On Monday July 11, 2016 the Bill of Rights Defense Committee/Defending Dissent Foundation joined a roundtable of civil society groups to discuss police tactics and freedom of peaceful assembly and association convened by UN Special Special Rapporteur Maina Kiai. The convening was part of a mission to the US by Kiai to assess the state of peaceful assembly and free association. BORDC/DDF used the opportunity to express our longstanding concerns about law enforcement infiltration of political and religious groups and the failures of nearly every level and branch of government to deal with the threat such infiltration poses to dissent. Below is the testimony we submitted.

Summary

In the United States, law enforcement at all levels of government, including the Federal Bureau of Investigation, routinely infiltrate nonviolent political and religious groups. Given that released law enforcement documents show that law enforcement believes these groups to have peaceful intent, it is clear law enforcement is using political or religious expression as a proxy for suspicion of criminal activity. This has the deleterious effect of discouraging peaceful assembly or free association, as individuals refrain from doing so for fear of bringing government suspicion upon themselves. While the First Amendment protects peaceful assembly and free association, all three branches of government have either failed to take adequate measure to prevent law enforcement infiltration or made it more difficult for victims of infiltration to seek a remedy. A disturbing trend is the increased use of infiltrators and informants to not only monitor political and religious activity, but to suggest criminal plots and entice individuals, who are under suspicion solely or predominantly because of their political or religious activities, to participate in them. While entrapment remains an affirmative defense in US criminal proceedings, the courts have failed to recognize such actions as entrapment.

Statement

Although the United States federal Constitution, as well as many individual state constitutions, protect the right to peaceably assembly and freedom of association, continued infiltration of political and religious groups by law enforcement, especially by the Federal Bureau of Investigation (FBI), jeopardizes these rights. What is particularly corrosive about this law enforcement infiltration, is that released documents consistently demonstrate that the groups infiltrated are not suspected of violence, and law enforcement frequently concedes they have peaceful intentions, yet the infiltration continues. Released documents show that law enforcement justifies its continuous infiltration on the basis that hypothetically unknown actors could at an unknown point in the future hijack the group in question and use it as a vehicle for their own violent tendencies.

Of course, any group, anywhere could run the risk of being hypothetically taken over by unknown actors at an unknown point in the future who have their own violent agenda. This is true just as much of a chess club as it is a civil society group peacefully advocating for changes in US foreign policy. While such a carte blanche justification for mass surveillance would be unacceptable in its own right, law enforcement specifically uses this rationale to infiltrate certain political and religious groups. The view that engaging in certain lawful, nonviolent political and religious expression means one is more likely to commit a crime is to in essence state that certain political and religious views are in themselves suspicion of criminal activity.

The infiltration is always accompanied by surveillance, monitoring, and reporting of lawful, nonviolent political and religious activities. Law enforcement, however, has increasingly been using infiltrators to not only gather information, but to suggest criminal activity and entice individuals to participate in it. The result is that the participants are arrested and incarcerated for non-existent criminal plots that they would not have participated in if not for the government suggesting they take such actions. Once again, most of the time there is no prior suspicion of criminal activity on the part of these individuals. They are solely selected based on the belief that certain lawful, nonviolent political and religious expression is indicative of a propensity to engage in criminal conduct.

This infiltration has a corrosive impact on peaceable assembly and association in the US. Most people do not wish to become criminal suspects. In some cases, infiltrators have added the names of peaceful protesters into the federal terror watchlist system, labeled as a “Known or Appropriately Suspected Terrorist.” This database is accessible to all local law enforcement when they run an individual’s name during a routine encounter, such as a traffic stop. Being labeled a known or suspected terrorist invites heightened scrutiny and harassment. Knowing that certain political and religious activity will cause one to be suspected of crime, investigated and monitored by law enforcement, or be labeled a terrorist, many individuals will refrain from openly engaging peaceful assemblies or associating with individuals based on mutual political and religious affinities. The government instigated criminal plots and attempts to entice individuals to participate in them just serves as a further deterrent to peaceful assembly and free association.

The attention of the international community is urgently needed on this matter. While the First Amendment provides protection for freedom of association and assembly, every branch of government has been derelict in their responsibility to uphold these protections. The Supreme Court of the United States has erected tremendous hurdles to even bringing challenges to these type of infiltration to court. In Laird v. Tantum, a 1972 case, the Supreme Court rejected a challenge to military surveillance of peaceful anti-war protests on purely procedural grounds. Per the court, the plaintiffs could not demonstrate a harm. Individuals who ceased their political activity because military intelligence was surveilling them, did so only out of a “subjective chill.” As a result, the court refused to even rule whether such surveillance violates the right to freedom of assembly and association. While an October 2015 Third Circuit ruling in Hassan v. City of New York, a challenge to the New York City Police Department’s suspicionless, blunderbuss surveillance of Muslims, shows that this is not an insurmountable hurdle, it has denied many people a chance to seek a remedy to the wrongs they have experienced. Furthermore, while entrapment is an affirmative defense in US criminal proceedings, courts have been unwilling to recognize the acts of law enforcement infiltrators who create and entice others to participant in criminal plots as entrapment.

Congress’s most significant attempt at limiting this problem happened in the form of an amendment to the Violent Crime Control and Law Enforcement Act of 1994 which barred the FBI from investigating First Amendment protected activity absent suspicion of criminal activity. This statutory prohibition remained for under 16 months, as it was repealed at the behest of the President, by the Antiterrorism and Effective Death Penalty Act of 1996. Since this time, in spite of repeated requests by civil society groups, Congress has shown little interest in meaningfully tackling this problem. This includes a letter sent to the House and Senate Judiciary Committees earlier this year that was initiated by the Bill of Rights Defense Committee/Defending Dissent Foundation and signed by over sixty civil society groups that asked for an investigation into the FBI’s and Department of Homeland Security’s use of counterterrorism authority to monitor peaceful speech and assembly. The fact that so many civil society groups signed this letter illustrates the widespread recognition within civil society about the threats posed to peaceful assembly and free association by law enforcement infiltration.

The Executive Branch’s most significant attempt at reform is the Attorney General’s Guidelines. These guidelines were implemented in the late 1970s in response to a Senate Investigation, which uncovered widespread political surveillance by the FBI and was meant to prevent such actions from happening again. Since then the guidelines have been repeatedly watered down and continued revelations of FBI political surveillance and infiltration of political and religious groups show that they have not been effective.

This problem of infiltration of political and religious groups is not merely a federal problem. While every state and municipality has their own laws and regulations, they are all bound by the First Amendment. There are numerous documented cases of local law enforcement using political or religious activity as a proxy for suspicion of criminal activity and infiltrating groups. It is primarily local law enforcement that has added individuals to the terror watchlist system, based on lawful, nonviolent political and religious activity. This problem exists at every level of government in the US.