A special report :  The prosecution of activists

This is the page that will contain an outline, and the eventual analysis, of the records produced in the Freedom of Information Act lawsuit against the U.S. Department of Justice (the "DOJ") for records regarding the government's prosecution of activists.

Keep checking this page for updates.

USAM § 9-65.880, .881, and .882

In response to queries made to the DOJ about : (i) any permission needed by an U.S. Attorney’s Office (the “USAO”) to prosecute activists or (ii) the discretion of the DOJ to prosecute activists (See Plaintiff’s Index of References to Records Requested Under FOIA Request, ¶¶ 10, 11), the DOJ cited three sections in the U.S. Attorney’s Manual (the “USAM”) :  §§ 9-65.880, .881, and .882.  See the Second FOIA Response at 3 and Tab D at 80-82.  These sections pertain to Demonstrations, Demonstrations – Procedures, and Demonstrations – Investigative Decisions by United States Attorneys, respectively.   In the USAM, two sections cite 18 U.S.C. § 970, a federal law that governs the protection of property occupied by foreign governments.  This law appears to apply to buildings of foreign governments, like embassies  or missions, but property is referred to as :  “any property, real or personal, located within the United States and belonging to or utilized or occupied by any foreign government or international organization, by a foreign official or official guest.”  See 18 U.S. Code § 970(a).  The third section of the USAM does not cite any law applicable to prosecutions of activists by federal prosecutors.  The queries made to the DOJ that prompted the reference to the three sections in the USAM were framed around the USAO’s prosecution of Internet activist Aaron Swartz.

Following an explication of the three sections from the USAM.

USAM § 9-65.880 :  Demonstrations

In looking at 18 U.S. Code § 970, the USAO normally looks 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 (the “AUSA”) to be assigned to monitor the demonstration.  For such demonstrations, the Federal Bureau of Investigation (“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, like 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.

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.”  Thus, demonstrations by people 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 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.”  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.”  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 lesser 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.”  As the U.S. Attorney decides whether to commence a Federal investigation, the U.S. Attorney may consult the U.S. 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 on the foreign policies of the U.S. government, then the USAO may act to investigate activists on behalf of the U.S. 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.

Revised :  2015-12-26 20:25