This is Part 2 of a two-part series:     
Read Part I [

    Surveillance, Infiltration, and Harassment of Environmental Organizations, Part II
    By Lauren Regan, Civil Liberties Defense Center
    t r u t h o u t | Transcript

    Wednesday 29 March 2006

Lauren Regan, Executive Director of the Civil Liberties Defense Center, spoke on the panel "Surveillance, Infiltration, and Harassment of Environmental Organizations," at the Public Interest Environmental Law Conference (pielc.org), held March 2-5, 2006, in Eugene, Oregon.

    I am going to start off by just giving you some brief overview and talking, generally, about harassment of activists.

    But, just as far as context, right now, the Constitution of the United States, and many of you might already know this, but the Constitution, first and foremost, is a document that limits the power of the federal government. It prevents the President and Congress and the Supreme Court from doing certain things, but currently, the government is of the opinion that the Constitution is an enabling document and a document that authorizes the government to involve itself in nearly every aspect of our private and public lives.

    This administration is currently taking the position that, when the nation is at war - and this is not the war in Iraq; this is a war that was never declared by Congress - it is called the war on terror, and, apparently, we are going to be in it for the rest of our natural born lives. But, because we are at war, the President believes that the other two branches of power have radically diminished roles to play in our government, and for those of you who don't clearly remember your civics classes, we have three branches of government, and they are supposed to have checks and balances on each other. They are supposed to be equal, and they are supposed to keep each other in line.

    Under the current understanding of our government workings, the President believes that when at war his branch of government supersedes that of the other two branches and that the President decides what the role to be played by the other two branches is. There is a clear example of this, which is the National Security Administration's use of warrantless surveillance and wire tapping. Basically, the NSA has been targeting American citizens on American soil with warrantless surveillance, and the President believes that this is a legal exercise of his presidential inherent powers as the commander in chief, even though it clearly violates the strict language of the 1978 Foreign Intelligence and Surveillance Act, which is also known as FISA. FISA was written specifically to govern war-time surveillance, and so, the fact that the administration is currently acting in direct contradiction of this law means that the executive branch is grabbing unprecedented amounts of power, with a vengeance, against the rights of Americans and is doing so in a secretive fashion.

    It's not just the police and FBI who are harassing activists. It's also private corporations, industry, and private detectives, and even legal activism can get you harassed for years. The rule is no longer free speech, yet we had this country where the First Amendment trumped almost everything else and free speech was one of the quintessential rights that everyone held. But, now, it's pay-as-you-go speech, which basically means that payment for your free speech comes in the form of bogus charges, lawsuits, police attending your events, writing down your license numbers, being followed, etc., etc. I'm sure many people in this room, whether you are working for a large non-profit or are just part of a small affinity group, have probably observed some of this, and lawmakers are also trying to make lawful activists into terrorists and criminals. If you've gone to any of our other panels this weekend, where we talked about the branding and labeling of civil disobedience and lawful protest with this term terrorism, you know what I'm talking about. I think you can all understand that the definition of terrorism is the intent to harm human life or an act that intends to harm human life, and yet, the vast majority of everything that we do as activists is in direct contradiction to that idea of harming life.

    But the way that lawmakers are adding to this dirty soup is by passing unconstitutional ordinances, especially in advance of specific events, especially with mass gatherings and mass protests. The cities or municipalities where these events are being held quickly enact legislation banning activists from certain areas or putting in night curfews, etc., etc. They do this in such a way that there is no time for the organizers to go to court and keep an injunction against these unconstitutional pieces of legislation, which basically forces people to get arrested and challenge these laws. And with the vast majority of them, as we saw in the WTO, the cases are being thrown out. The cities are getting these suggested protest ordinances from the Secret Service. The federal government has some templates that they are happy to give to any municipality that wants them, and the US attorneys and attorney generals are playing a big role in the drafting and implementation of these.

    An example of this that is now growing across the country are the animal enterprise and terrorist acts, or some version of them. Almost every state has some form of a bill specifically targeting animal and ecological activists. The author of one of these bills said: "The intent is to differentiate between politically and personally motivated acts and declare animal and ecological terrorism as terrorism." This particular bill that I am referencing, which is HR433, was taken from the US Sportsmen's Alliance. So, you have the anti-environmental groups, basically buying off a legislator and providing them with the language of these laws. One that I have a lot of experience with is Oregon's interfering with agricultural operations statute. This was passed by the Oregon legislature in 1999. It started off as a law that was brought by ranching and agricultural lobbying groups like the OCA, the Oregon Cattleman's Association, and it was supposed to stop things like cow-tipping and crop-circle type of things. It was supposed to cover petty vandalism in agricultural areas, not that there weren't already more than half a dozen laws that covered that, but with the dollars that they brought to the Oregon legislature, they got their own statute.

    Well, when the timber industry heard about this, they really liked the idea of it, and so they specifically legislated their industry into the law, declaring that timber is now an agricultural operation, even on federal public lands, and basically, that anyone who hindered, impaired, or impeded such industry, whether it was lawful civil disobedience or locking down to a road, would be guilty of this. The industry originally wanted it to be a felony, and the legislative counsel for Oregon determined that that was probably not appropriate, and it is now, in fact, a misdemeanor. We challenged this after the first round of Biscuit timber sale protestors, and one court in Oregon did rule that it was unconstitutional as a violation of the equal protection clause, specifically because the law gave an exception to labor protestors. Everybody was banned from doing this particular activity, except for those engaged in a labor dispute. So, if your sign said "we support loggers," you could stay; if your sign said "we hate clear-cuts," you were arrested and hauled out of there.

    This gives you an example of how imprecise and skewed some of this legislation really is. Many of the Oregon legislators are lawyers and many of them are ranchers and farmers, and some of this legislation that is being passed and becoming law is just a very poor example of precise legislation.

    The other thing that Oregon was doing was expanding its RICO laws to include actions against logging, agriculture, and animal testing. South Dakota, California, and Florida have all passed laws that make midnight gardeners, those who uproot genetically engineered crops, pay at least two times the value of the crops, specifically in the legislation. So, I am sure many of you are familiar with the flood of legislation across the country, from the city level to the federal level, that is being passed by these industries to try to restrict our First Amendment rights.

    In the early '90s, laws were passed regarding laboratories. It is illegal to film outside or have even a copy of a video that is filming even the outside of a laboratory. Now, the old rule was that anything you could see in the public domain, anything that was in public, could be viewed by you, me, the police, the FBI, anyone; but now that right to the public domain has been specifically restricted if you dare to shed the specter of light on animal torture facilities in our country, and I believe that the reason for that is because the drug industry and the animal torture industries are such powerful billion-dollar corporations that they are legislating rules through use of their money - basically, in essence, industries buying law.

    The police and federal government are working with the private sector and corporations to also further the harassment of lawful activists. The feds, regularly, will call corporations and give information about activists on their individual lists. For example, there was a campaign against a hospital, where there were about 70 people at demonstrations doing completely lawful first-amendment activity and not even any civil disobedience that would have been a crime. The police said that they were interfering with the business in the entire area, took mug shots of all of the activists, blew them up and gave them to all of the corporate offices, and gave the corporations a direct phone line to the head of the police department in that particular town. They are also using business associations as spies. Many business associations have their own rent-a-cops that they are sending out to do the work of the police department, and they have regular meetings with law enforcement to confer and get their next assignments.

    They are also giving names of activists to companies for lawsuit purposes, especially SLAPP suits, which are probably more popular in California than here, at this point anyway. They are making bogus arrests or stops simply to get the names of lawful activists and also stopping cars for seatbelt violations or other little weird things, so they can take a look at your license and go write your name in their police computers. They are lying on police reports to make activists look guilty after a bogus arrest, particularly in an instance where an activist is injured at the hands of law enforcement. It is amazing how many times that those people who got the shit beat out of them were also resisting arrest as their only crime.

    Private eyes are working with the FBI to share information, and this is basically becoming kind of a revolving door, where industry and FBI and private security are all working together, and we are the target of that. A pretty clear example of that is Monsanto Corporation, who has a historic and incredibly egregious reputation and record for sharing ridiculous information with the government, for the last 30 years.

    So, surveillance and infiltration ... You know, this is nothing new. History repeats itself, often, and up until January of 2001, guidelines for surveillance and infiltration of protected political activity required prior criminal activity, meaning they could not monitor your organization unless they had some evidence of prior criminal activity; however, since then, there has been a major relaxation of the 1976 Attorney General guidelines, and currently, spying and infiltration of political groups at meetings, data mining services, and searching public databases on the Internet have been used widely, and the reason that the government is giving for this is to find terrorists.

    The 2003 FBI internal newsletter encouraged agents to step up interviews with antiwar activists: "for plenty of reasons, chief of which it will enhance the paranoia epidemic in sub-circles and will further serve to get the point across that there is an FBI agent behind every mailbox." This was in 2003, and, for those of you who haven't read Fahrenheit 451, this might be the time to go to your local library and check that one out. We have seen, especially with regard to the eco-cases going on right now in the Northwest, that infiltrators and informants have been being paid to advocate and provoke further acts of criminality, paying for the rent of houses, paying for supplies being used in various actions.

    Other government employees have been doing police work, like code compliance officers, welfare workers, and other types of government agents, who are also being used to bring information back to the FBI. I think everyone remembers TIA, Total Information Awareness. Remember when the government tried to launch this campaign where your postal person or your neighbor should rat you out for anything they see that is suspicious. The symbol of it was that pyramid with the eyeball in the middle of it. That kind of didn't go anywhere because of the public backlash, but in fact, it is continuing to go on, without them doing a press conference about it.

    Let's see ... FBI visits to activists, and we call these friendly visits - another tactic that the FBI is doing is going to new activists and telling them untrue stories or horror stories about the groups that they want to work with. A really bizarre example of this is a local animal rights group where two very young, new college activists were visited by the FBI, and they were told that the members of the group that they had just gone and done this public event with had liberated some puppies and then killed them because there was nowhere for the puppies to go. Of course, this was a total lie, and luckily the activists brought back to their group this information, which tended to shed some light for them on the extent to which the government was willing to go to destroy the good work that they were doing. I think that many of us were raised on this adage that the more the FBI is focusing on you, the more effective your group must be, and I think this group was doing a great job of rallying support around puppies in medical labs. This was on a university campus, so the university and its foundations were active in that, as well.

    Another situation going on is the no-fly lists and harassment of activists at airports. Many of you may have had this lovely experience on your way to Eugene. Many activists have reported being given different boarding passes than other passengers on the airline that require a new mark on those boarding passes at every stop. Airports and the TSA have been given their own security lines for activist lists, and there has been an increase in interrogation of activists at airports. There also have been implemented watch lists, which, if any law enforcement officer has any contact with you, even for a traffic stop or something mundane, law enforcement is required to call the FBI and report your location. There was also an instance of people being surrounded at the Department of Motor Vehicles when they went to renew their driver's licenses and an attempt at interrogation by law enforcement in those situations. At the end of December of 2004, the first animal rights activist was denied a flight because she was a "terrorist." She was handcuffed and interrogated but never arrested and never charged for a single crime. We also have some instances of Green party candidates, during the 2004 election, who were denied a flight as a result of their political activities and their political work.

    Another facet of activist harassment is grand juries and subpoenas. I am only going to briefly mention grand juries, a.k.a. witch hunts, fishing expeditions, which historically have been used not only investigate and acquire information about activist groups but, also, to break those groups apart. There have been a lot of problems with solidarity and the fractioning of organizations as the result of grand jury investigations. FBI raids are a pretty regular part of the fabric of today. There has been a lot of documentation of the FBI taking things that were not authorized on search warrants, searching your roommates' belongings, and contacting your family members to tell your mom and dad that they are looking for you and where do you live, when they already know where you live, and other things like that. The other big thing is searching your literature, to see what books and other publications you might be in possession of, to try to psychologically profile you by what you are reading, what your beliefs are, what your ethics are, etc.

    The other thing I wanted to touch on is the disparate treatment of activists by law enforcement, especially at protests. If a protestor is walking with a heavy sign, the police officer will say you have to cross the street or you are not allowed to be on a public sidewalk, but right behind that person will be somebody pushing a double-wide baby carriage, and everybody parts the sidewalk and lets them through. This has been a serious issue with anti-choice rallies or pro-choice rallies, where pro-life people will be being protested, or there will be a counter-protest. They will get violent, and law enforcement will do nothing. But for a pro-choice protestor, if someone even touches that person's sign, they will be immediately arrested. We have seen law enforcement using their own discretion in these types of protests to determine who they feel is asking for it.

    Law enforcement making up laws as they go ... If they want to break up a protest or they want to take somebody into custody, but they don't really have a reason, they will make something up. They will falsify police reports, like I said, in order to corroborate taking somebody into custody. A great example of this that I read about is the police arrested a man for evidence of home-made pepper spray, which turned out to be peppers, onions, and other vegetables. They called this ammunition and arson material and arrested him for that.

    Demanding to see activists' IDs ... Hopefully, you went to our "Know Your Rights" training yesterday. If you happen to have missed it, I brought a bunch of "Know Your Rights" brochures, and I am not really going to touch on when you have to show ID versus when you don't have to show ID, but come grab some literature if you're not familiar with that.

    The other tactic that is being used is an exaggeration of threats, and what I mean by that ... I am going to give you an example: Liberation Weekend is a conference of grassroots activists at the West LA School of Law, and it took seven police cars and a helicopter to arrest seven people for seatbelt violations. They were separated for interrogation, their cars were searched without consent, and they confiscated ... a guitar. Wow, there was definitely a crime there.

    There was a Jeff Luer event here in Eugene not so long ago. It's just an annual, totally legal get-together to talk about people who are in prison for the rest of their life, and the FBI sent out a national press alert, telling all law enforcement across the globe that there were going to be riots and mayhem and all these other things on this particular day. Of course, there wasn't anything that happened at all that was illegal.

    Confiscating cameras and re-using or erasing tapes is another tactic that we see pretty regularly. We've seen pre-emptive arrest, which violates both the fourth and fifth amendments, where someone is arrested in advance of a protest or a rally in the hope that by taking out the leader, the event will not be able to go forward. Do they really think we're this stupid? And, then, of course, the traditional old cop-initiated violence, where the police are being the initial aggressor and then, when a reaction happens all hell breaks loose. The use of chemical weapons and less than lethal force is growing, and we are seeing all these new torture devices that they are wielding at some of these mass protests around the globe, and of course, there have been a lot of lawsuits that have followed many of these.

    Excessive charges, excessive bail, and excessive sentences, obviously meant as major intimidation tools ... We are seeing this right now with the eco-cases, where people are facing life to 335 years in jail for property destruction. Setting examples, they are giving people excessive jail time in order to deter others from even thinking about holding that sign on a public sidewalk, and also, trying to create precedent. You know, if someone can get 23 years for burning the tires of three SUVs, what could you get for doing something more than that? The contrast to that, of course, is that we regularly see people who kill people in drunk driving crashes who get 18 months. One of the Oklahoma City bombers just got released this month, after serving less than 10 years of a sentence for killing 147 human beings, and yet people within the environmental movement or the animal rights movement are facing life in prison for burning a horse corral that was turning wild mustangs into dog food.

    Excessive bail is another way that they are punishing activists before the courts have a chance to even hear the case. The other thing that we see going on are lawsuits, basically fishing expeditions, that are brought by private industries through SLAPP suits or other ways. This is an incredible expense and inconvenience to the people that are subject to it. Often-times, they are seeking large monetary damages, millions and millions of dollars. There have been occasions when activists in the environmental movement have been facing million-dollar or larger monetary debts as the result of being sued by the timber industry and others.

    RICO suits (RICO is racketeering) have been threatened and brought with increasing regularity; however, there was just a US Supreme Court case in the last couple of weeks that was actually brought by the anti-choice movement, but the ruling was that racketeering charges could not be used against these types of organizations, and so we are hopeful that this will put the kibosh on that threat. Obviously another major factor of all of this activist harassment is vilification. In the media's eyes, they are trying to make these organizations look like something that they are clearly not. I think most of us recognize that fact as well.

    This is a quote from US Representative George Nethercutt, who is a Republican from Washington. He spoke during a hearing entitled Ecoterrorism and Lawlessness on the National Forests, in 2002, and he told the world, "National environmental groups need to know you are either with us or against us. You need to choose which side you are on and know we will be watching. These dangerous and misguided zealots must be left without aide or comfort. This is the moral framework."

    Media, especially corporate media, has been more than happy to support this type of vilification. When the eco-activists first were indicted and people were first being arrested, it was interesting to look across the mainstream media and see how many people swallowed the allegations that were being made by the feds, who branded these people who are innocent until proven guilty as eco-terrorists and began to recount the statements of a heroin-addicted snitch as if they were facts that were found by a jury.

    Finally, one of the last couple of things I want to touch on is the IRS. Another way that they are targeting activists, which is a less than subtle way, is by Internal Revenue Service investigations ... Did you pay your taxes, and, if so, how much? This is a way for them to crawl into your wallet and figure out your financial situation. It has resulted in a lot of audits, and this is not only of private individuals but also of nonprofit organizations, with Congress attacking the nonprofit status of PETA and some of these other groups. This is all coming out of the IRS and the federal government. There was a complaint against RAN, the Rainforest Action Network that said nonviolent civil disobedience violates nonprofit status. PETA has also had similar charges from the Center for Consumer Freedom, for contributing to the defense fund for an ELF spokesperson. That is why their nonprofit status was threatened, because they gave a tiny, tiny bit of money to a legal defense fund.

    Another way that activists have been harassed is in the permitting of large demonstrations. If any of you are part of RNT, BNT, or any of these global protests that have been going on, the Supreme Court has held that public inconvenience, annoyance, or unrest are not sufficient reasons for exemptions to the First Amendment, meaning that these excuses that law enforcement give about why they won't give a permit to particular people have been ruled to be unconstitutional by the Supreme Court at this time; however, during the 2003 anti-war protest in New York City, in the final days before the protest, the city refused to even discuss the possibility of a march. The City of New York and the Second Circuit Court of Appeals refused the right of anyone to march anywhere in the city, period. In a brief, the Department of Justice urged the court to give significant weight to security issues arising from the September 11 attacks. I personally wonder how long this excuse will still hold water with the vast majority of Americans.

    Content-based permitting, meaning it depends on what you what to protest whether you get the permit; liability insurance requirements, making you get bazillions of dollars in liability insurance in order to have a permit march, which, of course, for most organizations, is the nail in the coffin; a First Amendment fee ... This is interesting. The fine print in Seattle says that a failure to pay the $50 First Amendment fee may result in a denial of subsequent permits ... Let's see ... Terrorism Surcharge ... I'm not making this up! In the event it is the target of a terrorist attack, you're covered, and some cities are requiring this at this point. They are also requiring deposits in advance for law enforcement. You now have to pay for your own police presence at your event, and, at one demonstration in Little Rock, Arkansas, the police department spent their entire annual budget for one lawful demonstration and then bitched and moaned to the taxpayers that they had no money to do regular law enforcement. Of course, that was their choice.

    There have been a lot of reports about the fact that 90% of all immigration complaints are being prosecuted by the federal government right now, but less than 5% of civil rights violations have been prosecuted in the last five years. So, what are the reasons for and intent or affect of activist harassment? Obviously intelligence building, obviously intimidation, and I think, primarily, vilification of our very effective, successful movement. Resistance movements have been an integral part of our democracy. Without debate and without dissent, we do not have a democracy, and so the silencing of this by the federal government, in my mind, is directly contradictory to how we, as a nation are supposed to be operating and how we are supposed to be encouraging freedom.

    Yesterday, I heard a joke that we should change the spelling of freedom to d-u-m-b, because there is just so much information coming out to the American people right now. We are all being overwhelmed with all of these new laws and legislation, and no one, even professionals who get paid to do this all day, can keep track anymore of what is going on in our own government. So, that will be my conclusion.

    As far as being a little bit optimistic in what we can do: Be very vocal. Get it out to your papers. Don't feel like you should keep this a secret and keep it silent. Shedding light on it is a great way to put an end to it. Don't isolate yourselves. Do your research. Track down private eyes and corporations. What they are doing to us, we can do back to them, through investigation and research. Forest Ethics seems to have a lot of corporate campaigns, and they go in and research corporations in depth. We can all do that in our different groups. Don't talk bad about other activists unless they are a danger to your community and you have really good information about that. Be aware of who is in your house. There is some amazing security software, but I'm not going to go into too much detail.

    At events, have a plan for a getaway. Make sure everyone follows and knows some of the tactics that have been used in your community, like pop-up lines, which is when all of a sudden you look, and you've got 900 police officers with machine guns staring at you. Don't write down passwords, wipe your hard drive, re-install your software, have firewalls, etc., etc. This is not just for ELF or ALF. This is for all of us, including the environmental lawyers, because we are being hacked by industry. Don't use your home to do activism, unless you are willing to have the repercussion of potentially having law enforcement show up there. Make backups of your stuff and store them off-site, somewhere else, and don't leave anything in your car that could be used against you, not only because it could be stolen; but, in your car, you have fewer fourth amendment rights to your possessions and searches within your vehicle than you would in your home or other places.

    And, then, this morning, in this regard, there was an article entitled Spying Authority Implicitly Given, Officials Argue. This is about George Bush again trying to justify his warrantless spying, and it says, "The justice department has asserted that Congress implicitly granted President Bush the power to secretly order interception of some overseas calls and e-mails made by Americans in the United States. 'Eavesdropping is part of the war,' the administration maintains, 'and the battlefield includes the United States.'" So, there is our rhetoric for today, in the Eugene Register Guard.