The Sacramento Bee

11/9/03

Liberty in the balance: More scrutiny of peace groups

Public safety justifies surveillance since 9/11, authorities say.

By Sam Stanton and Emily Bazar

The first hint that their group had been infiltrated came when they saw the dead man's picture in the newspaper.

The story about his demise in a motorcycle accident said his name was Aaron Kilner and that he had been a detective with the Fresno County Sheriff's Department.

But members of Peace Fresno, an anti-war group formed soon after the Sept. 11, 2001, terrorist attacks, had known the nice young man as Aaron Stokes, "the guy with the short hair and the goatee who sat in the corner," as one member described him.

"He participated in demonstrations, he took fliers with him that he said he was going to distribute, and when he was asked about his occupation he said he had some kind of trust fund or inheritance that made it possible for him to not work," said Catherine Campbell, an attorney for the peace group that now is debating whether to sue the Sheriff's Department for invasion of privacy.

Fresno County Sheriff Richard Pierce has had little to say about the incident, other than declaring that Peace Fresno is not under investigation by his department and that his detectives operate within the law.

But peace activists and law enforcement officials agree that the monitoring of anti-war groups and other activists has stepped up since the terrorist attacks of two years ago.

And Attorney General John Ashcroft last week issued new guidelines on anti-terrorism investigations that critics contend will give the FBI more leeway in spying on anti-war groups and others.

Justice Department officials say the guidelines, by strengthening the FBI's ability to look for evidence of possible terrorist planning, help law enforcement protect Americans.

But the move comes on the heels of several incidents in the past year that have made civil libertarians wary of renewed government spying.

Earlier this year, as Kilner was gaining the trust of Peace Fresno members, undercover agents from the California Highway Patrol were attending training sessions by a protest group planning demonstrations at the Ministerial Conference and Expo on Agricultural Science and Technology in Sacramento.

Even after two of them were discovered by activists and asked to leave, others remained, keeping tabs secretly -- and legally -- on what was going on.

Last spring, anti-war protestors planning a demonstration in Oakland saw their rally broken up with rubber bullets after a state counterterrorism unit issued a secret bulletin to law enforcement warning of the potential for violence.

And a prosecutor in Albuquerque, N.M., was fired after she attended an anti-war rally there and was accused of pointing out a number of undercover police monitoring the event.

"I did no such thing," said Jennifer Albright, who is pursuing legal action over her firing and who said police infiltration of peace groups is common practice in Albuquerque.

Law enforcement spying on such groups once was commonplace, especially during the Vietnam War era. But legal experts say the practice slowed amid concerns that law enforcement was violating the free speech rights of activists.

Since Sept. 11, 2001, however, police agencies have made it clear they have no qualms about conducting investigations using cameras, plainclothes detectives and other methods. They emphasize that such probes are conducted within the constraints of the law, which allows them to covertly observe an array of public meetings and activities, but allows formal investigations to be opened only when there is suspicion of criminal activity.

Much of the increase in surveillance stems from the fact that over the past couple of years the nation has waged war overseas -- in Afghanistan and Iraq -- for the first time since Operation Desert Storm in 1991. The military actions spawned anti-war demonstrations nationwide, and law enforcement makes no apologies for keeping a close eye on such events.

Some agencies say they keep tabs on activists only when they are protesting and might disrupt traffic or business in public places.

"We wouldn't put an undercover person with a group simply because they had a different opinion from others," said Sgt. Justin Risley, spokesman for the Sacramento Police Department.

But, Risley added, groups that describe themselves as "peace activists" sometimes end up in illegal skirmishes.

It remains unclear why the Fresno County Sheriff's Department infiltrated the peace group there, but Pierce said his department's actions were legal.

"We can be anywhere we want to that's open to the public," Pierce said in a telephone interview from his Fresno office.

Although he would not discuss specifics of the Kilner case, Pierce said his office conducts probes of possible terrorist threats and that he has reason to believe there is a potential for terrorism in Fresno County.

"We believe that there is," he said. "I'm not going to expand on it."

Other agencies concede they keep tabs on activist groups in public settings, such as protests at the state Capitol. They say such tactics are prudent to ensure public safety.

"We've just gone and hung around with them," said Sacramento County Undersheriff John McGinness. "We have guys who look like other people in these groups would, and they just observe and take it in. We've got the same rights reporters have when they go watch these things."

But officials note there are strict regulations on how far law enforcement can go in investigating anti-war or other protest groups, and that most investigators are cautious about stepping over the line.

"We haven't kept any book on who's who, no secret files, because we can't do that legally," McGinness said.

Investigations cannot take place simply because of a group's political stance, he added, because that would violate its right to free speech. Instead, probes can be conducted only if there is reason to believe a crime is being committed or planned.

But that can be a gray area, critics contend, with law enforcement able to use minimal evidence to decide a criminal investigation is needed.

Agencies also can take various actions -- videotaping activists in public, for instance, or attending meetings or training sessions open to the public -- without actually opening a criminal probe.

The federal guidelines Ashcroft released Wednesday make such actions easier, giving the FBI the ability to look into possible terrorism plots without opening a formal investigation.

The guidelines, released by the Justice Department but heavily redacted in portions that remain classified, allow "the proactive collection of information concerning threats to the national security, including information on individuals, groups, and organizations of possible investigative interest. ... "

What that means, Justice Department spokesman Mark Corallo said, is that the FBI "can do more research."

"It emphasizes early intervention," Corallo said in a telephone interview. "This is guidance to the field offices that allows them to be more proactive."

Under the new rules, FBI offices can use public information to assess potential threats from groups or individuals and can share the information with local law enforcement, he said.

But, Corallo emphasized, the rules do not allow the FBI to launch formal probes without probable cause that criminal activity is being planned.

The American Civil Liberties Union disputes that. In a statement released last week, the ACLU contends that the rules are "apparently designed to allow detailed monitoring of both citizens and noncitizens without any indication of ongoing or intended espionage."

That's exactly what civil libertarians are worried about in the Fresno case, saying they've been given no information about why the group was being monitored.

In the telephone interview, Sheriff Pierce said only that no criminal investigation of the group was under way, and that no notes exist from anything Kilner witnessed during his time at Peace Fresno meetings.

"We're very concerned," said Julia Harumi Mass, a staff attorney for the ACLU of Northern California. "It's a really striking example of how secret surveillance is going on in this country."

She noted that it is difficult to tell how much infiltration occurs because, by definition, it is secret and undercover.

The ACLU also is concerned about the use of CHP officers to observe training last summer that was sponsored by the Ruckus Society, a group that taught activists how to launch nonviolent protests against the agricultural expo in Sacramento that drew protesters from around the world.

Organizers discovered the identities of two female CHP observers when they called a telephone number one of them left when registering for training. Activists said they got a voice mail message identifying her as being with the CHP.

"We weren't doing anything we needed to be infiltrated for," said Heidi McLean, a spokeswoman for the Sacramento Coalition for Sustainable Agriculture. "We were planning a permitted rally and a permitted march."

CHP Commissioner D.O. "Spike" Helmick acknowledges that even after the two CHP observers were found out by organizers, others stayed on and observed the training undetected.

However, he insists there was nothing wrong with such tactics, noting that the training was advertised on the Internet as open to anyone interested and that, in chatter over the Internet, some groups were calling for a repeat of the 1999 World Trade Organization conference in Seattle, where demonstrators were able to shut down the first day's events.

"We had people -- you can probably say more than two -- but I won't discuss that," Helmick said. "They were no more undercover than the other people dressed in civilian clothes.

"Do we walk in with a big CHP baseball hat on? No."

As it turns out, one of the protesters present for the agriculture expo demonstrations was Kilner. The Fresno detective had ridden to the conference on a bus with other demonstrators.

Peace Fresno members say they have had little success in obtaining information on why Kilner was among them, and that when they sent a $12 check to the Sheriff's Department to refund the membership fee he paid to join, it remained uncashed.

But the incident has drawn new attention to the practice of targeting anti-war activists for surveillance, and last month state Attorney General Bill Lockyer issued a set of guidelines on how law enforcement agencies must behave when pursuing anti-terrorism probes.

Lockyer's office was criticized last spring after the California Anti-Terrorism Information Center issued a bulletin about an anti-war protest planned in Oakland.

CATIC, which maintains a database that law enforcement agencies can tap into through the state Justice Department, sent a memo on April 2 to law enforcement agencies across the state about the planned anti-war protest at the Port of Oakland and the "potential violence that may be associated with the advertised protest."

The memo sparked a protest among civil libertarians who say that information about protests shouldn't be distributed by a counterterrorism agency. Lockyer spokesman Nathan Barankin later acknowledged that it was ill-advised to send out the memo under the CATIC banner.

"That was a mistake," he said in an interview earlier this year. "It should not have been sent out as a terrorist advisory."

But he said no information about the protesters was permanently entered into a database.

"Protesters with no violent criminal link are not kept in CATIC or any intelligence file," he said. "Saying we're going to go exercise our First Amendment rights to protest or support the war is not criminal activity."