This pamphlet is designed to answer the most frequent questions asked by people and groups experiencing government scrutiny, and to help them develop practical responses.
The FBI COINTELPRO program was initiated in 1956. Its purpose, as described later by FBI Director J. Edgar Hoover, was "to expose, disrupt, misdirect, discredit, or otherwise neutralize activities" of those individuals and organizations whose ideas or goals he opposed. Tactics included: falsely labelling individuals as informants; infiltrating groups with persons instructed to disrupt the group; sending anonymous or forged letters designed to promote strife between groups; initiating politically motivated IRS investigations; carrying out burglaries of offices and unlawful wiretaps; and disseminating to other government agencies and to the media unlawfully obtained derogatory information on individuals and groups.
In 1983, Attorney General William French Smith issued superseding guidelines that authorized "domestic security/ terrorism" investigations against political organizations whenever the FBI had a reasonable belief that these groups might violate a law. The new guidelines permitted the same intrusive techniques the FBI used against organized crime.
The Smith guidelines were justified by the Attorney General's observation that "our citizens are no less threatened by groups which engage in criminal violence for political... purposes that by those which operate lawlessly for financial gain." He concluded: "we must ensure that criminal intelligence resources that have been brought to bear so effectively in organized crime and racketeering investigations are effectively employed in domestic security/ terrorism cases." The guidelines provide, therefore, no safeguards to protect against infringements of First Amendment rights.
Worst, they ignore the history of COINTELPRO abuses, and abolish the distinction between regular criminal investigations and investigations of groups and individuals seeking political change. They fail to limit the investigative techniques used to obtain data on political groups, so that now the FBI may use any technique, including electronic surveillance and informers, against political organizations.
Today, the FBI may begin a full investigation whenever there is a reasonable indication that "two or more persons 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 and a violation of the criminal laws of the United States." The FBI has interpreted "force or violence" to include the destruction of property as a symbolic act, and the mere advocacy of such property destruction would trigger an investigation. Even without any reasonable indication, under a separate guideline on "Civil Disorders and Demonstrations Involving a Federal Interest," the FBI may investigate an organization that plans only legal and peaceful demonstrations.
Another set of rules governing federal intelligence gathering is Executive Order 12333, in force since 1981. It authorizes the FBI and CIA to infiltrate, manipulate and destroy U.S.political organizations, as well as to use electronic surveillance -- under the pretext of an international intelligence investigation.
A recent Freedom of Information Act request on behalf of the Livermore Action Group, an anti-nuclear organization, revealed that the Navy, the U.S. Marshal's Service, and the Marine Corps all sent agents to the Group's public meetings and kept newspaper reports of such meetings. Most chilling was the revelation that the Federal Emergency Management Agency (FEMA) -- the federal agency charged with implementing martial law in the event of a nuclear war -- was also watching the Livermore group.
Federal and state, local and private agencies, all tend to share information in a variety of ways.
Agents may be sent to interview people after FBI officials decide there is a "reasonable indication" that an organization or person meets the guidelines for a "domestic security" investigation. Such interviews are a primary source of information, for most people are not aware of their right not to talk to federal agents.
Most people are also unaware of the limits to the power of FBI and other investigative agents. Many people visited by agents are also afraid of being rude or uncooperative. Agents may be friendly and courteous, as if they are attempting to protect you or your organization, or express admiration for your organization and its goals. Occasionally, the FBI may persuade a disaffected member of an organization to give them information about other members, including their personal lives, character and vulnerabilities.
A major job of FBI agents is to convince people to give up their rights to silence and privacy. For example, after a Quaker pacifist spoke in Anchorage, Alaska, at a memorial Service for El Salvador's Archbishop Romero, FBI agents visited a local priest and interrogated him about the speaker. The agents asked about the speaker's organizational affiliations and expressed fears about "terrorist connections." The agents informed the priest that they would do a "computer check" on the speaker and his wife, and asked the priest if the two might do violence to the U.S. President, scheduled to visit the area. These interrogations were repeated in the community by agents who later admitted there was no basis for their questions about "terrorist connections" and the danger to the President.
The events giving rise to suspicions of surveillance vary widely, but a general principle remains constant: confront the suspected agents politely and in public (never alone) and inquire of their business. If the answer does not dispel your suspicion, share it with others who may be affected and discuss a collective response. Do not let fears generated by "conspicuous" surveillance create unspoken tensions that undermine your work and organization. Creating fear is often the purpose of obvious surveillance. When in doubt, call a trusted lawyer familiar with political surveillance. Please do not call the number that was printed here as the Movement Support Network Hotline, because it is no longer active, and is now the private residence of an unrelated person.
Since 1970, however, federal prosecutors may request judges to order a subpoenaed witness to testify, after a grant of immunity, at a grand jury hearing or at a criminal trial. This grant of immunity means that your Fifth Amendment right to refuse to testify is taken away. What is given to you is only the promise not to use your testimony against you in a subsequent criminal prosecution. But you can still be charged with a crime. Failure to testify after a grant of immunity is discussed on page 12 below.
The right to be free from "unreasonable searches and seizures" is based on the Fourth Amendment lo the Constitution. This Amendment is supposed to protect against government access lo your mail and other written communications, telephone and other conversations. Unfortunately, it is difficult to detect government interference with writings and conversations. Modern technology makes it difficult to detect electronic surveillance on a telephone line, other listening devices, or cameras that record whatever occurs in a room. Also common are physical surveillance (such as agents following in car or on foot), mail covers, and informers carrying tape recorders.
Announce your desire to consult a lawyer, and make every reasonable effort to contact one as quickly as possible. Your statement that you wish to speak to the FBI only in the presence of a lawyer, even if it accomplishes nothing else, should put an end to the agents' questions. Department of Justice policy requires agents to cease questioning, or refrain from questioning, anyone who informs them that he or she is represented by a lawyer. To reiterate: upon first being contacted by any government investigator the safest thing to say is, "Excuse me, but I'd like to talk to my lawyer before I say anything to you." Or, "I have nothing to say to you. I will talk to my lawyer and have her [or him] contact you." If agents ask for your lawyer's name, ask for their business card, and say you will have your lawyer contact them. Remember to get the name, agency, and telephone number of any investigator who visits you. If you do not have a lawyer, call Movement Support Network Hotline (212) 477-5652, or call the local office of the National Lawyers Guild.
As soon as possible after your first contact with an investigator, write a short memo about the visit, including the date, time, location, people present, any names mentioned by the investigators, and the reason they gave for their investigation. Also include descriptions of the agents and their car, if any. This may be useful to your lawyer and to others who may be contacted by the same agents.
After discussing the situation with your lawyer, you may want to alert your co-workers, friends, neighbors, or political associates about the visit. The purpose is not to alarm them, but to insure that they understand their rights. It might be a good idea to do this at a meeting at which the history of investigative abuse is presented.
While honesty may be the best policy in dealing with other people, FBI agents and other investigators are employed to ferret out information you would not freely share with strangers. Trying to answer agents' questions, or trying to "educate them" about your cause, can be very dangerous -- as dangerous as trying to outsmart them, or trying to find out their real purpose. By talking to federal investigators you may, unwittingly, lay the basis for your own prosecution -- for giving false or inconsistent information to the FBI. It is a federal crime to make a false statement to an FBI agent or other federal investigator. A violation could even be charged on the basis of two inconsistent statements spoken out of fear or forgetfulness.
Witnesses who, upon the request of a grand jury, refuse to provide "physical exemplars" (samples of handwriting, hair, appearance in a lineup, or documents) may also be jailed for civil contempt, without having been granted immunity.
The charge of "criminal contempt" is also available to the government as a weapon against uncooperative grand jury witnesses. For "criminal contempt" there is no maximum penalty -- the sentence depends entirely on what the judge thinks is appropriate. Charges of criminal contempt are still rare. They have been used, however, against Puerto Rican independentistas, especially those who have already served periods of incarceration for civil contempt.
Center for Constitutional Rights 853 Broadway, 14th Floor NY, NY 10003 (212) 674-3303The Center for Constitutional Rights (CCR) is a non-profit legal and educational corporation dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.
Contributions to the CCR are tax-deductible.
Additional copies or this publication can be ordered from the Center for Constitutional Rights at the address above. Your comments about this publication will be appreciated and will be useful in preparing future editions.
This pamphlet was prepared by The Movement Support Network with the help of Linda Backiel, Joan Gibbs, Jonathan Ned Katz, Margaret L. Ratner, Audrey Seniors, and Dorothy M. Zellner.
Photographs: Maddy Miller
This pamphlet is reproduced for educational purposes. I am not a lawyer, and i can not give legal advice. I did not write this pamphlet. If you need legal help, contact the Center for Constitutional Rights at the address above, or contact the local Americal Civil Liberties Union (ACLU).