Common Sense Security: Constitutional Rights
Today we are more likely than ever to receive visits from FBI agents or other federal investigators. Increasingly, agents are also visiting the families, friends and employers of activists. The following information will help answer the most frequent questions asked by people and groups experiencing government scrutiny, and help them develop practical responses.
What is political intelligence?
Political intelligence is information collected by the government about individuals and groups. Files secured under the Freedom of Information Act disclose that government officials have long been interested in all forms of data. Information gathered by government agents ranges from the most personal data about sexual liaisons to estimates of the strength of groups opposing US policies.
Do I have to talk to the FBI?
No. The FBI does not have the authority to make anyone answer questions (other than name and address) or to search without a warrant. Agents are usually lawyers, and they are always trained as investigators. They have learned the power of persuasion, as well as the ability to make a person feel scared, guilty or impolite for refusing their requests for information. So remember, they have no legal authority to force you to do anything--unless they have obtained an arrest or search warrant. Even when agents do have warrants, you still don't have to answer their questions.
Under what laws do the agents operate?
COINTELPRO 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 he opposed. Tactics included: falsely labeling individuals as informants; infiltrating groups with persons instructed to disrupt the group; sending anonymous or forged letters to promote strife between groups; initiating politically motivated IRS investigations; carrying out burglaries of offices and unlawful wiretaps and disseminating 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.
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 can 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.
How does the FBI learn about citizens and organizations?
Political intelligence is gathered from public sources, such as newspapers and leaflets. It is also collected by informers who may be government employees or people recruited by them. Political intelligence is also collected through FBI visits to your home or office.
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 to not 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 a group to give them information about other members, including in regards to 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.
What if I suspect surveillance?
Prudence is the best course, no matter whom you suspect, or the basis of your suspicion. When possible, confront the suspected person in public, with at least one other person present. If the suspect declines to answer, he or she at least now knows that you are aware of the surveillance. If you suspect surveillance, you should not hesitate to ask the suspected agents' names and inquire about their business.
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. Creating fear is often the purpose of obvious surveillance. When in doubt, call a trusted lawyer familiar with political surveillance.
What rights do I have?
1. The right to work for change. The First Amendment of the US Constitution protects the rights of groups and individuals who advocate, petition and assemble to accomplish changes in laws, government practices and even the form of government. Political intelligence gathering is not supposed to interfere with these rights.
2. The right to remain silent. The Fifth Amendment of the Constitution provides that every person has the right to remain silent in the face of questions (other than name and address) posed by any police officer or government agent. 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 to not use your testimony against you in a subsequent criminal prosecution. But you can still be charged with a crime.
3. The right to be free from "unreasonable searches and seizures." Without a warrant, no government agent is allowed to search your home or office (or any other place that is yours and private). You may refuse to let FBI agents come into your house or into your workplace unless they have a search warrant. Politeness aside, the wisest policy is to never let agents inside. They are trained investigators and will make it difficult for you to refuse to talk. Once inside your home or office, just by looking around, they can easily gather information about your lifestyle, organization and reading habits. The right to be free from "unreasonable searches and seizures" is based on the Fourth Amendment of the Constitution and is supposed to protect against government access to your communications, telephone and other conversations.
What should I do if police or other agents appear with an arrest or search warrant?
Agents who have a valid arrest or search warrant are the only ones you are legally required to let into your home or office. You should ask to see the warrant before permitting access. And you should call a lawyer immediately. For your own physical safety you should not resist, even if they do not show you the warrant, or if they refuse to let you call your lawyer. To the extent permitted by the agents conducting a search, you should observe the search carefully, following them and making mental or written notes of what the agents are doing. As soon as possible, write down what happened and discuss it with your lawyer.
What should I do if agents come to question me?
Even when agents come with a warrant, you are under no legal obligation to tell them anything other than your name and address. It is important, if agents try to question you, not to answer or make any statements.
Announce your desire to consult a lawyer, and make every reasonable effort to contact one as quickly as possible. Your statement that you will only speak to the FBI only in the presence of a lawyer (if then), 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." 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 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.
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.
If I don't cooperate, doesn't it look like I have something to hide?
This is one of the most frequently asked questions. The answer involves the nature of political "intelligence" investigations and the job of the FBI. Agents will try to make you feel that it will "look bad" if you don't cooperate with them. Many people not familiar with how the FBI operates worry about being uncooperative. Though agents may say they are only interested in "terrorists," they are intent on learning about the habits, opinions and affiliations of people not suspected of wrongdoing. Such investigations, and the kind of controls they make possible, are completely incompatible with political freedom, and with the political system envisaged by the Constitution.
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 any other federal investigator. A violation can even be charged on the basis of two inconsistent statements spoken out of fear or forgetfulness.
How can grand juries make people go to jail?
After being granted immunity and ordered to testify by a judge, grand jury witnesses who persist in refusing to testify can be held in "civil contempt." Such contempt is not a crime, but it results in the witness being jailed for up to 18 months, or the duration of the grand jury, whichever is less. The purpose of the incarceration is to coerce the recalcitrant witness to testify. In most political cases, testifying before a grand jury means giving up basic political principles, and so the intended coercion has no effect--witnesses continue to refuse to testify.
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.
What can lawyers do?
A lawyer can help to ensure that government investigators only do what they are authorized to do. An attorney can see to it that you do not give up any of your rights. If you are subpoenaed to a grand jury your lawyer can challenge the subpoena in court, help to raise the political issues that underlie the investigation and negotiate for time. Your lawyer can also explain to you the grand jury's procedures and the legal consequences of your acts, so that you can rationally decide on your response.
A law enforcement official can only obtain your name and address if he of she has a reasonable suspicion to believe that you have committed or are about to commit a crime. Thus, if FBI agents knock at your door you do not have to identify yourself to them; you can simply say, I don't want to talk to you," or "You'll have to speak to my lawyer," and then close the door. An FBI agent, unlike a local police officer, does not have jurisdiction to investigate violations of state statute.
The Center for Constitutional Rights (CCR) is a nonprofit legal and educational corporation dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. For more information, contact Center for Constitutional Rights, 853 Broadway, 14th Floor, New York, NY 10003; (212) 674-3303.
The complete version of this article can be found at the Political Research Associates web site.
© Earth First! Journal, March-April 2001