A Review of the FBI's Investigations of Certain Domestic Advocacy Groups
Chapter Three: The Thomas Merton Center
III. Other FBI Activities Related to the Merton Center
A. The 2003 Pittsburgh Field Division Letterhead Memorandum
The FBI's FOIA release of Merton Center documents also included a Letterhead Memorandum (LHM) dated February 26, 2003, and titled, "International Terrorism Matters."84 The LHM stated: "Pittsburgh Division Joint Terrorism Task Force (JTTF) investigation has revealed the following information of which your agency may already be aware." It then provided contact information for the Merton Center and stated that it "has been determined to be an organization which is opposed to the United States' war with Iraq." The LHM stated that a review of the Merton Center website revealed a call for "[a]11 who desire peace and an end to the war" to gather at the Federal building in downtown Pittsburgh "when the United States begins war with Iraq." The LHM quoted from the website the details of the anticipated protest that was to include an interfaith prayer vigil at noon, and at 5 p.m. a rally "and possible civil disobedience for those prepared to do this."
Next, the LHM described national and regional anti-war protest events promoted by another organization that had previously occurred on February 15, 2003. The past event information appears also to have been acquired from the Merton Center's website. The LHM concluded by stating that this information was provided "for your use and any action deemed appropriate."
We were unable to determine the origins and author of the February 2003 LHM. We were also unable to determine to whom the LHM was sent, or whether it was distributed outside the Pittsburgh Field Division. The LHM bears no signature, initials, or routing information. It did not have a file number assigned to it. The LHM was on an FBI form used to disseminate information to other law enforcement agencies, but it did not identify its intended recipients.85
As discussed in the prior section, we obtained a "routing slip" dated February 8, 2006, prepared by the Pittsburgh Field Division Chief Division Counsel's office in response to the FOIA request. The routing slip "strongly urge[cl]" the FBI's Record Management Division (RMD) not to release the LHM on the grounds that it did not appear to be an "agency record."86 The routing slip stated that the LHM "contains no author, no file number, and contains no marking indicating supervisory approval for entering into any FBI record keeping system." The routing slip also stated that the LHM gave the wrong impression that the Merton Center "was the subject of an FBI investigation involved in international terrorism matters." In describing the background for the LHM, the routing slip stated:
The source of this document appeared on a stenographer's computer hard drive. The Pittsburgh Division was unable to identify the author of this document. Attempts to locate a file associated with this document were negative. The Pittsburgh Division believes that this document could possibly have been a draft that was never approved for filing.
In the March 2006 press response that primarily addressed the leafleting event, the FBI commented on the February 2003 LHM. The press response stated that the LHM "was actually a draft which was never finalized - nor made a part of an FBI file." It also stated that the "draft was retrieved from a work file and processed under FOIA as part of the ACLU request."
We asked the FBI to provide the "work file" referred to in the FBI's press response but were told that there is no work file associated with the LHM, consistent with the routing slip's assertion. The FBI also stated in its response to our request that the LHM was located on a stenographer's computer, but the Pittsburgh Field Division was unable to identify the author.
At the May 2006 Senate Judiciary Hearing, Director Mueller was not asked about the February 2003 LHM. However, one of Senator Leahy's written follow-up questions addressed the LHM and requested detailed information about the investigation referenced in the LHM. The FBI's response stated:
In response to the FOIA request the FBI conducted a manual search beyond its record system for all information responsive to the request. The 2/26/03 document was discovered during the search of a stenographer's computer hard drive for responsive information. This document identifies no author or file number and contains no markings indicating supervisory approval for entering into any FBI record keeping system. The Pittsburgh Division where the document was located was unable to identify the actual author or locate a file associated with this document. The document could possibly have been a draft that was never approved for filing. As a loose document it could be retrieved only by someone with access to the computer on which it had been saved.87
We interviewed the FBI stenographer whose computer contained the LHM. In a June 2005 e-mail from the stenographer to the Chief Division Counsel paralegal that coordinated the FOIA document collection for the Pittsburgh Field Division, the stenographer identified a Pittsburgh Field Division Special Agent as the author of the LHM. The stenographer told us she believed she identified this agent as the author from a review of her logs that at the time recorded information about her typing work, including the name of the person making the typing request. However, she said that given the high volume of her typing work, she had only a vague recollection of having typed the LHM and did not have a current memory of who requested that she type it.
When we interviewed the agent that the stenographer identified, he denied that he was the author of the LHM. He said that at the time of the February 2003 LHM he was the Pittsburgh Field Division's JTTF coordinator and also worked on investigations in the domestic terrorism squad. The agent said he believed it was possible the LHM may have derived from source reporting that may have prompted an agent to review websites and obtain the information in the LHM. However, he said he was not aware of any investigations that were focused on or would have affected the Merton Center in any way.
The LHM was titled "International Terrorism Matters." The supervisor of the J'ITF's international terrorism squad at the time of the LHM was Susan Crosetti, the supervisor who approved Berry's November 29, 2002, EC that is discussed in the prior section. When we showed Crosetti the LHM, she told us she did not know who drafted it but said she believed it may have been titled international terrorism because the person who drafted it may have worked on that squad. She said that the LHM would only have been distributed outside the FBI with supervisory approval, and she said she did not sign it. Crosetti told us after reading the LHM that she believes it was probably drafted to alert local law enforcement about potential civil disobedience, what she characterized as "situational awareness in regards to the safety of participants and also the public." She said that the language in the LHM stating that "investigation has revealed" certain information about the Merton Center was just a generic statement for this type of document.
When we asked the Chief Division Counsel (CDC) about the LHM, he told us that like Berry's November 2002 EC, it was a document that he "did not like." He said that it was possible that the reference to potential civil disobedience at the federal building may make it a federal crime, but he questioned the connection to international terrorism and called that a "stretch." The CDC said that the LHM may have been appropriately intended to alert local officials to potential civil disobedience but he said he would not have reduced it to writing and the information about a potential disturbance would better have been communicated orally. He said:
. . . as far as antiwar stances and all this other kind of stuff, just say hey there is going to be an event that there may be destruction of property or something or you know disruption of traffic or whatever may be relevant to the local law enforcement entity, but to put all of this stuff in there about you know the background of it and then tie it in with international terrorism? No. It is inappropriate.
We also showed the February 2003 LHM to four other agents and supervising agents who were on the JTTF in Pittsburgh at the time of the LHM. Each one said they did not know who drafted the LHM. Another agent who was not on the JTTF but worked in Pittsburgh at the time also told us he did not know who drafted the LHM.
2. OIG Analysis
The language in the LHM indicated that a JTTF "investigation has revealed" certain information about the Merton Center, including that it "has been determined to be an organization which is opposed to the United States' war with Iraq." As the routing slip acknowledged, the LHM created the impression that the Merton Center was the subject of an international terrorism investigation. This was not true. In addition, the LHM contains information about protest activity without stating what, if any, terrorist acts had occurred or might occur. Our investigation could not identify the person who drafted this inaccurate LHM or determine its source and what prompted it.
However, we did not find any evidence that the Pittsburgh Field Division had in fact opened an investigation of the Merton Center or that it made a determination that the Merton Center was an organization opposed to the war. We found no other documents connected to the LHM. The November 2002 EC, uploaded 3 months earlier, similarly focused on the Merton Center's antiwar activities, but we found no indication that the 2 documents were related or part of a coordinated focus on the Merton Center. Berry and Crosetti, the agent and supervising agent listed the November 2002 EC, denied any knowledge of the LHM and we found no evidence to contradict their claims.
We found no evidence that this document was ever actually disseminated. It bore no signature, supervisory markings, or the name of intended recipients. In short, we concluded that the LHM was an inaccurate document that was not approved or disseminated.
B. Surveillance Relating to the 2003 Miami Free Trade Area of the Americas (FTAA) Meeting
From November 16 to 21, 2003, the Free Trade Area of the Americas (FTAA) Eighth Ministerial Meeting took place in Miami, Florida. Attending this meeting were trade ministers from the United States and other Western Hemisphere countries. Earlier international trade meetings had drawn anti-globalization protesters, some of whom had participated in forceful or violent protest actions, including the protests at the 1999 World Trade Organization (WTO) Ministerial Conference held in Seattle, Washington.
In August 2003 the FBI conducted surveillance of a meeting organized by the Merton Center and others in Pittsburgh relating to protests being planned for the FTAA Miami meeting. In this section, we examine the FBI's conduct in connection with that activity.
a. Special Events Case Opened
To prepare for the FTAA Miami meeting, the FBI Miami Field Division opened a special events case. An April 4, 2003, opening EC stated that similar events had historically drawn large scale demonstrations, both by peaceful demonstrators and by individuals or groups who wanted to disrupt the meetings. The EC stated that the FTAA Miami Meeting was expected to attract an estimated 70,000 demonstrators.
Documents in the FBI's special events file also stated that groups and individuals may plan violent protests at the FTAA Miami meeting, including the same individuals or groups who participated in the 1999 WTO Seattle protests. A July 8, 2003, EC summarized intelligence the FBI received, including threats from anarchist groups to "use of puppets (posters on a stick) to attack front line riot police, and use of Molotov cocktails." Another document in the special events file stated that the FTAA Miami Meeting would be the first United States hosted trade event since the 1999 WTO Seattle Conference and could become a terrorism target in an attempt to embarrass the United States.88
In a July 26, 2003, EC, the FBI's Special Events Management Unit, designated the FTAA Miami meeting a SERL III event. The MIOG, Part 1, § 300-1(4), describes SERL III events as those for which FBI Headquarters would support only limited augmentation of field division resources tailored to the actual event. The July 2003 EC stated that "although no specific threat information had been received at this time the attractiveness of the event makes it a potential target for terrorists or those individuals wanting media attention for their cause."89
The United States Trade Representative was selected to lead the United States delegation. In addition it was expected that the United States Secretary of Commerce would attend. The FBI's operation order stated that President George W. Bush might make an appearance at the FTAA Miami Meeting.
b. Domestic Terrorism Full Investigation Opened
In addition to opening the special events case, the FBI Miami Field Division opened a full investigation on unknown subjects and the anti-FTAA anarchist movement in South Florida under the classification for an act of terrorism by domestic terrorists. The July 21, 2003, opening EC stated that the FTAA Miami meeting was expected to attract local anarchists and "members of well established domestic terrorist groups such as ALF/ELF will also participate in the more violent demonstrations." The EC reported that local undercover officers had made significant inroads into infiltrating local anarchist groups "whose agendas include violence aimed at the FTAA meeting in Miami." The EC stated that the undercover officers were able to identify "local anarchist leaders, local meeting locations, as well as specific plans for importing weapons in the security zones and tactics to be employed . . . ." The EC also stated that public source information was monitored daily, resulting in the identification of other cities in which individuals are recruited to attend and disrupt the FTAA meetings.
c. Investigative Activities Relating to the Merton Center
On July 25, 2003, the FBI Miami Field Division sent an EC to the FBI Pittsburgh Field Division reporting that an "Anti-FTAA Consulta" (conference) would be held in Pittsburgh from August 29-31, 2003, and hosted by the Pittsburgh Organizing Group (POG) and the Merton Center, for the purpose of recruiting activists to travel to Miami to disrupt the FTAA meetings. The EC attached Merton Center and POG website materials stressing the planned use of "direct action" to disrupt the FTAA. Merton Center website material stated:
Jail: There will be a wide variety of tactics employed by groups opposed to the FTAA meetings. Some of these will likely involve the possibility of arrest. Because of this we are making arrangements to make sure that anyone arrested will have a way back to Pittsburgh. We Will Not Leave Anyone Behind!
Another Merton Center web posting was a call to action against the FTAA, making reference to the derailing of the 1999 WTO meetings in Seattle and stating that at the FTAA Miami meeting the "confrontation will be decided in the streets and the meeting rooms of Miami, and everything is at stake." POG web material included a call to "Smash the FTAA - Call for a Padded Bloc in Miami."90 It stated: "[t]he goal of global justice movement in Miami must be to materially disrupt the summit to such a degree that it is impossible to continue any negotiation." It also stated the August 29-31 conference in Pittsburgh would continue the discussion among groups on what they can do to prepare for the FTAA meetings and "obtain the training and materials necessary to make" the FTAA protest a success.
The FBI Miami Field Division's July 2003 EC requested that the FBI Pittsburgh Field Division collect intelligence related to Merton Center and POG efforts to recruit individuals to travel to Miami to disrupt the FTAA meeting. Specifically, the Miami Division requested that Pittsburgh conduct surveillance at the conference to "collect tag information and take photographs of individuals in attendance."
We did not find any evidence in FBI files indicating that Pittsburgh Field Division personnel conducted the requested surveillance. However, according to FBI documents, the Miami Field Division sent three JTTF members to Pittsburgh to monitor the conference to learn what "violent direct actions" might be planned against law enforcement during the FTAA, to gather intelligence on "potentially destructive individuals," and to identify Miami-based subjects in attendance.
According to a post-surveillance report, when the Miami Field Division JTTF members arrived in Pittsburgh in August 2003, they met with a detective from the Pittsburgh Police Department, who gave them a driving tour of the relevant locations for the conference, including the Merton Center. The detective informed the JTTF members of the location where all the "direct action" techniques would be discussed. The detective also drove the J'Ivrt( members by the home of Nicholas Herman, who was identified as one of the POG's most vocal members, and they also pointed out another individual, Arnold Philips, who was identified as one of the POG's leaders. Both individuals had publically stated they would attend the November FTAA meeting in Miami. The detective also provided the JTTF members with information on 11 POG members, including biographical information on Herman and Philips.91
The next day, the JTTF members and an agent from the FBI Pittsburgh Field Division conducted surveillance near the location where the POG direct action discussions took place. The agents took photographs and video during their surveillance, presumably of individuals entering the building. The file does not indicate that the FBI conducted any surveillance of the meetings that the Merton Center hosted at its location.
A Miami Field Division Division EC dated November 17, 2003, contained information describing a short-term lease entered into by the Merton Center for space in a Miami building for use during the FTAA meeting. The EC provided descriptions and some identifying information for the three individuals who appeared at the lease signing, presumably representing the Merton Center. A subsequent EC described information the FBI had received indicating that the space would be used as a clinic for protesters who might be injured during the anti-FTAA demonstrations. One of the individuals present at the lease signing was reported to have been teaching first aid techniques to other "anti-FTAA subjects" in the leased space. Another EC indicated that the Merton Center and another organization had secured a 27,000 square foot space in a different location in Miami. The information reported in these ECs was collected during the FTAA meeting and retained in the FBI Miami Field Division's files in both the special event file and the act of terrorism full investigation file which had been opened in relation to the FTAA meeting.
The FTAA meeting took place as scheduled in November 2003, resulting in numerous local arrests for a variety of offenses including unlawful assembly, disorderly conduct, carrying a concealed weapon, battery on a police officer, and, in one instance, inciting a riot. No federal prosecutions resulted.
2. OIG Analysis
We concluded that there was sufficient predication for the FBI to open a special events case relating to the Miami FTAA meetings. Given the events connected to the 1999 WTO meetings in Seattle, the fact that high-level officials (including possibly the President) would be in attendance at the Miami FTAA meeting, and the threat information received by the FBI, the FBI believed that the Miami FTAA meetings represented an attractive target for a terrorist attack.
We also examined the predication for the domestic terrorism investigation initiated in Miami because the FBI conducted surveillance activities of a Merton Center sponsored conference in Pittsburgh in connection with the Miami investigation. The 2002 Attorney General's Guidelines in effect at the time provided that the FBI may open a full investigation "where the facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed." We were hindered in our analysis of the predication for the Miami domestic terrorism investigation because the FBI Miami Field Division failed to specify in the opening EC the facts and circumstance meeting the standard of reasonable indication for a federal crime. Although we believe that there was evidence that provided a reasonable indication that protesters would commit direct actions that might include violations of state or local laws regarding trespassing, vandalism, resisting arrest, or obstructing police, it was not clear what federal criminal statute the FBI relied on in opening this investigation.
We found a document in the Miami case file indicating that the Miami FBI Chief Division Counsel had concurred with the surveillance of a similar conference in a different city on the basis that the activity would violate 18 U.S.C. § 231, relating to civil disorders. Among other things, this statute prohibits "commit[ting] or attempt[ing] to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function." The term "civil disorder" is defined as "any public disturbance involving acts of violence of assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual." 18 U.S.C. § 232(1).
We believe that the FBI could have articulated a "reasonable indication" that the unnamed subjects, potentially including protesters being recruited at the Pittsburgh conference hosted by the Merton Center and POG, would violate the civil disorders statute, 18 U.S.C. § 231. In light of the types of direct action protests previously used in Seattle and those advocated on the POG website, the FBI believed that protesters would attempt to impede law enforcement (such as through the use of a Padded Bloc), in a manner that would obstruct the Miami FTAA meeting, which was likely a "federally protected function."92 Planning for obstruction of the November 2003 FTAA in Miami, including through confrontations with police, was a goal stated at the August 2003 conference held in Pittsburgh about the planned Miami protests. In addition, there was an indication that the protests could fit the definition of a "civil disorder" due to the history of the prior direct action protests in Seattle involving significant property damage. As a result, we believe that the FBI's Miami investigation could have been adequately predicated, although the FBI's Miami Field Division did not adequately describe the predication in its EC.93
b. Investigative Techniques
For similar reasons, we concluded that the Attorney General's Guidelines and FBI policies allowed the FBI to conduct surveillance at the Merton Center-sponsored conference in Pittsburgh. The FBI had a factual basis for believing that individuals who may have been planning to disrupt the Miami FTAA meetings would be in attendance at the Pittsburgh conference. The Merton Center and POG website material promoting the conference recruited persons to conduct direct actions that might violate federal law. The Merton Center website material indicated that some protesters at the FTAA would be using tactics likely to result in arrests, and that the Merton Center would ensure that arrested individuals would have transportation back to Pittsburgh.
As discussed in Chapter Two, the 2002 Attorney General's Guidelines stated that the choice of investigative techniques in an investigation is a matter of judgment and the FBI should consider whether the information could be obtained in a timely and effective way by less intrusive means. Further, FBI policy stated that surveillance coverage may be used to "identify and/or locate unknown subjects, victims, witnesses and locations." MIOG, Part 2, § 9¬1(1)(a). The file does not indicate that the FBI conducted surveillance of the meetings held in Pittsburgh at the Merton Center building. Instead, the FBI's surveillance was focused on the location where the POG was hosting sessions on direct action disruption techniques.94
While not calling for violence, the Merton Center website materials stated that it would provide support to individuals who might be involved in protest activities leading to their arrest. The FBI believed that some protesters who would seek the assistance of the Merton Center might themselves have engaged in violent acts. The gathering of information about the Merton Center's lease therefore had some nexus, albeit remote, to the law enforcement mission focused on special event security and the collection of intelligence on potentially violent protesters.
C. Pittsburgh FBI Investigations of Pittsburgh Organizing Group (POG) Members Meeting at the Merton Center 2004 - 2005
We determined that the FBI's Pittsburgh Field Division conducted investigative activities relating to individuals associated with the Pittsburgh Organizing Group (POG), a self-described anarchist group that the Merton Center has publicly identified as an "affiliate." Some of these individuals were also allegedly associated with the Merton Center or attended meetings at the Merton Center. We examined the Pittsburgh Field Division's activities with respect to its investigations of these individuals.
a. The Opening ECs
A few months after the November 2003 Free Trade Areas of the Americas (FTAA) meetings in Miami, the Pittsburgh Field Division opened two preliminary inquiries on three individuals believed to be active members of the Pittsburgh Organizing Group (POG). The opening Electronic Communications (EC) for the investigations were dated January 8, 2004, and February 4, 2004. The January 2004 opening EC named Nicholas Herman as a subject and stated he was believed to be the most "vocal/active" member of the POG and its leader. The February 2004 opening EC named Arnold Philips and Terry Waterman as subjects, "dba" (doing business as) the POG.95 The FBI opened the preliminary inquiries under the classification for an act of domestic terrorism.
Both ECs referenced the Miami Field Division's pre-FTAA meetings domestic terrorism investigation, described above in Section III.B, regarding anarchist groups and individuals from Pittsburgh who allegedly planned to travel to Miami to disrupt the meetings and potentially engage in violence or criminal activity. According to one of the ECs, "Miami reported on 9/18/2003 that POG intended to send approximately 300 individuals to the Miami area Financial District for the FTAA event and to establish a 'padded bloc' during the event."
The opening ECs provided the following additional information on the three subjects. Philips and Herman were identified as active members of the POG by the Miami Field Division during its FTAA investigations. The January 2004 opening EC stated that Herman had a prior arrest for failure to disperse, disorderly conduct, and obstruction of traffic during an anti-war protest held in Pittsburgh on March 20, 2003.
The February 2004 opening EC also stated that Philips and Waterman had attended a workshop organized by a different protest group in another city in October 2003 to discuss the then-upcoming FTAA protest in Miami. According to FBI files, the other group (not POG) was planning to stop the FTAA meetings through demonstrations and infiltration of the meetings, if possible. The group was also preparing for the possibility that its members would be arrested in Miami. FBI files indicated that Waterman had been seen counter-demonstrating at a white-supremacist rally and had been identified as a member of an anti-racism group that was in the past "known to associate" with an anarchist group that "advocates societal change through any means necessary, including armed conflict." The opening EC reported that Philips and Waterman were observed at that event exiting a vehicle with a particular license number that the Pittsburgh Field Division later determined was not an active vehicle registration. FBI files indicated that Waterman had no criminal record, but that in view of his activities and group affiliations, the FBI believed that he was a member or an associate of the anarchist group.
The EC stated that an Internet search on the POG web site revealed that POG was scheduling a "Global Day of Action against War and Occupation" on March 20, 2004, in Pittsburgh. The EC described the information provided on the POG's website about this protest, including that the event would include "autonomous direct actions, teach-ins, tabling, video showings, vigils and a variety of other events."96 According to the EC the highlight would be a "major march and rally in the neighborhood of Oakland, PA." The EC listed 10 organizations endorsing the march, including the Merton Center.
The Pittsburgh Field Division agent who served as the case agent on one of the preliminary inquiries told us that these investigations were opened at a time when the Domestic Terrorism squad was wrapping up another substantial investigation, "so work is light is what I'm saying. . . . So we are looking for work, which is why folks in POG even get on the radar." However, the Supervisory Special Agent (SSA) who supervised the preliminary inquiries denied that this was a factor in opening the ECs.
Another SSA who approved the ECs acknowledged that there was a lag of several months between Pittsburgh's receipt of the information predicating the preliminary inquiries and the opening ECs. He said the FBI had "hotter priorities" at the time, which may have explained the delay.
We asked the case agent who was assigned to one of these preliminary inquiries, as well as two SSAs with supervisory responsibilities for the cases, to explain what potential federal crimes could serve as the predicate for the preliminary inquiries. The case agent and both of the supervisors told us that a major factor was the publicly stated interest of the POG or its members to engage in "direct actions" as part of their protests. One supervisor stated that "direct action" was a "code word" used by protesters for conduct that "is often, but not limited to, criminal activity that destroys property or causes economic loss in furtherance of ideological goals. Criminal direct actions have included vandalism, arson, attempted arson, as well as threats and assaults." He stated that the POG website referenced direct action, which he took to mean "they are planning on engaging in criminal activity which will be in violation potentially or possibly in violation of a federal statute." The supervisors identified arson, attacks on military recruiting centers or other government facilities, and bombings as types of "direct actions" that might violate a federal statute. However, neither the opening ECs nor any of the agents we interviewed identified any direct link between the POG and such acts, although both supervisors told us that the POG's advocacy of direct action raised the possibility that some members might be planning such acts.
Material on the POG website that we recently reviewed stated that POG "utilize[s] a diversity of tactics, which have typically included pickets, protests, sit-ins, street theatre, conferences, civil disobedience and non-violent direct action such as blockades and unpermitted marches. . . . As a group we absolutely never organize anything involving destruction of property or physical harm to human or non-human animals." Other materials on the POG website describe direct actions such as blockades and "lockdowns" (devices or strategies used to chain people together or to objects to prevent their being easily removed or separated by police).
The Pittsburgh Field Division Supervisory Special Agent who approved the opening ECs cited the fact that the POG advertises itself as an "anarchist" group and that the POG intended to send 300 people to Miami to establish a "padded bloc" to confront police. He said that until then, the Pittsburgh Field Division did not know anything about the POG, so the information that they could mobilize 300 people "got our attention." He noted that anarchists had conducted bombings in Pittsburgh 100 years ago and that anarchist groups in general are the subject of a domestic terrorism subprogram in Headquarters.
The case agent for the Herman preliminary inquiry cited Herman's 2003 arrest for failure to disperse, disorderly conduct, and obstruction of traffic during an anti-war protest as a fact supporting opening the preliminary inquiry on him. The case agent stated that being "willing to be arrested and engage law enforcement takes you to another level," opening the possibility that the individual might be planning more violent acts constituting federal crimes. He also stated that the POG had listed the "Bettis Atomic Energy Plant" as a potential target for direct action, and that trespassing on that property would be a federal crime.
b. Investigative Activities
We examined the FBI's investigative activity in connection with the preliminary inquiries of Herman, Philips, and Waterman.
On February 27, 2004, two FBI agents attended a meeting of representatives from regional law enforcement agencies led by the Pittsburgh Police Department. The purpose of the meeting was to plan for security at an anti-war protest in Pittsburgh scheduled for March 20, 2004, referenced in the February 4, 2004 opening EC. Information was exchanged about POG, including the fact that the "direct action" section of the POG website advocated obstruction techniques and criminal mischief, and also described techniques for dealing with police. The meeting included discussions regarding the potential for property damage at a local university and facilities linked to government defense contracts. An EC describing the meeting stated that official parade permits for the upcoming anti-war protest had been issued "for the formal activities sponsored by the [Merton Center]." This was the only reference in this EC to the Merton Center.
On the day of the anti-war march, two FBI agents monitored "Command Post" activities and protest activities to verify the participation of the subjects, Herman, Philips, and Waterman. Herman was observed among the POG contingent. A document in the FBI file noted that during the protest activities the police did not observe any "actionable criminal activities" apart from trespass onto a university's property, which was not enforced.
The FBI file also contains a report that on April 19, 2004, during a protest outside of the Pittsburgh Convention Center where President Bush was delivering a speech, Philips and five other protesters were arrested by local police for failure to disperse, disorderly conduct, and obstructing a traffic way. Another FBI report stated that the arrested protesters were POG members. According to a contemporaneous news account, the protest was organized by the Merton Center. However, no FBI documents described the Merton Center's role in this protest, nor did they indicate that the case agents conducted any surveillance activities in connection with this protest.
On June 3, 2004, the two case agents handling the preliminary inquiries met with Pittsburgh City Police Department detectives, who provided them with a list of 11 residences, businesses, or other organizations, including the Merton Center, known to be frequented by POG members. According to a memorandum by the case agent, the detectives and the FBI agents conducted "a drive-by surveillance at each location" as part of a "familiarization process with these locations." The memorandum stated that they did not see any POG members, and noted that "several of the locations had no activity at this time." The list stated that some POG members, including Philips, were on the Board of the Merton Center or served on various Merton Center committees. It also stated that POG members may attend planning meetings for events or protests at the Merton Center.
In July 2004, the FBI's Pittsburgh and New York Field Divisions received information from the FBI Miami Field Division that at a POG meeting held in Pittsburgh, POG members discussed plans for "direct action," including vandalism, against the Republican National Convention to be held that year in New York City. The information indicated that the POG intended to employ the "padded bloc" tactic and engage law enforcement at the Republican National Convention.
In an EC dated July 9, 2004, the case agent for the Herman preliminary inquiry obtained an extension of the preliminary inquiry. The EC described Herman as an active participant in "POG's anarchist activities and has been observed directing protest activities of 'direct action' operatives wearing black clothing and face coverings." The EC stated that these actions were primarily criminal mischief during protests, but were "viewed as distraction activities for possible more significant 'actions.- The EC stated that many POG members are affiliated with university campus activities, and that "several are students, and regularly targeted multi-million dollar facilities that are University owned and contracted by the U.S. Government."
In an EC dated July 30, 2004, the case agent working on the preliminary inquiry of Philips and Waterman obtained an extension of the preliminary inquiry. The EC stated that the FBI had learned that Philips had used an alias and had engaged in "limited criminal activity" with other POG members, although it did not specify what that criminal activity was. The EC also referenced a Seattle Field Division EC that had identified Philips as one of many individuals arrested for protest activities during the World Trade Organization (WTO) Ministerial Conference in Seattle on November 28 to December 4, 1999.
Further information gathered for the FBI file during August and September 2004 indicated that Waterman had no criminal history but was known to the Chicago Field Division to be associated with the anarchist movement. However, local law enforcement officials in Pittsburgh indicated that they had not encountered Waterman during their investigations of local anarchists.
In October 2004, the case agent in the Herman preliminary inquiry began operating a confidential informant in connection with collecting information about members of the POG. Because of the unique issues raised by this activity, we address it separately in the next section of this report.
The FBI file contains a document from the Pittsburgh Police Department in November 2004 that informed the FBI that Philips was arrested the previous day in Pittsburgh for disorderly conduct during an anarchist rally. Philips allegedly attempted to prevent an officer from arresting another protester who had set fire to an American flag on the street.
In an EC dated January 20, 2005, the FBI closed the preliminary inquiry on Herman. The EC stated that Herman had participated in a "direct action" protest but was not involved in any known criminal activity during the investigative period. The EC stated that Herman was not observed to be present during many of the local direct action protests and appeared to be "minimizing his protest activities."
In an EC dated January 26, 2005, the FBI closed the preliminary inquiry on Philips and Waterman. The EC stated that Philips had "been involved in criminal activity, mainly in connection with his activities with the [POG], and connected to Civil Disobedience." The EC also stated that no information had been found to indicate that Waterman lives in or routinely visits Pittsburgh. The EC stated that the all logical investigation had been completed.97
c. Use of a Confidential Informant
Beginning in 2004, the FBI utilized a confidential informant to collect information regarding members of the POG who participated in meetings at . The case agent for the Herman preliminary inquiry developed this informant, and told us that FBI agents are generally expected to develop a "network of sources." The case agent, who had recently arrived at the Pittsburgh Field Division from another FBI field office, said that his "grace period" was coming to an end and that his supervisor was askin about his source activity. The agent told us he recruited as his source. This source was a SENTENCE DELETED . According to the agent, this source was "willing to, at my behest, try and find out what he could about POG criminal activity."
At the time the source was recruited, he had charges pending against him for SENTENCE DELETED . In one e-mail from the source to the case agent during the time he was acting as a source, the source described his efforts to obtain an extension on "my court date," and asked if the case agent had contacted a particular officer connected to the case. The case agent told us that he may have exchanged phone calls with the officer "after the whole matter was resolved." The case agent said that he had not made any promises to the source about taking care of the court case, and that the source's arrest "had absolutely nothing to do with [him] being my source."
The agent told us that the arrangement to use this person as a source enabled him to "get into the source program," and "show some source tasking and reporting." When asked why he was tasking the source to collect information on POG at the time the Herman preliminary inquiry was winding down, the case agent said, "that tasking [was] more motivated by wishing to participate in the informant program than it [was] POG generally speaking." He also stated this was an opportunity to place an individual within the group to obtain the kind of criminal intelligence that the investigation had not been able to develop.
The case agent assigned the source to attend , 2004.98 The agent stated that he selected this meeting for the source to attend entirely on the basis of the availability of the source at the time. He said he had no information suggesting that criminal activity would be discussed, but that his purpose for sending the source was to "get him accepted into a group for further penetration and actually into the criminal element somewhere in POG." The agent told us that he believed, "it was clear in [the source's] mind that [his role was] to try and identify criminal activity."
The case agent filed a source report dated , 2004 (the "first source report"). The report described the meeting at and was filed in the source file and under the case number for the Herman preliminary inquiry. The report contained the following information describing the First Amendment expressions of persons in attendance, which the case agent drew from an e-mail that the source sent to him:
Source, who is not in a position to testify, provided the following information:
Source reports that a PARAGRAPH DELETED
Also in attendance were the following persons: [names and ages redacted].
Meeting and discussion was primarily anti anything supported by the main stream American.99
The source report did not contain any information about potential criminal activity. The case agent told us: "The only reason that document is really written is so I can get credit for source participation." He stated that he did not want to file a "negative report," so he simply described what the source told him.
At the request of the case agent, the source attended several other POG¬related functions in late 2004 and early 2005, SENTENCE DELETED . The source sent e-mails regarding each one to the case agent, which the case agent converted into source reports.
For example, one report indicated that on , 2004, the source observed POG members PARAGRAPH DELETED
Another source dated , 2005 (after the case agent had closed the Herman preliminary inquiry), reported PARAGRAPH DELETED
A source dated , 2005, of SENTENCE DELETED Another source also dated , 2005, described a SENTENCE DELETED
2. OIG Analysis
The 2002 Attorney General's Guidelines, which were in effect at the time, provided that the FBI may open a preliminary inquiry in response to an allegation or information "indicating the possibility of criminal activity." Our effort to determine whether this standard was satisfied with respect to the preliminary inquiries relating to the POG was hindered by the fact that the FBI's opening ECs did not specify a federal crime that the FBI deemed "possible." Nevertheless, we did not conclude that the FBI's preliminary inquiries violated the Attorney General's Guidelines, given the low predication threshold contained in the Guidelines.
According to FBI files, Herman was identified as the leader of POG and a self-described anarchist. Philips was identified in the Miami Field Division EC as a member of POG and a participant in the August 2003 Pittsburgh conference where direct action to disrupt the November 2003 FTAA in Miami was discussed. POG prominently advertised its intention of carrying out "autonomous direct actions" at an upcoming Pittsburgh anti-war protest, as well as direct actions in Miami.
However, neither the opening ECs nor the Pittsburgh Field Division agents we interviewed identified any evidence specifically linking the POG or the subjects to acts of violence. Instead, the Pittsburgh Field Division agents told us that they believed the term "direct action" as used by the POG is commonly known to encompass criminal acts. They stated that such acts may include arson, vandalism, threats, and assaults. But these are generally state or local offenses that are only federal crimes under very specific circumstances, which the opening ECs did not identify. When we interviewed the Pittsburgh FBI agents, they stated that the POG might be planning actions directed at particular facilities, such as military recruiting offices or a power plant, which could be federal crimes. However, the opening ECs contained no such indication.
The "possibility" standard in the Attorney General's Guidelines is a low threshold to meet, and it appears to permit reliance on information and inferences of the type used by the Pittsburgh Field Division to open its preliminary inquiries. The FBI had information that could be interpreted to indicate the possibility that Herman and Philips might be planning with others to engage in activities that could include federal crimes such as injury or depredation against property of the United States (18 U.S.C. § 1361), destruction of an energy facility (18 U.S.C. § 1366)(the Bettis power plant), or trespassing onto a military installation (18 U.S.C. § 1382). Therefore, although we believe the factual predication for these inquiries was thin, we did not conclude that the FBI violated the applicable predication standard.101
In short, due in substantial part to the fact that the only predication required to open a preliminary inquiry was "information indicating the possibility" of a federal crime, we did not find a violation of the predication standard in the Attorney General's Guidelines.102 However, these cases illustrate the broad scope of the FBI's authority under the Attorney General's Guidelines to open preliminary inquiries based on extremely limited information, including information about the First Amendment expressions of subjects. Moreover, because of the easily attainable and speculative "possibility" standard, these cases also demonstrate the importance of the FBI adhering to the Guidelines requirements that federal criminal offenses are suspected and that such offenses be documented, along with the underlying predicating facts, to minimize the risk of opening unpredicated investigations that could improperly intrude upon and potentially have a chilling effect on constitutionally protected activities and expression.
We next considered whether the FBI's decisions in July 2004 to extend the Herman and Philips preliminary inquiries for 180 days complied with the Attorney General's Guidelines and FBI policy. FBI policy required that an investigation with potential impact on First Amendment activity "not be permitted to extend beyond the point at which its underlying justification no longer exists." MIOG, Introduction, Part 1-4(2).
b. Source Activity
We also analyzed the FBI's use of the confidential source to attend the meetings and protests involving POG members. According to the agent, these events were open to the public and advertised on the Internet.
We do not believe that the FBI satisfied the applicable tests for sending its source to the POG meetings. The case agent acknowledged that his primary purpose in sending his source to the events was to document his participation in the FBI source program and to establish statistics. The weak connection between these assignments and the preliminary inquiry is highlighted by the fact that the agent continued sending the source to the POG events even after the preliminary inquiry of Herman was closed.
We also note that after the preliminary inquiry was closed, an alternative basis for the FBI to attend the POG events could have been Part VI.A.2 of the Attorney General's Guidelines, which authorized the FBI to attend public events for the purpose of detecting or preventing terrorist activities. According to FBI guidance, a source operating under the FBI's direction can only be directed to attend an event that an agent would also be permitted to attend. The Part VI.A.2 "purpose test" was an extraordinarily low threshold to satisfy and did not require the FBI to have a factual basis for believing that POG was involved in terrorism. It only required that the FBI's purpose be "detecting or preventing terrorism." Moreover, Part VI authorities were available even in the absence of a named subject or a predicated investigation of any kind.
Yet, the evidence indicated that the primary purpose for the source assignments was not the detection or prevention of terrorism but rather to enable the case agent to "get into the source program," and "show some source tasking and reporting." Tellingly, the case agent admitted that the source tasking was "more motivated by wishing to participate in the informant program than it [was] POG generally speaking." We do not believe that the desire to establish performance statistics is an appropriate basis for using the sensitive and intrusive investigative technique of instructing a confidential source to attend political discussions or protest marches. We found that the case agent's claim that the source was collecting information regarding potential crimes was not his primary purpose.
We were also concerned by the Pittsburgh case agent's use of as a confidential source. Although compliance with source policies was outside the primary scope of this review, we believe that the agent's recruitment of this source was questionable practice. For example, FBI policy states that "FBI personnel directing, overseeing the direction of, or closely involved with the operation of a CHS [confidential human source] may never . . . [s]ocialize with the CHS, except to the extent necessary and appropriate for operational reasons . . . ."103 Yet, the case agent had a long-standing and continuing social relationship with the source, which included the source providing computer assistance to the agent. In addition, FBI policy states that "FBI personnel directing, overseeing the direction of, or closely involved with the operation of a CHS may never . . . [i]nterfere with, inappropriately influence, or impede any criminal investigation, arrest, or prosecution of that CHS or any civil action in which the CHS is a litigant or witness."104 Although the case agent provided a vague account of his efforts to assist the source with resolving the charge against him, we believe that this involvement raised significant questions about whether the agent complied with FBI policy. We also found no indication in FBI files that these questions were addressed in connection with approving or supervising the agent's operation of this source.
c. Collection and Retention of Information about First Amendment Activities
The source reports included information regarding the First Amendment activities of POG members. In fact, the first source report filed in the Herman preliminary inquiry contained virtually no information other than information about First Amendment expressions of participants in a political discussion group in the Merton Center. This report had no apparent connection to any actual or potential crime and focused solely on the identity of the participants and the content of their speech.
As noted above, the source's assignments were the product not of genuine investigative activity but primarily were based on the agent's effort to participate in the source program. The problems stemming from his actions were compounded by the collection and retention of First Amendment information in the source reports that resulted from this activity.
Among other things, the source reports raise significant questions under the Privacy Act and FBI policy. As discussed in Chapter Two, the Privacy Act prohibits agencies from maintaining records "describing how any individual exercises rights guaranteed by the First Amendment . . . unless pertinent to and within the scope of an authorized law enforcement activity." This principle was repeated in the 2002 Attorney General's Guidelines and Section 1-4(4) of the MIOG, Introduction. As noted above, we do not believe that the source's attendance at the POG events was an authorized law enforcement activity. Moreover, even if the assignment had been appropriate, much of the information collected by the source should have been excluded from FBI files. The first source report was limited to identifying information about the participants in a political discussion together with characterizations of the content of the speech of the participants. No information remotely relevant to actual or potential criminal activity was collected. We do not believe that any of the information recorded in the report regarding the Merton Center political discussion was pertinent to the Herman preliminary inquiry or any other authorized law enforcement activity.
The subsequent source reports also raised Privacy Act issues. One report identified certain individuals and described how they exercised their First Amendment rights by participating in a "peaceful anti-war protest." Three reports related to planning meetings held at the Merton Center for an anti-war protest, as well as a report on the protest itself. These reports included identifying information about a particular person allegedly active in POG. These reports contained precisely the sort of First Amendment information protected under the Privacy Act. Although the Privacy Act permits the collection and retention of such information "within the scope of an authorized law enforcement activity," as noted above we do not believe that the source's attendance was properly authorized.
With one exception, none of these reports contained anything of apparent evidentiary value.105 Rather, the agent recruited a friend of his son and gave him surveillance assignments with at best thin relevance to any open investigation or to preventing terrorism. In addition, when creating a written record of his source's activities, the agent paid little or no attention to the First Amendment implications of what he recorded. The resulting reports raised significant questions under the Privacy Act, the Attorney General's Guidelines, and the MIOG.
Even if the FBI's conduct did not violate the Privacy Act, we are concerned by the lack of justification for the FBI's activities in this matter and the resulting implications for the First Amendment rights of individuals. The FBI established a confidential source to attend political meetings and protests and collect information that was almost exclusively focused on the First Amendment activities of persons who were not the subject of any investigation. Although the source was nominally operated in connection with a thinly predicated preliminary inquiry, the source collected no information regarding the named subject of that inquiry and continued to collect and report information on First Amendment activities after the inquiry was closed.
84 The LHM is attached as Appendix D. According to the FBI, an LHM is a formal document typically used to provide information to an outside agency.
85 The LHM contains a disclaimer stating: "This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency."
86 The routing slip cited the case law standards for determining what constitutes an "agency record." We assume that the RMD considered the applicable legal standards before releasing the LHM. We did not analyze this question.
87 FBI Oversight: Hearing Before the S. Comm. On Jud., 109th Cong. 126 (2006).
88 The special events file contained many references to the 1999 WTO Seattle protests. For a detailed factual recitation of the protests and the legal claims which followed, see Menotti v. City of Seattle, 409 F. 3d 1113 (9th Cir. 2005).
89 The day before the start of the FTAA Meeting in Miami in November 2003, the FBI issued an "Intelligence Bulletin" to law enforcement agencies stating that many protesters expected to attend the FTAA were "openly planning to disrupt the conference through violence rather than merely conducting organized demonstrations." The Bulletin requested law enforcement agencies to forward any information they obtain "regarding possible terrorist threats or threats of violent or destructive civil disturbance directed against the FTAA." In response to a complaint, the Department of Justice Office of Legal Counsel (OLC) reviewed the constitutionality of the Intelligence Bulletin and a similar one the FBI had issued the previous month for another large scale demonstration. OLC stated that the bulletins limited reports to potentially illegal acts or threats of violence, and they "were limited to criminal activity that falls outside the First Amendment ......OLC concluded that, "[Oven the limited nature of such public monitoring, any possible 'chilling effect' caused by the bulletins would be quite minimal and substantially outweighed by the public interest in maintaining safety and order during large-scale demonstrations." Memorandum for Glenn A. Fine, Inspector General, from Jack L. Goldsmith, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain FBI Intelligence Bulletins (Apr. 5, 2004).
90 The POG material described a Padded Bloc as "a contingent of people protected from police violence through the use of padding, shields, banners, and/or other materials."
91 Philips and Herman are pseudonyms. The Pittsburgh Field Division would later open a preliminary inquiry on Philips and Herman in connection with their participation in the FTAA meeting. We discuss these preliminary inquiries, which included FBI attendance at Merton Center meetings, in Section C of this chapter.
92 Under 18 U.S.C. § 232(3), the term "federally protected function" includes "any function, operation, or action carried out, under the laws of the United States, by any Department, agency, or instrumentality of the United States or by an officer or employee thereof."
93 The Attorney General's Guidelines on "Reporting on Civil Disorders and Demonstrations" were in effect from 1976 until they were repealed and partially incorporated into the 2008 guidelines. Two FBI OGC attorneys we interviewed told us it was their interpretation that the Guidelines required the FBI to request Attorney General approval to open an investigation under the federal riot statute, 18 U.S.C. § 2101, and the civil disorders statute, 18 U.S.C. § 231. The Miami investigation was not explicitly opened under the civil disorders statute, and it appears that no such approval was sought. In July 2008 the DOJ Office of Legal Counsel (OLC) sent an informal opinion to OGC that stated that the Demonstration Guidelines do not require Attorney General approval to open an investigation under the riot statute or the civil disorders statute. However the OLC attorney also said that "as a prudential matter" the FBI should consider requesting such approval before initiating investigations under these statutes. The 2008 Attorney General's Guidelines repealed the Demonstration Guidelines and requires the approval of the Attorney General, Deputy Attorney General, or the Assistant Attorney General for the Criminal Division only when the FBI collects information relating to actual or threatened disorders to assist the President in determining whether, pursuant to 10 U.S.C. § 331-33, "use of armed forces or militia is required and how a decision to commit troops should be implemented."
94 The special events and the full investigation domestic terrorism files, which were voluminous, contained brief references to the expected attendance of and location of Greenpeace at the FTAA meeting. One EC in the full investigation file reported information received from local law enforcement about the attendance of two PETA members at an anti-FTAA "direct action" training camp. We concluded that the retention of this information was pertinent to the FBI's special events mission and not based solely on the exercise of First Amendment rights.
95 Herman, Philips, and Waterman are pseudonyms.
96 The FBI was authorized to conduct Internet research on POG for the purpose of preventing or detecting terrorism pursuant to Part VI.B.1 of the 2002 Attorney General's Guidelines, discussed in Chapter Two.
97 In a January 28, 2005, EC, the case agent for the Philips preliminary investigation discussed an Internet article that described his attempt to interview Philips. The article named the case agent and alleged that he entered "two other normally locked doors" of Philips's apartment building to leave a note for Philips to call him. The case agent explained in the EC that he and another agent opened one unlocked exterior door and left the note on Philips's apartment door. The article, which was attached to the EC, stated that the apartment was the home of a Merton Center intern and staff member.
98 It is not clear how the agent knew this meeting was connected to POG, but it appears likely that the agent found a reference to the meeting on the POG website.
99 We made the redactions indicated in the text. The source report contained the actual identifying information regarding these individuals.
100 The POG website included information about a device made with PVC pipe known as the "sleeping dragon," used for locking two protesters together.
101 We believe the predication as to the third subject, Waterman, was weaker than for the other two subjects. Like the other subjects, Waterman was identified in the opening EC as "dba" the POG. However, the only connection between Waterman and the POG stated in the opening EC was that Waterman had been seen with Philips at a meeting of a different group (not POG), in another city, that was also planning to attempt to stop the Miami FTAA meetings by means that the group anticipated might result in arrests. Although there were other facts developed in a different investigation potentially linking Waterman to an anarchist group other than the POG, the facts linking Waterman to the POG or Pittsburgh were extremely thin. The Pittsburgh investigation did not relate to the other anarchist group. Although the FBI Field Division in the other city had an open investigation relating to the other anarchist group, Waterman was not a named subject of that investigation. Accordingly, we question whether there was a basis for FBI Pittsburgh open a preliminary inquiry as to Waterman.
102 By contrast, we do not believe that adequate predication ever existed to open a full investigation of these subjects under the "reasonable indication" standard.
103 FBI Confidential Human Source Policy Manual 1.12. Prohibitions.
105 One report described the conduct of one participant who opened the door to a military recruiting office while carrying a bag containing PVC pipe, which the case agent told us he thought might have implied a bomb.
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