Associated Press

10/20/03

State isues new rules for police spying
Officials may only target groups with known criminal history or goal

By Martha Mendoza

SAN FRANCISCO - Police officers in California--even those serving on FBI joint task forces--are not allowed to attend political, religious, social or educational meetings unless there's reason to believe a crime is planned or has happened.

This guideline is one of many in a legal handbook being sent by California Attorney General Bill Lockyer to police and sheriffs departments throughout the state this week. It directly contradicts federal Justice Department rules issued after the Sept. 11 terror attacks that allow FBI agents to monitor public meetings without identifying themselves.

And that may come as news to some state and local law enforcement agencies, whose officers since Sept. 11 have pretended to be members of peace groups, issued terror advisories warning about anti-war marches and gathered intelligence files on political groups.

The revised rules, compiled in a 134-page handbook called "Criminal Intelligence Systems: A California Perspective," were written by Lockyer and his staff after a public outcry over increased surveillance in the state.

"This re-emphasizes the balance between security and the right of privacy in California," said Special Assistant Attorney General Scott Thorpe in Sacramento.

Attorney Mark Schlosberg of the American Civil Liberties Union, who monitors police practices, said the rules are "an important step." But he's concerned police won't understand the nuances, and said a simple list, written for the public and police officers, rather than lawyers, is still needed to make sure law enforcement in California comply with state law.

"It's heartening to know that in California the attorney general has committed to protecting our privacy rights," he said.

Specifically, the state guidelines say police can only surveil groups that have a known criminal goal or a history of criminal conduct.

"Put bluntly, it is a mistake of constitutional dimension to gather information for a criminal intelligence file where there is no reasonable suspicion of the existence of a criminal predicate," say the guidelines.

This contradicts U.S. Attorney General John Ashcroft's decision in May 2002 that freed the FBI to monitor public meetings of political, social, religious and educational organizations. Ashcroft called prior federal restrictions on domestic surveillance "a competitive advantage for terrorists."

Those earlier restrictions were clamped on domestic surveillance in the 1970s after the public learned that the FBI had surveilled and disrupted anti-war and civil rights movements.

U.S. Justice Department spokesman Mark Corallo said Friday that police and sheriffs in California even if they are assigned to an FBI Joint Terrorism Task Force and therefore deputized as Special Deputy United States Marshals need to follow state rules.

"We think it's totally appropriate for the FBI to attend public events, just like any other member of the public," he said. "But state and local law enforcement set their own guidelines for conduct, and they should follow them."

Federal and state rules for police have clashed in the past in California for example, after state voters authorized medical marijuana, local police and sheriffs stopped busting people for growing and distributing pot used as medicine. But federal DEA agents have continued to arrest cultivators and distributors of medical marijuana.

Now it appears that the state's efforts to address terror attacks also may, in some ways, contradict federal laws.

The state DOJ founded the California Anti-Terrorism Information Center just two weeks after the Trade Center attacks, in an effort to coordinate and share anti-terrorism intelligence information.

But CATIC advisories, bulletins and briefings, obtained by the AP through California Public Records Act requests, show that a large part of what this agency is doing has focused on protest groups rather than terrorists. Dozens of advisories labeled "Sensitive Information" simply provided information about planned demonstrations gathered from anti-war Web sites.

Another advisory, issued last December and labeled "FOR LAW ENFORCEMENT USE ONLY", analyzed anti-war protests "in an effort to help law enforcement authorities better understand a new movement that appears to be sweeping the United States and the rest of the world."

Schlosberg said such advisories have nothing to with preventing terrorism, and everything to do with police efforts to get around constitutional protections of privacy, speech and the right to assemble peacefully.

In Fresno, members of Peace Fresno were shocked to learn that a man who had been coming to their meetings was actually undercover sheriff's detective Aaron Kilner. They realized the infiltration after Kilner died in an off-duty motorcycle accident Aug. 30 and his photograph appeared in a local newspaper.

Fresno County Sheriff Richard Pierce said Peace Fresno "was not and is not the subject of any investigation by the Fresno County Sheriff's Department." However, in a statement issued Oct. 2, he defended his department's legal right to send undercover officers to community meetings.

In another case, San Francisco Police in April began investigating the "Black Bloc," a collection of anarchists and like-minded groups that showed up at demonstrations against the Iraq war, and in some cases committed acts of vandalism.

Advocates "may have the anarchist tattoo which is the letter A in a circle, and have a militant attitude," said the intelligence file obtained by the AP with a California Public Records Act request.

The investigation was closed in July after police turned up no information "that would assist in solving past criminal offenses or develop any information indicating any specific planning of future criminal offenses."

Several police departments, including San Francisco and San Diego, that have intelligence-gathering guidelines of their own may need to review them to be sure they comply with the new state regulations, officials in Lockyer's office said.

In Los Angeles, the police commission revised its anti-terrorism unit's standards this year to allow broader surveillance. But Capt. Gary Williams said files are kept only on those anti-war organizations that give police a "reasonable suspicion to believe that there may be a potential for a significant disruption of the public order."