Federal guidelines for the prosecution of activists appear to reconstruct a legal framework lost under the Smith Act

A special investigation

A controversial purchasing and investment restrictions bill that, if passed by the New York State Assembly, will go before Gov. Andrew Cuomo (D-New York) (Official Photograph/New York State/Public Domain) for his consideration.  The proposed bill would empower New York State Office of General Services Commissioner RoAnn Destito (not pictured) to create a list of individuals, corporations, and groups engaged in boycotts of certain nations, including Israel, and such individuals, corporations, and groups will be banned from contracting with New York State.  Similarly, Comptroller Thomas DiNapoli (D-New York) (Official Photograph/New York State Comptroller's Office/Public Domain) would be forced to consult the list and ban any state investment activities with such individuals, corporations, and groups.  If human rights activists are identified on such a list, their advocacy careers could be tarnished by a state-sponsored effort to retaliate against activists based on their activism.  There is no information about how OGS Commissioner Destito will compile such a list, but activists have complained that the existence of such a list may lead to a modern-day McCarthyite witch hunt of human rights activists.  One of the lead sponsors of the State Senate bill was State Sen. Simcha Felder (D-Brooklyn) (Official Photograph/Twitter).  If the bill becomes law, some human rights activists have predicted that State Sen. Felder may become compared with former U.S. Senator Joseph McCarthy (R-Wisconsin) (Library of Congress/Wikipedia/Public Domain), who instigated career-ruining witch hunts of political activists solely based on their ideology.

A controversial purchasing and investment restrictions bill that, if passed by the New York State Assembly, will go before Gov. Andrew Cuomo (D-New York) (Official Photograph/New York State/Public Domain) for his consideration.  The proposed bill would empower New York State Office of General Services Commissioner RoAnn Destito (not pictured) to create a list of individuals, corporations, and groups engaged in boycotts of certain nations, including Israel, and such individuals, corporations, and groups will be banned from contracting with New York State.  Similarly, Comptroller Thomas DiNapoli (D-New York) (Official Photograph/New York State Comptroller's Office/Public Domain) would be forced to consult the list and ban any state investment activities with such individuals, corporations, and groups.  If human rights activists are identified on such a list, their advocacy careers could be tarnished by a state-sponsored effort to retaliate against activists based on their activism.  There is no information about how OGS Commissioner Destito will compile such a list, but activists have complained that the existence of such a list may lead to a modern-day McCarthyite witch hunt of human rights activists.  One of the lead sponsors of the State Senate bill was State Sen. Simcha Felder (D-Brooklyn) (Official Photograph/Twitter).  If the bill becomes law, some human rights activists have predicted that State Sen. Felder may become compared with former U.S. Senator Joseph McCarthy (R-Wisconsin) (Library of Congress/Wikipedia/Public Domain), who instigated career-ruining witch hunts of political activists solely based on their ideology.

By LOUIS FLORES

The New York State Assembly is considering legislation that would ban New York State from contracting any business with any individual, corporation, or group that advocates for or is engaged in the boycott of certain allies of the United States.  A similar bill was passed by the State Senate on January 18.

The State Assembly bill proposes to empower RoAnn Destito, commissioner of the New York State Office of General Services, to create a list of individuals, corporations, and groups engaged in boycotts of signatory nations to the North Atlantic Treat Organisation, or NATO ; the Southeast Asia Treaty Organisation, or SEATO ; and the Rio Treaty of 1947, except Venezuela.  Separately included nations are Ireland, Israel, Japan, and South Korea.

Activists for international human rights have become and may continue to be targets of Federal criminal and terrorism investigations, even though the activism of activists has been and is peaceful, a review by Progress Queens has found.  Source :  Photo Illustration/Progress Queens 

Activists for international human rights have become and may continue to be targets of Federal criminal and terrorism investigations, even though the activism of activists has been and is peaceful, a review by Progress Queens has found.  Source :  Photo Illustration/Progress Queens 

Although many nations were included in the State Senate and State Assembly bills, political reaction focused on the state of Israel.

In recent years, there has been a growing international movement calling for a boycott, sanctions, and divestment, known as BDS, in respect of Israel following a finding by the United Nations that the State of Israel had violated the Fourth Geneva Convention, a treaty which bars a nation from transferring its own population from within its own borders into occupied territories. 

That a proposed state law would be created to identify activists engaged in peaceful activism centered around the fight for human rights promises to extend existing Federal law enforcement activity in this area. 

Whereas the proposed New York law, no matter how legally suspect it may be, would have public consequences for individuals, corporations, and groups on that list, Federal actions in this realm are secretive and are focused on investigating activists for possible criminal prosecution over their peaceful protest activities or political organizing work, areas which may also involve boycott work, according to a review of records obtained by Progress Queens from the U.S. Department of Justice under a Freedom of Information Act and First Amendment lawsuit. 

Laws and law enforcement are encroaching on the ability of citizens to engage in political speech, to politically organize, and to petition their government for changes in public policy.  The range of these laws vary to create ladders of engagement by law enforcement whereby the touchpoints would potentially give the Government wide latitude to treat such activists as targets for endless investigation, and, possibly, prosecution.

During the 1940’s and 1950’s, the United States was swept up in irrational fears over a “Red menace,” namely, that the spread of the political and economic ideologies of Communism overseas would influence American citizens to demand government and economic reforms that would potentially subvert the government of the United States.  U.S. Senator Joseph McCarthy (R-Wisconsin) led the charge at that time then to identify without proper evidence activists or supporters of government and economic reforms in an effort to silence political and economic criticism and dissent.  Those, whom the late Sen. McCarthy accused of engaging in subversive acts, were subjected to state-sponsored acts of retaliation, such as being subpoenaed to provide public testimony, acts that led to the creation of blacklists, including in Hollywood and elsewhere, that ruined careers of many individuals.  Hundreds of individuals were charged with crimes under a Red scare law known as the Smith Act.

The potential exists that the proposed New York State law may create a modern day “Red scare.”  Because the proposed New York State law focuses on the economic impact of activists’ political activities, the economic impact is material to the potentiality of activists coming under Federal investigation for the same boycott work.  Under some of the Federal guidelines that govern the prosecution of activists, law enforcement officials can investigate activists if their demonstrations have an impact on the property of foreign governments.  Activists, who advocate for or are engaged in the boycott of certain nations, would naturally have an economic impact on the nations, and the creation of a list the purpose of which would serve to facilitate state-sanctioned retaliation against activists today harkens back to the McCarthy era that led to the creation of blacklists and the Smith Act trials

A state list of activists would make it easier for Federal law enforcement officials to target activists for investigation and possible prosecution

Speaking on background and not for attribution, a state legislative source told Progress Queens that, in the viewpoint of Albany officials, it was not fair to compare McCarthy era laws with the proposed Albany law.  Legislators rejected the McCarthyite accusations, Progress Queens was told by the legislative source.  The legislative intents of the bills was to allow the state to refuse to contract with activists boycotting the named nations, that the list being created would not lead to the arrest of activists, and that the “protections” being offered by the proposed New York State law would apply to some of America’s important trade partners, according to the information provided to Progress Queens by the state legislative source.

Under the proposed New York State law, “the worst” that activists would face would be to be banned from contracting with New York State, according to the state legislative source.  But that is not a complete and accurate representation of the impact of the proposed New York State list of boycott activists, according to records obtained from the DOJ.  Existing Federal law gives Federal law enforcement officials the discretion to commence investigations of activists when their activism, even when peaceful, may have a detrimental impact on the property of foreign governments. 

Whereas the proposed New York State law instructs the OGS Commissioner to notify the activists that the activists have been identified and placed on the purchase restrictions list to give the activists an opportunity to respond to the information, there is no requirement that Federal law enforcement officials similarly notify activists if activists have been identified for investigation or prosecution for what could be the same or similar activism.  Not only is there a lack of a Federal notification or response requirements, but Federal investigations of activists may take place in secret, including involving the use of Federal investigations, principally conducted by the Federal Bureau of Investigation, or FBI, acting to represent Federal interests in the protection of the property of foreign governments.  And this FBI involvement can take the form of FBI agents doing undercover work, and, to further cloak the Federal involvement, the prosecution of activists, if any cases lead to the filing of criminal charges, can be delegated by Federal law enforcement officials to state or local officials, if Federal prosecutors determine that the protest work of activists could be similarly prosecuted under state or local law.  The intent of such mandating would serve to further keep Federal involvement cloaked in secrecy, according to records reviewed by Progress.

The guidelines for such Federal involvement are outlined in §§ 9-65.880-82 of the United States Attorneys’ Manual, or USAM.  These sections were identified to Progress Queens by the U.S. Department of Justice as the guidelines where the DOJ must seek approval before it can prosecute activists for activism.  It is important to note that the DOJ has not fully answered many requests for documents in the Federal lawsuit over the FOIA and First Amendment lawsuit filed by the publisher of Progress Queens, nor has the DOJ answered questions following a due diligence review of the few responsive records produced by the Government.  Nevertheless, according to the information provided thus far, the following analysis of records and information can be made.

Following an explication of the three sections from the USAM.

USAM § 9-65.880 :  DEMONSTRATIONS

The applicable Federal legal statute that governs law enforcement investigations and prosecutions is 18 U.S. Code § 970, which nominally codifies the protection of property occupied by foreign governments.  In looking at 18 U.S. Code § 970, the Federal prosecutors from the U.S. Attorney’s Office, or USAO, normally look at violations occurring during demonstrations of sizable numbers of people that may involve the property of foreign governments, like at embassies or missions.  In such instances, the USAO allows local police departments to maintain order and to make arrests, if necessary.  It can be said that the USAO gives its implicit approval for policing and arrests by allowing local police departments to take the lead.  Even so, the USAO is not relieved of its responsibilities when it allows local police departments to take the lead in policing and the making of arrests, if necessary.  The USAO’s responsibilities commence by participating in coordinated intelligence sharing on “potential disturbances likely to affect a foreign facility and arrangements for needed law enforcement response.”  Thus, even if the USAO allows local police departments to take the lead on policing of demonstrations affecting foreign facilities or foreign properties, the USAO must attend to the exchange of intelligence and the arrangement of law enforcement response. 

The USAO pre-plans for an Assistant U.S. Attorney, or AUSA, to be assigned to monitor the demonstration.  For such demonstrations, the FBI, dispatches observers to the scene, and the FBI observers provide spot reports to the AUSA.  If the USAO does not pre-plan for an AUSA to be assigned to a demonstration, then, upon notification of a demonstration likely to result in a disturbance, then the USAO should assign an AUSA to monitor the demonstration.  Note that the USAO normally considers demonstrations under the applicable law to involve sizable numbers of people.  Therefore, it can probably be said that all demonstrations of such size would be likely to result in a disturbance of some kind, such as affecting street traffic or the use of sidewalks, etc.  Therefore, the wording in the USAM exists to trigger the assigning of an AUSA and the dispatch of FBI observers for all large demonstrations that may be held at foreign facilities or involve foreign properties, like embassies or missions, for example.

The wording in the USAM cast violations of the law protecting foreign facilities or foreign properties to be an extension of violations of local law, and the wording in the USAM highlights an expectation that local police departments will make arrests for those violations of the local law.  In instances where there is no local law that could be used for violations of the federal law protecting foreign facilities or foreign properties, then the USAM authorises arrests under the federal law without law enforcement having to obtain any prior authorisation from the Criminal Division of the DOJ.  According to information obtained by Progress Queens during negotiations with the DOJ, policy of the Criminal Division is set by the Office of the Assistant Attorney General.

(Although 18 U.S. Code § 970 deals with property that the USAM treats as embassies or missions for purposes of demonstrations, the DOJ cited USAM §§ 9-65.880-82 as authority for the Government’s discretion to commence prosecution of the late Internet activist Aaron Swartz, who had been being prosecuted before his suicide for having downloaded intellectual property, indicating that Federal law enforcement authorities apply a very liberal interpretation of what constitutes foreign property for purposes of investigations and prosecutions.)

The USAM reveals that the FBI observers, who are dispatched to demonstrations to obtain spot reports, are not in uniform.  Thus, they act as observers in “plain-clothes.”  According to the guidelines, these plain-clothes FBI observers cannot make any arrests, because their purpose is to act as observers.  Additionally, the guidelines indicate that if the FBI observers wore uniforms, the identification of their explicit presence would create resistance to their work.  In exceptional circumstances, like a member of a foreign facility or foreign property, like a mission, is attacked, the FBI observer or observers would be expected to take protective measures for protected foreign officials.  However, in instances where there are no exceptional circumstances, the USAM provides that all protective measures, including the making of arrests for attacks on mission members, should be taken by uniformed officers.  Almost at all costs, the guidelines in the USAM appear to want to prevent plain-clothes FBI observers from revealing their identities as law enforcement officers.

For matters under this section that are of Federal interest (an area that was deliberately worded to have broad implications), the Counterterrorism Section of the National Security Division has general responsibility for demonstrations.  The USAM cautions U.S. Attorneys (those prosecutors that oversee the AUSA’s) to be alert for demonstrations that indicate “militant political motivation, international in scope with subversive overtones.”  (This wording seems to suggest an intent to target activists based on ideology.)  Thus, demonstrations by people, who express radical dissent, are escalated from an AUSA to the U.S. Attorney, according to the guidelines.  In such escalated instances, the U.S. Attorney must consider reported violations and insure that any other factors, which may highlight a Federal interest in the demonstration and which may affect the prosecutorial merit of a possible violation, are documented in the FBI’s report of the demonstration.

These guidelines are silent about demonstrations that do not involve sizeable numbers of people.  Although the focus of the guidelines in these sections appear to be in respect of embassies or missions, property can also refer to personal property, giving broad latitude to AUSA’s and U.S. Attorneys.

USAM § 9-65.881 : DEMONSTRATIONS – PROCEDURES

The wording in this section of the USAM is complex, and it was probably done intentionally.  

Once the FBI receives information indicating a violation or potential violation of the federal law protecting foreign facilities or foreign properties, the FBI will notify the U.S. Department of State and will consult with the appropriate U.S. Attorney.   A demonstration is coded to be a violation or potential violation of the federal law protecting foreign facilities or foreign properties.  According to the guidelines, the FBI will initiate an investigation “as is deemed necessary if it is determined that Federal presence is warranted,” without qualifying how that is determined.  The contact with the Department of State is nominally described as “notification,” however, if the Department of State did not require an investigation, the time that the Department of State would make that known would be when the FBI notified the Department of State of a violation or potential violation of the Federal law.  Indeed, when the U.S. Attorney is not certain as to whether “the incident will adversely affect the foreign relations of the United States,” the U.S. Attorney is provided a hotline to the Department of State, that will connect the U.S. Attorney with the appropriate Department of State official with whom to consult.  Here, the code word for demonstration shifts from “a violation or potential violation” of Federal law protecting foreign facilities or foreign properties, to an “incident” that “will adversely affect the foreign relations of the United States.”  The severity of the terminology has escalated within one paragraph of the guidelines in this section. 

Once a determination has been made that an investigation is deemed necessary, and corresponding action has been initiated, the FBI will report to each of the Criminal Division of the DOJ, the respective U.S. Attorney involved in the investigation, the U.S. Secret Service, and the Department of State “without delay.”  Whenever there is an unresolved difference of opinion between the FBI, the U.S. Secret Service, the Department of State, and the U.S. Attorney concerning action, or lack thereof, the FBI will bring that unresolved issue to the Criminal Division of the DOJ.  There exists legal guidelines from the Department of State that violations of the federal law protecting foreign facilities or foreign properties that indicate that most conduct in possible violation of the federal law is “more appropriate for disposition under local law.”  (Progress Queens has made a request for such legal guidelines and for records likely to exist before the U.S. District Court in its on-going litigation with the DOJ.  The court has yet to rule on Progress Queens’ request.)

If a U.S. Attorney receives a complaint about a violation of the federal protecting foreign facilities or foreign properties, the individual making the complaint will be referred to the applicable FBI field office, with advice of the applicable Department of State guidelines.  However, the FBI will report the complaint to “the appropriate United States authorities for consideration of possible Federal disposition.”  Although the “appropriate United States authorities” in not spelled out here, presumably this loops back up to the Criminal Division of the DOJ, the respective U.S. Attorney involved in the investigation, the U.S. Secret Service, and the Department of State “without delay.”  

When “the offense” is of a nature that merits Federal prosecution, the investigation should be conducted without regard for whether “the pertinent foreign officials will agree to appear as witnesses at an ensuing trial.”  Here, the code for a demonstration has shifted to “the offense.”  Once the investigation has identified a subject, and once the investigation has accumulated sufficient evidence “to form the basis for Federal charges,” investigators should make a determination “as to whether the relevant foreign officials will agree to testify.”  (Since prosecutors generally only pursue prosecutions in trials that can result in convictions, the repeated emphasis on the pertinent foreign officials agreeing to appear as witnesses may be key for prosecutors to determine whether to pursue a prosecution.)

Even when an investigation of an offense has determined that “there is a Federal interest sufficient to proceed under of the protection of foreign officials statutes,” the USAM guidelines still indicate that there may be an advantage “to defer to a local prosecutor,” particularly when local laws better fit “the crime” than do Federal laws.   (Presumably, if “the crime” is just a demonstration by activists that, for example, is likely to result in a disturbance of some kind, such as affecting street traffic or the use of sidewalks, etc., Federal prosecutors may be rightly deferring the matter to the local prosecutor to impose prosecution with proportionally-appropriate implications.  However, in instances when Federal prosecutors defer the trying of criminal charges to local prosecutors, there can be said to be an implicit admission that the automatic triggering of Federal oversight over activists engaging in local demonstrations may be ensnaring activists for potential Federal scrutiny, even though demonstrations may never result in the bringing of Federal charges.)  

Notwithstanding the deferral by Federal prosecutors of criminal charges to local prosecutors, the USAM guidelines gives USAO’s the discretion to insure that the FBI will monitor the progress of the local prosecution, giving the FBI quasi-oversight over local prosecutors.  In instances where the local prosecutor should drop criminal charges against an activist, the USAO should reëvaluate the matter, and “a new prosecutive determination should be rendered,” meaning that, even if an activist had been scrutinised by Federal prosecutors, but the matter was deferred to local prosecutors, before the activist can be completely cleared of any charges dropped by local prosecutors, the Federal prosecutors at the USAO are given an opportunity to consider the brining of Federal criminal charges against the activist anew.

None of the procedures noted in § 9-65.880 are noted in § 9-65.881.

USAM § 9-65.882 :  DEMONSTRATIONS – INVESTIGATIVE DECISIONS BY U.S. ATTORNEYS

Local police departments have requirements for and give instructions in respect of demonstrations by activists.  Furthermore, the USAM guidelines indicate that FBI agents will explain Federal laws to activists.  Federal law enforcement officials expect that activists will attempt to comply with the requirements, the instructions, and the explanation of Federal laws.  When a demonstration by activists is deemed to be “clearly objectionable” by investigators, such as obstructing an entrance to a building), then the U.S. Attorney may ask the FBI to conduct an investigation in addition to the “normal procedures” outlined in § 9-65.880 (and possibly in § 9-65.881).  As the U.S. Attorney decides whether to commence a Federal investigation, prime factors that the U.S. Attorney must consider are the availability and willingness of local police departments to act, given that local police departments have the resources and the traditional responsibility “to protect people and property.”  However, the USAM guidelines have been shown to include particular sensitivity to the political ideology of activists (if activists subscribe to revolutionary political ideology, for example), or if the demonstrations “will adversely affect the foreign relations of the United States,” then the nominal focus for Federal responsibility “to protect people and property” is not entirely limiting.

As the U.S. Attorney decides whether to commence a Federal investigation, the U.S. Attorney may consult the Department of State “to discuss the potential impact upon the foreign relations” of the U.S. government.  Here, it becomes evident that when activists hold demonstrations that intersect with the foreign policies of the U.S. government, then the USAO may act to investigate activists on behalf of the Department of State.  Although the USAM guidelines speak of demonstration actions that are very minor or incidental, such as perhaps blocking a doorway or the use of amplified sound systems (like a bullhorn), the USAM acknowledges that these are “usually violations” of “local law statutes or ordinances.”  Yet, the USAM guidelines escalate these minor or incidental violations to a degree that they can have “potential impact upon the foreign relations” of the U.S. government.  Regardless of the imbalance between actuality of any potential minor violations of local laws or ordinances and a perception that these violations may somehow impact U.S. foreign relations, the USAM guidelines further acknowledge that local police departments will enforce the local laws or ordinances.  The U.S. Attorney will normally act after the demonstration has ended or when the local police departments fail to or cannot bring charges against activists.  The USAM guidelines specifically note the possibility that local police departments may lack statutory authority to bring charges against activists.  In such cases, or where Federal action is deemed necessary, the U.S. Attorney will investigate activists.

Federal guidelines for the prosecution of activists under the law that protects the property of foreign governments can overlap with the prosecution of activists under the runaway terrorism laws

Given the authority of law enforcement officials to commence investigation and prosecution of activists, agents from the FBI and prosecutors from the U.S. Attorney’s Office may potentially seize on the proposed New York State list of boycott activists as a starting point to launch probes under §§ 9-65.880-82 of the USAM. 

However, it is not known to what extent Federal law enforcement officials will jump at the chance to incorporate potentially new information about the economic activism of human rights activists for purposes of Federal criminal investigations and prosecutions of activists.

For this report, the press office for the U.S. Attorney’s Office for New York’s southern district did not answer general questions submitted in advance by Progress Queens.  There was an indication that perhaps the DOJ may not fully instruct U.S. Attorneys’ Offices about guidelines applicable to criminal prosecution of activists with First Amendment implications.  Consequently, the press office referred these policy questions about the prosecution of activists to the DOJ.  In turn, the DOJ did not answer these general policy questions submitted by e-mail for response, and the DOJ did not answer a follow-up request for an interview for this report. 

There is another, much larger, gray area when activism that includes human rights issues, whether or not they involve boycotts of foreign nations, may be considered by Federal law enforcement officials to constitute providing material support to dissident groups in those foreign nations that are classified as terrorist groups.  Because the work of international human rights activists can also potentially “adversely affect the foreign relations of the United States,” if the U.S. government were to support an oppressive foreign regime, then any U.S.-based human rights activist may already be submitting himself or herself to Federal law enforcement investigation for purposes that could potentially lead to their prosecution.


The administration of former President George W. Bush (Official White House Photograph by Eric Draper/Wikipedia/Public Domain) oversaw two revisions in investigatory guidelines applicable to the Federal Bureau of Investigation, or FBI.  These investigatory guidelines were promulgated by the office of the U.S. Attorney General. In 2002, former Attorney General Michael Mukasey (not pictured) updated the Attorney General’s Guidelines for the FBI.  In 2008, former Attorney General John Ashcroft (Official Photograph/USDOJ/Wikipedia/Public Domain) made further revisions to the Attorney General’s Guidelines.  Some of these guidelines include specific First Amendment considerations.  The investigation of the 23 Midwest peace activists began under the 2002 A.G. Guidelines and later continued under the 2008 A.G. Guidelines.  Throughout all that time, the FBI was headed by Director Robert S. Mueller (Official Portrait/FBI/Wikipedia/Public Domain).  In the subsequent administration, President Barack Obama (Official White House Photo by Pete Souza/Wikipedia/Public Domain) retained Director Mueller as head of the FBI through 2013, a period which included the investigation of the 23 Midwest peace activists.  It was under former Attorney General Eric Holder (Official Portrait/USDOJ/Wikipedia/Public Domain) that the FBI probe of the 23 Midwest peace activists escalated into attempts by Federal law enforcement officials to prosecute the activists.  A Bush-era Federal prosecutor, former U.S. Attorney Patrick Fitzgerald (Official Photograph/USAO/Wikipedia/Public Domain), took the lead in trying to prosecute the activists in the Chicago area.  Grand jury subpoenas were issues, and search warrants were executed.  However, no criminal charges were ever filed against the activists.  In litigation under the Freedom of Information Act and the First Amendment, Progress Queens is attempting to obtain guidelines applicable to Federal prosecutors in criminal cases that the Government brings against activists for their activism.  The guidelines for Federal prosecution are distinct and seperate from the guidelines applicable for Federal investigation.

The administration of former President George W. Bush (Official White House Photograph by Eric Draper/Wikipedia/Public Domain) oversaw two revisions in investigatory guidelines applicable to the Federal Bureau of Investigation, or FBI.  These investigatory guidelines were promulgated by the office of the U.S. Attorney General. In 2002, former Attorney General Michael Mukasey (not pictured) updated the Attorney General’s Guidelines for the FBI.  In 2008, former Attorney General John Ashcroft (Official Photograph/USDOJ/Wikipedia/Public Domain) made further revisions to the Attorney General’s Guidelines.  Some of these guidelines include specific First Amendment considerations.  The investigation of the 23 Midwest peace activists began under the 2002 A.G. Guidelines and later continued under the 2008 A.G. Guidelines.  Throughout all that time, the FBI was headed by Director Robert S. Mueller (Official Portrait/FBI/Wikipedia/Public Domain).  In the subsequent administration, President Barack Obama (Official White House Photo by Pete Souza/Wikipedia/Public Domain) retained Director Mueller as head of the FBI through 2013, a period which included the investigation of the 23 Midwest peace activists.  It was under former Attorney General Eric Holder (Official Portrait/USDOJ/Wikipedia/Public Domain) that the FBI probe of the 23 Midwest peace activists escalated into attempts by Federal law enforcement officials to prosecute the activists.  A Bush-era Federal prosecutor, former U.S. Attorney Patrick Fitzgerald (Official Photograph/USAO/Wikipedia/Public Domain), took the lead in trying to prosecute the activists in the Chicago area.  Grand jury subpoenas were issues, and search warrants were executed.  However, no criminal charges were ever filed against the activists.  In litigation under the Freedom of Information Act and the First Amendment, Progress Queens is attempting to obtain guidelines applicable to Federal prosecutors in criminal cases that the Government brings against activists for their activism.  The guidelines for Federal prosecution are distinct and seperate from the guidelines applicable for Federal investigation.


In September 2010, agents from the FBI searched the homes of peace activists in Chicago, Minneapolis, and Grand Rapids in an anti-terrorism investigation.  Some of the activists had been being monitored by Federal law enforcement officials since at least the 2008 Republican National Convention, held in St. Paul, Minnesota, that year then, for unknown reasons, reported The Chicago Tribune in an article about the law enforcement investigations.  In the time leading up to the execution of the 2010 search warrants, Federal law enforcement officials asserted that they had developed necessary predicates to launch a formal and serious investigation of the peace activists, according to a recounting of a conversation one activist had with former U.S. Attorney General Eric Holder, as reported in an article published by The Washington Post

At the time of the 2008 RNC, Federal law enforcement officials were subjected to a set of rules established by the DOJ, rules that were referred to as the 2002 Attorney General’s Guidelines.  The 2002 AG Guidelines stated that “investigations initiated to anticipate or prevent a crime may ‘not be based solely on activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States,’ ” according to a 2010 report of the DOJ Office of the Inspector General, or OIG.  Under these rules, there were further guidelines for the special treatment of First Amendment activities in the FBI’s Manual of Investigative Operations and Guidelines, or MIOG.  The FBI’s policy in the MIOG acknowledged the First Amendment activities and the “importance of these rights in American society.” 

Some of the guidelines changed after the 2008 RNC.  In the December following the 2008 RNC, the standard for Federal law enforcement officials to commence a general crimes investigation were made “simpler” with the issuance of the 2008 Attorney General's Guidelines, according to the 2010 OIG Report.  However, there remained an emphasis on respecting the First Amendment rights of activists, particularly in the FBI’s Domestic Investigations and Operations Guide, or DIOG, issued in 2008, which included a reflexive reference to the Attorney General’s Guidelines that governed FBI investigations.  “A fundamental principle of the Attorney General’s guidelines for FBI investigations and operations since the first guidelines were issued in 1976 has been that investigative activity may not be based solely on the exercise of rights guaranteed by the First Amendment to the United States Constitution.”  And a key provision in respect of investigations probing statements made that advocate crimes of violence may be investigated “unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm.”

Notwithstanding these guidelines, the 23 Midwest peace activists, who came under Federal investigation in 2010, faced a terrorism probe that began after some of their political activities leading up to, during, and reportedly after the 2008 RNC --  activities which should have been protected by the First Amendment -- somehow helped Federal law enforcement officials to establish a predicate to conduct a terrorism investigation, as it was publicly revealed two years later.

The 2008 RNC proved to be problematic for activists, generally -- even before the first day of the convention, and not just for the Midwest peace activists later targeted for investigation. 

Law enforcement officials executed search warrants on protesters one week before the convention started.  Glenn Greenwald reported that the FBI was coördinating the raids on RNC protesters in accordance with information that the FBI was collecting from informants.  Local police, however, described the crackdown on activists as part of a long-term investigation on anarchists, according to a report published by Minnesota Public Radio

What Progress Queens has been able to determine, based on the preferences of DOJ officials, U.S. Attorneys, and agents of the FBI, is that the Federal government deliberately sought to delegate the investigation of activists to local law enforcement authorities so that the hand of the Federal law enforcement officials could remain cloaked.  This hand-off is documented in §§ 9-65.880-82 of the USAM.  Whereas Mr. Greenwald’s report colored the FBI raid as part of the nation’s endless “war on terror” and the corrupting role of the controversial law known as the Foreign Intelligence Surveillance Act, or FISA, nobody was apparently looking to already existing guidelines that empowered the Federal law enforcement authorities to conduct surveillance of, potentially target activists for investigation, and to ultimately, if so determined, to mount criminal prosecutions of activists. 

Adding to the confusion is that Federal law enforcement officials have succeeded in cloaking their involvement in the prosecution of activists behind the actions of local police departments.  Indeed, in New York, one prominent civil liberties group contacted by Progress Queens would not comment about the Federal implications of the prosecution of activists for this report, instead referring questions about First Amendment considerations missing from Federal prosecution guidelines to the prominent civil liberties group’s advocacy efforts to curtail a local police department’s mistreatment of activists. 

Whereas there have been a substantive issuance of guidelines governing the conduct of investigations by the FBI in the last 15 years due to revisions in 2002 and 2008 of the Attorney General’s Guidelines, the last time the United States Attorneys' Manual was comprehensively revised was in 1997.

FBI investigations of the Midwest activists triggered a backlash

The FBI raids on the 23 Midwest peace activists were seen as being so egregious that the lower Minnesota state legislative house passed a resolution asking President Barack Obama and the U.S. Congress to review the raids.  For their part, activists formed a group to called the Committee to Stop FBI Repression to do similar advocacy on their own behalf, only the activists also directly focused some of their advocacy on then Attorney General Holder, too.  On the group’s Web site is a timeline, through 2012, of the case. 

Efforts were made by the public to try to piece together the Government’s rationale for the raids.  In January 2014, a Minneapolis newspaper, The Star Tribune, joined a legal action to obtain records about the FBI raids on Minneapolis activists.  One month later, documents obtained by two activists and reviewed by The Associated Press for a report revealed that an undercover FBI informant obtained information indicating that some of the activists believed in the “violent, armed revolution against the U.S.” and that some of the activists had “raised money for Colombian and Palestinian organizations the government considers to be terrorists,” according to The Associated Press report.  Because the Federal guidelines applicable to the prosecution of activists, as known to Progress Queens, show particular sensitivity to an ideology that includes “militant political motivation,” that loose standard, which is subject to subjective interpretation, may be enough to make many protesters on the vanguard of activism to become vulnerable to Federal criminal investigation.

Nearly a year after the FBI executed its search warrants on the Midwest peace activists, a June 2011 article published by The Washington Post noted that some of the activists, who had been targeted, included “prominent peace activists and politically active labor organizers,” raising the spectre that the probe would possibly create “some political discomfort” for President Barack Obama, since some of the activists had “crossed paths” with then State Senator Obama.  Other activists had been “active in labor unions,” which had supported State Senator Obama’s political rise, the article noted.  Yet, the report in The Washington Post improbably raised the question about whether President Obama was even aware of the probe of some of his past political supporters, even though any serious DOJ investigation that would potentially have a political bearing on the White House would have required political clearance of some sort.  During the term of former Attorney General Holder, no probe was ever launched that could have caused a political embarrassment for President Obama.

For this report, Progress Queens contacted the FBI field offices in each of Chicago and Minnesota. 

A source in the FBI field office in Chicago would not confirm or deny any details about any investigation of the activists.  The source said that, generally, in such investigations, the FBI conducts the investigations, and Federal prosecutors with the U.S. Attorneys’ Offices would follow the manual in respect of the cases against the activists.  Federal prosecutors would determine whether thresholds were met in regard to prosecutions and investigations, saying of Federal prosecutors, “They are the ones, who decide.”

In response to a request for an interview, a source with the FBI field office in Minneapolis said, “I’m not at liberty to discuss those kinds of investigations.”

Attempts to conduct interviews with officials with the U.S. Attorneys’ Offices for Illinois’ northern district and for the Minnesota district were unsuccessful. 

A never-ending encroachment by Federal law enforcement on the political activities of activists

None of the 23 peace activists in Illinois, Minnesota, or Michigan, who which were ensnared in the 2010 FBI probe, have testified before a grand jury, despite having been served with subpoenas compelling them to do so.  And none of the 23 activists have faced criminal charges, indication in the eyes of activists and their attorneys that the Government never had a credible criminal case against them.  What is more, an attorney for some of the activists said during an interview for a report published by The Star Tribune that the blowback that the DOJ received for having targeted activists for investigation may have deterred Federal law enforcement officials from pressing forward with prosecutions, another sign that the cases may have involved overreach to test the public’s acceptance of the prosecution of activists, even if the prosecutions would have compromised the activists’ First Amendment rights.

The records reviewed by The Associated Press showed that the Government had used “government resources to infiltrate dissident political groups,” adding that the Government had sought “to use evidence of political activity opposed to U.S. foreign policy as proof of criminal intent,” Bruce Nestor, an attorney for two of the Minneapolis-based activists, told The Associated Press.

It was clearer now that activists, who opposed the foreign policy of the U.S. government were going to potentially become the targets of Federal investigation by the Obama administration.

That the activists evidently faced years of investigation that ultimately led to no prosecution might violate applicable investigation policies and procedures.  Guidelines in place during the 2008 RNC directed that checking of initial leads “should be conducted with an eye toward promptly determining whether further exploration, “either a preliminary inquiry or a full investigation)[,] should be conducted.”  The checking of leads by the FBI were not limited to any types of investigative techniques under the guidelines applicable during that time then. 

After the 2008 AG Guidelines came into effect, however, FBI procedures created a loophole, allowing the agency to initiate “assessments” as a type of investigation without any factual predication.  The only limitation restricting the conduct of assessments as a type of investigation were investigative techniques that included obtaining publicly-available information, engaging in observation, or engaging in surveillance that did not require a court order.  Notwithstanding the direction that the checking of leads for the most minimal type of investigation be made promptly, it is not known if there existed then, or exist now, any restrictions on Federal prosecutors with the various U.S. Attorneys’ Offices around the nation to reasonably terminate dead-end investigations once they have been begun.

Nor is it known if there are any First Amendment-specific policies applicable to Federal prosecutors that could be comparable to the First Amendment-specific policies applicable to the FBI, for example.  The lawsuit filed by the publisher of Progress Queens in Brooklyn Federal court has sought to obtain records about how Federal prosecutors balance the First Amendment, civil rights, civil liberties, and other civil rights of activists in cases that the Government may bring against activists over their activism.  In dispositive motion practice filings with the U.S. District Court for New York’s eastern district made by Assistant U.S. Attorney Rukhsanah Singh, the Government rejected accusations that the DOJ was withholding such records because, “There can be no withholding when, as in this case, no responsive records exist.”  To no surprise, AUSA Singh and others, including Assistant U.S. Attorney Angela George, have surreptitiously acted to thwart the release of such records.  AUSA George is a Federal prosecutor, who tried LGBT civil rights activist Lt. Daniel Choi for his activism that largely contributed to the over-turning of the Government’s formerly discriminatory policy against open gays and lesbians from serving in the U.S. military, known as “Don’t Ask, Don’t Tell.”  In opposition pleadings, Progress Queens has demonstrated that records likely exist and has made a demand for those records.

It is not precisely known at what type of investigation the FBI initiated in respect of the information its undercover informant had received in the case of the 23 Midwest peace activists.  Because the policies and procedures allow for basic inquiries to graduate to higher forms of investigations, the type of investigation could have changed over time.

Expanding the ability of Federal law enforcement to prosecute activists for anti-war activism was the PATRIOT Act of 2001.  Prior to passage of the PATRIOT Act, it had already been unlawful to provide material support to groups identified by the U.S. Secretary of State to be foreign terrorist organizations.  What the PATRIOT Act did was to expand the definition of “material support or resources” to include the provision of “expert advice or assistance.”  In a test case that went all the way up to the U.S. Supreme Court, the Supreme Court justices ruled that the amended material support law does not violate activists’ freedom of speech guaranteed by the First Amendment.

The Government’s case against the 23 Midwest peace activists, once the FBI had completed enough of whatever type of investigations they commenced, were handed up to the U.S. Attorneys’ Offices in each of Chicago and Minneapolis.  It was shown that Federal prosecutors were seeking information from the execution of the search warrants about records showing whether the activists had provided “material aid” to groups identified by the U.S. Secretary of State to be foreign terrorist organizations, including the Popular Front for the Liberation of Palestine.  

Two Minneapolis-based activists were members of a group known as the Freedom Road Socialist Organization, a group that, according to The Associated Press, had been open about its Marxism philosophy, and members of Freedom Road had been, in turn, supportive of another group, the Revolutionary Armed Forces of Columbia, a group referred to in that nation by the acronym, FARC.  The Government made fantastical accusations against one of the members of Freedom Road, claiming that Freedom Road, despite not having enough members and not being “there yet,” had a plan to seize locations as part of armed revolution.  The Government also claimed that Freedom Road had used activism to steer money to the Popular Front for the Liberation of Palestine.  Both FARC and the Popular Front were designated in 1997 as terrorist organizations by the U.S. Department of State by former Secretary of State Madeline Albright during the second term of former President Bill Clinton.

One Minneapolis activist described the fantastical Government accusations as “lies,” according to The Associated Press report.

A potential Federal political bias against making economic and democratic progress

Just because some activists may subscribe to revolutionary thought does not necessarily mean that their ideology cannot be allied with the U.S. government.  During World War II, the progressive administration of President Franklin Roosevelt had a no-strike policy with some Communists union activists in order to guarantee steady industrial production from America’s factories.  The ideas of social and economic protections for Americans is what led to the creation of policies that provided some employment and income protections for workers.  After the war, the political sensibilities changed in Washington, and the high degree of central Government planning of the economy that helped fight the Great Depression began to be unwound, and activists with a revolutionary bent became the target of McCarthyism efforts to purge the nation of any ideology that could potentially disrupt the financial boon from the rapid spread of capitalism that was set to enrich the coffers of large U.S. corporations.

Many human rights activists have long objected to the classification of some groups as terrorist organizations.  Minneapolis activists targeted by the Government for investigation, for example, objected to the Department of State classifying FARC and the Popular Front as terrorist organizations.  Separately, human rights activists opposed to the illegal Israeli occupation of the West Bank and the Gaza strip have informed Progress Queens that when the Department of State classifies certain groups as terrorist organizations, the United States is prolonging human rights violations in the foreign countries where those groups operate, like in Israel.  Israel, for example, has been found to be in violation of Fourth Geneva Convention, a treaty which bars a nation from transferring its own population from within its own borders into occupied territories.  Despite the human rights violations, recognized by the United Nations, the United States has essentially made it illegal for activists to advocate on behalf of some human rights groups within Israel.

Intersecting with Federal guidelines for the prosecution of activists is the new, proposed New York State law, which could potentially give Federal authorities a list of human rights activists advocating for economic sanctions against Israel, which could conceivably be interpreted by Federal prosecutors to lead to a diminishment of the property of a foreign government.  Morever, as one of the attorneys for the 23 Midwest peace activists warned, the Government has been seeking “to use evidence of political activity opposed to U.S. foreign policy as proof of criminal intent.”

Of the proposed New York State law, international human rights activist Pauline Park told Progress Queens that state legislators were creating a backdoor way to punish free speech by banning activists from contracting with New York State, adding that this amounted to a curtailment of civil liberties and rights of individuals and organizations to advocate in the public sphere.

To some human rights activists, the Government’s efforts to target activists in respect of demonstrations, including advocating for boycotts and economic sanctions of foreign governments, conveniently overlook the advocacy of other groups that essentially want to maintain a status quo of human rights violations.  Whereas the United Nations has declared that Israel is violating human rights of its citizens, the United States is sidestepping any responsibility to act to pressure Israel to comply with international human rights laws.  Instead, the Government has been targeting human rights activists, and some activists told Progress Queens that the Government’s actions may have something to do with the influence of overseas groups advocating a status quo.  If it were true that the U.S. government has been more concerned with political influence, “international in scope with subversive overtones,” then the U.S. has been being duplicitous about the equal application of its own legal standard, effectively allowing political bias to determine which international influence to treat as subversive.

Speaking of the New York State Senators, who voted to pass the purchasing and investment restrictions bill, Ms. Park said, “They are afraid of BDS, because it’s gaining traction,” referring to the international boycott, division, and sanctions movement against the State of Israel.  “Who knows what the actual impact of the bill will be,” Ms. Park added, “but it will have a chilling effect [on speech].”

Whereas the focus of some activists may be on the technicalities of the proposed New York State law, activists are overlooking the role that the list being created could have on triggering Federal investigations of activists under laws applicable to the protection of the property of foreign governments.  Besides the state bill, other laws, already in effect, like the protest permit law in New York City, could potentially be used against activists under Federal investigations if the demonstrations affect the property of foreign governments.  The shifting of these touchpoints to local and state laws masks the reach of Federal law enforcement officials, particularly the FBI and Federal prosecutors from the U.S. Attorneys’ Offices.

Using terrorism investigations to circumvent First Amendment protections of activists

During the 2008 RNC, the guidelines applicable to general crimes investigations would have allowed Federal law enforcement authorities to commence a full investigation when there was a reasonable indication that “a federal crime has been, is being, or will be committed.”  This standard is “substantially lower” than having to establish probable cause, and amongst the circumstances that an investigator could consider included a “future violation.”  Some guidelines in place during the 2008 RNC allowed Federal law enforcement officials to investigate the relationships between members of a group being investigated as a terrorism enterprise, even as applicable regulation cautioned investigators about the use of investigative techniques having an effect on the privacy rights of individuals and any resulting potential damage to the reputations of individuals under investigation.  Other guidelines in place during the 2008 RNC were more restrictive, because a “mere hunch” was “insufficient” to initiate a general crimes investigation.  And Federal law enforcement authorities could not keep records solely about the First Amendment activities of individuals. 

In respect of terrorism enterprise investigations, the guidelines in place during the 2008 RNC stated that “mere speculation that force or violence may occur during the course of an otherwise peaceful demonstration” was not sufficient to initiate a terrorism enterprise investigation.  However, the same applicable guidelines would have allowed a terrorism enterprise investigation to be initiated if there was reasonable indication that two or more persons were purposefully “furthering political or social goals wholly or in part through activities that involve force or violence and a violation” of Federal criminal law, again creating the possibility that activist, who subscribed to revolutionary or vanguard political thought, could become targets of investigation solely because of their ideology.  

Anytime that violence is the subject of a Federal criminal investigation, a question arises about the Government meeting the applicable holding legal standard in prosecution cases, namely, that violence must involve an “intent to harm” to become a prosecution that will uphold in court.  The fact that the Government could not meet that standard in the case of the 23 Midwest peace activists may indicate that the Government may be abusing terrorism investigations as a way to investigate the political activities of activists.  Since there appear to be fewer or no First Amendment considerations in terrorism enterprise investigations (as opposed to general crimes investigations), the Government has more leeway to probe the political organizing of activists in the realm of terrorism investigations.


U.S. Attorney Preet Bharara is the nation's top Federal prosecutor for New York's southern district.  He has earned accolades for prosecuting political and campaign corruption.  However, he has prosecuted cases against activists, and his office led the charge on investigating activists over their political speech that had no prospect for harm, leading to criticism that his office was trampling on the First Amendment rights of activists.  Source :  Louis Flores/Progress Queens/File Photograph

U.S. Attorney Preet Bharara is the nation's top Federal prosecutor for New York's southern district.  He has earned accolades for prosecuting political and campaign corruption.  However, he has prosecuted cases against activists, and his office led the charge on investigating activists over their political speech that had no prospect for harm, leading to criticism that his office was trampling on the First Amendment rights of activists.  Source :  Louis Flores/Progress Queens/File Photograph


(But even in general crimes investigations, the Government has been attempting to ignore having to establish the legal predicate of intent to harm.  In 2015, the U.S. Attorney’s Office for New York’s southern district issued a Grand Jury subpoena to Reason.com, seeking identifying information, such as e-mail addresses, I.P. addresses, and device information, of readers of Reason.com whom had posted comments that belittled a Federal judge, who had, in turn, presided over the Silk Road case, even though there had been no intent to harm established in the comments of Reason.com readers.)

Policies and procedures that would be introduced with the 2008 AG’s Guidelines would have allowed predicated investigations to be “carried out to detect, obtain information about, or protect against federal crimes or threats to the national security or to collect foreign intelligence.”  The 2002 AG Guidelines would not have allowed the FBI to open preliminary enterprise investigations using a lower legal standard that had existed under the previous applicable guidelines, and the 2008 AG Guidelines restricted the FBI to opening full investigations of groups suspected of terrorism, rather than giving the FBI the option of opening a preliminary inquiry, an authority that had existed under the 2002 AG Guidelines.  It was amidst the loosening and the tightening of Federal investigation guidelines that the Government was able to, according to former Attorney General Holder, establish a predicate to prosecute the 23 Midwest peace activists.

After more than three years had passed from the September 2010 raids and The Associated Press had published its report of the raid documents, the exasperation of activists had reached a new peak, because nobody had been formally charged with any Federal crimes.  There had been no crimes of violence, and that was because there were no statements made by activists with a real prospect for harm, the legal standard that needed to have been met for Federal criminal investigations of activists that could have trumped the activists’ First Amendment rights. 

In the view of some activists, the Government was not so much targeting the activists as much as the Government was focusing on those supporting FARC and the Popular Front, the two groups that the Department of State had classified as terrorism organizations. 

Speaking about her observations about the Government’s case as a lawyer for some of the activists, Chicago attorney Melinda Power told Progress Queens that, in her view, the Government’s case against the 23 Midwest peace activists would have solely been a First Amendment violation if the government had targeted the peace activists.  “If their claim had been legitimate,” Ms. Power said, referring to the Government’s accusation that the activists were acting with an intent to harm, then “it would not have been a First Amendment violation.”

Since the Government did not establish a predicate for an intent to harm, that leaves open for interpretation whether the net effect of the Government’s intrusion on the political activities of the activists and the miscasting of the reputations of the activists as suspects in terrorism investigations may have violated the 2002 AG Guidelines in respect of the use of investigative techniques during preliminary and full investigations for investigations that commenced in the time leading up to the 2008 RNC.

Ms. Power told Progress Queens that if the Government had been intending to disrupt the free speech of activists, who supported human rights in Columbia and in Israel, then the Government’s case against the 23 Midwest peace activists backfired.

The Government did not have the response that they wanted, the Government did not chill the First Amendment rights of activists, and “people were so mad” that they organized a campaign to push back against the Government’s intrusion on activists’ political organizing, Ms. Power told Progress Queens.

Ms. Power made the distinction that whilst the First Amendment was not violated, it was also not respected.  The Government’s efforts to intrude on the political activists of activists were met with resistance, “since the Government tried and was unsuccessful to intimidate people,” she said, adding that, since none of the activists were ever prosecuted, that was “significant in and of itself.”

Indeed, the work of the Committee to Stop FBI Repression has continued to raise scrutiny about the First Amendment implications of Federal law enforcement’s investigations of activists by “organizing to stop FBI harassment of anti-war and international solidarity activists.”

The case of the 23 Midwest peace activists was unique, in the sense that the activists were connected to influential Leftists groups, like labor unions, and the activists had access to knowledgeable and courageous legal counsel.  In many other cases, where the Government may target activists, that may not be the case.  Even when activists do have access to resources and expert legal counsel, as did the late Mr. Swartz, the Government may act in vindictive prosecution that can ultimately ruin lives.

With all of the questions surrounding the Government’s inept attempt to prosecute the 23 Midwest activists, Federal law enforcement officials never explained themselves to the lawyers for the 23 Midwest activists.  U.S. Attorney Patrick Fitzgerald, who no longer holds the post, was an appointee of President George W. Bush.  U.S. Attorney Fitzgerald was never in communication with Ms. Power, for example.  Ms. Power said that lawyers had tried to speak with officials with the FBI to demand the return of the property seized from activists during the execution of the September 2010 search warrants.

For a period of time, a group can be labeled a terrorism organization by the United States, only to later be recognized with political legitimacy

What makes the Chicago case disturbing to human rights activists is that the Government is treating groups that oppose oppressive regimes in their respective homelands as terrorist organizations in the United States, but the United States takes no actions against the oppressive regimes. 

For example, the Government applied this duplicitous treatment to the African National Congress, the South African anti-apartheid group formerly chaired by the late Nelson Mandela.  The United States treated the African National Congress as a terrorist organization after the apartheid regime in South Africa viewed efforts to end the status quo of apartheid as a threat to the state.  Moreover, South African officials raised flags about some African National Congress members having established allies with Soviet Communist officials.  For decades, the United States officially treated the African National Congress as a terrorist organization, and Mr. Mandela, even after he was awarded the Nobel Peace Prize, was still on the U.S. government’s terrorism watch list.

Activists supporting anti-apartheid efforts in Israel have modeled their BDS movement after the successful efforts that activists used in the divestment movement against South Africa that eventually pressured the South African government to end apartheid.  Indeed, the first step that the nation of South Africa took to end apartheid was to formally recognize the African National Congress and other anti-apartheid groups as legitimate political organizations.  Ultimately, the U.S. followed suit, but it was decades later.

To many human rights organizations, that the United States was wrong to classify the African National Congress as a terrorist organization and its slow response to officially recognize the groups’ work for its legitimate political purposes points to the Government’s fallibility in the realm of global human rights work.  To some human rights activists, supporting the work of groups engaged in the struggle to end apartheid in Israel, or, alternatively, to support a boycott of Israel until Israel ends its regime of apartheid, is comparable to when human rights activists supported the work of the African National Congress to end apartheid in South Africa decades ago, or alternatively, to have supported a boycott of South Africa until South Africa ended its regime of apartheid.  The logic of the Government to label groups like the African National Congress as a terrorist organization means that, to some degree, the United States was defending apartheid in South Africa.  By the same logic, by opposing the work of some anti-apartheid groups in Israel, the United States has been similarly defending apartheid in Israel.

Federal guidelines for the prosecution of activists appear to be an attempt to reauthorize the Government to try activists under a legal framework lost under the old Smith Act

For decades, the Government has been predisposed against some political ideologies to the consternation of activists.  

In 1940, the United States made it a crime for citizens to become members of groups that advocate the violent overthrow of the Government.  The crime was established with the passage of the Smith Act.

The Smith Act was hastily passed through Congress after a national paranoia had been created about the possibility of treason from within the United States in the time leading up to World War II, and one intent of the Smith Act was to target Communists in response to this fear.  The Smith Act also served to silence anti-war activists, because critics of the Government’s war policies would be portrayed as being part of a “Red menace” effort to oppose the United States entry into World War II.  (As with the case against the 23 Midwest peace activists and, now, against New York BDS activists, the Government appears to be targeting critics of U.S. foreign policy in new and novel ways.)

According to the political ideology known as Marxism-Leninism, moving a society from capitalism to socialism could involve revolution.  Consequently, individuals, who are members of groups that follow a Marxist ideology, faced prosecution under the Smith Act. 

Over 200 individuals were prosecuted under the Smith Act until the United States Supreme Court ruled that individuals had a First Amendment right to belong to groups that espouse unlawful means to achieve their political ends.

What happened in the case of the Illinois, Minnesota, and Michigan activists was that it has appeared to some activists that the Government was trying to use the nexus of various Federal guidelines to be able to target activists for prosecution.  If there was “no prospect of harm” in those cases, as it surely came to be seen, given that none of the activists ever faced criminal charges, then the Government may have been solely basing its cases against the activists on the activists’ ideology.  However, ever since 1957, when the nation’s top court ruled in Yates v. United States, it has been established law that the abstract teaching of a radical doctrine, like the overthrow of a government, does not violate the Smith Act, unless there is a showing of an “incitement to action” that would forcibly overthrow the Government.”

As much as can be gleaned about the Government’s case against the 23 Midwest peace activists, the Government investigation basically rested on records about the activists’ First Amendment-protected political organizing that is protected by the rights to free speech and free association.  If the Government never established an “intent of harm,” then the Government’s bases that established the predicate for the investigations-- which one of the activists described as “lies” --  would have only been recordations of activities protected by the First Amendment, a violation of Part VI of the 2002 AG Guidelines applicable to investigations authorized for counterterrorism purposes, applicable in the time leading up to the 2008 RNC.  However, those same guidelines still allowed for counterterrorism investigations to be authorized even in the “absence of a checking of initial leads, preliminary inquiry, or full investigation,” according to the 2010 OIG Report.  Indeed, the 2002 AG Guidelines in effect at the time of the 2008 RNC, to which the case of the 23 Midwest peace activists can be traced, allowed the FBI to investigate the structure, scope, and relationship of members in a terrorism enterprise investigation.  The focus was supposed to be on these aspects rather than on the individual participants and the acts of individuals ; although, the latter aspects were not entirely ruled out.  This analysis is premised on the assumption that when the U.S. Attorneys’ Offices in Chicago and Minneapolis, which took the lead on the investigations of the activists for possible prosecution, were handling investigations classified as domestic terrorism.

Some guidelines in place during the 2008 RNC allowed Federal law enforcement officials to investigate the relationships between members of a group being investigated as a terrorism enterprise, even as applicable regulations cautioned investigators about the use of investigative techniques having an effect on the privacy rights of individuals and any resulting potential damage to the reputations of individuals under investigation.

For this report, Federal prosecutors in the U.S. Attorney’s Office for New York’s southern district, arguably the most busy and the one with the best-trained lawyers, who handle the most complex Federal legal cases, denied requests made by Progress Queens to discuss Federal guidelines applicable to the U.S. Attorneys in cases that involved the prosecution of activists.  Therefore, this report does not include representations that could be made by the Government.  True to the intentions of Federal law enforcement officials to hide behind the hand of local or state law enforcement, other officials with Federal law enforcement agencies did not want to comment about the cases of the 23 Midwest activists.  Nonetheless, a source from the Federal prosecutors’ office in Manhattan denied that the Government targeted activists for prosecution, writing in an e-mail that, “as an overarching principle,” Federal prosecutors “bring cases based on a probable cause finding by a judge or grand jury that federal laws have been broken.  People are not prosecuted for the exercise of Constitutionally protected activities, including those protected by the First Amendment.”  Rather than to frame cases against activists as involving the First Amendment, it appears that Federal law enforcement officials categorize those cases as being about the breaking of Federal laws, even though Federal investigation guidelines exist that specifically contain First Amendment considerations.

In contravention of Federal guidelines that included considerations about the potential damage to the reputation of individuals, the Government did commence terrorism investigations of 23 peace activists without ever making a probable cause finding of intent of harm.

In time leading up to the 2008 RNC in St. Paul, the Minneapolis Joint Terrorism Task Force was recruiting people to serve as informants to infiltrate vegan gatherings in order for the informants to “rub shoulders with RNC protestors” then report back to the Joint Terrorism Task Force, according to a report originally published by Firedoglake.  The 2010 OIG Report, which reviewed the FBI’s investigations of domestic advocacy groups, documented the FBI’s terrorism investigations of anti-war activists in Pittsburg, animal rights activists associated with People for the Ethical Treatment of Animals, or PETA, and other groups.  Whereas the Smith Act had been gutted by U.S. Supreme Court decisions, including the Yates case, the Government was able to nonetheless turn to the 2002 and 2008 AG Guidelines applicable to the FBI to apparently target activists for their ideology.  These guidelines are self-promulgated by the U.S. Attorney General.

No matter which pockets of activists that the Government has investigated, Federal law enforcement officials’ attempts to “overreach” their powers to target activists for their ideology have turned up empty.  From the 23 peace activists in the Midwest, to the anti-war activists in Pittsburg, to activist members of PETA, the Government has not been able to prove it established the predicates to commence or continue investigations that were basically founded on activists’ ideology and apparently nothing else.  Of the 2010 OIG Report, the journalist Andrew Cohen filed a report for The Atlantic, concluding that, “The 209-page report, signed by Inspector General Glenn A. Fine, concluded that while none of the groups were targeted by the FBI for their views alone -- one of the key allegations made by critics of the surveillance -- the Bureau nevertheless engaged in tactics and strategies toward those groups and their members that were inappropriate, misleading, and in some cases counterproductive.” 

The Government appears to be focused on regaining the power to investigate and prosecute activists solely for their ideology, as was the case between the time after the Smith Act was enacted but before the Smith Act was gutted by U.S. Supreme Court decisions.  Within Federal law enforcement agencies, there must still run a “Red scare”-like paranoia about the reform efforts of grassroots groups that has now transcended worries about the spread of Communism, but now includes critics of U.S. foreign policy and, even, animal rights activists.

The 2010 OIG Report looked back at cases that the FBI investigated during the administration of former President George W. Bush, but, as demonstrated by the case of the 23 Midwest peace activists, which were investigated during the administration of President Barack Obama, the intent of the Government to expand its investigatory powers over activists has crossed party lines and presidential administrations.

Ms. Power, one of the attorneys for the 23 Midwest peace activists, said that, “It’s not a Democrat or Republican issue.  It’s the nature of the state.  It will do what it needs, to preserve itself.”