Targeting Dissent: FBI Spying on the National Lawyers Guild

In 1937, the American Bar Association refused to allow people of color to join its ranks. With the blessing of President Franklin D. Roosevelt, the National Lawyers Guild was founded as a multi-racial alternative to the ABA. The Guild's founding members included the attorney general, several judges, some congressmen, and the head of the National Labor Relations Board.

Three years after the creation of the National Lawyers Guild, the FBI began to conduct secret surveillance of the Guild. From 1940 to 1975, the FBI wiretapped Guild phones, burglarized Guild offices, and sent informers into Guild meetings. The June 25, 2007 New York Times report on the FBI's program of spying on the Guild omits FBI Director J. Edgar Hoover's primary rationale for undertaking this surveillance: "to blunt the Guild's criticism of the FBI and, if possible, to destroy the organization," in the words of Michael Krinsky, one of the lawyers who filed the 1977 lawsuit against the FBI.

The Guild, which provided legal support for the people, was a thorn in Hoover's side. In 1950, the Guild was about to release a big exposé on the FBI, prepared by Yale law professor and ex-Guild president Thomas Emerson. No other organization was undertaking such a comprehensive criticism of the FBI. Through illegal wiretaps and informants the FBI learned of the Guild's impending report. In advance of the report's release, the FBI launched a pre-emptive strike at the Guild by causing people in the press and the Senate to denounce the report. "So the story became the Lawyers Guild, not the FBI," Krinsky said.

The FBI asked Richard M. Nixon, a member of the House Un-American Activities Committee (HUAC), to call for an investigation of the Guild, on the eve of the release of the Guild report. The investigation led to the 1950 HUAC report titled, "National Lawyers Guild: Legal Bulwark of the Communist Party." It concluded with a call to the attorney general to designate the National Lawyers Guild a "subversive organization." The AG complied in 1953, but when no evidence to support the designation was forthcoming, he dropped it in 1958.

From the 1950s through the early 1970s, the FBI continued to focus on the National Lawyers Guild. The FBI had a list called The Security Index, which identified people, including Guild leaders, to be rounded up in the event of a national emergency.

Hoover's COINTELPRO (Counter-Intelligence Program) engaged in illegal surveillance of other organizations and individuals as well as the Guild. For example, in a program called Racial Matters, the FBI wiretapped Dr. Martin Luther King Jr.'s hotel rooms and tried to drive him to divorce and suicide. Dr. King's voter registration campaign and especially his vocal opposition to the Vietnam War incurred the wrath of J. Edgar Hoover, who went after Dr. King with a vengeance. Groups such as the Committee in Solidarity with the People of El Salvador (CISPES) were also on Hoover's surveillance list.

The revelation of President Richard Nixon's illegal surveillance of groups opposed to his policies as well as hearings by a select Senate committee chaired by Senator Frank Church led to the enactment of the Foreign Intelligence Surveillance Act (FISA) and other curbs on the power of the FBI and the CIA. Today we are faced with President George W. Bush's secret domestic spying program, which, as I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, violates not only FISA, but the Fourth Amendment as well.

Bush's predecessors illegally targeted those who criticized their policies, under the guise of fighting communism. Bush's rationale for bending the Constitution is fighting terrorism, but his attacks are leveled at disssenters.

The HUAC report and the AG's designation of the Guild not only violated the Constitution; they nearly succeeded in destroying the organization. Membership in the Guild fell to about 300 members. But the Guild survived and today it boasts nearly 6,000 members.

Members of the National Lawyers Guild continue to work beside those who struggle for economic, racial and sexual equality, and against imperial wars and occupations. I'm proud to have been a Guild member for more than half of its 70-year life.

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One Nation Under Surveillance

We do not believe the Executive has, or should have, the inherent
constitutional authority to violate the law or infringe the legal rights
of Americans, whether it be a warrantless break-in into the home or
office of an American, warrantless electronic surveillance, or a
President's authorization to the FBI to create a massive domestic
security program based upon secret oral directives.
-Final Report of the Church Committee, 1976

The revelation that President George W. Bush authorized the unlawful warrantless surveillance of Americans has resurrected the discussion of the proper balance to be struck between liberty and security.

This discourse is not new in the United States. Benjamin Franklin warned, "They who would give up an essential liberty for temporary security, deserve neither liberty or security." Franklin was prescient. Throughout our history, we have grappled with this apparent tension. Unfortunately, all too often, we have lost our liberties - without becoming more secure. It has been primarily the executive branch that has overreached across the lines that separate the three branches of our government. In this post-9/11 world, under the guise of his "Global War on Terror," George W. Bush has arrogated to himself a level of presidential authority that rivals any such usurpation in the past.

Surveillance in this country has been aimed at slaves, immigrants, political radicals, suspected lawbreakers, the poor, workers, and anyone with a credit card or a computer. It has frequently been used by the government to suppress criticism of its policies.

In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party's political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans. The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.

The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything "false, scandalous and malicious" with the intent to hold the government in "contempt or disrepute." The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.

Subsequent examples of repressive legislation passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).
During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."
COINTELPRO (counter-intelligence program) was designed to "disrupt, misdirect and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of FBI director J. Edgar Hoover, who disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights and anti-Vietnam War campaigns "represented a clear threat to the established order of the U.S." It went after King with a vengeance, wiretapping his telephones and securing personal information which it used to try to discredit him and drive him to divorce and suicide.

In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies. The Church Committee concluded, "[I]ntelligence activities have undermined the constitutional rights of citizens and ... they have done so primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied." The committee added, "In an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward 'big brother government' ... Here, there is no sovereign who stands above the law. Each of us, from presidents to the most disadvantaged citizen, must obey the law." The committee stressed that the "advocacy of political ideas is not to be the basis for governmental surveillance."

Congress established guidelines to regulate intelligence-gathering by the FBI. Reacting against President Richard Nixon's assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance while protecting national security.

FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the President to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.

In 2002, in direct violation of FISA, Bush signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last four years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has collected vast personal information that has nothing to do with national security.

Electronic surveillance was first used during the Holocaust when IBM worked for the Nazi government organizing and analyzing its census data. Death camp barcodes - linked to computerized records - were tattooed onto prisoners' forearms.

The advent of digital technology raised surveillance to a new level. Social Security numbers, credit cards, gym memberships, library cards, health insurance records, bar codes, GSM chips in cell phones, toll booths, hidden cameras, workplace identification badges, and the Internet all provide the government with effective tools to keep track of our finances, our politics, our personal habits, and our whereabouts through data mining. The Privacy Foundation determined in a 2001 survey that one-third of all American workers who use the Internet or email on the job are under "constant surveillance" by employers.

One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress. The Patriot Act lowered the standards for government surveillance of telephone and computer communications, and empowered the government to monitor books people read. It created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.

In 1944, the Supreme Court upheld the legality of the Japanese internment in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

That day came with the recent decision of a New York federal judge, dismissing a case that challenged the detention of hundreds of Arab and Muslim foreign nationals shortly after 9/11. None has been convicted of any crime involving terrorism. U.S. District Judge John Gleason ruled in Turkmen v. Ashcroft that the round-up and indefinite detention of foreign nationals on immigration charges based only on their race, religion or national origin does not violate equal protection or due process. This is not surprising in light of the anti-immigrant hysteria sweeping our country today.

In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Seventy-three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans "they need to watch what they say, watch what they do."

Milton Mayer described the escalation of surveillance that accompanied the rise of German fascism: "What happened was the gradual habituation of the people, little by little, to be governed by surprise, to receiving decisions deliberated in secret; to believe that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if people could understand it, it could not be released because of national security." We should heed his words.

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Big Brother Bush Is Listening

Any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order.
-George W. Bush, April 20, 2004, Buffalo, New York.

In an assertion of executive power that rivals the excesses of the McCarthy era of the late 1940's and 1950's, and the dreaded COINTELPRO (counter-intelligence program) of the 1950's, 1960's and 1970's, George W. Bush's National Security Agency has been secretly spying on United States citizens without warrants for the last three years.

George Orwell's book "1984" was first published during the heyday of McCarthyism in 1949. In the society Orwell described, everyone was under surveillance by the authorities. The people were constantly reminded of this by the phrase, "Big Brother is watching you."

During the McCarthy period, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

Although Orwell's allegory was aimed at communism, it was the United States government that initiated COINTELPRO, designed by its own terms to "disrupt, misdirect, discredit and otherwise neutralize" political and activist groups. In the 1960s, for example, the FBI targeted Dr. Martin Luther King, Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights campaign, and particularly his opposition to the Vietnam War, "represented a clear threat to the established order of the US." The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church, a Democrat from Idaho, conducted an investigation of activities of the domestic intelligence agencies in the 1950's, 1960's and early 1970's. Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Reacting against President Richard Nixon's assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance, while at the same time protecting national security.

FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the president to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.

FISA allows the Attorney General to engage in wiretapping in emergency situations without a prior judicial order provided he or she applies for one within 72 hours after initiating the surveillance. And FISA specifically covers warrantless wiretaps during wartime; it limits them to the first 15 days after war is declared. Since 1978, the court has granted about 19,000 warrants and only turned down five.

Nevertheless, in spite of FISA's streamlined procedure for allowing lawful surveillance, Bush has sidelined the Foreign Intelligence Surveillance Court. In 2002, he signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last three years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has thus collected vast personal information that has nothing to do with national security.

In the wake of the outcry after the New York Times broke the story of Bush's secret surveillance, Attorney General Alberto Gonzales cited Congress's authorization of the use of force the day after the September 11 terrorist attacks as justification for the program. But the 2001 Authorization for Use of Military Force (AUMF) only permits the president to use "necessary and appropriate force" against "nations, organizations, or persons" that "planned, authorized, committed, or aided" the 9/11 attacks, or that "harbored such persons."

That license to use appropriate force does not authorize the government to spy on people in the United States without a warrant. Indeed, several congresspersons who voted for the AUMF say they only intended to grant the president authority to invade Afghanistan, not to conduct unbridled electronic surveillance of people in the United States.

Tom Daschle, a former Democratic senator from South Dakota, was Senate majority leader when Congress passed AUMF. He helped negotiate the law with the White House counsel's office. "I can state categorically that the subject of warrantless wiretaps of American citizens never came up," Dashcle said. "I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance."

In fact, Daschle revealed that Congress turned down White House proposals both to authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States," and to authorize the use of appropriate force "in the United States."

Senator Edward M. Kennedy, D-Mass., described Bush's spying program as an "arrogant usurpation of power." He said, "The president is not above the law; he is not King George." Senator Russ Feingold, D-Wis., agreed: "He is the president, not a king," Feingold noted.

Senator Arlen Specter, R-Pa., Chairman of the Senate Judiciary Committee, said such behavior by the executive branch "can't be condoned." He declared on the Senate floor, "That's wrong, clearly and categorically wrong. This will be a matter for oversight by the Judiciary committee as soon as we can get to it in the new year - a very, very high priority item."

The spying revelation also influenced the Senate vote on the renewal of the USA Patriot Act. It swayed New York Democratic Senator Charles Schumer's decision. "Today's revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote," Schumer said. "Today's revelation makes it very clear that we have to be very careful - very careful."

In a stunning blow against Bush, who had hoped several provisions of the Patriot Act would be made permanent, Congress extended the Patriot Act for only five weeks just before it recessed for the holidays.

It is not just congresspersons who are outraged at Bush's secret surveillance. US District Judge James Robertson, one of 11 members of the FISA court, has resigned. Robertson, selected by former Chief Justice William Rehnquist to serve on the FISA court, reportedly expressed deep concern that Bush's program is legally questionable and may have tainted the FISA court's work, according to the Washington Post.

Besides the NSA program, the American Civil Liberties Union has discovered through a Freedom of Information request that counter-terrorism agents at the FBI have conducted extensive surveillance of such groups as the Vegan Community Project, the People for the Ethical Treatment of Animals, and a Catholic Workers group the FBI accuses of having a "semi-communist ideology." Red-baiting is once again alive and well in America.

In 1975, Senator Frank Church said of the NSA, "That capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." Church worried about the capacity of "this agency and all agencies that possess this technology" to "make tyranny total in America."

George W. Bush has fulfilled the prophesies of both George Orwell and Frank Church - with a vengeance. But neither Orwell nor Church could have foreseen the technological developments that enable Bush's large ears to penetrate our most intimate conversations.

The real motivation underlying Bush's unprecedented assertion of executive power was revealed by Dick Cheney: "Watergate and a lot of the things around Watergate and Vietnam, both during the 1970's, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area. The President of the United States needs to have his constitutional powers unimpaired."

Bush has gone far beyond what the Constitution authorizes, however. Only Congress has the power to make laws. Congress has not authorized the president to suspend the law. And FISA makes it a crime, punishable by up to five years in jail, for the executive to conduct a wiretap without statutory authorization.

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Bush's War on Democracy

When George W. Bush's weapons-of-mass-destruction rationale for invading Iraq evaporated, his excuse morphed into bringing democracy to the Iraqi people. But the way Bush has eviscerated our democracy in the United States is proof positive that his democratic credentials are phony.

We have seen our government assault First Amendment rights in the past - during the McCarthy era, and when the FBI instituted COINTELPRO to spy on and discredit civil rights activists.

But Bush has taken the attack on civil liberties to a new level. The most striking warning of his strategy to stifle dissent in an unprecedented way was former White House Press Secretary Ari Fleischer's admonition shortly after the September 11 attacks that Americans should "watch what they say, watch what they do."

That statement is now the mantra of Team Bush.

The Bush administration depicts as public enemies, and even potential terrorists, those who speak out against U.S. government policies.

In an annual survey by the First Amendment Center in 2003, 93 percent of respondents agreed that individuals should be allowed to express unpopular opinions in this country. Two-thirds supported the right of any group to hold a rally for a cause even if offensive to others.

Three new developments on Bush's watch have a chilling effect on protected First Amendment activity: 1) the shift from reactive to preemptive law enforcement; 2) the enactment of domestic anti-terrorism laws; and 3) the recent relaxation of FBI guidelines on surveillance of Americans.

From Reactive to Preemptive Law Enforcement

Like Bush's new "preemptive" or "preventative" war strategy which led us into Iraq in violation of the United Nations Charter, law enforcement in the United States has moved from reaction to "preemption," in violation of the U.S. Constitution.

Collective preemptive punishment against those who wish to exercise their First Amendment rights has taken several forms: content-based permits, where permission to protest is screened for political correctness; pretextual arrests in anticipation of actions that haven't yet occurred; the setting of huge bails of up to $1 million for misdemeanors; the use of chemical weapons; and the employment of less lethal rounds fired without provocation into crowds.

Protestors are painted by the government and the mainstream media as violent lawbreakers.

In this week's demonstrations against the Republican Convention in New York, police are prepared to use sound, ostensibly to convey orders to the crowd. This Long Range Acoustical Device (LRAD) has been utilized by the U.S. military in Iraq, and during the Miami free trade protests last year.

When employed in the weapon mode, LRAD blasts a tightly controlled stream of caustic sound that can be turned up to high enough levels to trigger nausea or fainting. Even if LRAD is not used by the police, the warning that it might be was designed to frighten potential protestors from taking to the streets of New York.

New Domestic Anti-Terrorism Laws

The USA PATRIOT Act, rushed through a timid Congress a month after September 11, 2001, creates a new crime of "domestic terrorism," defined so broadly that anyone who may have, at some time, participated in civil disobedience, or even a labor picket, could be targeted.

This provision has been used to label environmental and animal rights groups "terrorist." Congressman Scott McInnis (R-Co) called Earth Liberation Front, which was responsible for major property damage in Colorado, a major domestic terrorist organization. Rep. George Nethercutt (R-Wash) suggested treating Earth Liberation Front like the Taliban: "I propose," he said, "that we use the model that has worked so well in Afghanistan. Give them no rest and no quarter." These politicians draw no distinction between human rights and property interests.

Relaxed FBI Surveillance Guidelines

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

COINTELPRO (counter-intelligence program) was designed, by its own terms, to "disrupt, misdirect and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King Jr. in a program called "Racial Matters."

King's campaign to register African-American voters in the South raised the hackles of FBI director J. Edgar Hoover, who disingenuously claimed King's organization was being infiltrated by communists.

In fact, the FBI was really concerned that King's civil rights and anti-Vietnam War campaigns "represented a clear threat to the established order of the U.S." It went after King with a vengeance, wiretapping his telephones and securing very personal information, which it used to try to discredit him and drive him to divorce and suicide.

A congressional committee chaired by Frank Church documented the abuses of COINTELPRO. As a result, in 1976, Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering.

John Ashcroft, again using the excuse of September 11, has relaxed the 1976 guidelines on FBI surveillance, spying and infiltration of political groups and meetings. The probable cause requirement for initiating surveillance of individuals and organizations has been removed. FBI surveillance of all public meetings and demonstrations is now authorized.

An internal FBI newsletter encouraged agents to conduct more interviews with activists protesting the war "for plenty of reasons, the chief of which it will enhance the paranoia endemic in such circles and will further serve to get the point across that there is an FBI agent behind every mailbox."

The national drive by the FBI to collect intelligence related to protests through local law enforcement has resulted in the harassment of people in places such as Denver, Fresno, CA, New York, and Drake University in Iowa.

In an October 2003 memo, the FBI urged law enforcement to monitor the Internet, because "protestors often use the Internet to ... coordinate their activities prior to demonstrations," reported The New York Times.

The Justice Department's Office of Legal Counsel (OLC) - the same group that wrote the memos advising Bush how to get away with torturing prisoners - blessed the 2003 FBI memo. The OLC said that interrogating and gathering evidence on potential political protestors raised no First Amendment concerns. But, it went on to say, any "chilling" effect would be "quite minimal" and far outweighed by the overriding public interest in maintaining "order."

The Bad News and the Good News

As we approach the November election - and for the next four years if Bush secures another term - we can expect that opponents of the Bush administration's repressive policies will increasingly be targeted.

But over 300 cities and four states have called for the repeal of the PATRIOT Act, and organizations like the National Lawyers Guild have filed lawsuits challenging the unconstitutional actions of the government.

And in the largest demonstration ever at a political convention, hundreds of thousands of demonstrators registered their protest Sunday against the assault on democracy by the forces of George W. Bush.

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War on Civil Liberties Hits a Speed Bump

"Watch out for well-meaning men of zeal!” These words penned 74 years ago by U.S. Supreme Court Justice Louis Brandeis are no less relevant today. Brandeis was dissenting from a ruling that exempted wiretapping from the protections of the Fourth Amendment. The Supreme Court later reversed its decision, holding that the government must follow the Fourth Amendment when it electronically seizes our conversations. But under the guise of the “war on terror,” the zealous men in Washington have launched a major new assault on our constitutional rights.

One of the most recent manifestations of this dangerous zeal is the new TIPS program. Under the Terrorism Information and Prevention System, Attorney General John Ashcroft seeks to recruit millions of Americans to spy on each other. TIPS is designed to ask volunteers, including letter carriers, utility employees, truck drivers and train conductors, to report “suspicious activity” to the government. TIPS was originally slated to be initiated this month in the nation’s ten largest cities, and the Department of Justice hopes to recruit 1 million informants for a total population of almost 24 million.

Informant reports will then enter databases from which the government can create dossiers on its citizens. TIPS is reminiscent of the East German stasi, or secret police, who maintained files on millions of people. When asked how the data will be stored and used, Ashcroft has been less than forthcoming.

Operation TIPS will not only help the government spy on us more effectively. It will encourage neighbors to snitch on neighbors, and won’t distinguish between real and fabricated tips. Anyone with a grudge or vendetta against another can provide false information to the government, which will then enter the national database.

Shortly after TIPS was unveiled, there came a public hue and cry. The United States Postal Service stated categorically it would refuse to allow its mailpersons to participate. Even the Washington Post, in a recent editorial, was alarmed by the prospect of TIPS: “Americans should not be subjecting themselves to law enforcement scrutiny merely by having cable lines installed, mail delivered or meters read.” The government seeks to use private citizens to circumvent the dictates of the Fourth Amendment. As the Post editorial says, “Police cannot routinely enter people’s houses without either permission or a warrant. They should not be using utility workers to conduct surveillance they could not lawfully conduct themselves.”

The House Select Committee on Homeland Security, headed by Rep. Dick Armey (R-Tex.), shelved the repressive program. In response to the public and congressional backlash, the Bush administration announced on August 9 that it would no longer solicit tips from persons with access to our homes. Laura W. Murphy, head of the American Civil Liberties Union in Washington, hailed the administration’s “backpedaling” on TIPS, saying, “It’s quite a relief . . . knowing that even the Ashcroft adminstration is not immune to public criticism.” But the government still intends to enlist a multitude of workers to participate in TIPS this fall, leading Murphy to question whether the government has truly backed down or simply seeks to neutralize the criticism. The administration may be attempting to derail legislation which proposes to gut the program. And the Senate is scheduled to take up the TIPS program in the fall.

TIPS is just the latest manifestation of a steady dragnet by Attorney General John Ashcroft and the FBI to intimidate Americans and emasculate their civil liberties. Since the horrific attacks on September 11, Ashcroft has:

• rammed the USA PATRIOT Act, which significantly lowers the standards for surveillance of telephone and computer communications, through a timid Congress;


• inaugurated a new program of COINTELPRO-style surveillance activities, which were banned by Congress in the 1970s after civil rights leaders like Martin Luther King Jr. were targeted;


• urged federal agencies to resist Freedom of Information Act requests, a vehicle for citizens to hold the government accountable by allowing them to request, receive and publicize public records;


• ordered his agents to eavesdrop on conversations between attorneys and their clients, defying the oldest and one of the most important privileges in our society;


• indefinitely detained hundreds of men of Arab, Muslim and South Asian descent in the United States and Guantanamo, Cuba, with no charges or suspicion of terrorist ties;


• determined to set up internment camps to hold U.S. citizens in indefinite detention, and deny them their constitutional rights including the right to counsel and access to the courts;


• and, in what New York Times columnist William Safire characterized as “the new Ashcroft-Mueller diktat,” the FBI has been granted sweeping new surveillance powers, to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity.

It is essential that people feel safe and secure in these perilous times. But we cannot have confidence that turning ordinary Americans into snitches or relaxing limitations on the FBI’s spying activities will make us any safer. We must be vigilant to safeguard the liberties and freedoms under gird a democracy. That means speaking out, and writing op-eds, letters to the editor, our congresspersons, the White House and the Department of Justice, to express our concerns. The government’s backpedaling - even if temporary - from TIPS in the face of public criticism, demonstrates that we can affect official policy. If we uncritically succumb to the government’s frightening surveillance campaign, we will find ourselves in the midst of a police state.

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Civil Liberties: J. Edgar Ashcroft?

On May 30, 2002, the same day America mourned the victims of the September 11 attack and the conclusion of the Ground Zero cleanup, Attorney General John Ashcroft and FBI Director Robert Mueller III unveiled sweeping new surveillance powers for the FBI. In order to cover up its own incompetence in failing to properly analyze the data it already had before September 11, the FBI has now been given wide latitude to more effectively spy on law-abiding citizens.

Under what New York Times columnist William Safire characterized as "the new Ashcroft-Mueller diktat," the FBI will now be able to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity. The G-men and G-women can create dossiers on anyone they like, tracking the Internet sites we visit, trips we take, our political and charitable contributions, magazine subscriptions, book purchases, and meetings we attend. Anyone perceived as critical of the government is fair game for an FBI "fishing expedition." It will discredit and discourage those who seek to exercise their First Amendment right to dissent.

The relaxation of the FBI's surveillance guidelines will likely return us to the days of J. Edgar Hoover's dreaded COINTELPRO (counter-intelligence program). During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

COINTELPRO was designed, by its own terms, to "disrupt, misdirect, discredit and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King, Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights campaign "represented a clear threat to the established order of the U.S." The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of the FBI, in 1972, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies in the '50s, '60s and early 70s. After documenting the abuses of COINTELPRO, Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Those guidelines required the FBI to have a valid factual basis for opening an investigation, i.e., "information or an allegation whose responsible handling required some further scrutiny." They also mandated the investigations be "performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest." Before opening an investigation, the guidelines required that "the danger to privacy and free expression posed by an investigation" be considered.

But even with those protective guidelines, the FBI continued to spy on law-abiding people in the United States. In the 1980s, it conducted intensive surveillance of CISPES, the Committee in Solidarity With the People of El Salvador, which was formed to counter the United States government's support for the brutal Salvadoran dictatorship.

The National Lawyers Guild, formed in 1937 as an alternative to the American Bar Association which had excluded non-whites, filed a lawsuit against the FBI for unlawful surveillance of the Guild over many decades. Many thousands of pages of documents gained through discovery revealed that the FBI put agents in Guild meetings, wiretapped lawyers' offices and homes, and built dossiers on those perceived as critical of governmental policies. In 1989, the FBI settled the lawsuit, admitting it had tried to disrupt the Guild even though it had no proof the Guild was a subversive or communist organization.

An additional result of the Church Committee's investigation was the enactment of the Freedom of Information Act in 1974, in the wake of the Watergate scandal. The FOIA, one of our most significant democratic reforms, enables ordinary citizens to hold the government accountable for its activities, by obtaining public documents and records. Through FOIA requests, journalists, newspapers, historians and public watchdog groups have exposed governmental malfeasance.

Many recent revelations of official misconduct have resulted from FOIA requests. The Charlotte Observer showed that the electric utility, Duke Power Co., engaged in a creative accounting scheme to relieve it from charging lower rates to its 2 million customers in North Carolina and South Carolina. The Environmental Working Group, a Washington-based non-profit organization, published lists of recipients of billions of dollars in farm subsidies, which revealed that federal monies earmarked for small family farmers had instead lined the pockets of the huge agricultural corporations. And USA Today publicized widespread misconduct by higher-ups in the National Guard, including inflation of troop strength, misuse of taxpayer funds, sexual harassment and the theft of life-insurance payments that should have gone to widows and children of guardsmen.

In fact, as the result of three lawsuits brought under the FOIA, and a 17-year legal battle, the San Francisco Chronicle has just obtained thousands of pages of previously secret FBI records detailing surveillance of the University of California. According to those documents, the FBI unlawfully colluded with the head of the CIA to harass faculty, students and members of the Board of Regents. Several federal judges found the FBI had engaged in the unlawful investigation of student protestors, interfered with academic freedom and intruded into internal university affairs. J. Edgar Hoover ordered his agents to turn up derogatory information on UC's faculty members and top administrators. A 60-page report resulted, which said that 72 students, faculty members and employees were listed in the FBI's "Security Index," a secret list of people considered by the FBI as potential threats to national security; they would be detained with no warrants during a crisis.

The Freedom of Information Act should provide a vehicle to determine whether the FBI abuses its new powers by violating civil liberties. But in the post- traumatic stress following September 11, Ashcroft directed his deputies not to honor FOIA requests, effectively preempting the ability of the public to hold the FBI accountable for its actions.

Ashcroft and Mueller justify the new guidelines as a way to prevent additional terrorist attacks like those of September 11. The guidelines themselves, however, belie that claim. All of the changes relate to the FBI's domestic guidelines, not the international terrorism guidelines under which Osama bin Laden and Al Qaeda are investigated. The FBI is subject to two sets of guidelines. The distinction between them has nothing to do with where the investigation is conducted; both relate to investigations in the United States. The difference is in the nature of the organization being investigated. The foreign guidelines govern investigations inside the United States of foreign powers and international terrorism organizations such as Al Qaeda, which carry out activities in the U.S. The domestic guidelines govern investigations of organized crime and "terrorist" groups that operate and originate in the U.S.

Section 802 of the USA PATRIOT Act, which was rammed through Congress shortly after September 11, creates a new crime of "domestic terrorism." This section could target civil disobedience by animal rights activists who raid mink farms and set the animals free. Congressman Scott McInnis (R-Co), who convened congressional hearings on domestic "terrorist" organizations, labeled Earth Liberation Front, which was responsible for major property damage in Colorado, as a major domestic terrorist organization. Rep. George Nethercutt (R-Wash) suggested treating Earth Liberation Front like the Taliban: "I propose that we use the model that has worked so well in Afghanistan … Give them no rest and no quarter." These politicians draw no distinction between human rights and property interests.

The same day the new FBI guidelines were revealed, Mueller outlined the "FBI Priorities" as follows: protect the U.S. from terrorist attack; protect the U.S. against foreign intelligence operations and espionage; protect the U.S. against cyber-based attacks and high-technology crimes; combat public corruption at all levels; protect civil rights; combat transnational and national criminal enterprises; combat major white-collar crime; combat significant violent crime; support federal, state, local and international partners; and upgrade technology to successfully perform the FBI's mission. But although none of these priorities identify domestic activities as threats to America, the expanded powers of the FBI target domestic, not international, "terrorism."

We cannot have confidence that relaxing limitations on the FBI's spying activities will make us any safer, or make the FBI more competent. Giving the FBI more power would not have prevented its specious prosecution of nuclear scientist Wen Ho Lee, its failure to catch spy Robert Philip Hansen, or its failure to "connect the dots" leading to September 11. It will only succeed in making it easier for the FBI to monitor the activities of law-abiding people. The new FBI will pose a threat, not to the terrorists, but to the civil liberties of law-abiding people.

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The Patriotic Duty to Dissent

Reichmarshall Hermann Goering of the Third Reich once said: “It is always a simple matter to drag the people along” to do “the bidding of the leaders,” regardless of the form of government. “All you have to do,” he said, “is to tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.”

Indeed, this strategy is working in the United States. Attorney General John Ashcroft painted the defenders of civil liberties as anti-American fear-mongerers when he said in December: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.”

This is the same John Ashcroft who rammed the “USA PATRIOT Act” through a timid Congress, urged federal agencies to resist Freedom of Information Act requests, and plans to engage in new COINTELPRO-style surveillance activities.

Ashcroft’s PATRIOT Act creates a new crime of domestic terrorism so broad it will cover civil disobedience and target environmental and anti-globalization activists. Representative Scott McInnis (R-CO) has already subpoenaed a spokesperson for Earth Liberation Front, which McInnis has dubbed an “eco-terrorist” organization, to appear before the House Subcommittee on Forests and Forest Health.

No wonder Ashcroft has instructed all federal agencies to resist Freedom of Information Act requests. The FOIA, enacted in 1974 in the wake of the Watergate scandal, is one of our most significant democratic reforms. It permits citizens to hold the government accountable by requesting and publicizing public records and documents. Pursuant to FOIA requests, the Charlotte Observer recently uncovered records detailing how the Duke Power Co. manipulated its books to avoid exceeding profit limits that would have mandated a rate cut, and USA Today exposed a widespread pattern of misconduct among the upper echelon of the National Guard, including the inflation of troop strength, misuse of taxpayer money, sexual harassment and the theft of life-insurance payments.

Ashcroft also seeks to resurrect the counterintelligence programs, known as COINTELPRO, which were responsible for intensive FBI surveillance in the 50’s, 60’s and 70’s. The spying, which targeted Martin Luther King, Jr. and other civil rights leaders, was so horrendous that Congress put a halt to it.

The new “patriotic” act will permit the government to spy on all of us more easily through its aptly named Carnivore surveillance system. Carnivore devours all of the communications flowing through an internet service provider’s network, not just those of the target of the surveillance.

In mid-December, the FBI announced it is developing another new internet spying software called “Magic Lantern.” It will surreptitiously enter an individual’s personal computer, record every keystroke and zap all of that data back to the G-men and G-women, in violation of the federal wiretapping statute and the Fourth Amendment.

Many people oppose the direction of the government’s war on terror, which, Vice President Dick Cheney warns, will last 50 years and extend to 50 or 60 countries. There is opposition to President George W. Bush’s request of an additional $48 billion to enhance an already engorged military budget, at the expense of social services. Yet many fear they will be harassed for speaking out against the government in this time of xenophobic flag-waving.

Those who seek to curb the excesses of governmental repression do so at great risk. Human rights activist Benjamin Prado, who tried to document the U.S. Border Patrol’s racial profiling on the San Diego Trolley, was savagely beaten, assaulted and detained by 12 Border Patrol agents for 25 hours with no charges, after his video camera was confiscated and destroyed.

Hundreds of other people of color, particularly those of Middle Eastern descent, are currently detained in U.S. prisons. Most, like Rabih Haddad, are suspected of no crime or connection to the events of September 11; yet they are being held incommunicado, in indefinite, preventative detention, in violation of the Constitution. In a recent letter, Haddad, a Lebanese immigrant who has been in custody for 76 days in Ann Arbor, Michigan, detailed his conditions of confinement. Strangely reminiscent of the prisoners in Guantanamo, he described his 6’ by 9’ solitary cell, the camera permanently fixed on him, his lack of exercise and “waves of cockroaches” in his cell at night.

Mr. Haddad’s story brings back memories of the excesses of our government during World War II, when it interned thousands of Japanese-Americans, in a shameful and racist overreaction. In a similar dragnet, federal agents have announced they will soon begin apprehending and interrogating thousands of Middle Eastern immigrants who have ignored deportation orders.

President Bush has accused the terrorists of attacking our democratic way of life. The foundation of a democracy is the right and duty to dissent against misconduct by governmental leaders. Dissent, also unpopular in the early stages of the Vietnam War, was later voiced by a majority of Americans.

We are responsible for the actions of our government. When it fails to act in a moral and lawful manner, we must speak out and educate our fellow citizens about the abuses. If we fail to dissent for fear of governmental retaliation, we will have confirmed the truth of Hermann Goering’s frightening prediction.

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