Time for the General Assembly to act on state police surveillance of political dissidents

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Time for the General Assembly to act on state police surveillance of political dissidents

Daily Record Editorial Advisory Board

December 29, 2008

The revelations about the Maryland State Police’s activities surveilling, infiltrating, keeping files on, and sharing information about political dissidents have been unsettling, and demand a legislative response.

Here is what we know so far:

* In October 2003, Baltimore Pledge of Resistance, an anti-Iraq War group, staged a protest at Fort Meade; in the course of civil disobedience, five of the group were arrested. Two of them were tried; during discovery, documents revealed that a “Baltimore Intel Unit” had monitored the group as they gathered at American Friends Service Committee offices for a protest in July 2004.

* After the trial, the groups came to the American Civil Liberties Union for help in finding out more about the so-called “Baltimore Intel Unit.” In August 2006, the ACLU filed Maryland Public Information Act and Freedom of Information Act requests to get answers.

 Specifically, the requests asked for any documents relating to plans and programs to monitor, conduct surveillance, question, interrogate, investigate, and collect information about Jonah House, Baltimore Pledge of Resistance, Baltimore Emergency Response Network, and American Friends Service Committee.

* In January 2007, the Maryland State Police, one of the agencies that received requests, said it had a single responsive document, but declined to turn it over, and first stated that to do so would reveal confidential investigative techniques, then declined to state why it was not turning it over. As will be seen below, the statement that there was but a single record proved incorrect.

* In February 2007, the Department of Homeland Security acknowledged that it had responsive records concerning the AFSC, Jonah House and Baltimore Emergency Response Network, but had not determined what records to release.

* More revelations followed. In April 2007, the National Security Agency acknowledged that it had hundreds of pages of records relating to surveillance of the AFSC, and several individual requestors, in connection with protests at the NSA from 2003–2005, but did not disclose any of the records, claiming that a backlog of prior requests takes precedence. And in May 2008, the Department of Defense acknowledged that the Department of the Air Force had responsive documents, and forwarded the request to the Air Force for a determination of which documents to release. Clearly there is a great deal of federal interest in Maryland’s political dissidents.

* There was also state interest. On June 12, the ACLU filed suit on behalf of American Friends Service Committee, Jonah House, Baltimore Pledge of Resistance, Baltimore Emergency Response Network and several individual plaintiffs to get State Police to turn over the “record.” This time several documents, totaling 46 pages, were produced.

* The documents revealed that (and we paraphrase the ACLU’s July 17 press release) for 14 months, the State Police’s Homeland Security and Intelligence Division had sent covert agents to infiltrate the Baltimore Pledge of Resistance, a peace group; the Coalition to End the Death Penalty (CEDP) and the Committee to Save Vernon Evans (a death row prisoner). The agents had collectively spent at least 288 hours on their surveillance over the 14-month period. An agent also joined the electronic listserv of the CEDP under an alias using a spoof e-mail address. Agents from the Division monitored private organizing meetings, public forums and events held in several churches, as well as anti-death penalty rallies outside the state’s SuperMax facility in Baltimore and in Lawyer’s Mall in Annapolis.

* The documents revealed that, despite the fact that reports from these events had consistently said that activists acted lawfully at all times, the agents recommended that the spying continue.

Reports of this surveillance were sent to at least seven federal, state, and local law enforcement agencies, including the National Security Agency, Baltimore City, Baltimore County, and Anne Arundel County police departments, and the state General Services Police. Logs of the surveillance do not contain any reports of illegal activity, but rather consist entirely of reports on the groups’ and individuals’ lawful political activities.

* The MSP’s Homeland Security and Intelligence Division also appears to have been working to specially track the activities of at least one individual activist, Max Obuszewski, who was entered into the “Washington/Baltimore High Intensity Drug Trafficking Area” (HIDTA) database.

That database, which is funded by the federal government, was intended to facilitate information-sharing among federal, state and local law enforcement agencies engaged in drug interdiction. In December 2006, Congress modified the federal law to allow HIDTA funds to be used to assist in terrorism investigations as well. The entry for Mr. Obuszewski indicates that the “Primary Crime” linked to him in the database is “Terrorism-Anti Govern[ment], and the “Secondary Crime” is “Terrorism — Anti-War Protestors” — which are outlandish and blatantly false accusations. Mr. Obuszewski has never been linked to any terrorism. Rather, the records contain a report of a meeting between activists and Rep. Benjamin Cardin in 2005 in which they asked him to support a timetable for withdrawal from Iraq.

* On Sept. 30, 2008, the ACLU filed additional information-act requests on behalf of 32 advocacy groups and more than 250 individuals associated with those groups. Requests went to the State Police, the Washington/Baltimore HIDTA Office, and every local police department in places where demonstrations were held by the groups. The groups and the individuals were the “usual suspects,” individuals known to have been involved in agitation for peace, an end to the death penalty, in favor of the environment, etc.

The preliminary responses have been astounding. It appears that there are “hits” with respect to 50 percent to 80 percent of the organizations and individuals inquired of. The State Police seem to have been involved in compiling information on most political dissenters in the state.

* Although hard information is sketchy, it appears likely that data from the State Police database on these groups and individuals has been shared with the FBI and other federal security forces. Obviously, once the information was in that domain, it would be almost impossible to purge, even if wrongfully accumulated in the first place.

* At a Senate Judicial Proceedings Committee hearing in October, Colonel Terrence Sheridan, the head of the State Police, admitted that 53 individuals had been listed as suspected terrorists without any evidence of crime. This led to the 53 individuals being allowed to examine their State Police files. Initially, the individuals were told they could not make copies or bring their lawyers. After protests to the governor, the State Police relented and allowed the individuals to bring their lawyers and take copies home.

* The files turned over were devoid of any suggestion of criminal activity by any of the targets. They were heavily redacted, but the patterns of redaction did not suggest that any confidential techniques were being blacked out.

New files had been opened as late as January 2008. Files were modified as late as November 2008. (The State Police have reportedly claimed that modification dates merely reflected printing, but this statement may be incorrect, since many files were printed out long after their last modification date.) The recent dates of file opening and modification suggest that, contrary to earlier suggestions, these activities went on long after the Ehrlich administration was gone and the O’Malley administration had begun — and long after Col. Sheridan had assumed office.

They may well be going on still. The Associated Press paraphrased the remarks of Greg Shipley, spokesman for the State Police, on Nov. 19 as stating that “surveillance of the groups and individuals was halted once it was determined they did not pose a threat to public safety.” Even allowing for the inexact pronouns used as well as the filter of a paraphrase, this seems inconsistent with the known facts.

* The report by former Attorney General Stephen Sachs, issued Sept. 29, deals with only part of these activities. Sachs had been tasked to look at only the surveillance and infiltration of antiwar and anti-death penalty groups in 2005-2006, and was clearly aware that there were other targets, issues and periods beyond his charge. The information concerning the 53 individuals and the turnover of documents pursuant to the second wave of Public Information Act requests largely had to do with those other targets and other time periods.

Lawmakers’ role

To all appearances, something went dreadfully awry here. We need two things above all: sunlight on the investigation, and remedial measures. For both tasks, the legislature is the clearly appropriate tool. And we are aware that the legislature intends to take up the surveillance issue in the upcoming session.

Sunlight, Justice Brandeis wrote, is the best disinfectant. All of the players in this investigation should be placed under oath, preferably in public, to explain themselves.

The publicity poses scant risk that we can see of revealing confidential sources or methods, as the methods used appear to have been commonplace. And since there seem to have been no actual crimes under investigation, there is no evident likelihood of compromising any ongoing criminal investigation. A legislative committee will have the authority and the judgment to get to the bottom of this.

We Maryland citizens are entitled to know the genesis of the investigation, as well as the scope of the investigation — the full scope this time. And we need to know the thinking behind the investigation.

The targets of this investigation were surveilled, lied to, had their trust betrayed, were entered into a database of terrorists, and apparently, that information was shared with federal security authorities. The database, by the way, could have violated 28 CFR Part 23, which forbids a “project” funded by HIDTA funds (as the database here apparently was) from compiling information about First Amendment-protected views or activities of individuals or groups without a reasonable suspicion they were involved in criminal activity. The reason is obvious: such scrutiny chills highly protected First Amendment activities. The very fact of an investigation can be costly and destructive to its targets. Moreover, valuable police resources are diverted from the prevention and detection of real crime.
 We acknowledge that surveilling, lying, betraying trust, databasing and sharing of databases about First-Amendment protected activities may all be appropriate activities in investigations where there is a reasonable suspicion of criminal behavior as well. Here, to all appearances, there was no reasonable suspicion, just an attitude that made no distinction between dissent and subversion. And the failure of judgment stemming from that attitude is extremely troublesome.

We are not going to make specific recommendations as to legislative remedies. We would recommend, however, that the legislature give thought to the following possibilities:

* Some form of oversight outside the State Police for investigations of individuals and groups identified with political and/or religious dissent. Perhaps a FISA-like court or FISA-like functions (issuing warrants for covert investigative activity) vested in existing courts might be effective. Perhaps some figure from elsewhere in the Executive Branch might be given the discretion. But we need independent grown-ups in the room when decisions like these are being made.

* Some form of immediate relief for those who may be subject to such surveillance in the future, perhaps including expedited procedures under the Public Information Act.

* A directive to the State Police to end this particular investigation, and the creation of some mechanism to assure that the directive is followed.

* Better training in respect for First Amendment values for State Police decision-makers and detectives alike.

We eagerly await our General Assembly’s response.

Daily Record Editorial Advisory Board members Dan Friedman and Donna Hill Staton did not participate in this opinion.