ACLU plans to sue FBI over surveillance cases
By Karen Abbott, Rocky Mountain News
May 18, 2005
The American Civil Liberties Union said it will sue the FBI today in Washington, D.C., accusing the agency of keeping "spy files" on peaceful activists and ignoring requests for the records under the Freedom of Information Act.
The lawsuit highlights a growing controversy over government surveillance of citizens based on their political or religious associations - the same law enforcement technique that the U.S. government officially abolished three decades ago after scandals erupted over the FBI's infiltration of protest groups.
The issue has hit closer to home more recently, when a legal challenge by the local ACLU shut down the Denver Police Department's "spy files" surveillance two years ago.
"The kinds of activities that the Denver police were engaging in are apparently being carried out nationally by the FBI," Colorado ACLU Legal Director Mark Silverstein said Tuesday.
Silverstein said peaceful protests and other expressions of political opinions are protected by the First Amendment.
The lawsuit stems from requests that the national ACLU and branches in a handful of states, including Colorado, made in December, seeking the FBI's records on dozens of individuals and organizations.
The requests followed visits and telephone calls across the country last summer by members of the FBI's Joint Terrorism Task Force to activists who were asked if they planned to commit any crimes at the national political conventions or knew anyone who did.
FBI documents released to the Colorado ACLU said agents in Denver were assigned "to conduct pretext interviews to gain general information concerning possible criminal activity."
Some of those who were questioned said they believed the JTTF teams, which include local officers as well as FBI agents, meant to intimidate them.
"These interviews were based on a specific and credible threat received by the FBI regarding potential criminal activity that could have caused death or serious bodily injury and was to occur during a national political convention," said Leslie Kopper, an FBI spokeswoman in Denver.
Kopper declined to explain what a "pretext interview" is or to discuss further details.
Five months after the ACLU records requests, the FBI has handed over records on two Coloradans: Sarah Bardwell, 21, of Denver and Scott Silber, 29, of Boulder.
The other records requests have been ignored, according to ACLU officials.
The ACLU lawsuit contends that the FBI and the U.S. Department of Justice are violating their own rules and deadlines in the Freedom of Information Act.
The federal law requires agencies to respond by certain dates even if requests are refused.
"What we're going into court to do is to try to get a judge to make the parties sit down and come up with a schedule for the release of the documents," said Ben Wizner, a staff attorney at ACLU national headquarters in New York City.
Denver police are blocked from collecting "spy files" information as a result of a 2003 settlement agreement reached after the ACLU in Colorado sued the city.
But two Denver officers continue to serve on the JTTF here, and at least one Denver police officer visited and questioned activists last summer. The ACLU contends the "spy files" settlement agreement prohibits that participation.
Officials in Portland, Ore., recently withdrew police officers from the JTTF there, saying they couldn't be sure officers were obeying a state law against the collection of "spy files" information.
The Colorado ACLU urged Denver in December to withdraw its officers from the local JTTF, but city officials said that wasn't likely to happen. Supporters of the police department's continued involvement argue that collaboration with federal law enforcement is key to protecting local citizens.
The FBI officially stopped spying on peaceful activists in 1976.
After that, only a reasonable suspicion of criminal activity justified FBI surveillance of activists and their organizations. That changed, however, in 2002 when then-U.S. Attorney General John Ashcroft, citing the need to combat terrorism, relaxed the rule.
Bardwell and Silber, who were contacted by JTTF members last summer, said they were mystified that the government considered them potential terrorists.
Bardwell has worked with the American Friends Service Committee, which received the Nobel Prize in the 1940s for its peaceful efforts to end war and promote social justice. Denver police officers compiled information on the group as part of its now-prohibited "spy files."
Bardwell also has been active with Food Not Bombs, which she said collects donated food, cooks it and offers free picnics twice a week in two Denver parks for the homeless and the hungry.
In addition, Bardwell has been involved in a group that she said repairs old bicycles and gives them to neighborhood children and homeless people.
She also obtained the permit for a war protest sponsored by Coloradans Opposing War on March 20, 2004, at a downtown federal building.
"If the FBI is going to call that kind of thing worthy of investigation, any group that does community organizing or community service is at risk for investigation," Bardwell said.
"That's not terrorist activity," she said. "That's exercising your constitutional rights to help benefit the Denver community."
The FBI's records on Bardwell bear the partial title "Anarchist Black Cross Denver." The rest of the title was blocked in copies released to the ACLU.
JTTF officers were assigned "to document information regarding Sarah Bardwell and Food Not Bombs," because Food Not Bombs was believed to be connected to the anarchist movement, the records said.
Bardwell said she is not involved in Anarchist Black Cross and knows little about it.
The FBI's records also identified Bardwell as a "point of contact" for organizers of the March 2004 anti-war rally.
The report noted that three people were arrested after the protest for turning over newspaper boxes and trash cans, disobeying police and slapping a bumper sticker that said "Axis of Greed, Cheney, Bush, Ashcroft" on a patrol car.
The charges were dismissed. Bardwell said she did not know any of the people arrested.
The FBI records also noted Bardwell's involvement in the Derailer Bicycle Collective that she said fixes old bikes. "In addition, writer recalled that the Derailer group hosted a meeting place during the Columbus Day protests in Denver in October 2002," the FBI report said.
Silber, a CU graduate who works as a labor consultant, said a JTTF member telephoned him repeatedly last summer to request a meeting but didn't explain why.
"He told me all about my life - places I've been employed or projects I've worked on, and names of people," said Silber, who declined to meet with the agent.
"I have no idea why they contacted me," he said.
A year before the FBI called, Silber said, he had helped prepare for a brief strike by janitors who wanted their employers to provide health insurance. The workers won health insurance in agreements with about 40 employers, Silber said.
"If it's a terrorist activity to promote a humane quality of life for working families and to promote the most basic rights of workers, I guess that's how they (JTTF members) spend our tax dollars fighting terrorism," Silber said.
The FBI's report on him is nearly identical to Bardwell's and also bears the partial title, "Anarchist Black Cross." Like Bardwell's, Silber's record mentions Food Not Bombs and the Derailer Bicycle Collective. He said he has no affiliation with them.
The issues
• Information collection: Whether the threat of terrorist attacks justifies the government's collection of intelligence information about the political activities and associations of groups and individuals.
• Task force: Whether Denver should allow its police officers to participate in the FBI's Joint Terrorism Task Force, which permits its agents to collect more intelligence information about people and groups than the city does.
• Open records: Whether the FBI is wrongly delaying its responses to requests for records under the Freedom of Information Act.
Copyright 2005, Rocky Mountain News. All Rights Reserved.
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Last updated on May 29, 2005