Back In Time 

Nat Hentoff is the author of The War on the Bill of Rights and the Gathering Resistance.

If you go around telling people, "We're going to ferret out information on demonstrations," that deters people. People don't want their names and pictures in FBI files.
—American University constitutional law professor Herman Schwartz, commenting on FBI Intelligence Bulletin no. 89, October 15, 2003, "Tactics Used During Protests and Demonstrations"

Americans of a certain age remember the FBI's counterintelligence operation, COINTELPRO, which, during its years of operation from 1956 to 1971, surveilled, infiltrated, manipulated and tried to provoke criminal activities by entirely lawful civil rights and anti-war demonstrators exercising their First Amendment rights to oppose government policies.

In the 1970s, the Senate Select Committee to Study Government Operations With Respect to Intelligence Activities so exposed FBI director J. Edgar Hoover's relentless violations of the Bill of Rights, very much including the First Amendment, that Attorney General Edward Levi—the best constitutionalist in that office in our history—established new FBI guidelines to keep its agents within the bounds of the Constitution.

And Sen. Frank Church of Idaho, chairman of that Select Committee on Intelligence Activities, pledged in 1975, "The American people need to be reassured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers a threat to the established order."

Attorney General John Ashcroft has broken that pledge more times than I can count, because so much of his surveillance of "we the people" is done in secret. But Ashcroft's overturning of the Levi FBI guidelines was perpetrated publicly in May 2002, when he set new FBI guidelines in the spirit of COINTELPRO. As a May 31, 2002 New York Times editorial charged: The FBI now has "nearly unbridled power to poke into the affairs of anyone in the United States, even when there is no evidence of illegal activity."

As further evidence of how FBI director Robert Mueller continues morphing into J. Edgar Hoover, the November 23, 2003 New York Times—in a front-page story by its invaluable legal affairs reporter Eric Lichtblau—warned:

The Federal Bureau of Investigation has collected extensive information on the tactics, training and organization of antiwar demonstrators and has advised local law enforcement officials to report any suspicious activity at protests to its counterterrorism squads, according to interviews and a confidential bureau memorandum.

This is not news to those of us who track the FBI tracking us. But the importance of this coverage of the continuous contempt of Frank Church's 1975 pledge to the American people by Robert Mueller and his boss, John Ashcroft, is revealed in a sentence deep in that Times story:

"The FBI memorandum . . . appears to offer the first corroboration of a coordinated nationwide effort to collect intelligence regarding demonstrations."

Analyzing this classified confidential FBI memorandum, FBI Intelligence Bulletin no. 89, (of which I too have a copy), the October 15, 2003 Times quotes ACLU executive director Anthony Romero:

This bulletin confirms that the federal government is targeting innocent Americans engaged in nothing more than lawful protest and dissent... It is troubling that the FBI is advocating spying on peaceful protesters, but even protesters who engage in civil disobedience or other disruptive acts should not be treated like potential terrorists

Among the "tactics" the FBI advises local law-enforcement agencies to track in this intelligence bulletin on "current, relevant terrorism information" is the frequent use by protesters of "the Internet to recruit, raise funds, and coordinate their activities prior to demonstrations."

This is exactly how the nation's Bill of Rights Defense Committees coordinate—and provide organizing tools for the formation of new BORDC committees—to protest Ashcroft's USA PATRIOT Act and subsequent executive orders in messages to their members of Congress.

And when the attorney general went on his "victory tour"—speaking only to law-enforcement agencies on the virtues of the PATRIOT Act—BORDC and ACLU members used the Internet, exercising their First Amendment rights, to recruit demonstrators at various stops on Ashcroft's barnstorming trek.

In what part of the Constitution does the FBI have the authority to put in its databases the names of protesters using the Internet to organize peaceful demonstrations?

FBI Intelligence Bulletin no. 89 also alerts local police that "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, photogenic equipment, audiotape 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."

Good grief! These persons under suspicion actually document out-of-control police during demonstrations—and they also communicate with each other in the course of a demonstration!

This FBI "Law Enforcement Sensitive Bulletin" ends, "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."

But why does this brooding FBI bulletin contain so many references to entirely legal protest activities? Like this one: "Activists may use intimidation techniques such as videotaping" during demonstrations. Who is intimidating whom?

Referring to these FBI instructions on how to deal with the "tactics" of protesting demonstrators, Sen. Ted Kennedy—on ABC-TV's This Week, November 23—said, "How could we be fighting abroad to defend our freedoms, and diminishing those freedoms here at home?"

Adds the ACLU's Anthony Romero,"What is the chilling effect that will be felt by Americans all across the country if they think they will come under FBI scrutiny just by going to a protest?"

Will somebody in the elite Washington press corps ask George W. Bush if he's heard about the fifth freedom in the First Amendment, "the right of the people peaceably to assemble"?

Editor's Note: This article originally appeared in The Village Voice Dec. 4, 2003 and is reprinted with permission.

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Published: Dec 16 2003