more than sufficient to cause alarm The following sections focus on what is known about FBI COINTELPROs but it is important to re member that the Bureau was but one of perhaps dozens of fed eral agencies engaging in such practices B The Tactics Employed The illegal practices employed by the FBI in its COINTEL PRO operations are far too numerous to list specifically but they fall into several basic categories surveillance and infiltration dissemination of false information creation of group con ict abuse of the criminal justice system and collaboration in assaults and assassinatons139 I Surveillance and In ltration One category of operations involves the acquisition of infor mation through illegal means including mail interception wire taps bugs live tails breakins and burglaries and the use of informants140 The FBI has acknowledged that between 1960 and 1974 it illegally utilized over 2300 wiretaps 697 bugs and 57000 mail openings141 It is worth noting that this kind of in telligence gathering is the activity most commonly associated with COINTELPRoiand is also the most hotly debated aspect of the 2001 Act s expansion of executive powermibut is in fact the least egregious of the practices involved Perhaps more sig 138 SENATE SELECT COMJVL FINAL REPORT supra note 129 139 This categorization is based on the cogent summary of the kinds of illegal prac tices employed by the FBI in its CO INTELPROtype operations compiled by Ward Churchill and Jim Vander Wall in CHURCHILL amp VANDER ALL AGENTS supra note 79 at 3953 and by Ward Churchill To Disrupt Discredit and Destroy The FBI s Secret War Against the Black Panther Party in LIBERATION IMAGINATION AND THE BLACK PANTHER PARTY 78117 Kathleen Cleaver amp George Katsiaficas eds 2001 hereinafter Churchill To Disrupt 140 URCHILL amp VANDER WALL AGENTS supra note 79 at 39 See generally Clifford S Zimmerman Toward a New Vision of Informants A History ofAbuses and Suggestions for Reform 22 HASTINGS CONST LQ 81 1994 regarding problems inherent in the use of informants 141 WARD CHURCHILL amp JIM VANDER WALL THE COINTELPRO PAPERS OCU39MENTS FROM THE FBI S SECRET WARS AGAINST DISSENT IN THE UNITED STATES 304 2d ed 2002 hereinafter CHURCHILL amp VANDER WALL COINTELPRO 142 See infra Part VLAB server05EroductnOORE8lAORE406 txt unknown Seg 32 3OVSEP703 14 56 1082 OREGON LAW REVIEW Vol 812002 nificant than the resulting violations of privacy is the fact that these tactics were not utilized simply for the purpose of acquiring information but were explicitly intended to induce paranoia in movements for social change As Hoover stated he wanted his targets to believe that there was an FBI agent behind every mailbox 43 In other words the executive branch of the federal government was engaging in such activities precisely because of the chilling effect they would have on speech and associational activities protected by the First Amendment 2 Dissemination of False Information A second level of tactics employed in COINTELPRO opera tions encompasses the dissemination of information known to be false One version sometimes called gray propaganda was the systematic release of disinformation ie false and misleading in formation designed to discredit organizations in the eyes of the public and to foster tensions between groups144 The Church Committee s Final Report notes that the Bureau used confiden tial sources ie unpaid informants and friendly media sources who could be relied upon not to reveal the Bureau s interests to leak derogatory information about individuals and to publish unfavorable articles and fabricated documentaries about targeted groups145 Among such groups were the Nation of Islam the Poor People s Campaign the Institute for Policy Studies the Southern Students Organizing Committee and the antiwar National Mobilization Committee146 Another form of disinformation known as black propa ganda involved the fabrication of lea ets and other publica tions purporting to come from targeted individuals and organizations Thus for example the FBI had an infiltrator in the Sacramento chapter of the Black Panther Party BPP pro duce a coloring book for children which promoted racism and violence Although the Panther leadership immediately ordered it destroyed the Bureau mailed copies to companies which had been contributing food to the Panthers Breakfast for Children program to get them to withdraw their support147 Such 143 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 3940 1441121 at 4344 145 SENATE SELECT COMJVL FINAL REPORT supra note 129 at 3536 146 Id 147 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 159 server05EroductnOORE8lAORE406 txt unknown Seg 33 3OVSEP703 14 56 Whose Liberty Whose Security 1083 fabrications did much to promote the image of the BPP as violent copkillers an impression still widely held by the American public148 In another example FBI artists imitating the drawing styles used by the BPP and a Black cultural nationalist organization known as the United Slaves US created a series of lea ets in which each organization appeared to be advocating the elimina tion of the other s leadership149 The FBI s intent can be seen in this excerpt from a 1969 report on its San Diego operations In View of the recent killing of BPP member Sylvester Bell a new cartoon is being considered in the hopes that it will assist in the continuance of the rift between BPP and US This car toon or series of cartoons will be similar in nature to those formerly approved by the Bureau and will be forwarded to the Bureau for 1esyaluation and approval immediately upon their completion 3 Creation of Intra and InterGroup Con ict This brings us to the third level of COINTELPRO operations the FBI s destruction of targeted organizations both by creating internal dissension and by setting up groups to attack each other As reported by the Church Committee Approximately 28 of the Bureau s COlNTELPRO efforts were designed to weaken groups by setting members against each other or to separate groups which might otherwise be allies and convert them into mutual enemies The techniques used included anonymous mailings reprints Bureauauthored articles and letters to group members criticizing a leader or an allied group using informants to raise controversial issues forming a notional ia Bureaurun splinter groupito draw away membership from the target organization encouraging hostility up to and including gang warfare between rival 143 Thus when Jamil alAmin formerly known as Hi Rap Brown was accused of killing a deputy sheriff in 2000 he was not referred to as a Muslim community leader which he had been for twenty years but as a former Black Panther which he had been for only a few months See eg Police Hunt for ExBlack Panther Ac cused of Killing Wounding Cops CHL TRiBi Mari 18 2000 at 339 Lyda Longa 0f ficers Vow to Find Former Black Panther ATLANTA J i amp ATLANTA CONSTi Mar 18 2000 at A1 149 CHURCHiLL amp VANDER WALL AGENTS supra note 79 at 4243 some of the lea ets and related FBI memoranda are reproduced in CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 13033 150 Excerpt is reproduced in CHURCHiLL amp VANDER WALL COINTELPRO supra note 141 at 133 server05productnOORE8lAORE406 txt unknown Seg 34 3OVSEP703 14 56 1084 OREGON LAW REVIEW Vol 812002 groups and the snitch jacket 151 Thanks in part to such efforts the Bureau managed to escalate USBPP tensions to the point that two US members widely be lieved to be informants shot and killed BPP members Jon Hug gins and Bunchy Carter at a meeting on the campus of the University of California at Los Angeles in January 1969152 Fabricated correspondence was also a favored tactic as illus trated by Hoover s authorization of an anonymous letter directed to Dr Martin Luther King Jriaccompanied by a tape compiled from bugs of his Washington DC hotel roomisuggesting that he commit suicide to avoid the disgrace of the exposure of al leged sexual misconduct153 Nearly one hundred instances of fabricated correspondence between BPP leaders Huey Newton and Eldridge Cleaver were instrumental in creating intraparty violence and ensuring the 1971 split within the Party15 Because of its success in actually infiltrating organizations the FBI was able to further disrupt their functioning by creating sus picions about legitimate leaders In a practice known as bad jacketing or snitchjacketing the Bureau spread rumors and manufactured evidence that key members were informers or were otherwise undermining the organization by subverting its activities or stealing its funds This tactic succeeded not only in discrediting many activists but also resulted in the murders of some who were falsely accused of betraying others within the organization155 4 Abuse of the Criminal Justice System A fourth level of COINTELPRO operations involved the de liberate misuse of the criminal justice system Working with local police departments the FBI had activists repeatedly arrested not because it anticipated convictions but to simply harass increase paranoia tie up activists in a series of prearraignment incarcera 151 SENATE SELECT COMM FINAL REPORT supra note 129 at 40 See infra text accompanying note 155 discussing snitch jackets 152 CHURCHILL amp VANDER WALL AGENTs supra note 79 at 4243 153111 at 55 5739 SENATE SELECT COMM FINAL REPORT supra note 129 at 82 154 CHURCHILL amp VANDER WALL AGENTs supra note 79 at 40 155111 at 4951 noting FBI infiltrator Thomas E Mosher s explanation to the Senate Internal Security Committee of how Black Panther Party leader Fred Bennet was successfully badjacketed leading to his assassination by Jimmie Carr who was in turn badjacketed and subsequently killed See also SENATE SELECT COMJVL FINAL REPORT supra note 129 at 4649 server05productnOORE8lAORE406 txt unknown Seg 35 3OVSEP703 14 56 Whose Liberty Whose Security 1085 tions and preliminary courtroom procedures and deplete their resources through the postings of numerous bail bonds as well as the retention of attorneys 156 Using this tactic the Revolu tionary Action Movement in Philadelphia was effectively de stroyed despite the fact that no criminal convictions were ever obtained against members of this group157 Similarly the govern ment made 562 arrests in the wake of the 1973 occupation of Wounded Knee by members of the American Indian Movement AIM Even though these massive arrests only resulted in a to tal of fifteen convictions they succeeded in depleting AIM s re sources and keeping its leaders tied up in court for years158 Virtually all of the Bureau s surveillance and infiltration re vealed that the targeted groups were engaging in entirely lawful activity159 Rather than turning its focus elsewhere one of its re sponses was to place within groups agents provocateur who ad vocated violence or illegal activities which if carried out would then be used as an excuse to crush the organizations160 Another response was to make it appear that the groups were engaging in illegal conduct by obtaining convictions in questionable cases by using fabricated evidence or perjured testimony and by explicitly framing people for crimes they had not committed Prominent cases in which the FBI used perjured testimony and falsified evidence to convict activists include that of New York Black Panther Dhoruba bin Wahad Richard Moore whose murder conviction was overturned in 1993 after he had spent twenty years wrongfully incarcerated61 and AIM activist Leo nard Peltier who is still incarcerated after twentyseven years 156 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 44 157 Id at 4739 see also Airtel of Man 4 1968 reproduced in CHURCHILL amp VAN7 DER WALL COINTELPRO supra note 141 at 109 stating that in response to RAM activity in the summer of 1967 the Philadelphia FBI office alerted local po lice who then put RAM leaders under close scrutiny They were arrested on every possible charge until they could no longer make bail AS a result RAM leaders spent most of the summer in jail and no Violence traceable to RAM took place 158 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 176 quoting Hear ings Before the Subcomm on Civil and Constitutional Rights 97th Congi 1st Session on FBI Authorization Mar 19 24 2539 Apri 2 and 8 198139 see generally JOHN WIL LIAM SAYER GHOST DANCING THE LAW THE WOUNDED KNEE TRIALS 1997 159 See eg infra text accompanying note 184 noting the conclusions of the judge in the SWP case 160 See CHURCHILL amp VANDER WALL AGENTS supra note 79 at 21933 161 See generally Wahad v City of New York 1999 WL 608772 SDNY 1999 DHORU39BA BIN WAHAD MUMIA ABUJAMAL amp ASSATA SHAKUR STILL BLACK STILL STRONG SURVIVORS OF THE US WAR AGAINST BLACK REVOLUTIONARIES 1993 Churchill To Disrupt supra note 139 at 10304 server05EroductnOORE8lAORE406 txt unknown Seg 36 3OVSEP703 14 56 1086 OREGON LAW REVIEW Vol 812002 despite the acknowledgment that his conviction for the 1975 deaths of two FBI agents on the Pine Ridge Reservation was ob tained with the use of perjured testimony and falsified ballistics evidence162 and despite worldwide recognition of his status as a political prisoner163 The best known case may be that of Los Angeles BPP leader Geronimo ji Jaga Pratt who was the subject of constant surveil lance and numerous failed attempts to convict him of various crimes Finally in 1972 the government succeeded in convicting him of the 1968 tennis court murder of a woman in Santa Monica on the basis of the perjured testimony of an FBI inform ant and despite the fact that the FBI thanks to its surveillance knew that Pratt had been 350 miles away at a BPP meeting in Oakland at the time of the murder164 In these cases which were by no means aberrational but rather an explicit part of the government s strategy to eliminate the leadership of movements it did not sanction the Department of Justiceithe nation s highest law enforcement agencyiwas turn ing the criminal justice system on its head It was not enforcing the law but was deliberately engaging in illegal practices misus ing criminal laws and the courts to imprison activists not because they had engaged in criminal conduct but because of their politi cal beliefs actions and associations 5 Collaboration in Assaults and Assassinations A fifth level of COINTELPRO operations involves the gov ernment s participation in direct physical assaults and assassina 162 See generally JIM MESSERSCHMIDT THE TRIAL OF LEONARD PELTIER 1983 MATTHIESSEN supra note 13739 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 29496 30405 319 163 Leonard Peltier s clemency petition to President Clinton was accompanied by letters of support from among many others Amnesty International Archbishop Desmond Tutu the Dalai Lama the Archbishop of Canterbury and a resolution of the European Parliament on file with author For a discussion of the heightened postSeptember 11 repression of political prisoners many of them COINTELPRO Victims see I Soffiyah Elijah The Reality of Political Prisoners in the United States What September 11 Taught Us About Defending Them 18 HARv BLACKLETTER LI 129 2002 164 See generally JACK OLSEN LAST MAN STANDING THE TRAGEDY AND TRI UMPH OF GERONIMO PRATr 2000 see also CHURCHILL amp VANDER WALL GENTS supra note 79 at 7794 After being wrongly imprisoned for twentyseven years including eight years in solitary confinement Pratt s conviction was over turned and he subsequently received outof court settlements of 175 million from the FBI and 275 million from the City of Los Angeles OLSEN supra at 487 server05productnOORE8lAORE406 txt unknown Seg 37 3OVSEP703 14 56 Whose Liberty7 Whose Security 1087 tions This is of course the hardest area to document but as Churchill and Vander Wall note while the Bureau has almost always used surrogates to perform such functions it can repeat edly be demonstrated as having provided the basic intelligence logistics or other ingredients requisite to successful operations in this regard The most infamous of these is probably the 1969 murder of Chicago Black Panthers Fred Hampton and Mark Clark At the time twentyone year old Hampton was widely recognized as one of the most charismatic leaders emerging in the black com munity and despite his characterization by the government as a black nationalist it was his success in crossracial coalition building that the FBI found most threatening166 The prominent role played by FBI informant William O Neal who was by then in charge of security for the Chicago BPP chap ter and the FBI s collaboration with local police which culminated in a predawn assault on Hampton s apartment is well documented167 Despite evidence that hundreds of shots were fired into the apartment killing Hampton and Clark and wound ing several others including Hampton s pregnant fiancee with only one shot fired in response all government officials were cleared of criminal charges168 Nearly fifteen years later there was a civil finding of a government conspiracy to deny the vic tims civil rights and a 185 million settlement169 but the FBI had long since accomplished its purpose of destroying the Black Panther Party in Illinois170 In the meantime as part of its concerted program to destroy the American Indian Movement the FBI provided direct sup port to the selfproclaimed Guardians of the Oglala Nation or 165 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 53 166 See Nikhil Pal Singh The Black Panthers and the Undeveloped Country of the Left 39m THE BLACK PANTHER PARTY RECONSIDERED 57 7980 Charles E Jones ed 1998 noting that Fred Hampton organized the original rainbow coalition 167 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 6477 Hampton v Hanrahan 600 FIZd 600 7th Cir 1979 rev d in part 446 US 754 1980 remanded to 499 F Supp 640 1980 holding that gross negligence in the raids resulting in the deaths of Hampton and Clark was actionable 168 For an excellent summary of this attack see ROY WILKINS amp RAMSEY CLARK SEARCH AND DESTROY A REPORT BY THE COMMISSION OF INQUIRY INTO THE BLACK PANTHERS AND THE POLICE 1973 169 Hampton 600 FIZd at 600 170 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 7739 GOLDSTEIN supra note 39 at xvii server05EroductnOORE8lAORF406 txt unknown Seg 38 3OVSEP703 14 56 1088 OREGON LAW REVIEW Vol 81 2002 GOONS on the Pine Ridge Reservation in South Dakota who have been implicated in the unsolved deaths of at least seventy individuals associated with AIM between 1972 and 1976171 Par ticularly chilling is the fate of the family of John Trudell AIM s last national chairman In February 1979 Trudell led a march in Washington DC to draw attention to the difficulties the Indians were having Al though he had received a warning against speaking out he de livered an address from the steps 0 t e building on the subject of the agency s harassment of Indians Less than 12 hours later Trudell s wife Tina his three children ages five three and one and his wife s mother were burned alive in the family home in Duck Valley Nevadaithe apparent work of an arsonist172 As noted above what is at stake in allowing the government un restrained powers is not merely an abstract notion of First Amendment freedoms but in many cases the very survival of those who protest C The Groups Targeted Literally hundreds of organizations most of them related only by a desire to effect social or political change through constitu tionally protected means were the targets of various COINTEL PROs The Church Committee identified five overarching categories of targets the Communist Party USA the Socialist Workers Party White Hate Groups Black Nationalist Hate Groups and the New Left As the Final Report noted these were labels without meaning 173 as the categories included an extremely wide range of often unrelated organizations Thus all of the predominantly black organizations targeted including Martin Luther King Jr s Southern Christian Leadership Confer ence SCLC and numerous Black Student Unions were Black Nationalist Hate Groups while the Communist Party USA heading covered the National Committee to Abolish the House 171 See CHURCHILL amp VAN39DER WALL AGENTS supra note 79 at 164971 For the FBI s report on these deaths see Report of the Federal Bureau of Investigation Minnea olis Division Accounting for Native American Deaths Pine Ridge Indian Reservation South Dakota Department of Justice May 2000 available at http wwwifreepeltieriorgfbiipineiridgeireportihtm For a detailed response see Ward Churchill The FBI s Account39mg 0f AIM Fatalities on Pine Ridge 19731976 available at httpwwwifreepeltieriorganalysisifbiihtm CHILL amp VANDER WALL AGENTS supra note 79 at 361 quoting Free dom Sept 1986 at 7 173 SENATE SELECT COMJVL FINAL REPORT supra note 129 at 4 server05EroductnOORE8lAORE406 txt unknown Seg 39 3OVSEP703 14 56 Whose Liberty Whose Security 1089 UnAmerican Activities Committee and numerous civil rights leaders174 The New Left which the Bureau could only define as more or less an attitude encompassed targets from the Stu dents for a Democratic Society SDS to anyone involved in pro testing the war in Vietnam175 This section provides a few examples of how these organizations were targeted I Communist and Socialist Organizations Throughout the 1940s and 1950s COINTELPROtype opera tions were directed almost exclusively at the Socialist Workers Party SWP the Communist Party USA CPUSA and groups believed to be affiliated with them176 As previously noted groups identified as communist have been targeted by the gov ernment since the 1870s and the FBI or its predecessors had been trying to crush the CPUSA since its emergence in 1919 The FBI s first formal COINTELPRO initiated in 1956 was di rected at the CPUSA a lawfully constituted organization which had not been shown to have engaged in any criminal activity The Bureau specifically instructed agents and infiltrators to gen erate acrimonious debates increase factionalism and gener ate disillusionment and defection 177 Apparently it was quite successful Goldstein says Although the precise results of FBI efforts cannot be determined between 1957 and 1959 what was left of the CP was virtually destroyed by factional infighting 178 Nonetheless even as the CP collapsed into a tiny sect of a few thousand members FBI COINTELPRO activities increased and expanded 179 to the point where by the mid1960s the FBI was attempting to engineer the assassination of key communist leaders by creating a con ict between the CP and organized crime180 The FBI undertook 1388 separate actions against the CPUSA between 1956 and 1971181 In 1973 following public disclosure of COINTELPRO the So cialist Workers Party and its youth organization the Young So 174Id at 45 175 See id at 2327 see generally CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 165230 WILLIAM C SULLIVAN THE BUREAU MY THIRTY YEARS IN HOOVER S FBI 14761 1979 176 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 37 177 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 39 178 GOLDSTEIN supra note 39 at 408 179 1d 180 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 4446 181 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 47 server05EroductnOORE8lAORE406 txt unknown Seg 40 3OVSEP703 14 56 1090 OREGON LAW REVIEW Vol 81 2002 cialist Alliance YSA sued the government for illegally subjecting them to infiltration disruption and harassment in vio lation of their constitutional rights After fifteen years of litiga tion the SWP and YSA were awarded 264000 in damages182 The suit documented FBI surveillance that began in 1936 and in cluded fiftyseven operations conducted by the FBI These in cluded poisonpen letters malicious articles planted in the press instances of harassment and victimization covert attempts to get SWP members fired from their jobs and efforts to disrupt collab oration between the SWP and civil rights and antiVietnam war groups Judge Griesa s opinion for the Southern District of New York notes that between 1943 and 1963 the FBI illegally engaged in 20000 days of wiretaps 12000 days of listening bugs and 208 burglaries of office and homes and that between 1960 and 1976 it employed about 300 member informants constituting at any given time from two to eleven percent of the membership and 1000 nonmember informants183 Griesa concludes Presumably the principal purpose of an FBI informant in a domestic security investigation would be to gather information about planned or actual espionage violence terrorism or other illegal activities designed to subvert the governmental structure of the United States In the case of the SWP how ever there is no evidence that any FBI informant ever re ported an instance of planned or actual espionage violence terrorism or efforts to subvert the governmental structure of the United States Over the course of approximately 30 years there is no indication that any informant ever observed any violation of federal law or gave information leading to a single arrest for any federal law violation What the informant activ ity yielde by way of information was thousands of reports re cording peaceful lawful activity by the SWP and YSA184 2 The Civil Rights Movement By the early 1960s J Edgar Hoover began expanding COINTELPRO operations to the civil rights movement adding Dr Martin Luther King Jr to the Atlanta field office s pickup list of persons who would be interned under the Detention Act in 182 FBI ON TRIAL THE VICTORY IN THE SOCIALIST WORKERS PARTY SUIT AGAINST GOVERNMENT SPYTNG 67 Margaret Jayko ed 1988 183 Socialist Workers Party v Attorney General of the United States 642 F Supp 1357 137980 SDNY 1986 184 Id at 1380 emphasis added server05productnOORE8lAORE406 txt unknown Seg 41 3OVSEP703 14 56 Whose Liberty Whose Security 1091 the event of a national emergency185 Despite the fact that the Atlanta office had submitted a thirtysevenpage report confirm ing that neither King nor the SCLC were under any kind of com munist in uence Hoover rationalized the operation with the assertion that King associated with known Communists 186 Shortly after King s I Have a Dream speech William Sulli van who was responsible for COINTELPRO nationally stated in an internal FBI memorandum We must mark King as the most dangerous Negro in the future of this Nation from the standpoint of communism the Negro and national security 187 Acknowledging the FBI s intent to use illegal methods he continued it may be unrealistic to limit our actions against King to legalistic proofs that would stand up in court or before Congressional Committees 188 When the Bureau failed to con vince King to commit suicide it stepped up the campaign to dis credit King and the SCLC an effort that continued even after King s death189 Numerous other civil rights organizations such as the Student Nonviolent Coordinating Committee SNCC the Congress of Racial Equality CORE the Mississippi Demo cratic Freedom Party and various church and student organiza tions were similarly targeted 0 3 The Ku Klux Klan and White Hate Groups Prior to the murders of three young northern freedom riders in Mississippi in the summer of 1963 the FBI s investigation of racial matters focused not on the Ku Klux Klan or other white supremacist organizations but on subverting civil rights groups and their relationships with predominantly white new left or ganizations The Bureau routinely fed information to police de partments enforcing the apartheid regime in the South with full knowledge that the police often transmitted the information di rectly to the Klan and related organizations191 While the FBI 185 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 54 1861a see generally DAVID J GARROW THE FBI AND MARTIN LUTHER KING JR 1981 187 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 9697 quoting a Memorandum from William C Sullivan to Alan Hi Belmont Communist Party USA Negro Question IS C Aug 30 1963 188 d at 97 189Id at 9798 190111 at 17071 191 Id at 16670 For an overview of this period in Mississippi history based on documents finally released to the public in 1998 see generally YASUHIRO KATAGIRI server05productnOORE8lAORE406 txt unknown Seg 42 3OVSEP703 14 56 1092 OREGON LAW REVIEW Vol 812002 had informants in the Klan it did not use the intelligence it gath ered to prevent violence against civil rights workers According to Kenneth O Reilly the FBI had been aware of plans to attack two buses of freedom riders arriving in Alabama in the spring of 1961 for weeks but simply looked on doing nothing to intervene when the first bus was destroyed and riders on the second were attacked with bats chains and lead pipes192 Indeed the FBI had given the Birmingham police details re garding the Freedom Riders schedule knowing full well that at least one law enforcement officer relayed everything to the Klan 193 An internal report indicates that the Bureau was aware that during the Freedom Summer of 1963 at least thirtyfive SNCC workers were murdered and about 1000 arrested while engaging in constitutionally protected activities primarily a joint SNCC CORE voter registration drive intended to support the Missis sippi Freedom Democratic Party194 Moreover informants had told the FBI that a Mississippi Klan leader had told his followers who included a significant number of law enforcement officers to catch activists outside the law then under Mississippi law you can kill them Nonetheless the Bureau did not act on reports that civil rights activists James Cheney Andrew Goodman and Michael Sch werneritwo of whom the FBI was monitoring as subver sives iwere missing until the Justice Department came under intense pressure as a result of widespread publicity about the dis appearances196 Responding to the public outcry President Lyn don Johnson himself began pressuring the Bureau to solve the case and the FBI eventually sent 258 agents to Mississippi197 Even then they found the bodies only after giving a Klan partici THE MISSISSIPPI STATE SOVEREIGNTY COMMISSION CIVIL RIGHTS AND STATES RIGHTS 2001 192 KENNETH O REILLY RACIAL MATTERS THE FBI S SECRET FILES ON BLACK AMERICA 19601972 at 84 1989 193 Id at 86 194 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 168 citing FBI monograph no 1386 StudentNoriviolerit Coordinating Committee FBI File No 10043190 195 Id quoting a report of the Atlanta eld office which noted the conunth had been made in early 196 Id at 16869 197 Id server05EroductnOORE8lAORE406 txt unknown Seg 43 3OVSEP703 14 56 Whose Liberty7 Whose Security 1093 pant 30000 and immunity from prosecution198 Twelve of the participants in the murders went free and the remaining only served short sentences for conspiracy to violate civil rights not for murder199 What is particularly interesting is the FBI s strat egy afterwards Their sit by and watch approach having been nationally exposed they seem to have developed a strategy to control the Klan but not necessarily to render it ineffective200 4 The rrNew Left and the Antiwar Movement Between 1968 and 1971 New Left COINTELPROs targeted a wide range of primarily white activist organizations from Stu dents for a Democratic Society to the Institute for Policy Studies the Peace and Freedom Party and a broad range of antiwar antiracist student GI veteran feminist lesbian gay environ mental Marxist and anarchist groups as well as the network of food coops health clinics child care centers schools book stores newspapers community centers street theaters rock groups and communes that formed the infrastructure of the counterculture 201 Given the government s long history of suppressing antiwar activists202 it is not surprising that opponents of the war in Viet nam were a primary target A series of C01 PRO opera tions were conducted with the aim of causing splits within anti war organizations and among coalitions of such organizations203 College campuses and even high schools were a primary focus of FBI operations with informants placed in classrooms and stu dent organizations204 Their tactics included false media reports 1931d at 169 1991 200 Sullivan states that in 1964 he instructed the special agent in charge in Missis sippi to merge separate Mississippi klans into one in order to control it and if necessary destroy it SULLIVAN supra note 175 at 12930 By late 1965 the FBI operated nearly 2000 informants 20 percent of overall Klan and other white hate gro membership including a grand dra oni i REILLY supra note 192 at 217 Nonetheless from 19641970 Mississippi averaged 250 acts of White Hate Vio lence per year Id at 223 During the period Sullivan claims FBI control of the Mississippi klan the Mississippi Knights alone bombed a synagogue and burned twentysix churches WYN RAIG WADE THE FIERY CRossz THE KU KLUX KLAN 1N AMERICA 343 1987 201 GLICK supra note 135 at 12 202 See supra Parts IIiBi III 203 See BLACKSTOCK supra note 135 at 11136 reproducing a series of FBI mem oranda describing these operations 204 See generally GLICK supra note 135i server05EroductnOORE8l4ORE406 txt unknown Seg 44 3OVSEP703 I4 56 1094 OREGON LAW REVIEW Vol 812002 fabricated correspondence the widespread use of informants and infiltrators and snitchjacketing Government agents also ac tively subverted the logistics such as the housing transportation and meeting places of antiwar activities205 5 Black Nationalist Organizations and the Black Panther Party The FBI has of course a long history of suppressing the ef forts of African Americans to obtain racial justice from its de struction of Marcus Garvey s UNIA to the undermining of civil rights groups discussed above206 Not surprisingly the most in tense of its official COINTELPRO operations were directed at Black Nationalist groups a classification which appeared to in clude any predominantly African American organization Ac cording to a 1967 memorandum from J Edgar Hoover The purpose of this new counterintelligence endeavor is to expose disrupt misdirect discredit or otherwise neutralize the activities of black nationalists hatetype organizations and groupings their 1 r and supporters and to counter their propensity for violence and civil disorder 207 One of the program s explicitly stated goals was to prevent the rise of a messia who could unify the movement for Black liberation According to Hoover Malcolm X might have been such a messiah Martin Luther King Stokely Carmichael and Elijah Muhammed all aspire to this position 208 Another primary goal was to prevent militant black nationalist groups and leaders from gaining respectability 3 209 Hoover in structed his agents You must discredit these groups and individuals to first the responsible Negro community Second they must be discred 205 206 See supra Parts III IVICIZI 207 Memorandum of Aug 25 1967 Counterintelligence Program Black National istHate Groups Internal Security reprinted in CHURCHILL amp VAN39DER WALL COINTELPRO supra note 141 at 92 In the world of actual counterintelligence directed at foreign espionage the sphere from which the Bureau was taking its tac tics to neutralize is not just to render ineffective but to eliminate See eg id at 102 104 reproducing FBI documents taking credit for the assassination of Malcolm X and proposing to provoke the murder of comedian Dick Gregory On the origin of counterintelligence activity as directed at foreign espionage see UNGER supra note 80 at 96118 208 Airtel supra note 157 at 10811 209 server05productnOORE8lAORE406 txt unknown Seg 45 3OVSEP703 14 56 Whose Liberty Whose Security 1095 ited to the white 39 both the J quot 39 and to liberals who have vestiges of sympathy for militant black nationalist sic simply because they are Negroes Third these groups must be discredited in the eyes of Negro radicals the followers of the movement210 All predominantly Black activist organizations were targeted from King s adamantly nonviolent SCLC to the Nation of Islam However by 1968 the Bureau had decided that the Black Pan ther Party BPP was most likely to serve as an effective catalyst for black liberation movements and declared the BPP to be the greatest single threat to the internal security of the country 211 Field offices were instructed to submit proposals for imaginative and hardhitting counterintelligence measures aimed at crippling the BPP 212 The Bureau has acknowledged conducting 295 offi cial COINTELPROS against Black activist organizations Of these 233 operations most of which took place in 1969 directly targeted the Black Panther Party213 However as Kenneth O Reilly says It is impossible to say how many COINTELPRO actions the FBI implemented against the Panthers and other targets simply by counting the incidents listed in the COINTEL PROBlack Hate Group file The Bureau recorded COINTEL PROtype actions in thousands of other files 214 We do know that ultimately The assault left at least twentyeight Panthers dead scores of others imprisoned after dubious convictions and hundreds more suffering permanent physical or psychological damage The Party was simultaneously infiltrated at every level by agents provocateurs all 0 t em harnessed to the task of dis rupting its internal functioning Completing the package was a torrent of disinformation planted in the media to discredit the Panthers before the public both personally and organization ally thus isolating them from potential support215 Ward Churchill concludes that although an entity bearing its name remained in Oakland California for another decade the Black Panther Party in the sense that it was originally con 210 Id at 11011 211 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 123 quot ing the New York Times Sept 8 1968 reproduced 39m SENATE SELECT COMJVL F1 NAL REPORT supra note 129 at 187 212 SENATE SELECT COMJVL FINAL REPORT supra note 129 at 22 213 Churchill T0 Disrupt supra note 139 at 82 214O REILLY supra note 192 at 291 215 Churchill T0 Disrupt supra note 139 at 78 citations omitted server05EroductnOORE8lAORE406 txt unknown Seg 46 3OVSEP703 14 56 1096 OREGON LAW REVIEW Voli 812002 ceived was effectively destroyed by the end of 1971 216 Among the other things destroyed by COINTELPRO were the BPP newspaper schools breakfast for children programs sickle cell anemia and other health care programs and programs for free clothing shoes housing transportation to prisons and hospitals and child care217 This further illustrates that it was not criminal activity but challenges to the status quo that were perceived as threats by the government 6 The American Indian Movement Soon after Hoover announced the termination of COINTEL PRO in 1971 the FBI was launching a massive operation against American Indian organizations which moved from counterintel ligence actions to the use of tactics which are probably more accurately described as counterinsurgency warfare Their pri mary target was the American Indian Movement AIM founded in Minneapolis in 1968 In many respects AIM emu lated the Black Panther Party with street patrols intended to counter police brutality by policing the police and the estab lishment of alternative schools and media legal and health clin ics free food programs and services to assist with housing and employment218 More threatening to the federal government however was AIM s emerging focus on reasserting American In dian sovereignty and its success in linking the poverty and de spair of Indian communities directly to federal policies AIM leaders organized the 1972 Trail of Broken Treaties march across the country to Washington DC where they occu pied the Bureau of Indian Affairs BIA office and obtained clas sified documents which showed among other things that American Indians were receiving only about ten percent of the market value of mineral and land leasesiand even that money 216 1d 217 See Charles E Jones amp Judson LI Jeffries Don t Believe the Hype Debunk39mg the Panther Mythology in THE BLACK PANTHER PARTY RECONSIDERED 25 30 Charles E Jones ed 1998 Positions and perspectives articulated by the BPP are compiled in THE BLACK PANTHERs SPEAK Philip S Foner ed 1970 and excellent collections of contemporary analyses can be found in LIBERATION IMAGINATION LACK PANTHER PARTY supra note 139 and Jones amp Jeffries supra 218 Ward Churchill Civil Rights Real Power and the FBI Rise and Repression of the American Indian Movement forthcoming copy on le with author hereinaf ter Civil Rights 219 See generally REX WEYLER BLOOD OF THE LAND THE GOVERNMENT AND CORPORATE WAR AGAINST THE AMERICAN INDIAN MOVEMENT 1984I server05EroductnOORE8lAORE406 txt unknown Seg 47 3OVSEP703 14 56 Whose Liberty Whose Security 1097 was not accounted foriand uncovering a secret Indian Health Services program which had resulted in the sterilization of forty percent of American Indian women of childbearing age220 Many of the subsequent FBI operations centered on the Pine Ridge Reservation where federal agents had installed a tribal president who was willing to turn over a large mineralrich por tion of the reservation to the government221 There in 1973 the FBI led a paramilitary invasion against AIM activists gathered for a symbolic protest at Wounded Knee the site of the 1890 massacreZZZ During their 71day siege the government deployed over 100 FBI agents nearly 300 federal marshals 250 BIA po lice Army warfare experts and local vigilantes known as the GOONS Guardians of the Oglala Nation223 In their attempt to remove the activists government forces fired approximately 500000 rounds of ammunition into the area224 The government followed up with the hundreds of bogus criminal charges in tended to keep AIM leaders tied up in court and to deplete the organization s funds225 From 1973 to 1976 the GOONS often using arms supplied them by the FBI226 murdered at least sixtynine AIM members and supporters on the Pine Ridge Reservation and assaulted an other 340 The FBI which exercised criminal jurisdiction on the reservation was too short of manpower to investigate these murders227 In 1975 it was revealed that AIM s national security chief Doug Durham was an undercover FBI operative Among other things Durham had been AIM s liaison with the Wounded Knee legal defense team and had authored the AIM documents consistently cited by the FBI to demonstrate the group s alleged tendencies toward violence228 220 Id See also Ward Churchill The Bloody Wake ofAlcatraz Political Repres sion of the American Indian Movement During the 1970s in AMERICAN I IAN Ac TIVISMZ ALCATRAZ TO THE LONGEST WALK 24284 Troy Johnson et al eds 1997 The effort to force the government to account for at least 10 billion of missing Indian trust fund monies continues to this day See Cobell vi Norton 240 Fi3d 1081 DiCi CiL 2001 holding that the Interior Dept had breached its duciary duty and must conduct an accurate accounting i 221 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 13541 222 Id at 141170 223 See Churchill Civil Rights supra note 21839 GLICK supra note 135 at 22 224 See Churchill Civil Rights supra note 218i 225 See supra text accompanying note 158 See generally SAYER supra note 15 226 See Churchill Civil Rights supra note 218i 227 228 See GLICK supra note 135 at 22 server05EroductnOORE8lAORE406 txt unknown Seg 48 3OVSEP703 14 56 1098 OREGON LAW REVIEW Vol 812002 On June 23 1975 the Church Committee announced that it would hold hearings on the FBI operations targeting the Ameri can Indian Movement Three days later two FBI agents were killed in a firefight on Pine Ridge229 triggering in the words of the Chair of the US Civil Rights Commission a fullscale mili tarytype invasion of the reservation 230 and allowing the Church Committee to postpone the hearings indefinitely D Assessing COINTELPRO Is It Over Even the Church Committee s carefully worded Final Report acknowledged In the course of COINTELPRO S fifteenyear history a number of individual actions may have violated specific crimi nal statutes a number of individual actions involved risk of serious bodily injury or death to the targets and a number of actions while not illegal or dangerous can only be de scribed as abhorrent in a free society 231 Given the massive documentation of illegal and unconstitutional activities conducted by the United States highest law enforce ment agency against its own citizens the paucity of legal analysis of these activities is quite stunning232 There is a tendency to dis miss the COINTELPRO era as an awkward period in the his tory of the FBI 233 rather than recognizing as the Church Committee did that it was in fact a war against social and politi cal dissent in the United States234 By 1989 a federal district court was already discounting COINTELPRO activities as relatively ancient governmental 229 Bob Robideaux Dino Butler and Leonard Peltier were charged with the agents deathsi No one has ever been charged with the death of AIM activist Joe Killsright StuntzI After a jury acquitted Butler and Robideaux Peltier was extra dited from Canada on the basis of perjured affidavits his case transferred to a judge more sympathetic to the government and he was convicted on the basis of perjured testimony and falsi ed evidence See AMNESTY INTERNATIONAL PROPOSAL FOR A COMMISSION OF INQUIRY INTO THE EFFECT OF DOMESTIC INTELLIGENCE ACTIVL TIES ON CRIMINAL TRIALS IN THE UNITED STATES OF AMERICA 4146 1981 see generally MESSERSCHMIDT supra note 16239 MATl39HIESSEN supra note 137 Z BRUCE JOHANSEN amp ROBERTO MAESTAS WASI CHU THE CONTINUING IN7 231 SENATE SELECT COMJVII FINAL REPORT supra note 129 at 78 232A September 2002 Westlaw search of law review articles written since 1975 referencing COINTELPRO yielded seventytwo articles The vast majority men tioned it only in passing a few discussed COINTELPROS against particular organi zations and none discussed the overall phenomenon in any detail Z33 Campbell vi Dep t of Justice 164 Fi3d 20 26 DICI Cin 1998 234 See supra text accompanying note 134i server05productnOORE8lAORE406 txt unknown Seg 49 3OVSEP703 14 56 Whose Liberty Whose Security 1099 misconduct irrelevant to indictments being brought against white activists in the Resistance Conspiracy case235 Can we safely relegate this era to history perhaps acknowledging that as Senator Church put it it was one of the sordid episodes in the history of American law enforcement 236 but accepting it as an aberration generated by the FBI s zeal for protecting the national security There are a number of reasons why such an approach while perhaps comforting to some is not warranted First we must look at the excesses of the COINTELPRO era in light of the earlier history of the FBI and its predecessor organizations While the earlier efforts to suppress political dis sent were not nearly as well funded or efficiently organized this country has a consistent history of using its police powersifed eral state local and privateinot to enforce the law and uphold the Constitution but to crush what are perceived as threats to the status quo The purposes of COINTELPRO as articulated by the Church Committee illustrate that it was the logical exten sion of this history Protecting national security and preventing violence are the purposes advance y the Bureau for C NTELPR There is another purpose for COlNTELPRO which is not explicit but which offers the only explanation for those actions which had no conceivable rational relationship to either national se curity or violent activity The unexpressed major premise is that the Bureau has a role in maintaining the existing social order and that its efforts should be aimed toward combating those who threaten that order Second we must remember that information about COINTELPRO was only made available to the American public because a group of citizens burglarized the FBI s Media Penn sylvania office and stole files which were subsequently published in the pressian activity that would today probably be classified 235 United States v Whitehorn 710 F Supp 803 813 DDC 1989 rev d an other grounds sub nam United States v Rosenberg 888 F2d 1406 DC Cir 1989 For a description of this case known as the Resistance Conspiracy see CHURCV HILL amp VANDER WALL COINTELPRO supra note 141 at 31215 Three of the activists convicted for an alleged conspiracy to bomb government buildings Laura Whitehorn Linda Evans and Susan Rosenberg were granted clemency by President Clinton in January 2001 and released after spending fifteen to twenty years in prison Amy Goldstein amp Susan Schmidt Clinton s LastDay Clemency Bene ts I76 WASH POST Jan 21 2001 at A1 236 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 62 Z37 SENATE SELECT COMJVL FINAL REPORT supra note 129 at 67 server05EroductnOORE8lAORE406 txt unknown Seg 50 3OVSEP703 14 56 1100 OREGON LAW REVIEW Voli 812002 as domestic terrorism under the 2001 Act2387and because the Watergate scandal not the crushing of the political movements in question spurred the Senate to convene the Church Committee hearings239 Almost all of the additional documentation of COINTELPRO abuses has been obtained by piecing together censored files released under the Freedom of Information Act240 an avenue dramatically curtailed by Attorney General Ashcroft in October 2001241 There is no reliable way for the American public to know what programs are continuing or may be insti tuted in the future Third what we do know about the FBI s activities from 1956 to 1976 generally believed to be the height of COINTELPROtype operations is far from complete The Church Committee s find ings are based on the depositions of select Bureau agents and targets and the review of only about 20000 of the millions of pages of documents generated by the Bureau242 It could not of course review files that were withheld or destroyed or opera tions that were not documented243 More significantly the Church Committee temporarily suspended its investigation before reaching scheduled hearings on some of the FBI s most intense operations notably those targeting the American Indian Movement and the movements for Puerto Rican independence just as the repression of these groups was reaching its zenithZ44 238 See infra text accompanying notes 345471 239 Noam Chomsky Introduction to BLACKSTOCK supra note 1351 240 See generally CHURCHILL amp VANDER WALL COINTELPRO supra note 141 There are significant limitations on what the government is obliged to disclose under FOIA but it is worth noting in addition that the DC Circuit has said that docu ments can be exempted from disclosure as investigatory records even if they were unlawfully obtained Pratt vi Webster 673 Fi2d 408 DC Cin 1982 241 See John Ashcroft Memorandum for Heads of All Federal Departments and Agencies Oct 12 2001 available at httpwwwiusdojigov04foia011012ihtm see also Steven L Hensen The President s Papers Are the People s Business WASH POST Dec 162001 at B11 242 SENATE SELECT COMJVL FINAL REPORT supra note 129 243 The FBI withheld information from Congress about its involvement in the 1969 assassinations of Fred Hampton and Mark Clark and its failure to disclose exculpatory evidence in the murder trials of Black Panther leaders Geronimo Pratt and Dhoruba bin Wahad Richard Moore CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 303 Both Pratt and bin Wahad have since been releasediafter being incarcerated for twentyseven and nineteen years respec tivelyion the basis of evidence that they were framed See supra text accompany ing notes 161 1641 Z44 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 11934 36670 see also supra Part IVIC156 server05EroductnOORE8lAORE406 txt unknown Seg 51 3OVSEP703 14 56 Whose Liberty Whose Security 1101 Twentysix years later the hearings have not been resumedZ45 Fourth what has been done about the abuses that were ex posed One of the fundamental principles of American law and of the rule of law more generally is that there is a remedy for legally acknowledged wrongs Despite the thousands of in stances of illegal conduct on the part of the government that were documented by both Senate and House committees no changes were made in the law and no government official has spent a day in jail as a result246 A handful of victims or their surviving families have managed to obtain civil judgments or set tlements for damages but these cases are by far the exception247 No one disputes that governmental agencies at the highest level engaged in longterm systematic and deliberate violation of the laws and the Constitution Yet the legislature which enacts the laws the executive which is charged by the Constitution with faithfully Executing the laws and the judiciary whose responsi bility it is to see that the laws are enforced have all looked the other way and by doing so have implicitly sanctioned this under mining of the rule of law All of this confirms the accuracy of FBI Director Kelley s testimony to the Church Committee that the FBI employees involved in these programs did what they felt was expected of them by the President the Attorney Gen 245 In the summer of 2001 Congresswoman Oynthia McKinney DGai had be gun introducing legislation to reopen investigations into COINTELPRO and related governmental misconduct but the events of September 11 ensured that the legisla tion would not be considered draft legislation on file with author 246 The only two officials convicted of COINTELPROrelated wrongdoing were pardoned by President Reagan before they had even exhausted their appeals See infra text accompanying note 273i 247 Individual damages were recovered by Fred Hampton s family and by Gero nimo Pratt and Dhoruba bin Wahad see supra text accompanying notes 161 164 The SWP recovered nominal danlages on behalf of the organization see supra text accompanying note 182 In Habsan v Brennan 646 F Supp 884 DiDiCi 1986 the court awarded 29000 in compensatory danlages and allowed punitive damages for persons targeted by antiwar and civil rights COINTELPROs But more commonly suits have been unsuccessful See Smith v Black Panther Party 458 US 1118 1982 mem opini dismissing BPP complaint Bissonette vi Haig 776 Fi2d 1384 8th Cir 1985 holding that claim by residents of Pine Ridge Reservation for unlawful seizure and confinement by military and federal officials was insufficient to state cause of action Obadele vi Kelley 1988 WL 40282 at 4 16 DiDiCi Apri 26 1988 dismissing claims brought by Republic of New Afrika for being timebarred lacking jurisdiction failing to state a claim andor being re lated to a criminal conviction United Klans of America v McGovern 621 Fi2d 152 5th Cin 1980 suit for danlages for COINTELPRO operations barred by statute of limitations server05productnOORE8lAORE406 txt unknown Seg 52 3OVSEP703 I4 56 1102 OREGON LAW REVIEW Vol 812002 eral the Congress and the people of the United States 248 Fifth despite the barriers to public access to such information there is ongoing evidence that COINTELPROtype operations continue On April 27 1971 in response to the release of classi fied information obtained in a breakin of the Media Penn sylvania FBI office Hoover officially terminated all COINTELPROs for security reasons 249 The FBI termina tion memo provided however that in exceptional circum stances where it is considered counterintelligence action is warranted recommendations should be submitted to the Bureau under the individual case caption to which it pertains 250 Despite the Bureau s initial contention that there was no post 1971 COINTELPRO activity the Church Committee docu mented several post1971 COINTELPROtype operations251 and noted that it had not been able to determine with any greater precision the extent to which COINTELPRO may be continuing because any proposals to initiate COINTELPROtype action would be filed under the individual case caption The Bureau by then had over 500000 case files and each one would have to be searched252 In fact the number of illegal bugs and wiretaps uti lized by the Bureau in the three years after 1971 increased significantly253 In the meantime evidence of ongoing operations continues to surface During the 1980s the FBI and CIA used classic COINTELPRO tactics against organizations opposed to US policy in Latin America Operating under classified Foreign In telligenceTerrorism guidelines promulgated by the Reagan ad ministration254 the government targeted the nonviolent Committee In Solidarity with the People of El Salvador Z43 SENATE SELECT COMM FINAL REPORT supra note 129 at 14 Z49 Id at 3 n1 Z50 Id at 13 See also Fed Election Comm n v HallTyner Election Campaign Comm n 678 F2d 416 2d Cir 1982 holding that the CPUSA did not have to disclose contributors names as that would have a chilling effect on them The court noted that even though the CPUSA COINTELPRO was terminated in 1971 the record in this case includes an affidavit by the Assistant Director of the Intelligence Division of the FBI stating that the Communist Party of the United States remains under active investigation by the FBI Id at 423 251 SENATE SELECT COMM FINAL REPORT supra note 129 at 1314 noting three operations it had uncovered and the subsequent disclosure of five additional ones 13 Z53 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 304 254 FBI ON TRIAL supra note 182 at server05productnOORE8lAORE406 txt unknown Seg 53 3OVSEP703 14 56 Whose Liberty Whose Security 1103 CISPES and groups involved in the Sanctuary movement255 When their own field reports consistently confirmed that the ac tivities of CISPES and other Latin America solidarity organiza tions were legitimate and respectable the FBI took the position that CISPES s overt activities were designed to cover a sinister covert program of which most CISPES members were unaware and that it must be a front group for more danger ous organizations256 Using this rationale the FBI extended its operations to encompass hundreds of other groups including Amnesty International Clergy and Laity Concerned the US Catholic Conference and the Maryknoll Sisters utilizing its stan dard tactics of infiltrators and agents provocateur disinforma tion black bag jobs telephone monitoring and conspicuous surveillance designed to induce paranoia257 Ultimately in this context the FBI gathered information on the political activities of ap proximately 2375 individuals an 30 organizations and ini tiated 178 related investigations that appear to have been based on political ideology rather than on suspicion of crimi nal activity Yet this massive government intrusion into the lives of thousands of lawful political activists failed to yigeld a single criminal charge let alone a criminal conVIction Using the rubric of counterterrorism rather than anticom munism the FBI has continued to conduct numerous opera tions against antiwar and antinuclear groups such as the pacifist organization Silo Plowshares259 environmental activists such as Earth Firstl260 supporters of the Puerto Rican independence movement including the coordinator of the National Lawyers Guild s antirepression task force261 and perhaps black elected 255 On the repression of the Sanctuary movement see generally Michael McCon nell amp Renny Golden The Sanctuary Movement in FREEDOM AT RISK supra note 58 at 30114 256 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 37374 257 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 30639 CHURCHILL amp VANDER WALL AGENTS supra note 79 at 37076 258 CHANG supra note 25 at 3639 see also Don Edwards Reorder39mg the Prioritie of the FBI in Light of the End of the Cold War 65 STI JOHN S L REV 59 1991 Z59 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 307i 260 Brian Glick Preface to The Face of COINTELPRO in CHURCHILL amp VAN7 DER WALL CO INTELPRO supra note 141 at xiv noting that Earth First leaders were convicted on the basis of the testimony of an FBI in ltrator hereinafter Glick Preface 261 Id at xvi server05EroductnOORE8lAORE406 txt unknown Seg 54 3OVSEP703 14 56 1104 OREGON LAW REVIEW Voli 812002 officials in general262 As Brian Glick states The targets of ongoing domestic covert action include virtually all who fight for peace and social justice in the United Statesifrom AIM Puerto Rican independentistas and the Coalition for a New South to environmentalists pacifists trade unionists homeless and seniors feminists gay an bian activists radical clergy and teachers publishers of dissi dent literature prison reformers progressive attorneys civil rights and antipoverty workers and on and on263 Finally the best evidence that COINTELPROtype opera tions and the more general repression of political dissent that they represent cannot be relegated to history may be the consis tent efforts of the executive branch to roll back the minimal re forms mandated by Congress in the wake of the Church Committee investigations to further shield their activities from public scrutiny and to legalize many of the tactics routinely em ployed by the FBI in its efforts to suppress dissent before during and after the COINTELPRO era264 These efforts are discussed in Part V V ANTrIERRORIST LEGISLATION AND GOVERNMENTAL POLICY 19751996 The American people need to be assured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers threats to the estab lished order Only a combination of legislative prohibition and Departmental control can guarantee that COINTELPRO will not happen again iChurch Committee Final Report265 262 See generally Bernard PI Haggerty Fruhmenschen German for COINTEL PRO 1 HOW SCROLL 36 38 1993 detailing campaigns of harassment of black elected officials 263 Glick Preface supra note 260 at xivi 264 For a summary of how CO INTELPROtype activities have been incorporated into routine law enforcement practice and an analysis which extends to the more recent FBI operations in Ruby Ridge Tennessee and Waco Texas see Ward Churc hill Preface ta the Second Edition in CHURCHILL amp VAN39DER WALL COINTEL PRO supra note 141 at xxiiilxxxviii See also TONY POVEDA LAWLESSN39ESS AND REF BI 1N TRANSITION 16782 1990 concluding that the new iiei postHoover FBI is less autonomous but potentially more dangerous because its priorities are more aligned with those of the incumbent administration and it has Vastly increased technological capacities 265 SENATE SELECT COMJVL FINAL REPORT supra note 129 at 77 server05productnOORE8lAORE406 txt unknown Seg 55 3OVSEP703 14 56 Whose Liberty Whose Security 1105 Despite the Church Committee s conclusion that dozens of governmental law enforcement and intelligence agencies had en gaged in massive abuses of the constitutional rights of US citi zens and residents very little happened as a result The hearings were suspended in midstream and never reopened no individu als were sent to prison on criminal charges no laws were passed proscribing such activities and no provision was made to rectify ongoing wrongs or to compensate the victims The Carter ad ministration imposed some very limited internal constraints on domestic security investigations but as we will see even these were soon rolled back As a result of the Church Committee s findings as well as in vestigations by a select committee in the House of Representa tives and a General Accounting Office review of FBI domestic intelligence policies requested by the House Judiciary Commit tee266 the Department of Justice issued its first set of public guidelines for FBI domestic security investigations in 1976 Known as the Levi guidelines after thenAttorney General Edward Levi they prohibited investigations or operations de signed to disrupt organizations based solely on unpopular speech267 They also limited the basis on which investigations would be authorized Under the Levi guidelines the FBI could initiate a prelimi nary investigation on the basis of any allegation or information that a group or individual may be engaged in unlawful activi ties which involve or will involve the use of force or violence These were authorized to determine whether the factual basis ex isted for launching a full investigation and the Bureau was to be limited to public law enforcement or preexisting sources of information More intrusive limited investigations including physical surveillance and personal interviews were authorized if the preliminary investigation proved inadequate to determine whether a full investigation was warranted Full investigations were authorized on theistill very broadibasis of specific and articulable facts giving reason to believe that an individual or a group is or may be engaged in unlawful activities which involve the use of force or violence 268 Reportedly the number of do 266 Stone supra note 82 at 275 267 William C Banks amp ME Bowman Executive Authority for National Security Surveillance 50 AM U L REV 1 69 2000 268 Stone supra note 82 at 276 server05EroductnOORE8lAORE406 txt unknown Seq 56 3OVSEP703 14 56 1106 OREGON LAW REVIEW Vol 812002 mestic security investigations being conducted by the FBI dropped from 4868 in March 1976 to 26 in December 1981269 Even this requirement of a very tentative connection to crimi nal activity was resisted Senator Denton chair of the Senate Ju diciary Committee s Subcommittee on Security and Terrorism insisted that the support groups that produce propaganda dis information or legal assistance may be even more dangerous than those who actually throw the bombs 270 Another member of the subcommittee Senator East said that the conduct of sub version itself consists in large measure in the utilization of legal activities to undermine legally established institutions 271 The scant protection provided by the Levi guidelines did not last long In 1981 President Ronald Reagan issued Executive Order EO 12333 reauthorizing many of the techniques prohib ited by the guidelines In 1983 Reagan issued EO 12345 which claimed to give the Bureau and other intelligence agencies legal authority to withhold information about their use of counter intelligence methods272 In the meantime he pardoned W Mark Felt and Edward S Miller the only FBI officials ever convicted on COINTELPROrelated charges before they spent a day in jail or even had to bother appealing their sentences273 By 1982 FBI Director William Webster had declared that the Levi guidelines were no longer adequate to guide us in dealing with the kinds of terrorist groups that we are confronted with today 274 and they were replaced in 1983 by Attorney General William French Smith The new Smith guidelines eliminated the preliminary and limited stages altogether and removed the specific and articulable facts requirement from full investi gations The new standard authorized investigations whenever facts or circumstances reasonably indicate that two or more per sons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence 275 The Smith guidelines extended the 269 Id at 277 270 Id citing Hearings Before the Subcomm on Security and Terrorism of the Comm of the Judiciary ofthe United States Senate on The Domestic Security Investi gation Guidelines 97th Cong 2d Sess 4 1982 hereinafter Hearings Z71 Id citing Hearings supra note 270 at 3541 272 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at xlviii Z73 Id at il 274 Stone supra note 82 at 278 275 Id at 27879 server05EroductnOORE8lAORE406 txt unknown Seg 57 3OVSEP703 14 56 Whose Liberty Whose Security 1107 enterprise concept from investigations of organized crime to groups that do not engage in criminal activity but are believed to knowingly support the criminal objectives of other groups and allowed the Bureau to continue to monitor groups that were inactive In 1969 the Supreme Court had restricted Schenck and Den nis the cases upholding convictions under the Smith Act276 by stating in Brandenburg v Ohio that the First Amendment did not allow the government to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action 277 However the Smith guidelines turned this standard upside down by declaring that in vestigations of groups that advocated criminal activity were war ranted unless it is apparent that there is no prospect of harm 278 According to Attorney General Smith the targets constitutional rights were protected by the guidelines caveat that investigations could not be based solely on activities protected by the First Amendment 279 Further illustration of the fact that the measures of the COINTELPRO era were not aberrational but part of a more general effort to suppress political dissent can be seen in the im plementation of the 1984 Bail Reform Act280 which dramatically expanded the use of preventive detention While purportedly designed to keep drug kingpins violent offenders and other ob vious threats to the community incarcerated while awaiting trial it provided the FBI with a weapon far superior to the strategy of pretext arrests in detaining political targets such as the Pu erto Rican independentistas Resistance Conspiracy defendants and IRA asylum seekers281 In the meantime Congress had passed the Foreign Intelligence Surveillance Act FISA in 1978282 which established a secret 276 See supra text accompanying notes 11719 277 Brandenburg v Ohio 395 US 444 447 1969 278 Stone supra note 82 at 279 279 Id at 281 emphasis added The Seventh Circuit Court of Appeals in an opinion written by Judge Richard Posner affirmed this interpretation declaring in Alliance to End Repression v City of Chicago 742 Fi2d 1007 101517 7th Cir 1984 that Brandenburg applied only to criminal punishment and not to investiga tions For a critique of this opinion see Stone supra note 82 at 28386 230 Bail Reform Act of 1984 18 USC 31413150 3156 281 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 at 11 282 Foreign Intelligence Surveillance Act Pub L No 95511 92 Stat 1783 1978 server05productnOORE8lAORE406 txt unknown Seq 58 3OVSEP703 14 56 1108 OREGON LAW REVIEW Vol 81 2002 Foreign Intelligence Surveillance Court FISC composed of seven federal appellate court judges serving rotating terms whose purpose was to review warrants for surveillance in cases targeting a foreign power or the agent of a foreign power FISA sig nificantly reduced the showing required for warrants initially for surveillance and later for physical searches as well283 The safe guard was presumably that these warrants were to be issued only in cases primarily involving foreign intelligence and subject to the limitation that no US person meaning a citizen or perma nent resident could be targeted solely on the basis of activities protected by the First Amendment 284 Despite the passage of this Act the executive branch has consistently maintained that as a constitutional matter the President does not need congres sional or judicial approval to engage in warrantless searches285 Following the 1993 bombing of the World Trade Center the Clinton administration considered a proposal to rewrite the Smith guidelines to permit the FBI to infiltrate domestic groups without any evidence that the targeted organization was planning to commit criminal acts286 Instead in 1995 FBI Director Louis Freeh and Deputy Attorney General Jamie Gorelick told the House Judiciary Committee Subcommittee on Crime that the ad ministration had decided to reinterpret the guidelines to allow wideranging investigations of domestic terrorism groups if they advocated violence or force with respect to achieving any political or social objectives Instead of requiring a finding of an imminent violation of law an investigation would be author ized if the Bureau detected any potential conduct that might violate federal law 287 clearly disregarding the Smith guidelines requirement that the government at least take into consideration the magnitude of the threat its likelihood and immediacy and codified as amended at 50 USC 18011811 1994 amp Suppl IV 1998 amended by Act of Dec 3 1999 Pub L No 106120 113 Stat 1606 1999 283 See Americo RI Cinquegrana The Walls and Wires Have Ears The Back ground and First Ten Years of the Foreign Intelligence Surveillance Act of1978 137 U PA L REV 793 1989 describing history and early use of FISA Daniel I Malooly Physical Searches Under FISA A Constitutional Analysis 35 AM CRllL L REV 411 42123 1998 suggesting changes which would help protect Fourth Amendment rights in FISA searches 28450 USC 1805 a3A 285 Banks amp Bowman supra note 267 at 1931 4966 90921 286 Id at 107 287 Id at 10708 server05EroductnOORE8lAORE406 txt unknown Seq 59 3OVSEP703 14 56 Whose Liberty Whose Security 1109 the danger to individual freedoms posed by the investigation288 The past decade has seen a dramatic increase in the legaliza tion of many of the tactics used by the FBI and other intelligence agencies during the COINTELPRO era In 1994 Congress passed the Omnibus Crime Bill289 which gave the FBI an addi tional 25 million per year for its counterterrorism budget and another 25 million per year for training state and local SWAT teams created an Economic Terrorism Task Force and author ized the death penalty for numerous new categories of terrorist activity 290 Even though the FBI had reported only two inci dents of international terrorism in the United States between 1984 and 1996 Congress nonetheless passed the Antiterrorism and Effective Death Penalty Act of 1996 AEDPA whose sweeping provisions served to license almost the full range of repressive techniques which had been quietly continued after COINTELPRO was supposedly terminated 291 The Act defines national security as encompassing the national defense for eign relations or economic interests of the United States and gives the secretary of state broad authority to designate groups as engaging in terrorist activity if they threaten the security of United States nationals or the national security of the United States 292 Groups so designated can seek judicial review but the government can prevent them from seeing the evidence by presenting it to the judge in camera and the judge is to review the decision under the highly deferential arbitrary and capri cious standard of the Administrative Procedure Act 3 Under the 1996 Act it is a felony to provide any form of mate rial support to designated organizations even if the support goes 288 Id at 108 289 Violent Crime Control and Law Enforcement Act of 1994 Pub L 103322 108 Stat 1796 1994 amending Omnibus Crime Control and Safe Streets Act of 1968 Z90 CHURCHILL amp VANDER WALL COINTELPRO supra note 141 atl citing 18 USC 2339B 1994 291 Id at lii See also David B Kopel amp Joseph Olson Preventing a Reign of Ter ror Civil Liberties Implications of Terrorism Legislation 21 OKLAI CITY U L REV 247 1996 noting the dangers of the antiterrorism bills which were subsequently enacted as AEDPA Michael Jr Whidden Note Unequal Justice Arabs in America and United States Antiterrorism Legislation 69 FORDHAM L REV 2825 2001 not ing the discriminatory application of AEDPAI Z92 DAVID COLE amp JAMES X DEMPSEY TERRORISM AND THE CONSTITUTION SACRIFICTNG CIVIL LIBERTIES IN THE NAME OF NATIONAL SECURITY 119 2d ed I 293 Banks amp Bowman supra note 267 at 109 server05EroductnOORE8lAORE406 txt unknown Seg 60 3OVSEP703 14 56 1110 OREGON LAW REVIEW Voli 812002 directly to an entirely lawful activity of the group294 Noncitizens can be deported on the basis of secret evidence for belonging to organizations deemed terrorist without any showing of per sonal involvement in terrorist or criminal activity in other words for engaging in what would otherwise be associations protected by the First Amendment 5 According to David Cole and James Dempsey AEDPA was One of the worst assaults on the Constitution in decades It resurrected guilt by association as a principle of criminal and immigration law It created a special court to use secret evi dence to deport foreigners labeled as terrorists It made support for the peaceful humanitarian and political activities of selected foreign groups a crime And it repealed a short lived law forbidding the FBI from investigating First Amend ment activities opening the door once again to politically fo cused FBI investigations296 Again we see the national security being invoked to enact laws and permit executive actions which target individuals and organizations engaged in activities which may challenge the sta tus quo but are otherwise lawful and constitutionally protected Although much of the congressional debate surrounding this bill focused on the 1993 World Trade Center bombing and the 1995 bombing of the federal building in Oklahoma City 7 the mea sures requested by the Clinton administration were not a re sponse to new developments in terrorism but changes that had long been on the executive branch s wish list For instance the first Bush administration s proposals to allow secret evidence in deportation hearings had been twice rejected by Congress The Immigration and Naturalization Service INS undeterred by lack of congressional approval and even by nu merous federal court decisions rejecting the practice continued to deport people on the basis of secret evidence 8 In 1984 the Reagan administration had tried unsuccessfully to get Congress to criminalize support for terrorism and the first Bush administration also made similar proposals Ten years Z94 COLE amp DEMPSEY supra note 292 at 121231 295 Banks amp Bowman supra note 267 at 110 At the same time Congress passed the 1996 Illegal Immigration Reform and Immigration Responsibility Act IIRIRA which made it easier to deport immigrants for their political associations and for minor Violations of criminal laws Pub L No 104208 110 Stat 3009 1996 Z96 COLE amp DEMPSEY supra note 292 at 231 297 Id at 108 298 Id at 109 server05EroductnOORE8lAORE406 txt unknown Seg 61 3OVSEP703 14 56 Whose Liberty Whose Security 1111 later the Clinton administration succeeded by including a nar rower version of the ban in the Omnibus Crime Bill but it was accompanied by the Edwards amendment precluding investiga tions based solely on First Amendmentprotected activities Just as the Oklahoma City and 1993 World Trade Center bombings served as the catalyst to obtain changes in the law that the executive branch had long wanted the September 11 attacks on the World Trade Center and the Pentagon were seized upon as the opportunity to pass even more restrictive legislation As illustrated by the speed with which Attorney General John Ash croft introduced the enormous package of farreaching changes that constitute the USA PATRIOT Act these were not carefully considered responses to a new political development but the util ization of a prime opportunity to roll out the next phase of the government s wish list of repressive measures Some of the highlights of the 2001 Act are considered in the following Part V1 V1 THE USA PATRIOT ACT OF 2001 We have witnessed the Bush administration amass enormous new powers in t e months since Septem er n we have witnessed the administration in an effort to maintain a free hand in the exercise of its new powers employ strategies that are calculated to silence dissent First it has questioned the patriotism of those who oppose its policies thereby fostering a climate of intolerance of dissent Second it has sought to dis courage political activism by imposing guilt by association Third it has restricted access to government information which has stymied the press the public and even Congress in their efforts to hold the executive accountable for its actions iNancy Chang Silencing Political Dissent300 A The Flurry of PostSeptember 11 Activity The Bush administration has been extraordinarily busy since September 11 President Bush immediately declared war on ter rorism301 sent enough bombs and troops to Afghanistan to force 299 Id at 10809 300 CHANG supra note 25 at 9293 301 For alternative explanations of the attacks and subsequent US actions see generally Ward Churchill Acts of Rebellion Notes on the Interaction oinstory and Justice in ACTS OF REBELLION A WARD CHURCHILL READER xixx 2003 server05EroductnOORE8lAORE406 txt unknown Seg 62 3OVSEP703 14 56 1112 OREGON LAW REVIEW V011 812002 its government from power302 and is currently threatening an in vasion of Iraq303 The US military has brought several hundred captured combatants to Guantanamo Naval Base in Cuba where they have been held in outdoor cages and interrogated much to the consternation of international human rights organizations304 President Bush has issued a Military Order authorizing the cre ation of military tribunals to prosecute a very broad range of noncitizens suspected of terrorism and sentence them to death305 US citizens thought to be involved in terrorist plots have been removed from the criminal justice system and are being held by military authorities306 Attorney General John Ashcroft has re EQBAL AHMAD TERRORISM THEIRS AND OURS 2001 NOAM CHOMSKY 911 2001 GORE VIDAL PERPETUAL WAR FOR PERPETUAL PEACE 2002 HOWARD ZLNN TERRORISM AND WAR 2002 302 See Babak Behnam Kabul Topples with Barely a Push Marching into the Af ghan Capital MSNBC NEWS Nov 13 2001 available at httpwwwimsnbcicom news6569491asp Although none of the hijackers were Afghanis the US govern ment says it attacked Afghanistan because its fundamentalist Taliban government was harboring Osanla bin Laden and al Qaeda training camps 303 See Mike Allen amp Juliet Eilperin Bush Aides No Iraq War Vote Needed WASH POST Aug 26 2002 at A1 Kenneth T Walsh et all Another Step Closer to War US NEWS amp WORLD REPI Oct 21 2002 at 30 304 See Amnesty International United States of America Memorandum to the US Government on the rights of people in US custod in Af hanistan and Guan tanamo Bay Apri 15 2002 AIindex AMR 510532002 available at httpwebiam nestyorgaiinsfrecentAMR510532002 Human Rights Watch UISI Growing Prob lem of Guantanamo Detainees May 30 2002 available at wwwihwriorgpress2002 05guantanamoihtm39 International Committee of the Red Cross The ICRC in Guantanamo Bay Nov 20 2002 available at httpwwwiicrciorgi 305 Military Order of Nov 13 2001 Detention Treatment and Trial of Certain NonCitizens in the War Against Terrorism 66 Fed Reg 5783136 2002 The Or der applies to any noncitizen the president has reason to believe is or was a mem ber of al Qaeda someone involved in acts of international terrorism broadly de ned or someone who knowingly harbored someone in either of these catego ries In addition to identifying those to be tried by the military tribunals the presi dent has the power to create the rules for the tribunals and change them at will appoint judges prosecutors and defense lawyers decide the sentence and all ap peals and conduct the entire process in secret See Neal KI Katyal amp Laurence H Tribe Waging War Decid39mg Guilt Trying the Military Tribunals 111 YALE LJ 1259 2002 arguing that the Order establishing military tribunals is flatly unconsti tutional see generally BARBARA OLSHANSKY SECRET TRIALS AND EXECUTIONS39 MILITARY TRIBUNALS AND THE THREAT To DEMOCRACY 2002 David Cole En emy Aliens 54 STANI L REV 953 2002 306 Laurence HI Tribe Editorial Citizens Combatants and the Constitution NY TIMES June 16 2002 at D13 Secretary of Defense Donald Rumsfeld s assertion that the United States is holding Mri Padilla because it is interested in finding out e knows is not legally persuasive see also Military Tribunal Won t Try Pa dilla Justice Dept Says WASH POST June 14 2002 at A10 reporting Justice De server05EroductnOORE8lAORE406 txt unknown Seg 63 3OVSEP703 14 56 Whose Liberty Whose Security 1113 cently stated that the government is considering plans to reinsti tute detention centers for US citizens deemed threats to the national security307 Since September 11 2001 the Department of Justice has ar rested approximately 2000 immigrants and held them indefinitely without charge often preventing them from contacting family friends or lawyers and refusing to release information about who or even how many people are being held308 In the fall of 2001 the Justice Department identified 5000 noncitizens based on their age gender and country of origin and invited them to submit to interviews with the INS and the FBI subsequently acknowl edging its intent to expedite removal proceedings if the inter views revealed any imrnigration violations309 A new National Security EntryExit Registration System has been implemented for nationals of certain countries requiring them to be registered and fingerprinted and to periodically report where they are liv ing what they are doing and when they leave the country310 Ashcroft has also announced that the Department of Justice will monitor conversations between attorneys and clients in custody311 The executive branch has simply assumed the authority to en partment claim that the United States can hold Padilla until the war against terrorism is over Jess Bravin White House Seeks to Expand Inde nite Detentions in Military Brigs Even for US Citizens WALL STI J Aug 8 2002 at A4 307 See Jonathan Turley Camps for Citizens Ashcroft s Hellish Vision Attorney General Shows Himself as a Menace to Liberty LiAi TlMES Aug 14 2002 at B11 308 See CHANG supra note 25 at 6787 Amnesty International Amnesty Interna tional s Concerns Regarding Post September 11 Detentions in the USA Mari 14 2002 available at httpwebiamnestyiorgaiinsfIndexAMR51044200270penDocu mentampofCOUNTRIESUSA39 see generally Natsu Taylor Saito Will Force Trump Legality After SeptemberII American Jurisprudence Confronts the Rule ofLaw 17 GEO IMMIGK LJ 1 2002 309 See OLSHANSKY supra note 305 at 8 citing Statement of John Bell Special Agent in Charge of the Detroit FBI office in Associated Press Federal Plans Con cern Arab Leaders Nov 16 2001 310 Press Release Department of Justice Attorney General Ashcroft Announced Implementation of the First Phase of the National Security EntryExit Registration System Aug 12 2002 available at httpwwwiusdojigovopapr2002August02 ag7466ihtmi 311 See Special Administrative Measure for the Prevention of Acts of Violence and Terrorism 66 Fed Reg 55062 Oct 31 2001 amending 28 CFR 5501i3d39 CHANG supra note 25 at 9091 See also Avidan Yr Cover Note A Rule Un t for All Seasons Monitor39mg AttomeyClient Communications Violates Privilege and the Sixth Amendment 87 CORNELL L REV 1233 2002 analyzing criticisms of the gov ernment s interception of attorneyclient communications server05EroductnOORE8lAORE406 txt unknown Seg 64 3OVSEP703 I4 56 1114 OREGON LAW REVIEW Vol 812002 gage in these actions312 In addition it has convinced Congress to fund these activities and to expand the scope of its law en forcement and intelligence capabilities As a result Congress has appropriated billions of dollars for the abovementioned actions and passed dozens of bills in the wake of September 11313 The most significant by far is the socalled USA PATRIOT or 2001 Act314 According to David Cole and James Dempsey The bill was never the subject of a Committee debate or mark up in the Senate After three weeks of behindthescenes discussions between a few Senators and the Administration a bill was introduced in the Senate on October 5 that included essentially all of the Administration s proposals That bill passed on October 11 following a brief debate that made it clear that even supporters of the legislation had not read it and did not understand its provisions The next day a slightly dif ferent bill was introduce in t e ouse and passed the same day under a procedure barring the offering of any amendments It is virtually certain that not a single member of the House read the bill for which he or she voted315 After the attorney general exerted extraordinary pressure es sentially threatening Congress that the blood of the victims of future terrorist attacks would be on its hands if it did not swiftly enact the Administration s proposals 316 the final version was in troduced on October 23 passed by the House on October 24 and by the Senate on October 25 and signed into law by President George W Bush on October 26 2001317 The Act dramatically extends the government s law enforce 312 The executive seems to presume that such powers can be exercised on the basis of its Constitutional responsibility for foreign affairs and military matters US CONST art II See Melissa K Mathews Restoring the Imperial Presidency An Ex amination of President Bush s New Emergency Powers 23 HAMLIN39E J PUB L amp POL Y 455 2002 criticizing President Bush s actions as violating constitutionally mandated separation of powers Philip B Heymann Civil Liberties and Human Rights in the Aftermath of September 11 25 HARV JL amp PUB POL Y 441 2002 focusing on powers available to law enforcement and intelligence agencies rather than the new statutory powers conferred by the 2001 Act 313 See THOMAS Legislative Information on the Internet Legislation Related to the Attack of September 11 2001 at htththomaslocgovhometerrorleghtm on file with author 314 See supra note 21 See generally Jennifer C Evans Comment Hijacking Civil Liberties The USA PATRIOTActof2001 33 LOY U CHI LI 933 2002 Michael T McCarthy USA PATRIOT Act 39 HARV J ON LEGIs 435 2002 315 COLE amp DEMPSEY supra note 292 at 151 316 317 The history of this bill can be found at httpthomaslocgovcgibinbdqueryz d107HR03162Lampsumm2amp server05productnOORE8lAORE406 txt unknown Seg 65 3OVSEP703 14 56 Whose Liberty Whose Security 1115 ment and intelligence gathering powers Although some of the provisions of the act are subject to a fouryear sunset provision acts begun or investigations initiated before the sunset date are not affected and these provisions can always be extended by Congress318 If one substitutes counterintelligence for its many references to counterterrorism and reads the Act in light of the history of the FBI it becomes clear that the 2001 Act is at tempting to legalize many of the repressive practices that the FBI and other intelligence agencies have been engaging in for de cades This Part VI will highlight provisions of the 2001 Act that are most disturbing in light of the history of the systematic abuse of power and law engaged in by the very agencies now being given more authority and more funding B Enhanced Surveillance Powers According to Nancy Chang of the Center for Constitutional Rights in passing the 2001 Act Congress granted the Bush ad ministration its longstanding wish list of enhanced surveillance tools coupled with the right to use these tools with only minimal judicial and congressional oversight 319 Title II Enhanced Sur veillance Procedures defines foreign intelligence information very broadly to include not only information relating to attacks or sabotage by foreign powers or their agents but information whether or not concerning a United States person ie a US citizen or permanent resident with respect to a foreign power or foreign territory that relates to i the national defense or the security of the United States or ii the conduct of the foreign affairs of the United States Under this definition it appears that any US citizen s opinion on any matter of US foreign pol icy regardless of how abstract or even inane is foreign intelli gence information Any foreign intelligence information obtained in a criminal investigation as well as any obtained by a grand jury may be disclosed to any Federal law enforcement intelligence protective immigration national defense or na 318 CHANG supra note 25 at 4748 319 CHANG supra note 25 at 48 See also Evans supra note 314 noting the po tential for increased surveillance powers to undermine the Fourth Amendment Sharon H Rackow Comment How the USA PATRIOT Act Will Permit Govem mental Infringement Upon the Privacy of Americans in the Name of Intelligence Investigations 150 U PA L REV 1651 2002 noting that the new powers given to the executive are unnecessary Violate civil liberties and go beyond the stated goal of fighting terrorism server05EroductnOORE8lAORE406 txt unknown Seg 66 3OVSEP703 14 56 1116 OREGON LAW REVIEW Vol 812002 tional security officials to assist in the performance of their official duties320 The Act extends the scope and duration of FISAauthorized surveillance and physical searches allowing for warrants that cover multiple individuals and locations that extend beyond the reach of the issuing court s jurisdiction321 It is now much easier to obtain records from third parties such as telephone or utility companies banks and credit card companies322 and even public libraries323 Although the Act makes it easier to get court orders for access to such information many companies report being pressured to turn over customer records voluntarily in the ab sence of either a court order or a subpoena with the idea that it is unpatriotic if the companies insist too much on legal subpoenas first 324 Section 215 allows an FBI agent to apply for a court order re quiring the production of any tangible things simply by certify ing that they are wanted for an investigation to protect against international terrorism or clandestine intelligence activities 325 Evidence need not be presented and the judge has no discretion if the application is sufficient on its face he or she must issue the order326 This section removes the former FISA requirements that the government specify that there are specific and articul able facts for believing that the material sought pertains to a foreign power or an agent of a foreign power 327 and the gov ernment does not need even reasonable suspicion that the person subject to the warrant be involved in any criminal activity328 Section 216 provides that upon certification by a government 320 USA PATRIOT Act Pub L No 10756 115 Stat 272 sec 203a1 2001 amending Rule 6e3C of the Federal Rules of Criminal Procedure 321 Id sec 20739 see also CHANG supra note 25 at 49 While other federal judges are also authorized to issue such warrants the Act expands the FISA Court from seven to eleven judges Id sec 208 322 See generally USA PATRIOT Act Pub L No 10756 115 Stat 272 2001 Title II Enhanced Surveillance Procedures and Title III International Money Laundering Abatement and AntiTerrorist Financing Act of 2001 323 See Mark Sommer Big Brother at the Library FBI s Right to Data Raises Privacy Issues BUFFI NEWS Nov 11 2002 at A139 see also CHANG supra note 25 at 50 324 CHANG supra note 25 at 4950 quoting Ohio State University law professor Peter Swire 325 USA PATRIOT Act sec 215 326 327 50 USC 1862b 2B 2000 prior to amendment 328 CHANG supra note 25 at 53 server05EroductnOORE8lAORE406 txt unknown Seg 67 3OVSEP703 14 56 Whose Liberty Whose Security 1117 attorney that the information sought is relevant to any criminal investigation courts must order the installation of a pen register and a trapandtrace device which will allow the government to obtain dialing routing addressing and signaling information on telephone and internet lines329 While interception of the content of the communications is not authorized there are no safeguards to this effect In short we must rely on the good faith of the government in this regard Chang notes that this section Authorizes the government to install its new Carnivore or DCS1000 system a formidable tracking device that is capable of intercepting all forms of Internet activity including email messages e page activity and Internet telephone commu nications Once installed on an Internet service provider ISP Carnivore devours all of the communications owing through the ISP s networkinot just those of the target of the surveillance but those of all usersitracking not just informa tion but content as well330 FISA previously allowed orders for wiretaps and physical searches to be issued without a showing of probable cause where the government asserted that the gathering of foreign intelli gence information was the purpose of the investigation331 In addition to expanding the definition of foreign intelligence in formation 332 the 2001 Act now allows such warrants to be is sued in criminal investigations as long as the gathering of foreign intelligence information is also a significant purpose of the surveillance333 Section 213 which is not limited to terrorism investigations but extends to all criminal investigations authorizes sneakand peak searches known in COINTELPRO days as black bag jobs ie searches conducted without notice of the warrant until 329 USA PATRIOT Act seci 216bi 330 CHANG supra note 25 at 5455 331 50 USC 1804a7B 1823a7B 2000 prior to amendment 332 See supra text accompan in note 317i 333 USA PATRIOT Act sec 218 As Chang notes FISA was passed after the Supreme Court held in United States v United States Dist Courtfar the Eastern Dist of Mich 407 US 297 1972 that the executive was not exempt from the Fourth Amendment s probable cause and warrant requirements in cases of domestic sur veillance this case District Judge Damon Jr Keith was among the respondents and the case is commonly referred to by his last name In light of Keith the pre sumed constitutional validity of FISA rests on the fact that its relaxed warrant re quirements apply to foreign intelligence CHANG supra note 25 at 5758 See also United States v Truong Dinh Hung 629 Fi2d 908 4th Cin 1980 United States v Johnson 952 Fi2d 565 1st Cin 1991 both holding that FISA could not be used to circumvent Fourth Amendment requirements in criminal cases server05EroductnOORE8lAORE406 txt unknown Seg 68 3OVSEP703 14 56 1118 OREGON LAW REVIEW Vol 812002 after the search has been completed This means among other things that the target of the warrant cannot point out deficien cies in it or monitor whether the search is being conducted in accordance with the warrant334 Afterthefact notification may be delayed for a reasonable and undefined period in searches where notification may have an adverse result 335 and in the case of seizures if reasonably necessary This could mean that a person or organization subjected to a covert search or seizure may never be informed about it or may learn about it only when evidence obtained is used against them in court C The Blurring of Criminal and Intelligence Investigations A major concern with the 2001 Act is not simply that the gov ernment can obtain more information on individuals and organi zations but the expanded uses to which it can put this information It has generally been presumed that the relaxed standards for warrants available under FISA are constitutionally acceptable because the purpose of the authorized surveillance was foreign intelligence information not information intended for use in criminal prosecutions336 Now however US persons can be targeted on the basisialthough not solely on the basisi of First Amendmentprotected activities and subjected to exten sive and perhaps secret surveillance and searches because they are involved in activities that under the broadened definition of foreign intelligence information relate to US foreign policy or national security Although the courts may yet find this to be unconstitutional the Act appears to allow the use of the informa tion thus obtained in criminal prosecutions The line between criminal and intelligence investigations is fur ther blurred by provisions that allow for the extensive sharing of information Section 203 of the Act authorizes the FBI CIA INS and a number of other federal agencies to share information that involves foreign intelligence or counterintelligence Tele 334 CHANG supra note 25 at 5152 As Chang points out such searches Violate the common law knock and announce requirement and Rule 41d of the Federal Rules of Criminal Procedure which requires officers conducting searches to give subjects a copy of the warrant and a receipt for property taken Id at 51 335 Adverse result is broadly defined to include endangering the life or physi cal safety of an individual flight from prosecution destruction of or tampering with evidence intimidation of potential witnesses or ot erwise seriously jeopardizing an investigation or unduly delaying a trial 18 USC 2705a 2 2003 336 See Banks amp Bowman supra note 267 at 510 9092 server05EroductnOORE8lAORE406 txt unknown Seg 69 3OVSEP703 14 56 Whose Liberty Whose Security 1119 phone or internet conversations that have been intercepted by one agency can be disclosed to others as can foreign intelligence information obtained in the course of a criminal investigation337 A dramatic extension of the law comes in Section 203a which allows information obtained by federal grand juries to be shared with these agencies Without judicial oversight and Without any requirement that the information relate to terrorist activities338 Courts exercise no supervision over the issuance of grand jury subpoenas Grand juries have an almost unlimited ability to sub poena Witnesses and records and are generally unrestrained by the technical procedural and evidentiary rules governing the con duct of criminal trials 339 Witnesses can exercise their Fifth Amendment right not to incriminate themselves through their own testimony but neither the Fourth nor the Fifth Amendment prevents the compelled disclosure of records340 Thus Witnesses who have no right to a lawyer can be compellediunder threat of going to jail for civil or criminal contemptito produce any records and to testify about highly personal matters or about the criminal conduct of others341 D The Criminalization of Protest The 2001 Act has also made some very significant substantive changes in the criminal law As noted above in the late 1940s the Justice Department created a list of subversive organiza tions and considered not only membership but sympathetic as sociation with such organizations as evidence of disloyalty342 The 1996 Antiterrorism and Effective Death Penalty Act author ized the secretary of state to create a list of foreign terrorist organizations and made it a felony to provide material aid to such organizations343 The 2001 Act expands on the 1996 Act by authorizing the creation of a separate terrorist exclusion list and by defining as terrorist a broad range of organizations not 337 USA PATRIOT Act sec 203bi d1 338 See Sara Sun Beale amp James E Felman The Consequences ofEnlisting Federal Grand Juries in the War on Terrorism Assess39mg the USA Patriot Act s Changes to Grand Jury Secrecy 25 HARV JiL amp PUB POL Y 699 2002 analyzing the threat posed by these changes to the integrity of the grand jury system 339 CHANG supra note 25 at 60 quoting In re Schofield 486 F2d 85 90 3rd Cir 1973 340 COLE amp DEMPSEY supra note 292 at 164 341 See eg United States v Dionisio 410 US 1 1973 342 See supra text accompanying notes 12125 343 See supra text accompanying note 29193 server05productnOORE8lAORE406 txt unknown Seg 70 3OVSEP703 14 56 1120 OREGON LAW REVIEW Vol 812002 on any official list344 The penalty for providing material support to designated organizations has been increased to fifteen years imprisonment34 The provision of the 2001 Act that may in the long run prove most effective in suppressing political dissent is its creation of a new crime of domestic terrorism As codified in Section 802 this new and very broadly defined crime encompasses activities which 1 involve acts dangerous to human life that are 2 a violation of the criminal laws of the United States or of any State and which 3 appear intended to a intimidate or co erce a civilian population b in uence the policy of a govern ment by intimidation or coercion or c affect the conduct of a government by mass destruction assassination or kidnapping and which 4 occur primarily within the territorial jurisdiction of the United States 346 Many forms of social and political protest in the United States can now be classified as domestic terrorism Any serious social protestisuch as demonstrations against the World Trade Organ ization police brutality or the war in Iraqiis by definition in tended to influence government policy and could easily be interpreted as involving coercion Such protests could qualify as acts of domestic terrorism if a law is broken say failure to obey a police officer s order and life is endangered perhaps by blocking an intersection Many unjust lawsisuch as the South s segregation lawsihave historically been challenged by civil disobedience and those who engage in such actions have been prepared to pay the price of a possible conviction under the law being challenged Many protesters who fully intend to comply with the law know they run the risk of being charged with disorderly conduct or other mis demeanors which carry relatively minor criminal penalties Now those who protest and those who provide them with material support 347 say food or a place to stay must at least be cogni zant that they could face felony charges and long prison terms As Nancy Chang notes Because this crime is couched in such vague and expansive terms it is likely to be read by federal law enforcement agencies as licensing the investigation and surveil 344 USA PATRIOT Act sec 80539 see also infra text accompanying notes 35559 345 USA PATRIOT Act sec 810d 346 USA PATRIOT Act sec 802a 347 See USA PATRIOT Act sec 805 server05productnOORE8lAORE406 txt unknown Seg 7l 3OVSEP703 14 56 Whose Liberty Whose Security 1121 lance of political activists and organizations that protest govern ment policies and by prosecutors as licensing the criminalization of legitimate political dissent 348 E Further Restrictions on Immigrants As we have seen from the early application of the Alien Act349 to the provisions of the 1996 Illegal Immigration Reform and Im migrant Responsibility Act IIRIRA350 immigrants often bear the brunt of laws and law enforcement policies designed to quash political dissent The 2001 Act both broadens the definition of who is deportable under the Immigration and Nationality Act INA and gives the attorney general expanded powers to indefi nitely detain noncitizens Section 411 of the 2001 Act makes terrorist activity a deport able offense Although the government has generally defined terrorism as premeditated politically motivated violence per petrated against noncombatant targets by subnational groups or clandestine agents usually intended to in uence an audience 351 under the INA as now amended it can include any crime involv ing a weapon or other dangerous device other than for mere personal monetary gain 352 Thus participation in a street fight could make a permanent resident quite possibly someone who has lived in the United States since childhood deportable as a terrorist While this may seem farfetched there have been nu merous deportations and attempted deportations under the 1996 laws IIRIRA and AEDPA on the basis of comparably minor incidents353 343 CHANG supra note 25 at 44 She goes on to note Experience has taught us that when prosecutors are entrusted with the dis cretion to file trumpedup charges for minor crimes politically motivated prosecutions and the exertion of undue pressure on activists who have been arrested to turn state s witness against their associates or to serve as confi dential informants for the government are not far behind Id at 113 349 See supra text accompanying notes 5759 9293 350 See supra text accompanying notes 94 298i 351 US STATE DEPARTMENT PATTERNS OF GLOBAL TERRORISM 2001 May 2002 available at htthwwwistateigovisctrlspgtrpt2001htn 10220mm 352 8 USC 1182a3 BlilVb 2003 353 See generally Nancy Morawetz Understanding the Impact ofthe 1996 Deporta tion Laws and the Limited Scope of Proposed Reforms 113 HARVI L REV 1936 2000 Dawn Marie Johnson IheAEDPA and the IIRIRA Treating Misdemeanors as Felonies for Immigration Purposes 27 If LEGISLI 477 2001 illustrating some of the hardships caused by the deportation lawsi server05EroductnOORE8lAORE406 txt unknown Seg 72 3OVSEP703 14 56 1122 OREGON LAW REVIEW Voli 812002 Engaging in terrorist activity now encompasses soliciting members or funds or providing material support to a terrorist organization even if the activity is undertaken solely to support lawful humanitarian activities of the organization and even if the associational activities would otherwise be protected by the First Amendment354 As David Cole and James Dempsey note Under the immigration law that existed before September 11 aliens were deportable for engaging in or supporting terrorist activity The PATRIOT Act makes aliens deportable for wholly innocent associational activity with a terrorist organi zation irrespective of any nexus between the alien s associa tional conduct and any act of violence much less terrorism355 The noncitizen subject to deportation bears the nearly impossible burden of showing that he did not know and should not reason ably have known that the solicitation would further the organi zation s terrorist activity 356 Terrorist organizations now include not only those that have been designated as foreign terrorist organizations by the State Department pursuant to AEDPA357 and groups on the secretary of state s new terrorist exclusion list 358 but also groups which have never been officially identified as terrorist but are com prised of two or more individuals whether organized or not who engage in certain activities including the use or threat of violence359 This definition potentially encompasses every or ganization that has ever been involved in a civil war or a crime of violence from a prolife group that once threatened workers at an abortion clinic to the African National Congress the Irish Republican Army or the Northern Alliance in Afghanistan 360 Upon the attorney general s certification that he or she has reasonable grounds to believe that an immigrant is engaged in 354 USA PATRIOT Act seci 411a 355 COLE amp DEMPSEY supra note 292 at 153 356 USA PATRIOT Act seci 411a 357 See supra text accom an in notes 29092 The criteria for such designation are found at 8 USC 1189a 1AC 2003 and the list is published periodi cally in the Federal Registeri See eg Designation of Foreign Terrorist Organiza tions 67 Fed Reg 14761 Mar 27 2002 358 See Designation of 39 Terrorist Organizations Under the USA PATRIOT Act 66 Fed Reg 63620 Dec 7 2001 The criteria for this list are much broader than for the list created under AEDPA See 8 USC 1189a 3BivIIII 2003 359 USA PATRIOT Act seci 411a The activities are listed at 8 USC 1182a3BviIII 2003 360 COLE amp DEMPSEY supra note 292 at 153 server05EroductnOORE8lAORE406 txt unknown Seg 73 3OVSEP703 14 56 Whose Liberty Whose Security 1123 terrorist activities as broadly defined above or in other activities threatening to the national security Section 412 provides that the INS can detain that person for up to seven days without charge361 If someone so certified is charged with any immigra tion violation no matter how minor Section 412 mandates that he or she be held indefinitely without the possibility of release on bond until deportation362 Although the attorney general is to review the certification every six months there is no require ment that the immigrant be shown the evidence on which it is based or be given a hearing to contest the evidence The immi grant s only remedy is to seek a writ of habeas corpus in federal district court363 Even when such a person is eligible for political asylum or other relief from removaliie has a statutory right to remain in the countryiSection 412 makes no provision for release As Cole and Dempsey point out the INS already had the authority to detain someone in deportation proceedings who presented a risk of ight or a threat to national security Thus what the new legislation adds is the authority to detain aliens who do not pose a current danger or ight risk and who are not removable be cause they are entitled to asylum or some other form of relief 364 F Enhanced Funding and InterAgency Communication Title I Enhancing Domestic Security Against Terrorism creates a separate counterterrorism fund which among other things will reimburse any Department of Justice component for any costs incurred in connection with providing support to counter investigate or prosecute domestic or international ter rorism 365 The Technical Support Center established by the 1996 AEDPA to help meet the demands for activities to combat terrorism and support and enhance the technical support and tac 361 USA PATRIOT Act sec 412 Of course the seven day limit seems rather meaningless at this point since the Justice Department has been inde nitely detain ing hundreds of immigrants without charge for many months See supra text accom anying note 308 362 USA PATRIOT Act sec 412 363 USA PATRIOT Act sec 412a 364 COLE amp DEMIPSEY supra note 292 at 15639 see also Regina Germain Rushing to Judgment The Un39mtended Consequences of the USA PATRIOT Act for Bona Fide Refugees 16 GEO IMMIGK LJ 505 2002 noting the likely effect of the 2001 Act on political asylum adjudications 365 USA PATRIOT Act sec 101a1 server05EroductnOORE8lAORE406 txt unknown Seg 74 3OVSEP703 14 56 1124 OREGON LAW REVIEW Vol 812002 tical operations of the FBI is given an additional 200 million for each of the next three years366 and the director of the Secret Service is instructed to develop a national network of electronic crime task forces to prevent detect and investigate various forms of electronic crimes367 In addition Section 701 provides an additional 50 million in 2002 and 100 million in 2003 for expanding the Regional Infor mation Sharing System RISSthat was created by the Omnibus Crime Control and Safe Streets Act of 1968368 an intranet sys tem which can be accessed by 5600 federal state and local law enforcement agencies369 Nancy Chang spells out some of the potential problems By allowing information about individuals suspected of the new crime of domestic terrorism to be shared with thousands of law enforcement agencies RISS places at risk of harm polit ical activists who engage in associate with those who engage in or are suspected of engaging in civil disobedience Infor mation concerning activists that is personally sensitive or sim ply irrelevant to any legitimate law enforcement purpose as well as erroneous or outdated information can easily find its way into an RISS database Once posted this information can quickly be circulated to thousands of law enforcement offices some of which may share the information with governmental and private organizations The potential for arrest based on false charges invasion of one s privacy damage to reputation loss of employment or other injuries resulting from the misuse of posted information is extremely high370 G Are We More Secure According to the Bush administration all of the measures de scribed in this Part VI have been taken for our security How ever as of August 2002 the government had brought only one criminal indictment on charges related to terrorism and that was against Zacarious Moussaoui who is alleged to have been the twentieth hijacker and was already in custody on September 11371 According to the Justice Department s sixmonth report to 366 USA PATRIOT Act sec 103 367 USA PATRIOT Act sec 105 368 42 USC 3796h 2003 369 CHANG supra note 25 at 112 See also Jim McGee Fighting Terror with Databases Domestic Intelligence Plans Stir Concern WASH POST Feb 16 2002 at A27 370 CHANG supra note 25 at 11415 371 Cole supra note 305 at 960 server05productnOORE8lAORE406 txt unknown Seg 75 3OVSEP703 14 56 Whose Liberty Whose Security 1125 Congress on the implementation of Section 412 of the 2001 Act which mandates the detention of alien terrorists not a single noncitizen had been certified as a terrorist372 Thousands of peo ple have been secretly detained without charge and thousands more deported on technical immigration violations This has had a devastating effect on Arab American and South Asian commu nities in the United States but has not had any demonstrable effect on reducing criminal activity in the country373 What is demonstrable is that the scenario described above by Nancy Chang is taking place374 The government s ability to gather information on the constitutionally protected activities of lawabiding Americans has surged dramatically The very mini mal restraints put on the FBI and other law enforcement and intelligence agencies in the wake of the exposure of COINTEL Otype activities have disappeared altogether375 In addition to the changes wrought by the 2001 Act itself the lack of mini mal restraints can be seen in Attorney General Ashcroft s recent revisions of the Smith guidelines for domestic intelligence gather ing described in Part V376 The new Ashcroft guidelines issued on May 30 2002 author ize a full investigation when facts or circumstances reasonably indicate that a federal crime has been is being or will be com mitted 377 Terrorism enterprise investigations are authorized 372 CHANG supra note 25 at 7172 373 While this is portrayed as making significant inroads against illegal immigra tion in fact it is estimated that there are about 300000 people currently in the country who are similarly in Violation of the terms of their visas Cole supra note 305 at 975 Thus this is more accurately described as a program selectively target ing a very small sector of that group based on national origin race or ethnicity age and gender not as a move against illegal immigration in ener I 374 See Ann Davis Far Afield FBI s PastSept 11 Watch List Mutates Acquires Life of Its Own WALL STI J Nov 19 2002 at A1 noting the widespread dissemi nation and misuse of a list circulated by the FBI to corporations of persons it wished to question 375 According to Nat Hentoff A new addition to John Ashcroft s war on both terrorism and our Constitu tion is his planiunder the expanded surveillance powers in the USA Pa triot Actito reintroduce a current version of COINTELPRQ I I I On a Dec 2 episode of ABC s This Week Attorney General John Ashcroft not only did not deny the advent of a new COINTELPRO but stoutly maintained that he will pursue whatever has to be done in the war against terrorismi He doesn t need congressional approval for this assault on the First and Fourth Amendments OpinionEditorial Sweet Land of Liberty WASH TlMES Dec 17 2001 at A21 376 See supra text accompanying notes 27479 377 US DEP T OF JUSTICE OFFICE OF LEGAL POLICY THE ATTORNEY GENV server05productnOORE8lAORE406 txt unknown Seg 76 3OVSEP703 14 56 1126 OREGON LAW REVIEW Vol 812002 when the FBI has a reasonable indication that two or more per sons are engaged in an enterprise for the purpose of further ing political or social goals wholly or in part through activities that involve force or violence and a violation of federal criminal law or for the purpose of engaging in terrorism including the newly created crime of domestic terrorism 378 Full investiga tions may also be initiated where facts or circumstances reasona bly indicate that a group has engaged in or intends to engage in acts involving force or violence or covered criminal conduct in cluding domestic terrorism in a political demonstration379 Once an investigation begins the guidelines specifically author ize agents to collect information on the group s membership funding geographic reach and past and future activities and goals 380 Where there is no reasonable indication of criminal activity a preliminary investigation may now be undertaken if there is in formation or an allegation which indicates the possibility of criminal activity and an FBI supervisor believes it warrants fur ther scrutiny381 All of the techniques of a full investigation in cluding confidential informants undercover operations and searches and seizures382 may be utilized except for the opening of mail and nonconsensual electronic surveillance383 Even when there is no basis for any kind of investigation the Ashcroft guidelines instruct Bureau agents to proactively draw on available sources of information to identify terrorist threats and activities including nonprofit and commercial data search services information volunteered by private entities regardless of whether it was legally obtained and the surveillance of pub licly accessible places and events384 As Nancy Chang notes these guidelines are ERAL S GUIDELINES ON GENERAL CRIMES RACKETEERING ENTERPRISE AND TER RORISM ENTERPRISE INVESTIGATIONS 2002 available at httpwwwlusdojigovolp generalcrimeszipdf hereinafter ATTORNEY GENERAL S GUIDELINES See also G supra note 25 at 115 9 378 ATTORNEY GENERAL S GUIDELINES supra note 377 at 15 These investiga tions can be authorized for up to a year by the Special agent in charge of a field office Id at 17 See supra text accompanying notes 34648 TrORNEY GENERAL S GUIDELINES supra note 377 at 16 at 17 381 Id at 1 3321d at 1820 333Id at I 334Id at 2122 L on 00 53gt server05productnOORE8lAORF406 txt unknown Seg 77 3OVSEP703 14 56 Whose Liberty Whose Security 1127 likely to lead to intrusive intelligence gathering on those who engage in nonviolent civil disobedience or in lawful but con frontational political activities as well as those who attract the attention of the FBI as it trolls through private databases at tends churches and mosques and surfs the Web With the ad vent of electronic recordkeeping the FBI is likely to maintain far more dossiers on lawabiding individuals and to dissemi nate the dossiers far more widely than during the COINTEL PRO era385 Does placing this information in the hands of law enforcement make us more secure Four medical students traveling to Florida to begin their internships were turned in by a woman who thought she overheard a suspicious conversation The inter state highway was shut down the students stopped searched and held in custody for several days and their car torn apart No evi dence of criminal or terrorist activity was found and the only tan gible result appears to be that the students may have lost their internships and quite possibly their careers as doctors None theless law enforcement officials response was that no harm was done and the woman s actions were roundly praised by the media386 Although only a small portion of the spy files kept by the Denver Police Department have been released they contain no evidence of any criminal activity engaged in by those identified 5 criminal extremists or prevented as a result of the compila tion of vast amounts of personal data On the contrary some of the files state that the Denver police had been notified by the FBI of a very specific plan to assassinate two leaders of the C010 rado chapter of the American Indian Movement but apparently nothing was done to prevent the attack387 Those planning the attack were not arrested or prosecuted and the targets were not 385 CHANG supra note 25 at 119 386 Associated Press Florida Terror Suspects Paid Toll Sept 20 2002 available at 2002 WL 100407327 noting that Videotape showed the medical students who were allegedly detained for failure to pay a toll had paid it 3 Medical Students Get New Posts for Training EMail Threats Beh39md Change Si FLAI SUNSENTINEL Fort Lauderdale Sept 18 2002 at 3B available at 2002 WL 100400628 noting that Gov Jeb Bush called the woman to thank her for the tip Big Mouths Result in Big TroubldS Held Released in Threat Probe HOUSTON CHRONI Sept 14 2002 at 1 available at 2002 WL 23223309 noting that of the three students stopped one was a UiSiborn citizen and another a naturalized US citizen Florida Hospital May Still Host 3 Held in False Alarm LiAi TlMES Sept 23 2002 at A12 available at 2002 WL 2505671 noting that the hospital the students were to train at turned them away after the incident 387 Files about American Indian Movement and Ward Churchill produced by server05EroductnOORE8lAORE406 txt unknown Seg 78 3OVSEP703 14 56 1128 OREGON LAW REVIEW Vol 812002 even notified so that they could take appropriate security precautions3 Given the lack of tangible evidence of criminal activity pro duced by the postSeptember 11 governmental measures the long and welldocumented history of the use of comparable mea sures to suppress movements for social change and the chilling effect on First Amendment activities already evident as a result of recently heightened surveillance programs it seems reasona ble to conclude that people who live in America are not more secure but in fact more vulnerable to violations of their consti tutionally protected rights If anything is more secure as a result of these measures it is the status quo Those who currently exer cise political economic and military power will be more firmly entrenched and the nation s resources will continue to be used to further their interests VII USING LAW TO SUBVERT THE RULE OF LAW As long as we continue to go to work or pay our taxes or oth erwise conduct business as usual we contribute to the contin ued functioning of the various social systems to which we er aps however our sense of that complicity will awaken us from the everydayness in which we routinely slum ber away our lives Perhaps it will stir us to recognize that something extraordinary is afoot demanding that we behave in ways beyond the ordinary iDouglas V Porpora How Holocausts Happen389 Since September 11 2001 the administration has consistently told the American public that the government needs expanded powers in order to ensure our security and Congress has will ingly complied by passing legislation that dramatically restricts rights guaranteed to the people under the Constitution Al Denver Police Department on file with author See supra text accompanying notes 2529 388 Id Those identified as planning the attack have been linked to federal activ ity see Faith Attaguile Why Do You Think We Call It Struggle An Essay on the Subversion of the American Indian Movement on file with author bringing to mind the interorganizational con ict promoted by the FBI in its COINTELPRO opera tions with the hope of causing activists to kill each other See eg supra text ac companying notes 14952 describing confrontations between the United Slaves US organization and the Black Panther Party 389 PORPORA supra note 19 at 18586 server05EroductnOORE8lAORE406 txt unknown Seq 79 3OVSEP703 14 56 Whose Liberty Whose Security 1129 though many of the executive s actions such as the disappear ing and indefinite detention of over 1200 immigrants and the Executive Order authorizing military tribunals as well as the new legislation have been criticized by advocates of civil rights and civil liberties the debate has remained within the framework presented by the government ie how much liberty are we willing to sacrifice for the sake of security In this Essay I have presented a cursory sketch of the history of the United States government s use of its law enforcement powers in the hope that it will prompt us to look more critically at our assumptions about the government s use of power to make us more secure In addition to whatever else the federal govern ment may or may not have been doing it has consistently used its powers legally and illegally to suppress social and political movements which it deems threatening to the status quo It is in this context that we must examine the expanded powers cur rently being exercised by the executive branch and legitimized by Congress Chief Justice Rehnquist in his recent book All the Laws but One Civil Liberties in Wartime examines President Abraham Lincoln s suspension of the writ of habeas corpus during the Civil War and brie y discusses the internment of Japanese Americans during World War 11390 He concludes that it is not likely or de sirable for civil liberties to be as favored in wartime as the laws will necessarily speak with a somewhat different voice 391 In essence his message seems to be that while the government occasionally makes mistakes during times of national emergency we need not worry about losing our civil liberties because when the emergency is over things will return to normal This is a message often repeated in discussions about curtailing civil liberties today Chief Justice Rehnquist may well be right that things will return to normal However the question remains whether the norm is acceptable As I have tried to point out the current expansion of executive powers and the concomitant re strictions on civil rights are not simply a response to a national emergency sparked by recent acts of terrorism but a move to ward legitimating powers that have a long history of being used consciously and deliberately to suppress political dissent In the name of national security governmental agencies 390 See generally REHNQUIST supra note 36 391 Id at 22425 server05EroductnOORE8lAORE406 txt unknown Seg 80 3OVSEP703 14 56 1130 OREGON LAW REVIEW Vol 81 2002 have a consistent history of knowingly violating fundamental rights guaranteed by the Constitution As ongoing revelations about the Denver spy files illustrate these are not practices that can be safely relegated to the past Nor are they limited to a chilling effect on freedom of expression The federal govern ment has subjected the American people those it is charged with protecting to false and I r J J wrongful arrests and arbitrary detentions physical assaults and assassinations and the crushing of lawabiding organizations What has been disrupted and destroyed in the process are not only the targeted individuals organizations and movements but the core values the government claims to be protecting free dom democracy and the rule of law As I indicated in the Preface there is much about the status quo that desperately needs to be changed There is nothing ac ceptable about the fact that the planet s ecology is in rapid disin tegration392 or that the conditions of life are so bleak that in some indigenous communities seventy percent of all children de liberately obliterate their consciousness by inhaling gasoline fumes 3 Every day the news brings us evidence of widespread violations of human rights both at home and around the world The United States as the world s only political economic and military superpower bears much of the responsibility for these conditions and the American people have the rightiand obliga tionito in uence governmental policies and make the structural changes necessary to realize fundamental human rights Bringing about such changes requires the ability to express po litical opinions criticize policies and organize movements for so cial change For that very reason these are rights built into the Constitution and firmly established in international law To the extent that governmental practices violate the Constitution and basic principles of international law the fact that they are being legalized by Congress cannot give us comfort Again this was one of the basic principles articulated by Supreme Court Justice Robert Jackson at the Nuremberg Tribunals that the existence of national laws legitimizing particular practices does not render those practices lawful in the larger sense of the term 4 The abil 392 See supra Preface 393 See GEOFFREY YORK THE DISPOSSESSED LIFE AND DEATH 1N NATIVE CA NADA 10 Little Brown amp Co Ltd 1992 1989 394 See supra Preface As international legal scholar Richard Falk says server05productnOORE8lAORE406 txt unknown Seg 81 3OVSEP703 14 56 Whose Liberty Whose Security 1131 ity to in uence the policies and practices of the government that is acting in our name is the essence of democracy It is our re sponsibility particularly the responsibility of lawyers and legal scholars to ensure that this is in fact a democracy In postNurember g settings a government that agrantly violates interna tional law is engaged in criminal ehavior even on a domestic plane and as far as internal law is concerned its policies are not entitled to respect To disobey is no longer i i to engage in civil disobedience o resist reasonably a violation of international law is a matter of legal right possi bly even of legal duty if knowledge and a capacity for action exists Richard Falk Introduction to FRANCIS ANTHONY BOYLE DEFENDLNG CIVIL RESISV TANCE UNDER INTERNATIONAL LAW xxi 1988 server05EroductnOORE8lAORE406 txt unknown Sag 82 3OVSEP703 14 56 1132 OREGON LAW REVIEW V011 812002
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