What happened was that almost immediately after Bush launched his war on Iraq, a strange, twisted logic took root among law enforcement but with encouragement from highest levels of the Bush Administration: that since we were fighting a “war on terror” and Iraq was part of that war, those who opposed war on Iraq were somehow aligning themselves with the terrorists. The FBI immediately began to monitor the anti-war and other marches that prior to that time, were seen as none of the FBI’s business. At most, the marches and rallies, prior to that time were seen as the concern of local and state police. But all of a sudden, the marches and protests literally became a federal issue. An exam given by the Department of Defense equated protest with “low level terrorism”.

DOJ IG Glenn Fine, who I’m guessing was just pre-occupied with complaints of round-ups and other infringements he considered more serious, punted the issue of the legality of the advice in the FBI’s Intelligence Bulletin 89 back to, of all entities, the FBI! So of course the FBI found there was no problem with their own impermissible blurring of the legal with the illegal as you can see in their public response. Then the FBI went after the messenger: NY Times writer Eric Lichtblau. His Department of Justice press pass was yanked. Read the pages of Lichtblau’s book, beginning at pg 121, that I linked to above.

By the way, this constituted, at the very least, less than the clear, helpful legal guidance for the hundreds of thousands of police officers in this country that the FBI Bulletin was sent to. When they should have been getting good legal training from attorneys like former assistant U.S. Attorney Khouril who wrote this article on how to make the distinction between what’s protected under First Amendment with what constitutes criminal action, they instead got this inflammatory and confusing warning with the list of legal actions they were encouraged to report to the FBI. The Bulletin was worded to lead most people (certainly the average police officer) to believe there’s something illegal and wrong with protest activities, that it’s the first step to more serious terrorism.

It’s hard to go back now to how the idea of treating protesters as low-level terrorists got started because we’ve all become so desensitized to the issue after the 2004 and 2008 political conventions and other “National Special Security Events”. But EarlofHuntingdon is totally right when he asks: “I don’t suppose the feds raiding a protester’s home would have a chilling effect on all protests or the organizing of people peaceably opposed to the policies of the current administration? As in the Middle East, is it possible that violent overreaction under color of law will have an affect on radicalizing protest, in part serving as after the fact justification for this level of over-control?”

The over-reaction and framing of protesters as terrorists has ultimately served to radicalize and alienate normal citizens. In other words the FBI and law enforcement, in ratcheting up the “us vs them” attitude and moving away from the more public-safety oriented “community policing” model, has ended up creating what they said they were against. Of course the statistics the FBI is able to submit in the wake of arrests and convictions at “National Special Security Events” keeps them looking like the FBI is making progress in the domestic “war on terror” when in fact they are at least in part responsible for creating the underlying problem.

It’s mind boggling how counter-productive this internal “war on dissent” has become.

I made a complaint to the DOJ Inspector General about this improper blurring but the FBI whitewashed my complaint and then retaliated against Eric Lichtblau at the NY Times for writing about it. See Bush’s Law book, beginning at bottom of pg 121.

FBI Response to Media Misinterpretation of its Law Enforcement Sensitive Intelligence Bulletin, dated 10/15/2003.

A November 23rd article in the New York Times raised grave issues about information sent by the FBI in its sensitive weekly information-sharing bulletin to the U.S. law enforcement community.

Accordingly, we are taking the unusual step of posting for public scrutiny both the FBI’s response to the Executive Editor of the New York Times about these issues and also the full text of the Bulletin itself, as follows.

Letter to the Executive Editor of the New York Times:

In his November 23, 2003, article “FBI Scrutinizes Antiwar Rallies,” Eric Lichtblau cites a recent FBI intelligence bulletin as evidence that the FBI has begun to target antiwar protesters and to gather intelligence on peaceful demonstrators in a coordinated, nationwide initiative. Nothing could be further from the truth, and we feel it is important to set the record straight.

Mr. Lichtblau acknowledges at one point that the FBI has focused on “identifying anarchists and ‘extremist elements’ plotting violence, not at monitoring political speech of law-abiding protesters,” but then creates several misimpressions about the true nature of the FBI’s efforts.

First, nowhere in the bulletin cited in Mr. Lichtblau’s article does it suggest that the FBI is conducting “a coordinated, nationwide effort to collect intelligence regarding demonstrations.” The bulletin is not focused on political protesters or others who exercise their first amendment rights to protest the policies of the government, but simply cites the fact that anarchists and others have used violent tactics to disrupt otherwise peaceful demonstrations. The bulletin then discusses the tactics that state and local law enforcement departments may encounter when policing large marches and rallies. The bulletin does not suggest that state and local law enforcement should collect information on peaceful demonstrators.

Second, Mr. Lichtblau incorrectly implies that the issuance of new Attorney General Guidelines that permit agents to attend political rallies and other events that are open to the public has resulted in improper domestic intelligence gathering. The Attorney General Guidelines permit agents to attend such rallies only “[f]or the purpose of detecting or preventing terrorist activities,” and explicitly prohibit “maintaining files on individuals solely for the purpose of monitoring activities protected by the First Amendment.” We scrupulously follow those limitations, and we do not investigate or maintain dossiers on persons because of their “political activities.”

Finally, the last paragraph of the article is wrong to suggest that the FBI is targeting “civil disobedience.” Civil disobedience did not cause millions of dollars in damage from fires set during the World Trade Organization meeting in Seattle. Nor was it civil disobedience to prepare molotov cocktails in preparation for an IMF meeting in Washington, D.C. Those activities, and not the peaceful expression of political dissent, are the focus of our efforts.

The FBI is committed to protecting the constitutional rights of all Americans, including those who oppose current policies of the government. In order to do so, we must make law enforcement aware of the tactics of those who wish to impinge on those rights by violently disrupting otherwise peaceful marches and assemblies. The bulletin described in Mr. Lichtblau’s article was intended to do just that.

* * *

Full Text of the FBI Intelligence Bulletin #89, 10/15/2003:

THREAT LEVEL UNCHANGED: YELLOW (ELEVATED).

THE FBI INTELLIGENCE BULLETIN, DISSEMINATED ON A WEEKLY BASIS, PROVIDES LAW ENFORCEMENT WITH CURRENT, RELEVANT TERRORISM INFORMATION DEVELOPED FROM COUNTERTERRORISM INVESTIGATIONS AND ANALYSIS. THE INTELLIGENCE BULLETIN DOES NOT CONTAIN THREAT WARNING INFORMATION.

HANDLING NOTICE: Recipients are reminded that the Intelligence Bulletin is designated “Law Enforcement Sensitive,” and should not be disseminated beyond law enforcement circles.

ITEM: TACTICS USED DURING PROTESTS AND DEMONSTRATIONS

On October 25, 2003, mass marches and rallies against the occupation in Iraq are scheduled to occur in Washington, D.C. and San Francisco, California. While the FBI possesses no information indicating that violent or terrorist activities are being planned as part of these protests, the possibility exists that elements of the activist community may attempt to engage in violent, destructive, or disruptive acts. Most protests are peaceful events; however, a number of demonstrations, including the biannual International Monetary Fund and World Bank meetings, are more likely to be violent and disruptive and to require enhanced law enforcement security. Several effective and innovative strategies are commonly used by protestors prior to, during, and after demonstrations. The following tactics have been observed by U.S. and foreign law enforcement agencies while responding to criminal activities conducted during protests and demonstrations.

Protestors often use the internet to recruit, raise funds, and coordinate their activities prior to demonstrations. Activists may also make use of training camps to rehearse tactics and counter-strategies for dealing with the police and to resolve any logistical issues.

If a demonstration is going to take place in a secure facility, activists may seek to gain access to the site using false documentation. Surveillance of sites prior to demonstrations can allow activists to identify locations of command posts and law enforcement personnel in order to plan effective countermeasures.

Traditional demonstration tactics by which protestors draw attention to their causes include marches, banners, and forms of passive resistance such as sit-ins. Extremist elements may engage in more aggressive tactics that can include vandalism, physical harassment of delegates, trespassing, the formation of human chains or shields, makeshift barricades, devices used against mounted police units, and the use of weapons–such as projectiles and homemade bombs. Even the more peaceful techniques can create a climate of disorder, block access to a site, draw large numbers of police officers to a specific location in order to weaken security at other locations, obstruct traffic, and possibly intimidate people from attending the events being protested.

During the course of a demonstration, activists often communicate with one another using cell phones or radios to coordinate activities or to update colleagues about ongoing events. Other types of media equipment (video cameras, photographic equipment, audio tape recorders, microphones, and computer and radio equipment) may be used for documenting potential cases of police brutality and for distribution of information over the internet.

Extremists may be prepared to defend themselves against law enforcement officials during the course of a demonstration. Masks (gas masks, goggles, scarves, scuba masks, filter masks, and sunglasses) can serve to minimize the effects of tear gas and pepper spray as well as obscure one’s identity. Extremists may also employ shields (trash can lids, sheets of plexiglass, truck tire inner tubes, etc.) and body protection equipment (layered clothing, hard hats and helmets, sporting equipment, life jackets, etc.) to protect themselves during marches. Activists may also use intimidation techniques such as videotaping and the swarming of police officers to hinder the arrest of other demonstrators.

After demonstrations, activists are usually reluctant to cooperate with law enforcement officials. They seldom carry any identification papers and often refuse to divulge any information about themselves or other protestors. Post-demonstration activities can include fundraising in support of the legal defense of accused protestors and demonstrations of solidarity calling for the release of the accused.

Law enforcement agencies should be alert to these possible indicators of protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism Task Force.

ADMINISTRATIVE NOTE: LAW ENFORCEMENT RESPONSE

Information contained in the FBI Intelligence Bulletin is Law Enforcement Sensitive and intended for official use only. No portion of this Bulletin should be released to the media, the general public or over non-secure Internet servers. Release of Law Enforcement Sensitive material could adversely affect or jeopardize investigative activities.

Departments are requested to contact the nearest FBI field office or resident agency in their area should additional information be developed related to the above matter. Questions regarding the content of these Bulletins should also be directed to the nearest FBI field office or resident agency.

It sounds like Madison was trying to help people avoid arrest for the grey-area ‘crime’ of not dispersing fast enough.

But I agree, the entire story of what Madison was doing could be made up. And whether the order to disperse was legal is in dispute.

I don’t suppose the feds raiding a protester’s home would have a chilling effect on all protests or the organizing of people peaceably opposed to the policies of the current administration? As in the Middle East, is it possible that violent overreaction under color of law will have an affect on radicalizing protest, in part serving as after the fact justification for this level of over-control?

We should all be thankful, in contrast, that Congress has assured the telecoms industry that it can’t possibly be liable should its members violate the law when they assist the Gubmint in whatever it chooses to do. Not.

In addition, as others have said, this looks a lot like a fishing expedition, in order to populate the database with more names and numbers of protesters. You never know when one of them might fail to return a library book or pay a parking ticket. Good to know where they are and how, um, to reach them.

TDS had a funny-sad piece on the G-20 protestors v. the Townhall protestors. Apparently the G-20 protestors lacked the guns, death threats and Fox News support that you need to have a dispersal free protest.

The alleged crimes here assume the order to disperse was legal and that this fellow’s electronic communications aided and abetted the commission of another crime, presumably the crowd’s “unlawfully” failing to comply with a lawful order to disperse.

That, in turn, assumes that the crowd’s actions were not peaceful or that if it was, their presence in a particular location could legitimately be deemed a threat to public safety. In this context, it arguably also requires that the order was not one to disperse, per se, but one that permitted the crowd to assemble in a nearby location where its existence was not, by definition, an imminent threat to public order, and where citizens could assemble peacefully to express their opinions and/or to petition their government.

Dick Cheney’s whet dreams aside, law enforcement must have a valid reason to restrict the constitutional rights of freedom to speak and to assemble, and where restricted, alternate means to express those freedoms must reasonably be available. Telling the crowd to go home and not to reassemble, or instituting an Orwellianly phrased “free speech zone” in Erie – when the actions being peacefully protested are in Pittsburgh – would not be a legitimate order.

Unless you’re a rethug. Then you can say whatever you want.