State Department, Clinton campaign mum on Secretary of State's authority over the prosecution of activists

BY LOUIS FLORES

The U.S. Department of State is remaining quiet about a report published by Progress Queens raising questions about activists possibly being investigated solely based on their ideology.  Under some Federal guidelines for the prosecution of activists, the U.S. Department of State offers legal direction to Federal prosecutors.

Former U.S. Secretary of State Hillary Rodham Clinton, seen here in a 2016 appearance in Des Moines, Iowa, had some authority over the prosecution of activists.  Source : CC BY-SA 3.0 Gage Skidmore/Wikipedia

Former U.S. Secretary of State Hillary Rodham Clinton, seen here in a 2016 appearance in Des Moines, Iowa, had some authority over the prosecution of activists.  Source : CC BY-SA 3.0 Gage Skidmore/Wikipedia

The report, a look back on the failed efforts by Federal prosecutors to bring criminal charges against 23 Midwest peace activists, raised the possibility that Federal law enforcement officials are trying to self-promulgate authority to investigate activists, including human rights activists, whose activism may be based on controversial ideology, including political thought, for example, that may run counter to U.S. foreign policy.

Requests made by Progress Queens to the press office of the U.S. Department of State were not answered.

The special Progress Queens report was the first long-form report published with the benefit of the few responsive documents produced by the U.S. Department of Justice in response to a request filed in 2013 by the publisher of Progress Queens in accordance with the Freedom of Information Act, or FOIA.  According to analysis by Progress Queens, there were two possible frameworks of guidelines that could have governed the investigation of the 23 Midwest peace activists.  One framework of guidelines applicable to the Federal Bureau of Investigation, or FBI, changed over time, and the nexus of these guidelines included some provisions that would have respected the First Amendment rights of the activists to engage in political activities.  However, a 2010 Federal audit of the FBI’s compliance with those guidelines revealed that there were times when Federal law enforcement officials did not comply with their own guidelines.  According to a report filed by the journalist Peter Wallsten for The Washington Post, then U.S. Attorney General Eric Holder claimed that law enforcement officials had established the predicate for a terrorism investigation of the 23 Midwest peace activists.

A controversial U.S. Supreme Court ruling in the 2010 case, Holder v. Humanitarian Law Project, affirmed the PATRIOT Act's expansion of Federal prosecutors’ abilities to bring terrorism charges against citizens providing support to groups designated as terrorist organisations.  The ruling indicated that the PATRIOT Act did not violate free speech, which activists, particularly human rights activists, interpreted as a setback to the guarantees in the First Amendment.

Under a parallel or alternative legal framework, Federal prosecutors could have possibly investigated the 23 Midwest activists under guidelines in the United States Attorneys’ Manual, a guidebook for the nation’s top Federal prosecutors.  It is not yet known if prosecutions of activists launched by Federal prosecutors in accordance with that manual have any First Amendment provisions that would have respected activists’ rights to engage in political activities.  What is known is that, according to the guidelines in the United States Attorneys’ Manual produced by the U.S. Department of Justice, the U.S. Department of State has a role in determining whether activists should face prosecution for some forms of activism that may impact on the property of foreign governments, an area of law that is not clear but could have applied in the case of the 23 Midwest peace activists.  Requests for interviews and questions submitted in advance by Progress Queens to various U.S. Attorneys’ Office and to the U.S. Department of Justice were never answered.  However, one spokesperson for the U.S. Attorney’s Office for New York’s southern district 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.

According to § 9-65.881 of the Unites States Attorneys’ Manual, “If a United States Attorney's Office receives a complaint of violation of section 970, the complainant should be referred to the FBI field office concerned, with advice that, as indicated in the Department of State communication, most conduct in possible violation of section 970 is more appropriate for disposition under local law, but the FBI will report the complaint to the appropriate United States authorities for consideration of possible Federal disposition.” In this passage, 18 U.S.C. § 970 relates to the Federal law governing the protection of property of foreign governments.

In its litigation with the U.S. Department of Justice, Progress Queens has made a request for a copy of the U.S. Department of State legal guidance, for related records likely to exist, and for other records.  Those records have not yet been produced, and the U.S. Department of Justice is opposing efforts by Progress Queens to obtain those records.

Activists faced prosecution during Secretary of State Clinton's time in office

At the time when the Government’s investigation of the 23 Midwest peace activists became public, former First Lady Hillary Rodham Clinton was Secretary of State, putting her in a position to have some possible say over the Government’s investigation of the 23 Midwest activists.  But her role was never made public.  For example, when Mr. Wallsten, the journalist, filed his report for The Washington Post, he described the case against the 23 Midwest activists as a sort of a mystery, not knowing what was the basis of the investigation and speculating whether President Barack Obama, who had known some of the activists when he was a former Illinois state senator, would have even known that the Government was investigating the activists. 

A request made by Progress Queens to former First Lady Clinton’s presidential campaign for an interview for this report was not answered.

For the long-form report published by Progress Queens, a source with the FBI Chicago field office would not confirm or deny any details about any investigation of the activists, but the source said that in investigations of activists, generally, the FBI conducts the investigations, and Federal prosecutors with the U.S. Attorneys’ Offices follow their manual in respect of the cases against activists.  The source told Progress Queens that Federal prosecutors would determine whether thresholds were met in regard to prosecutions, saying of Federal prosecutors, “They are the ones, who decide.”

In the cases against the 23 Midwest activists, Federal prosecutors made spectacular allegations, alleging, in part, that some activists were members of a group that subscribed to Marxist philosophy, that some activists reportedly expressed revolutionary thought, and that some activists were steering money from activism to the Popular Front for the Liberation of Palestine, a group designated by the U.S. Statement Department as a terrorist group.  The Popular Front for the Liberation of Palestine was 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.  As a consequence of the Government's allegations against the 23 Midwest peace activists, Federal law enforcement officials claimed that the activists’ actions were enough to establish a predicate for the FBI to commence a terrorism investigation against the activists. 

But the Government’s case against the 23 Midwest peace activists was met with skepticism and resistance.  There is also a glaring inconsistency in the U.S. Government's treatment of the Palestinian group.  For example, the Popular Front for the Liberation of Palestine, a secular group that advocates for a one-state solution to the Israeli-Palestinian conflict, is not treated as a terrorist group by other nations, such as the United Kingdom and India, which, like the United States, are also engaged, in one form or another, in the War on Terror.  Human rights activists have noted that one group, which the U.S. Department of State had classified as a terrorism organisation, the African National Congress, was later deemed a legitimate political group after that group had succeeded in ending apartheid in South Africa.

Despite the Government’s sensationalistic allegations, Federal prosecutors never proved that there was any prospect of harm from the activists’ activism, a legal threshold that needed to have been met in order for the investigations to lead to prosecutions.  In the absence of any proof of a prospect of harm, the Progress Queens report questioned whether the Federal investigations of the activists were solely based on the activists’ ideology.  As noted in the Progress Queens report, the Government has been forbidden from prosecuting activists for their ideology, even for ideology that may be based on revolutionary thought, ever since the U.S. Supreme Court ruled in a 1957 case, Yates v. United States, that prosecutors could not bring criminal charges against activists subscribing to revolutionary political thought, a ruling that basically gutted a law known as the Smith Act that had basically underlined the McCarthy era.  Although nominally based on laws, the Federal guidelines for the prosecution of activists under both legal frameworks examined by Progress Queens are self-promulgated by Federal law enforcement officials.

Whilst activists face investigations for political thought, Candidate Clinton proposes to turn over online censorship powers to foreign corporations

The revelation that former Secretary of State Clinton had some authority over the prosecution of activists is being made after she was noted to be dismissive of the First Amendment implications of her call to for technology corporations to deny “online space” to ISIS.  In December 2015, former U.S. Secretary of State Clinton was asked during the question and answer period following a speech at the Brookings Institution about how her hypothetical administration would deal with each of Syrian President Bashar al-Assad, who faces allegations of war crimes against humanity in the Syrian civil war, and Daesh, an alternative name for ISIS.  In her lengthy answer, former Secretary of State Clinton advocating fighting against ISIS in the air, on the ground, and online.  Invoking the case of suspected self-radicalisation in the San Bernardino attack, former Secretary of State Clinton said she would call on technology corporations, including Israeli technology corporations, for assistance in the online fight against ISIS. The journalist Dan Froomkin filed a report for The Intercept that noted that former Secretary of State Clinton said of ISIS, in part, “… we have to deny them online space.”  No mention was made in former Secretary of State Clinton’s answer of any guidelines that would govern the work of the Government or of technology corporations, either foreign or domestic, to protect the First Amendment rights of citizens just engaged in Constitutionally-protected political activities.  Additionally, former Secretary of State Clinton did not make clear if there were any sovereignty implications were the United States to outsource the authority to conduct monitoring and censorship activities of political speech to corporations subject to the laws of foreign governments.

The outcome of the pending records requests made by Progress Queens depends on the U.S. District Court for New York’s eastern district, which is the venue for the FOIA lawsuit.  The U.S. District Court is expected to eventually rule on dispositive motions recently filed by each of the U.S. Department of Justice and the publisher of Progress Queens.  Because the publisher of Progress Queens has alleged bad faith acts by the U.S. Department of Justice, a motion asking the U.S. District Court to assess sanctions and penalties on the U.S. Department of Justice is also pending. 

The court proceedings face some uncertainty in the near-term, since U.S. District Court Judge John Gleeson, who oversees the litigation, is expected to step down from the bench next month.  U.S. Magistrate Judge Roanne Mann, who oversaw the initial proceedings of the lawsuit, is expected to remain assigned to the case.  According to information obtained by Progress Queens, the lawsuit will be randomly assigned to another U.S. District Court judge in Brooklyn Federal court.