In 1971, 21 members of the New York City Black Panther Party were acquitted on all charges that they conspired to blow up police stations and a department store following the longest criminal trial in the city’s history. The case relied on the extensive use of undercover police officers who had infiltrated the organization. The jury rejected all of the charges in the case in part because of overlapping and uncoordinated activities by both local police and the FBI that raised profound questions about whether law agents were directly involved in making plans and providing explosives. This case was one of several that revealed the extent of local and federal police surveillance, infiltration, and active disruption of black nationalist, antiwar, and other left political movements of the 1960s and ’70s.
Cases like these and the revelations of illegal COINTELPRO activities by the FBI may seem like ancient history to many involved in contemporary social movements, but the rise of the Trump regime should give them pause and encourage them to review this important history. While political policing has changed its forms over the last 50 years, it remains a central feature of American policing.
Trump’s new attorney general, Jeff Sessions, has made clear that he intends to encourage police at the local and national level to “take off the gloves.” Widespread support for Trump among police suggests a real possibility of a reinvigoration of political policing with little fear of oversight from the Justice Department. This has already manifest itself in some troubling ways.
Beginning on Inaugural Day, police and prosecutors in Washington stepped up their criminalization of dissent. In response to a few instances of property destruction, the DC police undertook indiscriminate kettling and mass arrests of protesters, practices that they had previously avoided because of legal challenges. More worrisome has been the attitude of local prosecutors who are part of the federal Department of Justice. Instead of dismissing clearly illegal roundups of lawful protesters, journalists, and bystanders, they brought felony rioting charges that have rarely been seen in past protest arrests. After extensive public pressure, charges were dropped against many of the working journalists arrested, though professional freelance writer and former Nation intern Aaron Cantú is still facing the prospect of felony charges, despite letters of support from numerous news editors.
We have seen similar heavy-handed enforcement in other jurisdictions since the inauguration. Most important has been the militarized response to protests against the Dakota Access Pipeline in North Dakota, in which police have used armored vehicles, tear gas, and other “less lethal” munitions against demonstrators. Just as troubling, the ACLU had to move to quash a warrant from the local sheriff’s office seeking to access people’s private social-media accounts in a blatant attempt at political spying.
The FBI is also involved. According The Guardian, several agents from an FBI Joint Terrorism Task Force attempted to interview activists at Standing Rock, raising the specter of federal agencies’ conflating protest with terrorism. This has been a long-standing criticism of these task forces. Created in the 1980s, these units combine federal and local law-enforcement personnel for the purposes of uncovering terrorist threats. Since such threats are rare, these task forces appear to have shifted their role to monitoring political activity. In the wake of 9/11, Congress eliminated many of the restrictions on political spying that emerged from the Church Committee hearings in the 1970s, opening the door to wide-ranging investigations and preemptive actions with little concern about the presence of actual criminal activity. In 2002, it was learned that the Denver Intelligence unit had a binder with a “JTTF Active Case List” that included information about the American Friends Service Committee, the Colorado Campaign for Middle East Peace, Denver Justice and Peace Committee, and the Rocky Mountain Independent Media Center. In 2003, The Wall Street Journal reported that the Denver JTTF added “anarchists” and other political “extremists” to the FBI’s Violent Gangs and Terrorist Organization Files. In 2008 the ACLU of Maryland uncovered that the Maryland State police had conducted years of surveillance of local peace and anti–death penalty activists. The police had circulated information about specific individuals and groups to local and federal law-enforcement agencies. Nothing in any of the surveillance files indicated any illegal activity.
On September 24, 2010, the homes of several people active in opposing US policies in Palestine and Colombia and who had participated in the planning of demonstrations at the Republican National Convention in Saint Paul in 2008 were raided by FBI agents as part of a JTTF investigation. Five houses in Minneapolis were raided, along with houses in Michigan, North Carolina, and Chicago. The search warrants focused on obtaining information from computers and other sources of alleged “facilitation of other individuals in the United States to travel to Colombia, Palestine, and any other foreign location in support of foreign terrorist organizations including the FARC, PFLP, and Hezbollah.” Twenty-three people were subpoenaed to testify before a Grand Jury, but all refused and no criminal charges or specific accusations of criminal activity have emerged, leading to claims that the raids were politically motivated because these groups directly opposed US foreign policy in sensitive parts of the world. JTTFs function with no public oversight, especially at the local level, which has caused at least one major city, San Francisco, California, to pull out of them.
Just as troubling has been the raft of new laws being proposed at the state level. In February The Washington Post found found 18 states in which lawmakers were proposing significant new restrictions on protesting. While some of these proposals had been previously floated it is clear that the political momentum of a Trump victory combined with a clearly permissive Justice Department has emboldened these anti-democratic forces who hope to quash public dissent to the new right wing agenda. An Arizona bills aims to expand the use of racketeering laws to make it easier to charge large groups of protestors with felonies if any one person commits an act of violence or property destruction or is merely accused of planning such acts. Such accusations in recent years have often been tied to the use of informants and agents provocateur who attempt to lure people into criminal activity that they might never have considered without outside prompting and in some cases manipulation.
This is exactly the pattern we’ve seen in many recent so-called terrorism cases. In 2004, the NYPD arrested then-22-year-old Pakistani immigrant Shahawar Matin Siraj for plotting to bomb the Herald Square subway station in Manhattan. Lawyers for Siraj claimed he was entrapped by a paid police informant who, according to Amy Goodman of Democracy Now!, “cajoled and inflamed him to lure him into the conspiracy.” The informant spent months hatching the plot and pushing the idea of a bombing. Goodman explains that “Siraj had no explosives, no timetable for an attack, and little understanding about explosives.” According to Human Rights Watch, the NYPD’s own records showed that he was unstable and “impressionable” because of “intellectual limitations.” When asked to participate in the plot, Siraj replied that he had to ask his mother first, and he never actually agreed to participate, according to the NYPD’s own assessment, Nevertheless, he was convicted and sentenced to 30 years in prison.
In 2011 Rezwan Ferdaus was arrested by the FBI for participating in a plot to blow up the Pentagon and the US Capitol. He was targeted by an FBI informant who infiltrated his local mosque. Ferdaus was coaxed into the plot and supplied with fake weapons despite it being clear he had a mental disability. As the plan unfolded, Ferdaus’s condition deteriorated dramatically. He lost control of his bladder in such a severe way he was forced to wear diapers during the day and began to suffer from seizures and extreme weight loss. Eventually his health deteriorated so terribly that his father had to quit his job to care for him. Despite this, Ferdaus was convicted of attempting to supply material support to terrorism and attack a federal building with explosives and was sentenced to 17 years in prison. Both these cases and others like them got extensive news coverage and were hailed as proof that police were winning the so-called War on Terror.
There is a way forward for those concerned about political policing. On March 21 the federal court in Manhattan approved a new settlement agreement in a case that connects the dots between the infiltration of the 1960s, the abuses of the War on Terror, and today’s threat of abusive political policing.
A direct outgrowth of the Panther 21 case were revelations that political spying and dossier keeping was widespread in New York and targeted large numbers of legal organizations and non-violent political activists. This led to a 1971 federal lawsuit, Handschu v. Special Services Division, that resulted in a 1985 consent decree requiring the NYPD to stop all investigations against lawful political activity and to only undertake investigations when there was clear evidence of criminal activity. Internal audits were put in place to insure compliance, and for many years political spying appeared to diminish.
Following 2001, however, the NYPD petitioned the court to lower the standards for initiating an investigation as part of the War on Terror. The result was a wave of spying within Muslim communities run by the newly formed Demographics Unit. They undertook widespread surveillance of the everyday activities of Muslims in cafes, bookstores, and mosques without any evidence of criminal intent. They set about mapping the physical, social, and political geography of Muslim communities, which resulted in widespread fear and resentment but absolutely no evidence of illegal activity, much less ties to terrorism.
In addition, the NYPD took the new permissive rules as permission to reengage in political surveillance of peaceful protest activity. The most obvious form of this was the widespread videotaping of lawful protest activity, especially during the Occupy Wall Street and Black Lives Matter movements. Freedom of Information requests also uncovered evidence that photos and other surveillance data were being used to populate files of activists, which were in turn shared with other law enforcement agencies.
In response, legal advocates filed motions to reopen the case, and a new case, Raza v. City of New York, was filed attempting to stop the spying. The new settlement that covers both of these cases renews requirements that there be actual evidence of criminal activity before investigations can be undertaken and installs a civilian auditor, who reports to both the police commissioner and the federal court to insure compliance. While not a panacea, it is this kind of judicial and independent oversight combined with greater awareness and caution among activists that is necessary to prevent a repeat of the politically motivated spying, infiltration, and disruption of social movements in the 1960s. Ultimately, the solution is the broad exclusion of police form politically motivated surveillance. That means not just installing better oversight, and limiting the basis for lawful investigations, but instead placing a very high bar for any police involvement with political activity. The new decree, like many similar ones, merely requires that there be an indication of any illegal activity. However, since so many groups now engage in a variety of nonviolent civil disobedience and direct-action tactics, the risks of triggering an investigation remain high, even though this activity often involves little more than blocking traffic. We must demand an end to political policing in all its forms and instead demand that governments actually deal with the underlying problems that motivate contentious protest activity, rather than leaving it to police to suppress them.