Still Spying on Dissent The Enduring Problem of FBI First Amendment Abuse A Special Report Chip Gibbons 2019 About Acknowledgements Chip GIbbons is the policy & legislative counsel for Defending This report would not have been possible Rights & Dissent. Chip has advised both state and federal without the generous support of our lawmakers on the First Amendment implications of pending foundation partners: legislation and has appeared as an expert on US Constitutional craigslist Charitable Fund Law on Al-Jazeera. Chip is also a journalist and researcher whose CS Fund writings on the FBI have appeared in Jacobin, The Nation, In LUSH Charity Pot These Times, and The Washington Post. He brings all these skill Stewart R Mott Foundation sets to this interdisciplinary report. Tikva Grassroots Empowerment Fund/ Tides Foundation Defending Rights & Dissent strengthens our participatory democracy by protecting the right to political expression. We And these individuals: monitor and expose patterns and practices of government A.L. Albertson repression of dissent, and work closely with grassroots activists to Elsa Auerbach defend First Amendment rights. DRAD was formed by the merger Linda Barclay of two organizations, the Bill of Rights Defense Committee, Gene Bernardi founded in 2003 by grassroots opponents of the Patriot Act, Andrew H. Cohn and Defending Dissent Foundation, formed in 1960 by activists Rachel & Peter DeGolia targeted by the House Un-American Activities Committee. Our Peggy Dillon predecessor organization was the victim of decades of FBI Stephen Downs, CCF surveillance and was targeted under COINTELPRO. In addition Julia L. Gray to being mentioned by the Church Committee, it was later Lawrence Grunberger discovered that the FBI had maintained a 132,000 page file on our Charity & Morris Hirsch founder, Frank Wilkinson. Woody Kaplan Donald McPherson Doug Mirell Susan T. Nicholson Stephen & Lucy O'Connor Stay Connected with DRAD Celia and Peter Scott Susan Sheinfeld Visit us online at Chris Townsend rightsanddissent.org We would also like to thank Emily Read this report online Berman, Patrick G. Eddington, and rightsanddissent.org/FBI-spying Michael German for providing their expertise and feedback. Sign up for news and action alerts rightsanddissent.org/sign-up This report was copy edited by Susan Gaissert. Cover artwork by Autumn Towne. Layout and design by Maya Martin-Udry. © 2019. This paper is covered by the Creative Commons Attribution- NonCommercial-NoDerivs license. It may be reproduced in its entirety as long as Defending Rights & Dissent is credited, a link to Defending Rights & Dissent’s web pages is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without Defending Rights & Dissent’s permission. Please let Defending Rights & Dissent know if you reprint. Table of Contents 1 Executive Summary 2 Introduction 4 FBI 1st Amendment Abuse Since 2010 Confidential Informants, Agents Provocateurs, 14 and the FBI’s Terror “Stings” 16 Joint Terrorism Task Forces 17 A Brief History of FBI Political Surveillance 21 Timeline of FBI 1st Amendment Abuses 23 Current FBI Guidelines 24 Recommendations Appendix: A Century of Attempts to Reform 27 the FBI 29 Endnotes Executive Summary Throughout its history, the Federal Bureau of Infiltration, especially by informants, is a main vector Investigation (FBI) has used its expansive powers to of FBI surveillance. Since 9/11, informants have investigate, monitor, and surveil First Amendment- increasingly not just supplied the FBI with information, protected activity. As early as 1924, public concern but acted as agents provocateurs. While their behavior about the FBI’s violation of First Amendment rights and may shock the conscience of an ordinary person, the other civil liberties spurred official attempts to check courts have been unwilling to find that their actions the FBI’s power. The most recent official review of the meet the legal definition of entrapment. By far, the FBI and the First Amendment was a 2010 Department Muslim community has been a disproportionate of Justice Office of Inspector General (OIG) review of victim of agents provocateurs. Coupled with FBI the Bureau’s counterterrorism investigations into six racial, religious, and ethnic mapping, this creates real domestic advocacy groups. This report covers FBI concerns that the FBI views the Muslim community as surveillance of political activity since the OIG’s review inherently suspicious. was published in 2010. In addition to informants, local police and other federal In the nine years since then, the FBI has repeatedly agencies join the FBI in surveilling First Amendment monitored civil society groups, including racial justice protected activity. Under the Joint Terrorism Task movements, Occupy Wall Street, environmentalists, Forces (JTTFs), non-FBI agents, especially local Palestinian solidarity activists, Abolish ICE protesters, police, operate under FBI leadership. JTTF agents are and Cuba and Iran normalization proponents. frequently implicated in First Amendment surveillance. Additionally, FBI agents conducted interviews that critics have argued were designed to chill protests The FBI has no statutory charter. It is an executive at the Republican National Convention or intimidate branch agency regulated largely by the executive Muslim-American voters. branch. The main regulations are the Attorney General’s Guidelines. Since their creation in 1976, they These incidents are mostly known because of have been repeatedly revised to be less protective of Freedom of Information Act (FOIA) requests filed by civil liberties. While the FBI has always been engaged journalists, advocates, and activists, and because in First Amendment abuses, the current Attorney of reports from individuals questioned by the FBI. General’s Guidelines, created in 2008, facilitate these This information is by no means the complete abuses. Under these guidelines, the FBI is allowed picture of FBI First Amendment abuse. Many of to conduct investigations called “assessments” of these revelations suggest they are only the tip of the U.S. persons without factual predicate of criminal iceberg. FBI questioning of activists is part of unknown conduct or a threat to national security. The guidelines investigations. FOIA documents proving surveillance of also allow FBI agents to use race, ethnicity, religion, specific activist groups suggest these actions are part or First Amendment-protected speech as a factor to of larger investigations. Documents obtained through open an investigation, or to attend public meetings FOIA are heavily redacted or clearly incomplete. The without disclosing their identities. FBI gives inconsistent or contradictory responses to FOIA requestors. The evidence marshaled in this report creates a powerful case that greater oversight of the FBI is What is known is that there is a persistent pattern of urgently needed. Congress must exercise its oversight monitoring civil society activity. The FBI frequently powers to investigate FBI First Amendment abuses. It is cites its counterterrorism authorities to justify this imperative for Congress to determine the full extent of monitoring. In many of these cases, the FBI concedes this surveillance and take steps to address it. Congress civil society groups and social movements singled out also needs to impose a statutory charter limiting the for counterterrorism investigations are nonviolent and FBI’s powers. Under this charter, all investigations must peaceful. The FBI sometimes uses justifications about require a factual predicate justifying the investigation. the possibility of future violence by unknown actors Investigations involving First Amendment activity or lone wolfs to justify monitoring these peaceful must require specific and articulable facts reasonably groups. No indication is given as to why these groups indicating criminal conduct. in particular warrant such concerns, however, the FBI continuously singles out peace, racial justice, environmental, and economic justice groups for scrutiny. This is consistent with a decades-long pattern of FBI First Amendment abuses and suggests deeply seated political bias within the FBI. 1 | STILL SPYING ON DISSENT Introduction J. Edgar Hoover’s FBI was notorious for its attacks When most people hear “FBI,” they think of a law on political expression. Spying on anti-Vietnam War enforcement agency. But the FBI isn’t only a law protesters and harassing Dr. Martin Luther King Jr. enforcement agency. It’s also an intelligence remains seared into public consciousness. Programs agency. During the Hoover era, it was under the such as COINTELPRO, which sought to neutralize guise of conducting “domestic intelligence” that disfavored political organizing, or the Palmer the FBI spied on and even attempted to disrupt Raids, which saw thousands of radicals rounded groups not engaged in criminal conduct. Many up and arrested without warrants, are considered activists and scholars concerned about police quintessential examples of government abuse. brutality have started raising questions about the Even the FBI has publicly disavowed some of these very institution of the police.4 Regardless of these actions.1 But in the 100 years since the Palmer Raids, questions about the police, domestic intelligence, how much has changed? Any review of the available which seeks to gather information on so-called evidence definitively proves that, from its founding subversive elements absent any criminal