A Review of the FBI's Investigations of Certain Domestic Advocacy Groups
Chapter Five: Investigative Activities Directed at Greenpeace
According to the Greenpeace International website, Greenpeace was founded in 1971 by a small group of activists who leased a fishing vessel and sailed to Amchitka Island in Alaska to "bear witness" to the United States' underground nuclear testing at Amchitka Island, which was home to 3000 endangered sea otters, bald eagles, peregrine falcons and other wildlife. Their stated mission was to attempt to place themselves in harm's way in order to protest nuclear testing off the coast of Alaska.
Greenpeace International, which is based in Amsterdam, the Netherlands, now focuses on global environmental campaigns. Greenpeace International coordinates the activities of 41 "National/Regional Offices" located throughout the world including the United States (Greenpeace U.S.A.). According to its website, the National/Regional offices are largely autonomous in carrying out campaigns within their local areas and in obtaining the necessary financial support to carry out that work.
The most recent annual report for Greenpeace U.S.A. (2008-09) describes the organization's mission as follows:
Greenpeace is an independent campaigning organization that uses peaceful protest and creative communication to expose global environmental problems and promote solutions for the future. With 46 offices located throughout the world, Greenpeace works to protect our oceans and ancient forests, and to end toxic pollution, global warming, nuclear threats, and genetic engineering. Since 1971, Greenpeace has been the leading voice of the environmental movement by taking a stand against powerful political and corporate interests whose policies put the planet at risk.
We limited our review to FBI investigative activities impacting Greenpeace U.S.A. ("Greenpeace"). We selected Greenpeace because it was one of the groups that had been featured in the news articles that, beginning in December 2005, reported that the FBI had improperly monitored the activities of domestic advocacy groups. As noted in Chapter One, many of these new articles were based upon information contained in document disclosures resulting from the FOIA requests to the FBI.
II. Specific FBI Activities Relating to Greenpeace
Our review of FBI files identified several investigations in which individuals associated with Greenpeace were identified as subjects and the predication for those investigations was unclear. In the next sections, we analyze the predication for the investigations, as well as related issues.142
A. FBI Anchorage Division Investigations of Individuals Associated with Greenpeace - 1999 - 2002
The FBI's Anchorage Field Division opened a series of related investigations of individuals associated with Greenpeace during 1999 - 2002. The FBI initially focused on plans by several members of Greenpeace to disrupt British Petroleum/Amoco (BP) energy development projects in Alaska. Later the scope of the investigation expanded to include alleged plans by Greenpeace members and others to protest or disrupt Strategic Missile Defense Initiative activities in Alaska and at another location outside the United States. We examined whether the investigations were adequately predicated and whether the collection and retention of information about the planned protest activities were consistent with FBI policies.
In an Electronic Communication (EC) dated December 28, 1999, ("opening EC") the FBI's Anchorage Field Division opened a preliminary inquiry to determine whether two named subjects and unknown others were involved in a conspiracy to commit "terrorist related criminal activity" in connection with the Northstar offshore oil development project in the Arctic operated by British Petroleum/Amoco ("BP"). The FBI opened the preliminary inquiry under the investigative classification for Acts of Terrorism by domestic terrorists.
The opening EC and another FBI document cited information received by the FBI that the subjects and unknown others were preparing to disrupt or halt the construction of BP's Northstar Project, an offshore energy development project in Alaska. During the course of the preliminary inquiry, the FBI added additional subjects who were members of an "environmental pressure group" (later identified as Greenpeace) that was planning to interrupt or delay construction of Northstar, although Greenpeace itself was never made a subject of the investigation. According to the FBI's information, the group's plan was to interfere with BP's construction of two 6-inch sub-sea pipelines from Seal Island to the Mainland where it would connect to the Alaska Pipeline, by, among other things, cutting trenches across BP's "ice road" used to transport equipment over sea ice to the site, chaining themselves to pipes embedded in the ice in the path of BP's activities, or chaining themselves to BP's construction equipment.
According to the FBI file, on February 24, 2000, representatives from BP security, Alaska State Troopers and the Alaska North Slope Borough met with members of Greenpeace to advise them that certain areas, such as the right of way for the pipeline and the ice roads that have been constructed for the purposes of the sub-sea pipeline construction, were designated as "environmentally sensitive areas" requiring special permission for entrance. The Greenpeace members were informed that any trespassers would be arrested for entering restricted areas. They were also informed that a special Alaska State permit to camp in excess of 14 days in one location on "State Land" was required.
On March 10, 2000, three individuals were arrested by state and local law enforcement authorities for trespassing onto BP property. A fourth individual was arrested a few weeks later for trespassing. Several more members of Greenpeace were arrested in the ensuing weeks. At least two of the protesters were in possession of thick chains and were attempting to secure themselves to the cab of a backhoe when they were arrested. On April 11, 2000, five Greenpeace members were arrested while trespassing onto BP property, and some of those individuals were in possession of chains and bolt cutters. One of the arrested individuals was driving a snowmobile, which dragged a warming but containing two protesters chained together. The activities for which the Greenpeace members were arrested were consistent with the information that the FBI relied on in opening the investigation.
On April 18, 2000, the FBI opened a full investigation of 10 individuals associated with Greenpeace in connection with the Northstar project. The opening EC for the full investigation stated that based on the arrest of 15 members of Greenpeace and other information, Greenpeace activists remained committed to engaging in direct action activities to halt the production of petroleum energy in Alaska's Arctic region by hindering, delaying, or halting BP's planned transportation of oil drilling equipment for the Northstar Project during the upcoming summer months.
On August 7, 2000, seven members of Greenpeace boarded a 420-foot barge carrying drilling equipment for BP's Northstar Project. In boarding the barges, the protesters crossed the 400 yard "safety zone" around the tug and barge. As a result of the boarding, the barge was forced to turn around and return to the nearest port. Greenpeace members erected a polar survival shelter on the barge and sent an e-mail to BP employees describing the direct action campaign against Northstar. In addition, Greenpeace members hung up banners and flags on the barge.
On August 8, 2000, at the request of attorneys for BP, the federal district court in Alaska issued a temporary restraining order against Greenpeace. Just prior to the issuance of the restraining order, several motorized rafts, operated by Greenpeace members, attempted to halt a tug near Prayeth Bay. After the order was issued, Greenpeace members and the Greenpeace vessel, M/V Arctic Sunrise, left the area.
Beginning in late 2000, the FBI expanded the scope of the Northstar investigation to obtain information about protest activities planned by Greenpeace and some of its members relating to other issues. For example, the FBI developed information that Greenpeace and some of its members (as well as other organizations) were planning to disrupt a different BP project in Alaska known as the Liberty Oil Field. The FBI also developed information that Greenpeace and some of its members were planning to protest Strategic Missile Defense Initiative activities at locations in Alaska and outside of the United States. The FBI file noted that numerous Greenpeace members who might be involved in the disruption activity planned for the Liberty project had been arrested in connection with the Northstar protests.
Throughout 2000 and 2001 the FBI developed detailed information regarding the plans being developed by Greenpeace to disrupt and delay construction of the Northstar and Liberty projects and other potential protest activities. The primary focus of the information recorded in FBI documents was anticipating and preparing for potential criminal activity in the form of trespass and other actions such as protesters chaining themselves to equipment or to the ice. Some documents briefly described the message that the group was seeking to convey to the public through its acts and the group's deliberations and strategies (apart from the acts) for getting the message out.
In early 2001 the FBI case agent filed a report in the Northstar investigation file describing information the FBI had developed regarding the upcoming travel and protest plans of three individuals: A. Bartlett, C. Daniels, and E. Franklin.143 Bartlett was a Greenpeace member and a named subject of the Northstar investigation who had been arrested during the Northstar protests in 2000. Daniels was a Greenpeace member who was not a named subject. According to FBI documents, Daniels participated in the Northstar protests, but there was no indication in the FBI files that Daniels had been arrested. FBI documents identified Franklin as someone who had been arrested the prior year during the Northstar protests and who was moving to Alaska. Franklin was identified as a member of Greenpeace and other environmental organizations. The report did not contain any information about illegal or planned future illegal activities by these individuals.
On May 14, 2001, the FBI opened a preliminary inquiry relating to Franklin and the Ruckus Society, a group described as being closely tied to Greenpeace through cooperation and common employees. The opening EC described information that the FBI developed that Franklin had mentioned an interest in blowing up the Alaska pipeline. The EC described Ruckus as specializing in high profile direct actions, which the FBI called a "euphemism for criminal activity." The EC stated that Ruckus and other environmental extremist groups, through Franklin, would become increasingly active in targeting projects in Alaska, potentially including the Alaska Pipeline, the Strategic Missile Defense Initiative, and others.
Through the rest of 2001, the FBI collected and recorded information regarding Franklin's efforts to establish a Ruckus "direct action" training camp in Alaska. The FBI also collected and recorded information about Daniels's political positions and protest-related activities, including an alleged plan to conduct reconnaissance of missile defense sites in Alaska in preparation for protest activities. The FBI also collected and recorded information about Greenpeace's plans for protesting the Strategic Missile Defense Initiative, including plans for protest activities at a location outside the United States. This information was retained in both the Northstar full investigation file and the Franklin preliminary inquiry file.
On September 6, 2001, the FBI Anchorage Field Division case agent reported that there was no indication that Ruckus would approve a direct action training camp in Alaska. The agent stated that the investigation had not determined that Franklin had the intention or the means to blow up the Alaska Pipeline. On December 13, 2001, the case agent reported that Franklin had left the state, and the preliminary inquiry of Franklin was closed.
In January 2002 the FBI Anchorage Field Division case agent prepared an EC noting that Greenpeace had signed a plea agreement stating that American Greenpeace members would not trespass on U.S. military property linked to the National Missile Defense, and that Greenpeace was stepping back from National Missile Defense issues in the United States. The full investigation that had originally been opened in connection with the Northstar matter was closed.
2. OIG Analysis
a. Predication for the Investigations
We concluded that under the applicable guidelines, the FBI had a sufficient factual predication to open a preliminary inquiry and full investigation on members of Greenpeace for a general crimes investigation in connection with the Northstar investigation. While the opening ECs did not identify a specific federal law that the subjects may have been planning to violate, the facts and circumstances known to the FBI at the time of the opening ECs supported a preliminary inquiry and later a full investigation relating to a potential violation of 18 U.S.C. § 1366 (Destruction of an Energy Facility). This statute provided that "[w]hoever knowingly and willfully . . . damages or attempts or conspires to damage the property of an energy facility in any amount and causes or attempts or conspires to cause a significant interruption or impairment of a function of an energy facility, shall be punishable by a fine under this title or imprisonment for not more than ten years, or both." 18 U.S.C. § 1366(a) (effective to October 25, 2001). The statute defines "energy facility" as "a facility that is involved in the production, storage, transmission, or distribution of electricity, fuel, or another form or source of energy, or research, development, or demonstration facilities relating thereto, regardless of whether such facility is still under construction or is otherwise not functioning." 18 U.S.C. § 1366(c).
At the time that the preliminary inquiry was opened, the FBI concluded that there was a "possibility of criminal activity" as required under the Attorney General's Guidelines. Once under construction, the Northstar Project would clearly be an energy facility within the meaning of the statute. The FBI also had credible information (later confirmed by the conduct of Greenpeace members) that Greenpeace members were planning activities which, if successful, would interrupt or impair the function of the facility. Similar actions to impede the activities of a target organization had been used by Greenpeace members on numerous other occasions. Interrupting or impairing the facility was Greenpeace's central purpose. This information was sufficient to support a conclusion that Greenpeace activities would possibly satisfy the "damage to facility property" element of 18 U.S.C. § 1366.
By the time the full investigation was opened in April 2000, the FBI had more information about the potential actions of the Greenpeace members that provided sufficient predication for a full investigation under the "reasonable indication" standard of the Attorney General's Guidelines. By that time, at least 15 members of Greenpeace had been arrested while trying to impede or impair construction of the project through means such as chaining themselves to equipment. Under the circumstances, the FBI concluded that there was a reasonable indication that 18 U.S.C. § 1366 would be violated.
As noted above, the focus of the full investigation shifted to efforts to disrupt a different BP project (the Liberty Oil Field) and to protests relating to Missile Defense, and we concluded there was adequate predication for a full investigation into these additional matters. As to the BP Liberty Oil Field project, although the FBI did not open a separate investigation, based on the activities and arrests of Greenpeace members protesting the Northstar project and other information there was a reasonable indication that these individuals or others associated with Greenpeace would continue to disrupt or impede construction in a similar fashion and would violate 18 U.S.C. § 1366, as discussed above.
We also concluded that, under the Attorney General's Guidelines, there was sufficient predication for the FBI to investigate possible crimes by the subjects in the Northstar investigation in connection with Greenpeace's planned protests regarding the Strategic Missile Defense Initiative. In the course of the Northstar investigation the FBI learned that some of the same individuals who participated in the illegal Northstar protest activities were also involved in the plans regarding Missile Defense protests. The FBI concluded that there was a reasonable indication that the planned protest activities might include illegal acts, including, for example, trespass on a military facility, 18 U.S.C. § 1382.144
We also determined that the FBI had sufficient predication to open a preliminary inquiry of Franklin. Franklin's reported statement of interest in blowing up the Alaska pipeline would justify a preliminary inquiry relating to the possibility of a violation of 18 U.S.C. §§ 844(i) and (m) (bombing of property used in interstate commerce).
b. Classification as an Act of Terrorism Investigation
We also considered whether this matter was properly classified as an Act of Terrorism investigation. At the time the investigation was opened, this classification was applicable to "any investigation of a criminal act which involves as an individual or individuals affiliated with a domestic terrorist group." MIOG Part 1, § 266-1(1). We are not aware of any specific definition of "domestic terrorist group" that was used by the FBI at that time, although the 1989 Attorney General's Guidelines defined a "domestic security terrorism investigations" as "focused on investigations of enterprises . . . whose goals are to achieve political or social change through activities that involve force or violence."
Many of the tactics used by the Greenpeace members in this case, such as trespassing and even chaining themselves to ice roads, could be considered forms of civil disobedience and would not normally be considered acts of terrorism. However, the FBI developed some credible information that the Greenpeace individuals under investigation were seeking to promote its goals in part through acts that might include acts of force or violence. In particular, the FBI had information that one subject had expressed interest in blowing up the Alaska pipeline. We therefore concluded that there was a basis for the FBI to classify this investigation as an Act of Terrorism matter.
c. Collection and Retention of Information about First Amendment Activities
Some of the FBI reports in the files related to the Greenpeace Alaska investigations contained information about the actual or planned travel and First Amendment activities of Greenpeace or individuals associated with Greenpeace. In particular, the FBI collected information about the travel and protest plans of Bartlett, Daniels, and Franklin. In some of these documents, no specific connection between this information and any possible illegal action was made explicit. These documents could create the impression that the FBI was investigating Greenpeace or the individuals solely on the basis of their First Amendment activities. We therefore considered whether the FBI collected and retained this information in compliance with applicable guidelines.
As detailed in Chapter Two, the Privacy Act and the FBI's MIOG provide that information concerning the exercise of First Amendment rights should be made a matter of record only if it is "pertinent to and within the scope of authorized law enforcement activity." 5 U.S.C. § 552a(e)(7); MIOG Introduction, § 1-4(4). After reviewing the FBI file as a whole, we did not conclude that it was unreasonable for the FBI to consider the information about the First Amendment activities of Greenpeace and its members to be pertinent to and within the scope of the authorized preliminary and full investigations described above. The purpose of collecting this information appears to have been to track the location and future intentions of subjects of the investigations or other persons who had participated in protest activity relating to the Northstar project that included illegal acts. Greenpeace members had already engaged in actual and attempted illegal acts, including efforts to disrupt an energy facility by, for example, trespassing, boarding an oil company barge, and chaining themselves to equipment, and they had demonstrated an intention to continue to conduct future protest activities that could include illegal acts similar to those attempted earlier. In addition, at least one subject had reportedly expressed an interest in blowing up the Alaska pipeline. Given these activities, the specific plans and intentions of individuals involved in these plans as to future travel and future targets for protest were pertinent to the investigation.
B. FBI Dallas Field Division Investigations of Individuals Associated with Greenpeace - 2004 - 2007
In 2004 the FBI's Dallas Field Division opened a full investigation against four individuals associated with Greenpeace relating to their protest activities with respect to Exxon-Mobil (Exxon) and Kimberley-Clark Corporation. During this investigation the FBI utilized a wide variety of investigative techniques, including surveillance and the use of a pole camera. We examined the adequacy of the predication for this investigation and whether the investigation was predicated solely on First Amendment activities.
The FBI's Dallas Field Division opened an investigation under the Acts of Terrorism classification against two individuals (G. Harris and I. Johnson) associated with Greenpeace on May 17, 2004.145 The opening EC did not identify the potential federal criminal violations, but later documents SENTENCE DELETED stated that the investigation related to possible violations of criminal statutes: conspiracy, civil disorders, interruption of an energy facility, and traveling to riot, 18 U.S.C. §§ 231, 371, 1366 and 2101.146
According to the file, the facts known to the FBI case agent at the time the full investigation was opened included that Harris and Johnson were arrested PARAGRAPH DELETED 147
The FBI file noted that when Harris and Johnson were arrested, the ave as their address a PARAGRAPH DELETED . The file also noted that Harris had contacts with the subjects of other FBI Act of Terrorism investigations.
The case agent also knew as a result of a different FBI investigation that Harris had numerous contacts with a person who was suspected of involvement in an alleged conspiracy SENTENCE DELETED . Although Harris was not a named subject of this other investigation, he was suspected of involvement in the alleged conspiracy.
The case agent told the OIG that he recommended that the full investigation be opened prior to Exxon's upcoming May 24, 2004, annual shareholder meeting because he was concerned about the subjects committing the same kinds of criminal acts that they committed . He stated that "[o]ur mission in the counterterrorism field is to try and prevent these kinds of things from happening." He was unable to cite a particular federal criminal statute that was at issue, stating:
I wasn't picking out statutes to try and go. I was running it as a counterterrorism investigation primarily. I saw pretty good facts and hoped to prevent future acts. There was a possibility for several charges. I do not know them off the top of my head but I was looking at finding out if there was going to be any future attacks.
The agent told us that he was concerned that the activists who participated in the might resort to more violent actions such as arson because SENTENCE DELETED . The case agent also stated that the "federal nexus" was the fact that most of the persons traveled from out of state or from foreign countries "to be part of this conspiracy to commit a crime."
A week after the full investigation was initiated, the FBI added a third subject, K. Lewis.148 Lewis had also been SENTENCE DELETED ,149 and had contacts with the subject of another domestic terrorism investigation in a different FBI field division. FBI documents filed in this investigation after the Exxon meeting made no mention of any protests, crimes, or arrests in connection with the meeting, although they continued to reference . On December 6, 2004, the FBI Dallas Field Division learned about a SENTENCE DELETED . The FBI determined that 1 of the had likely been in contact with Harris and with the subjects of other domestic terrorism cases. This individual was added as the fourth subject of the FBI Dallas Field Division investigation.
Beginning in May 2004 (and ending in April 2006), on at least seven separate occasions the case agent conducted surveillance of the residence at the address given by Harris and Johnson when arrested, taking note of all vehicles parked near it. Later the tag numbers on these vehicles were submitted to the state's department of motor vehicles in order to obtain vehicle registration information, which was kept in the FBI file.
PARAGRAPH DELETED 150
The FBI conducted database and Internet research on the subjects and some of their associates. Information from this research was placed in the FBI case file, including summaries of the subjects' involvement with activist organizations, information from a database, photographs obtained through a state driver license image retrieval system, and other personal information.
On January 4, 2005, the case agent received information from corporate security at Kimberly-Clark Corporation that the company had been targeted by Greenpeace for its use of pulp from non-recycled wood in many of its paper products.151 A neighbor of Kimberly-Clark's CEO reported seeing a green van, occupied by two males taking pictures of the CEO's residence, but was unable to obtain the license slate number. Kimberly-Clark's officials were aware of and wanted to open a dialog with Greenpeace to prevent similar actions from occurring against Kimberly-Clark.
The information about Kimberly-Clark, along with other past information in the case file, led to the case agent's re uest, on March 3, 2005, to his supervisor to install a pole camera .152 The case agent was concerned that the subjects planned to disrupt shareholder's meetings scheduled for Kimberly-Clark and Exxon in April and May, 2005. The case a ent said he therefore requested the installation of a pole camera , which he believed served as a meeting and preparation location for individuals involved in illegal activity. The agent stated that this technique would be useful in identifying additional subjects and vehicles at the residence. The request was granted and the pole camera was installed on April 21, 2005. The FBI installed two pole cameras for the purpose of determining the pattern of activity in preparation for the upcoming Exxon and Kimberly-Clark annual meetings. The case agent stated that nothing significant was learned as a result of the pole cameras.153
On March 25, 2005, the case agent requested and obtained the assistance of the Special Operations Group (SOG) to conduct surveillance of Harris's residence. The case agent told us that the FBI had learned about a threat to bomb the World's Best Technology conference being held in Arlington, Texas. The case agent stated that because this conference was close in time to the Exxon and Kimberly-Clark annual meetings, he was concerned that the same subjects were involved in the threat. When further investigation revealed that the individual making the bomb threats was not related to any of the subjects of this investigation, a separate investigation was opened and surveillance of the target residence was discontinued.
On July 11, 2007, 3 years after the initiation of the full investigation, the FBI closed the matter. FBI documents contain no evidence or allegation that any of the subjects of the investigation disrupted the operations of Exxon or Kimberly-Clark during this 3-year period. The closing EC noted that the target residence (the residence of Harris) SENTENCE DELETED . The closing EC stated that the information collected on the subjects was being provided to the FBI field office for any action deemed appropriate.
All of the subjects were placed on the Violent Gang and Terrorist Offender File (VGTOF) database at the time they were named as subjects. The FBI Dallas Field Division thereafter received information about law enforcement encounters involving the subjects and in some cases the subjects' associates. For example, in one of the subjects and several friends were questioned in another city by a local policeman who found them in a residential neighborhood. Although no citation was issued, the officer recorded the vehicle license plate number and forwarded the identities of the occupants to the FBI. Because one of the occupants was a subject of the Dallas investigation who was in the VGTOF database, information about this encounter was forwarded to the Dallas Field Division and placed in the case file. According to the file, the police officer reported the incident because a conference was recently held in that city which had drawn protests from various "animal rights/eco-terrorism" groups.
The case file also contained a VGTOF alert relating to Harris's travel outside the country . Although Harris's travel was not delayed, as a result of this alert the FBI connected Harris's trip with an anonymous complaint from , entered in the FBI's Automated Case Support (ACS) system, indicating that SENTENCE DELETED . The complaint further alleged that the "attacks may include destruction, immobilizing, setting fires and destroying bulldozers."
As discussed in Chapter Two, at the time of the Dallas investigation FBI policy required that subjects of a domestic terrorism full investigation be nominated to the consolidated terrorist watchlist (thereby placing the subject's identity into the VGTOF database) and that the subject be removed from the watchlist upon the case closure. The agent told us that he requested that the subjects of the Dallas investigation be removed after the case was closed. However, it appears that this did not occur. We found that the FBI file contained a VGTOF alert about one subject's arrest at an unrelated to the Dallas investigation that took place after the Dallas matter was closed. The case agent told us that when he received this alert he again requested that the subjects be removed from VGTOF.154 The agent's second request was probably successful, because we found no subsequent VGTOF alerts in the case file.
2. OIG Analysis
Based on our review of the case file as a whole and our interview of the FBI Special Agent and the Assistant United States Attorney assigned to this matter, we did not conclude that the FBI's Dallas Field Division targeted Greenpeace or its members solely on the basis of their First Amendment activities. The FBI documents and witnesses stated that the FBI was seeking to investigate the subjects who the FBI believed might engage in protest activities against Exxon that could include criminal acts such as trespass that could ultimately result in damage to property or injuries to individuals. The FBI cited the participation of the subjects in a SENTENCE DELETED . In addition, the FBI had information that at least one of the subjects had contacts with a person who was suspected of bein involved in a conspiracy to SENTENCE DELETED .
Although we did not conclude that the FBI was investigating the subjects solely as a result of their First Amendment activities, we concluded that the predication for this investigation as relating to a federal crime was extremely weak.
Moreover, we found that the FBI Dallas Field Division did not comply with Section II.C3. of the Attorney General's Guidelines, which required that the "FBI supervisor authorizing an investigation shall assure that the facts or circumstances meeting the standard of reasonable indication" be recorded in writing. The importance of complying with the writing requirement in cases implicating the exercise of First Amendment rights is underscored by the FBI policy requiring "strict compliance" with Attorney General's Guidelines and FBI policies in initiating investigations of "individuals or members of assembled groups who advocate political or social goals through violent means, as well as investigations into the causes of civil or social disorder." MIOG, Introduction, § 1-4(1), (2).
The FBI did not comply with these requirements. First, the opening EC provided no information to support the suspicion that the subjects were planning any future protest against Exxon in Dallas (or elsewhere), other than the fact that the subjects had in the past and were in regular contact with others who were the subjects of domestic terrorism investigations.
Second, even assuming that the available information created a reasonable indication that the subjects were planning future protests , the opening EC did not explain how such a protest might involve a violation of federal law. All the crimes that occurred during were investigated and prosecuted by local authorities under state law. There is no federal criminal statute prohibiting trespass on private property. The case agent was unable to specify to us any particular federal crime that he had in mind at the time he opened the investigation in 2004. He said that his focus was more broadl aimed at preventing criminal acts such as those that occurred from being committed at future events. Yet, the were charged only with state crimes, not federal crimes. The case agent also stated that he was concerned the protesters might escalate their future protests by engaging in more violent and destructive acts because , but we found no basis in the opening EC to support this concern.155
Court documents filed by the prosecutor after the case was opened described the investigation as relating to potential violations of 18 U.S.C. §§ 371 (conspiracy), 231 (civil disorders), 1366 (interruption of energy facility) and 2101 (riot).
We believe that at the time the investigation was opened the most likely predication for a potential violation related to the riot statute, 18 U.S.C. § 2101.156 The riot statute prohibits traveling in interstate commerce or using a facility of interstate commerce to incite, organize, promote, encourage, participate in, or carry on a riot. The statute generally defines a riot as an act or threat of an act of violence, by a person who is part of an assemblage of three or more persons, constituting a clear and present danger of, or resulting in, damage or injury to the property or person of an individual. 18 U.S.C. § 2102.
Based on , the FBI may have had indication that the subjects would promote or encourage the travel of out-of-state protesters in interstate commerce or otherwise use interstate facilities (cell phones) for similar future activities. However, we found scant evidence suggesting that the subjects were planning protest activities that would satisfy the "act or threat of an act of violence" element of the riot statute. The only specific information suggesting that the subjects might engage in acts or threats of acts of "violence" was the . The case agent told us that based on a conversation with local police he believed that " SENTENCE DELETED ." He said he did not know the extent of that injury.
We note that the FBI also had information showing contacts between Harris and another person who was suspected of being involved in a conspiracy to make s ecific threats of violence a ainst the employees of a different company . The FBI may have been concerned that such unlawful threats of violence might therefore be used in potential future protests of Exxon and Kimberly-Clark in Dallas. However, the available record does not establish a link between Harris and the threatened acts of violence in the company case, the agent did not offer during our interview such a link as a reason for targeting Harris, and there is no evidence that the FBI considered this link at the time it opened the investigation. In sum, we concluded that the predication for this investigation as relating to a federal crime was weak and likely did not satisfy the Attorney General's Guidelines.
We also considered whether this investigation was properly classified under the FBI's "Acts of Terrorism" classification. As previously noted, FBI policy permitted the use of this classification for investigations of individuals who seek to further political or social goals through activities that involve the use of force or violence and violate federal law. Yet, we found scant evidence supporting the "force or violence" element of this test for the same reasons that we found that the FBI's predication for the "acts or threats of violence" element under the federal riot statute was weak.
This classification caused the subjects to be placed in the VGTOF database and on a federal watchlist. As a result, the FBI collected information about the subjects' travel and protest activities throughout the United States. For example, when local police stopped one of the subjects for they submitted the subject's name to the FBI's Terrorist Screening Center. Because the subject was in the VGTOF database, information regarding a passenger in the car was also collected and retained in the case file for the Dallas investigation as part of the Terrorist Screening Center's "Associates Project" for identifying possible associates of "known or suspected terrorists."
We also considered the long duration of this investigation in light of FBI policy requiring that the duration of any investigation with potential impacts on First Amendment activity "must not be permitted to extend beyond the point at which its underlying justification no longer exists." MIOG Introduction, § 1¬4(2). The investi ation was o ened in 2004 and was not closed until 2007, when . The last investigative activity reflected in this case file was a "spot check" of the target residence in April 2006. The Dallas Field Division investigation did not result in the collection of any evidence of potential criminal acts by the subjects, and several shareholders meetings of the target companies took place during the pendency of the investigation without incident.
In fact, the investigation was originally opened to prevent possible crimes at the 2004 Exxon annual shareholder meeting. When we asked the case agent why he kept the investigation open after the 2004 shareholder meeting passed without incident, he stated that the fact that no criminal actions were taken at one shareholder meeting did not compel the conclusion that no criminal actions were being planned for the next.
Yet, under the circumstances we believe that, under the Attorney General's Guidelines and FBI policies, the FBI should have closed the Dallas investigation and removed the subjects from the VGTOF database sooner than July 2007. The investigation was held open more than a year after the Dallas Field Division's last investigative activity. During that time the FBI continued to collect information about the subjects' travel and other activities pursuant to the VGTOF database. We believe the FBI kept the Dallas investigation open "beyond the point at which its underlying justification no longer existed," which failed to comply with the MIOG.
142 We identified one matter in which the FBI investigated the protest activities of both Greenpeace and The Catholic Worker, as well as other groups. We address that investigation separately in Chapter Seven.
143 Bartlett, Daniels, and Franklin are pseudonyms.
144 Although the Alaska Field Division did not open a separate investigation related to the National Missile Defense protests in Alaska, as we describe in Chapter Seven, in April 2001 the Los Angles Field Division opened an investigation on Greenpeace, The Catholic Worker, and others for protest activities of the NMD at the Vanderburgh Air Force Base in California.
145 G. Harris and I. Johnson are pseudonyms.
146 SENTENCE DELETED
147 SENTENCE DELETED
148 K. Lewis is a pseudonym.
149 The FBI case file does not contain an information that criminal activity occurred in relation to the . It also does not a ear that an arrests or charges were filed as a result of the activities stemming from the .
150 According to FBI files, SENTENCE DELETED
151 Kimberly-Clark's corporate security informed the FBI that Greenpeace members had been sending voluminous e-mails (e-mail attacks) aimed at overloading the corporate server.
152 Also referred to as a closed-circuit television camera, a pole camera is typically installed on a utility pole outside the target residence or place of business allowing investigative agencies to observe and record activities in areas where individuals have no expectation of privacy.
153 The pole cameras were removed some time prior to the investigation being closed in 2007, but we were not able to determine the precise date.
154 The watchlist removal delays we found here were consistent with the findings of an OIG audit of the FBI's consolidated terrorist watchlist nomination practices. The May 2009 audit found that 72 percent (61 of 85) of the subjects of closed international and domestic terrorism cases were removed from the watchlist in an untimely manner. See U.S. Department of Justice Office of the Inspector General, The Federal Bureau of Investigation's Terrorist Watchlist Nomination Practices, Audit Report 09-25, (May 2009) at 38. On average, removals were delayed 60 days from case closure. Id. The audit found that the FBI had no timeliness requirement for subject removals from the watchlist. Id. at 44. During the audit, the FBI put in place a new requirement that field offices submit watchlist removals within 10 days of a case closure request. Id.
155 The case agent identified the "federal nexus" as the fact that most of the had traveled from out of state in a conspiracy to commit criminal acts, indicating that the subjects might solicit persons from out of state to commit criminal acts. However, under 18 U.S.C. § 371, the subject of the conspiracy must be an "offense against the United States." The agent did not specify any federal crimes that were the subject of the potential conspiracy.
156 As noted in footnote 93 of Chapter Three, two FBI OGC attorneys told us they interpreted the Attorney General's Guidelines on "Reporting on Civil Disorders and Demonstrations" to require Attorney General approval to open an investigation under the riot statute. The FBI file contains no record that such approval was sought in this case.
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