Every move you make ... Activists who have lost civil liberties protections in the wake of 9/11 are now watching their backs.
"Surveillance was always a prerequisite to action," said Perez, noting that cops blurred the line between watching and acting. "Agents used to go around my neighborhood and tell people we had weapons and were going to plant bombs. They'd send provocateurs into our meetings and get close to the defense and security leaders."
Perez speaks of a time when the intelligence divisions of local police departments kept a steady eye on political groups across the country. By the 1980s, activists had used journalistic muckraking, lawsuits, and new legislation to expose and restrict abuses resulting from intelligence-gathering of constitutionally protected political activity. In Chicago and New York, class action lawsuits brought by activists produced new restrictions on political policing.
But the post-9/11 climate has given police new openings to loosen the protections that emerged 20 years ago to prevent such civil liberties violations. Over the last 18 months, the dry administrations of Chicago and New York have won the repeal of these legal settlements in federal circuit courts. Changes in local policy parallel those in national policy, and it all adds up to the imminent loss of free speech and the right to assemble.
In the last century, political intelligence units, often referred to as Red Squads, targeted dozens of organizations and carried out political objectives far removed from crime prevention, The range of tactics included undercover surveillance, infiltration, and destroying organizations' credibility. Working with federal law enforcement agencies like the FBI and the DEA, Red Squads set out to discredit leaders, disrupt unity, and prevent militants from gaining legitimacy. The squads did the most damage in the 1930s and 1960s, periods of grear economic and political unrest. Many were disbanded or curtailed by court order in the 1980s.
Although police also targeted white groups, organizations with a racial raison d'etre suffered the harshest dealings in police campaigns to preserve the racial order. The FBI relied on local police departments to carry out COINTELPRO, the Counter Intelligence Program. COINTELPRO papers, released in the late 1980s revealed that local police and federal agents infiltrated and agitated the Black Panthers, the Young Lords, the Brown Berets, and the American Indian Movement in the 1960s and early 1970s. In New York, police infiltrators befriended Black Panthers, advocated violence, and planted evidence.
New York activists restrained political policing with a groundbreaking class action lawsuit, filed in 1971 by the Black Panthers and members of Students for a Democratic Society, which charged the New York Police Department with unlawfully conducting surveillance and other investigations against them. It cited examples like those of the Panther 21 and Robert Collier, who were arrested and tried for plotting to blow up landmarks, only to be acquitted when it was revealed that the police had set them up.
These plaintiffs won a settlement that was written into a 1985 federal court decree named for plaintiff and former Black Panther lawyer Barbara Handschu. Under the Handschu guidelines, the police department would have to prove to a three-person Handschu Authority that a group's activities were criminal before initiating infiltration, wiretapping, or searches.
This year, that mechanism became a casualty of the political climate. In September 2002, the NYPD requested relief from Handschu, claiming it was a barrier to preventing terrorist attacks. In February, a federal judge replaced the Handschu order with new internal "Guidelines for Investigations Involving Political Activity." Under the new guidelines, police still need high-level permission to spy, but they no longer have to prove criminal activity or deal with external oversight to launch full-out surveillance. The new guidelines are internal to the NYPD; violating them will not cause trouble between the department and the federal court, as violating the Handschu decree did. A similar decree for Chicago was overturned in federal district court early in 2002.
This April, following the massive February 15 demonstration against war in Iraq, the four original Handschu lawyers flied a new motion to require that the internal guidelines become accountable to the federal court. The NYPD continues to insist that it complied with Handschu, will comply with internal rules, and does not need court oversight.
Federal laws create a launching pad for this kind of local intelligence gathering. Through the USA PATRIOT Act, Congress legalized or broadened the use of surveillance tactics in tracking communications, financial interactions, immigration violations, and educational patterns. Both federal and local law enforcement agencies have used the PATRIOT Act to subpoena Internet service providers to turn over subscriber information, track e-mail, and follow a person's web surfing. Providers such as Quantum, AOL, and Earthlink have said they have no choice but to cooperate if authorities provide the appropriate documents.
The act includes other provisions that help law enforcement gather leads. It requires libraries, businesses, and schools to forward lists of foreign students, reading preferences, and registration for educational activities. Such cases have made headlines in recent months. For example, the owners of a Beverly Hills diving shop revealed that the FBI was trying to identify anyone who had ever taken a scuba class; a social studies teacher in Oakland turned over two Southeast Asian immigrant students to the Secret Service when they joked about assassinating President Bush; and in January, the American Library Association called for the repeal of the Act's Section 215, which allows law enforcement to look through library and bookstore records. The expanded notion of what might lead law enforcement to terrorists has come to include political activity, both for federal agents and local police. Increasingly, police have defined terrorism as the use of force to "intimidate or coerce a government, a civilian population ... in furtherance of political or social objectives." Threatening activities include any that "prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation." Under these kinds of definitions, the California Anti-Terrorism Information Center (CATIC) considered causing a traffic jam alarming enough to send a warning to the Oakland Police Department about an antiwar protest planned for the Port of Oakland; police greeted the peaceful protesters, whom CATIC had said would likely have Molotov cocktails and other weapons, with rubber bullets and wooden slugs in what has been called the most violent confrontation between Iraq war protesters and police nationwide. The Denver Police Department has recently been chastised for gathering "antiterrorism" intelligence, much of it faulty, on Amnesty International members and the American Friends Service Committee.
Ron Hampton, a retired police officer from Washington, D.C., and director of the National Black Police Association, said that departments everywhere have awaited the chance to free themselves of guidelines like Handschu.
"September 11 opened the floodgates for intrusive stuff they wanted to do all along," said Hampton, who has fought to reveal racism inside police departments. "If we turn over the cameras, we will find ourselves in a police state."
New Violations, Old Paranoia
In New York, the police are pushing against the fine that separates civil rights violations from routine surveillance. Activists have criticized most of the NYPD's dealings with recent anti-war demonstrations.
In April, the New York chapter of the American Civil Liberties Union (NYCLU) released a report challenging the department's handling of the February 15 United for Peace and Justice demonstration. The report claims the police denied the group a permit to march, confined protesters illegally, ran horses into crowds, and videotaped protesters. Leslie Cagan, director of the peace group, said that these police actions added tip to "preventing people from getting to the rally and using their voice."
The NYCLU report, based on interviews with 335 unnamed demonstrators, cites repeated examples of free speech violations and police abuse. A demonstrator from the Solidarity with Palestine contingent said an officer told her group they could not chant without a sound permit. Others said that cops ripped signs and banners out of their hands and destroyed them. The NYCLU said protesters were denied access to lawyers, driven around in vans for hours, refused requests to use bathrooms, handcuffed too tightly, and left to wait outdoors for booking in freezing weather. Many protesters reported being politically interrogated by police, who used a "debriefing form" to ask questions about party affiliation and views on U.S. foreign policy.
Police Commissioner Ray Kelly defended the questioning as necessary to developing crowd profiles to help the NYPD prepare for future arrests.
Now it appears the department has stopped using the form, but not asking the questions. On May 5, Rose Mishaan from Jews for Economic and Racial Justice and Rafael Mutiz from Youth Ministries for Peace and Justice were arrested after a series of "Homeland Resistance" civil disobedience actions at Manhattan's federal building. The two said that police were physically aggressive, asked political questions, and verbally abused the group's gay, lesbian, and immigrant members.
Mutiz said that officers' comments revealed their biases. "One guy with an accent--an officer told him, 'You don't have the right to protest.' A queer woman was told while she was being searched by a woman officer, 'Pretend I'm a man and you'll like it.'"
Controls like Handschu are especially important for keeping individual cops from acting on their racial biases, said Ron Hampton. "What an individual officer does is based on his own determination of who's subversive and dangerous and who's not. You have to safeguard against an officer bringing that to work every day."
Heightened surveillance has made activists of color especially wary. Maya Sen, an Indian American leader in the New York chapter of the multiracial anti-war group Not in Our Name, said the group has been fastidious about security since it was founded to protest the Afghanistan war. They hide their membership lists and don't make people sign in, and members never leave the office alone. Although Sen can't prove it, she feels certain that she has been followed home from meetings.
Anxiety has spread beyond anti-war organizers to all groups that have large numbers of immigrants and people of color. A week before an action in which five anti-poverty groups gave Mayor Michael Bloomberg a report card on welfare, housing, and job training, Jennifer Flynn, a white organizer with the mostly black and Latino New York City AIDS Housing Coalition, had unnerving run-ins with detectives. A police officer questioned Flynn about the groups' intention to go to Bloomberg's house. When Flynn said they hadn't finalized the plan, the officer began waving around a paper formatted like an e-mail.
"I asked him, 'How did you get that?" said Flynn, "and he said 'Jennifer, we read all your e-mails, particularly when you're going to the Mayor's house. These are special times. We don't just let these things happen.'"
Given the racial history of the NYPD and the current police focus on Muslims, Arabs, and South Asians, repression is likely to hit immigrants of color hardest. Polls by Harris, Gallup, and ABC News/Washington Post show that a majority of Americans believe that fighting terrorism justifies racially profiling these communities.
Meanwhile, immigrant communities often lack the resources to monitor police.
"They don't have resistance infrastructure built up," said Richie Perez. "Not enough lawyers, watchdog groups, media critics. You need all these things to fight back."
Monami Maulik, director of Desis Rising Up and Moving (DRUM), which has fought on behalf of South Asians in INS detention since 2000, says she assumes that their Jail Hotline is tapped since the government monitors contact between detainees and advocates. Later, she discovered that DRUM's office number had been blocked for incoming calls from prisons even though no one at their office had requested such an order.
"A number of our members were detained because of political activity, either here or at home," said Maulik, "because of literature found in their apartments, or groups they've been in."
Learning from History
Removing Handschu may open the door for a revival of the abusive local police units the order was designed to control. They were generally known as Red Squads because of their stated goal of fighting communism and subversive labor and community organizing.
"The squads operated against every constitutional protection to destroy peoples' lives, harass them, tell on them to friends and employers," said Vijay Prashad, history professor at Trinity College. "In many ways, they had greater power than the FBI because they didn't have to play the federal-local power games that often impeded FBI techniques."
In a response to the Handschu suit filed in the early 1970s, then Police Commissioner Patrick Murphy noted that people did not have to be criminals; mere expression of discontent was enough to draw attention. The department developed huge intelligence files in that time: approximately one million records on 200,000 individuals and organizations.
Police directed more than surveillance at top black liberation leaders. Malcolm X's bodyguard, who gave him mouth-to-mouth resuscitation after he was gunned down, was an NYPD infiltrator. The trial of the Panther 21, accused of plotting to bomb department stores, revealed that undercover local officers had advocated the bombing and exaggerated the group's criminal activities.
Despite those revelations, the NYPD continued tailing and framing Black Panthers. Yuri Kochiyama, a young mother living in Harlem and a close friend to Malcolm X, recalls: "The police used to follow everybody, but they hated blacks most of alL It only took the police three years to smash the Panthers this way."
Winning and Losing Privacy Controls
One year after 9/11, the NYPD rendered Handschu a historical artifact.
"It is difficult to imagine a state of affairs more outdated by the events of September 11," wrote local intelligence chief and former CIA operations director David Cohen. "[The agreement] dangerously limits the ability of the NYPD to protect the people."
Records show that the Handschu Authority, composed of two police officers and one civilian (appointed by the mayor and police chief), rarely denied surveillance requests.
The remaining debate over Handschu centers on whether the court will oversee the new internal police guidelines.
"We want the court to put the new guidelines into the old framework," said Franklin Siegel, a CUNY law professor who worked on the original Handschu lawsuit. "They want this massive intelligence operation without a federal court looking over their shoulder. They'll fight very hard to maintain the ground they've won."
Given that controls on police have never been strong to begin with, many groups realize they have to organize intelligently enough to deflate the potential effects of dirty policing.
The most important thing, according to Richie Perez, is to keep working. During the height of police surveillance, he recalled, the Young Lords spent more time purging their membership than they did actually organizing. Eventually the organization retreated so far into itself that it died.
"Our fear of the police made us stop organizing," Perez said. "We started thinking that our small group, which never recruited anybody new, was the revolution. That was the beginning of the end."
Rinku Sen is publisher of ColorLines.
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|Date:||Sep 22, 2003|
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