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When the FBI knocks... |
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By The Center for Constitutional Rights
People who openly oppose United States government policies should be
prepared to receive visits from FBI agents or other federal investigators. Those
of you who oppose U.S. policy in Central America, visit Nicaraguan, Cuban or
Soviet embassies here, or travel to those countries, and those who give
sanctuary to refugees from Guatemala and El Salvador, or who struggle for Black
liberation, for independence for Puerto Rico, or against nuclear weapons, are
likely to receive visits from the FBI. Increasingly, agents are visiting the
families, friends and employees of these persons.
For example, in a 1987 sweep, FBI agents visited 12 people in five cities during
a three-day period. Most had visited Nicaragua to share their skills under the
auspices of TecNica, a Berkeley-based group that recruits and places volunteers
in development projects in Nicaragua. The majority of these FBI visits were to
workplaces where agents sometimes made their presence known to employees and
also spoke with co-workers. The agents incorrectly implied that the volunteers
were violating the trade embargo against Nicaragua. While several of those
targeted found the visits threatening, and did not want to appear
'uncooperative' in the presence of employers, most were aware of their right not
to talk to the FBI and to refer the agents to their lawyers. They understood
that the purpose of these visits was to discourage people from travelling to
Nicaragua and helping the people there overcome some of the economic hardships
caused by U.S. support for the Contras and the U.S. trade embargo. This article
is designed to answer the frequent questions asked by people experiencing
government scrutiny. It can also help them develop practical responses.
Do I Have To Talk To The FBI?
No. The FBI does not have the authority to make anyone answer questions, or
otherwise force anyone to cooperate with an investigation. Thus, if an FBI agent
knocks at your door, you do not have to identify yourself to him, you can simply
say "I don't want to talk to you." or "You'll have to speak to my lawyer," then
close the door.
Agents are usually lawyers, and they are always trained as investigators; they
have learned the power of persuasion, 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 people to say 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?
In the wake of congressional reports exposing the FBI's counterintelligence
program (COINTELPRO), under which the agency infiltrated groups, compiled
dossiers on, and directly interfered with individuals engaged in activities
protected by the First Amendment right to freedom of expression and association,
guidelines regulating the investigation of political activities were issued by
the Justice Department.
The FBI COINTEL program 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 or goals he opposed. Tactics included: falsely labelling individuals as
informants; infiltrating groups with persons instructed to disrupt the group;
sending anonymous or forged letters designed to promote strife; initiating
politically motivated IRS investigations; carrying out wiretaps; and
disseminating to other government agencies and the media unlawfully obtained
derogatory information on individuals and groups.
Subsequent and superceding guidelines, authorizing "domestic security/terrorism"
investigations against political organizations whenever the FBI had a reasonable
belief that these groups might violate a law, were issued in 1983. These
guidelines permitted he same intrusive techniques the FBI used against organized
crime to be used other groups. The guidelines provide no safeguards on the use
of informants to protect against infringements to First Amendment rights.
The guidelines ignore the history of COINTELPRO abuses and abolish the
distinction between regular criminal investigations and investigations of groups
and individuals seeking political change. They fail to limit the investigative
techniques used to obtain data on political groups, so that the FBI may use any
technique against political organizations including electronic surveillance and
informers.
Thus, 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 would 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.
Another and perhaps even more important document governing federal intelligence
gathering is Executive Order 12333 on U.S. Intelligence Activities. In force
since 1981, its authorizes the FBI and CIA to infiltrate, manipulate and destroy
U.S. political organizations-under the pretext of a "foreign" intelligence
investigation. Investigative guidelines under this order are in large part
classified secret and not publicly available. Government spying, infiltration
and disruption of domestic advocacy groups can be carried out, practically
without restraint, by merely alleging that political groups have some connection
to foreign nations or liberation movements, or that they support positions
similar to those of such movements. Such movements might include the African
National Congress (ANC) or the FMLN-FDR in El Salvador. This executive offer has
been used to avoid the minor restrictions imposed on intelligence gathering on
domestic groups. The FBI merely alleges that a domestic group has a foreign
connection, and even though no crime is suspected the group or individual can be
investigated under the executive order.
The FBI's massive investigation of the Committee in Solidarity with the People
of El Salvador (CISPES) was carried out under E.O. 12333. The CISPES
investigation was used as a window to spy on other Central America groups
including the Network in Solidarity with Guatemala, the Nicaraguan Network, the
Thomas Merton Center, and the Central America Mobilization Coalition. While the
FBI produced not a shred of evidence of wrongdoing on the part of CISPES during
its five-year investigation, it managed to amass 17 volumes of files on CISPES,
most of which are being withheld under a national security exemption. Over 170
investigations were begun as spin-offs of the CISPES investigation.
Heavily deleted portions of these files, released under the Freedom of
Information Act, show that the FBI, under the aegis of Executive Order 12333,
regularly attended and photographed demonstrations and meetings, recorded the
license plate numbers of participants, in addition to conducting surreptitious
interviews and placing informants.
Names of people investigated were culled from this surveillance and from radio
broadcasts and flyers. Agents also cavalierly invaded college campuses and
visited employers and family members explaining that they were investigating
terrorist threats. The files indicate that complaints to elected officials, and
recourse to media and the public, were successful in curtailing the FBI.
How Does The FBI Learn About Individuals and Organizations?
Political intelligence is gathered from public sources, such as newspapers,
radio and leaflets. It is also collected by informers who may be government
employees or people who are recruited by them. Political intelligence is also
collected through FBI visits to your home or workplace. In this article, we are
most concerned with this aspect of intelligence gathering.
Agents may be sent to interview people after FBI officials decide there is a
'reasonable indication' that an organization meets the guidelines for a
'domestic security' investigation, or because a person has attended a meeting or
a rally sponsored by a group allegedly suspected of foreign connections under
Executive Order 12333. People who visit embassies of countries that the U.S.
considers unfriendly are also likely to be visited by the FBI. Such interviews
are a primary source of information because most people are not aware of their
right not to talk to federal agents.
Many people visited by agents are 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 an organization to
give them information about other members, including their personal lives,
character, and vulnerabilities.
A major goal of FBI agents is to convince people to give up their rights to
silence and privacy. Recently when FBI agents visited TecNica volunteers at
their homes and workplaces, they said such intimidating things as: "You're being
a dupe of the Russians and we're giving you a chance to stop doing something you
may regret later." The agents told another person that she was not the target of
the investigation, but might be able to help them.
In San Antonio during a series of visits to affiliates of a Central America
information group, the FBI gave a 20 minute presentation including a slide show
on the 'evils of communism,to one of the persons they questioned.
In 1984, the FBI visited over 100 persons who had traveled to Nicaragua. The
main purpose of the visits was to develop 'assets', people who would agree to
supply the FBI with information.
What If I Suspect Surveillance?
Prudence is the best course, no matter what you suspect, or what the basis is
for 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. A few years ago,
religious supporters of a nation-wide call to resist possible U.S. intervention
in Central America noticed unfamiliar people lurking around their offices at 6
a.m., but failed to ask what they wanted and who they were. 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 about 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 and organization. Creating
fear is often the purpose of obvious surveillance. When in doubt, call a trusted
lawyer familiar with political surveillance, or call the Movement Support
Network hotline: (212) 614-6422.
How Should I Respond to Threatening Letters or Calls?
If your home is broken into, or threats have been made against you, your
organization, or someone you work with, share this information with everyone
affected. Take immediate steps to increase personal and office security. You
should discuss with your organization's officials and with a lawyer whether and
how to report such incidents to the police. If you decide to make a report, do
not do so without the presence of counsel.
What Should I Do If My Office Or Home Is Broken Into And I Suspect That The Motive Behind It was Intelligence Gathering or Harassment?
Obvious break-ins, in which nothing, or very little of value is taken, are a
growing form of intimidation and intelligence gathering. If you discover a
break-in, do not disturb the crime scene and touch as little as possible until
you can calmly analyze the situation and until you decide what approach you are
going to take. Try yo figure out what, if anything, is missing.If little of
monetary value is taken, and important files have been obviously read, decide
with your co-workers and a lawyer whether and how to report the break-in to the
police. Take photographs of the crime scene. Photograph any damage that may
have been done and any notes that may have been left by the intruders. Over 100
break-ins have been reported to the Movement Support Network. Call us. We can
help you determine if the break-in was politically motivated and, if it was, get
you in touch with other groups and individuals who have had similar
experience.
What Should I do If Police, FBI, Or Other Agents Appear With An Arrest Or
Search Warrant?Agents who have an arrest or search warrant are the only ones you are legally
required to let into your home or office. If agents say they have a warrant you
should ask to see the warrant before permitting access. And you should
immediately ask to call a lawyer. For your own physical safety you should not
resist arrest, even if they do not show you the warrant, or if they refuse to
let you call a lawyer. To the extent permitted by the agents conducting a
search, you should observe the search carefully, follow them and make 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 Appear With An Arrest or Search Warrant?
Even when agents come with a warrant, you are under no legal obligation to tell
them anything. If agents try to question you, it is important not to answer or
make any statements, at least not until after you have consulted a lawyer.
Announce your desire to consult a lawyer, and make every reasonable effort to
contact one as quickly as possible. Your statement that you wish to speak to the
FBI only in the presence of a lawyer, even if it accomplished 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 investigation, the
safest thing to say is: "Excuse me, but I'd like to talk to my lawyer before I
say anything to you." Or, "I have nothing to say to you. I will talk to my
lawyer and have her (or him) contact 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 federal, state, or
local investigator who visits you. If you do not have a lawyer, call the
Movement Support Hotline (212) 614-6422, or call the local office of the
National Lawyers Guild (212) 966-5000.
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 name mentioned by the investigators, and the reason they gave for their
investigation. Also include descriptions of the agents and their car, if any.
This may be useful to your lawyer and to others who may be contacted by the same
agents.
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' or
protecting the President, they are intend 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 and legal 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 won prosecution-in
giving false or inconsistent information to the FBI. IT IS A FEDERAL CRIME TO
MAKE A FALSE STATEMENT TO AN FBI AGENT OR OTHER FEDERAL INVESTIGATOR. A
violation could even be charged on the basis of two inconsistent statements
spoken out of fear or forgetfulness.
Are There Any Circumstances Under Which It Is Advisable to Cooperate With An FBI Investigation?
Never without a lawyer. There are situations, however, in which an investigation
appears to be legitimate, narrowly focused, and not designed to gather political
information. Such an investigation might occur if you have been the victim of a
crime, or a witness to civil rights violations being prosecuted by the federal
government. Under those circumstances, you should work closely with a lawyer to
see that your rights are protected while you provide only necessary information
relevant to a specific incident. Lawyers may be able to avoid a witness's
appearance before a grand jury, or control the circumstances of the appearance
so that no one's rights are jeopardized.
What Rights Do I Have? 1. The right to work for change. The First Amendment to the U.S. 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 to the Constitution provides that every person has the
right to remain silent in the face of questions posed by any police officer or
government agent.
Federal prosecutors, however, 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 in return is only the promise not to use
your testimony against you is a subsequent criminal prosecution. If you testify
under subpoena you can still be charged with a crime. Failure to testify after a
grant of immunity is discussed below.
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 never to let agents into your home or office. 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 on such things as your lifestyle, organization and reading habits.
The right to be free from unreasonable searches and seizures is based on the
Fourth Amendment to the Constitution. This Amendment is supposed to protect
against government access to your mail and other written communications,
telephone and other conversations. Unfortunately, it is difficult to detect
government interference with writings and conversations. Modern technology makes
it difficult to detect electronic surveillance on a telephone line,other
listening devices, or cameras that records whatever occurs in a room. Also
common are forms of physical surveillance such as agents following in car or on
foot, mail covers, and informers carrying tape recorders.
What Are The Rights Of Non-Citizens?
All non-citizens have the same rights as citizens with respect to the FBI: the
right not to speak to the FBI and the right to have an attorney present at
interviews with FBI agents. JUST AS WITH CITIZENS, NON-CITIZENS SHOULD BE AWARE
THAT LYING TO FEDERAL AGENTS IS A FEDERAL CRIME.
Foreigners should be aware that Immigration and Naturalization Service (INS)
agents are federal agents-lying to them constitutes a federal crime. Commission
of such a crime may be sufficient reason for deportation or denial of immigrant
status.
This section includes a general discussion of the political rights of
non-citizens. However, this is a changing area of law and politics and we
caution readers to call the Movement Support Network hotline or the National
Lawyer Guild for updated information.
1. Non-citizens All aliens living in the United States are in theory protected by all
provisions of the Bill of Rights that are not expressly limited to citizens.
Thus, while aliens do not have the right to vote, they do have rights of free
speech and association, a right to a fair trial for criminal charges, the right
to be free of unreasonable searches and seizures, the right to due process of
law. However, in the immigration context the federal government has broad
powers, and the courts have not fully developed the contours of aliens'
constitutional rights where the Immigration and Naturalization Service is
concerned. In December 1988, a federal district judge in Los Angeles held that
the government cannot deport immigrant aliens for their political speech or
associations, because to do so would violate their First Amendment rights.
Congress has said much the same thing for non-immigrant aliens. However, this
area of law is still developing.
2. Undocumented individuals Undocumented individuals who engage in political activity should be aware
that they risk FBI surveillance and resulting exposure of illegal status. IT IS
COMMON PRACTICE FOR THE FBI AND INS TO SHARE INFORMATION.
A document received from the FBI CISPES files shows that a local FBI field
office asked the Immigration and Naturalization Service to provide them a list
of Salvadorean citizens, U.S. permanent residents included, who had visited the
area. Other CISPES documents indicate the FBI agents visited the administration
offices for foreign students on college campuses and utilized foreign student
directories for initial leads on investigations. In defending the actions ofthe
FBI in the CISPES investigation, the U.S. government argued that the mere
presence of Latin American nationals in solidarity groups justified surveillance
by the FBI.
The bottom line is that foreigners, including permanent residents, can expect at
least as much surveillance agencies by domestic agencies as U.S.citizens, and
should, in addition, be aware of possible surveillance by foreign intelligence
agencies operating in this country.
3. Sharing of information with foreign intelligence agencies. There are many indicators that the U.S. shares information with intelligence
agencies of governments it supports. We have received evidence of information
sharing with MI5 (Britain); KCIA (Korea); Mossad (Israel); and NationalGuard (El
Salvador). Non-citizens should probably assume that U.S. intelligence will share
information with 'friendly' governments.
4. Change in immigration status Applicants for permanent residencies and for naturalization are asked to
list the organizations they have worked with. Politically active foreigners are
advised to consult an immigration lawyer before applying for a change in
status.
For more information, contact: The Center for Constitutional Rights (CCR) 666 Broadway New York, NY 10012 tel: 212.614.6464 |
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